Chapter 55: Entrapments

[1] CAL: P v. Barraza (1979) 23
C3 675, 690 [the officers' 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"]; P v. Watson (2000) 22
C4 220, 223 ["Entrapment is established if the law enforcement
conduct is likely to induce a normally law-abiding person to
commit the offense."]; CALCRIM 3408 ["When deciding whether
the defendant was entrapped, consider what a normally law-abiding
person would have done in this situation."];
ABC v. ABC Appeals Board (2002) 100 CA4 1094, 1099 [the
test "is whether the acts of the law enforcement agent are likely
to induce a normally law-abiding person to commit the offense."];
Provigo Corp. v. ABC Appeals Board (1994) 7 C4 561, 569
["the rule is clear that ruses, stings, and decoys are permissible
stratagems in the enforcement of criminal law, and they become
invalid only when badgering or importuning takes place to an
extent and degree that is likely to induce an otherwise
law-abiding person to commit a crime"].

[2] CAL: P v.
Barraza (1979) 23 C3 675, 690 ["we presume that such a
person would normally resist the temptation to commit a crime
presented by the simple opportunity to act unlawfully"]; P
v. Grant (1985) 165 CA3 496, 500 ["This hypothetical
is similar to the 'reasonable man' instructions which define a
negligence standard in civil cases."].

[3] CAL: P v.
Smith (2003) 31 C4 1207, 1218 ["the conduct of the police
does not occur in a vacuum, especially in a sting operation. The
court's assessment of an officer's objective conduct will
inevitably be colored by, for example, whether the defendant was
from the start an enthusiastic proponent of the proposed crime or
initially declined and was only gradually worn down."]; P
v. McClellan (1980) 107 CA3 297, 302 ["the conduct
of the law enforcement officials must be considered in light of
the surrounding circumstances"].

[4] CAL: P v. Barraza (1979) 23
C3 675, 687 ["No matter what the defendant's past record and
present inclinations to criminality, or the depths to which he has
sunk in the estimation of society, certain police conduct to
ensnare him into further crime is not to be tolerated by an
advanced society."]; P v. Smith (2003) 31 C4 1207, 1212
["the character of the suspect, his predisposition to commit the
crime, and his subjective intent are irrelevant"];
P v. Peppars (1983) 140 CA3 677, 685-86 ["California has
explicitly rejected the federal standard for entrapment; the
stated purposes of the entrapment defenses in this state is to
assure lawfulness of law enforcement activity."];
P v. Holloway (1996) 47 CA4 1757, 1764-65 ["The California
entrapment doctrine… ignores the suspect's subjective
intent or any predisposition to commit the crime."];
P v. Lee (1990) 219 CA3 829, 835 ["matters such as the
character of the suspect, his predisposition to commit the
offense, and his subjective intent are irrelevant"]
Douglass v. Board of Medical Quality Assurance (1983) 141
CA3 645, 655 ["the suspect's predisposition to commit the offense
and his subjective intent are irrelevant."]; CALCRIM 3408
["Do not consider the defendant's particular intentions or
character, or whether the defendant had a predisposition to commit
the crime."]. NOTE: In P v. Martinez (1984) 157 CA3
660 the court ruled that, because this standard takes into account
the mindset of a normally law-abiding person, it is the same or
similar to the federal "subjective" test. But neither law nor
logic supports this view. The "normally law-abiding person" test
merely creates a standard of proof that the defendant was
overcome. See P v. Lee (1990) 219 CA3 829, 838 ["We agree
with the weight of authority which has rejected this portion of
Martinez."]; P v. Slatton (1985) 173 CA3 487, 491-92
[rejects Martinez]; P v. Arthurlee (1985) 168 CA3
246, 251 ["We do not follow the Martinez rationale"];
P v. Grant (1985) 165 CA3 496, 500 [rejects
Martinez].

