Brief Bank # B-818 (Re: F 4.60 n8 [Sentencing Entrapment].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
Defendant and Appellant
APPELLANT’S OPENING BRIEF
Appeal From Final Judgment of Conviction
Superior Court, County of Orange
The Honorable William M. Monroe
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
Attorney for John Doe
By Appointment of the Court of Appeal
(Appellate Defenders, Inc. – Independent Case)
3. Applicability Of “Sentencing Entrapment”
The remaining issue is whether entrapment is eliminated as a defense when appellant was wrongly induced into committing a felony, but his original intent was to commit a lesser crime, a misdemeanor. Appellant is unaware of any published California opinions specifically on that issue. However, the principle of “sentencing entrapment” (also known as “sentencing manipulation”) is recognized in other jurisdictions. It is also fully consistent with published California opinions in the entrapment area.
Appellant begins with a holding approved by our Supreme Court: “[W]hen an officer induces a person to commit a crime which he would not have done without such inducement, the law will not punish the person so lured into the crime. . . . where the intent originates with the officer and where the defendant is induced to commit a crime which was not contemplated by him [citation].” (People v. Malone (1931) 117 Cal.App. 629, 633 [cited with approval in People v. Makovsky, supra, 3 Cal.2d at p. 369].)
That is this case. Chambers induced appellant to accept a minor. As the trial court recognized, it wasn’t appellant’s idea, and the only evidence is that he called seeking an adult. (RT 225; see CT 489-490.) The intent to commit this crime originated with the officer, and the only evidence is that the appellant committed it because of the officer’s inducement, as discussed in the previous section.
Appellant returns to the passage from the U.S. Supreme Court opinion discussed above, which our Supreme Court cited approvingly in discussing the policies underlying California’s entrapment laws:
There is common agreement that where a law officer envisages a crime, plans it, and activates its commission by one not theretofore intending its perpetration, for the sole purpose of obtaining a victim through indictment, conviction and sentence, the consummation of so revolting a plan ought not to be permitted by any self respecting tribunal. . . .
(Sorrells v. United States, supra, 287 U.S. at pp. 454-455 [opn. of Roberts, J., dissenting in part] [passage cited with approval in People v. Benford, supra, 53 Cal.2d at p. 9].) Because of its express favorable citation by our Supreme Court, in a case which used the same standard as Barraza, the above passage correctly states a central policy underlying California’s en- trapment law. (See also Sorrells, supra, 287 U.S. at p. 459 [opn. of Roberts, J., dissenting in part] [“The applicable principle is that courts must be closed to the trial of a crime instigated by the government’s own agents.”].)
This policy is unaffected by whether the unlawfully induced defendant has started by committing no crime, or a lesser crime. The courts will refuse to consummate a plan to obtain a conviction by way of police inducement to commit crime. That means the police cannot obtain such a conviction, period. It says nothing about what other convictions might or might not be appropriate.
The same analysis applies to another passage from a minority opinion, also cited favorably by our Supreme Court in the same sentence:
The courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced. As Mr. Justice Holmes said . . . in another connection, ‘It is desirable that criminals should be detected, and to that end all available evidence should be used. It also is desirable that the government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained. * * * [F]or my part I think it a less evil that some criminals should escape than that the government should play an ignoble part.’
(Sherman v. United States (1958) 356 U.S. 369, 380 [78 S.Ct. 819, 2 L.Ed.2d 848] [conc. opn. of Frankfurter, J.] [passage cited with approval in People v. Benford, supra, 53 Cal.2d at p. 9].) This policy is equally unaffected by whether the unlawfully induced defendant has started by committing no crime, or a lesser crime.
Indeed, if—as is true in California—entrapment is intended to address unlawful police conduct, then in many respects, the law of entrapment is most needed in where the defendant has committed a crime. A court will not consummate the prosecution of a person for soliciting another to commit murder, under facts that meet the Barraza test. It would be uncommon, however, for a police officer to try to induce someone who had no unlawful intent at all, into soliciting a murder. If on the other hand, the defendant had already solicited an assault with a deadly weapon, a police officer might consider him an `easy mark’ for a solicitation of murder by fraud, pressure, cajoling or other unlawful tactics, if entrapment law were completely inapplicable. The few rogue police officers who prefer to engage in unlawful tactics would simply save their illegal conduct for situations where the courts would be most likely to reward it. That would severely undermine the policies underlying California’s entrapment law, discussed above.
Based on the above, the law should not punish appellant for the felony he was lured into committing, even if appellant’s intent was to commit a lesser crime, a misdemeanor. The policies underlying our entrap- ment laws, described above, would not permit such punishment. They do not envision a legal scheme in which public policy forbids punishing a defendant when a police officer lures him into a drug transaction, but there are no public policy concerns for the same unlawful inducement if the defendant intends to commit any lesser crime, even the pettiest infraction. The only thing that matters is police conduct. After all, even a person who is “regularly engaged in lawless activity” is allowed to defend on the basis of entrapment. (See People v. Benford, supra, 53 Cal.2d at pp. 11-12.)
This Court has recognized that the entrapment defense is not limited to law-abiding persons. (People v. Lee, supra, 219 Cal.App.3d at p. 838.) It follows that a person who is not law-abiding can assert it too.
