THE PEOPLE, Respondent, v. RAYMOND M. BRADDOCK, Appellant, 41 Cal. 2d 794

EDMONDS, J. Raymond M. Braddock was tried by the court without a jury upon an information charging him with four violations of

section 11163 of the Health and Safety Code. He has appealed from a judgment of conviction upon each count and from an order denying his motion for a new trial. Braddock asserts that a material variance exists between the information and the proof. Another point relied upon by him is that the evidence, as a matter of law, shows the commission of the offenses as a result of entrapment. The four counts are in substantially the same language, except for the date of the alleged offense.

Each of them charges that Braddock, a licensed doctor of osteopathy, “did willfully, unlawfully and feloniously prescribe a narcotic, to wit, methadon, to E. J. Mantler, a person not under his treatment for a pathology.” Mantler, an inspector for the Bureau of Narcotic Enforcement, was the principal witness for the People. The defendant did not testify and presented no evidence.

The record shows the following facts: In the company of one Grimes, a person addicted to the use of narcotics, Mantler went to Braddock ⅛ residence and was introduced to the doctor as “Roy Bates.” Mantler said to him, “I was hoping you could help me out with my wife.” Braddock asked, “What kind of medicine does your wife use?” Mantler replied, “Well, she has used lots of different kinds in the last couple of years.” Asked if he could bring her to the doctor, Mantler stated that it would not be convenient or practical.

They discussed other subjects for a few minutes, and then the doctor said, “Oh, well, let’s go inside and I’ll write her one.” The three men entered the house, where Braddock seated himself at a table and produced a prescription book. At that moment, one Thomas, known by Mantler to be a narcotic addict, appeared at the front door. Grimes left the room and engaged Thomas in conversation, and they disappeared from Mantler’s view. Braddock asked Mantler for his wife’s name and was given the fictitious one of “Julia M. Bates.” “You say she used methadon?” Braddock asked.

Mantler answered, “Yes, and demerol.” Braddock said, “I think methadon is better.” Told by Mantler that “shots” were preferable to tablets, the doctor wrote a prescription for 120 cubic centimeters of methadon to Julia M. Bates at a fictitious address supplied by Mantler. “She has T. B.?” he asked. Receiving an affirmative reply, he wrote those initials upon the prescription form. “How much do you want for the favor?” asked Mantler. Braddock replied, “How much have you got?” Mantler told him that he had $30. Braddock said, “I will take half of it.

That will give you enough to get along on.” Mantler gave him the money and departed. Mantler had the prescription filled, although with difficulty because of the quantity of the drug indicated. When he received the substance, he gave it to a chemist for analysis. Testifying as an expert, the chemist stated that methadon is a manufacturer’s name for amidone, a narcotic enumerated in

section 11001 of the Health and Safety Code, and included within the provisions of

section 11163. About 10 days later, Mantler again visited Braddock ’s home. After some preliminary conversation, he remarked, “My wife is not too good.” Braddock said, “What was it she is using, delaudid?” Mantler stated that it was methadon. The doctor said, “That is not as bad as some stuff.” He left the room and returned with a prescription book. ‘‘ Give me a run down on her again.

I can’t seem to remember it.” Mantler answered, “Well, she has been using it a couple of years now.” “Is she bad when she doesn’t have it?” asked the doctor. “She sure is,” Mantler replied. “She nearly runs me up the chimney.” Braddock made the notation, “T. B.” on the prescription form and asked Mantler what else was wrong with his wife. Mantler told him that she had an “old hysterectomy.” The doctor said, “Oh yes. How much of these are you using?” Mantler looked at Braddock and said, “Not me, Doc. I am not using any. I have got enough trouble.” Braddock remarked, “I never use anything but alcohol.

Morphine makes me very odd.” He then stated, “We won’t have any trouble as long as you keep this far apart.” Mantler assured him that he would try to do so. In payment, the doctor accepted $10, and said, ‘ ‘ I ought to see this patient some time. ’ ’ After further conversation, he continued, ‘ ‘ Give me a call some time when you are sure your wife will be home and I will drop in. I should see the patient.” About a week later, Mantler visited the doctor’s home for the third time. He entered the house and was invited to sit down. After writing a prescription to Julia M.

Bates for a quantity of methadon, he said, “You are kind of shortening up the time.” Mantler replied, “Well, Doc, it is not holding. It doesn’t last.” The doctor said, “I don’t want you to come here before ten days. ’ ’ He again advised Mantler to wait 10 days, and accepted $10 for the prescription. On his fourth visit, Mantler was accompanied by inspectors from the Bureau of Narcotic Enforcement and from the Board of Osteopathic Examiners. The other men waited outside. Producing a prescription book, the doctor asked him the date and how he was getting along.

Mantler answered that things were “pretty tough” and that he was having trouble “getting along with it.” He paid the doctor $10 after receiving the assurance that, if the prescriptions were kept at least 10 days apart, they would have no trouble. As be left the house, Mantler handed the prescription to Blanchard, one of the other officers. Blanchard entered, identified himself, and asked to see Braddock’s records. When he questioned Braddock as to the identity of Julia Bates he was told that she was an old patient who had a post pregnancy condition and a hysterectomy.

