PEOPLE v. BENFORD (1959)

By indictment defendant was charged with selling marijuana in violation of Section 11500 of the Health & Safety Code. He waived his right to a trial by jury and by stipulation the cause was submitted on the transcript of the proceedings has before the Grand Jury, each side reserving the right to offer additional evidence. The trial court found defendant guilty as charged, found a prior narcotic conviction to be true, denied his application for probation, and sentenced him to the state prison. He appeals from the judgment.

The sole issue before this court is whether the evidence as a matter of law establishes the defense of entrapment.

Although it has been suggested by appellant that the testimony of the police officer supports that of appellant and his wife, it is obvious from the record before us that considerable conflict exists. The officer's version of what occurred discloses that approximately 30 days before December 11, 1957, he was introduced to defendant by a neighbor. Thereafter, he visited defendant's apartment and several times drank with him at a tavern. On two or three occasions, they discussed the subject of marijuana and on December 10, 1957, the officer asked defendant if they could get together the next day to go out and purchase some. On the evening of December 11, at approximately 7:45, they met in the Rainbow Cafe. The officer drove defendant to the Rosehills Project, parked his car and gave him $15. Defendant left the officer seated in the car, returning in about 1/2 hour when he handed him $1 and a paper bag containing marijuana.

After defendant's arrest, a conversation between him and Officer Salagi, which was recorded and played to the trial judge, disclosed that after claiming he did not remember the transaction, denying he got any marijuana, and asserting that he ‘didn't fool with it,’ defendant finally admitted that he secured the narcotic he sold to the officer, at Rosehills, got nothing for it and did it as a favor for a friend.

Defendant's wife testified that she had known Officer Pryor approximately 3 months, he was an occasional visitor at their apartment, went out with her husband and they appeared to be ‘pretty good friends'; and that once he asked defendant to go with him ‘to get some pod or weed’ but her husband answered that he ‘wouldn't like to do that’ because of his children who were growing up.

Defendant admitted in his testimony at the trial that he obtained the marijuana for the officer. He said he had known him for three months prior to the day in question and had been introduced to him by his next door neighbor, as a schoolmate; that he started coming over, they had a few drinks several times and the officer asked him if he knew where he could get some marijuana, to which he responded ‘no’; that he kept coming over, asking about the marijuana, buying candy for the children, and gained his ‘influence’; that the officer told him he and his wife used it and couldn't get any ‘down here’; and that he finally told the officer he would introduce him to the people so he wouldn't have to come by and bother him because he didn't want anything to do with it. He further testified he only did it because he was a friend and made no money on the transaction.

Appellant contends that the crime originated in the mind of the officer and except for the latter's persuasion, he would not have participated in the commission of the offense. Since appellant argues that even the evidence offered on behalf of the prosecution is such as to establish a good defense of entrapment, as a matter of law, we briefly review the salient points of the officer's testimony. The most it discloses is that he had known defendant 30 days before the sale and had visited him at his apartment, occasionally taking a drink with him; that they discussed marijuana several times and on the day before the sale asked defendant if they could get together the next day to buy some; and that they met the next evening at a cafe, drove to a location known to the defendant where he gave him the money, defendant went alone into the premises and returned with the narcotic. This is the extent of the prosecution's testimony and we fail to find any evidence therein from which any reasonable inference of ‘the trickery, persuasion, or fraud of the officer’ required under our law to constitute entrapment, could be drawn. People v. Lindsey, 91 Cal.App.2d 914, 205 P.2d 1114, 1115; People v. Hall, 133 Cal.App. 40, 23 P.2d 783.

Since entrapment is a positive defense, the burden is upon the defendant to prove that he was induced to commit the violation (People v. Braddock, 41 Cal.2d 794, 264 P.2d 521; People v. Schwartz, 109 Cal.App.2d 450, 240 P.2d 1024; People v. Grijalva, 48 Cal.App.2d 690, 121 P.2d 32; People v. Lee, 9 Cal.App.2d 99, 48 P.2d 1003). Defendant's attempt to offer such defense was as unsuccessful as his contention on this appeal that the People's evidence establishes entrapment as a matter of law. It appears to us that even if the testimony of the defendant and his wife in its entirety had been believed by the trial court, the evidence would have fallen short of establishing the necessary elements of the defense of entrapment.

