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

The PEOPLE, Plaintiff and Respondent, v. Louis LO CICERO, Defendant and Appellant.

Cr. 3297.

Decided: January 21, 1969

T. T. Crittenden, Langford, Langford & Lane and J. Perry Langford, San Diego, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Mark W. Jordan, Deputy Atty. Gen., for plaintiff and respondent.


Defendant appeals from a conviction of the offenses of furnishing marijuana, occurring on November 14, 1967, and selling marijuana, occurring on November 29, 1967.

Previously, viz, on May 3, 1966, defendant had been convicted of the offense of possession of marijuana; had been granted probation; and was on probation at the time of the offense charged in the instant action. One of the terms of probation was that defendant should not associate with known narcotics users or distributors.

The November 14, 1967 offense occurred when defendant gave a narcotics undercover agent named Fuentes a marijuana cigarette. Fuentes testified accordingly. Defendant testified and denied giving the cigarette to Fuentes.

The November 29, 1967 offense occurred when defendant, following prior negotiations, sold a kilo of marijuana to Fuentes for $80. Defendant admitted the sale but at the trial claimed entrapment and duress. On appeal he also claims immunity from prosecution under the provisions of Health and Safety Code, Section 11710.

Defendant testified he contacted a narcotic agent of the Bureau of Narcotic Enforcement named Landa and told the latter he could obtain information respecting narcotic transactions; thereafter contacted his probation officer to obtain permission to do so; was told by his probation officer any association with users of narcotics would be a violation of his terms of probation and for this reason he should not attempt to obtain information for the narcotic agent; telephoned Landa and told him the probation officer would not agree to let him work for Landa; nevertheless he thereafter contacted Landa, on one occasion was told by Landa to obtain information ‘on a particular fellow’, and on another occasion was told by Landa the latter wanted information respecting the source of marijuana in the United States and in particular, ‘Who the connection Copeland was'; Landa did not give him any direct orders; his instructions were described by his testimony as: ‘All I could do was just to go to the pool hall, and sit there, and I could listen and learn more than ninety percent of the people that work for Mr. Landa’ and ‘He (Landa) told me not to use it, or to handle it, therefore, I didn't’; Landa never told him to sell or furnish marijuana to anyone; and he never received compensation nor was there an agreement to pay him for his services.

Respecting the sale to Fuentes on November 29th, the defendant testified that during the negotiations preliminary to the sale he told Fuentes he would not sell him any marijuana; Fuentes ‘got mad because I told him I thought he was a cop and that I didn't deal, I didn't know him that well, anyhow’; he was sure in his own mind Fuentes was a cop and asked if this were so, to which Fuentes replied ‘he wasn't, and then got mad and walked away.’

Defendant also testified that after the foregoing incident a person, whom he identified as ‘Junior’ and a member of a ‘syndicate’, told him to sell Fuentes a kilo of marijuana; thereafter arrangements were made for the sale at a different location; the marijuana had been hidden there; he met Fuentes at the designated place, pointed out the marijuana to him, refused to touch it, and required Fuentes to pick it up; it was his plan that Fuentes should pay the ‘connection’, but Fuentes refused to do so and, instead, pushed the money into his hand.

Upon objection to the question soliciting a statement by ‘Junior’ to defendant, upon the ground it called for hearsay, defendant made an offer to prove there was a syndicate operating in the area; he was forced, because of conditions, to accept Fuentes offer to purchase; there were present in the pool hall a couple of muscle men of the syndicate together with ‘Junior’, who was a lieutenant or supervisor for the people in the syndicate; when ‘Junior’ spoke ‘that was orders'; if he had not done ‘it’ the muscle men would have moved in as they did on another occasion; and he was deathly afraid of this syndicate and what might happen to him. The court sustained the objection. On cross-examination defendant testified, in substance, he made the sale because he was told to do so by ‘Junior’; he told Fuentes where to meet to consummate the transaction which was the same thing ‘Junior’ told him; he did not know ‘Junior's' last name; he was afraid ‘Junior’ knew he was informing; ‘Junior’ was setting him up; he did not have to worry about anything after that because ‘Junior’ made him sell; and he made the sale to Fuentes knowing the latter was a cop because he was forced into it and he would rather go with a police officer than in a pine box. He also testified on cross-examination that previous to delivery of the marijuana to Fuentes it had been agreed between him and Fuentes the latter ‘was going to pay the guy that the brick belonged to’, which was ‘Junior’; nevertheless Fuentes shoved the money into his hand and walked away; and he then went straight to the pool hall and gave it to ‘Junior’.

