entrapment defense in California

2015A trial court is “required to instruct the … jury on the defense of entrapment if, but only if, substantial evidence supported the defense.” (People v. Watson, supra, at pp. 222- 223.) Application of the entrapment defense depends upon whether “the intent to commit the crime originated in the mind of defendant or in the mind of the entrapping officer.” (People v. Benford (1959) 53 Cal.2d 1, 10 .) On appeal, the court reviews the record to determine whether substantial evidence supports the claimed defense to require the trial court to instruct regarding entrapment.

2013Official conduct that does no more than offer that opportunity to the suspect—for example, a decoy program—is therefore permissible; but it is impermissible for the police or their agents to pressure the subject by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.‘‖ (People v. Watson, supra, 22 Cal.4th at p. 223 ; see People v. Benford (1959) 53 Cal.2d 1, 10 [the application of the entrapment defense depends upon whether ―the intent to commit the crime originated in the mind of 5 defendant

2026Among the circumstances that may be relevant for this purpose, for example, are the transactions preceding the offense, the suspect’s response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission. [Citation.] . . . [H]owever, . . . such matters as the character of the suspect, his predisposition to commit the offense, and his subjective intent are irrelevant.” ( Barraza, supra, 23 Cal.3d at pp. 690–691, italics added.) 21 That being the case, the trial court’s conclusion that an entrapment defense would open the door to Harzan

2026(Barraza, supra, 23 Cal.3d at p. 690 .) Although there is no way of knowing whether an entrapment defense would have succeeded at Harzan’s trial, we cannot conclude the failure to instruct on that defense was harmless beyond a reasonable doubt.

2026Again, an entrapment instruction was required “ ‘if, but only if, substantial evidence supported the defense.’ ” (People v. Federico, supra, 191 Cal.App.4th at p. 1422 , quoting People v. Watson, supra, 22 Cal.4th at pp. 222-223.) Here, the defense theory at the time for motions in limine was that Sergeant Duncan entrapped defendant by initiating contact, using flattery and sexually enticing language, and appealing to defendant’s sympathies.

2025An entrapment instruction was required “if, but only if, substantial evidence supported the defense.” (People v. Watson (2000) 22 Cal.4th 220, 222 (Watson).) “In California, the test for entrapment focuses on the police conduct and is objective.

1984(Hampton v. United States (1976) 425 U.S. 484, 489-491 [ 48 L.Ed.2d 113, 118-119 , 96 S.Ct. 1646 ]; United States v. Russell (1973) 411 U.S. 423 [ 36 L.Ed.2d 366 , 93 S.Ct. 1637 ]; see also United States v. Wylie (9th Cir. 1980) 625 F.2d 1371, 1377 , cert, den., 449 U.S. 1080 [ 66 L.Ed.2d 804 , 101 S.Ct. 863 ].) Instead, as noted, the California Supreme Court has chosen the objective test to assure the “lawfulness of law enforcement activity.” (People v. Barraza, supra, 23 Cal.3d at pp. 686-691.) Thus federal cases on entrapment such as Sorrells, supra, 287 U.S. 435 , which was the first case

1979No other issue, no comparison of equities as between the guilty official and the guilty defendant, has any place in the enforcement of this overruling principle of public policy.” (Id., at p. 459 [ 77 L.Ed. at p. 426 ].) Because he viewed deterrence of impermissible law enforcement activity as the proper rationale for the entrapment defense, Justice Roberts concluded that the defense was inappropriate for jury consideration: “It is the province-of-the-court and of the court alone to protect itself and the government from such prostitution of the criminal law.” (Id., at p. 457 [ 77 L.Ed. at p.

1985(See Patty v. Board of Medical Examiners (1973) 9 Cal.3d 356, 363-364 [ 107 Cal.Rptr. 473 , 508 P.2d 1121 , 61 A.L.R.3d 342 ].) Simply stated, how is the guilty plea a waiver of the issue if a guilty plea is not inconsistent with the defense?

