People v. Smith

BROWN (Gerald), P. J.

— Defendant Vernon Smith appeals from the judgment (Pen. Code, § 1237, subd. 1) upon his conviction of offering to sell marijuana (Health & Saf. Code, §11531).

The judgment must be reversed under

People

v.

Dorado,

62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361]. After his arrest, defendant was questioned at the police station by several officers concerning an offer to sell marijuana. In response to this questioning, which clearly lent itself to eliciting incriminating statements, the defendant stated, “Yes, I offered to sell [marijuana] to you, but I didn’t sell any.” When asked why he did not sell the marijuana after the sale had been arranged, defendant responded that he had been told the prospective purchaser was a police officer. Implicit in this statement is the admission that he actually intended to sell marijuana at the time he made the offer but changed his mind on learning his customer was a policeman. Taken together, the statements constitute a confession to the crime charged. Although the defendant admitted the offer on the witness stand, his defense was based completely on the lack of any intent to perform, contending his purpose in making the offer was to renew a relationship with a woman who accompanied the undercover officer. The record does not show that before making these statements defendant was advised of his rights to remain silent and to counsel. It was prejudicial error to admit them in evidence.

(People

v.

Dorado, supra,

62 Cal.2d 338 ;

People

v.

Stewart,

62 Cal.2d 571 [43 Cal.Rptr. 201, 400 P.2d 97].)

Other statements by the defendant may fall within the

Dorado

rule, but since this case was tried before

Dorado

was decided, the facts surrounding the making of these statements were not fully developed. Consequently, we do not now decide their admissibility.

It is appropriate to pass upon one other issue which will undoubtedly arise should this case be retried. After