People v. Monteverde

After an extended jury trial, the defendant, Rene Monteverde was convicted of offering to sell heroin (Health & Saf. Code, § 11501); the indictment was as follows: ‘ ‘ The said Rene Monteverde on or about the 20th day of February, 1964, in the County of San Diego, State of California, and before the finding of this Indictment, did unlawfully offer to sel], furnish a narcotic, to wit, Heroin.”

The defendant’s motion for a new trial and his application for probation were denied, and he was sentenced to imprisonment in the California Institution for Men at Chino; however, sentence was ordered stayed pending appeal, and bail on appeal was finally fixed at $9,000, plus a penalty assessment of $900.

(1) That the evidence is insufficient to convict him of a crime in California;

(2) That the court erred in refusing to instruct the jury on entrapment ;

■ (3) That the court committed error in excluding evidence which would have tended to establish that he had not recently fabricated his account of what happened, and that he had no intent to sell heroin;

(4) That the court erred in receiving evidence of statements made by him, contrary to the Escobedo and Dorado rule.

Aside From the Issue op Entrapment, the Evidence Was Adequate to Prove the Commission op the Crime.

Theodore (Ted) Heisig was the principal witness for the People. He is a treasury agent employed by the Federal Bureau of Narcotics and assigned to the Los Angeles office. He and two other federal narcotic agents, Messrs. Gjertson and Celaya, and an informant, Jerry Ellis, went to Tijuana with the purpose of finding the defendant, Monteverde, and the hope to be able to convict him, in due course, of a federal narcotics offense. On the following day, February 14, 1964, Ellis, who had previously known Monteverde, tallied with him in the Coronet Room, a restaurant and bar which had been managed by him several months previously.

The defendant testified as follows:

“A. I was at the Coronet approximately at noon and I went in, like I explained to you, for my mail or something, when I was in there this Mr. Ellis, who had been previously a customer, no more than two or three times, came to me and he says, ‘I want to talk to you, Tiger.’ I said, ‘Well, what do you want?’ He says, ‘I will have to talk to you outside.’ So we went outside the building to the entrance of the Coronet and he says, ‘I have been looking for you for the last two days. ’ By this I assumed that he didn’t-

“Mr. Weismantel : I object to what he assumed.

‘ ‘ The Court : Sustained.

■ “By Mr. Enright: Q. Mr. Monteverde, just a minute. A. All right.

“Q. I want you to go as slowly as possible and you can’t tell us what you assume or your conclusions, okay. A. Well, I have'been looking for you for two days.

“Q. All right. A. I said, ‘What for?’ He says, ‘I need a

connection.' I said, ‘A connection for what?’ He said ‘Junk,’ I said, ‘Don’t ever repeat that word to me again, just forget that I heard it. I don’t want to ever, ever discuss this with you or anyone else. ’ ’ ’

Ellis described Heisig to Monteverde as a rich lawbreaker from the eastern United States, who would be interested in getting some action from the sale of heroin.

Heisig was so dressed as to enable him to play his part; he had on a black loose-knit sweater, a sport shirt and dark trousers, and he had not shaved for a day or two previously. He had a bank-roll of $4,000 with him in United States government money.

Mr. Heisig testified:

At about 2 p.m., he went to the Coronet Room, and Ellis there introduced him to the defendant. Agent Celaya had preceded him to the bar. Monteverde and Ellis were talking with two young women. Monteverde told Heisig he had heard about him and knew he was a friend of Jerry’s (Ellis). Heisig told Monteverde that he had some money and he wanted to invest it; he wanted a little action. Monteverde said he would talk to him later. He conversed with the two women for awhile about operations at the Caliente Race Track. When the women temporarily left, Monteverde said to Heisig, “Ted, if you want to make some big money quick, junk is the business.” The record shows that “junk” is a word commonly used to indicate heroin. Heisig told Monteverde that he thought it was dangerous, and he had read in the papers about arrests, but the latter said, “Don't worry about that, my men have been in the business over ten years, they are all right.” Heisig asked how much an ounce would cost, and Monteverde said, “$350 for the best stuff.” The price of heroin in Tijuana was from $200 to $500 an ounce. Monteverde referred to the ounce as a “piece.”

