Opinion
THE COURT.
An information charged defendant with selling lysergic acid diethylamine (hereinafter LSD) in violation of Health and Safety Code section 11912. At the trial the court instructed the jury on the lesser included offence of possession of LSD (Health & Saf. Code, § 11910). The jury found defendant guilty of sale and possession of LSD. Defendant waived application for probation, and the court sentenced him to the state prison for the term prescribed by law for the sale and to one year in the county jail for possession. It suspended execution of sentence on the possession conviction pending completion of service of sentence on the sale conviction, after which the suspension would become permanent. Defendant appeals.
During June 1967, Agents David Fuentes and Robert L. Mooney of [759]*759the Bureau of Narcotic Enforcement were working in the Orange County area with Robert J. McNerney, a police informant. At 4:35 p.m. on June 13, 1967, the agents received a~phone call from McNerney concerning a sale of drugs. The agents went to a shopping center in Capistrano Beach. Shortly after they arrived, McNerney drove up and parked beside Agent Fuentes. Defendant was a passenger in McNerney’s car. Agent Mooney was nearby. Agent Fuentes left his car and went over to McNerney. He talked briefly with McNerney and then walked to defendant’s side of the car. After a brief conversation, defendant handed 20 tablets to Agent Fuentes, who dropped $80 in defendant’s lap. The tablets contained usable amounts of LSD.
Defendant took the stand in his own defense. He did not deny the sale but relied on the defense of entrapment. He testified that at the time of the sale he was 18 years old. He lived with his grandmother in Fontana, where he worked for the telephone company. He had stopped at a cafe in San Clemente while on his way to visit his mother in Carlsbad. Defendant had previously lived in San Clemente where he had gone to high school. McNerney was a friend and classmate who had lived near him in San Clemente. Leaving the cafe, defendant walked over to the pier where he met McNerney about 3 p.m. McNerney asked if defendant knew where he could buy LSD for a friend. McNerney explained that his friend asked him to obtain LSD and that he had been unable to do so. Defendant replied that he had none and did not know where to get any. McNerney said he was upset by not being able to buy any for his friend, who needed the drug badly.
A short time later McNerney returned and asked if defendant was certain he knew of no source of LSD. Defendant admitted having some tablets but said they were not for sale. McNerney then suggested that defendant sell him a few so that his friend would let him alone. McNerney appealed to their friendship, stating that if the roles were reversed he would help defendant. Defendant again refused, saying the tablets were for his own use, and the two parted.
As defendant was walking up the pier, McNerney approached him a third-time. McNerney asked how many tablets defendant had, and defendant said .20. McNerney stated that his friend needed only a-few and would pay well. When McNerney again appealed to their past friendship and said that he would sell defendant the tablets if their positions were reversed, defendant agreed to sell all 20. McNerney said the friend would pay $80.
The two then drove a short distance in McNerney’s car to the location where defendant had hidden the tablets. They picked up the LSD and [760]*760then drove to the shopping center where they met Agent Fuentes. After a short conversation with McNemey, Fuentes asked defendant if he had the tablets. Defendant said “Yes,” and Fuentes said, “Give them to me.” Defendant handed the tablets to Fuentes, who dropped the $80 in his lap.
Fuentes testified that defendant said he had 20 tablets and wanted $80 for them and that defendant was not hesitant in making the sale. Defendant testified that he knew it was a crime to possess LSD and that he had the tablets for two months before the sale.
