Return to CALJIC Part 3-4 – Contents
F 4.60 n1 Entrapment: Failure To Instruct As Reversible Error Per Se.
See FORECITE PG VII(C) discussing Hollis v. Gomez (CIV-90-0904 GEB) in which the Federal District Court granted habeas relief holding that refusal to instruct upon entrapment was reversible error per se.
In Bradley v. Duncan (9th Cir. 2002) 315 F3d 1091, the defendant was charged with selling cocaine; his only defense at trial was that he was entrapped. The first trial court instructed the jury on entrapment and a mistrial was declared. During the second trial, the defense again requested an entrapment instruction. The trial court denied the request without explanation. The Ninth Circuit found that the court of appeal’s finding that petitioner was not entitled to an instruction involved an unreasonable determination of the facts in light of the evidence presented under 28 USC 2254(d)(2). The failure to instruct the jury on entrapment deprived petitioner of his due process right to present a full defense and resulted in prejudice.
[Research Note: See FORECITE BIBLIO 4.60]
F 4.60 n2 Entrapment: Corollary Defense Of Outrageous Government Misconduct.
See FORECITE F 4.015: NON-CALJIC defenses.
[Research Note: See FORECITE BIBLIO 4.60]
F 4.60 n3 Entrapment: “Normal Law-Abiding Person” Language Is Proper.
The phrase “normal law-abiding person” as used in the standard CALJIC entrapment instructions is not improper. (People v. Burns DEPUBLISHED (92) 8 CA4th 715 [10 CR2d 483] [argument rejected that CALJIC should be modified to utilize language of Model PC 2.13(1)(b) (“persons who are not ready to commit the offense.”].) (Burns 8 CA4th at 727, fn 6.)
[Research Note: See FORECITE BIBLIO 4.60.]
F 4.60 n4 Entrapment: Federal Test.
Under federal law entrapment occurs when the government has apprehended an otherwise law-abiding citizen who, if left to his/her own devices, likely would have never run afoul of the law. (See Jacobson v. U.S. (92) 503 US 540 [118 LEd2d 174, 184; 112 SCt 1535]; see also U.S. v. Skarie (9th Cir. 1992) 971 F2d 317, 320-21; Marcus, “The Fall and Rise of the Entrapment Defense” The Champion Sept/Oct 1992, p. 8.) [This article is available to FORECITE subscribers. Ask for Article Bank # A-13.]
[Research Note: See FORECITE BIBLIO 4.60.]
F 4.60 n5 Entrapment: Single Witness.
Testimony of a single witness is sufficient to require instruction on entrapment. (People v. Lemus (88) 203 CA3d 470, 477 [249 CR 897]; People v. West (56) 139 CA2d Supp 923, 925.) Doubts as to sufficiency of evidence to warrant instruction should be resolved in favor of defendant. (People v. Romo (90) 220 CA3d 514, 519 [269 CR 440].)
[Research Note: See FORECITE BIBLIO 4.60.]
F 4.60 n6 Entrapment: Procedure When Jury Fails To Agree.
The defendant has the burden to prove entrapment by a preponderance of the evidence. (People v. Moran (70) 1 C3d 755, 760-61 [83 CR 411].) However, a verdict of guilt may not be returned if even a single juror believes that the defendant was entrapped. (People v. McIntyre (90) 222 CA3d 229, 232-33 [271 CR 467].)
If the jury indicates a failure to agree upon the issue of entrapment the court must either reinstruct the jury with CJ 4.60 and send them back for further deliberations or, if further deliberations would have been fruitless, declare a mistrial. (Ibid.)
[Research Note: See FORECITE BIBLIO 4.60.]
F 4.60 n7 Entrapment: Only Slight Evidence Necessary To Present The Defense To The Jury.
In U.S. v. Becerra (9th Cir. 1993) 992 F2d 960, 983, the 9th Circuit described the defendant’s right to an entrapment instruction in a federal trial as follows: “A defendant is entitled to an entrapment instruction if he can present some evidence that a government agent induced him to commit a crime that he was not predisposed to commit. [Citation] Only slight evidence will create the factual issue necessary to get the defense to the jury, even though the evidence is weak, insufficient, inconsistent, or of doubtful credibility. [Citations].” [Internal quote marks omitted.]
However, to be entrapment, police conduct must be directed at a specific person or persons, pressuring the person by overbearing conduct. Merely presenting an opportunity to commit a crime does not constitute entrapment. (People v. Watson (2000) 22 C4th 220 [91 CR2d 822] [police intentionally leaving a vehicle unlocked in a public parking lot with the key in the ignition did not constitute entrapment in vehicle theft case].)
