PEOPLE v. MORA

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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Michael Anthoney MORA, Defendant and Appellant.

Cr. 23506.

Decided: October 30, 1974

Joseph Shemaria, Hollywood, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., and Norman H. Sokolow and Ellen Birnbaum Kehr, Deputy Attys. Gen., for plaintiff and respondent.

By information, appellant was charged in Count I with the crime of offering to sell heroin, and in Counts II and III, with sale of heroin, both in violation of Health and Safety Code section 11501.1 An amendment to the information alleged one prior conviction. Appellant pleaded not guilty to all counts and denied the prior conviction. His 1538.5 motion was denied, and the trial court found the alleged prior conviction true as charged. The jury found him guilty of all three counts.

Facts

On November 1, 1972, Ms. Rose Acevedo was arrested in the City of Ventura on forgery charges by detective Haas and Sergeant Wilson of the Ventura Police Department. She became a police informant on that date. Ms. Acevedo (hereinafter, informant) testified at appellant's trial that she had used heroin well over 100 times and that during November 1972 she used heroin on a daily basis. She further testified that she had known appellant prior to her becoming a police informant and met with him at his house in October 1972. She stated that in October she went to appellant's house for the first time and he handed her 6 balloons of heroin and told her he expected payment therefor in a couple of days. The balloons contained a brownish powder. She injected the contents of one of the balloons, and it had the same effect upon her that heroin usually had. She subsequently used the contents of two of the other balloons, and stated that she also believed them to contain heroin. On November 15, she telephoned appellant from the police station, in the presence of detective Haas and Sergeant Wilson, who recorded the conversation. She testified that the purpose of her call was to request appellant to sell her heroin. During the course of their conversation, she asked appellant ‘if he had anything.’ Appellant responded by asking her ‘how much [she] wanted.’ She replied that she wanted ‘two halves [referring to half grams of heroin packaged in balloons].’ Appellant answered that he did not have any at his house and he would have to go to Oxnard to get her some. Informant asked appellant if he needed any money and how long it would take. Appellant replied that it would be later that night and he would send it over with someone named Mike Peck. She told him that she would call him back in an hour. However, rather than telephoning appellant, she went to his house, accompanied by Haas and Wilson. Prior to leaving the station, informant was ‘skin searched,’ her car was searched, and a radio transmitter was attached to her clothing. At appellant's house, she was told that he was not at home. She went back to the police station, where she returned to the police the $30 which they had given her to make the purchase of heroin.

On November 16, 1972, she again went to the police station and made another telephone call to appellant, which was also recorded. She again asked appellant if she could purchase some heroin. Appellant asked her how much she wanted, and she replied, ‘three halves.’ Appellant initially told her that he did not have any there for her and that he would have to go to Oxnard later that night to get her some. However, he later told her that he had been saving ‘some’ for his brother-in-law and that he would give informant his brother-in-law's heroin and go to Oxnard to replace it. Arrangements were made for informant to pick up the heroin later that evening. After her conversation with appellant, she was searched, furnished a transmitter and $55 with which to purchase the heroin. Although she drove alone to appellant's house, she was followed in another car by detective Haas. Upon arrival at appellant's residence, she went to the back bedroom and knocked on the window. Appellant came outside and handed her 3 balloons; in return, she gave him $45. She also asked him, ‘Do you have another half?’ Appellant asked her if she had another $10. She responded, ‘Yes,’ and followed him inside the house. However, appellant later told her that he did not have any more and she left. She then drove to Market Street, where she met detective Haas and delivered to him the 3 balloons of heroin which she had purchased. She was paid $20 for her ‘services' that evening.

On November 17, 1972, informant again placed a call to appellant from the Ventura Police Department. This conversation was also recorded. She called appellant back approximately a half-hour later and told him that she would be right over. She was skin-searched, her car was searched, she was given a transmitter and $95. She drove to appellant's residence. Once inside, appellant told her that he could only supply her with 8 halves. He put 8 balloons on his bed, and she gave him $95. Appellant told her that ‘it was better stuff that what [she] got the day before.’ After leaving appellant's residence, she again proceeded to Market Street, where she gave the balloons to Haas. Subsequently, she was paid $16 for her services.

