People v. Taylor

MOORE, P. J. Appellant was convicted of having delivered a different substance after she had sold and agreed to deliver heroin, in violation of Health and Safety Code, section 11502.* After a due denial of her motions for a new trial [369]and for probation, she was sentenced to the California Institution for Women. She appeals from the judgment denying her motion for a new trial.

Officer Eeese and a police employee, Gloria Bonavista, were seated in an automobile on a public street engaged in undercover narcotics investigation. They were approached by appellant who engaged Gloria in friendly conversation of old times. When they were about to separate, Gloria merely inquired in familiar dialect whether any narcotics were available “on the street.” Appellant’s prompt reply was in the affirmative with the request that Gloria give her the “bread” —meaning money. The latter having been passed, appellant stated that “a colored stud will bring the stuff.” In four minutes, a Negro delivered a substance which proved to be not a narcotic.

A subsequently recorded conversation with appellant, admitted in evidence, disclosed the following question and answer: Q. “You took a chance going to jail just to do somebody a favor.” A. “As long as I wasn’t dealing I didn’t think there was any harm in telling somebody else, and let them make some money.”

Appellant testified that on the day of the transaction, Gloria was nervous and trembling and appeared to be suffering withdrawal symptoms and in need of a narcotic; that when appellant pleaded lack of time, Gloria persisted with “Oh, please, would you?” Appellant admitted receipt of the $12 and testified that she asked Abou, the colored boy, to make the purchase, gave him the money and pointed out the car of Officer Reese and Gloria. Officer Reese testified that when a colored boy made the delivery, he stated, “This stuff is hers and not mine; I want you to know it’s hers and not mine.” No witness named Abou was called to the stand but a Negro boy named Elbert Landry testified that appellant did not give him $12 or tell him to purchase a narcotic.

Appellant now contends (1) error in refusing to give instructions on entrapment; (2) error in the court’s failure, sua sponte, to instruct on the law of entrapment.

Inasmuch as there was no such substantial evidence of entrapment as would support a finding of entrapment, the court correctly refused to give such instruction. (People v. Evans, 134 Cal.App.2d 733, 737 [286 P.2d 368]; People v. Alamillo, 113 Cal.App.2d 617, 621 [248 P.2d 421].) In Alamillo, although the defendant testified that the operator had appeared to be ill and in distress, the court held such