People v. Brown , 55 Cal. 2d 64 ( 1960 )

THE COURT.

— The trial court, sitting without a jury, found defendant guilty of offering to sell narcotics in violation of section 11500 (now renumbered and hereafter called § 11501) of the Health and Safety Code. It also found that he was previously convicted of attempted robbery, denied his motion for new trial, and sentenced him to imprisonment in the state penitentiary for the term prescribed by law. Defendant appeals.

The public defender represented defendant at the trial, but did not undertake to do so on appeal. (See Gov. Code, § 27706.) Defendant requested the District Court of Appeal, Second District, Division Three, in which the appeal was pending, to appoint an attorney to represent him, claiming that he was without funds to employ counsel. The court made an independent investigation of the record, determined that representation by counsel would be of no benefit to defendant or to the court, and denied the request. (See People v. Hyde, 51 Cal.2d 152, 154 [331 P.2d 42].) Defendant prepared and filed a brief in proprio persona. The court affirmed the judgment. (People v. Brown, (Cal.App.) 3 Cal.Rptr. 203.) We granted defendant’s petition for hearing in this court and appointed counsel to represent him.

Officer Walton, an undercover narcotics agent, had arranged to buy heroin from an unidentified person and was awaiting delivery when defendant walked up to him and asked if he were a policeman. He replied that he was not. When defendant then asked him what he was waiting for, he replied that he was expecting a delivery of heroin. Defendant then left.

While sitting in a bar the following afternoon, Officer Walton saw defendant on the street and called to him, and defendant entered the bar. Officer Walton testified: “I told him that I would like to know who put the jacket on me, meaning who said that I was a policeman; and the defendant stated that he couldn’t tell me that, but that he didn’t think I was a policeman because I didn’t look the type and I told him that I wanted to get some stuff, meaning heroin; and he stated that he could get it for me but if I turned him in, well, the people around that area would know who burned him — meaning had him arrested." Officer Walton told defendant that he did not want to get burned again, meaning that he did not want to part with his money without receiving narcotics in return. Defendant answered that if Officer Walton wanted “it,” he would have to take some risks. Officer Walton then gave defendant $9.00 and defendant left. Officer Walton waited for some time, but defendant did not return.

He saw defendant again three or four days later and asked him why he had not returned to the bar. Defendant answered 11 that he had it and he was on his way back but the police rousted him and he had to get rid of it. ’ ’ He again encountered defendant about a week and a half later and called to him “ [t]hat was a pretty dirty deal you pulled on me the other day." Defendant replied that he would speak to him later. He did not see defendant again until his arrest. Defendant did not deliver heroin or any other substance to Officer Walton in return for the $9.00.

In his briefs filed in the District Court of Appeal, defendant contends that a specific intent to sell narcotics is an essential element of the crime of offering to sell narcotics under section 11501 of the Health and Safety Code¹ and that this intent cannot be inferred from the making of the offer alone. He asserts that the making of such an offer is equally attributable to an intent to obtain money by false pretenses. His counsel makes the additional contention that by proscribing offers to sell the Legislature in effect proscribed one form of attempts to sell and that therefore we must look to the law of attempts to determine whether an oral offer to sell constitutes an attempt to sell. He asserts that the oral offer and the taking of the money were only preparation to making a sale and that neither was a direct, unequivocal act toward a sale. (See People v. Gallardo, 41 Cal.2d 57, 66 [257 P.2d 29], and cases cited.) Since in his view such an act is an essential element of the corpus delicti of an offer to sell within the meaning of section 11501, it cannot be proved by defendant’s extrajudicial admission standing alone that “he had it and he was on his way back but the police rousted him and he had to get rid of it.” (See People v. Duncan, 51 Cal.2d 523, 528 [334 P.2d 858]; People v. McMonigle, 29 Cal.2d 730, 738 [177 P.2d 745].)