[5] USSC: Sherman v. US (1958)
356 US 369, 372 ["a line must be drawn between the trap for the
unwary innocent and the trap for the unwary criminal"];
US v. Russell (1973) 411 US 423, 436 ["defendant's
predisposition to traffic in methamphetamine was "fatal to his
claim of entrapment"]. 9th CIR: US v. Black (9C
2013) 733 F3 294, 307 [defendant "had engaged in similar criminal
activity in the past"]. OTHER: US v. Ortiz (10C) 804
F2 1161, 1165 ["the obvious question [is] whether the defendant
was eager or reluctant to engage in the charged criminal
conduct"].

[6] CAL: P v. Smith (2003) 31 C4
1207, 1218 ["The court's assessment of an officer's objective
conduct will inevitably be colored by, for example, whether the
defendant was from the start an enthusiastic proponent of the
proposed crime or initially declined and was only gradually worn
down."]; P v. Barraza (1979) 23 C3 675, 690;
P v. Harris (1985) 165 CA3 324, 332-33 ["we cannot ignore
the evidence of past sales by defendant to the informant nor the
evident sophistication of defendant as indicated by his various
statements"]; P v. Peppars 1983) 140 CA3 677, 686-87 ["it
was appellant who had suggested the idea in the first place [and]
there was no reluctance on appellant's part to commit the crime;
he was willing from the beginning."].

[7] USSC: Sherman v.
US (1958) 356 US 369, 372 ["The function of law enforcement
is the prevention of crime and the apprehension of criminals.
Manifestly, that function does not include the manufacturing of
crime."]; Olmstead v. US (1928) 277 US 438,
484 (conc. opn. of Holmes, J.) ["I think it a less evil that some
criminals should escape than that the government should plan an
ignoble part."]. CAL: P v.
Barraza (1979) 23 C3 675, 689 [entrapment is a type of
"lawless law enforcement," a poor "substitute for skillful and
scientific investigation," and a tactic that is based on the
misguided belief that the "the employment of illegal means" can be
justified when officers are dealing with "known criminals or the
criminal classes"]; Patty v.
Board of Medical Examiners (1973) 9 C3 356, 363 ["The
defense of entrapment rests on the simple proposition that the
state has no business fostering crime."]; P v.
Benford (1959) 53 C2 1, 8-9 [the entrapment defense "is
said to rest upon the broadly stated grounds of sound public
policy and good morals."].

[8] CAL: CALCRIM 3408.
NOTE: A defendant may plead "not guilty" and still raise an
entrapment defense. P v. Thoi (1989) 213 CA3 689,
694.

[8] CAL: P v. Barraza (1979) 23 C3
675, 691, fn.6 ["the defense of entrapment remains a jury
question"].

[9] CAL: P v.
Harris (1985) 165 CA3 324, 332. 9th CIR:
Bradley v. Duncan (9C 2002) 315 F3 1091, 1097
["What a normally-law-abiding person would do under the
circumstances should have been left to the jury."].

[10] QUOTE FROM: P v.
Barraza (1979) 23 C3 675, 691.

[11] CAL: P v.
Harris (1985) 165 CA3 324, 332 ["The law does not recognize
a defense of vicarious entrapment."]; P v.
Holloway (1996) 47 CA4 1757, 1767 [entrapment defense
cannot be asserted "by defendants not themselves affected by the
alleged police overreaching"].

[12] CAL: P v.
Barraza (1979) 23 C3 675, 692 ["a defendant need not admit
his guilt, or even commission of the act, to raise a defense of
entrapment"]; P v. Thoi (1989) 213 CA3 689,
694 [entrapment defense "may be raised concurrently with a denial
of the crime"].

[13] 9th CIR: US v. Black (9C
2013) 733 F3 294, 310; US v. Huang (9C 2012) 687 F3 1197,
1202; US v. Yuman-Hernandez (9C 2013) 712 F3 471, 474.
OTHER: US v. Knox (7C 2009) 573 F3
441, 451 ["Sentencing entrapment occurs when a defendant who lacks
a predisposition to engage in more serious crimes nevertheless
does not as a result of unrelenting government persistence."].

[14] CAL: P v.
Smith (2003) 31 C4 1207.

