Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F00155.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant Donald Jason Diffin appeals his convictions for evading a police officer (Veh. Code, § 2800.2, subd. (a)) and possessing burglary tools (Pen. Code, § 466). On appeal, he contends the trial court erred in refusing to instruct the jury on an entrapment defense and excluding evidence of the Folsom Police Department pursuit policies, as it was evidence tending to prove either a defense of entrapment or outrageous police conduct. We shall affirm.
Hereafter, undesignated section references are to the Penal Code.
Factual Background
Around 4:00 a.m. on January 3, 2007, Folsom Police Detective Carl Siegler was in an unmarked police car in a shopping center parking lot next to two empty cars. He noticed a blue BMW come into the shopping complex and park in front of a closed business in a smaller nearby shopping mall. Defendant got out of the car, pulled the hood of his sweatshirt over his head, went to the glass doors of a number of closed stores and businesses, and looked into each of them. He then stood for about a minute and walked back to his car. Defendant got back into his car and drove alongside the buildings; he stopped in front of one for about 30 seconds. He then drove to the cars in the parking lot, including Detective Siegler’s car, and slowed to a stop at each car. When he slowed down next to Detective Siegler’s vehicle, the two made eye contact. Defendant then drove out of the complex.
When defendant first began peering through store windows, Detective Siegler radioed the other officers with which he was working, including Sergeant Hillman, to alert them. As defendant left the parking lot, Detective Brian Lockhart pulled in behind his car. Detective Lockhart was also in an unmarked police car. Detective Lockhart followed defendant at a distance of a few car lengths. Defendant was driving at normal speeds, then made an abrupt lane change, a U-turn, and headed toward the freeway. Once on the freeway, defendant accelerated as if trying to “get away” from Detective Lockhart. He accelerated to speeds “well over a hundred miles an hour.”
Detective Lockhart maintained radio contact with Sergeant Hillman; they were attempting to get a marked patrol car on scene so they could stop defendant. Defendant left the freeway and turned right over a bridge. As Detective Lockhart got to the end of the bridge, he saw marked patrol cars behind him. The overhead lights of the patrol cars were activated.
After driving a mile or two down the road, defendant turned off the headlights of his car. He continued driving with his lights off and ran a red light. Detective Lockhart caught up to the vehicle and the doors opened, but no one got out of the car. Then reverse lights came on and defendant started driving again. At that point, the marked patrol units took primary position in the pursuit.
Officer Debra Salvo was one of the officers in a marked patrol car involved in the pursuit of defendant. Her overhead lights and sirens were activated while she pursued defendant. Officer Fardanesh, also in a marked police car with full lights and sirens activated, was behind Officer Salvo. Officer Salvo saw defendant driving over 100 miles per hour, saw him turn off all of his lights and run a red light. After defendant had opened the doors to his car and the reverse lights had come on, defendant “took off again” and was driving at approximately 80 miles per hour. Officer Fardanesh briefly put his spotlight on defendant’s car. In response, defendant sped up. Defendant continued driving at about 80 miles per hour, and drove through three stop signs. Eventually, he crashed into a dirt embankment and the pursuit ended.
Defendant was wearing gloves. When officers searched defendant, they found a silver center punch used for glass and a shaved key. Upon searching the vehicle, officers found a crowbar, gloves and a flashlight. These are the kinds of tools typically used in burglaries.
A shaved key is a key that is filed down to allow it to be used on any vehicle.
Petr Pekun owned the BMW and was in the passenger seat when the pursuit occurred. When Pekun and defendant first noticed cars were following them, they did not know it was the police because the cars were unmarked. Pekun noticed the marked cars with lights and sirens activated when they left the freeway. Pekun testified defendant had continued driving for “probably” 10 minutes after they heard the sirens and saw the marked police cars. Seeing that officers were trying to pull them over, Pekun suggested to defendant “maybe we should stop.” The items found in the car were not Pekun’s.
The record is unclear as to how many unmarked cars were following defendant. Pekun testified that the BMW was being followed by two unmarked cars. Detective Siegler stated that after he called the other members of his unit, Detective Lockhart and another officer, Detective Unden, radioed that they were in the area. However, he only saw Lockhart’s vehicle.
