Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC622793
McAdams, J.
A jury convicted defendant of attempted lewd or lascivious act on a child under the age of 14. (Pen. Code §§ 664/288, subd. (a).) Defendant was placed on probation for three years. On appeal, defendant contends reversal of his conviction for an attempted lewd act is required because (1) he was entrapped as a matter of law, and the trial court therefore should have granted his motion for judgment of acquittal; and (2) the court should have granted his motion for a new trial because the court’s entrapment instructions were constitutionally defective. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF FACTS
In December 2005, San Jose Police Officer David Gonzales was assigned as a detective in the Child Exploitation Unit. He has taken and taught classes on internet crimes against children, and is knowledgeable about how children and adults access the internet sites My Space and Craigslist. According to Detective Gonzales, these two sites “are both becoming problems with law enforcement in regard to child sexual predators.” Detective Gonzales believes that “Craigslist has avenues to find young girls and meet them and sexually assault them” and that the presence of sexual predators posing as minors on My Space has “become more and more rampant.”
While working in the Casual Encounters section of Craigslist, he found a posting which said: “$300 ASAP for young white, Latina or Asian Girl for $$$. Stated areas: Gilroy, Sunnyvale, Fremont, Hayward areas.” The person posting the ad described himself as an “attractive, fit, clean, young guy here with $300 to donate to cute young Latina, white or Asian girl.” The ad continued: “I’m available now and looking to donate. I will not consider responses that have no pictures, so please attach your pic. I will call you immediately if you include your number.”
All quotation of online messaging is reproduced exactly as it appears in the reporter’s transcript and contains slang abbreviations frequently used in text messaging.
Posing as Amber, a 13-year-old runaway from a foster home, Detective Gonzales sent a response to the ad. Defendant replied, “What city are you in? Can we talk about this. Give me your number, and I’ll give you a buzz. Or if you would rather meet somewhere else, that’s okay, too.” Amber/Gonzales responded that she would rather meet somewhere, but also suggested that they chat via instant messaging. Defendant said he could not chat at work and again offered to meet somewhere to talk. Amber/Gonzales replied that she could meet him near her apartment complex “before 4 because my mom gets home at 5.” Defendant said he could meet her “anytime,” and asked her to pick a time and place.
Amber/Gonzales suggested they meet in the Starbucks parking lot at “the alameda and race at 3” and asked defendant what kind of car he drove. Defendant agreed, said he drove a gray Honda Accord, and asked her for a picture of herself so that he would know her when he saw her.
Amber/Gonzales sent defendant a picture of one of the female undercover officers when she was 12 or 13 years old, along with the question: “Are u sure ur ok with me only being 13?” She also told defendant to bring condoms and the $300. Defendant replied: “I don’t think we should do anything, sweetie. I just want to talk to you. I will help you out, though. I’ll give you some cash, even though we don’t do anything. I just want to help because I don’t want you responding to a bunch of other ads and finding someone who might be a creep.” Amber/Gonzales responded: “ok, so your gonna give me 300 just to hang out, hmmmm.” Defendant replied that he was leaving and would see her at 3:00 p.m. Amber/Gonzales persisted: “ok, so ur going to give me 300, tho’ right?” Apparently, defendant did not reply.
Detective Gonzales and a team of four detectives and a supervisor went to the Starbucks but they did not see defendant. Gonzales thought he had not shown up. Gonzales then initiated another round of emails, which starts: “I was there at 3. you flaked on me wats up?” Defendant replied that he had been in the parking lot behind the Starbucks from 2:45 to 3:20 p.m. They made a plan to meet the next day at 1:00 p.m. in the same place. Defendant asked her to send him another picture, saying: “Sorry to be paranoid, but lots of times people use other people’s pictures.” Amber/Gonzales sent defendant another picture of the undercover agent, saying it was taken on her birthday. When defendant saw it he remarked: “which B-day is that? You look so much older in your other picture.” Amber/Gonzales responded that it was her 12th birthday.
Amber/Gonzales asked for a picture of defendant, and defendant sent one to her, but she was unable to open it. Defendant responded: “Hello? Didn’t like the pic. If not, that’s okay. I understand. I’d still like to email you, though. I think you’re making a mistake by running away. But I’d like to hear your side of why you think you have to.” Amber/Gonzales clarified that she had not seen his picture, and added: “It’s kewl you don’t want to meet me. ill hook up with someone else.”
