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District Court of Appeal, Second District, Division 1, California.

The PEOPLE of the State of California Plaintiff and Respondent, v. Leslie Robert NUNN, Defendant and Appellant.

Cr. 5282.

Decided: May 31, 1955

Morris Lavine, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

Defendant, Leslie Robert Nunn, is an osteopathic physician, licensed to practice in the State of California. He was convicted by a jury of four counts of prescribing narcotics for a person not under his treatment for a pathology, in violation of Section 11163 of the Health and Safety Code. He was also convicted of a fifth count, for prescribing a narcotic for a person ‘who represented himself to be an addict,’ in violation of Section 11164 of the same code. He admitted a prior conviction of a felony, for which he served a term in a California penitentiary. He appeals from the judgment of the Superior Court, committing him to state's prison for the term prescribed by law, and from the court's order denying his motion for a new trial.

Concededly the doctor gave prescriptions for dilaudid on four different occasions to a narcotics inspector of the State of California. Dilaudid is a derivative of morphine, with much the same effects, but less likely to form a habit.

The doctor testified that he wrote out the prescriptions and gave them to the inspector in the conscientious belief that the medication was to relieve his patient's pain, caused by migraine headache. But the jury found against this defense, and unless there is some prejudicial error at law in the case the judgment will have to stand.

Defendant assigns as error the following:

1. That he was entrapped by law officers of the State of California.

2. That the evidence was insufficient to sustain the verdicts, and that the verdicts are contrary to the law and the evidence.

3. That the court erred in the admission of testimony.

4. That the code sections here applicable are unconstitutional.

5. That the court erred in instructions given and refused.

The defense of entrapment presents the most serious question. That and the sufficiency of the evidence will be commented upon together.

The transactions here in question were between the two men, the state narcotics inspector and the doctor. So it becomes important to state pertinent portions of the testimony of the inspector, as follows:

The doctor gave the inspector prescriptions for dilaudid twice at the doctor's office in Santa Monica, and twice at the doctor's home in the Malibu hills. For these prescriptions the inspector paid the doctor $150 in cash.

On his first visit, February 3, 1954, the inspector met the doctor in his outer office. He said: ‘I am Dillon.’ The doctor asked him: ‘Are you the one Walter sent?’ and he said ‘Yes.’

None of these statements by the narcotics officer was true. His name was not Dillon, and nobody by the name of Walter had sent him to the doctor. He had been instructed by his superior officers in the state narcotics division to use the fictitious name.

And the law forbids any person to ‘obtain or attempt to obtain narcotics * * * (a) by fraud, deceit, misrepresentation, or subterfuge; or (b) by the concealment of a material fact.’ Section 11170, Health and Safety Code, or the giving of a false name or address in connection with the prescribing of a narcotic. Section 11170.5, Health and Safety Code.

Returning now to the inspector's testimony.

The two men then went into the doctor's private office. There the doctor ‘asked me my first name, and I said it was Joe.’

Then the doctor handed the inspector a ‘diagnosis card,’ which the inspector signed, ‘Joe Dillon.’ The card is in evidence. It authorizes the doctor to treat ‘Mr. Dillon.’ On it appear the words written in by the doctor: ‘1. Migraine headache; 2. Narcotics addiction.’ The inspector testified that that writing was not on the card when it was handed to him to sign.

The inspector also testified that he did not tell the doctor that he was suffered from migraine headache. He also denied the testimony of the doctor, a patient in the doctor's office, and the doctor's wife that he held his hand to his head and feigned great pain.

The inspector further testified that when he signed the card the doctor asked him what he was using, and he said ‘I am using H.’ Then the doctor said, ‘I cannot write a prescription for heroin, but I can write for some legitimate drug like morphine or dilaudid.’ The inspector said that would be all right. Whereupon the doctor wrote and signed a prescription calling for 60 tablets of 1/16 grain dilaudid.

On the second occasion, February 10th, the inspector telephoned the doctor from Ridgecrest, a town out in the Mojave desert, and asked him if he could call the next day instead of the 10th, when then had an appointment. The doctor told the inspector that that was his day off, but that the inspector could come to the doctor's home in Malibu. So the inspector saw the doctor at his home on February 11th. There the doctor wrote out and gave him another prescription for dilaudid.

On the third occasion the inspector again saw the doctor at his home, and again was given a prescription for dilaudid.

On the fourth and final occasion the inspector saw the doctor at his office, pursuant to a telephone call made by the inspector from a pay station. On this occasion the doctor again wrote out a prescription for dilaudid and gave it to the inspector. When the doctor was called into another room to see another patient, the inspector left the money for that prescription on the doctor's desk, and walked out.

These occasions were each about a week apart. Shortly after the last one the doctor was arrested.

