Opinion
James W. Read, Jr., Costa Mesa, for defendant and appellant.
Thomas C.Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Robert T. Jacobs, Deputy Atty. Gen., for plaintiff and respondent.
OPINION
GABBERT, Associate Justice pro tem.
Assigned by the Chairman of the Judicial Council.
An information was filed charging the defendant with violation of section 11912 of the Health and Safety Code (unlawful sale of lysergic acid diethylamide--'LSD'). Defendant pleaded not guilty to the charge. The jury found defendant guilty of selling LSD as charged in the information and also found him guilty of a lesser included offense of possessing LSD in violation of section 11910 of the Health and Safety Code. Defendant's motion for new trial was denied; he waived application for probation and requested immediate sentencing. On the date of such waiver he was sentenced to the state prison for the term prescribed by law pursuant to Penal Code, section 1202b, for violation of Health and Safety Code, section 11912 (referred to by the court as 'Count 1'), and to the Orange County Jail for 1 year for violation of Health and Safety Code, section 11910 (referred to by the court as 'Count 2'), with the sentences to run concurrently. The court ordered a stay of execution of sentence as to 'Count 2' pending appeal on the sentence as to 'Count 1'; upon completion of service of sentence as to 'Count 1', the stay of execution as to the sentence on 'Count 2' would become permanent.
Defendant filed a timely notice of appeal from his judgment of conviction.
The defendant's attack on the judgment is raised in several arguments: (1) entrapment as a matter of law; (2) error in instructing the jury that the defendant had the burden of establishing entrapment by a preponderance of the evidence, and error in failing to instruct that a third party could act as a police alter ego in entrapping defendant; (3) that the prosecution deprived defendant of his right of confrontation of an indispensable witness by failing to produce the informer in court; (4) that misconduct of the prosecution denied defendant a fair trial; and (5) that the trial court erred in not considering the referral of the defendant to the California Youth Authority.
An important procedural point arises by reason of the two verdicts of the jury finding the defendant guilty 'as charged' and also finding him guilty of a lesser included offense. This is a unique situation in that there was but one charge in the information with two verdicts thereon. No case has been found squarely bearing on this problem. Apparently it was not considered at the time the verdicts were received, nor on the motion for a new trial, nor at the time of sentencing. The matter has not been mentioned in the briefs of counsel on appeal.
During the trial evidence was introduced from which the trier of fact could have found the following: David Fuentes and On June 13, 1967, at approximately 4:35 p. m., agents Fuentes and Mooney received a call from McNerney in which he gave them information concerning the sale of drugs. Pursuant to that information, the agents left their motel and went to the shopping plaza in Capistrano Beach. Agent Fuentes arrived at the plaza at about 5:00 p. m. and parked his car. Shortly thereafter, a small foreign car came up beside him and parked. Appellant Moran was a passenger in the car, which was being driven by McNerney. Agent Mooney was nearby acting as a surveillance officer.
Agent Fuentes left his car and went to McNerney's side of the car. The agent asked McNerney what he had been doing, and McNerney replied that he had been looking for Fuentes. McNerney then asked the agent whether he had 'scored the acid' and agent Fuentes replied that he had not. The informer then pointed to appellant and said that Moran had some.
Fuentes approached the appellant's side of the car and asked appellant whether he had any liquid or capsules. Moran replied, 'No.' The agent then said he wanted to buy an ounce of liquid and appellant replied that all he had were tablets. Fuentes then asked how many tablets he had and Moran replied, '20.' The agent inquired how much the appellant wanted for the twenty tablets, and appellant responded that he wanted $80 for the lot.
Appellant produced a plastic case with the tablets and handed it to agent Fuentes, who placed it in his pocket and paid $80 in marked state funds. Subsequent chemical analysis revealed that the tablets contained usuable amounts of LSD (lysergic acid diethylamide). Appellant stated he had come from San Bernardino and had brought the acid with him.
It was agent Fuentes' opinion that appellant expressed no hesitancy or reticence in dealing with the agent. Moran did not tell the agent that he did not want to sell the substance, although Fuentes admitted that on first inquiry appellant denied possessing any narcotics. The agent stated that Moran was not immediately arrested because an undercover investigation was beginning in the area, and an immediate arrest would have terminated the investigation.
The appellant took the stand in his own behalf. The substance of his testimony is as follows: Appellant, aged 18, lived with his grandmother in Fontana, where he attended high school. McNerney was a friend and classmate of appellant's. On the day in question, appellant had stopped at a cafe in San Clemente. After leaving the cafe, he crossed the street to the dock where he met McNerney. The latter asked appellant what he was doing, to which he responded that he was on his way to Carlsbad to visit his mother. McNerney asked him if he knew any way to obtain some LSD. for a friend. The informant explained that he was supposed to have purchased some LSD for this friend earlier in the week but had been unable to do so. Moran stated that he did not have any of the drug nor know where any could be had. McNerney then told appellant that the person for whom he was attempting to obtain the drug was a good friend and that he felt badly that he could not locate any LSD for him.