On November 21, 1972, Haas and his officer-partner went to appellant's home in order to execute both a search and arrest warrant for appellant. The door was answered by Ms. Mora, appellant's mother. Haas identified himself and informed Ms. Mora that he had a search warrant for the premises and an arrest warrant for the son. Ms. Mora escorted them into appellant's bedroom, where appellant was sleeping. Haas informed appellant that he had a warrant for his arrest and placed him under arrest. Appellant stated that the only thing in the house consisted of some marijuana which was in the pocket of a coat hanging in the closet. Haas' partner examined the coat which appellant had pointed to and removed an empty, red, toy balloon. Inside a jacket, Haas found a funnel, a metal strainer, and a measuirng spoon, and observed that all 3 objects had a beige, powdery residue on them. In the pocket of another jacket, Haas found several other toy balloons, one of which contained a small amount of white powder. The other two balloons contained a beige, powdery residue. Also found in appellant's bedroom was $51 in currency. However, none of the serial numbers of the currency found in appellant's bedroom matched the serial numbers of the marked money which had been given to appellant.

Appellant contends that the trial court erred (1) in admitting highly prejudicial evidence that appellant had furnished heroin to informant in October, prior to her becoming a police informant; (2) in giving CALJIC instruction No. 3.30 for Counts II and III; and (3) in that appellant's conviction on Count I rests on insufficient evidence.

Evidence of a prior crime is admissible in California where it is used to prove a defendant's criminal intent, knowledge, or modus operandi. Evidence Code section 1101(b) provides: 'Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.' (See People v. Schader, 71 Cal.2d 761, 773, 80 Cal.Rptr. 1, 457 P.2d 841.) The trial court properly concluded that the evidence of appellant's previous offense fell within the purview of section 1101(b) and tended to prove knowledge of the narcotic nature of the heroin that he sold on November 15, 16, and 17, which is an essential element of the crime of selling or offering to sell a narcotic (People v. Winston, 46 Cal.2d 151, 158–161, 293 P.2d 40; People v. Soto, 245 Cal.App.2d 401, 406, 53 Cal.Rptr. 832) and the existence of a common scheme or plan on the part of appellant. (People v. Pijal, 33 Cal.App.3d 682, 691, 109 Cal.Rptr. 230.) It was not necessary for the appellant to have first raised the issue of knowledge for the People to introduce evidence of appellant's knowledge of the narcotic nature of the substance. (People v. Archerd, 3 Cal.3d 615, 639, 91 Cal.Rptr. 397, 477 P.2d 421.)

Before permitting the jury to hear the evidence of the October transaction the trial court must have concluded that the evidence (a) tends logically, naturally, and by reasonable inference to prove the issue upon which it is offered; (b) is offered upon an issue which will ultimately prove to be material; and (c) is not merely cumulative with respect to other evidence. (See People v. Perry, 7 Cal.3d 756, 780, 103 Cal.Rptr. 161, 499 P.2d 129; People v. Schader, 71 Cal.2d 761, 775, 80 Cal.Rptr. 1, 457 P.2d 841.) We are of the opinion that the trial court did not abuse its discretion in admitting testimony regarding the October sale of heroin by appellant. (People v. Archerd, 3 Cal.3d 615, 638, 91 Cal.Rptr. 397, 477 P.2d 421.) When the other offense which is being offered into evidence pursuant to section 1101(b) is relevant to an issue at trial, the trial court must determine whether the probative value is outweighted by the prejudicial effect which it may have. (Evid.Code, § 352; People v. Maler, 23 Cal.App.3d 973, 980–981, 100 Cal.Rptr. 650.) In the instant case, the prior offense was committed approximately one month earlier, it involved the same two parties, was carried out at the same location, and involved the same criminal objective. Although we recognize the possible prejudicial effect of this testimony, we cannot say that the trial court abused its discretion. (People v. Archerd, supra, 3 Cal.3d 615, 639, 91 Cal.Rptr. 397, 477 P.2d 421; People v. Henley, 269 Cal.App.2d 263, 266, 74 Cal.Rptr. 611.)

