HERNDON, J. I concur in the portion of the opinion which affirms the convictions but I dissent from the reversal as to count IX because of the desirability of maintaining uniformity of decision in the construction and application of a penal statute which is an important part of the legislative plan in the control of traffic in dangerous drugs.
The sole assignment of error urged by appellant on this appeal is the contention that the evidence indicates as a matter of law that he was entrapped into committing the offenses of which he was convicted. By definition, this contention necessarily is founded upon the concession that appellant intentionally committed the proscribed acts or, at least, that he does not challenge the sufficiency of the evidence to establish such criminal conduct. That is to say, this assignment of error urges that the accused was “induced” or “lured” into the commission of a crime which he otherwise would not have committed and therefore he should escape punishment, not because his conduct did not constitute a criminal offense, but because, by reason of the conduct of its agents, “ ‘the government is estopped by sound public policy from prosecuting therefor.’ ” (People v. Sweeney, 55 Cal.2d 27, 48 [9 Cal.Rptr. 793, 357 P.2d 1049].)
Sua sponte the majority have advanced the proposition that the conviction as to count IX must be reversed because of the absence of proof that appellant knew of the “substitution” of a non-narcotic substance for the narcotic which the purchaser had been promised and the lack of evidence that appellant entertained the specific intent to defraud the purchaser.
Unquestionably the evidence is sufficient to support the finding of the trial court that appellant so actively participated in the transaction involved in count IX that he aided and abetted the commission of the criminal acts proscribed by section 11503. He was a principal in a transaction wherein he knowingly and intentionally assisted in making the arrangements leading to an agreement to sell and deliver a narcotic which was followed by the delivery of a non-narcotic substance. Appellant makes no contention to the contrary.
The majority opinion states: “There was no evidence that Sweet knew of the substitution, and no' evidence from which knowledge of the fraud could reasonably be imputed [173]to him, and therefore no evidence of his specific intent to commit the particular offense with which he was charged. Nor under the specific facts of this count was the fraudulent intent of the seller reasonably attributable to Sweet in order to make him an aider and abettor. ’ ’
The effect of the last quoted language of the majority opinion is to transform the crime defined in section 11503 into a specialized variety of theft or criminal fraud requiring proof of the existence of a fraudulent intent. This holding of the majority is contradicted both by the plain language of the statute and by the holdings in prior well-considered decisions construing the section and declaring its purpose and intent.
In People v. Hicks, 222 Cal.App.2d 265, at pages 271 and 272 [35 Cal.Rptr. 149], it is stated with respect to the meaning and intent of section 11503 of the Health and Safety Code: “We find nothing vague or uncertain in the statute. There is nothing unintelligible or ambiguous in the language of the act. Its language is quite clear. It says, so far as applicable here, that every person who offers to sell a narcotic and delivers a nonnarcotic substance is guilty of a crime. This is true, whether at the time of the offer the offeror actually intends to deliver a narcotic or intends only to /deliver a nonnarcotic. It is the delivery of a nonnarcotic that completes the crime. Anyone reading the statute should have no difficulty in understanding what it means. In the statute ‘ [t]here is a reasonably adequate disclosure of the legislative intent regarding the evil to be combatted in language giving fair notice of practice to be avoided.’ (People v. Shephard, supra, p. 289 [169 Cal.App.2d 283].)” (Italics added.)
Preceding the above quoted language from Hicks, the opinion contains an illuminating discussion of the legislative purpose in the enactment in 1953 of former section 11502, which, in 1959, was reenacted as present section 11503. Reference is there made to the earlier decision in People v. Shephard, 169 Cal.App.2d 283, wherein at pages 287 and 288 [337 P.2d 214] there is a quotation from the Assembly committee report which preceded the enactment, and at page 289 it is declared that “A reading of the section discloses that it is a crime for a person to agree to sell a narcotic to someone, and then to deliver instead a non-narcotic substance. ’ ’
In People v. Dalton, 172 Cal.App.2d 15 [341 P.2d 793], the [174]court dealt with a similar factual situation. The language of Justice Tobriner found in this decision seems to me to support my view that the only essential elements of the offense charged in count IX are (1) agreeing to sell a narcotic; and (2) delivering a non-narcotie substance. Proof of fraudulent intent is unnecessary.