1975(See Patty, supra, 9 Cal.3d at p. 368; People v. Moraga, 244 Cal.App.2d 565, 568 [ 53 Cal.Rptr. 563 ]; 1 Witkin, Cal. Crimes (1963) § 181, pp. 173-174; Note, The Defense of Entrapment in California (1968) 19 Hastings L.J. 825 , 842-843.) Finally, appellant cites us no case that permits the entrapment defense to be asserted vicariously, which is what he seeks to do under his “fruits of the poisonous tree” analogy.

1981Inferably, the Attorney General recognizes that for purposes of the entrapment defense, Harrington was, at the very least, acting in cooperation with and pursuant to the direction of Narcotics Agent Dixon. ( People v. Perez (1965) 62 Cal.2d 769, 775 [ 44 Cal. Rptr. 326 , 401 P.2d 934 ]; see People v. McIntire (1979) 23 Cal.3d 742, 748 [ 153 Cal. Rptr. 237 , 591 P.2d 527 ].) [4] The court also gave CALJIC No. 4.61.5 (1979 rev.).

1981Inferably, the Attorney General recognizes that for purposes of the entrapment defense, Harrington was, at the very least, acting in cooperation with and pursuant to the direction of Narcotics Agent Dixon. ( People v. Perez (1965) 62 Cal.2d 769, 775 [ 44 Cal. Rptr. 326 , 401 P.2d 934 ]; see People v. McIntire (1979) 23 Cal.3d 742, 748 [ 153 Cal. Rptr. 237 , 591 P.2d 527 ].) [4] The court also gave CALJIC No. 4.61.5 (1979 rev.).

2023(Id. at pp. 690-691.) Police conduct must be “’judged by the effect it would have on a normally law-abiding person situated in the circumstances of the case at hand,” including circumstances such as “the transactions preceding the offense, the suspect’s response to the inducements of the [decoy], the gravity of the crime, and the difficulty of detecting instances of its commission.” (Id. at p. 690.) Under federal law, by contrast, the entrapment defense is subjective; it does not protect a suspect who is predisposed to commit the crime anyway but applies “ ‘only when the [g]overnment’s decepti

2014In discussing the entrapment defense, the court noted “the principal element in the defense of entrapment was the defendant’s predisposition to commit the crime.” (Id. at p. 433.) Citing Rochin , the court acknowledged the possibility a defendant might make a successful claim of outrageous police conduct defense in an extreme case: “[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction . . . .” ( Russell, supra, 411 U.

1979(See, e.g., People v. Sweeney (1960) 55 Cal.2d 27, 49 [ 9 Cal.Rptr. 793 , 357 P.2d 1049 ]; People v. Francis (1969) 71 Cal.2d 66, 78 [ 75 Cal.Rptr. 199 , 450 P.2d 591 ]; People v. Moran (1970) 1 Cal.3d 755, 760 [ 83 Cal.Rptr. 411 , 463 P.2d 763 ].) Chief Justice Traynor, dissenting in Moran (1 Cal.3d at pp. 764-765), in an opinion joined by two other justices of this court, recognized that in thus departing from the rationale adopted in Benford , we have seriously undermined the deterrent effect of the entrapment defense on impermissible police conduct.

1979(See, e.g., People v. Sweeney (1960) 55 Cal.2d 27, 49 [ 9 Cal.Rptr. 793 , 357 P.2d 1049 ]; People v. Francis (1969) 71 Cal.2d 66, 78 [ 75 Cal.Rptr. 199 , 450 P.2d 591 ]; People v. Moran (1970) 1 Cal.3d 755, 760 [ 83 Cal.Rptr. 411 , 463 P.2d 763 ].) Chief Justice Traynor, dissenting in Moran (1 Cal.3d at pp. 764-765), in an opinion joined by two other justices of this court, recognized that in thus departing from the rationale adopted in Benford , we have seriously undermined the deterrent effect of the entrapment defense on impermissible police conduct.

2013(Sorrells v. United States (1932) 287 U.S. 435 .) The other standard, the so-called objective standard, which is used in California, looks at the effect of police behavior on the "normally law-abiding person." (People v. Barraza (1979) 23 Cal.3d 675, 690 (Barraza).) In Barraza, supra, 23 Cal.3d 675 , the court examined the value of both standards for the entrapment defense and determined that California would follow the objective standard.