Appellant further argues that the evidence of the prior offense is not admissible where, as here, the defense of entrapment is raised. In support of his position, appellant relies on People v. Benford, 53 Cal.2d 1, 11, 345 P.2d 928, 935, where the Supreme Court stated: ‘In California, however, evidence that defendant had previously committed similar crimes or had the reputation of being engaged in the commission of such crimes or was suspected by the police of criminal activities is not admissible on the issue of entrapment.’ However, we are of the opinion that enactment of Evidence Code section 1101(b) in 1965 and the dictates of the Supreme Court opinion in People v. Schader, supra, 71 Cal.2d 761, 80 Cal.Rptr. 1, 457 P.2d 841 in applying this section impliedly overruled Benford on this point.2 Section 1101 ‘permits the People to adduce as circumstantial proof of the crime charged evidence encompassing the commission of a similar or related offense when the probative value of such evidence outweighs its prejudicial effect.’ (Id. at 773, 80 Cal.Rptr. at 8, 457 P.2d at 848.)

We agree with the opinion in People v. Foster, 36 Cal.App.3d 594, 111 Cal.Rptr. 666, where the court held that evidence of a prior offense was not precluded by Benford. In Foster, a jury found the defendant guilty of selling restricted drugs to an undercover agent. The defendant admitted the facts constituting the offense, but relied solely on the defense of entrapment. In support of his position, defendant argued that Benford precluded the introduction of his prior conviction some 18 months earlier of possession for sale of restricted drugs. The trial court permitted the prosecution to introduce the evidence of Foster's prior conviction. The court of appeal affirmed the conviction, rejecting defendant's contention that evidence of past offenses is not admissible on the issue of entrapment. As the Foster court aptly stated: ‘We are obliged to conclude that the People v. Schader court impliedly disapproved earlier cases such as People v. Benford . . . which applied contrary rationale.’ Thus we conclude that the trial court in the instant case properly admitted informant's testimony regarding the October transaction.

Appellant next contends that the trial court erred in giving CALJIC instruction 3.30 (general criminal intent) in connection with Counts II and III, arguing that the trial court should have given CAJIC instruction 3.31 (specific criminal intent). Appellant was charged in Count I with offering to sell heroin, and the trial court gave CALJIC instruction 3.31. It is clear that specific intent is a requirement for the crime of offering to sell heroin. (People v. Jackson, 59 Cal.2d 468, 469–470, 30 Cal.Rptr. 329, 381 P.2d 1; People v. Medina, 27 Cal.App.3d 473, 476, 103 Cal.Rptr. 721.) In People v. Brown, 55 Cal.2d 64, 68, 9 Cal.Rptr. 816, 818, 357 P.2d 1072, 1074, the Supreme Court held 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.’ In Counts II and III, appellant was charged with the sale of heroin, for which the trial court gave CALJIC instruction 3.30, stating:

‘In the crime charged in Counts II and III of the information, there must exist a union or joint operation of act or conduct and criminal intent. To constitute criminal intent it is not necessary that there should exist an intent to violate the law. Where a person intentionally does that which the law declares to be a crime, he is acting with criminal intent, even though he may not know that his act or conduct is unlawful.’

However, we find it unnecessary to determine this issue.3 Even assuming that the trial court erred in failing to give to the specific intent instruction to the jury, we believe that the error was not prejudicial but constituted harmless error. (People v. Schader, supra, 71 Cal.2d at p. 779, 80 Cal.Rptr. 1, 457 P.2d 841.) Informant testified that appellant sold her heroin on two separate occasions subsequent to the October transaction. On November 17, 1972, appellant told her that the heroin she was getting was better than the ‘stuff’ she received the day before. We are convinced that the evidence of appellant's guilt is so overwhelming that it is beyond reasonable doubt that a verdict other than guilty would not have been returned on Counts II and III had the instruction on specific intent been given. (In re Banks, 4 Cal.3d 337, 349, 93 Cal.Rptr. 591, 482 P.2d 215; People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243.) As the court stated in People v. Holquin, supra, 229 Cal.App.2d 398, 414, 40 Cal.Rptr. 364, 367, ‘this [is] because the evidence points ‘unerringly’ to appellant's guilt.' (See People v. Newman, supra, 5 Cal.3d 48, 55, 95 Cal.Rptr. 12, 484 P.2d 1356.)

