People v. Kern, 264 Cal. App. 2d 962 (Cal. Ct. App. 1968). · Go Syfert
People v. Kern, 264 Cal. App. 2d 962 (Cal. Ct. App. 1968). Cases Citing This Book View Copy Cite
96 citation events (12 in the last 25 years) across 12 distinct courts.
Treatment trajectory · 1969 → 2026 · click a year to view as-of
1969 1997 2026
Cited for
At page 965 Assessing reasonableness of search condition for probation10 citing cases. . . for the reformation and rehabilitation of the probationer. . . .” (Pen. Code, § 1203.1.) Imposition of the condition that defendant submit to a search by…opening of page *965 (no citing court says what it cites this page for) · 8 listed here
  • State of Iowa v. Justin Dean Short, 851 N.W.2d 474 (Iowa 2014).published 2 cites
    People v. Kern, 264 Cal. App. 2d 962, 965 (Ct. App. 1968); accord People v. Bravo, 738 P.2d 336, 342 (Cal. 1987); Himmage v. State, 496 P.2d 763 , 133 765 (Nev. 1972); State v. Benton, 695 N.E.2d 757 , 761–62 (Ohio 1998); see also Hale, 71…
  • DERICK B. v. Superior Court, 180 Cal. App. 4th 295 (Cal. Ct. App. 2009).published
    (People v. Kern (1968) 264 Cal.App.2d 962, 965 [ 71 Cal.Rptr. 105 ].) B.
  • People v. Reyes, 968 P.2d 445 (Cal. 1998).published
    Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant . . . .’” (People v. Mason, supra, 5 Cal.3d at p. 763, quoting People v. Kern (1968) 264 Cal.App.2d 9…
  • People v. Bauer, 211 Cal. App. 3d 937 (Cal. Ct. App. 1989).published 2 cites
    Information obtained . . . would afford a valuable measure of the effectiveness of the supervision given the defendant and his amenability to rehabilitation.’” (People v. Mason, supra, 5 Cal.3d 759, 763-764, quoting People v. Kern (1968) 2…
  • People v. Shimek, 205 Cal. App. 3d 340 (Cal. Ct. App. 1988).published
    (See People v. Burton (1981) 117 Cal.App.3d 382, 390 [ 172 Cal.Rptr. 632 , 19 A.L.R.4th 1243 ]; People v. Kern (1968) 264 Cal.App.2d 962, 965 [ 71 Cal.Rptr. 105 ].) Counsel contends Health and Safety Code section 11553 somehow prohibited t…
  • People v. Bravo, 738 P.2d 336 (Cal. 1987).published
    Neither the People nor appellant offered any evidence regarding the explanation, if any, given by the court or the probation officer at the time probation was granted, or of appellant’s understanding of the scope of the consent to search.…
  • People v. Mason, 488 P.2d 630 (Cal. 1971).published 4 cites
    Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant and *764 his amenability to rehabilitation." ( People v. Kern, 264 Cal. App.2d 962, 965 [ 71 Cal. Rpt…
  • People v. Figueroa, 268 Cal. App. 2d 721 (Cal. Ct. App. 1969).published
    Stephens, J., and Aiso, J., concurred. 1 It was stipulated that the officer was later proved to be correct. 2 The precise wording of the condition of probation is as follows: "Defendant consents to seaeh [sic] of person and property by any…
At page 964 Determining criminal intent and entrapment in drug sales5 citing casesv. Terry, 44 Cal.2d 371, 372-373 [282 P.2d 19]; People v. Rivers, 188 Cal.App.2d 189, 193 [10 Cal.Rptr. 309]); that defendant was not an innocent person…opening of page *964 (no citing court says what it cites this page for)
  • Freytes v. Superior Court, 60 Cal. App. 3d 958 (Cal. Ct. App. 1976).published
    (People v. Kern, 264 Cal.App.2d 962, 964-965 [ 71 Cal.Rptr. 105 ]; People v. Mason, 5 Cal.3d 759, 764-766 [ 97 Cal.Rptr. 302 , 488 P.2d 630 ], cert. den., 405 U.S. 1016 [ 31 L.Ed.2d 478 , 92 S.Ct. 1289 ]; People v. Turner, 54 Cal.App.3d 50…
  • People v. B.Y.R.D., 38 Cal. App. 3d 941 (Cal. Ct. App. 1974).published
    (Cf. People v. Kern, 264 Cal.App.2d 962, 964 [ 71 Cal.Rptr. 105 ].) Furthermore, the search of Byrd’s apartment was conducted pursuant to the same C.R.C. outpatient release condition quoted in footnote 4 in People v. Myers, supra, 6 Cal.3d…
  • People v. Bremmer, 30 Cal. App. 3d 1058 (Cal. Ct. App. 1973).published 2 cites
    Although the validity of such a general search order has been justified on the theory of waiver ( People v. Kern, 264 Cal. App.2d 962, 964-965 [ 71 Cal. Rptr. 105 ]) the probationer who purportedly waives his rights by accepting such a con…
  • In re Mannino, 14 Cal. App. 3d 953 (Cal. Ct. App. 1971).published 2 cites
    See also In re Allen (1969) 71 Cal.2d 388 , 390 and 393 [ 78 Cal.Rptr. 207 , 455 P.2d 143 ]; People v. Osslo (1958) 50 Cal.2d 75, 103 [ 323 P.2d 397 ]; People v. King (1968) 267 Cal.App.2d 814, 822 [ 73 Cal.Rptr. 440 ] [cert. den. (1970) 3…
  • People v. Fitzpatrick, 3 Cal. App. 3d 824 (Cal. Ct. App. 1970).published
    We cannot agree (People v. Kern, 264 Cal.App.2d 962, 964-965 [ 71 Cal.Rptr. 105 ]; see People v. Osslo, 50 Cal.2d 75 [ 323 P.2d 397 ], cert. den. 357 U.S. 907 [ 2 L.Ed.2d 1157 , 78 S.Ct. 1152 ]; People v. Williams, 247 Cal.App.2d 394 [ 55…
71 Cal. Rptr. at 107 Determining reasonableness of probation search conditions3 citing cases
  • Michael Stevens Owens v. Asa D. Kelley, Jr., 681 F.2d 1362 (11th Cir. 1982).published
    The court in People v. Kern, 264 Cal.App.2d 962, 965 , 71 Cal.Rptr. 105, 107 (1968), similarly wrote: 7 .
  • State v. Jeffers, 568 P.2d 1090 (Ariz. Ct. App. 1977).published
    As stated in People v. Kern, 264 Cal. App.2d 962 , 71 Cal.Rptr. 105, 107 (1968), “Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant and his amenability…
  • United States v. Virginia Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975).published 4 cites
    See, e. g., People v. Kern, 264 Cal.App.2d 962 , 71 Cal.Rptr. 105, 107 (1968); State v. White, 264 N.C. 600 , 142 S.E.2d 153 (1965). 87 Consent by the defendant, however, is more likely to be nominal than real.
At page 975 cited at this page1 citing case
  • People v. Superior Court (Stevens), 528 P.2d 41 (Cal. 1974).published
    Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant and his amenability to rehabilitation.’ ” (Id., at pp. 763-764, quoting from People v. Kern, 264 Cal.…
Other citing cases1 with no pin cite or quoted language on record
The PEOPLE, Plaintiff and Respondent,
v.
BRUCE CARL KERN, Defendant and Appellant
Crim. 3216.
California Court of Appeal.
Aug 15, 1968.
Published opinion
264 Cal. App. 2d 962
1968 Cal. App. LEXIS 2169
Millikan, Montgomery, Franciscus & Olafson and Mortimer G. Franciscus for Defendant and Appellant., Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Walter R. Jones, Deputy Attorney General, for Plaintiff and Respondent.
Coughlin.
Cited by 43 opinions  |  Published
COUGHLIN, Acting P. J.

