People v. Wallace

DRAPER, P. J.

Found guilty by a jury of separate counts of sale (Health & Saf. Code, § 11531) and possession (Health & Saf. Code, § 11530) of marijuana, defendant was sentenced to concurrent prison terms. He appeals from the judgment.

A police informer sought to purchase marijuana from defendant, who said he had none. Another police informer joined them, and renewed the request. The informers testified that defendant went with them in their car, directed them to a point where they saw two persons of Spanish appearance, from whom defendant sought marijuana. By arrangement then made, defendant and the informers returned to the same location a few minutes later. Defendant took money from one informer, handed it to one of the two Spaniards, and received a bundle of marijuana cigarettes which he handed to one of the informers. One informer testified that defendant then said “You should give me one,” and the Spaniard dropped one marijuana cigarette into defendant’s lap. The informers and defendant then drove to the home of one informer, where they smoked marijuana. The informers both testified that defendant there produced and smoked a cigarette other than those he had furnished to them. Defendant testified that the Spaniards were recognized by the informers, rather than by him, and that the negotiations for purchase were carried on by one of the informers. Defendant’s part, according to him, was but to follow the informer’s instructions.

[681]

From the foregoing summary, it is apparent that there is substantial evidence to support the verdict on the sale count. While defendant’s testimony would support the view that he was a mere automaton, there is evidence that he was an active participant in the sale. Defendant does not suggest insufficiency of the evidence to support the charge of possession.

Defendant contends that his sentences for possession as well as sale violate the rule against multiple punishment for a single act (Pen. Code, § 654). But one punishment may be inflicted, even though several penal provisions be violated, if the violations result from a single act

(Neal

v.

State of California,