Defendant contends that the evidence establishes entrapment as a matter of law. The jury, however, was not required to believe his testimony that he was entrapped (People v. Benford (1959) 53 Cal.2d 1, 5 [345 P.2d 928]), and the prosecution evidence does not establish entrapment as a matter of law. “Entrapment as a matter of. law is not established where there is any substantial evidence in the record from which it may be inferred that the criminal intent to commit the particular offense originated in the mind .of the accused.” (People v. Terry (1955) 44 Cal.2d 371, 372-373 [282 P.2d 19].) From the evidence that defendant sold 20 tablets containing LSD to Fuentes and that defendant had the tablets in his possession for two months the jury could infer that the intention to sell the tablets originated in defendant’s mind (see People v. Diaz (1962) 206 Cal.App.2d 651, 671 [24 Cal.Rptr. 367]; disapproved on other grounds in People v. Perez (1965) 62 Cal.2d 769, 776, fn. 2 [44 Cal.Rptr. 326, 401 P.2d 934]; 19 Hastings L.J. 825, 844). Moreover, defendant’s failure to call McNemey as a witness supports an inference that his testimony would not be favorable to defendant. (Evid. Code, § 412.)
Defendant also contends that the recent enactment of the Evidence Code overturns the holding in People v. Valverde (1966) 246 Cal.App.2d 318 [54 Cal.Rptr. 528], that the defendant has the burden of proving entrapment by a preponderance of the evidence. Evidence Code section 5011 subjects statutory burdens of proof in criminal cases to Penal Code section 1096,2 which requires the prosecution to establish the defendant’s guilt beyond a reasonable doubt. The defendant’s burden to prove entrapment, however, is not subject to Penal Code section 1096, for the defense of entrapment in California is not based- on the defendant’s innocence. The courts have created the defense as a control on illegal police conduct “out of regard for [the court’s] own dignity, and in the exercise of its [761]*761power and the performance of its duty to formulate and apply proper standards for judicial enforcement of the criminal law.” (People v. Benford, supra, 53 Cal.2d 1, 9.) Moreover, this court acknowledged the continuing validity of the rule of the Valverde case in In re Dennis M. (1969) 70 Cal.2d 444, 457, fn. 10 [75 Cal.Rptr. 1, 450 P.2d 296].3
Defendant’s contention that the trial court did not instruct the jury that a third party informer is to be treated as an agent of law enforcement officers for purposes of entrapment is likewise without merit: Th^¡ trial court properly instructed the jury that if the crime was suggested bj another person, whether or not a law enforcement officer, for the purpose of entrapment, the defendant is not criminally liable.4
Defendant contends that the prosecution’s failure to call McNerney as a witness denied him his right to confront his accusers.
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Opinion
THE COURT.
An information charged defendant with selling lysergic acid diethylamine (hereinafter LSD) in violation of Health and Safety Code section 11912. At the trial the court instructed the jury on the lesser included offence of possession of LSD (Health & Saf. Code, § 11910). The jury found defendant guilty of sale and possession of LSD. Defendant waived application for probation, and the court sentenced him to the state prison for the term prescribed by law for the sale and to one year in the county jail for possession. It suspended execution of sentence on the possession conviction pending completion of service of sentence on the sale conviction, after which the suspension would become permanent. Defendant appeals.
During June 1967, Agents David Fuentes and Robert L. Mooney of [759]*759the Bureau of Narcotic Enforcement were working in the Orange County area with Robert J. McNerney, a police informant. At 4:35 p.m. on June 13, 1967, the agents received a~phone call from McNerney concerning a sale of drugs. The agents went to a shopping center in Capistrano Beach. Shortly after they arrived, McNerney drove up and parked beside Agent Fuentes. Defendant was a passenger in McNerney’s car. Agent Mooney was nearby. Agent Fuentes left his car and went over to McNerney. He talked briefly with McNerney and then walked to defendant’s side of the car. After a brief conversation, defendant handed 20 tablets to Agent Fuentes, who dropped $80 in defendant’s lap. The tablets contained usable amounts of LSD.
Defendant took the stand in his own defense. He did not deny the sale but relied on the defense of entrapment. He testified that at the time of the sale he was 18 years old. He lived with his grandmother in Fontana, where he worked for the telephone company. He had stopped at a cafe in San Clemente while on his way to visit his mother in Carlsbad. Defendant had previously lived in San Clemente where he had gone to high school. McNerney was a friend and classmate who had lived near him in San Clemente. Leaving the cafe, defendant walked over to the pier where he met McNerney about 3 p.m. McNerney asked if defendant knew where he could buy LSD for a friend. McNerney explained that his friend asked him to obtain LSD and that he had been unable to do so. Defendant replied that he had none and did not know where to get any. McNerney said he was upset by not being able to buy any for his friend, who needed the drug badly.