1984(Hampton v. United States (1976) 425 U.S. 484, 489-491 [ 48 L.Ed.2d 113, 118-119 , 96 S.Ct. 1646 ]; United States v. Russell (1973) 411 U.S. 423 [ 36 L.Ed.2d 366 , 93 S.Ct. 1637 ]; see also United States v. Wylie (9th Cir. 1980) 625 F.2d 1371, 1377 , cert, den., 449 U.S. 1080 [ 66 L.Ed.2d 804 , 101 S.Ct. 863 ].) Instead, as noted, the California Supreme Court has chosen the objective test to assure the “lawfulness of law enforcement activity.” (People v. Barraza, supra, 23 Cal.3d at pp. 686-691.) Thus federal cases on entrapment such as Sorrells, supra, 287 U.S. 435 , which was the first case

2023(People v. Federico (2011) 191 Cal.App.4th 1418, 1423 ; see also People v. McIntire (1979) 23 Cal.3d 742, 748 [“manipulation of a third party by law enforcement officers to procure the commission of a criminal offense by another renders the third party a government agent for purposes of the entrapment defense”].) 2 The test for entrapment under state law is objective: it asks whether the conduct of law enforcement is likely to induce a normally law-abiding person to commit the crime, regardless of the suspect’s own subjective intent or predisposition to commit the offense. ( Barraza, supra, 23

1992The trial court properly instructed the jury on entrapment, giving three separate instructions setting forth the objective theory of the entrapment defense; that is, that it is a defense to a criminal charge that the commission of the alleged criminal act was induced by the conduct of law enforcement agents, or persons acting under their direction and control, “when the conduct was such as would likely induce a normally law-abiding person to commit the crime.” Contending that the jury could find Hector Gonzalez to be the entrapping agent, rather than being limited to consider whether or not Me

2025(People v. Moore (2002) 96 Cal.App.4th 1105, 1116 ; People v. Miceli (2002) 104 Cal.App.4th 256, 267 ) Substantial evidence in this context does not mean “any evidence . . . no matter how weak[,]” but rather “ ‘ “evidence 7 from which a jury composed of reasonable [people] could have concluded” ’ that the specific facts supporting the instruction existed.” (People v. Petznick (2003) 114 Cal.App.4th 663, 677 ; accord, People v. Larsen (2012) 205 Cal.App.4th 810 , 823- 824.) Since entrapment is an affirmative defense that the defense must prove by a preponderance of the evidence, (People v. Mowe

2012(See, e.g., People v. Jones (2003) 112 Cal.App.4th 341, 350 [ 4 Cal.Rptr.3d 916 ]; see also People v. Mower (2002) 28 Cal.4th 457, 476-482 [ 122 Cal.Rptr.2d 326 , 49 P.3d 1067 ].) The defendant’s limited burden is based on the conclusion that CUA defenses turn on the nature of the defendant’s conduct rather than a collateral matter, such as when an entrapment defense is offered.

2013(See People v. Sojka (2011) 196 Cal.App.4th 733, 738 [reasonable probability standard applies to failure to instruct on defenses].) As discussed ante, on this record, a reasonable jury could have found that the police conduct here was likely to induce a normally law-abiding person to commit some or all of the charged crimes.

2013(See People v. Sojka (2011) 196 Cal.App.4th 733, 738 [reasonable probability standard applies to failure to instruct on defenses].) As discussed ante, on this record, a reasonable jury could have found that the police conduct here was likely to induce a normally law-abiding person to commit some or all of the charged crimes.

1977Even the statement that a drug addict is "sick," without more, has been held insufficient to raise an inference of special inducement so as to require an entrapment instruction. ( People v. Griffin, 209 Cal. App.2d 557, 563 [ 26 Cal. Rptr. 311 ]; People v. Finn, 136 Cal. App.2d 152, 155-156 [ 288 P.2d 281 ]; cf. People v. Ortiz, 200 Cal. App.2d 250, 258 [ 19 Cal. Rptr. 211 ]; People v. Valdez, 132 Cal. App.2d 783, 786 [ 283 P.2d 36 ].

