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District Court of Appeal, First District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. William JACKSON, Defendant and Appellant.

Cr. 4016.

Decided: October 11, 1962

McCaw & Barnum, Donald B. McCaw, San Francisco, for appellant. Stanley Mosk, Atty. Gen., John S. McInerny, Edward P. O'Brien, Deputy Attys. Gen., San Francisco, for respondent.

Appellant, William Jackson, and his co-defendant, Joseph Holiday, were convicted by a jury of unlawfully offering to sell narcotics in violation of section 11501 of the Health and Safety Code. Jackson alone appeals from the judgment of conviction entered on the order and from the order denying his motion for a new trial.1 The sole contentions on appeal are that: 1) the trial court erred in its instructions to the jury and in denying the motion for a new trial because the offense of offering to sell a narcotic is not encompassed in section 11501 of the Health and Safety Code; 2) the evidence is insufficient to support the judgment; 3) the court erred in its instructions relating to the admissibility of certain evidence and in rendering judgment on a crime not charged in the indictment. There is no merit in any of these contentions.1

The only evidence at the trial was the testimony of one Horace Lawrence, an officer of the San Francisco Police Department, who was working as an undercover agent in the narcotics detail. In December, 1960, Lawrence contacted the co-defendant, Joseph Holiday, and informed him he was interested in buying some heroin. Holiday indicated that while he himself did not deal in heroin, he would find someone to help Lawrence. Lawrence saw Holiday several times a week. On January 8, 1961, Lawrence met Holiday and informed him he wished to buy a ‘spoon’ of heroin and was willing to pay $50. Holiday said he would attempt to find a dealer and agreed to meet Lawrence at the Booker T. Washington Hotel the next day.

When Lawrence arrived at the hotel at the prearranged time on January 9, Holiday informed him he had talked to two persons about the purchase of heroin; that one person was to meet them at the hotel at 8:00 p. m.; the other at the nearby Blue Mirror bar at 9:00 p. m. Holiday also indicated he had talked to a man known as ‘Jay Bo.’

Lawrence and Holiday waited at the hotel for about half an hour. When no one appeared, they proceeded to the Blue Mirror bar, arriving just before 9:00 p. m. Shortly thereafter, the appellant entered and Holiday said to Lawrence: ‘Here he is.’ When the appellant approached, Holiday said to Lawrence: ‘This is Jay Bo’ and told the appellant that Lawrence was a friend who was interested in making a buy. The appellant replied that he would have to go across the street to make the purchase, that the transaction would take some time and inquired whether Lawrence was still interested in a $50 ‘spoon.’ Lawrence replied: ‘Well, I am, but I'd like to test it first by purchasing a $20 balloon first’ and gave the appellant a $20 bill. The appellant indicated he was going across the street and left the Blue Mirror bar. About ten minutes later, the appellant returned to inform Holiday that the contact had been made and that it would take a while. Appellant again left.

When the appellant did not reappear, Lawrence and Holiday decided to look for him. As they left, they observed the appellant across the street leaning against a parking meter, in front of the B & B Cafe. When approached by Lawrence, who asked what had happened, the appellant replied that he knew neither Lawrence nor Holiday. Lawrence said: ‘Well, we've been waiting over there in the bar for an hour for you to come back with the balloon, and we decided to come out and see what happened to you.’ Holiday asked the appellant: ‘What are you trying to do? I'm sure you remember the transaction we had in the Blue Mirror a few minutes ago.’ The appellant walked away and talked to several men standing in front of the B & B Cafe and appeared to be borrowing money, as he received a dollar bill from two of them. When Lawrence attempted to reopen the conversation, the appellant became belligerent, cursed and entered the B & B Cafe. Lawrence and Holiday waited outside. When the appellant reappeared with a 14″ butcher knife and began to walk away, Lawrence then informed Holiday: ‘Well, it's not worth talking to Mr. Jackson any longer.’ Lawrence indicated that he knew the appellant only as ‘Jay Bo’ and did not know his real name until after he had reported the transaction to Officers Toomey and Higgins who knew ‘Jay Bo’ was William Jackson.

The first contention on appeal is that the trial court erred in instructing the jury as section 11501 of the Health and Safety Code does not encompass an offer to sell narcotics and the subsequent failure to deliver. Appellant relies on certain language of the Subcommittee on Narcotics of the Assembly Interim Committee of the Judiciary in 1953, quoted and discussed in People v. Brown, 55 Cal.2d 64 at 67, 9 Cal.Rptr. 816, at 817, 357 P.2d 1072 at 1073. However, in the Brown case, the Supreme Court rejected the identical argument (at page 68, 9 Cal.Rptr. at page 818, 357 P.2d at page 1074) and affirmed the conviction of offering to sell narcotics in a situation similar to the instant one where the defendant had not delivered any substance to the officer in return for the money.

Although the language prohibiting an offer to sell was enacted in 1909 (Stats.1909, ch. 279, § 4), there were no appellate decisions under this portion of the statute until our decision in 1960 in People v. Blake, 179 Cal.App.2d 246, 3 Cal.Rptr. 749. In that case, we rejected a contention that the statute [then section 11500 of the Health and Safety Code] was unconstitutional as it was void for vagueness, approved an instruction defining the elements of the offense as a specific intent to make an offer to sell a narcotic and a direct act done toward making of the offer, and rejected a contention that in order to be guilty of the offense, the offeror must have in his possession the object to be sold. The interpretation of the statute was approved by the Supreme Court in People v. Brown, supra, at page 68, 9 Cal.Rptr. 816, 357 P.2d 1072, and more recently followed in People v. Shepherd, 200 A.C.A. 305, 19 Cal.Rptr. 234.