Defendant was convicted of the unlawful sale of Lysergic Acid (LSD); was granted probation; and appeals, contending (1) the evidence establishes entrapment as a matter of law; and (2) a condition of probation that he submit to search and seizure at any time by any law enforcement officer is unreasonable.

The sale occurred on July 19, 1967; was arranged by a “confidential informant” named McNerney, acting on direction of an undercover agent named Mooney; and was made to the latter.

Mooney received information from an undisclosed informant that a number of named individuals living at a designated address had “approximately 300 tablets of LSD for sale.” McNerney indicated he knew some of the individuals; upon direction from Mooney went to the designated address ; met defendant at this place; told the latter he knew somebody who wanted to buy LSD; and received the reply defendant did not have any LSD to sell but he knew somebody who had some. Thereafter McNerney again contacted defendant. It was arranged between them that either defendant or someone else would meet McNerney at a designated time and place to effect a sale. The contact was made as planned. Mooney was present; told defendant he wanted to purchase some LSD; and received a reply he, defendant had 100 he would sell for $250. Mooney asked if the LSD was any good and defendant told him “he had tried it, and it was good.” Thereupon defendant left, saying “I’ll go back to the house. I believe my partner has them counted out now”; returned with the LSD; delivered it to Mooney; and was paid $250. Mooney told defendant if the LSD was good he wanted to buy more of it but would not pay the same price. Defendant told him the price would be cheaper next time. At this time Mooney asked defendant if he could purchase some marijuana. The latter replied he had a friend coming into town later on that day from whom he would be able to obtain some marijuana.

