People v. Kern

COUGHLIN, Acting P. J.

Defendant was convicted of the unlawful sale of Lysergic Acid (LSD); was granted probation; and appeals, contending (1) the evidence establishes entrapment as a matter of law; and (2) a condition of probation that he submit to search and seizure at any time by any law enforcement officer is unreasonable.

The sale occurred on July 19, 1967; was arranged by a “confidential informant” named McNerney, acting on direction of an undercover agent named Mooney; and was made to the latter.

Mooney received information from an undisclosed informant that a number of named individuals living at a designated address had “approximately 300 tablets of LSD for sale.” McNerney indicated he knew some of the individuals; upon direction from Mooney went to the designated address ; met defendant at this place; told the latter he knew somebody who wanted to buy LSD; and received the reply defendant did not have any LSD to sell but he knew somebody who had some. Thereafter McNerney again contacted defendant. It was arranged between them that either defendant or someone else would meet McNerney at a designated time and place to effect a sale. The contact was made as planned. Mooney was present; told defendant he wanted to purchase some LSD; and received a reply he, defendant had 100 he would sell for $250. Mooney asked if the LSD was any good and defendant told him “he had tried it, and it was good.” Thereupon defendant left, saying “I’ll go back to the house. I believe my partner has them counted out now”; returned with the LSD; delivered it to Mooney; and was paid $250. Mooney told defendant if the LSD was good he wanted to buy more of it but would not pay the same price. Defendant told him the price would be cheaper next time. At this time Mooney asked defendant if he could purchase some marijuana. The latter replied he had a friend coming into town later on that day from whom he would be able to obtain some marijuana.

The defense of entrapment is not established as a matter of law where the evidence warrants the inference the defendant had a pre-existing intent to sell dangerous drugs

(People

v.

Nunn,

46 Cal.2d 460, 471 [296 P.2d 813];

People

[964]