As seen from a brief summary of the defense testimony, the evidence is clearly not free of conflict, and it is the rule on appeal that when the record discloses a conflict in the evidence, the judgment will not be reversed (People v. Braddock, 41 Cal.2d 794, 264 P.2d 521; People v. Crawford, 105 Cal.App.2d 530, 234 P.2d 181). The defendant's wife testified that the officer for three months before was an occasional visitor and he and defendant appeared to be ‘pretty good friends'; and that one evening when he asked defendant to go with him to get some marijuana, he refused because of his children. The defendant in his testimony admitted he obtained the marijuana for the officer, but said that the latter had been introduced by a neighbor as a schoolmate, came to his apartment often and repeatedly asked him if he knew where he could get some marijuana; that he kept asking him and buying candy for the children until he gained his ‘influence’; and that when the officer said that he and his wife used the narcotic but could not get any, he finally said he would introduce him to some people so they wouldn't bother him further.

Since the function of determining the credibility of witnesses, resolving factual conflicts and weighing the evidence is one exclusively for the trier of fact, the question before this court is not whether his defense presented enough to show entrapment but whether, as appellant himself states the issue, ‘the testimony of Officer Pryor establishes the defense of entrapment as a matter of law.’ In finding him guilty, it is obvious that the trial court rejected defendant's claim of so-called ‘reluctance’ to become involved in the commission of the offense. Indeed, the testimony of the officer reveals no hint of any reluctance on the part of defendant to go with him to buy the narcotic, but clearly shows that his participation in the crime was solely the result of defendant's willingness to go along with what was no more than a simple request that they get together the next night, go out and buy some marijuana. The truth of defendant's testimony that he told the officer he would introduce him to a contact so he wouldn't be bothered further because he wanted nothing to do with it, is not borne out by the evidence. It is obvious even from his own testimony that defendantnever made any arrangements for the officer to meet a contact, but instead kept the matter within his entire control, personally going into the premises alone, finishing the transaction and later returning to the officer's car where he gave him the narcotic and his change without advising him where he went and with whom he had done business.

There appears to be little reason to discuss at length the law relative to the defense of entrapment since the issue before us seems to be primarily a factual one. Rejecting the defendant's version of why he committed the offense, the court believed the testimony of the officer, and in his testimony we find a complete absence of evidence of any element of entrapment. The development of this defense in our law is based upon the fundamental refusal of our courts to countenance the solicitation of innocent people by law enforcement officers into the commission of crime (People v. Roberts, 40 Cal.2d 483, 254 P.2d 501; People v. Schwartz, 109 Cal.App.2d 450, 240 P.2d 1024; People v. Lindsey, 91 Cal.App.2d 914, 205 P.2d 1114; People v. Malone, 117 Cal.App. 629, 4 P.2d 287). If the criminal intent originated in the mind of the defendant and the offense was completed, the fact that an opportunity was furnished by the officer or that the defendant was aided by him in the commission of the crime in order to secure the evidence necessary to prosecute him therefor, constitutes no defense. Where the officer uses no more persuasion than is necessary for an ordinary sale and defendant is ready and willing to make it, there is under our law no entrapment. People v. Braddock, 41 Cal.2d 794, 264 P.2d 521; People v. Lindsey, 91 Cal.App.2d 914, 205 P.2d 1114. ‘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.’ People v. Schwartz, 109 Cal.App.2d 450, 240 P.2d 1024, 1027; People v. Roberts, 40 Cal.2d 483, 254 P.2d 501; People v. Braddock, 41 Cal.2d 794, 264 P.2d 521.

The evidence presented by the prosecution and believed by the trial court clearly shows that defendant willingly obtained the narcotic and sold it to the officer, when the latter merely furnished him an opportunity to do so. The fact defendant claims he received no profit from the transaction does not change the illegality of his act. There is in the record before us no showing of trickery, pretense or persuasion, or that defendant in any respect sustained his burden of proving he was induced to commit the offense for which he was convicted.

For the foregoing reasons the judgment is affirmed.

LILLIE, Justice.

WHITE, P. J., and FOURT, J., concur.