According to Gonzales, he made this statement to “give defendant an out,” that is, an opportunity to cease corresponding with Amber/Gonzales. However, defendant replied, “Tomorrow at 1:00 is okay, and I’ll see if you want me to. I guess I’m a little worried about a few things. One, your age. Two, I don’t know how much experience you’ve had with guys, and I’m not sure how you’d react to everything. Are you sure you will be okay with it? You know better than me, so I’ll trust your judgment.” Amber/Gonzales replied: “yea, I’m kewl with it. Ive had sex before and like it. But you never sent me another pic of you, but if you got the 300 its all good just make sure you bring condoms, ok.”
Defendant described himself but did not send another picture. He informed Amber/Gonzales that he had signed up for instant messaging. They exchanged screen names and from that point forward defendant and Amber/Gonzales communicated via instant messaging. Amber/Gonzales asked defendant his nationality and defendant replied that he was “half white, half Asian.” The following conversation took place:
“[Defendant (hereafter D)]: But why do you want to run away? Your mother?
“[Amber/Gonzales (hereafter A/G)]: yes, I dont like it here.
“[D]: But where would you go?
“[A/G]: I don’t kno. I gess hang with peeps on the street.
“[D]: Have you met anyone from Craigslist before?
“[A/G]: no, I just ur ad, ad thot id give it a try.
“[D]: How can I be sure you’re not setting me up?
“[A/G]: Huh, wat u mean?
“[D]: Sorry, but you’re so young. I want to help you out so you don’t try seeing a bunch of guys from Craigslist, but
“[A/G]: but?
“[D]: I’m just worried you might be a cop or something, a set up. How can I be sure?
“[A/G]: Huh, wat u mean? Ur scarin me. I don’t want to get in truble.
“[D]: I’m the one who would get in trouble.
“[A/G]: ur gong to call the cops on me?
“[D]: No, of course not. I’m saying I’m worried that you might be a cop setting me up.
“[A/G]: u kiddin me?
“[D]: You never know, sweetie. How can I be sure? Can you tell me something to assure me?
“[A/G]: i dont kno its kewl if u dont wana meet.
“[D]: I do want to meet. How about if we do this. Let’s make a deal we’ll meet and go to your place.
“[A/G]: Ummm, ok.
“[D]: If we don’t do anything, I’ll give you $100 for just meeting me and talking for a few minutes. If we decide … we want to do other things, I will give you the full $300.
“[A/G]: ok, I guess thats kewl.
“[D]: In fact, let’s do this. I’ll leave it up to you. If you like me, we can. If not, you can take your 100 and we won’t do a thing.
“[A/G]: ok, kewl . Just promis me u wil bring condoms. I dont wana get preg.
“[D]: I will bring them, no problem. But you’re sure your mother won’t come home and walk in on us, right?
“[A/G]: K, I don’t wana b a 13 yo mom, lol [laugh out loud].
“[D]: Don’t worry, sweetie, I’m OVERLY careful. Can’t you tell?
“[A/G]: … Yes, I gess u r.”
After making sure of the exact location where he was to meet Amber/Gonzales, defendant told Amber/Gonzales he would email her at 12:15 p.m. the next day and meet her at 1:00 p.m.
The next day, defendant instant messaged Amber/Gonzales, as follows.
“[D]: Good morning.
“[A/G]: Hey.
“[D]: How are you feeling today?
“[A/G]: Is that ‘Are you free today’?
“[D]: Are you free today?
“[A/G]: Only for the next couple of hrs.
“[D]: From now until when?
“[A/G]: And I’m not free lol.
“[D]: … I know.
“[A/G]: About 1130.
“[D]: How about if we do this. Let’s have a cup of coffee together and talk. I’ll just give you $10 just for meeting me.
“[A/G]: Okay, and then what?
“[D]: That’s it, unless we want anything else. We can talk about it in person. Should I head over now?
“[A/G]: Sure. How long doz it take you to get here?
“[D]: Only about 20 minutes. How about if we meet at l0?