Defendant argues that the conduct of the narcotics offices in securing the evidence which resulted in his conviction was fraudulent, deceptive, and in violation of the very law they are employed to enforce. The danger inherent in such police methods is well stated by Mr. Justice Traynor, speaking for our Supreme Court, in the landmark case of People v. Cahan, 44 Cal.2d 434, at page 446, 282 P.2d 905, at page 912:

‘Moreover, any process of law that sanctions the imposition of penalties upon an individual through the use of the fruits of official lawlessness tends to the destruction of the whole system of restraints on the exercise of the public force that are inherent in the ‘concept of ordered liberty.’ See, Allen, The Wolf Case, 45 Ill.L.Rev. 1, 20. ‘Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.’ Brandeis, J., dissenting in Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 [66 A.L.R. 376]; see also, State v. Owens, 302 Mo. 348, 377, 259 S.W. 100, 32 A.L.R. 383; Atz v. Andrews, 84 Fla. 43, 94 So. 329, 332; Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860, 866, 13 A.L.R. 1303; State v. Arregui, 44 Idaho 43, 254 P. 788, 792, 52 A.L.R. 463; State v. Gooder, 57 S.D. 619, 234 N.W. 610, 613.'

However, this Court is of the opinion that as an intermediate Court it is required to follow at least two recent decisions of our Supreme Court, and affirm the judgment in this case.

The law laid down in those cases is that ‘Entrapment as a matter of law is not established where there is any substantial evidence in the record from which it may be inferred that the criminal intent to commit the particular offense originated in the mind of the accused.’ Also “Where an accused has a pre-existing criminal intent, the fact that when solicited by a decoy he committed a crime raises no inference of unlawful entrapment.” And ‘Where the record shows a conflict in the evidence, the judgment will not be reversed.’ People v. Terry, 44 Cal.2d 371, 282 P.2d 19, 20; People v. Braddock, 41 Cal.2d 794, 264 P.2d 521, 525.

In this case the jury could have inferred defendant's criminal intent from all the circumstances in evidence. He charged $150 for writing the four prescriptions. He did not make any physical examination of his fictitious patient. He spent little time upon his patient, no more than to make brief inquiry and to write the prescriptions. He prescribed an inordinate quantity of the drug—60 tablets the first time, 85 the second and third times, and 80 the last time.

It was said in Davis v. State Board of Medical Examiners, 108 Cal.App.2d 346, 239 P.2d 78, that the following circumstances are pertinent in determining whether a doctor's prescription of narcotics was lawfully made: The lack of any real examination of the alleged patient, the fees charged, the lack of instructions to the patient as to treatment, or the use of the drug, and the temporary character of the remedy, without any consideration of permanent cure.

Turning now to defendant's contentions as to the evidence and the instructions.

He contends that it was error to admit in evidence testimony of a narcotics inspector of his opinion as to the causes generally of narcotics addictions. This was in rebuttal of the doctor's testimony that he believed it was quite possible that the majority of narcotics additions are caused by prescriptions for the relief of pain.

No error appears in the admission of this evidence, or in the qualifications of the witness as an expert.

Defendant contends that the conduct of the narcotics inspector who obtained the evidence against him required the giving of two proposed instructions, which were refused:

1. ‘You are further instructed that Section 11170.5 of the Health and Safety Code of the State of California provides that no person shall, in connection with the prescribing, furnishing, administering, or dispensing of a narcotic, give a false name or false address.’

2. ‘Section 11170 of the Health and Safety Code of the State of California provides: 1. No person shall obtain or attempt to obtain narcotics or procure or attempt to procure the administration of or prescription for narcotics, (a) by fraud, deceit, misrepresentation, or subterfuge; or (b) by the concealment of a material fact.’

While there can be no doubt that the inspector in this case did the things denounced by the law, a similar contention was made and determined adversely to defendant in People v. Braddock, supra. See the dissenting opinion in that case. 41 Cal.2d 794, 803, 264 P.2d 521, 526.

Defendant also contends that the jury should have been instructed as to confessions. However, the record does not show that defendant ever made any confession. He talked with the arresting narcotics inspectors shortly after he was taken into custody. Then, as now, he insisted that he was prescribing in good faith for an ailment of his patient.

Defendant also complains that it was error to refuse his proposed instruction to the effect that an act committed or an omission made under ignorance or mistake of fact which disproves any criminal intent is not a crime. This subject was adequately covered by other instructions given.

Defendant argues several other errors in the refusal of instructions. Without repeating each one, it may be said that the instructions read as a whole fully and fairly advised the jury as to the law upon all the issues in the case. There was no error in the giving or refusal of any of them.

Finally, with reference to defendant's contention that the law under which he was convicted is unconstitutional. He argues that this is so because in the code sections the words ‘except in the regular practice of his profession’ are used. And that this language is too vague, uncertain and indefinite to form the basis of a criminal prosecution.

Tried by the standards laid down in Lorenson v. Superior Court, 35 Cal.2d 49, 216 P.2d 859, this language is sufficiently certain to comply with constitutional requirements.

The judgment and the order denying defendant's motion for a new trial are, and each of them is, affirmed.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, J., concur.