Braddock added that he had first contacted her when called to her home. Blanchard said, “Now, as a matter of fact, Doctor, have you ever seen Julia Bates?” The doctor admitted that he had not. Blanchard told Braddock that the person who had been obtaining prescriptions from him under the name of Julia Bates in fact was an inspector from the Bureau of .Narcotic Enforcement.

He asked the doctor why he had been writing false and fictitious prescriptions and was told, “Well, I am in financial straits and I need the money.” “Do you admit then that you have been violating the State and Federal Narcotic Laws in the sale of these narcotics?” he asked. Braddock replied, “Certainly, you have got the evidence on me; what is the use of denying it?” Thereafter, Mantler returned to the house, identified himself to the doctor, and showed him his credentials.

Braddock’s claim of a material variance is based upon an alleged conflict between the information, which charges that he prescribed narcotics to E. J. Mantler in violation of

section 11163 of the Health and Safety Code, and the evidence, which shows that the prescriptions were made out to Julia M. Bates, a fictitious person. An information is formally sufficient if, in substance, it charges the defendant with the commission of a public offense in words “sufficient to give the accused notice of the offense of which he is accused.” (Pen. Code, § 952.) To be material, a variance between the information and proof must be “of such a substantive character as to mislead the accused in preparing his defense, or . . . likely to place him in second jeopardy for the same offense.” (People v.

Williams, 27 Cal.2d 220, 226 [163 P.2d 692] ; People v. Amy, 100 Cal.App.2d 126, 127 [223 P.2d 69] ; People v. Moranda, 87 Cal.App.2d 703, 705 [197 P.2d 394].) In substance, the charges against Braddock are based upon transactions by which he sold narcotic prescriptions to Mantler, ostensibly for the use of another person, neither of them being under his treatment for a pathology. The true identity of the man supposed to be the husband of Julia M. Bates was made known to Braddock both by Inspector Blanchard and by Mantler himself, and Braddock was present when Mantler testified at the preliminary hearing.

That testimony included in detail the circumstances surrounding the writing of the prescriptions, with the dates and places of those events and the names used, and it was sufficient to notify him of the particular circumstances of the offense charged in the information. (People v. Roberts, 40 Cal.2d 483, 486 [254 P.2d 501].) Furthermore, by stipulation the evidence against Braddock was presented by a transcript of the proceedings upon the preliminary hearing with only a slight amount of additional testimony. Braddock could not have been misled. If Braddock should be tried again on a charge of violating

section 11163 for any of the acts which form the bases for the present prosecution, he may show former jeopardy by evidence produced in that proceeding. “It is well settled that on a plea of double jeopardy, extrinsic evidence is admissible on the trial to identify the crime of which the defendant has been convicted.” (People v. Williams, supra, 27 Cal.2d at p.226.) Braddock contends, however, that the evidence does not support the charge that he violated

section 11163 of the Health and Safety Code, in that the narcotics were prescribed for a fictitious person. Although the evidence shows a violation of

section 11165 of that code, a misdemeanor, the argument continues, a violation of

section 11163, which is a felony, requires that he “prescribe, administer, or furnish” the narcotic to an existing person. It is questionable whether an accused properly may be convicted of a violation of

section 11165 when the evidence does not show that he knew, or should have known, that the person for whom a prescription is written is nonexistent. But even if punishable under that section, it does not follow that such act may not also amount to a violation of

section 11163. To hold otherwise would be to permit a physician freely supplying narcotics for illegitimate purposes to prevent being convicted of a felony by the simple device of writing a prescription for a fictitious person. No such result could have been intended by the Legislature. The decision in People v. Whitlow, 113 Cal.App.2d 804 [249 P.2d 35], is not contrary to this conclusion. In that case, the defendant was accused of violating

section 11163, but upon motion the offenses charged were reduced to misdemeanors under

section 11165 as lesser included offenses. Upon appeal, the judgment of conviction was reversed upon the ground that a violation of

section 11163 does not necessarily include a violation of

section 11165. However, the court did not hold that conduct proscribed by the former

section may never be included within the prohibitions of the latter one. The apparent purpose of

section 11163 is to regulate the conduct of those persons who, in the practice of their professions, have access to legitimate sources of narcotics. The responsibility of such a practitioner is to prescribe narcotics for legitimate medical purposes. (Health & Saf.

