People v. Jackson ( 1963 )

TRAYNOR, J.

Defendant was convicted by a jury of offering to sell narcotics in violation of section 11501 of the Health and Safety Code. Defendant appeals from the judgment of conviction and from the order denying his motion for a new trial.¹

The evidence shows that defendant offered to sell heroin to Officer Lawrence, an undercover narcotics agent, that Officer Lawrence gave defendant $20, and that defendant did not deliver heroin or anything else.

Defendant contends that section 11501 does not encompass an offer to sell a narcotic when nothing is delivered. It is settled, however, that delivery is not an essential element of the offense of offering to sell a narcotic. (People v. Brown, 55 Cal.2d 64, 68 [9 Cal.Rptr. 816, 357 P.2d 1072] ; People v. Shepherd, 200 Cal.App.2d 306, 311 [19 Cal.Rptr. 234]; People v. Blake, 179 Cal.App.2d 246, 253-254 [3 Cal.Rptr. 749].)

Defendant also contends that the trial court erred in giving the following instruction on specific intent: “The crime of offering to sell a narcotic consists of two elements, namely: the specific intent to make an offer to sell a narcotic and a direct act done toward the making or expression of the offer to another. . . . [T]he act of offering to sell a narcotic would constitute a crime where it clearly indicates a certain intent to make an offer to sell the narcotic and in itself is an immediate step in the present execution of the criminal design. It is not an element of the offense with which the defendant is charged and therefore it is not necessary for the prosecution to prove that the defendants ever intended to perform the offered act. It is no defense to the crime charged herein that there exist in the mind of the person who makes an offer to sell heroin an unexpressed intention never to perform the offered act. ’ ’

This instruction is erroneous. It states that the only intent required is the intent to make an offer and that an intent to make a sale is not necessary. In People v. Brown, 55 Cal.2d 64, 68 [9 Cal.Rptr. 816, 357 P.2d 1072], we held 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.” Persons who offer to sell narcotics with no intention of performing are not engaged in narcotics traffic. Their behavior is not materially different from that of other ¹‘ bunco ’ ’ offenders and is not subject to the severe penalties imposed by section 11501. (Compare Pen. Code, §§ 532, 490.) People v. Shepherd, 200 Cal.App.2d 306 [19 Cal.Rptr. 234], and People v. Blake, 179 Cal.App.2d 246 [3 Cal.Rptr. 749], are disapproved insofar as they approve instructions inconsistent with this opinion.

The only evidence at the trial was the testimony of Officer Lawrence. He testified that defendant took the $20 and left the bar where they had met, ostensibly to go across the street and “get the stuff.” Defendant returned in 10 minutes and said that he had made contact. He left again, and when he had not returned after an hour, Officer Lawrence set out to find him. When he found defendant across the street from the bar, defendant said he did not know Officer Lawrence and walked away. When Officer Lawrence followed and attempted to talk to him, defendant cursed the officer, went into a restaurant and emerged a few minutes later brandishing a 14-inch butcher knife. Defendant then walked away, and Officer Lawrence did not attempt to follow him. The jury could reasonably conclude from this evidence that defendant's offer to sell narcotics was made without the intent to perform. The error in the instruction was therefore prejudicial.

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

Gibson, C. J., Peters, J., Tobriner, J., and Peek, J., concurred.

1 Notice of appeal was filed before the effective date of the legislation making such an order nonappealable. (Stats. 1961, ch. 850, § 5.)