Procedural History
Defendant was charged with reckless evading a police officer (Veh. Code, § 2800.2, subd. (a)) and misdemeanor possession of burglary tools (Pen. Code, § 466). It was further alleged that defendant had previously been convicted and had served five prior prison terms. (Pen. Code, § 667.5, subd. (b).) Following a jury trial, defendant was convicted on all counts. The trial court found the five prior convictions true. However, since two of the convictions resulted in a single prison term, the court sustained four of the five prior prison term allegations. Defendant was sentenced to an aggregate term of six years.
Discussion
I
Defendant contends the trial court erred in refusing his request to instruct the jury on an entrapment defense. Having reviewed the record, we find, as the trial court did, that there was no substantial evidence to support giving an entrapment instruction.
Facts
At the close of evidence, defense counsel requested the jury be instructed with CALCRIM No. 3408. Defendant asserted “this [offense] would not have occurred had the unmarked police officers not tailed my client in the early morning hours, in an area where there was no other traffic....” The People argued the entrapment instruction should not be given, as entrapment is not a valid defense to resisting arrest or evading an officer.
CALCRIM No. 3408 provides: “Entrapment is a defense. The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard from proof beyond a reasonable doubt. To meet this burden, the defendant must prove that it is more likely than not that (he/she) was entrapped.
The court reviewed the law surrounding the entrapment defense, specifically noting that the purpose of the defense is to deter police misconduct, as the function of law enforcement is to discover, not promote crime. The court also noted, “Merely providing people in general an opportunity to commit a crime, is not an improper enticement or otherwise entrapment. 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.”
Applying the principals of People v. Barazza (1979) 23 Cal.3d 675 (Barazza), the court found “the crime charged in which the entrapment defense would apply is the crime charged as Count One, which is the Vehicle Code violation of [section] 2800.2[, subdivision (a)]. That crime requires, in addition to the other elements, that there be a marked patrol vehicle, officer’s distinct uniform, lights and siren. I do not see that there has been substantial evidence produced in this trial to support giving an entrapment defense, based on the requirements of the law for Count One. [¶] The defense claim is that since [defendant] was being followed or chased by an unmarked patrol vehicle, since it was being driven by a police officer, although the vehicle was not clearly marked or distinguished, it in fact was a police car. And therefore, that is the reason that [defendant] attempted to elude that unmarked car. [¶] So the defense theory is that certainly presents enough evidence for the jury to at least consider whether or not [defendant] was entrapped, but I do not see how that clearly fits into the requirements of producing substantial evidence that [defendant] evaded a marked patrol vehicle, which is required for Count One.” Accordingly, the court denied defendant’s request.
Defendant characterizes this last sentence as the court concluding that defendant had presented sufficient evidence for the jury to consider an entrapment defense. That is not our reading of the court’s statement. Rather, the court was presenting the defense theory that they had presented sufficient evidence for consideration of an entrapment defense.
Analysis
The trial court is required to instruct the jury on the defense of entrapment only if substantial evidence supports the defense. (People v. Watson (2000) 22 Cal.4th 220, 222.) In this context, substantial evidence is evidence from which reasonable jurors could conclude that the defendant was entrapped. (People v. Marshall (1997) 15 Cal.4th 1, 39-40.)
“In California, unlike in federal courts, the test for entrapment focuses on the police conduct and is objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense. [Citation.]” (People v. Smith (2003) 31 Cal.4th 1207, 1213 (Smith).) “For the purposes of this test, we presume that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official 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 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.” (Barraza, supra, 23 Cal.3d at p. 690.)
As the court noted, the only offense upon which an entrapment defense could have been offered was on the charge of evading an officer under section 2800.2, subdivision (a). This section proscribes fleeing from or attempting to elude a pursuing police officer by driving with a willful or wanton disregard for the safety of persons or property, when that officer is in a marked police car, in uniform, and the red light and siren are activated.
Defendant contends he would not have evaded the officers in the marked cars with their sirens activated if Detective Lockhart had not first followed him from the mall and then chased him on the freeway in the unmarked car. Defendant suggests he fled the mall and sped down the freeway because he did not know who was chasing him and was scared. He claims that without this initial conduct by the police, he would not have continued his flight, driving at high speeds and through stop signs on residential streets. Accordingly, the argument follows, without Detective Lockhart’s conduct, he would not have engaged in the unlawful conduct of evading the officers in the marked police cars. Therefore, the entrapment instruction should have been given.