Other jurisdictions have recognized similar principles. For example: “Sentencing entrapment or `sentence factor manipulation’ occurs when `a defendant, although predisposed to commit a minor or lesser offense, is entrapped into committing a greater offense subject to greater punishment.’ [Citation.]” (United States v. Staufer (9th Cir. 1994) 38 F.3d 1103, 1106; see also, e.g., United States v. Barth (8th Cir. 1993) 990 F.2d 422, 424.)
The defense is often seen in drug cases, where the Government induces the defendant to deal in or possess more drugs, a more dangerous type of drugs, or more highly illegal consideration than he would have done on his own. In that setting, “government abuse can be discouraged and corrected only if courts also are able to ensure that the government has some reason to believe that defendants are predisposed to engage in a drug deal of the magnitude for which they are prosecuted.” (United States v. Staufer, supra, 38 F.3d at p. 1107 [emphasis in original].) Thus, the federal Sentencing Commission “now expressly recognizes that law enforcement agents should not be allowed to structure sting operations in such a way as to maximize the sentences imposed on defendants . . . .” (Id. at p. 1107.)
The scope and applicability of the doctrine is unclear in federal courts. However, as appellant has discussed, federal courts adhere to a predisposition theory of entrapment, which focuses primarily on the defendant and not on the conduct of the officers.
California’s entrapment doctrine, by contrast, focuses entirely on the conduct of the officers. There is no principled basis on which to deny a principle of “sentence entrapment” when the law of entrapment goes solely to police conduct. Either the police conduct is sufficiently egregious that a court will refuse to allow it to support a conviction, or it is not. Whether or not the defendant committed a lesser offense is completely irrelevant to a test that focuses solely on police conduct.
Thus for example, Pennsylvania uses an “objective approach” to entrapment similar to California’s (Commonwealth v. Weiskerger (1989) 520 Pa. 305 [554 A.2d 10]), and it recognizes the doctrine of sentence entrapment as well:
The benefits of reverse sting operations, i.e., ferreting out those who are ready, willing and able to engage in crime, must be balanced against the danger of granting law enforcement officials unlimited power to define the scope of criminal culpability in a given case. The fact that a single officer in the field can determine the amount of drugs in a case, and, therefore, the length of sentence for a defendant, is a troubling scenario. Such awesome power cannot go unchecked.
(Commonwealth v. Petzold (Pa. Super. Ct. 1997) 701 A.2d 1363; see also People v. Ealy (1997) 222 Mich. App. 508 [564 N.W.2d 168] [recognizing doctrine, but deciding case on ground that facts would not support it].)
These principles do not apply only to drug crimes. Many areas of law have graduated penalties depending on the severity of a type of crime. The government should not be permitted to use inducements which constitute entrapment as a means of ratcheting up that crime. In a jurisdiction such as California, which prohibits convictions that are obtained by unlawful police inducement, the prohibition goes to the police conduct and not to the defendant’s conduct. The police conduct here was unlawful inducement for the commission of a felony. Therefore, conviction for the felony is barred.
4. The Proper Remedy
The question of the proper remedy remains. If the Court has agreed with appellant’s analysis, then it has concluded that appellant’s conduct and mental state warrant conviction for the crime in which he engaged and intended to engage before the unlawful inducement, solicitation of prostitution. (Pen. Code, § 647, subd. (b).) That, however, is not a lesser-included offense of the offense of which appellant was convicted, solicitation of a lewd act with a 14- or 15-year-old. (Pen. Code, §§ 653f, subd. (c)/288, subd. (c).) That is because each offense has an element the other doesn’t. (See People v. Lohbauer (1981) 29 Cal.3d 364, 369.)
Nonetheless, Penal Code section 1260 gives a reviewing court the power to reduce a sentence in any manner necessary to avoid unconstitutionality, even if the reduction is not provided for in the statutory scheme of penalties. (People v. Schueren (1973) 10 Cal.3d 553, 561-562.)
The same principle should apply in a case of this nature. Where a public policy violation goes only to the type or degree of offense and not to the existence of an offense, it would make little sense to hold that the only alternatives are conviction of the entrapped crime, or complete acquittal. Under Schueren, section 1260 permits a reviewing court to reduce a conviction or sentence as necessary and appropriate, to avoid illegality. Appellant has waived and does waive any statute of limitations issues for purposes of this Part. (Ante, fn. 12.)
Accordingly, the judgment should be reduced to a conviction for the crime appellant intended to commit without unlawful inducement, a misdemeanor violation of section 647, subdivision (b). The cause should be remanded for resentencing.amera hearing. If that hearing reveals discoverable information which could lead to admissible evidence helpful to appellant in establishing his entrapment defense, then the trial court must grant the requested discovery and order a new trial. (People v. Gill, supra, 60 Cal.App.4th at p. 751.)
For the foregoing reasons, appellant respectfully asks that the judgment be reversed. If the reversal is on the grounds in Part VI, the cause should be remanded for further proceedings on the discovery motion.
Dated: September 18, 1998.
S. Michelle May
Counsel for Appellant John Doe
By Appointment of the Court of Appeal
(Appellate Defenders, Inc. – Independent