Both defendant’s and his counsel’s contentions are consistent with the position taken by the Subcommittee on Narcotics of the Assembly Interim Committee of the Judiciary in 1953 when it proposed the adoption of two new sections of the Health and Safety Code, only one of which was enacted. Section 11503 makes it a crime to offer to sell a narcotic and then deliver a substitute.² Proposed section 11509 (§10 of Assembly Bill No. 2243, 1953 Session) would have made it a crime to offer to sell a narcotic coupled with the acceptance of money, even though there was no delivery of anything.³

In recommending the passage of section 11503, the subcommittee stated: “[This section] will be entirely new law. This will cover the individual who agrees to sell, furnish, transport, or give away any narcotic, and then delivers some other liquid, substance, or material. These individuals are known to be in a position to violate the law; but, for some reason, they may feel that they are dealing with a law enforcement officer and thus deliver tobacco, water, or some other substance with the result that they have had the intent to commit the crime but are testing out the officer. At the present time nothing can be done to that person, except to charge [him] with ‘bunco.’ Under this statute, it provides a penalty of not more than one year in the county jail or in the state prison for 10 years.” The subcommittee thus made clear its view that section 11501 did not encompass an offer to sell a narcotic and subsequent delivery of a substitute. A fortiori it Avould not encompass an offer to sell a narcotic and subsequent failure to deliver anything, which proposed section 11509 envisaged.

Whether the subcommittee’s view was based on the theory that an offer alone to sell a narcotic is insufficient evidence of a specific intent to make such a sale or on the theory that offer means attempt and that some additional act is required to constitute an attempt does not appear. In any event, the subcommittee’s interpretation of the existing statute is not conclusive. Even if it is assumed that by enacting section 11503 the Legislature impliedly7 excluded the conduct therein proscribed from the more inclusive language of section 11501, it did not affect the scope of section 11501 in relation to defendant’s conduct in this case.

We agree with defendant’s contention 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. (See Pen. Code, § 20; Matter of Tun Quong, 159 Cal. 508, 514-515 [114 P. 835, Ann.Cas. 1912C 969]; People v. Winston, 46 Cal.2d 151, 158 [293 P.2d 40]; People v. Vogel, 46 Cal.2d 798, 801 [299 P.2d 850].) In view, however, of defendant’s subsequent admission that “he had [the stuff] and he was on his way back but the police rousted him and he had to get rid of it,” and the absence of any compelling evidence that defendant’s offer was false, the trial court could reasonably conclude that defendant meant what he said when he stated to the officer that for $9.00 “he would get it for me. ... He would get the stuff for me.” Moreover, there is nothing in section 11501 to support the contention that an offer to sell means an attempt to sell, for it proscribes both ‘ ‘ offers to transport, import into this State, sell, furnish, administer, or give away” and “attempts to import into this State or transport any narcotic. ...” By thus distinguishing between offers and attempts the Legislature made clear that the requirement of a direct, unequivocal act toward a sale necessary for an attempt to make a sale is not an implied element of an offer to sell.

The judgment and the order denying the motion for new trial are affirmed.

1 Seetion 11501 provides: “Except as otherwise provided in this division, every person who transports, imports into this State, sells, furnishes, administers or gives away, or offers to transport, import into this State, sell, furnish, administer, or give away, or attempts to import into this State or transport any narcotic other than marijuana except upon the written prescription of a physician, dentist, chiropodist, or veterinarian licensed to practice in this State shall be punished by imprisonment in the county jail for not more than one year, or in the state prison from five years to life.

“If such a person has been previously convicted of any offense described in this division or has been previously convicted of any offense under the laws of any other state or of the United States which if committed in this State would have been punishable as an offense described in this division, the previous conviction shall be charged in the indictment or information and if found to be true by the jury, upon a jury trial, or if found to be true by the court, upon a court trial, or is admitted by the defendant, he shall be imprisoned in the state prison from 10 years to life.”

2 Section 11503 provides that "Every person who agrees, consents, or in any manner offers to unlawfully sell, furnish, transport, administer, or give any narcotic to any person, or offers, arranges, or negotiates to have any narcotic unlawfully sold, delivered, transported, furnished, administered, or given to any person and then sells, delivers, furnishes, transports, administers, or gives, or offers, arranges, or negotiates to have sold, delivered, transported, furnished, administered, or given to any person any other liquid, substance, or material in lieu of any narcotic shall be punished by imprisonment in the county jail for not more than one year, or in the state prison for not more than 10 years.”

3 Proposed section 11509, as amended March 9, 1953, read: "Every person who agrees, consents, or in any manner offers, to sell, deliver, furnish, transport, administer, or give, or arranges or negotiates to have sold, delivered, furnished, transported, administered, or given to any person any narcotic in violation of any provision of this division and accepts any money, thing of value, or other consideration in full or partial payment is guilty of a felony, and upon conviction thereof shall be confined in the county jail for not less than 60 days nor more than one year, or in the state prison for not more than 5 years. ’'