After this exchange the two parted and Moran sat on the beach for a time. Presently, McNerney returned and asked appellant if he was certain he knew of no potential source of LSD. Moran then stated he had a store of tablets but said they were not for sale. McNerney proposed that appellant sell the LSD to the friend so the friend would know that McNerney had tried to get them for him and would leave McNerney alone. The informer Presently, appellant left the beach and was walking up the pier when he was again approached by McNerney. The informer asked appellant how many tablets he had, and Moran replied that he had about twenty. McNerney then told appellant that his friend needed only a few tablets and would pay well for what he bought. Further, the informer stated that if he were in appellant's position, he would do appellant the favor. Moran stated that he would sell all twenty of the tablets, and McNerney said his friend would pay $80 for the lot.
Moran and McNerney then drove about two blocks in the latter's car to a spot where appellant had previously hidden a plastic case of tablets. This accomplished, the two drove to the shopping plaza. When they stopped, appellant saw agent Fuentes. He became afraid and did not wish to sell the drugs because he suspected Fuentes was a policeman.
Fuentes approached the two and asked McNerney where he had been. The informer's response was inaudible to appellant, but Fuentes replied by saying, 'I will ask him myself.' After walking around the vehicle, the agent asked appellant if he had the tablets. Appellant repied, 'Yes,' and Fuentes then said, 'Give them to me.' Appellant handed the tablets to the agent. The agent dropped $80 into appellant's lap. Moran testified that he knew it was a crime to possess LSD and admitted that he had possessed LSD tablets for at least two months prior to June 13.
Because of our later determination of the procedural problems arising by reason of the conviction of appellant on both the sale and possession of LSD we do not deem it necessary to consider the various contentions of the appellant concerning the issue of entrapment.
Appellant contends that the informer was an indispensable witness and that by failing to call him the prosecution denied appellant his Sixth Amendment right of confrontation. In People v. Kiihoa, 53 Cal.2d 748, 752, 3 Cal.Rptr. 1, 3, 349 P.2d 673, 675, the court said: 'The prosecution is not required to call any particular witness, nor to put on all the evidence relating to a charge so long as all material evidence bearing thereon is fairly presented in such a manner as to accord to the defendant a fair trial.' In People v. Arzola, 258 Cal.App.2d 124, 130, 65 Cal.Rptr. 372, the court said: 'The defense contends that the prosecution's failure to produce the informer, Fat Louie, resulted in a denial of a fair trial. * * * The cases interpreting People v. Kiihoa, 53 Cal.2d 748, 3 Cal.Rptr. 1, 349 P.2d 673 indicate that failure to produce an informer is ground for reversal only when there has been a showing of active police connivance in the non-availability of the witness. (People v. Galvan, 208 Cal.App.2d 443, 25 Cal.Rptr. 128.) Such is not shown here. We see no prejudice to the defendant in the instant case, since he acknowledged he was familiar with the true name of Fat Louie; had seen him on previous occasions; and knew of some of the people with whom he associated. In other words, it appears that the defendant had equal knowledge of and access to the informer as did the prosecution.' Thus, so long as defendant had knowledge of and access to McNerney, the prosecution was not obliged to call the informer as a witness. If the defense desired his testimony, it was free to call him as a defense witness. (See also: People v. Rodriquez, 202 Cal.App.2d 191, 20 Cal.Rptr. 556.)
Appellant further contends that misconduct of the prosecuting attorney denied him a fair trial. The conduct complained of occurred during the crossexamination of the appellant. The prosecutor asked a question containing the phrase, 'You said you bought this marijuana?' Obviously, this was a momentary confusion of terms and the reference was to the LSD tablets involved. This error, if it was such, was non-prejudicial. No reason for the importance of the matter is raised in appellant's brief. Certainly, it cannot People v. Watson,
No objection was made to the prosecutor's allusion to marijuana at the time it was made. After the entire line of testimony had been completed, the defense counsel made an objection as follows: 'Objection to this testimony, your Honor, as being irrelevant and immaterial.' Witkin, Evidence, § 1285(b), p. 1188, states: 'A waiver also occurs where an objection is made but * * * is not made at the earliest opportunity, i. e., before the improper question is answered, or, if this is not feasible, by motion to strike immediately thereafter. * *' Witkin, supra, § 1292, p. 1195, further states, 'A defective specific objection is a waiver in criminal as well as civil cases. See, e. g., * * * People v. Lint, 182 Cal.App.2d 402, 414 [6 Cal.Rptr. 95]. * * *' Here, the objection was made late, and was erroneously based. There was a waiver of the objection.