The women returned and just as they were coming up, Monteverde said he could supply 10 ounces, and, in the presence of the women, Monteverde changed the wording of his statement to 10 “dresses.” After the women left again, Monteverde said, “Ted, I want to see you, come on into the men’s room.” In the latter place, Monteverde asked, “Ted, are you really serious about wanting this stuff?” Heisig replied, “Yes, Rene, I have got the money,” and showed Monteverde his large roll of government greenbacks; he continued, “I want delivery on the American side. I don’t want to buy this heroin and pick it up in Tijuana.” Monteverde

On February 16, 1964, Heisig mailed a postcard to Monteverde from Los Angeles. On it, he wrote a telephone number and told Monteverde to call him Wednesday or Thursday. The card read: “Hello. We are having a fine time in L. A. Why not give us a call Wednesday or Thursday night about 5 p.m. at 842 4543? The girls are friendly as always.” The card was signed “J and T.” The number on the card was that of the home phone of Agent Celaya. The government agents tried to reach Monteverde by telephone from Burbank, but he was not at the Coronet Room in Tijuana; Ellis then called him at his home in Imperial Beach, San Diego County, while Agents Heisig, Celaya and Borquez were present. Heisig heard a voice which he recognized as Monteverde’s. He had his head right up against Ellis ’ head in listening; Ellis said, ‘ ‘ Hello, why didn't you call us ? ” Monteverde said, 1 ‘ I haven’t gotten the postcard.” Then, Monteverde said, “Jerry, I can get you that stuff, all you want, it’s no problem.” Ellis said, “Wait a minute, Ted is here, I will put him on.” He then said, “Hi, Rene.” Monteverde said, “Hello, Ted,” and then, “Ted, I can get you that ‘H’, it’s the best in T.J.” The witness testified that “H” meant heroin, and “T.J.” Tijuana. Heisig asked Monteverde how much, and the latter said, “Three five zero a piece.” Heisig then asked, “Can you whack it up?” And Monteverde said, “Yeah, you can cut it up four times and it would still be as good as the stuff the boys sell down on Revolution.” (Revolution is a main street in Tijuana.) Monteverde said, “This white stuff is very good, my people get it from Marseilles.' ’

The witness, Heisig, pointed out that heroin comes in two

The next day at about 2:40 p.m., a telephone call was received by the federal agents at Burbank. At that time, they were equipped with a recording device, which was hooked to the telephone by means of a suction cup; Agent Borques had attached it. The tape recording was made and it was received in evidence at the trial. Heisig suggested that a delivery be made at a point in San Ysidro in San Diego County, and he referred to the fact that he would call Monteverde on the 27th of February at the Coronet Room which he did. At that time, he asked Monteverde how things were going, and the latter said,‘1 Okay. I want to meet you Saturday or Sunday. ’ ’ The Sunday date was agreed upon and Monteverde said, he would meet him “at the Tijuana Country Club. . . . It’s located just before you get to the race track.” On the day suggested, Heisig went to Tijuana with Agent Gjerston, and there they first met with Federal Agent Baca, and also with Mexican narcotic agents commanded by Captain Valverde. Agent Baca of the San Diego office and Agent Gjertson cheeked into the La Sierra Motel. Heisig still had the $4,000 in government money in his possession. He and Agent Gjertson then drove to the Tijuana Country Club, walked into the dining area there, and ordered a sandwich. Monteverde joined Heisig about 10 minutes later; he asked what was happening, and Monteverde said he was going over and see “the man.” Heisig told Monteverde he had already checked into Room 10 at the La Sierra, and Monteverde told him to go over there and wait, and that he would call him in about an hour. He said to Monteverde, “You give me the dope and I’ll give you the money. ’ ’ Monteverde said,1 ‘ Okay. ’ ’ Heisig and Gjertson then went to the motel room and waited. After leaving Monteverde, he made a telephone call to Agent Baca, who was with the Mexican federal police, and then returned to the motel. At 6 p.m., he heard from Monteverde, who said, “I’m outside, come out and we’ll talk.” Heisig went outside, and in two or three minutes he saw Monteverde in a Ford station wagon. Monteverde said he had not as yet seen “the man,” but was trying to locate him and was going over to his house, and

Monteverde returned at about 9 p.m. When he got back, Agent Gjertson was there. Monteverde said that “Frenchy” Benegas would not do business without money in his hand. Heisig told Monteverde, “. . . we’re not fools, we don’t come down to Tijuana to lose $3500.” Monteverde said that “Frenchy” Benegas and his partner, Mike Baragon, had been in business 10 years and had never been arrested. He said that he himself would receive $50 for each ounce sold, and that if Heisig wanted to he could meet Benegas and deal with him in person. After being there about 30 minutes, Monteverde left. Mr. Heisig went with Agent Gjertson to meet Agent Baca and the Mexican federal police.

