People v. Herrera

BROWN (Gerald), J.

Defendant Raymond Herrera appeals from a judgment of conviction by a jury of selling heroin on February 27, 1963 (Health & Saf. Code, § 11501). In a separate but related ease, 4 Crim. No. 2067, defendant was convicted of selling heroin February 26, 1963. Both sales were made to the same narcotic agent, Primo Orosco ; in each instance the agent was accompanied by Herbert Nunez, a narcotic user turned an informer. After commitment to the Narcotic Rehabilitation Center at Chino, the criminal proceedings were reinstated, and in each case Herrera was sentenced to state prison, the sentences running concurrently with each other.

In response to inquiry defendant told Orosco where he could buy an ounce of heroin. In the company of Nunez, they went to the location. Orosco complained about the high price, but defendant replied that $40 a gram was the normal price in Chino. Another car parked nearby; defendant talked with its driver, then told Orosco the driver had narcotics and wanted the money. Orosco gave defendant $300 which defendant took to the other driver and returned with a package of heroin. Defendant took a pinch of it for his troubles. About 11 weeks later a conversation between defendant, Orosco and others was taped; it was admitted into evidence.

Defendant claims error of the court in refusing to allow him to testify about statements made to him by Nunez, which would have indicated he was entrapped into committing the offense. Defendant denied any knowledge of or part in the transaction with which he was charged. The trial court’s ruling was not improper since entrapment is not available as a defense unless the crime is admitted.

(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.

Sherman,

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

People

v.

Lee,

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

People