1977Even the statement that a drug addict is "sick," without more, has been held insufficient to raise an inference of special inducement so as to require an entrapment instruction. ( People v. Griffin, 209 Cal. App.2d 557, 563 [ 26 Cal. Rptr. 311 ]; People v. Finn, 136 Cal. App.2d 152, 155-156 [ 288 P.2d 281 ]; cf. People v. Ortiz, 200 Cal. App.2d 250, 258 [ 19 Cal. Rptr. 211 ]; People v. Valdez, 132 Cal. App.2d 783, 786 [ 283 P.2d 36 ].

1977Even the statement that a drug addict is "sick," without more, has been held insufficient to raise an inference of special inducement so as to require an entrapment instruction. ( People v. Griffin, 209 Cal. App.2d 557, 563 [ 26 Cal. Rptr. 311 ]; People v. Finn, 136 Cal. App.2d 152, 155-156 [ 288 P.2d 281 ]; cf. People v. Ortiz, 200 Cal. App.2d 250, 258 [ 19 Cal. Rptr. 211 ]; People v. Valdez, 132 Cal. App.2d 783, 786 [ 283 P.2d 36 ].

1977Even the statement that a drug addict is "sick," without more, has been held insufficient to raise an inference of special inducement so as to require an entrapment instruction. ( People v. Griffin, 209 Cal. App.2d 557, 563 [ 26 Cal. Rptr. 311 ]; People v. Finn, 136 Cal. App.2d 152, 155-156 [ 288 P.2d 281 ]; cf. People v. Ortiz, 200 Cal. App.2d 250, 258 [ 19 Cal. Rptr. 211 ]; People v. Valdez, 132 Cal. App.2d 783, 786 [ 283 P.2d 36 ].

1977Even the statement that a drug addict is "sick," without more, has been held insufficient to raise an inference of special inducement so as to require an entrapment instruction. ( People v. Griffin, 209 Cal. App.2d 557, 563 [ 26 Cal. Rptr. 311 ]; People v. Finn, 136 Cal. App.2d 152, 155-156 [ 288 P.2d 281 ]; cf. People v. Ortiz, 200 Cal. App.2d 250, 258 [ 19 Cal. Rptr. 211 ]; People v. Valdez, 132 Cal. App.2d 783, 786 [ 283 P.2d 36 ].

1977Even the statement that a drug addict is "sick," without more, has been held insufficient to raise an inference of special inducement so as to require an entrapment instruction. ( People v. Griffin, 209 Cal. App.2d 557, 563 [ 26 Cal. Rptr. 311 ]; People v. Finn, 136 Cal. App.2d 152, 155-156 [ 288 P.2d 281 ]; cf. People v. Ortiz, 200 Cal. App.2d 250, 258 [ 19 Cal. Rptr. 211 ]; People v. Valdez, 132 Cal. App.2d 783, 786 [ 283 P.2d 36 ].

1977Even the statement that a drug addict is "sick," without more, has been held insufficient to raise an inference of special inducement so as to require an entrapment instruction. ( People v. Griffin, 209 Cal. App.2d 557, 563 [ 26 Cal. Rptr. 311 ]; People v. Finn, 136 Cal. App.2d 152, 155-156 [ 288 P.2d 281 ]; cf. People v. Ortiz, 200 Cal. App.2d 250, 258 [ 19 Cal. Rptr. 211 ]; People v. Valdez, 132 Cal. App.2d 783, 786 [ 283 P.2d 36 ].

1977Even the statement that a drug addict is "sick," without more, has been held insufficient to raise an inference of special inducement so as to require an entrapment instruction. ( People v. Griffin, 209 Cal. App.2d 557, 563 [ 26 Cal. Rptr. 311 ]; People v. Finn, 136 Cal. App.2d 152, 155-156 [ 288 P.2d 281 ]; cf. People v. Ortiz, 200 Cal. App.2d 250, 258 [ 19 Cal. Rptr. 211 ]; People v. Valdez, 132 Cal. App.2d 783, 786 [ 283 P.2d 36 ].

