People v. Contreras

COUGHLIN, J.

The defendant was indicted, tried by a jury for, and convicted of selling heroin, a violation of Section 11501 of the Health and Safety Code, with a prior conviction. He admitted the sale, but rested his defense on the doctrine of entrapment. A motion for a new trial was denied. Judgment of imprisonment in the state prison was pronounced. He appeals from the order denying the motion and from the judgment, contending that the court committed prejudicial error in sustaining objections to questions which elicited statements by an undercover agent that were part of the transaction culminating in the subject sale, claiming that such statements were material to the issue of entrapment.

The evidence shows that the defendant was contacted by a longtime friend named Tucker, who was acting as an undercover agent; by the latter was introduced to a man named Maldenado who, unknown to him, was a narcotics agent of the Department of Justice; arranged for the purchase of some heroin from a fourth person; with Maldenado made the contact and participated in the sale by taking the heroin from the seller, delivering it to Maldenado, and then taking the money from the latter and giving it to the former. He did not receive any of the money or any of the heroin for his own use.

On direct examination the defendant testified that Tucker, whom he knew to be an addict, came to his home and that a conversation ensued. He was asked to relate this conversation. An objection to the question was made upon the ground that it called for hearsay and self-serving statements. The court sustained the objection upon both grounds. Thereupon, the defendant testified that when Tucker first came to his home he, the defendant, did not intend to locate any narcotics for him, or anybody else, but intended to stay at home and “watch television.” He then was asked what caused him to leave; replied that Tucker said he was sick; but before his answer was finished,.'an objection was made “to any hearsay testi

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mony.” The court sustained the objection, In both instances when the foregoing objections were made, the defendant’s counsel advised the court that the purpose of eliciting the statements made by Tucker was not to prove the truth of the facts related therein but to show the circumstances under which the defendant acted; that the testimony was material on the issue of intent; and that it would show a change of intention. Thereafter the defendant testified that, because of Tucker’s conduct toward him he changed his mind about going out of the house; that it was Tucker who first suggested that he obtain narcotics; that he told Tucker he did not want to do it; and that Tucker repeated the suggestion. He then was asked: “What reason did he give that he couldn’t obtain narcotics?” An objection that the question called for hearsay testimony was sustained. Following this series of objections, the defendant testified that he went outside, where Maldenado was waiting in an automobile; that the latter said “he was sick and needed a fix of heroin, and his wife was sick”; that thereafter he made the contact resulting in the sale, detailing the events leading up to the same; that he had no intention of doing any of these acts except for Tucker’s coming to his home; and that it was because of the latter’s and Maldenado's conduct that he participated in the transaction.