[Research Note: See FORECITE BIBLIO 4.60.]
F 4.60 n8 Sentencing Entrapment and Sentencing Manipulation.
Sentencing Entrapment: The federal doctrine of “sentencing entrapment” (which requires a sentence be reduced if the defendant was predisposed to commit a lesser offense, but was entrapped into committing a greater one by the police) recognized in some federal cases (see, e.g., United States v. Staufer (9th Cir. 1994) 38 F3d 1103) does not afford a defense to drug offenses or enhancements in California because it is inconsistent with California’s entrapment doctrine, under which “the character of the suspect, his predisposition to commit the crime, and his subjective intent are irrelevant.” (People v. Barraza (1979) 23 Cal.3d 675, 690-691; see also People v. Smith (2003) 31 C4th 1207, 1215-16.)
Sentencing Manipulation: Under the theory of sentencing manipulation, a sentence should be reduced if law enforcement officials, for the purpose of increasing a defendant’s sentence, engaged in conduct so outrageous as to violate the defendant’s right to due process. (See, e.g., United States v. Lacey (10th Cir. 1996) 86 F3d 956, 963-964; see also People v. Smith, 31 C4th 1207 at 1221 [court declines to decide whether sentencing manipulation applies in California because “the police conduct was not overreaching by any reasonable standard”].)
Even though entrapment may not be available for the underlying offense, it is arguably available to bar enhanced culpability and/or sentencing when the government has entrapped the defendant into committing a more serious or enhanced crime than he or she was predisposed to commit. For example, when government conduct overcomes the will of an individual predisposed only to dealing in small quantities of drugs, it may be argued that the defendant should not be liable for the quantity enhancement sentence. (See U.S. v. Staufer (9th Cir. 1994) 38 F3d 1103, 1106-08; see also, U.S. v. Connell (1st Cir. 1992) 960 F2d 191, 196; U.S. v. Rodgers (8th Cir. 1993) 982 F2d 1241, 1245; U.S. v. Calva (8th Cir. 1992) 979 F2d 119, 122; U.S. v. Parrilla (9th Cir. 1997) 114 F3d 124 [recognizing sentencing entrapment as a basis for declining to apply statutory penalty provision for the greater offense that the defendant was induced to commit].) [An article discussing “Sentencing Manipulation and Entrapment” is available to FORECITE subscribers. Ask for Article Bank # A-58.]
The Outrageous Conduct Defense: See People v. Smith, 31 C4th 1207 at 1223-27 [declining to decide whether outrageous conduct defense applies in California]; see also FORECITE F 4.015 n1.
[See Brief Bank # B-818 for additional briefing on this issue.]
F 4.60 n9 Entrapment: Not Available Vicariously.
People v. Holloway (96) 47 CA4th 1757, 1767 [55 CR2d 547] held that neither the entrapment nor the outrageous police conduct defense may be asserted vicariously.
F 4.60 n10 Entrapment: Sex Offenses.
(See U.S. v. Poehlman (9th Cir. 2000) 217 F3d 692, 697 [Government’s aggressive and protracted e-mail correspondence to induce initially uninterested defendant to seek sex with children constituted entrapment].)
[RESEARCH NOTE: See Annotation, Entrapment defense in sex offense prosecutions, 12 ALR4th 413 and Later Case Service.]
F 4.60 n11 Entrapment: Defendant Need Not Admit Guilt.
A defendant need not admit his or her guilt in order to raise the issue of entrapment. (People v. Barraza (79) 23 C3d 675, 691 [153 CR 459]; see also People v. Krantz DEPUBLISHED (98) 67 CA4th 13, 24 [78 CR2d 713].)
F 4.60 n12 Entrapment: Test.
The correct test for entrapment is whether the law enforcement official committed conduct which was likely to induce a normal law-abiding person to commit the offense. (People v. Barraza (79) 23 C3d 675, 689-90 [153 CR 459]; see also FORECITE F 4.60 n3.) “Official conduct that does no more than offer [an opportunity to act unlawfully] — for example, a decoy program — is permissible. Overbearing conduct, such as badgering, cajoling, or other affirmative acts likely to induce a normal law-abiding person to commit the crime, is not permissible.” (People v. Barraza (79) 23 C3d 675, 690 [153 CR 459]; see also People v. Watson (2000) 22 C4th 220 [91 CR2d 822].)
