Opinion
Docket No. 7883.
September 5, 1963.
APPEAL from a judgment of the Superior Court of Los Angeles County. John G. Barnes, Judge. Affirmed.
Prosecution for illegal sale of heroin. Judgment of conviction affirmed.
Donald C. Gallagher, under appointment by the District Court of Appeal, for Defendant and Appellant.
Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Charles B. McKesson, Deputy Attorney General, for Plaintiff and Respondent.
The judgment of the trial court made and entered June 6, 1961 (guilty of selling heroin on four counts) was affirmed by this court in an opinion filed on August 6, 1962. See 206 Cal.App.2d 534 [ 23 Cal.Rptr. 876]. No useful purpose will be served by repeating what was there said and we adopt by reference what was stated in that printed opinion excepting the last two paragraphs thereof.
While the appeal was pending in the first instance, namely in October of 1961, the defendant made an application to this court for an appointment of counsel. The matter was referred to the Committee on Criminal Appeals of the Los Angeles Bar Association. The committee apparently followed its rules and referred the case to William E. Burby, Jr., of the firm of Crider, Tilson and Ruppe. Mr. Burby thereafter directed a letter to this court to the effect that he had received the transcript of the proceedings in the case and that he could find no meritorious ground for an appeal. Thereupon the members of this court separately and jointly examined the record and concluded that it would be neither useful nor proper to appoint counsel for Tiller and rejected his petition for such appointment of counsel.
A petition for a hearing was denied by the Supreme Court of this state on October 2, 1962.
Defendant petitioned the Supreme Court of the United States for a writ of certiorari. On May 22, 1963, this court was in effect directed by the Supreme Court of the United States to appoint counsel for the defendant in the light of what was said in Douglas v. State of California, 372 U.S. 353 [83 S.Ct. 814, 9 L.Ed.2d 811], decided March 18, 1963. On June 5, 1963, this court recalled the remittitur and vacated the judgment filed on August 6, 1962, and thereupon appointed Donald C. Gallagher as counsel to represent the defendant.
[1] Counsel filed a brief on August 21, 1963, and the matter was heard on this court's calendar August 27, 1963. It is set forth in the brief filed by defendant's counsel that "it is strongly urged by this appellant that there was prejudicial error in refusing instructions re entrapment as a defense. This is contended because of the fact that a basic and integral part of the defense consisted of entrapment, said defense being supported by the evidence." An inspection of the original file in this case demonstrates that defendant's counsel at the time of trial offered but one instruction (which was a copy of CALJIC 851) on entrapment. An identical instruction was given by the court as well as other instructions on entrapment which were requested by the prosecutor.
This court stated in its original opinion that the jury "was fully instructed upon the doctrine and defense of entrapment and obviously it chose to believe the officer rather than" Tiller. At the oral argument counsel for appellant was questioned with reference to the statement in the brief above set forth and his reply was in effect that he had relied upon appellant's statements — that subsequently he had checked the original file and record and had found in truth that the jury was instructed as above indicated. A question from the bench was asked of appointed counsel as to whether there was anything left in the case so far as any appeal was concerned if the jury had been properly instructed upon the defense of entrapment and his reply was: "Absolutely nothing, your Honor."
The judgment is affirmed.
Wood, P.J., and Lillie, J., concurred.