Officers in marked cars, with their lights and sirens activated, were obvious to defendant and his passenger upon exiting the freeway. For about 10 minutes after seeing the marked police cars and hearing the sirens, defendant continued his evasive driving at speeds over 80 miles per hour and through three stop signs. All the while, marked police cars with their sirens and lights engaged were following him. At one point, one of the officers in a marked car put his spotlight on defendant’s car. Defendant’s response was to speed up. He only stopped his high-speed flight when he crashed into a dirt embankment.
First, we do not accept the premise that Detective Lockhart’s conduct of following defendant out of the mall would have induced a normal law-abiding person to engage in evasive maneuvers such as abrupt lane changes, a U-turn, and driving at speeds of over 100 miles per hour on the freeway. Second, even if we were to accept the first premise, we cannot accept the premise that a normal law-abiding person who was afraid he was being followed by a villain intent on unknown horrors to his person would continue to flee upon seeing police cars with their sirens and lights engaged. Rather, we believe a normal law-abiding person frightened for his or her safety would see the marked vehicles as the cavalry riding in.
On this record, even if defendant’s claims of fear were believed, there is no evidence from which reasonable jurors could conclude that the defendant was entrapped by the officers’ conduct. There just were no affirmative acts by the officers here that were “likely to induce a normally law-abiding person to commit the crime” of evading a police officer. (Barazza, supra, 23 Cal.3d at p. 690.) Flight from the police is not the typical response of the average law-abiding citizen. (See Ellison v. State (Del. 1979) 410 A.2d 519, 527.) Accordingly, it was not error to refuse to give an instruction on entrapment.
II
Defendant next contends the trial court prejudicially erred in excluding evidence of the pursuit policies of the Folsom Police Department. Specifically, defendant claims under these policies it was “not permissible for unmarked police vehicles to engage in and initiate a high speed pursuit.” Defendant claims this evidence was relevant to the defense of entrapment and the defense of outrageous police conduct, as it tended to show the police conduct in the pursuit was improper.
Defendant’s June 2, 2008, request to augment the record on appeal to include these pursuit policies is denied.
Facts
Defendant moved in limine to admit evidence of the Folsom Police Department pursuit policies, specifically seeking to introduce the policy that unmarked police cars are not allowed to pull people over and are not allowed to initiate high-speed pursuits. Defendant claimed that the policy was relevant in assessing either an entrapment defense or an outrageous police conduct defense because it would enable the trier of fact to evaluate the police conduct and consider whether the police broke any of their codes or policies. The court agreed that the conduct of the police was relevant, but questioned how the policy was relevant. Defendant countered that under the policy and the law, “[a] driver of an emergency vehicle is only exempt from the rules of the road if it’s being driven in response to an emergency” and sounds its siren and displays a red light. Defendant also argued that conduct of the officers was not to be viewed in a vacuum; the surrounding circumstances were also relevant in assessing the officers’ conduct.
The district attorney responded that there were, in fact, circumstances under the policy in which an unmarked vehicle was permitted to be involved in a pursuit. She also noted that going into the policy would then “open the door on why the police were in the parking lot at that time because they would have to establish that they were following their policy, because they were there investigating the rash of commercial burglaries that had been going on, etc., because they would have to show that it was serious crimes they were there investigating.” The court noted the crime of evading an officer only applies when there is a siren and lamp activated. The district attorney then responded by asserting that the court’s comment further undermined the claimed relevance of the policy, because Detectives Siegler and Lockhart, who were in the unmarked vehicles, were not the officers involved in the pursuit for which defendant was being charged.
Ultimately, the court found that the policies, as opposed to the conduct of the officers, were not relevant. The court noted the reason the officers were in the parking lot in the first place would not be before the jury and found that bringing in the policies would necessitate also bringing in the collateral issues on the burglaries that had occurred at the shopping center and were the reason the officers were there.
Analysis
The principles governing the admission of evidence are well settled. Only relevant evidence is admissible (Evid. Code, §§ 210, 350), “and all relevant evidence is admissible unless excluded under the federal or state Constitutions or by statute” (People v. Heard (2003) 31 Cal.4th 946, 973). “The test of relevance is whether the evidence tends ‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent, or motive.” (People v. Garceau (1993) 6 Cal.4th 140, 177.) The trial court has broad discretion in determining the relevance of evidence. (See People v. Crittenden (1994) 9 Cal.4th 83, 132.) Evidence that has no tendency to prove or disprove any material fact, but simply leads to speculative inferences is irrelevant evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1034, 1035.) We review for abuse of discretion a trial court’s rulings on the admissibility of evidence. (Heard, supra, 31 Cal.4th at p. 972.)