[15] CAL: P v.
Holloway (1996) 47 CA4 1757, 1765-67; P v.
Wesley (1990) 224 CA3 1130, 1142-45; P v.
Towery (1985) 174 CA3 1114, 1133-37. 9th CIR:
US v. Hullaby (9C 2013) 736 F3 1260, 1262-63 [not
"outrageous police conduct" when, at the request of officers, "a
repeat violent home-invader" met with a home-invasion suspect to
plan additional robberies]; US v. Black (9C 2013) 733 F3
294, 307 [a reverse sting; close case but upheld mainly because
the defendants told an officer "very early and often that they had
engaged in similar criminal activity in the past, in conversations
that were recorded on tape"].

[16] USSC: US v. Russell (1973)
411 US 423, 431-32 ["While we 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, the instant case is distinctly not of that breed."].
CAL: P v. Thoi (1989) 213 CA3 689, 696 ["In
California, where entrapment law looks primarily at the conduct of
the authorities in the first instance, the defense of outrageous
police conduct is superfluous."]. OTHER:
US v. Castaneda (11C 2021) 997 F3 1318, 1324 ["neither the
Supreme Court nor this Court has ever found it to actually apply
and barred the prosecution of any case based on it"].

[17] USSC: Jacobson v.
US (1992) 503 US 540, 550 ["By the time petitioner finally
placed his order, he had already been the target of 26 months of
repeated mailings and communications from Government agents and
fictitious organizations."]. CAL: P v.
Barraza (1979) 23 C3 675, 690 ["it is impermissible for the
police or their agents to pressure the suspect by overbearing
conduct such as badgering, cajoling, importuning, or other
affirmative acts likely to induce a normally law-abiding person to
commit the crime"]; Provigo Corp. v.
ABC Appeals Board (1994) 7 C4 561, 569 ["the rule is clear
that ruses, stings, and decoys, are permissible stratagems in the
enforcement of criminal law, and they become invalid only when
badgering or importuning takes place to an extent and degree that
is likely to induce an otherwise law-abiding person to commit a
crime"]; P v. McIntire (1979) 23 C3 742, 747 [defendant
"acquiesced after constant urging by her younger brother because
of sympathy aroused by family problems; and that the importuning
from her brother was the direct result of strong and persistent
pressure brought to bear by an undercover police agent"];
P v. Wesley (1990) 224 CA3 1130, 1144 ["There was here no
active or insistent encouragement or instigation by the police"].
9th CIR: Bradley v. Duncan (9C 2002)
315 F3 1091 [agent was an addict going through withdrawal who
begged the defendant to sell drugs]. OTHER:
US v. Shinderman (1C 2008) 515 F3 5, 14 [entrapment cannot
ordinarily occur in the absence of "something akin to excessive
pressure, threats, or the exploitation of an unfair advantage"];
US v. Rodriguez (1C 1988) 858 F2 809, 812-15 [police agents
engaged in "forceful" solicitation and "dogged insistence until
[the suspect] capitulated"]. COMPARE:
P v. Lee (1990) 219 CA3 829. 836 ["there was substantial
evidence that [the defendant] sold drugs to earn money, not out of
friendship"].

[18] USSC: Sherman v.
US (1958) 356 US369, 373 ["The informer himself testified
that, believing petitioner to be undergoing a cure for narcotics
addition, he nonetheless sought to persuade petitioner to obtain
for him a source of narcotics."]. CAL: P v.
Barraza (1979) 23 C3 675, 691 [defendant "was a past
offender trying desperately to reform himself but was prevented
from doing so by an overzealous law enforcement agent who
importuned him relentlessly until his resistance was worn down and
overcome"]; P v. Thoi (1989) 213 CA3 689, 694
["It would be repugnant for government agents to spawn Medi-Cal
fraud by playing upon the sympathies of Vietnamese doctors for
persons suffering in their mother country. Such circumstances
would provide a motive for the crime other than ordinary criminal
intent and might makes its commission unusually attractive."].
9th CIR: US v. Poehlman (9C 2000) 217
F3 692 [undercover female agent appealed to defendant's
loneliness].