He did not see Monteverde again until the next day at the Paddock Bar in San Ysidro in San Diego County. Heisig had called Monteverde’s residence at about 4:30 in the afternoon. He told him that he and Gjertson had picked up some narcotics elsewhere, but that he was thankful for the help that Monteverde had given and that he would like to see him to give him some money. They met in the Paddock Bar, and at that time the federal agents told him who they were, but they were not arresting him. Heisig told Monteverde that he was going to advise the district attorney’s office in San Diego that

The law with respect to the essential elements of an offer to sell narcotics in California is well settled. A breach of the applicable statute (Health & Saf. Code, § 11501) occurs when there is an offer to sell the narcotic, accompanied by a specific intent to sell (People v. Brown, 55 Cal.2d 64 [ 9 Cal.Rptr. 816 , 357 P.2d 1072 ]; People v. Jackson, 59 Cal.2d 468 [ 30 Cal.Rptr. 329 , 381 P.2d 1 ]; People v. Longino, 222 Cal.App.2d 734 [ 35 Cal.Rptr. 367 ]; People v. Shepherd, 223 Cal.App.2d 166 [ 35 Cal.Rptr. 497 ]; People v. May, 224 Cal.App.2d 436 [ 22 Cal.Rptr. 924 ]). The offer to sell does not require an actual delivery of the forbidden substance.

The evidence in this ease complies with the requisites for the commission of the crime. It is true that, in addition

The appellant relies, as to this phase of the case, on the principles referred to in People v. Buffum, 40 Cal.2d 709 [ 256 P.2d 317 ]; there cannot be a conspiracy in California to violate the criminal laws of another country, unless there is present not only the intent but an act or series of acts, which, properly considered, constitute an attempt to violate such law, or are a partial performance in this state of the crime denounced in the foreign state. This authority does not weaken the effect of the code section or the cases decided under it, which specifically denounce as a crime an offer in this state to sell the forbidden drug.

The Instructions on Entrapment Should Have Been Given.

It is a fundamental rule of our criminal law that the government of the United States or of the State of California must not induce otherwise innocent people to commit crimes. As was said by Mr. Justice Roberts in his concurring opinion in Sorrells v. United States, 287 U.S. 435 , 455-457 [ 53 S.Ct. 210 , 77 L.Ed. 413 , 86 A.L.R. 249 ], entrapment “attributes no merit to a guilty defendant” but is based upon the court’s power and duty to preserve “the purity of its own temple.” As noted in 73 Harvard Law Review, 1333, 1339: "The primary reason for government suggestion of crime is detection and cessation of a course of criminal activity which can

In Neill v. United States, 225 F.2d 174 , 177, it is said: “Entrapment is the solicitation of an otherwise innocent person to commit a crime solely for the purpose of prosecution. It arises where the criminal purpose or design originated in the minds of government officials and such criminal purpose or design is implanted in the mind of an otherwise innocent person, the object being his prosecution. Sorrells v. United States (1932) 287 U.S. 435 [ 53 S.Ct. 210 , 77 L.Ed. 413 ]. It may be a good defense and in eases such as the instant one, the defense of unlawful entrapment may be interposed by a defendant.”

In various discussions of entrapment in texts, law journals, and eases, it is an elementary assumption that: “Under the doctrine of entrapment, the overt acts essential to the commission of the offense charged are assumed to have been committed by the defendant. But the criminal intent, as here also essential to the completion of the crime, is not assumed to have been established. It is assumed to be lacking when it did not originate in the mind of the defendant but was conceived in the minds of the enforcement officers for the unlawful purpose of inducing him to commit a crime.” (People v. Jackson, 42 Cal.2d 540 , 547 [ 268 P.2d 6 ].)

The proposed instructions offered by the appellant and refused by the court are as follows: “The law does not tolerate one person, particularly a law enforcement officer, generating in the mind of another person who is innocent of any criminal purpose, the original intent to commit a crime, thus inducing such person to commit a crime which he would not have committed or even contemplated but for such inducement.

