PEOPLE v. SHEA (1980)

A four–count information charged Shea with:  (I) possessing heroin (Health & Saf.Code, § 11350);  (II) possessing heroin for sale (§ 11351);  (III) selling heroin (§ 11352);  (IV) soliciting an act of prostitution (Pen.Code, § 647(b)).   The jury found her guilty of counts I and IV, possessing heroin and soliciting prostitution, as charged;  and on counts II and III found her guilty of simple possession, lesser included offenses of possessing for sale and sale.   She was sentenced to prison for the middle term of two years on each of the heroin counts.   Sentences on counts II and III were concurrent to that on count I and were stayed pending completion of sentence on count I to avoid double punishment (Pen.Code, § 654).   A 60–day sentence on count IV also ran concurrently with that on count I.

On appeal Shea contents (1) as a matter of law the evidence established entrapment, compelling dismissal of all heroin charges;  (2) the jury instructions on entrapment erroneously omitted a requested charge informing the jury Shea's character, predisposition, and subjective intent are irrelevant to the issue of entrapment;  (3) it was error to instruct on lesser included possession offenses when the evidence showed either possession for sale (or sale) or no crime at all;  (4) jury questions showed jurors did not understand a finding of entrapment required acquittal, and the court's responses did not adequately dispel this confusion;  (5) because the evidence of all three heroin counts rests on one act of possession, the judgment of conviction on two of the three counts must be dismissed.

It was error to omit the requested instruction;  and two of the three convictions of possessing heroin must be dismissed because the offenses are identical.

Three undercover National City police officers, Berstler, Fowler and Goodrich, participated in surveillance activities at a motel called the Nite Lite Inn because they believed its rooms were being used for prostitution.   While there, Berstler, also assigned to the San Diego Integrated Narcotic Task Force Unit, saw what he thought was narcotics traffic in the area of rooms 108 and 112, and he watched that area intermittently from his parked car between February 16 and 19, 1979.   Room 108 was registered to Shea.   Several times Berstler saw these events occur:  Shea visited room 112 briefly and returned to 108;  black or Mexican males or Mexican females would arrive by private car or cab and knock at room 108;  Shea would let them in, go to 112, and then return to 108;  then the visitors would leave.   Because these visits were very brief Berstler believed narcotics dealing, rather than prostitution, was occurring.

Berstler testified that on the evening of February 20 about 8:00, Shea approached him in the motel parking lot and asked if he was “looking for a good time.”   He understood this to be an offer of prostitution services, told her he was interested but too tired at that moment.   She responded he looked tired and offered to get him some “uppers,” which he replied he could use.   Shea then remarked he looked sick and asked him if he was using.   Berstler responded he was “chippying,” meaning using heroin on an occasional basis.   She offered to get him some heroin, but the deal was postponed because Berstler did not want to accompany her to a different location at 42nd and Market to make the buy.   He pretended fatigue.

Later that same evening Officer Fowler, also in undercover dress, was solicited by Shea and indicated he was too tired.   Fowler met Berstler in room 136 and they were later joined by a third officer, Goodrich.

At 9:00 p. m. Shea knocked on the door of room 136 and asked Berstler if he was still interested in heroin.   He said yes.   She asked how many balloons and he replied two.   She also offered sexual services to the other two officers, which they refused.   She quoted a $50 price for the two balloons, and then Berstler offered to buy her a balloon if she was able to score two for him.   She left to make arrangements.

Shortly after 11:00 p. m. Shea came back to room 136 and gave Berstler two rolled–up balloons.   After inspecting the contents, Berstler offered $40 instead of $50 and Shea responded the heroin was very strong and Berstler would like it and repeated a price of $50 for the two plus $25 for hers.   On a signal, the officers then produced badges and after some struggle Shea was arrested.

Shea, in her testimony, admitted she was a heroin user and prostitute and had “fixed” four times on February 20 before she met Berstler.   She further said Berstler said he had been chippying but was sick and had no local supplier.   He had on a short sleeved shirt and she saw marks on his arms, and his nose and eyes were running.   Berstler repeatedly told her he was very sick and needed the heroin.   She felt sorry for him and therefore decided to make the buy for him.   Normally she obtained heroin only for her own use and would not have gotten it for Berstler if he did not appear so ill and in need of the drug.   She had herself been an addict in withdrawal and sympathized with his pain.

Berstler at trial testified he had a cold and sinus trouble the night in question and may have sniffed a lot but was not trying to feign withdrawal symptoms.   He also said he was wearing a long sleeved shirt which covered his arms.   He stated he did not tell her he was “strung out” or sick.   He further testified he did not offer to buy her a balloon to induce her to sell to him, but rather because it was against department policy to engage in prostitution activities, therefore the possibility of a drug arrest was an alternative.   Later, however, when shown his earlier testimony at the preliminary hearing, Berstler did concede he made some attempts to cause Shea to think he was a heroin user.   He did, however, affirm his testimony Shea first raised the subject of heroin.

Both Fowler and Goodrich testified Berstler appeared normal the evening of February 20 and did not appear to be an addict in withdrawal.

DISCUSSION

 The facts do not establish entrapment as a matter of law.   Berstler's testimony, which the jury could accept, indicated at most he told Shea he was an occasional heroin user.   She first offered to provide the drug.   Entrapment only occurs when a law enforcement officer's conduct would induce a normally law–abiding person to commit an offense (People v. Barraza, 23 Cal.3d 675, 690–691, 153 Cal.Rptr. 459, 591 P.2d 947).   The circumstances to which Berstler testified do not amount to entrapment.

