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District Court of Appeal, Second District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph BROWN, Defendant and Appellant.*

Cr. 6647.

Decided: March 08, 1960

Joseph Brown, in pro. per. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., for respondent.

Josepth Brown appeals from a conviction in a nonjury trial of violation of section 11500, Health and Safety Code, consisting of an offer to sell heroin and from an order denying his motion for a new trial. It was alleged that Brown had previously served a term in state prison following a conviction of attempted robbery. This allegation was found to be true and Brown was sentenced to state prison.

Upon receipt of appellant's application for appointment of counsel on the appeal, we read the record and determined that representation by counsel would be of no benefit to the appellant or to the court; the application was denied.

Appellant has filed a brief in propria persona.

There is no merit in the appeal. Officer Walton testified to acts of appellant which constituted an offer to sell heroin. Appellant denied having had any conversation whatever with the officer. Walton testified that appellant approached him and stated that some persons had said he was a policeman and asked whether it was true; Walton replied that it was not true and stated that he had sent someone to get some heroin for him; the person had not returned and had ‘burned’ him. On the following day Walton asked appellant who had disclosed that he (Walton) was a policeman. Appellant said he did not believe Walton was a policeman and that the only reason he got ‘burned’ was because the person he had been dealing with believed he was a policeman. Walton told appellant he would like to get some ‘stuff’ but did not want to be ‘burned’ again and appellant replied that the only way one could get ‘it’ was to take a chance. He offered to ‘cop’ the ‘stuff’ for the officer and said it would cost $9; Walton gave him the $9 and appellant walked out, but told the officer not to follow him. The officer did not see appellant for 3 or 4 days; he encountered appellant and asked him why he did not bring the ‘stuff’ back. Appellant said that he had ‘it’ and was bringing it back but had to get rid of it because the police ‘rousted’ him.

Appellant has filed an ingenious brief composed by someone with no mean legal ability. He concedes that it was within the province of the court to believe the officer and to disbelieve him. He contends that while he was not the person who approached the officer the conversations that were related by the officer amounted to no more than a discussion of a proposed or possible transaction. He argues that there could be no offer to sell a narcotic when none was produced or proved to be in possession of the one who made the supposed offer; that the word ‘offer’ should be construed to mean ‘bring, bear, or carry,’ and since it was not even shown there was a narcotic in existence which could have been the subject of an offer, commission of the charged offense was not proved. He argues further that use of the word ‘stuff’ did not necessarily mean that the discussion concerned heroin. None of these arguments can prevail. Walton told appellant that he had arranged to purchase heroin from another person. Although ‘stuff,’ as used in the conversation with appellant, might mean either heroin or marijuana, appellant certainly understood that Walton was referring to heroin. By receiving the money appellant undertook to bring back heroin which $9 would purchase. Appellant's statement that he had ‘it’ was sufficient as proof that the heroin was in his possession and that he had the ability to perform his promise. The transaction was not, as appellant argues, merely a theft in which the officer was defrauded of $9 by a promise made with no intention to perform.

Denial of appellant's application for appointment of counsel on the appeal, which is without semblance of merit, was not a deprivation of any right which he possessed. People v. Logan, 137 Cal.App.2d 331, 290 P.2d 11.

The judgment and order are affirmed.

SHINN, Presiding Justice.

VALLEÉ and FORD, JJ., concur.

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