Reference is also made to the decision in People v. Lewis, 206 Cal.App.2d 82, at page 85 [23 Cal.Rptr. 495], wherein it is stated: “A violation of section 11503 of the Health and Safety Code requires only that a defendant agree, consent or offer to unlawfully sell, furnish, . . . any narcotic, and then sell, deliver, furnish . . . any other substance or material in lieu of a narcotic. ’ ’
It may also be observed that in all other proscriptions in the “bunco” field, the Legislature expressly used the words “intent to defraud” or “defrauds,” thereby demonstrating the intention that such specific intent should be a necessary element of the crime defined therein. (Cf. Pen. Code, §§470 et seq., 484 et seq., 504 et seq., 530 et seq.) The Subcommittee on Narcotics of the Assembly Interim Committee on Judiciary in 1953 expressly stated that the intent of section 11503 was not to reach those engaged in mere bunco operations but “individuals [who] are known to be in a position to violate the law [regarding the furnishing of narcotics] ; but, for some reason, they may feel that they are dealing with a law enforcement officer and thus deliver tobacco, water, or some other substance with the result that they have had the intent to commit the crime but are testing out the officer.” (Italics added.)
In Haserot v. United States, 321 F.2d 582, 583, in an opinion by Judge Barnes, the contention that section 11503 was a “bunco ’ ’ law was rejected as follows:
“The sole question on appeal is whether Section 11503 is a ‘narcotic or marijuana’ law of the State of California within the meaning of 18 U.S.C. § 1407 (a).
“Appellant contends that Section 11503 is 'merely a legislative enlargement of the California “bunco” law,’ and not a narcotic law. (Appellant’s Brief, p. 7).
“It seems clear to us that Section 11503 is a 'narcotic or marijuana’ law of the State of California. It is found in the California Health and Safety Code under Division X, entitled ‘Narcotics,’ and under Chapter 5, entitled ‘Illegal Narcotics.’ This section is listed among the prior narcotics offenses precluding probation in the event of a subsequent [175]conviction. (Cal. H. & S. Code, § 11715.6.) It is one of those narcotic offenses involving increased potential punishment limits in the event of a subsequent conviction. (Cf. Cal. H. & S. Code §§ 11500, 11500.5, 11501,11502 and 11502.1.) Persons convicted of violating Section 11503 are required to register under Article 6 of the California Health and Safety Code, entitled ‘Registration of Narcotic Offenders.’ (Cal. H. &. S. Code §§ 11850.)”
It is thus clear that the Legislature was not urged to pass a more strict hunco law to protect the addict but rather a narcotic law designed to cover the situation where on a first sale the supplier “tests” his purchaser. The Legislature realized that if the undercover operator were to arrest the suspected seller immediately upon consummation of the sale, it would be impossible to convict such person under section 11501 despite his activities in the narcotics field. One who “tests” another is not seeking to defraud him. If the latter passes the “test,” the supplier will then deliver the true narcotic.
Exactly this type of situation appears to have occurred in the instant case. On the occasion here in issue appellant introduced Officer Parks to one Robert Hunter. Hunter purported to sell the desired narcotic to the officer but told him that if he was unsatisfied with it he might return it. On a later occasion the parties met again and when the officer accused Hunter of selling them “some bunk last time” Hunter replied, “Well, I told you guys when you bought it if they didn’t like it to bring it back and I’ll give them their money back. So why didn’t you bring your stuff back?” The officer then agreed to “take another chance” and this time Hunter furnished him with heroin.
If specific intent to defraud is an essential element in the crime defined by section 11503, then even the actual seller, Hunter, was not guilty thereof on the first occasion because, under the prosecution’s own version of the facts, he was either “testing” Officer Parks or, as is often true in the chain of supply, he was unsure of the exact chemical composition of the substance in his possession. Nevertheless, I believe that it was exactly this type of conduct which the Legislature intended to proscribe by section 11503.
If appellant intended to deliver a narcotic of the variety offered, he was guilty of the more serious crime defined in section 11501 which imposes upon the violator a sentence of five years to life. As stated in People, v. Jackson, 59 Cal.2d [176468], 469 [30 Cal.Rptr. 329, 381 P.2d 1]: "Defendant contends that section 11501 does not encompass an offer to sell a narcotic when nothing is delivered. It is settled, however, that delivery is not an essential element of the offense of offering to sell a narcotic. [Citations.] ”
Of course, where something is delivered and it is a narcotic, then the supplier is guilty of violating section 11501. However, if the material delivered is not a narcotic, then the supplier is guilty of the lesser offense defined by section 11503. As stated in People v. Hicks, supra, 222 Cal.App.2d 265, 272: "This is true, whether at the time of the offer the offeror actually intends to deliver a narcotic or intends only to deliver a nonnareotic. It is the delivery of a nonnarcotie that completes the crime. ’
I would affirm the judgment in its entirety.
Respondent’s petition for a hearing by the Supreme Court was denied February 14, 1968. Peters, J., and Mosk, J., were of the opinion that the petition should be granted.