“[A/G]: Okay, but this is the last tim. If u flake im not chattin with u any mor.
“[D]: “I’m not going to flake. I promise. I was there the first time, ya know. smiley face. What will you be wearing so I’ll recognize you?”
They agreed to get together at 10:10 a.m. so that defendant could go to an ATM machine before the meeting. Amber/Gonzales described what she would be wearing, and defendant said he would be wearing a light brown sweater and jeans.
On December 6, 2005, Detective Gonzales and his team went to the Starbucks at the corner of the Alameda and Race Street in San Jose. Defendant arrived in a gray Honda and was dressed as he said he would be. While defendant was standing outside the Starbucks, Detective Gonzales approached him and asked him if he was there to meet somebody. Defendant replied that he was there to meet Amber. He was placed under arrest. His car was searched and condoms were found. Defendant had $174 on his person.
Defendant was taken to the police station where he gave an audio and video tape-recorded interview, portions of which was played for the jury.
The interview was not included in the appellate record.
Defendant’s work and home computers, three in all, were searched by a forensic computer examiner. The examiner found the communications between defendant and Detective Gonzales on one of defendant’s home computers. He also found several Craigslist postings offering money for “cute, non-pro” women in the South or Eastbay, including one looking for “a normal girl who – for whatever reason – wants some extra cash and wants to have good time with a cute guy to get it.” No child pornography was found on any of the computers.
DISCUSSION
Motion for Acquittal
Defendant contends that entrapment was established as a matter of law; therefore, the trial court was required to enter a judgment of acquittal. Ordinarily, entrapment is a question of fact for the jury. “While the rare case can be imagined where the evidence is such to warrant the usurpation of the fact finding process by the appellate or trial court,” the evidence must be such that “only one reasonable inference can be drawn from the evidence – that is, that the conduct of the law enforcement agent was likely to induce a normally law-abiding person to commit the offense.” (People v. Peppars (1983) 140 Cal.App.3d 677, 684-685, fn. omitted.)
Citing federal cases, and Justice Richardson’s dissent in People v. Barraza (1979) 23 Cal.3d 675 (Barraza), defendant argues that he is entitled to a judgment of acquittal because, judged by the subjective test for entrapment adopted by the federal courts, the uncontroverted evidence of defendant’s lack of predisposition showed that he “was a ‘normal law-abiding person’ who was induced to commit this crime that, had he been left alone, would have never happened.”
We need not decide whether, under a subjective test for entrapment such as the one adopted by the federal courts, defendant’s claim might have merit. Under California law, which uses an objective test, it has none.
Defendant acknowledges that “[i]n California, 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. (Barraza, supra, 23 Cal.3d at pp. 689-690.) ‘[S]uch 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.’ (Id. at p. 690.)” (People v. Watson (2000) 22 Cal.4th 220, 223 (Watson).)
Barraza cited two ways to establish entrapment under the objective test. “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.” (Barraza, supra, 23 Cal.3d at p. 690.) “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.” (Ibid.) The court further explained: “There will be no entrapment, however, when the official conduct is found to have gone no further than necessary to assure the suspect that he [or she] is not being ‘set up.’ The police remain free to take reasonable, though restrained, steps to gain the confidence of suspects. A contrary rule would unduly hamper law enforcement; indeed, in the case of many of the so-called ‘victimless’ crimes, it would tend to limit convictions to only the most gullible offenders.” (Id. at p. 690, fn. 4.)
The California test presumes that a law abiding person “would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully.” (Watson, supra, 22 Cal.4th at p. 223.) For this reason, lack of predisposition to commit a crime does not establish entrapment as a matter of law.
Defendant also argues: “In this case, [defendant] who by all relevant criteria was an otherwise law-abiding citizen, was induced by the detectives [sic] plea for sympathy. His immediate and unequivocal rejection of sexual conduct with the fictitious 13 year old highlights the government’s improper conduct – inducement.” The record does not support defendant’s contention that defendant immediately and unequivocally rejected sexual conduct with a 13 year old. On the contrary, it shows that defendant twice went to meet a person he believed to be a 13-year-old girl and, the second time, at least, was in possession of condoms.