A. Entrapment
Here, the question is whether the evidence of the Folsom Police Department pursuit policies was relevant to show that the law enforcement officer’s conduct in possibly violating those policies was likely to induce a normally law-abiding person to commit the offense of evading a police officer. As stated above, we presume the normal law-abiding person, merely presented with an opportunity to act unlawfully, would resist that temptation. (Watson, supra, 22 Cal.4th at p. 223.)
In applying this test, the California Supreme Court has provided two guiding principles: “First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established. An example of such conduct would be an appeal by the police that would induce such a person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose. Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment. Such conduct would include, for example, a guarantee that the act is not illegal or the offense will go undetected, an offer of exorbitant consideration, or any similar enticement.” (Barraza, supra, 23 Cal.3d at p. 690, fn omitted.)
As discussed fully above, the affirmative acts of the officer pursuing defendant in the unmarked vehicle were not acts “likely to induce a normally law-abiding person to” continue evasive driving at speeds over 80 miles per hour and through multiple stop signs after marked police cars with their lights and sirens engaged have joined the pursuit. (Smith, supra, 31 Cal.4th at p. 1213.) No reasonable jury could have found them to be so. Defendant failed to present any other relevant evidence to show that the officer engaged in conduct that would have caused a normally law-abiding citizen to violate the law. We conclude, therefore, that the court did not abuse its discretion in excluding evidence of the Folsom Police Department pursuit policies.
B. Outrageous Governmental Conduct
The notion of the outrageous government conduct defense arises from dictum in United States v. Russell (1973) 411 U.S. 423, 431-432 [36 L.Ed.2d 366] (Russell). There, in discussing the entrapment defense, the court noted that “the principal element in the defense of entrapment was the defendant’s predisposition to commit the crime.” (Id. at p. 433.) The court went on to suggest it might “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.” (Id. at pp. 431-432.) The kind of law enforcement conduct that would so bar prosecution would be that which violated “that ‘fundamental fairness, shocking to the universal sense of justice,’ mandated by the Due Process Clause of the Fifth Amendment.” (Id. at p. 432.)
In federal law, the focus on the defendant’s predisposition to commit the crime, as opposed to law enforcement conduct, is what distinguishes an entrapment defense from one of outrageous governmental conduct. In California, however, the focus of an entrapment defense is already on the actions of the police. Because the focus in California is already on the conduct of law enforcement, it is unclear whether in an entrapment context, outrageous governmental conduct is a bar to prosecution.
The California Supreme Court has suggested that “[s]ufficiently gross police misconduct could conceivably lead to a finding that conviction of the accused would violate his constitutional right to due process of the law.” (People v. McIntire (1979) 23 Cal.3d 742, 748, fn. 1.) Despite the suggestion in McIntire, to date our Supreme Court has not answered the ultimate question of whether the claim of outrageous law enforcement conduct is redundant in the context of an entrapment case. (See Smith, supra, 31 Cal.4th at p. 1227.)
At least one California court has held that the defense of outrageous governmental conduct might have application outside the entrapment arena, but does not exist as a separate defense in entrapment cases. (People v. Thoi (1989) 213 Cal.App.3d 689, 696 & fn. 3.) The Thoi court concluded “where entrapment law looks primarily at the conduct of the authorities in the first instance, the defense of outrageous police conduct is superfluous.” (Id. at p. 696, fn. omitted.)
Even assuming for the sake of argument that a defense of outrageous police conduct exists in California apart from entrapment, the conduct at issue here did not rise to that level. There is no evidence of outrageous police conduct in this case.
If such a defense exists in California, the California Supreme Court has suggested the factors to be considered in “determining whether due process principles [have] been violated by outrageous police conduct [are]: (1) whether the police manufactured a crime that otherwise would not likely have occurred, or merely involved themselves in an ongoing criminal activity; (2) whether the police themselves engaged in criminal or improper conduct repugnant to a sense of justice; (3) whether the defendant’s reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation of exorbitant gain, or by persistent solicitation in the face of unwillingness; and (4) whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace. [Citation.]” (Smith, supra 31 Cal.4th at pp. 1225-1226.)
