People v. Schreiber

Opinion

GARDNER, P. J. Defendant was convicted of one count of transportation and sale of a restricted dangerous drug, LSD, and one count of transportation and sale of a restricted dangerous drug, amphetamine (Benzedrine). He was convicted by a jury and appeals.

On November 10, 1969, Officer Smock of the Buena Park Police Department, acting in an undercover capacity in a narcotic investigation, was introduced to the defendant in a park in Garden Grove by one Michael Moore. The encounter was not prearranged. Defendant said to Smock, “Are you the guy that wants to score [purchase] the hits [narcotics or dangerous drugs]?” Smock answered, “Yeah, if the stuff is' any good I would be interested in scoring.” To this the defendant responded, “If mescaline is really good.” (While this statement is ambiguous, at best, Smock did testify the conversation was centered around mescaline: he believed that is what he was being offered.) There was some conversation about getting “burned” [buying a substance represented to be a narcotic when in fact it is not] to which defendant said that he was at the [814]park all the time and if there was a “bum,” Smock could come back and get his money back. After some conversation about prices, the officer agreed to buy 10 for $2 each. Defendant walked over to a group of people and returned. He and Smock left Moore and walked to a car parked at the curb. The defendant had a clear plastic baggie that contained numerous capsules and tablets. He counted out 10 clear capsules, containing a white powdery substance. Smock thought he was buying mescaline. He knew that mescaline came in various forms although he had never seen it in that particular form before. There were also some tablets in the baggie. The defendant told Smock that they were “whites” that he had gotten for his sister “but he didn’t want them any more and I [Smock] could have them.” He did not say that Smock had to pay for these tablets. The defendant delivered the ten capsules and the tablets and Smock handed him the two ten dollar bills. A Garden Grove police officer who did not know Smock arrested both Smock and the defendant because he believed they were in possession of marijuana. Smock was later released at the police station upon being identified as a police officer. It was stipulated that the capsules contained a usable amount of LSD, the tablets a usable amount of Benzedrine.

The defendant denied the sale and said the man with whom he was arrested was not Smock. Two others who were in the park that night also testified that the man with whom defendant was arrested was not Smock.