[19] USSC: Sherman v. US (1958)
356 US 369, 376 [entrapment results when "the Government plays on
the weaknesses of an innocent party and beguiles him into
committing crimes which he otherwise would not have attempted."].
CAL: P v. Barraza (1979) 23 C3 675,
690 [appeal to "friendship or sympathy" would result in
entrapment]; P v. Thoi (1989) 213 CA3 689,
694 ["It would be repugnant for government agents to spawn
Medi-Cal fraud by playing upon the sympathies of Vietnamese
doctors for persons suffering in their mother country."].
9th CIR: US v. Poehlman (9C 2000) 217
F3 692, 698 ["the government induces a crime when it creates a
special incentive for the defendant to commit the crime"];
Bradley v. Duncan (9C 2002) 315 F3 1091, 1096 ["This was a
case in which the police used a decoy whose physical suffering
would appeal to the sympathies of most people."]. COMPARE:
US v. Vincent (10C 2010) 611 F3 1246, 1250-51
[not entrapment when CI merely asked defendant to sell him drugs
so that he could resell them and make some money to prevent being
evicted]; P v. Lee (1990) 219 C3 829, 836
["there was substantial evidence that Lee sold drugs to earn
money, not out of friendship"].

[20] CAL: P v.
Barraza (1979) 23 C3 675, 690 [entrapping conduct "would
include a guarantee that the act is not illegal or the offense
will go undetected, an offer of exorbitant consideration, or any
similar enticement"]. 9th CIR: US v.
Poehlman (9C 2000) 217 F3 692, 698 ["the government induces
a crime when it creates a special incentive for the defendant to
commit the crime"]. OTHER: US v.
Connell (1C 1992) 960 F2 191, 196 ["By their nature, sting
operations are designed to tempt the criminally inclined, and a
well-constructed sting is often sculpted to test the limits of the
target's criminal inclinations."]. COMPARE: P
v. Holloway (1996) 47 CA4 1757 [although undercover
officer sold drugs at less than retail, the court pointed out that
the officer sold the drugs "only after trying to negotiate a
higher price, which [the defendant] insisted he could not meet."];
P v. Peppars (1983) 140 CA3 677 [not
entrapment when, after defendant asked undercover officers if he
"knew of a warehouse to 'rip off,'" the officer said he could
obtain the keys to a certain warehouse from a former employee who
had made a set of duplicate keys; he added that the warehouse was
"full of stereo equipment, TVs and video recorders," and that the
burglary will "just be a matter of walkin' in, loadin' up and
walkin' out. No break in, no alarms or nothing'."]; P
v. Watson (2000) 22 C4 220, 224 [officers "merely
conveyed the idea detection was unlikely."].

[21] CAL: P v.
Barraza (1979) 23 C3 675, 690, fn.4; P v.
Lee (1990) 219 CA3 829, 836-37; CALCRIM 3408.

[22] CAL: P v.
Barraza (1979) 23 C3 675, 688 ["we are not concerned with
who first conceived or who willingly, or reluctantly, acquiesced
in a criminal project"]; ABC v.
ABC Appeals Board (2002) 100 CA4 1094 [undercover agent's
request for stripper to show "more skin" "was not of such a nature
that it was likely to induce a normally law-abiding person to
commit the offense."]; P v. McClellan (1980)
107 CA3 297 [undercover agent's question if anyone knew where he
could get a "sherm" was not entrapment]; P v.
Graves (2001) 93 CA4 1171, 1178 [after selling an agent
airline tickets purchased on stolen credit card, agent told
defendant he needed new tickets because he was not allowed to
board his return flight in Hawaii]. OTHER: US
v. Padron (11C 2008) 527 F3 1156, 1159 ["The mere
suggestion of a crime or initiation of contact is not enough."].