F 4.60 n13 Entrapment Available Despite Failure Of Defendant To "Take The High Road" In Response To Police Pressure.
"A normally-law-abiding person does not always take the high road in the face of pressures or inducements by the police or their agents. As Justice Frankfurter observed in his concurrence in Sherman v. United States (1958) 356 US 369, 384 [78 SCt 819; 2 LEd2d 848]: `Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.’ (356 US at 384 [Frankfurter, J., concurring].) The state ignores the purpose of the entrapment defense, which is to curb unsavory police conduct. Instead of focusing on the impermissible police conduct, the state chooses to blame [defendant] and to point out what he should have done differently. This argument is circuitous and leaves no situation where the defendant can assert entrapment as a defense." (Bradley v. Duncan (9th Cir. 2002) 315 F3d 1091, 1097.)
F 4.60 n14 Perjury: "Perjury Trap" As Defense Theory.
(See FORECITE F 7.20 n9.)
F 4.60a
Derivative Entrapment
*Add at end of CJ 4.60:
Manipulation of a third party by law enforcement agents to procure the commission of a criminal offense by another renders the third party a government agent for purposes of the entrapment defense even though the third party remains unaware of the law enforcement agent’s identity or object.
Points & Authorities
The defense of “derivative entrapment” is based on People v. McIntire (79) 23 C3d 742 [153 CR 237], which stated: “The purposes of the entrapment defense can be fulfilled only if it is understood that one can act as the agent of a law enforcement official without realizing the identity of his principal; the unwitting agent, though he may not appreciate the true nature of his role, is nonetheless being manipulated as the officer’s tool in a plan to foster a crime and entrap its perpetrator …. The function of … enforcement officials is to investigate, not instigate, crime; to discover, not to promote, crime. Improper governmental instigation of crime is not immunized because it is effected indirectly through a pliable medium.” (Id. at p. 748; see also People v. Mendoza (92) 8 CA4th 504, 512-13 [10 CR2d 312] [defense of derivative entrapment recognized but no error in failure to give the above instruction absent of evidence the police manipulated the alleged agent].)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]
F 4.60b
Entrapment: Definition Of Government Agent
*Add to CJ 4.60:
For purposes of entrapment, someone is a government “agent” when the government directs and supervises his or her activities and is aware of those activities.
You must look to all of the circumstances existing at the time, including but not limited to the nature of the informant’s relationship with the government, the purposes for which it was understood that [he] [she] may act on behalf of the government, the instructions given to the informant about the nature and extent of permissible activities and what the government knew about those activities and what activities were used.
You are instructed that a paid informer is an “agent” of the government for entrapment purposes.
Points and Authorities
Neither CALJIC nor the Federal Pattern Instructions contain a delineation of how the jury should determine whether a person is a government agent for purposes of entrapment. The above instruction is adapted from People v. Fontenot (9th Cir. 1994) 14 F3d 1364, 1367-68, which held that the jury in that case was correctly instructed that “someone is a government ‘agent’ when the government directs and supervises his or her activities and is aware of those activities.” (See also Bradley v. Duncan (9th Cir. 2002) 315 F3d 1091, 1096 [decoy who was manipulated by the police was a police agent for purposes of the entrapment defense even if the decoy was unaware of the law enforcement object]; People v. McIntire (1979) 23 C3d 742 [153 CR 237].)
The final paragraph of the above instruction (that a paid informant is an “agent”) is adapted from Pattern Jury Instructions (Criminal Cases) (5th Cir. 1990), Instr. # 1.28. (See also U.S. v. Johnson (5th Cir. 1989) 872 F2d 612, 622 [approving instruction which used a paid informer as an example of a police agent].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
F 4.60c
Entrapment: Even If Defense Not Proven;
Prosecution Must Still Prove Elements Of Charge And Jury Must Consider Evidence Of
Entrapment As To The Elements
*Add to CJ 4.60:
ALTERNATIVE 1:
a. Even if the defendant does not prove entrapment, the prosecution must still prove every element of the charge beyond a reasonable doubt.
b. In deciding whether the prosecution has met its burden to prove every element beyond a reasonable doubt, you must consider all the evidence, including that which relates to the defense of entrapment, even if you conclude that the defendant did not prove the defense.
ALTERNATIVE 2:
The defendant’s burden as to this defense does not in any way relieve the prosecution of its burden to prove every element of the charge beyond a reasonable doubt.
Points and Authorities
(See FORECITE F 4.000a.)