Appellant next contends that unlike the three cases cited above, in the instant case, the evidence is insufficient to support the judgment as there is no evidence of his specific intent to consummate the sale. However, as the Supreme Court pointed out in People v. Brown, supra, at page 68, 9 Cal.Rptr. at page 818, 357 P.2d at page 1074: ‘We agree with defendant's contention that a specific intent to sell a narcotic is an essential element of the crime of offering to make such a sale under section 11501. See Pen.Code, § 20; Matter of Yun Quong, 159 Cal. 508, 514–515, 114 P. 835 [Ann.Cas. 1912C 969]; People v. Winston, 46 Cal.2d 151, 158 [293 P.2d 40]; People v. Vogel, 46 Cal.2d 798, 801, 299 P.2d 850. In view, however, of defendant's subsequent admission that ‘he had [the stuff] and he was on his way back but the police rousted him and he had to get rid of it,’ and the absence of any compelling evidence that defendant's offer was false, the trial court could reasonably conclude that defendant meant what he said when he stated to the officer that for $9 ‘he would get it for me. * * * He would get the stuff for me.’ Moreover, there is nothing in section 11501 to support the contention that an offer to sell means an attempt to sell, for it proscribes both ‘offers to transport, import into this State, sell, furnish, administer or give away’ and ‘attempts to import into this State or transport any narcotic * * *.’ By thus distinguishing between offers and attempts the Legislature made clear that the requirement of a direct, unequivocal act toward a sale necessary for an attempt to make a sale is not an implied element of an offer to sell.'

In the instant case, there was no evidence that the appellant's offer to sell was a false one so that from the evidence presented, the trier of fact could reasonably conclude that the appellant meant what he said when he took the $20 bill and told Lawrence that he would obtain the $20 balloon. We must assume in support of the judgment the existence of every fact which the jury could reasonably deduce from the evidence (People v. Newland, 15 Cal.2d 678, 104 P.2d 778).

Appellant also contends that the trial court committed prejudicial error by its instruction on specific intent. Appellant concedes that the instruction given was substantially like the one approved in People v. Blake, supra, but argues that the instruction was nullified by the last portion which was as follows: ‘It is no defense to the crime charged herein that there exist in the mind of the person who makes an offer to sell heroin an unexpressed intention never to perform the offered act.’ We cannot agree that there is either inconsistency or an irreconcilable conflict in the instruction requiring a reversal.

Appellant next contends that the trial court erred in giving the following instruction relating to the admission of a statement of the co-defendant, Holiday, and made out of his presence: ‘Where evidence has been received against one of the defendants but is not received as against the other, the jury may consider such evidence only as against the defendant against whom it was permitted to be received. It may not be considered by the jury for any other purpose or against any other defendant. Where evidence has been received by a statement by one of the defendants after his arrest, in the absence of his co-defendant, such statement can be considered only as evidence against the defendant who made such statement and cannot be considered for any purpose as evidence against his co-defendant.’

Appellant contends that the entire last sentence of the above instruction regarding the statements after arrest was completely inapplicable under the facts and, therefore, highly prejudicial.

The above instruction was based on testimony by Lawrence that after Jackson left, he drove Holiday home and Holiday stated he would try to locate Jackson the next day. Declarations of a co-defendant not made in the presence of the defendant nor in the performance of any common design are inadmissible against the latter but are admissible as against the defendant who made them (People v. Dresser, 17 Cal.App. 27, 117 P. 688). Thus, it was the duty of the trial court to instruct the jury as it did. There was, however, in the statement an error in that the trial court referred to statements after arrest rather than statements after the offense. Under the circumstances here presented, however, we do not deem this error to be serious or prejudicial. Error cannot be presumed from the mere giving of such an instruction, as the burden is on the appellant to show prejudice, as the assumption is that an instruction having no application to the case does not injure a defendant (People v. Russell, 59 Cal.App.2d 660, 139 P.2d 661).

Appellant's final contention is that the trial court committed prejudicial error in its pronouncement of the judgment by stating he had been convicted of the felony of the sale of heroin rather than the felony of offering to sell heroin.

Section 1404 of the Penal Code provides: ‘Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.’ However, it is well established that an erroneous statement of the offense will not vitiate the judgment when the record fully discloses the crime (People v. Becker, 80 Cal.App.2d 691, 181 P.2d 958), and furthermore, we cannot find any prejudice as the appellant was properly charged in the indictment and the verdict was returned in the form of the indictment. Furthermore, the punishment for each of the various acts prohibited by section 11501 is identical and, therefore, we can see no basis for appellant's claim of prejudicial error.

Judgment of conviction and order denying motion for a new trial affirmed, with directions to the trial court to correct the judgment to read ‘offer to sell narcotics' instead of ‘the sale of heroin.’


1.  Notice of appeal was filed July 12, 1961, before the effective date of the legislation abolishing the appeal from an order denying a motion for a new trial in criminal cases.

KAUFMAN, Presiding Justice.

SHOEMAKER and AGEE, JJ., concur. Hearing granted; WHITE, J., sitting pro tem.

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