People v. Rodriguez

COUGHLIN, J.

Appellant was charged with selling heroin and with the conviction of a prior narcotics offense; pleaded not guilty to the charge of selling; and denied the prior conviction. His wife, as a codefendant, was charged with another and separate sale of narcotics. Both defendants were found guilty of the offenses charged and the allegations charging defendant with a prior conviction were found to be true. Judgment imposing a prison sentence upon appellant was entered accordingly.

The offense of which appellant was found guilty involved a sale of heroin, on May 14,1965, to an informer in the presence of an undercover agent. Appellant testified at the trial

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admitted the sale; but asserted the defense of entrapment.

On July 2, 1963, appellant had pleaded guilty to the offense of possession of heroin. Thereafter, pursuant to the provisions of Penal Code section 6451, which now are in Welfare and Institutions Code section 3051, imposition of sentence was suspended and proceedings instituted under that section culminated in appellant’s commitment for treatment as a narcotics addict. At the time of the subject offenses appellant was on parole under the latter commitment.

The contentions on appeal are: (1) The court erred in failing to instruct the jury that evidence of a subsequent offense of possession of heroin should not be considered on the issue of entrapment; (2) also erred in sustaining objections to testimony by appellant relating the contents of conversations between him and the informer; and (3) instructed the jury erroneously on the prior conviction issue.

Appellant and his wife were arrested at their home, pursuant to a warrant, on July 22, 1965. As an incident to that arrest, the officers searched the premises and found 19 bindles of heroin, and injection paraphernalia, apparently hidden in a trash container in the kitchen. This heroin and

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paraphernalia, and testimony respecting its discovery, over objection, were admitted in evidence as a part of the People’s ease in chief. At that time the court instructed the jury this testimony was admitted for a limited purpose, specifying such, and should not be considered for any other purpose. Similar instructions were given at the time the court instructed the jury generally. Appellant contends the court erred in failing to include within these instructions an admonition that the evidence in question, which tended to prove the commission of a separate and subsequent offense, should not be considered on the issue of entrapment. At no time did appellant request such an addition to the instructions given. The evidence in question was offered as a part of the People’s case in chief; tended to prove issues material to that case; and properly was admitted even though it established the commission of a separate and subsequent offense.