People v. Herrera

BROWN (Gerald), J.

The defendant Raymond Herrera appeals from a judgment of conviction by a jury of selling heroin February 26, 1963 (Health & Saf. Code, § 11501). He was committed to the Narcotic Rehabilitation Center at Chino under Penal Code, section 6451. When he was later rejected by the Rehabilitation Center, criminal proceedings were reinstated and he was sentenced to prison, the sentence to run concurrently with that in a companion case, this day decided on appeal,

ante,

p. 558 [43 Cal.Rptr. 12].

Narcotics Agent Primo Orosco and informer Herbert Nunez met defendant, Harvey Chavez and Benny Padillo in Chino February 26, 1963. Nunez asked if they had “anything.” Chavez replied, “Three grams. How much do you want?” They discussed price; defendant said “Give it to him for a hundred.” Defendant and his colleagues left, returning in about 15 minutes. Someone inquired if they could change a twenty; defendant stated “We don’t have any money at all.” Orosco then asked for two grams for $66 and Padillo gave him two balloons containing heroin. About 11 weeks later a conversation between defendant, Orosco and police officers was taped; it was admitted into evidence. Defendant did not take the witness stand.

Defendant contends the trial court erred in sustaining objections to questions put to Padillo by defense counsel which would have established a defense of entrapment. Entrapment presupposes the admission by defendant of the crime charged

(People

v.

Sherman,

211 Cal.App.2d 419, 426 [27 Cal.Rptr. 353];

People

v.

Tillman,

142 Cal.App.2d 404, 407 [298 P.2d 631];

People

v.

Spencer,

193 Cal.App.2d 13, 18 [13 Cal.Rptr. 881] ;

People

v.

Lee,

9 Cal.App.2d 99, 109 [48 P.2d 1003];

People