In addition to the alleged misconduct in mentioning 'marijuana,' appellant contends that the court erred in admitting certain evidence that the informer was, perhaps, a perjurer and had entrapped a defendant in another case. On cross-examination of Agent Mooney the prosecution brought out facts showing that the informer had testified for the defense in two other unrelated narcotic trials. On re-direct examination defense counsel brought out Mooney's opinion that the informer was 'pretty close' to a perjurer in the other matters.
At this point the defense moved for a mistrial. It is clear that appellant cannot allege as error on appeal the introduction of evidence which he invited at trial. (People v. Montalbano, 146 Cal.App.2d 624, 304 P.2d 36; People v. Vienne, 142 Cal.App.2d 172, 297 P.2d 1027; Witkin, Evidence, § 1286, p. 1189.) Thus, all appellant can contend is that the prosecutor's contribution to this testimony was improper.
In people v. Bray, 222 Cal.App.2d 40, 43-44, 34 Cal.Rptr. 826, 828, the court stated: "The general rule regarding misconduct of the district attorney which tends to and is likely to result in prejudice to the defendant is that where no objection is made to such misconduct by the defendant or where objection is made and the court sustains the objection and properly admonishes the jury, the misconduct claimed to be prejudicial to defendant's rights will not furnish grounds sufficient to justify the granting of a new trial or the reversal of the judgment.' There are two exceptions to this general rule. One is where the case is closely balanced and there is grave doubt of defendant's guilt, and the acts of misconduct are such as to contribute materially to the verdict, a miscarriage of justice results requiring a reversal. [Citations.]' (See People v. Lyons, 50 Cal.2d 245, 262, 324 P.2d 556; People v. Beivelman, 70 A.C. 37, 73 Cal.Rptr. 521, 447 P.2d 913.)
In People v. Asta, 251 Cal.App.2d 64, 86, 59 Cal.Rptr. 206, 221, the court said in reference to alleged misconduct of the prosecutor: 'However, the term 'misconduct' implies a dishonest act or an attempt to persuade the court or jury, by use of deceptive or reprehensible methods.' The prosecutor's acts in the present case do not conform to the definition of 'misconduct' given in the Asta case. In addition, in the case before us, a proper admonition was given by the court to the jury. Nor would it appear that this case falls within either of the exceptions mentioned by the court in Lyons or Bray. The prosecutor's behavior was not so grievous that it could not have been cured by admonition. Nor does the case appear to have been closely balanced. There was no evidence introduced to contradict the state's prima facie case, and on the issue of entrapment, the line of questioning served to strengthen the defense. Thus appellant's contention on this issue is not meritorious.
Appellant contends that the trial court erred in failing to exercise its discretion in considering the possibility of his referral to In People v. Sparks, 262 A.C.A. 651, 68 Cal.Rptr. 909, the court stated: 'In light of the foregoing, we conclude that in every criminal case involving juveniles eligible for Youth Authority commitment, the court should, on its own motion if necessary, consider whether the defendant could benefit from referral to the Youth Authority.
'Our next inquiry, then, is whether we may presume that the trial court fulfilled its duty in the face of a silent record. It is presumed that official duty has been regularly performed. (Evid.Code, § 664.) Such a presumption is one affecting the burden of proof (Evid.Code, § 660), the effect of which is to impose upon defendants the burden of proving that the trial court did not consider making such a referral. (Evid.Code, § 606.) The presumption that a court has regularly performed its official duties has been applied in other analogous areas of criminal law * * *.
'In the instant case the record is silent as to whether the trial court considered referral to the Youth Authority and defendants did not request a referral. The record does disclose, however, that the trial court did read and consider the probation reports in relation to each defendant. These reports disclosed the respective ages of defendants, their prior records, a statement of the nature of the present offense, their family history and environment, and other social factors such as education and employment. Accordingly, the trial court considered matters relevant to the question of whether defendants should have been referred to the Youth Authority, since such reports are a proper source of information for exercising discretion under section 1731.5. [of the Welfare & Institutions Code.] (See People v. Hutson, 221 Cal.App.2d 751, 755-756, 34 Cal.Rptr. 790.) * * *
'Defendants argue that the trial court did not consider such referral because it did not prepare, sua sponte, some written memorandum or opinion to the effect that it had considered referring them and rejected that possibility. There is no such requirement under the Youth Authority Act or the Penal Code. (See People v. Hutson, supra, 756, 34 Cal.Rptr. 790.) The only requirement is that the court consider and determine the defendant's eligibility for commitment to the Youth Authority. The presumption that the trial judge performed his official duty is, therefore, here applicable. This presumption, moreover, is buttressed by the fact that the trial court did read and consider the matters contained in the probation reports, which were a source of advice in exercising discretion under section 1731.5 [Welfare & Institutions Code.] Accordingly, we must conclude that such referral was duly considered and that the trial court determined that defendants were not suitable for the rehabilitation program of the Youth Authority.'