Defendant contends the court erred in failing to instruct the jury on its own motion respecting the immunity from prosecution prescribed by Health and Safety Code, Section 11710, which provides:

‘All duly authorized peace officers, while investigating violations of this division in performance of their official duties, and any person working under their immediate direction, supervision or instruction, are immune from prosecution under this division.’

This contention is premised upon the claim the evidence would support a finding defendant was working under Agent Landa who was investigating a violation of the narcotic laws. It was shown Fuentes had informed Landa of the transaction with defendant, and the latter conducted the surveillance thereof about which he testified. Assuming this evidence showed Landa was investigating the violation of the narcotic laws involved in the sale transaction by defendant, there is no evidence defendant, while engaging in such transaction, was working under the ‘immediate direction, supervision or instruction’ of Landa. At most, the testimony of defendant, and the other evidence upon which he relies in support of his position, show only he agreed to furnish Landa with information respecting violations of the narcotic laws and the persons connected with those violations. Likewise, the services allegedly solicited by Landa were limited to the foregoing. He was not directed to engage in the particular transaction resulting in the charge against him; nor was he directed to engage in any transaction violating the narcotic laws. The mere fact he may have been acting as an informer for a narcotic agent, with the latter's consent, did not extend to him the immunity from prosecution for a narcotic law violation not within the scope of his undertaking as an informer. A person charged with the sale of a narcotic is immune from prosecution under Health and Safety Code, Section 11710 only if his participation in the sale was under the immediate direction, supervision or instruction of a peace officer while investigating violations of narcotic laws. (Gen. see People v. Benford, 53 Cal.2d 1, 14, 345 P.2d 928.)

It is fundamental the court may not instruct the jury on the law applicable to a defense not supported by any substantial evidence. (Davenport v. Stratton, 24 Cal.2d 232, 254, 149 P.2d 4.)

Defendant also contends the court erred in excluding evidence of his relationship with Landa, directing attention to several instances in which objections to questions eliciting such evidence were sustained. Some of the questions were directed to conversations with Landa several months prior to the subject offenses; others were directed to conversations following defendant's indictment. The court sustained objections to these questions upon the ground the elicited information was remote and for this reason irrelevant. Whether evidence is irrelevant because remote is a determination subject to an exercise of judicial discretion and, absent a showing of an abuse of that discretion, may not be interfered with on appeal. (Decter v. Stevenson Properties, Inc., 39 Cal.2d 407, 419–420, 247 P.2d 11; Larson v. Solbakken, 221 Cal.App.2d 410, 419, 34 Cal.Rptr. 450.) There was an abundance of testimony respecting defendant's claim he was acting as an informer for Landa which the court determined was relevant and admitted in evidence. No abuse of discretion is shown.

Futhermore, it does not appear that any of the questions to which objections were sustained would have elicited information supporting defendant's contention he was working under the immediate direction, supervision or instruction of Landa when he participated in the sale to Fuentes. Lacking an adequate offer in the premises, the objections also were sustained properly on the ground of immateriality.

Defendant asked Landa on cross-examination the following question:

‘Now, at that time you informed him [defendant] that he had nothing to worry about, that you would have the trial delayed, that you were going to talk to the District Attorney and to the judge?’

Landa replied:

‘Emphatically, no.’

Thereafter Landa was asked if he had any conversation with defendant's attorney. Upon objection, defendant offered to prove by Landa the latter told the attorney he, Landa, was going to have the case continued 30 days ‘so that the defendant could get him additional information, that he would talk with the judge, and the district attorney and we had nothing to worry about.’ The court sustained an objection to admission of the offered evidence on the ground it had nothing to do with the charges against the defendant. Thereafter, upon examination of defendant's probation officer as a witness, defendant offered to prove by the witness there was an arrangement whereby Landa had indicated he was going to call the district attorney and the judge and have the matter continued for additional help by the defendant. An objection to this offer also was sustained. Defendant contends the court erred because the elicited testimony would have established Landa swore falsely in the premises and for this reason his whole testimony was to be distrusted. The plain intent of the questions was directed to an alleged agreement by Landa to obtain a continuance of the case in order that defendant might get ‘additional information’ for Landa. Thus, the evidence was directed to the question whether defendant then was assisting Landa by obtaining information respecting narcotic violations; was not directed to the question whether defendant participated in the sale to Fuentes as an employee of Landa; certainly did not tend to show entrapment; and, therefore, was immaterial. The admission of testimony to impeach a witness respecting an immaterial matter involves a determination subject to the exercise of judicial discretion. (Evid.Code, §§ 352, 780; Witkin, Calif.Evid. [2nd ed.] § 1259.) No abuse of discretion appears.