Code, §11162.5.) “A physician may prescribe for, furnish to, or administer narcotics to his patient when the patient is suffering from a disease, ailment, injury, or infirmities attendant upon old age, other than narcotic addiction. “The physician shall prescribe, furnish, or administer narcotics only when in good faith he believes the disease, ailment, injury, or infirmity, requires such treatment.” (Health & Saf. Code, § 11330.) If the object of

section 11163 were to protect persons not under a physician’s treatment for a pathology from faulty diagnosis or improvident administration of narcotics, it might be material in a prosecution under that

section to show whether the person named in the prescription exists. But that is not the purpose of the statute. It seeks instead to prevent one having access to narcotics from making them available, other than for a legitimate purpose, to one under treatment for a pathology. From the evidence it might reasonably be inferred that Braddock intended that the narcotics go to the person identified to him as Julia M. Bates. Also tenable is the inference of his intention that the narcotics be used by Mantler.

Despite Mantler's assurances that he was not using the drugs, Braddock might have believed that he was the addict, as shown by his references to Mantler's “shortening up the time” between prescriptions and his advice to avoid more dangerous drugs. In either event, however, the conviction must be affirmed, since the gist of the offense was Braddock's action in writing a prescription for a narcotic for a person not under treatment for a pathology. Finally, Braddock contends that the evidence, as a matter of law, shows unlawful entrapment.

From the testimony of Mantler, he argues, it appears that the sales of prescriptions were made by him as the result of Mantler’s inducements. The crime originated in the mind of Mantler, says Braddock, and except for the officer’s persuasion, fraud and trickery, the offenses would not have been committed. The many decisions in this state which define the defense of entrapment were reviewed in People v. Lindsey, 91 Cal.App.2d 914 [205 P.2d 1114], and the law stated as follows: “Where the doing of

an act is a crime, regardless of the consent of anyone, the courts are agreed that if the criminal intent originates in the mind of the accused and the offense is completed, the fact that an opportunity was furnished, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him therefor, constitutes no defense. (Citations.) If the officer uses no more persuasion than is necessary to an ordinary sale, and the accused is ready and willing to make the sale, there is no entrapment.” (P. 917.) More recently it was held: “ It is not the entrapment of a criminal upon which the law frowns, hut the seduction of innocent people into a criminal career by its officers is what is condemned and will not be tolerated.

Where an accused has a preexisting criminal intent, the fact that when solicited by a decoy he committed a crime raises no inference of unlawful entrapment.” (People v. Schwartz, 109 Cal.App. 2d 450, 455 [240 P.2d 1024] ; quoted with approval in People v. Roberts, supra, at p. 489; accord People v. Makovsky, 3 Cal.2d 366, 369 [44 P.2d 536] ; People v. Branch, 119 Cal.App.2d 490, 494 [260 P.2d 27] ; People v. Alamillo, 113 Cal.App.2d 617, 620-621 [248 P.2d 421] ; People v.

Crawford, 105 Cal.App.2d 530, 537 [234 P.2d 181].) In the present case, although Mantler had stated that his fictitious wife used “lots of different kinds” of medicines, it was Braddock who suggested a prescription, and it was he who first mentioned a narcotic. Braddock's suggestion of ‘ ‘ T.B. ’ ’ came after the initial prescription had been written and without any previous description by Mantler of the nature of his wife’s illnesses.

Despite the complete lack of any suggestion by Mantler that the drugs were to he used for an improper purpose, Braddock advised him to wait a sufficient time between prescriptions to avoid detection. Moreover, when placed under arrest, Braddock stated that he had been selling prescriptions because he was in financial straits and needed the money. Entrapment “is a positive defense imposing upon an accused the burden of showing that he was induced to commit the act for which he is on trial” (People v. Schwartz, supra, at p. 455; People v. Grijalva, 48 Cal.App.2d 690, 694 [121 P.2d 32] ; People v.

Lee, 9 Cal.App.2d 99, 109 [48 P.2d 1003]). Where the record shows a conflict in the evidence, the judgment will not be reversed. (People v. Crawford, 105 Cal.App.2d 530, 537 [234 P.2d 181].) Braddock concedes that if the officer had asked to purchase a narcotic prescription for an unlawful purpose, there would be no basis for a defense of entrapment. He argues, however, that because Mantler made the purchases for a person supposedly ill, it must be concluded that the seller was persuaded to violate the law only because of sympathy.

However, a person who violates the law by selling narcotics to an evasive purchaser is as guilty as one who supplies an addict more forthright in his demands. That Braddock was not misled is demonstrated by his studied efforts, entirely voluntary, to give a cloak of legality to the transaction. The testimony, read as a whole, shows Braddock to have been a willing seller to whom Mantler presented an opportunity to sell narcotics. By the judgment of conviction and the order denying the motion for a new trial, the trial judge determined that Braddock had not been entrapped into making the sales.

For an appellate court to hold otherwise would require it to draw different inferences from the evidence which amply supports that determination. The judgment and the order denying defendant’s motion for a new trial are affirmed. Gibson, C. J., Shenk, J., Traynor, J., and Spence, J., concurred.

Section 11163 provides: “Except in the regular practice of his profession, no person shall prescribe, administer, or furnish, a narcotic to or for any person who is not under his treatment for a pathology or condition other than narcotic addiction, except as provided in this division. ’ ’

Section 11165 states: “No person shall issue a prescription that is false or fictitious in any respect.”