Return to Return to Non-CALJIC Defenses – Contents
F 4.017a
Immunity of “Police Agent” In Narcotics Deal
(HS 11367)
All duly authorized peace officers, while investigating violations of Health and Safety Code in performance of their official duties, and any person working under their immediate direct supervision or instruction, are immune from prosecution under such code sections.
The immunity provisions of the Health and Safety Code are applicable in this case if you as judges of the facts find from the evidence that __________ under color of [his] [her] authority as a police officer directed or instructed the defendant to commit the acts constituting the offense charged against the defendant and that defendant in committing the act intended to operate as a government agent, decoy or informer. If on the other hand, you find from the evidence that defendant at the time of committing the acts constituting the offense did not know that __________ was a police officer and that defendant thought [he] [she] was dealing with a private individual seeking to purchase contraband narcotics, then the fact that __________ gave the defendant money and the opportunity of committing the crime charged against [him] [her] will not cloak the defendant with the immunity provisions of § 11367 of the Health and Safety Code.
If the jury has a reasonable doubt whether the defendant was working under the immediate direction, supervision or instruction of a duly authorized peace officer at the time of committing the acts charged against [him] [her], the jury must give the defendant the benefit of that doubt and acquit [him] [her].
Points and Authorities
The above instructions were held to be a proper instruction in People v. Jones (62) 200 CA2d 805, 813, fn 1 [19 CR 787]. However, to obtain the instruction, the defendant must present evidence of his/her intent to operate as a government agent, to engage in narcotics deals to get information for law enforcement and that he/she was acting under the immediate direction, supervision or instruction of a peace officer. (HS 11367; see also People v. Lo Cicero (69) 71 C2d 1186, 1188-89 [80 CR 913]; People v. Benford (59) 53 C2d 1, 14 [345 P2d 928].)
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 FORECITE PG VII(C).]