That part of the question propounded to Landa and the offer of proof premised on the claim Landa told defendant the latter had nothing to worry about is immaterial because Landa's evaluation of defendant's status was not proof of the latter's guilt or innocence.

Defendant also contends the court erred in rejecting his offer of evidence he acted under threats and menaces from ‘Junior’ and the ‘syndicate’. The offer did not comply with the requirements of the rule governing such as stated in Stickel v. San Diego Elec. Ry. Co., 32 Cal.2d 157, 163, 195 P.2d 416, and Byrd v. Savage, 219 Cal. App.2d 396, 402, 32 Cal.Rptr. 881. Furthermore, even assuming the offer was sufficiently precise and adequate to permit defendant to testify to the facts related therein on direct examination, the order sustaining an objection thereto was not prejudicial because defendant testified to these facts on cross-examination. In addition, defendant's claim of coercion based on the facts contained in his offer and in his testimony on cross-examination is incredible. No member of the ‘syndicate’ was present at the place where the sale occurred. Defendant could have, but did not, seek aid from the police between the time he was directed by ‘Junior’ to make the sale until it actually occurred. (See People v. Purta, 259 A.C.A. 80, 83, 66 Cal.Rptr. 38.) If he were in fear for his life he could have given ‘Junior’ $80 and told him this was money received from the sale without engaging in the sale. Futhermore, he urges the reason he engaged in the sale was to assist the narcotic enforcement officers by leading them to ‘Junior’, who was the person to whom Fuentes was to pay the money, which was voluntary on his part and not the product of any coercion by ‘Junior’. In determining the prejudicial nature of an error, the appellate court may evaluate the evidence. (People v. Eppers, 205 Cal.App.2d 727, 732, 23 Cal.Rptr. 222.) Even though the trial court had admitted evidence supporting all of the facts related in defendant's offer of proof, it is not probable the jury would have accepted his story in the premises. Under these circumstances, any error in sustaining an objection to the offer was not prejudicial.

Defendant applied for probation which was denied; contends the court found him ineligible for probation under Health and Safety Code, Section 11715.6 because of his previous conviction for possession of marijuana; also contends ineligibility for probation under Section 11715.6 may be predicated only upon an allegation of the prior conviction in the indictment under which he currently was convicted of a narcotic offense; and concludes the finding in question was error because his prior conviction had not been alleged in the subject indictment.

The record, when considered as a whole, supports the conclusion the court did not deny probation upon a finding of ineligibility under Section 11715.6, but in the exercise of its discretion in the premises. A defendant's prior criminal record may be considered in ruling upon his application for probation. (People v. Hollis, 176 Cal.App.2d 92, 97, 1 Cal.Rptr. 293.) The defendant's previous narcotic conviction was established by his testimony on cross-examination and by the report of the probation officer. He had the opportunity at the time judgment was pronounced to contest the validity of that conviction; did not do so; and does not assert any such contention on this appeal.

In light of the foregoing we need not determine defendant's contention ineligibility under Section 11715.6 may be asserted only upon pleading the prior conviction in the indictment or information in the case in which he applies for probation.1

The judgment is affirmed.


1.  Defendant cites People v. Ibarra, 60 Cal.2d 460, 468, 34 Cal.Rptr. 863, 386 P.2d 487, in support of his position, relying upon language in the opinion and a footnote thereto. The cited case involved an application of former Penal Code, Section 6452; was concerned with minimum sentences in narcotic cases; considered prior convictions as they related to these sentences and eligibility for the narcotic rehabilitation program. The increased minimum sentence provisions of the law were not invoked in the case at bench.

COUGHLIN, Associate Justice.

GERALD BROWN, P. J., and WHELAN J., concur.