A short time later McNerney returned and asked if defendant was certain he knew of no source of LSD. Defendant admitted having some tablets but said they were not for sale. McNerney then suggested that defendant sell him a few so that his friend would let him alone. McNerney appealed to their friendship, stating that if the roles were reversed he would help defendant. Defendant again refused, saying the tablets were for his own use, and the two parted.
As defendant was walking up the pier, McNerney approached him a third-time. McNerney asked how many tablets defendant had, and defendant said .20. McNerney stated that his friend needed only a-few and would pay well. When McNerney again appealed to their past friendship and said that he would sell defendant the tablets if their positions were reversed, defendant agreed to sell all 20. McNerney said the friend would pay $80.
The two then drove a short distance in McNerney’s car to the location where defendant had hidden the tablets. They picked up the LSD and [760]*760then drove to the shopping center where they met Agent Fuentes. After a short conversation with McNemey, Fuentes asked defendant if he had the tablets. Defendant said “Yes,” and Fuentes said, “Give them to me.” Defendant handed the tablets to Fuentes, who dropped the $80 in his lap.
Fuentes testified that defendant said he had 20 tablets and wanted $80 for them and that defendant was not hesitant in making the sale. Defendant testified that he knew it was a crime to possess LSD and that he had the tablets for two months before the sale.
Defendant contends that the evidence establishes entrapment as a matter of law. The jury, however, was not required to believe his testimony that he was entrapped (People v. Benford (1959) 53 Cal.2d 1, 5 [345 P.2d 928]), and the prosecution evidence does not establish entrapment as a matter of law. “Entrapment as a matter of. law is not established where there is any substantial evidence in the record from which it may be inferred that the criminal intent to commit the particular offense originated in the mind .of the accused.” (People v. Terry (1955) 44 Cal.2d 371, 372-373 [282 P.2d 19].) From the evidence that defendant sold 20 tablets containing LSD to Fuentes and that defendant had the tablets in his possession for two months the jury could infer that the intention to sell the tablets originated in defendant’s mind (see People v. Diaz (1962) 206 Cal.App.2d 651, 671 [24 Cal.Rptr. 367]; disapproved on other grounds in People v. Perez (1965) 62 Cal.2d 769, 776, fn. 2 [44 Cal.Rptr. 326, 401 P.2d 934]; 19 Hastings L.J. 825, 844). Moreover, defendant’s failure to call McNemey as a witness supports an inference that his testimony would not be favorable to defendant. (Evid. Code, § 412.)
Defendant also contends that the recent enactment of the Evidence Code overturns the holding in People v. Valverde (1966) 246 Cal.App.2d 318 [54 Cal.Rptr. 528], that the defendant has the burden of proving entrapment by a preponderance of the evidence. Evidence Code section 5011 subjects statutory burdens of proof in criminal cases to Penal Code section 1096,2 which requires the prosecution to establish the defendant’s guilt beyond a reasonable doubt. The defendant’s burden to prove entrapment, however, is not subject to Penal Code section 1096, for the defense of entrapment in California is not based- on the defendant’s innocence. The courts have created the defense as a control on illegal police conduct “out of regard for [the court’s] own dignity, and in the exercise of its [761]*761power and the performance of its duty to formulate and apply proper standards for judicial enforcement of the criminal law.” (People v. Benford, supra, 53 Cal.2d 1, 9.) Moreover, this court acknowledged the continuing validity of the rule of the Valverde case in In re Dennis M. (1969) 70 Cal.2d 444, 457, fn. 10 [75 Cal.Rptr. 1, 450 P.2d 296].3
Defendant’s contention that the trial court did not instruct the jury that a third party informer is to be treated as an agent of law enforcement officers for purposes of entrapment is likewise without merit: Th^¡ trial court properly instructed the jury that if the crime was suggested bj another person, whether or not a law enforcement officer, for the purpose of entrapment, the defendant is not criminally liable.4
Defendant contends that the prosecution’s failure to call McNerney as a witness denied him his right to confront his accusers. The People are not required to call any particular witness so long as the material evidence relating to the charge against defendant is produced in a manner according him a fair trial. (People v. Kiihoa (1960) 53 Cal.2d 748, 752 [3 Cal.Rptr. 1, 349 P.2d 673].) The failure of the People to call an informer may manifest an intention to suppress material evidence going to defendant’s guilt or innocence. To prevent such an abuse the People, when asked on cross-examination, must disclose the identity of the informer or incur a dismissal. (People v. Perez (1965) 62 Cal.2d 769, 773 [44 Cal.Rptr. 326, 401 P.2d 934].) In the present case, however, defendant knew the informer, who was a participant in the sale. Defendant was present throughout the series of events involving the informer, knew what evidence would be available through the informer’s testimony, and [762]*762could have called him as a witness. It is manifest that the People’s failure to call McNerney cannot be characterized as a suppression of evidence.