“If the intent to commit the crime did not originate with the defendant and he was not carrying out his own criminal purpose, but the crime was suggested by another person for the purpose of entrapping and causing the arrest of the defendant, then the defendant is not criminally liable for the acts so committed.”

“In considering the defense of entrapment the important question for you to determine is this: Did the defendant conceive the idea of committing the crime himself or was the idea conceived by another and suggested to the defendant for

The foregoing instructions are CALJIC (rev.ed.) Nos. 851 and 854. They are in proper form.

Before the recent decision in People v. Perez, 62 Cal.2d 769 [ 44 Cal.Rptr. 326 , 401 P.2d 934 ], the right of a defendant to urge entrapment as a defense in California required that there should be an explicit, or at least an implied, admission by defendant that the acts constituting the crime of which he was accused had in fact been committed. (See People v. Perez, supra, 62 Cal.2d 769 , 776 (fn. 2).) It is no longer necessary, in order to invoke that defense, that a defendant must admit the performance of the acts denounced as criminal. The opinion written by Mr. Chief Justice Traynor provides ( 62 Cal.2d 769 , 775): “Although the defense is available to a defendant who is otherwise guilty (People v. Benford, 53 Cal.2d 1 , 9 [ 345 P.2d 928 ]), it does not follow that the defendant must admit guilt to establish the defense. A defendant, for example, may deny that he committed every element of the crime charged, yet properly allege that such acts as he did commit were induced by law enforcement officers. (People v. West, 139 Cal.App.2d Supp. 923 , 926 [ 293 P.2d 166 ]; Henderson v. United States (5th Cir.) 237 F.2d 169 , 173.) Moreover, a defendant may properly contend that the evidence shows unlawful police conduct amounting to entrapment without conceding that it also shows his guilt beyond a reasonable doubt. When the evidence does show such conduct, the court has a duty to root its effects out of the trial upon its own initiative if necessary. (See Sorrells v. United States, 287 U.S. 435 , 453, 457 [ 53 S.Ct. 210 , 77 L.Ed. 413 , 86 A.L.R. 249 ] [Roberts, J., concurring].) Entrapment is recognized as a defense because ‘the court refuses to enable officers of the law to consummate illegal or unjust schemes designed to foster rather than prevent and detect crime.’ (People v. Benford, 53 Cal.2d 1 , 9 [ 345 P.2d 928 ]; see People v. Cahan, 44 Cal.2d 434 , 445-446 [ 282 P.2d 905 , 50 A.L.R.2d 513 ].) A rule designed to deter such unlawful conduct cannot properly be restricted by compelling a defendant to incriminate himself as a condition to invoking the rule.’’

If there is substantial evidence raising the issue of entrapment, such instructions should be given. (People v. Gallagher, 107 Cal.App. 425 [ 290 P. 504 ]; People v. Alamillo, 113 Cal.App.2d 617 , 620 [ 248 P.2d 421 ] ; 14 Cal.Jur.2d, Criminal Law, § 205, p. 449 et seq.)

People v. Castro, 167 Cal.App.2d 332 , 337 [ 334 P.2d 602 ], correctly states: “. . . the existence or nonexistence of entrapment is a question of fact. ...” (See also People v. Gutierrez, 128 Cal App.2d 387 , 390 [ 275 P.2d 65 ].)

The record here shows that the federal narcotic agents, three in number, and an informer at one time connected with racetrack operations and recently unemployed converged on Tijuana, and after looking for the defendant during the better part of two days finally located him at the Coronet Room. The former racetrack employee had a bank roll of $1,500 in United States government money, and the agent Heisig $4,000 in federal greenbacks. Heisig was dressed to conform with what he thought was the image of a professional lawbreaker from the eastern United States; he appeared with a two-day growth of beard and in a set of casual clothing, which made him appear to he other than what he naturally was; his semi-disguise made him out as a rich hanger-on of questionable enterprises, operating across the line of criminality. Ellis and Heisig requested Monteverde to sell heroin to them, and Heisig backed up the solicitation by flashing a $4,000 government roll of 20’s, after Ellis had already shown the $1,500 owned by the United States, which had been entrusted to him. There was

It should be noted, also, that 21 residents of San Diego County, all of them apparently solid citizens and holding substantial positions, some of them lawyers and heads of corporations and some former officials, testified to Monteverde’s general reputation for truth and veracity.

