The opinion
KAUS, J.
Dissenting in part.
I entirely agree that count II must be affirmed. To hold otherwise would enable the defendant to acquire a vested right in the magistrate’s errors by stipulating that the evidence at the preliminary hearing may be considered by the trial judge.
Unfortunately I cannot agree that the evidence concerning the transaction of June 13 may legitimately be considered with respect to count I.
There can be no question that the sale of June 13 throws a great deal of light on the events of June 12, too much, in fact. My problem is, however, that the chain of inferences which causes me to feel that there was more than adequate logically *616 relevant evidence to support the finding that defendant did make a sale on June 12, inevitably contains one essential but forbidden thought, namely that defendant sold on June 12 because the sale of June 13 shows his ready disposition to make sales of heroin.
The rule concerning the admissibility of other crimes has been stated in various ways: as a general rule of exclusion, subject to a number of exceptions or as a rule of admissibility for all purposes except where the only relevance to the crime charged is that the other crimes disclose a disposition or propensity to commit acts such as the one under investigation. (Stone, The Rule of Exclusion of Similar Fact Evidence: England, 46 Harv.L.Rev. 965; Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 988, Comment 7 U.C.L.A. L.Rev. 463; Witkin, Cal. Evidence (2d ed. 1966) §341, p. 300.) For the purpose of my discussion I cheerfully accept the broad rule of admissibility, which appears to be the one chosen by the framers of the Evidence Code. (Evid. Code, §1101.)
Although it would be foolish to attempt to list all possible purposes for which evidence of other criminal acts may be legitimately admitted, they fall into two groups: 1. Where such evidence is admitted to give color to an act of defendant concerning which there is other evidence before the court; and 2. where such evidence is used to prove the identity of defendant as the perpetrator of the act.
It is obvious that we are concerned with a problem of the second type. The cases cited in the majority opinion hold that the evidence relating to June 12 is insufficient to prove that a sale took place when Orosco lost sight of defendant and Brown. The June 13 evidence is therefore not used just to show, for example, that defendant had knowledge of the narcotic nature of a substance sold to Brown; it is used to prove that a sale took place, in other words to prove the identity of the person from whom Brown at some time or other obtained the narcotic.
There are, of course, several perfectly proper methods by which evidence of other crimes can be used to prove the identity of the person who committed the crime under investigation. One of the standard ways in which such evidence may provide a clue to identity is by showing that the other crime furnished the motive for the later one. (People v. Hall, 200 Cal. 166,172-173 [ 30 P.2d 23, 996 ].) Such is not the ease here. Another common train of thought by which evidence of other *617 crimes is used to throw light on identity, is proof that the other crimes and the one in question formed part of one “scheme or design.” 1 A classic case is People v. Glass, 158 Cal. 650, 661-665 [ 112 P. 281 ]. 2 Granted that if the other crimes disclose a larger scheme of which the one in question is but a part it is perfectly permissible to show such other crimes both before and after, I see no such larger plan in one isolated sale and admitted willingness to make future sales, except by reasoning that defendant was disposed to make a living by selling heroin.
Finally identity is often proved by showing a distinct mode of operation, which permits the inference that the same person committed both crimes. I do not believe that there is anything sufficiently distinctive about the transaction of June 13 that enables us to say that when defendant and Brown disappeared from Orosco’s view on June 12 a sale of heroin took place. In fact the two transactions differ in significant detail. On June 13 defendant did not hesitate to deal with Orosco directly, he had to go “up the hill” to get the heroin and was gone for about 10 or 15 minutes. On June 12, according to hearsay testimony introduced by the People defendant refused to deal with Orosco and the suggested sale took place during an absence of between three to five minutes. The quantity sold on June 13 was 10 times as large as the amount given by Brown to Orosco on June 12. Finally, on June 13, Ollado indicated that he did not want to make sales of the type involved in count I.