Defendant contends that the prosecuting attorney committed prejudicial misconduct by referring to marijuana during the cross-examination of defendant. From the context of the questions, however, it is apparent that these references were merely slips of the tongue and that the prosecuting attorney meant to ask about LSD. A prompt objection would have dispelled any possible confusion. No miscarriage of justice appears. (See People v. Watson (1956) 46 Cal.2d 818, 835 [299 P.2d 243].)
Defendant also contends that the trial court erred in admitting testimony that McNerney was perhaps a perjurer. Defendant does not explain how this testimony could have prejudiced him. Furthermore, the testimony was given by a defense witness on direct examination. Since defendant is responsible for the introduction of the evidence, he cannot complain on appeal that its admission was error. (See Witkin, Cal. Evidence (2d ed. 1966) § 1286, p. 1189.)
Defendant contends that the trial court erred in failing to exercise its discretion to consider whether defendant should be referred to the California Youth Authority. Defendant waived application for probation and did not request referral to the Youth Authority. In such cases, however, a trial court must on its own motion consider the referral of eligible defendants. (People v. Sparks (1968) 262 Cal.App.2d 597, 600 [68 Cal.Rptr. 909].) On this matter the record is silent.
It is presumed that official duty has been regularly performed. (Evid. Code, § 664.) The record shows that defendant was 18 years old and shortly before trial had pleaded guilty to possession of marijuana. (Health & Saf. Code, § 11530.) Although no probation report was prepared, the trial court had sufficient information upon which to exercise its discretion. In the absence of any showing to the contrary, we must presume that it did so. (People v. Sparks, supra, 262 Cal.App.2d 597, 600-601.)
The trial court instructed the jury on the lesser included offense of possession of LSD. The last paragraph of its instruction read: “If the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, but you entertain a reasonable doubt as to which offense the defendant is guilty, it is your duty to find him guilty only of the lesser offense.” (CALJIC No. 115 (Revised).) The jury was not instructed that it should return only one verdict, and it found defendant guilty of both sale and possession of LSD.
[763]*763Conviction of a lesser included offense is an implied acquittal of the offense charged when the jury returns a verdict of guilty of only the lesser included offense. (Gomez v. Superior Court (1958) 50 Cal.2d 640, 645 [328 P.2d 976].) When the jury expressly finds defendant guilty of both the greater and lesser offense, however, there is no implied acquittal of the greater offense. If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed. (People v. Tideman (1962) 57 Cal.2d 574, 581-582 [21 Cal.Rptr. 207, 370 P.2d 1007]; People v. Greer (1947) 30 Cal.2d 589, 599 [184 P.2d 512].)
The judgment of conviction of violation of Health and Safety Code section 11910 is reversed. The judgment of conviction of violation of Health and Safety Code section 11912 is affirmed.