The defense of entrapment is not established as a matter of law where the evidence warrants the inference the defendant had a pre-existing intent to sell dangerous drugs (People v. Nunn, 46 Cal.2d 460, 471 [296 P.2d 813]; People [*964] v. Terry, 44 Cal.2d 371, 372-373 [282 P.2d 19]; People v. Rivers, 188 Cal.App.2d 189, 193 [10 Cal.Rptr. 309]); that defendant was not an innocent person seduced into the commission of the offense by a government agent (People v. Rivers, supra, 188 Cal.App.2d 189, 192-193; People v. Chavez, 184 Cal.App.2d 741, 743 [7 Cal.Rptr. 729]; People v. Schwartz, 109 Cal.App.2d 450, 455 [240 P.2d 1024]); and any persuasion or inducement used to effect the sale was no more than necessary to effect an ordinary sale. (People v. Benford, 53 Cal.2d 1, 10 [345 P.2d 928]; People v. Braddock, 41 Cal.2d 794, 802 [264 P.2d 521]; People v. Makovsky, 3 Cal.2d 366, 370 [44 P.2d 536]; People v. Barone, 250 Cal.App.2d 776, 781-782 [58 Cal.Rptr. 783]; People v. DeJean, 249 Cal.App.2d 220, 228-229 [57 Cal.Rptr. 211]; People v. Munoz, 198 Cal.App.2d 649, 656 [18 Cal.Rptr. 82].)

In the case at bench an inference defendant had a preexisting criminal intent is supported by evidence showing (1) he readily accepted McNerney’s suggestion to sell LSD to a third person whom he did not know; (2) he was not persuaded, deceived or coerced to make the sale; (3) he had a source of supply; (4) he lived with a seller; (5) he associated with people who were users; (6) he fixed the price which was in accord with that received by those engaged in the. illegal sale of LSD; and (7) he had a source of and a. willingness to sell marijuana. (People v. Sweet, 257 Cal.App.2d 167, 170 [65 Cal.Rpr. 31]; People v. Estrada, 211 Cal.App.2d 722, 726 [27 Cal.Rptr. 605]; People v. Munoz, supra, 198 Cal.App.2d 649, 657.)

..The evidence shows MeNerney did no more than suggest to .defendant, a suspected law violator, that the latter sell LSD to a third person, and defendant acted on this suggestion. These circumstances do not establish entrapment. (People v. Benford, supra, 53 Cal.2d 1, 10, 13; People v. Sweet, supra, 257 Cal.App.2d 161, 170; People v. Schwartz, supra, 109 Cal.App.2d 450, 455.)

Defendant was granted probation upon condition, among others, that he use no narcotics; associate with no known narcotic users; violate no laws; and submit his person and property to search and seizure at any, time of the day or night by any law enforcement officer with or without - a -warrant. He -. contends ■ the latter condition is unreasonable and should-be.strieken. . . -y ■ -.

... - In- granting probation a .court may .impose Such ■“ reasonar ble conditions, as it may determine are fitting and proper[*965] . . . for the reformation and rehabilitation of the probationer. . . .” (Pen. Code, § 1203.1.)

Imposition of the condition that defendant submit to a search by law enforcement officers at any time as a condition to probation does not present a constitutional question. (People v. Williams, 247 Cal.App.2d 394, 407 [55 Cal.Rptr. 550].) Defendant was at liberty to refuse probation with the attached condition. (People v. Osslo, 50 Cal.2d 75, 103 [323 P.2d 397].) The issue is whether the condition is reasonable. A probationer is subject to the supervision of the trial court. (In re Osslo, 51 Cal.2d 371, 380 [334 P.2d 1].) The condition of probation that defendant consent to a search of his person by a law enforcement officer without a search warrant is a supervisorial procedure related to his reformation and rehabilitation in light of the offense of which he was convicted. With knowledge he may be subject to a search by law enforcement officers at any time, he will be less inclined to have narcotics or dangerous drugs in his possession. The purpose of an unexpected, unprovoked search of defendant is to ascertain whether he is complying with his terms of probation; to determine not only whether he disobeys the law, but also whether he obeys the law. Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant and his amenability to rehabilitation.

Defendant argues the condition is unreasonable because it permits a search by any law enforcement officer and subjects him to the possibility of harassment. Should law enforcement officers needlessly subject defendant to search, the trial court has authority to amend its order to meet the situation. The existence of this authority is sufficient guard against the likelihood of such harassment.

The judgment is affirmed.

Whelan, J., and Lazar, J. pro tem., * concurred.

*

Assigned by the Chairman of the Judicial Council.