*618 There are perhaps other ways in which evidence of other crimes can prove identity, but none come to mind nor are they suggested in the court’s opinion. With the greatest respect I suggest that the fundamental fallacy of that opinion is that it has taken the often repeated statement that evidence of other crimes is admissible to prove identity (e.g., People v. Lopez, 60 Cal.2d 223, 250 [ 32 Cal.Rptr. 424 , 384 P.2d 16 ]) too literally, and applied it to a situation where the only logical process of reasoning includes reasoning from disposition. One eminent writer in the field has said: “It is believed, however, that a need for proving identity is not ordinarily of itself a ticket of admission, but that the evidence will usually follow, as an intermediate channel, some one or more of the other theories here listed. Probably the second (larger plan), the third (distinctive device) and the sixth (motive) are most often resorted to for this purpose.” (McCormick on Evidence, § 157, p. 330.) Moreover I believe that the court’s opinion, on its very face, demonstrates that it reasoned from disposition. It is said that the trial court’s finding as to count I “was reached by weighing the probabilities to determine whether it was more reasonable to infer that the narcotic was furnished by Ollado, who had heroin and was willing to sell it, than by Brown who was not proved to have any heroin of his own or to have been engaged in selling it for others.” (Italics added.) I agree that this is a perfectly reasonable and logical deduction from the facts, but one which, I submit, is not permissible.
I must, of course, admit that there are several cases in the books which are irreconcilable with my views. While I could distinguish many of them, such as, for example, People v. Griffin, 209 Cal.App.2d 557, 563 [ 26 Cal.Rptr. 311 ] by arguing that in spite of broad general language, the evidence of other sales was properly admitted to prove knowledge, there is very little I could do with cases like People v. Marshall, 226 Cal. App.2d 243, 244-245 [ 37 Cal.Rptr. 887 ] and People v. Lewis, 208 Cal.App.2d 422, 424-425 [ 25 Cal.Rptr. 298 ], If those were the only authorities in point, I would not dissent but reluctantly concur. However, I do not think the court could do any better with People v. Baskett, 237 Cal.App.2d 712, 717 [ 47 Cal.Rptr. 274 ]; People v. Chambers, 231 Cal.App.2d 23, 31 [ 41 Cal.Rptr. 551 ] and People v. Garcia, 201 Cal.App.2d 589, 593 [ 20 Cal.Rptr. 242 ] than I can with Marshall and Lewis . Finally I would point to a series of cases dealing with illegal sales of alcoholic beverages where evidence of other sales was held inadmissible. These cases are People v. Pagni, 67 Cal. *619 App. 303, 307 [ 227 P. 972 ]; People v. Smith, 64 Cal.App. 344, 345-347 [ 221 P. 405 ]; People v. Amort, 60 Cal.App. 29, 36 [ 212 P. 50 ]; People v. Morales, 45 Cal.App. 553, 554-556 [ 188 P. 58 ]; People v. Dial, 28 Cal.App. 704, 706-707 [ 153 P. 970 ] and People v. Clark, 28 Cal.App. 670, 674-675 [ 153 P. 719 ], In People v. Smith, supra, such evidence was condemned as follows: “It is a dangerous practice and one which is not in keeping with American ideals to charge a man with one offense and on his trial therefor either to prove, or offer to prove, that he has at other times and places committed offenses of a nature similar to the one of which he is accused.” (Ibid., p. 346.) I am told by those who remember, that some of the offenses involved in these liquor cases were not deemed to be very reprehensible at the time. On the other hand, we all despise the heroin peddler. I do not see, however, that one’s attitude toward the particular crime involved should govern the admissibility of evidence to prove it. I would therefore reverse the judgment as far as count I is concerned.
‘‘Design” is used here synonymously with “plan.” The word is also used interchangeably with “pattern.” It seems to have become our habit to use the phrase “mode of operation” or “modus operand!' when discussing the ‘ ‘ pattern ” of a crime. The different meanings of the word ‘ ‘ design ’ ’ were adverted to by the Supreme Court in People v. Cavanaugh, 44 Cal.2d 252, 265-266 [ 282 P.2d 53 ] in the following passage; “In this connection it should be observed that while it is often said that evidence of similar crimes is relevant to show plan, scheme, system or design, this is not to be understood as meaning that such evidence is admissible only if it tends to show premeditated, calculated design; it also is relevant and may be admissible where, as here, it tends to show that defendant was guilty of the crime charged by showing a peculiar or characteristic behavior pattern of defendant which is manifest in the conduct of the transgressor in both crimes. ’ ’ See also People v. Soto, 245 Cal.App.2d 401 [ 53 Cal.Rptr. 832 ].)
On a charge of bribery of a supervisor, which defendant denied, it was held to be permissible to prove bribery of other supervisors to show “that the specific act of bribery charged was but a part execution of one conspiracy, a scheme which contemplated the bribery of a sufficient number of Supervisors to prevent the granting of the franchise.” (Ibid., p. 662.)