Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC-06-3361
Marchiano, P.J.
Hong Soi Lau was convicted of unlawful possession of a “billy” under Penal Code section 12020, subdivision (a).) He contends the trial court committed reversible error by denying his in limine motion to present evidence relating to the defense of entrapment by estoppel. As discussed below, we find no error and affirm.
Further statutory references are to the Penal Code.
Background
An information filed March 29, 2007, and amended on May 15, 2007, charged defendant with a felony violation of section 12020, subdivision (a), that is, unlawful possession of a “billy.” It additionally charged defendant with misdemeanor count of unlawful possession of drug paraphernalia (Health & Saf. Code, § 11364), set out enhancement allegations under sections 12022.1 and 1170.12, subdivision (c)(1), and set out an allegation restricting any grant of probation pursuant to section 1203, subdivision (e)(4). Defendant initially pleaded not guilty to the charges and denied the special allegations.
At the preliminary hearing preceding the information, a Daly City police officer testified that she conducted a traffic stop of defendant’s vehicle early in the morning on March 5, 2007. Defendant identified the vehicle as his own, and stated he was currently on bail on charges pending in San Francisco. The officer then conducted a search of the vehicle, with defendant’s consent, and found a collapsible baton of a type commonly used by law enforcement officers. Defendant admitted the baton was his, and explained that he kept it because it was “better to have [the baton] than a gun.” When the officer informed defendant that his possession of the baton was illegal, the latter said that other officers had searched his car previously, yet they had neither seized the baton, nor advised him that its possession was unlawful. After defendant’s arrest, another officer searched the vehicle a second time and found a glass pipe of a type “commonly used to smoke illegal drugs.”
On May 14, 2007, defendant made a motion in limine seeking to present, during the jury trial, evidence relating to the defense described as “entrapment by estoppel.” (See, e.g., People v. Chacon (2007) 40 Cal.4th 558, 567 (Chacon).) At the hearing on this motion, held the following day, defendant made an offer of proof to the effect that he had been stopped by San Francisco police officers on January 31, 2007, some five weeks before his arrest in March. These officers searched his vehicle, and one, after finding the collapsible baton, returned it to defendant. Defendant consequently believed that his possession of the baton was legal. The trial court accepted the offer of proof at face value, determined it was insufficient to establish the elements of the defense, and denied defendant’s motion.
Later that same day, defendant changed his plea to a “slow plea,” with the understanding that the trial court would find him guilty of violating section 12020, subdivision (a). The court found defendant guilty of that charge and, pursuant to the parties’ agreement, dismissed the remaining misdemeanor count. Defendant then admitted the special allegations under sections 12022.1, 1170.12, and 1203.
A “ ‘slow plea’ ” is “an agreed-upon disposition . . . which does not require the defendant to admit guilt but results in a finding of guilt on an anticipated charge and, usually, for a promised punishment.” (People v. Tran (1984) 152 Cal.App.3d 680, 683, fn. 2.) The plea typically involves, as it did here, “a submission of the guilt phase to the [trial] court on the basis of the preliminary hearing transcripts [and is] tantamount to a plea of guilty, because guilt is apparent on the face of the transcripts and conviction is a foregone conclusion if no defense is offered.” (People v. Sanchez (1995) 12 Cal.4th 1, 28.)
At the subsequent sentencing hearing, held June 20, 2007, the court first granted defendant’s motion to strike the enhancement allegation under section 1170.12, subdivision (c)(1). The court then denied probation, finding no unusual circumstances that would permit its grant within the meaning of section 1203, subdivision (e)(4). It imposed a midterm sentence of two year’s imprisonment for defendant’s conviction under section 12020, subdivision (a), less 162 days for actual and good time/work time credits. It stayed the additional prison term authorized by defendant’s admission of the section 12022.1 enhancement allegation. This appeal followed. (§ 1237, subd. (a).)
Discussion
Defendant argues the trial court committed reversible error by denying his motion to present evidence relating to the defense of entrapment by estoppel. Essentially, he reasons that his offer of proof was sufficient because the “conduct” of the San Francisco police officers led him to a reasonable belief that it was legal for him to possess the baton. He urges that the trial court was “plainly erroneous” to the extent it relied on the fact that the evidence failed to show any “actual, verbal authorization” on the part of those officers.