Appellant further contends that his conviction on Count I rests on insufficient evidence. Informant testified that when she called appellant on November 15, 1972, she asked him whether he had ‘anything.’ He responded by asking her, ‘How much do you want?’ She told him that she wanted ‘two halves.’ She testified that by the term ‘halves,’ she was referring to half-grams of heroin. Appellant answered that ‘he didn't have anything there at his house’ and told her that he would have to go to Oxnard ‘to get it.’ Informant asked him ‘how long it would take,’ and he replied that ‘it would be some time tonight’ and that he would ‘send somebody with it over to [her] house.’ This was the end of the conversation and constituted the entire evidence from which the jury could have found that appellant offered to sell heroin, as charged in Count I of the information. The test we must apply in reviewing the conviction is whether there is substantial evidence to support the conclusion of the trier of fact and not whether guilt was established beyond a reasonable doubt. (People v. Redmond, 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.) We must also view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Reilly, 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649.)

As we previously stated, the Supreme Court, in People v. Brown, 55 Cal.2d 64, 68, 9 Cal.Rptr. 816, 357 P.2d 1072 held that specific intent to sell a narcotic is an essential element of the crime of offering to make such a sale. The inference of intent to do that which appellant offered to do may be reasonably drawn from the language of appellant's offer. (People v. Sloss, 34 Cal.App.3d 74, 109 Cal.Rptr. 583.) Informant's acceptance and appellant's subsequent statement naming the intermediary to deliver the heroin to her gives further credence to this element. As this court stated in People v. Stenchever, 249 Cal.App.2d 74, 78, 57 Cal.Rptr. 14, 17, ‘General experience teaches that when a person makes an offer and that offer is accepted, the person offering intends that which he offered.’ From informant's testimony, an inference was properly deducible as to the intent with which the offer was made, namely, the intent to sell. The fact that the sale was not effectuated does not militate against the conclusion of the jury. (People v. Sloss, supra, 34 Cal.App.3d 74, 87, 109 Cal.Rptr. 583; People v. Monteverde, 236 Cal.App.2d 630, 638, 46 Cal.Rptr. 206.)

The judgment is affirmed.

FOOTNOTES

1.  Now, Health and Safety Code section 11352.

2.  However, as far as the underlying rationale behind the defense of entrapment, the Supreme Court reiterated its reliance on Benford in In re Foss, 10 Cal.3d 910, 913, 112 Cal.Rptr. 649, 519 P.2d 1073.

3.  We note that the Supreme Court in People v. Newman, 5 Cal.3d 48, 54, 95 Cal.Rptr. 12, 16, 484 P.2d 1356, 1360 indicated in dicta that ‘it seems apparent that the offense [illegal possession of dangerous drugs for sale (Health & Saf.Code § 11911)] is a ‘specific intent’ crime akin to the crimes of selling or offering to sell a narcotic.' (Emphasis added.) Furthermore, in People v. Holquin, 229 Cal.App.2d 398, 403, 40 Cal.Rptr. 364, cited with approval in Newman, the court held that specific intent to furnish a narcotic is an essential element of the crime of furnishing a narcotic. However, the court stated that ‘a stronger argument can be made for requiring proof of specific intent in the crime of furnishing than in selling or offering to sell, since the defendant need not touch or have possession of either the narcotic or the money to be guilty of furnishing—as in this case.’ (Id., at 402, 40 Cal.Rptr. at 366.) Accordingly, specific intent may be an element of the crime of illegal sale of a narcotic. If so, the trial court erred in giving the general intent instruction without explanation or qualification. (Id., at 403, 40 Cal.Rptr. 364.) We are cognizant of the recent holding in People v. Daniels, Cal.App., 116 Cal.Rptr. 873 (dec. 10/11/74).

STEPHENS, Acting Presiding Justice.

ASHBY and HASTINGS, JJ., concur.