[23] USSC: Jacobson v.
US (1992) 503 US 540, 548 ["the fact that officers or
employees of the Government merely afford opportunities or
facilities for the commission of the offenses does not defeat the
prosecution"]. CAL: P v. Graves (2001)
93 CA4 1171, 1178; P v. Benford (1959) 53 C2
1, 15 [the officers "simply gave defendant the opportunity to
commit a crime, a legal, reasonable stratagem"];
P v. Barraza (1979) 23 C3 675, 690 ["Official conduct that
does no more than offer that opportunity to the suspect for
example, a decoy program is therefore permissible."];
CALCRIM 3408 [entrapment does not result "if an officer
simply gave the defendant an opportunity to commit the crime"];
P v. Benford (1959) 53 C2 1, 8 [entrapment does not result
if officers engage in nothing more than the "proper setting of
traps"] 9th CIR: US v. Poehlman (9C
2000) 217 F3 692, 701 ["Where government agents merely make
themselves available to participate in a criminal transaction,
such as standing ready to buy or sell illegal drugs, they do not
induce commission of the crime"].

[24] EXAMPLES: The following are
examples of lawful stings:

Drug sales stings: P v.
Holloway (1996) 47 CA4 1757, 1764 ["The police merely posed
as drug buyers and sellers in a notorious drug trafficking
area."]; US v. Sandoval-Mendoza (9C 2006) 472
F3 645, 649 ["Offering to buy drugs from a drug dealer is not
entrapment"]; P v. West (1990) 224 CA3 1337
[reverse sting, drugs]; P v. Wesley (1990)
224 CA3 1130 [reverse sting, drugs]. Also see US v.
Russell (1973) 411 US 423 [undercover officer did not
entrap a meth manufacturer merely because he provided him with a
precursor; an undercover officer who is trying to infiltrate a
criminal enterprise "will not be taken into the confidence of the
illegal entrepreneurs unless he has something of value to officer
them"].

Controlled delivery stings: P v.
Shapiro (1974) 37 CA3 1038, 1043.

Physician prescribing drugs stings: Douglass
v. Board of Medical Quality Assurance (1983) 141 CA3
645.

Prostitution stings: Reyes v.
Municipal Court (1981) 117 CA3 771, 778 [court rejects
argument that a john was entrapped "because he was deceived by
[the undercover agent's] looks and acts into thinking she was a
prostitute"].

Lewd conduct with a minor stings: P v.
Reed (1996) 53 CA4 389; US v.
Al-Cholan (6C 2010) 610 F3 945.

Liquor sales to minors stings: Provigo Corp.
v. ABC Appeals Board (1994) 7 C4 561, 568.

Bait car stings: P v. Watson (2000) 22
C4 220, 224 ["normally law-abiding persons do not take a car not
belonging to them merely because it is unlocked with the keys in
the ignition and it appears they will not get caught"].

[25] CAL: P v.
Barraza (1979) 23 C3 675, 690 ["decoy program" is
permissible if it "does no more than offer [an] opportunity"].

[26] OTHER: US v. Caguana (7C
2018) 884 F3 681, 690 ["It is well established that there is no
defense of private entrapment."].

[27] CAL: P v. McIntire (1979)
23 C3 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"]. 9th CIR:
Bradley v. Duncan (9C 2002) 315 F3 1091, 1096 [although the
officers did not badger the defendant, "their decoy did"].
COMPARE: P v. Thoi (1989) 213 CA3 689, 697 [while
some police operatives "may have played upon the sympathies of
some doctors" to prescribe controlled drugs, there is no evidence
the government fostered, encouraged, or condoned this ploy"].
NOTE: It is often necessary to utilize informants because
"it is unrealistic to expect law enforcement officers to ferret
out criminals without the help of unsavory characters."
US v. Simpson (9C 1987) 813 F3 1462, 1464.

[28] USSC: Sherman v. US (1958)
356 US 369, 374, fn.2.

[29] USSC: Sherman v. US (1958)
356 US 369, 374 [informant was "under criminal charges for
illegally selling narcotics and had not yet been sentences"].

[30] USSC: Sherman v. US (1958)
356 US 369, 374-75 [officer "admitted that he never bothered to
question [the informant] about the way he had made contact with
petitioner. The Government cannot make sure use of an informer and
then claim disassociation through ignorance."].