 The court should have instructed the jury such matters as predisposition to commit the offense are not relevant to entrapment.   The Barraza decision emphasized that fact.   The court said:

“Finally, while the inquiry must focus primarily on the conduct of the law enforcement agent, that conduct is not to be viewed in a vacuum;  it should also be judged by the effect it would have on a normally law–abiding person situated in the circumstances of the case at hand.   Among the circumstances that may be relevant for this purpose, for example, are the transactions preceding the offense, the suspect's response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission.  [Citation.]   We reiterate, however, that under this test such matters as the character of the suspect, his predisposition to commit the offense, and his subjective intent are irrelevant.”  (People v. Barraza, supra, 23 Cal.3d 675, 690–691, 153 Cal.Rptr. 459, 591 P.2d 947, italics added.)

It is the last, italicized sentence of the above passage which Shea requested the court to include.   However, the revised CALJIC instructions on entrapment do not include that statement.   The court therefore instructed in the language of CALJIC standard instructions and refused to include the reference to predisposition and subjective intent.¹

The requested instruction here was pertinent, because Shea was a heroin user and prostitute, facts which make her more likely than an “ordinary law–abiding citizen” to agree to furnish heroin.   A juror might well consider those facts and find no entrapment unless instructed specifically to ignore Shea's particular mental state and concentrate on an objective standard.   Although the instructions given were correct they did not fully encompass the mandate of the Barraza case, particularly on facts such as these.

The error was prejudicial.   After about an hour and a half of deliberations, the foreman sent a note asking (1) whether a finding of entrapment required acquittal on all heroin charges and (2) what should be done if the jury deadlocked on entrapment.   The court told the jury “each count is separate and you make a decision on each count.   In other words, you consider all the law and instructions ․ on each particular count, and that includes the defense of entrapment, so you consider that as to each count and make your own decision.”   In answer to further questions whether a 12 to nothing vote on entrapment was necessary to acquittal, the court indicated a verdict of guilt or innocence must be unanimous.   The next day the jury asked further questions about the purpose of the alternate verdicts on counts II and III.   Those questions indicated confusion as to the meaning of a lesser included offense finding.   Because the jury was confused it is not reasonable to find the error in instructions was harmless.

 It was not error to instruct on the lesser included offense of possession.   The officers arrested Shea before the sale was fully consummated, but the evidence definitely shows possession.   However, we must reverse the convictions so the argument is not important except for guidance on any retrial.

 Further, all three convictions of possession rest on Shea's possession of the three balloons which she brought to room 136.   This is not a case, as argued by the People, of separate offenses arising out of a single act (People v. Tideman, 57 Cal.2d 574, 586, 21 Cal.Rptr. 207, 370 P.2d 1007).   Possession of three balloons of heroin at the same time is no more three crimes of possession than is possession of 367 grams of heroin, 367 offenses.   The cases establish possession offenses must be separate in time and space to warrant separate convictions (People v. Theobald, 231 Cal.App.2d 351, 353–354, 41 Cal.Rptr. 758;  People v. Clay, 273 Cal.App.2d 279, 285, 78 Cal.Rptr. 56).   If Shea had been convicted of the greater offense, dismissal of the lesser would be mandatory (People v. Kilborn, 7 Cal.App.3d 998, 1003, 87 Cal.Rptr. 189).   Where the convictions are all for simple possession, one resulting from a lesser included offense finding, then the court must dismiss the duplicative convictions (People v. Theobald, supra).

Judgment of conviction on count IV is affirmed.   Judgments of conviction on counts I, II and III are reversed.

FOOTNOTES

FOOTNOTE.  

1.   The instructions given were CALJIC Nos. 4.60 (1979 Third Rev.);   4.61 (1979 Rev.);   4.61.5 (1979 Rev.);   California Jury Instructions, 1980 Supplement Service, Pamphlet No. 1 (1980).   They recited:“It is a defense to the commission of an act, otherwise criminal, that such act was induced by the conduct of law enforcement agents or officers when the conduct was such as would likely induce a normally law–abiding person to commit the crime.   ¶  To establish this defense, the defendant has the burden of proving by a preponderance of the evidence that the conduct of the law enforcement agents or officers induced him to commit the crime and that the conduct was such as would likely induce a normally law abiding person to commit such crime.   ¶  Preponderance of the evidence means such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth.   ¶  If you find by a preponderance of the evidence that this defense has been established, the defendant is entitled to a verdict of acquittal.   ¶  In determining whether this defense has been established, guidance will generally be found in the application of one or both of two principles.   First, if the actions of the law enforcement agent would generate in a normally law–abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established.   ¶  An example of such conduct would be an appeal by the police that would induce such a person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose.   Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law–abiding person likewise constitutes entrapment.   ¶  Such conduct would include, for example, a guarantee that the act is not illegal or the offense will go undetected, an offer of exorbitant consideration, or any similar enticement.   ¶  Finally, while the inquiry must focus primarily on the conduct of the law enforcement agent, that conduct is not to be viewed in a vacuum;  it should also be judged by the effect it would have on a normally law–abiding person situated in the circumstances of the case at hand.   Among the circumstances that may be relevant for this purpose, for example, are the transactions preceding the offense, the suspect's response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission.   ¶  It is permissible for law enforcement agents or officers or persons acting under their discretion, suggestion or control to provide opportunity for the commission of a crime, including reasonable, though restrained, steps to gain the confidence of suspects, but it is not permissible for law enforcement agents or officers or persons acting under their discretion, suggestion, or control, to induce the commission of the crime by overbearing conduct such as badgering, coaxing, or cajoling, importuning, or other affirmative acts likely to induce a normally law–abiding person to commit a crime.”

THE COURT * FN* Before Brown, P. J., Cologne and Wiener, JJ.