Bradley v. Duncan (9th Cir. 2002) 315 F.3d 1091 does not aid defendant. That case held only that the trial court violated the defendant’s due process right by failing to instruct on entrapment. Under those circumstances, “[b]y rejecting petitioner’s request for an entrapment instruction, the trial court effectively deprived petitioner of his only defense.” (Id. at p. 1098.) Here, by contrast, defendant was instructed under California law that “[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.” (CALCRIM No. 3408, italics added.) Here, as in People v. Peppars, “[t]he trial court properly submitted the issue of entrapment to the trier of fact, and it cannot be said that there is no substantial evidence to support the implied finding of the jury that the conduct of [the police] was not likely to induce a normally law-abiding citizen to conspire to commit [a crime].” (People v. Peppars, supra, 140 Cal.App.3d at p. 685.) For these reasons, we reject defendant’s contention.
Constitutionality of CALCRIM No. 3408
Defendant contends that CALCRIM 3408 is unconstitutional. This is so, he argues, because the instruction “runs afoul of the United States Supreme Court law on entrapment set for in Jacobson and, by its language, contradicts itself to the extent that [defendant’s] constitutional right to present [a] complete defense was impermissibly compromised” and “also relived [sic] the prosecution of its burden of proof.”
The jury was instructed with CALCRIM No. 3408, as follows.
The Attorney General counters that defendant invited the error by requesting the instruction. It is true that defense counsel not only requested the instruction but argued vigorously for it, and it was given over the prosecution’s objection. Defendant’s response is that he “must be heard on appeal” because “the Instruction given by the Court is so constitutionally defective that [defendant’s] fundamental right to a fair trial was denied.” Defendant cites no case in support of his contention that invited error is excused if an instruction is challenged as unconstitutional on appeal.
In People v. Graham (1969) 71 Cal.2d 303, the seminal case on invited error, our Supreme Court held: “[I]f defense counsel suggests or accedes to the erroneous instruction because of neglect or mistake we do not find ‘invited error’; only if counsel expresses a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction, do we deem it to nullify the trial court’s obligation to instruct in the cause.” (Id. at p. 319.) The Graham court noted in particular that “[t]he reason for the limitation of the invited error concept to the narrow situation of counsel’s deliberate tactical decision emanates from statutory mandate. [S]ections 1259 and 1469 each provide with respect to the trial court’s instructions to the jury that ‘an appellate court may review an instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant are affected thereby.’ ” (Id. at pp. 318-319.)
In People v. Cooper (1991) 53 Cal.3d 771, our Supreme Court reaffirmed the Graham test of invited error, but also amended it, as follows: “[T]he record must show only that counsel made a conscious, deliberate tactical choice between having the instruction and not having it. If counsel was ignorant of the choice, or mistakenly believed the court was not giving it to counsel, invited error will not be found. If, however, the record shows this conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice. Error is invited if counsel made a conscious tactical choice. A claim that the tactical choice was uninformed or otherwise incompetent must, like any such claim, be treated as one of ineffective assistance of counsel.” (Cooper, at p. 831.)
Defendant does not argue that counsel was ineffective for requesting CALCRIM 3408, or failing to request an entrapment instruction that focuses on the defendant’s subjective predisposition to commit the crime charged. California law is clear. The Barraza court considered the relative merits of both the objective and subjective tests for the entrapment defense and adopted the objective test. CALCRIM 3408 embodies the Barraza test for entrapment. Counsel made a conscious tactical choice to request an entrapment instruction that states California law. Review is barred by the invited error doctrine.
CONCLUSION
Entrapment was not established as a matter of law, and the trial court correctly denied defendant’s motion for judgment of acquittal. For obvious tactical reasons, trial counsel requested entrapment instructions, and the court correctly instructed the jury on the defense of entrapment under California law. No error appears in the instruction, and any error would be invited in any event.
DISPOSITION
WE CONCUR: Rushing, P.J., Duffy, J.
“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’s more likely than not that he was entrapped. [¶] A person is entrapped if a law enforcement officer 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 may 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 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. [¶] If the defendant has proved that it is more likely than not that he attempted to commit a lewd and lascivious act on a child under the age of 14 because he was entrapped, you must find him not guilty of … Section 664 - … Section 288(a).”