People v. Barraza

23 Cal.3d 675, 591 P.2d 947 (1979)

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Nature of the Case

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Facts

A police officer testified that D sold her a yellow balloon containing heroin for $25. D gave a different account of his interaction with the narcotics agent on that date, contradicting her testimony that a sale of heroin had occurred. As for a second sale of heroin on September 11, 1975; both the female agent and D testified that the agent tried to contact D by telephoning the Golden State Mental Health Detoxification Center, where he worked as a patient care technician, several times during the three weeks between the dates of the two alleged heroin sale transactions. The agent finally succeeded in speaking to D and asked him if he had 'anything'; D asked her to come to the detoxification center. D was hesitant to deal because 'he had done a lot of time in jail and he couldn't afford to go back to jail and . . . he had to be careful about what he was doing.' After she convinced D she 'wasn't a cop,' he gave her a note, to present to a woman named Stella, which read: 'Saw Cheryl. Give her a pair of pants [signed] Cal.' The agent concluded her testimony by stating that she then left D, used the note to introduce herself to the dealer Stella, and purchased an orange balloon containing heroin. D contends that he had asked her to come and see him because he was 'fed up with her' and wanted her to quit calling him at the hospital where he worked because he was afraid she would cause him to lose his job. He insisted he told her during their conversation that he did not have anything; that he had spent more than 23 years in prison, but now he had held a job at the detoxification center for four years, was on methadone and was clean, and wanted the agent to stop 'bugging' him. D claims that the agent persisted in her efforts and after more than an hour of conversation when she asked for a note to introduce her to a source of heroin he agreed to give her a note to 'get her off . . . [his] back.' D told her that he did not know if Stella had anything, and gave her a note which read: 'Saw Cheryl. If you have a pair of pants, let her have them.' The case was given to the jury. D was convicted of both counts. D appealed. The first count was overturned on an erroneous Allen charge instruction (mini-dynamite charge to a deadlocked jury). D urges that his conviction on the second count must be reversed because the trial court erred in failing to instruct the jury sua sponte on the defense of entrapment.