People v. Moreno

JEFFERSON, J.

— Defendant appeals from a judgment entered upon his conviction, in a trial by the court, of three counts which charged the violation of • section 11531 of the Health and Safety Code, sale of marijuana. He was sentenced to state prison after rejection by the Youth Authority and the denial of probation by the court. In the single contention raised by defendant, he maintains that the uncontradicted testimony of the police officer who made the alleged purchases, established the defense of entrapment as a matter of law.

The People’s case consisted chiefly in the testimony (as contained in the preliminary hearing transcript), of Sam Epolito, a Los Angeles police officer assigned to undercover work by the narcotics division of the police department. The officer testified that he purchased marijuana from defendant on March 17, March 25, and April 3, 1964. On March 17 he met appellant, codefendant Marcus Luna and one Bobby Lee Williams, at the corner of Palos Verdes and Sixth Street, in San Pedro. Luna asked the officer if he wanted to get some “weed. ’ ’ The officer said “Yes” and gave Luna $5.00. Both appellant and codefendant Luna told Officer Epolito and Williams to go to a pool hall located at 531 South Beacon Street and to wait there. After Williams received a phone call at the pool hall, Williams and Officer Epolito drove to the corner of Twelfth and Beacon Streets. They waited a few minutes, and then appellant came over to their automobile and handed the officer 10 cigarettes and $2.00 in change. On March 25 Epolito met appellant at the Beacon Street pool hall. Appellant asked the officer if he wanted some “joints”. Epolito answered affirmatively. They then drove in the officer’s car to Cabrillo and Crestwood Streets where appellant got out of the car and left the officer. He returned a short time later with four cigarettes and gave them to the officer. In exchange Epolito

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gave him $2.00. On April 3 Officer Epolito met appellant at 711 West Second Street, San Pedro. They drove in the officer’s ear to an alley off Mesa Street between 15th and 16th Streets. Epolito handed appellant $20 and asked appellant to get him two “cans” of marijuana. Appellant left the car and entered an apartment house. When he returned they drove to 711 West Second Street. Appellant left the ear, went over to his own car, which was parked nearby, and opened the trunk. He then came back to the officer’s car and handed the officer two wax paper sacks. On each of the three above enumerated occasions Officer Epolito took the items which appellant had given him to the property division of the police department. It was stipulated that the items were found to contain marijuana.