“Although the requirement of outrageousness has been stated in several different ways by various courts, the thrust of each of these formulations is that the challenged conduct must be shocking, outrageous, and clearly intolerable. [Citations.] [¶] The cases make it clear that this is an extraordinary defense reserved for only the most egregious circumstances. It is not to be invoked each time the government acts deceptively or participates in a crime that it is investigating.” (United States v. Mosley (10th Cir. 1992) 965 F.2d 906, 910 (Mosley).)
As stated previously, government conduct is “outrageous” so as to preclude prosecution only when it is a violation of “‘fundamental fairness, shocking to the universal sense of justice.’” (Russell, supra, 411 U.S. at p. 432, quoting Kinsella v. United States (1960) 361 U.S. 234, 246 [4 L.Ed.2d 268].) A defendant who fails to show entrapment can still claim “outrageous conduct,” but only “if he was subjected to police conduct repugnant to the American system of criminal justice.” (United States v. Lomas (9th Cir. 1983) 706 F.2d 886, 891 (Lomas).)
The police conduct here was not so shocking as to violate this standard. Here, officers were at the shopping mall parking lot surveilling the area because of a rash of commercial burglaries. In the extremely early hours of the morning, defendant engaged in suspicious behavior, which looked as though he was “casing” the stores. Once he left the mall, an officer, who was soon joined by others, followed him. Nothing in these acts “manufactured” a crime or was improper. Then, defendant engaged in evasive maneuvers and drove at excessively high speeds. The officer’s decision to continue following defendant may have been a violation of the department’s pursuit policies, but it was not improper conduct “repugnant to [a] sense of... justice.” (Lomas, supra, 706 F.2d at p. 891.) The conduct at issue here falls far short of being “shocking, outrageous, and clearly intolerable.” (Mosley, supra, 965 F.2d at p. 910.)
In addition, the defense of outrageous governmental conduct requires proof of a causal nexus between the government’s conduct and the defendant’s crime. (See e.g. State v. Van Winkle (1993) 254 Kan. 214, 220 [864 P.2d 729]; United States v. Barnett (D.Ala. 1992) 814 F.Supp. 1449, 1456 [it is not enough that the confession was caused by the interrogation; it must be caused by improper police conduct].)
We fail to see the necessary causal nexus between the officer following defendant in an unmarked vehicle and the crime defendant committed here. Defendant’s crime did not start when the officer in the unmarked vehicle was following him. It started when he drove for about 10 minutes at speeds over 80 miles per hour and through multiple stop signs after marked police cars, with their lights and sirens activated, were following him. Defendant has not presented any evidence, nor made a convincing argument, which suggests how the conduct of the first officer caused his criminal conduct once it was obvious he was being pursued by police officers. Accordingly, evidence of the police pursuit policies was not relevant to any material issue in the case and it was not error for the court to exclude it.
Disposition
The judgment is affirmed.
We concur: SIMS, Acting P. J., HULL, J.
“A person is entrapped if a law enforcement officer [or (his/her) agent] engaged in conduct that would cause a normally law-abiding person to commit the crime.
“Some examples of entrapment might include conduct like badgering, persuasion by flattery or coaxing, repeated and insistent requests, or an appeal to friendship or sympathy.
“Another example of entrapment would be conduct that would make commission of the crime unusually attractive to a normally law-abiding person. Such conduct might include a guarantee that the act is not illegal or that the offense would go undetected, an offer of extraordinary benefit, or other similar conduct.
“If an officer [or (his/her) agent] simply gave the defendant an opportunity to commit the crime or merely tried to gain the defendant’s confidence through reasonable and restrained steps, that conduct is not entrapment.
“In evaluating this defense, you should focus primarily on the conduct of the officer. However, in deciding whether the officer’s conduct was likely to cause a normally law-abiding person to commit this crime, also consider other relevant circumstances, including events that happened before the crime, the defendant’s responses to the officer’s urging, the seriousness of the crime, and how difficult it would have been for law enforcement officers to discover that the crime had been committed.
“When deciding whether the defendant was entrapped, consider what a normally law-abiding person would have done in this situation. Do not consider the defendant’s particular intentions or character, or whether the defendant had a predisposition to commit the crime.
“[As used here, an agent is a person who does something at the request, suggestion, or direction of an officer. It is not necessary that the agent know the officer’s true identity, or that the agent realize that he or she is actually acting as an agent.]
“If the defendant has proved that it is more likely than not that (he/she) <insert charged crime, e.g., committed embezzlement> because (he/she) was entrapped, you must find (him/her) not guilty of <insert charged crime>.”