2026Again, an entrapment instruction was required “ ‘if, but only if, substantial evidence supported the defense.’ ” (People v. Federico, supra, 191 Cal.App.4th at p. 1422 , quoting People v. Watson, supra, 22 Cal.4th at pp. 222-223.) Here, the defense theory at the time for motions in limine was that Sergeant Duncan entrapped defendant by initiating contact, using flattery and sexually enticing language, and appealing to defendant’s sympathies.

2023(People v. Federico (2011) 191 Cal.App.4th 1418, 1423 ; see also People v. McIntire (1979) 23 Cal.3d 742, 748 [“manipulation of a third party by law enforcement officers to procure the commission of a criminal offense by another renders the third party a government agent for purposes of the entrapment defense”].) 2 The test for entrapment under state law is objective: it asks whether the conduct of law enforcement is likely to induce a normally law-abiding person to commit the crime, regardless of the suspect’s own subjective intent or predisposition to commit the offense. ( Barraza, supra, 23

1950The rule as to when an entrapment is a defense was stated as follows in People v. Lindsey, 91 Cal.App.2d 914, 917 [ 205 P.2d 1114 ] : “It is only when the criminal design is conceived in the mind of the officer and does not originate with the accused, and a decoy is used to ensnare the innocent and law-abiding by persuasion, deceitful representation, inducement or allurement into the commission of the crime, that there is entrapment. ’ ’ Among the many cases supporting this rule are People v. Malone, 117 Cal.App. 629, 633 [ 4 P.2d 287 ] ; People v. Kennedy, 66 Cal.App.2d 522, 523 [ 152 P.2d 51

1950The rule as to when an entrapment is a defense was stated as follows in People v. Lindsey, 91 Cal.App.2d 914, 917 [ 205 P.2d 1114 ] : “It is only when the criminal design is conceived in the mind of the officer and does not originate with the accused, and a decoy is used to ensnare the innocent and law-abiding by persuasion, deceitful representation, inducement or allurement into the commission of the crime, that there is entrapment. ’ ’ Among the many cases supporting this rule are People v. Malone, 117 Cal.App. 629, 633 [ 4 P.2d 287 ] ; People v. Kennedy, 66 Cal.App.2d 522, 523 [ 152 P.2d 51

1950The rule as to when an entrapment is a defense was stated as follows in People v. Lindsey, 91 Cal.App.2d 914, 917 [ 205 P.2d 1114 ] : “It is only when the criminal design is conceived in the mind of the officer and does not originate with the accused, and a decoy is used to ensnare the innocent and law-abiding by persuasion, deceitful representation, inducement or allurement into the commission of the crime, that there is entrapment. ’ ’ Among the many cases supporting this rule are People v. Malone, 117 Cal.App. 629, 633 [ 4 P.2d 287 ] ; People v. Kennedy, 66 Cal.App.2d 522, 523 [ 152 P.2d 51

1950The rule as to when an entrapment is a defense was stated as follows in People v. Lindsey, 91 Cal.App.2d 914, 917 [ 205 P.2d 1114 ] : “It is only when the criminal design is conceived in the mind of the officer and does not originate with the accused, and a decoy is used to ensnare the innocent and law-abiding by persuasion, deceitful representation, inducement or allurement into the commission of the crime, that there is entrapment. ’ ’ Among the many cases supporting this rule are People v. Malone, 117 Cal.App. 629, 633 [ 4 P.2d 287 ] ; People v. Kennedy, 66 Cal.App.2d 522, 523 [ 152 P.2d 51

2025(Provigo Corp. v. Alcoholic Beverage Control Appeals Bd. (1994) 7 Cal.4th 561, 568-569 ; Barraza, at p. 690; see Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2002) 100 Cal.App.4th 1094, 1100 [asking an exotic dancer if her next dance would involve “more skin” was not entrapment].) Defendant argues the trial court erred in refusing to give an entrapment instruction because the many “sexually-charged” messages before the age drop, combined with the 3 Our high court also clarified that while the inquiry focuses on the conduct of law enforcement, that conduct