In the present case, the record does not reveal any motion made by the defense in this regard. Thus, the case is similar to Sparks. Although the trial judge did not have a probation report, the record shows that the appellant was under 21 years of age. He also knew that appellant had recently pleaded guilty to violating section 11530 of the Health & Safety Code. During the course of trial, considerable information came to light concerning the appellant's general circumstances, mode of life and education. It would seem that the trial judge had sufficient information on which to exercise his discretion. These facts, together with the presumption that the trial judge performed his official duty to consider referral, indicate compliance with the Sparks case, especially in the absence of any showing to the contrary.
From the foregoing summary of the facts and our consideration of the law applicable to appellant's contentions on appeal, it is apparent that there was substantial evidence to support the verdict of possession of the narcotic, a lesser included offense.
The court instructed the jury in the words of CALJIC instruction No. 115 (Revised) that 'If you find the evidence is insufficient to establish defendant's guilt of the offense Two verdicts of guilty were returned by the jury, and in due course, the appellant was sentenced on the charge of sale of LSD and on the lesser included offense of possession of LSD as set out in the beginning of this opinion. It must be kept in mind that there was but one charge in the information and that two verdicts were returned on the charge of sale and on the lesser included offense of possession of LSD. Other cases which we have examined have involved multiple counts with verdicts on more than one count. Such cases involve matters of double jeopardy, multiple punishment or problems of multiple prosecution, which are not analogous to the situation before us. The area of lesser included offenses raises many complex problems and is the subject of an exhaustive article in 10 U.C.L.A. Law Review, p. 870.
The rule seems settled that where a defendant is charged in more than one count for acts which were not a divisible course of conduct, a conviction of both offenses could properly result in punishment only for the more serious offense. (People v. Roberts, 40 Cal.2d 483, 254 P.2d 501; People v. Clemett, 208 Cal. 142, 280 P. 681; People v. Wallace, 199 Cal.App.2d 678, 18 Cal.Rptr. 917; People v. Donohoe, 200 Cal.App. 17, 19 Cal.Rptr. 454.) This has been termed the doctrine of merger, the defendant being held accountable only for the more serious offense and, thus, the imposition of double punishment for the same behavior is provented.
The admitted possession of the LSD in this case was incidental to its sale to the narcotic officer. One indivisible offense is here involved. Under the circumstances of this case there can be but one verdict.
We can well believe that the jury were of the opinion that the defendant was guilty of both the sale and possession of LSD, but it is not our province to speculate or put strained constructions on the verdicts. The jury were told that 'If the evidence is sufficient to support a finding of both the offense charged and a lesser included offense, but you entertain a reasonable doubt as to which offense the defendant is guilty, it is your duty to find him guilty only of the lesser offense.'
The only fair intendment which we can put upon the two verdicts is that the one finding the defendant guilty of the lesser included offense, under the instructions given and facts of this case, would automatically constitute an acquittal of the greater offense. This ruling reaches an occurrence of infinitesimal improbability in a situation which is most unlikely to be repeated. It has no bearing on the usual circumstances arising where multiple counts are charged or a single verdict is returned on a lesser included offense in transactions which involve divisible or indivisible violations of penal provisions.
The appellant was convicted of two offenses one of which was a necessarily included offense. (People v. Rosales, 226 Cal.App.2d 588, 592, 38 Cal.Rptr. 329.) Section 654 of the Penal Code applies and the defendant, therefore, may be punished for People v. Knowles,
We find the conviction to be valid as to the lesser included offense. Accordingly, the sentence is reversed as to the so-called 'Count 1' charging sale of LSD and is affirmed as to the so-called 'Count 2,' which, in fact, is the verdict of the jury finding the defendant guilty of the lesser included offense of possession of LSD. Affirming the conviction of guilt as to the lesser included offense necessarily constitutes an acquittal of the greater offense, that of sale of the narcotic.
The verdict and judgment are reversed as to the charge of sale of LSD. Appellant is to be resentenced on the verdict of guilt on the lesser included offense of possession of LSD, which the verdict of the jury fixed as a misdemeanor.
McCABE, P. J., and KERRIGAN, J., concur.