Curiously enough, if objection had been made by the People to this testimony, the evidence presumably would have been excluded, for Monteverde had not been attacked with respect to his veracity as a witness, and from the standpoint of a general defense “It is only as to the traits of character involved in the crime charged that evidence of the good character of the accused is admissible, including his reputation as a law abiding citizen.” (18 Cal.Jur.2d, Evidence, § 159, p. 617; People v. Fair, 43 Cal. 137 , 148; People v. Beltram, 94 Cal.App.2d 197 , 209 [ 210 P.2d 238 ].) Testimony as to an element of character not involved in the crime for which defendant is on trial is not admissible. (People v. Chrisman, 135 Cal. 282 , 288 [ 67 P. 136 ]; People v. Pettinger, 94 Cal.App. 297 , 302 [ 271 P. 132 ].) But no objection was made and, as the evidence was admitted, it deserved some consideration by the jury in determining whether the defendant possessed the evil intention of selling narcotics prior to his temptation by the federal officials.

Every man accused of crime is entitled to have his defenses properly presented in an understandable manner. We believe that the defendant was here deprived of a right which was basic; the failure to permit a presentation of this defense constituted a miscarriage of justice. (People v. Gallagher, supra, 107 Cal.App. 425 , 428.)

Appellant contended that he was induced to believe that Heisig was actually a person named Sullivan, wanted by the F.B.I. for tilling two policemen and robbing a bank in the eastern part of the United States; and that an F.B.I. agent, named Gerry of the San Diego office, had exhibited to him a poster or “wanted-flyer” containing the picture and a description of the missing criminal prior to the 14th of February when he first saw Heisig; Monteverde averred that he continued his contact with Heisig and made various statements to him relative to the proposed sale of heroin, in order to help capture Heisig-Sullivan, and, incidentally, to earn a cash reward for this service. The main trouble with this defense was that the F.B.I. agent testified that the first exhibition of the poster, and his original reference to Sullivan, occurred on February 19, some five days after the first meeting between Monteverde and Heisig. In an attempt to support other evidence offered by him in conformity with his claim, the defendant tendered the testimony of a lawyer-friend, who is one of the amici curiae on this appeal, Mr. John S. Rhoades; the witness was asked to give an account of a conversation between Gerry and Monteverde early in March, in which reference was presumably made to the original date of the exhibition of the poster. A second adverse ruling related to the testimony of a friend of Mrs. Monteverde as to an alleged conversation between them with respect to the “wanted-flyer” several days before the 14th of February. Both of these elements of evidence were justified on the ground that they would have tended to substantiate the contention of defendant that his story was not an afterthought, and that the appellant was right as to the time of the exhibition to him of the poster. They should have been admitted. It was for the jury to determine the facts; we cannot assume that the jury would not have found that the weight of the evidence established this defense if these two witnesses had been allowed to testify.

Evidence of the Statements of the Dependant Were Not Improperly Received Notwithstanding the Escobedo and Dorado Rule

Early in March, when the federal officials disclosed their identity to the appellant, he was told that he was not under arrest by them, and his services as an informer were then solicited by them. It is now claimed that the rule in the

It is necessary to inform a defendant of his constitutional rights, under the Dorado rule, if the following elements are present:

(1) The investigation is no longer a general inquiry into an unsolved crime but suspicion has begun to focus on a particular suspect;

(2) The suspect is in custody;

(3) The authorities are carrying on a process of interrogation that lends itself to eliciting incriminating statements. (People v. Dorado, supra, 62 Cal.2d 338 , 353-354; People v. Stewart, 62 Cal.2d 571 , 576 [ 43 Cal.Rptr. 201 , 400 P.2d 97 ].)

Monteverde was not under arrest. The federal agents did not interrogate him for the purpose of eliciting a confession, but instead were attempting to secure his aid in conducting an investigation of criminal activity by others; the conversation was still a general investigation of the narcotics situation so far as these agents were concerned, and there was no unsolved federal crime. The evidence was admissible.

The judgment is reversed.

Brown (Gerald), P. J., and Coughlin, J., concurred.

A petition for a rehearing was denied September 10, 1965.