Our Supreme Court has recently recognized the defense of entrapment by estoppel, tracing the origin of the defense—based on constitutional due process rather than the concept of estoppel—in three U.S. Supreme Court decisions, and noting its subsequent development in decisions of the federal courts of appeals. (Chacon, supra, 40 Cal.4th at pp. 567-569, citing, inter alia, Raley v. Ohio (1959) 360 U.S. 423, Cox v. Louisiana (1965) 379 U.S. 559, and United States v. Pennsylvania Chem. Corp. (1973) 411 U.S. 655.) The Supreme Court, however, explained that the federal decisions considering the defense “have cautioned that [it] is narrowly circumscribed.” (Chacon, supra, 40 Cal.4th at p. 569, citing, inter alia, U.S. v. Spires (5th Cir. 1996) 79 F.3d 464, 466 (Spires), U.S. v. Corso (2d Cir. 1994) 20 F.3d 521, 528 (Corso), and U.S. v. Smith (1st Cir. 1991) 940 F.2d 710, 714.) It summarized the defense as one that “rest[s] on the premise that the government may not actively provide assurances that conduct is lawful, then prosecute those who act in reasonable reliance on those assurances.” (Chacon, supra, at p. 568, italics added.)
To paraphrase the foregoing language in Chacon, it is clear to us that a defendant, to make a prima facie showing of the defense, must among other things show that he or she reasonably relied on assurances actively provided by a government official. In other words, the application of this “narrowly circumscribed” defense requires in part that the defendant show that an authorized government official “affirmatively told [the defendant that] the proscribed conduct was permissible” (U.S. v. Ramirez-Valencia (9th Cir. 2000) 202 F.3d 1106, 1109), “misrepresented” a “point of law” to the defendant (U.S. v. Funches (11th Cir. 1998) 135 F.3d 1405, 1407), “actively assure[d the] defendant that certain conduct [was] legal” (Spires, supra, 79 F.3d at p. 466), or “announced that the charged criminal act was legal” (U.S. v. Levin (6th Cir. 1992) 973 F.2d 463, 468).
As defendant has noted, in concluding that his offer of proof was insufficient, the trial court relied in part on the lack of any showing of some active assurance by the San Francisco police officers that his continued possession of the baton was legal. We reject defendant’s assertion that the court “plainly” erred in doing so. In positing that the conduct of the San Francisco police officers was sufficient to satisfy this element—that is, the officers’ act of returning the baton to him without comment—defendant relies primarily on language taken from U.S. v. Abcasis (2d Cir. 1995) 45 F.3d 39 (Abcasis) and U.S. v. Giffen (2d Cir. 2006) 473 F.3d 30 (Giffen). The language cited by defendant is, however, taken out of context, and these authorities ultimately confirm the Supreme Court’s observation in Chacon, that the defense of entrapment by estoppel rests in part on an official’s active provision of an assurance that the conduct in question is legal.
The court of appeals in Giffen concluded that it was not sufficient for the defendant in that case to rely on an official’s mere failure to “volunteer an observation that the conduct was illegal,” citing to several other decisions requiring an affirmative representation or active assurance. (Giffen, supra, 473 F.3d at p. 43, fn. 13.) Similarly, the court of appeals in Abcasis held that the defendants were entitled to present evidence on the defense of entrapment by estoppel, when their testimony presented a factual question whether federal drug agents had in fact made a series of communications to them indicating either a solicitation of defendants to engage in criminal conduct as cooperating informants, or an assurance that they were authorized to engage in the criminal conduct. (Abcasis, supra, 45 F.3d at pp. 43-45.) That court distinguished one of its earlier decisions, in which it had held the defense was not applicable, in part because in the earlier case there had been no showing “of any communication by a government official.” (Id. at p. 44, citing Corso, supra, 20 F.3d at p. 528.)
In sum, we conclude that, because defendant’s offer of proof made no showing of any actual affirmative assurance from the San Francisco police officers that his continued possession of the baton was legal, the defense of entrapment by estoppel was inapplicable as a matter of law.
We do not reach the issue whether a street police officer would qualify as an authorized government official, aware of all necessary facts, empowered to render the erroneous advice. (See U.S. v. Batterjee (9th Cir. 2004) 361 F.3d 1210,1216.)
Disposition
The judgment is affirmed.
We concur: Swager, J., Margulies, J.