PEOPLE v. THORPE

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. David THORPE, Defendant and Appellant.

No. H002902.

Decided: November 10, 1988

J. Bruce Newby, Santa Clara, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Clifford K. Thompson, Jeremy Friedlander, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

A jury convicted defendant David Thorpe of three counts of attempting to receive stolen property.   The court placed him on three years' probation, conditioned upon a term of six months in the county jail and payment of a $100 fine.   On appeal, Thorpe contends (1) that the standard jury instructions on entrapment are erroneous and (2) that the prosecutor violated People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 by using peremptory challenges to exclude two young women from the jury.   We affirm.

FACTS

Thorpe's contentions do not require us to recite the facts in great detail.   He bought the property in question from Ralph Torres, an undercover police officer.   Thorpe, who was a locksmith, had met Officer Torres through Lance Madsen, whom Thorpe allegedly believed to be a legitimate hardware wholesaler.   Madsen introduced Officer Torres as a hardware “jobber” or “junker,” who “was divorced” and “was selling everything he had, trying to get enough money to ․ go back in the business and get on his feet.”

Torres sold Thorpe a cordless telephone worth $149, an electric drill set worth $145, and some padlocks worth $140.   For these items Thorpe paid $25, $25, and $20, respectively.   The People relied upon the disparity between price and value to prove that Thorpe believed the property had been stolen.   In addition, Torres expressly told Thorpe that the telephone and drill set had been stolen.   Thorpe raised two defenses:  First, he did not believe the property in question was stolen;  second, even if he did believe it, he had been entrapped.

A. Jury Instructions

 Thorpe contends that the standard instructions on entrapment (CALJIC Nos. 4.60, 4.61) 1 conflict with Evidence Code section 1102, subdivision (a).2  We disagree.

Under section 1102, a defendant in a criminal case may introduce evidence of his character to show that he acted in conformity therewith.   Thus, a defendant may attempt to show that, as a person of good character, he would not have acted in an illegal manner.   In contrast, the defense of entrapment as presently recognized in this State has nothing to do with the defendant's conduct.   Instead, entrapment concerns the acts of law enforcement agents exclusively;  if their conduct would “likely [have] induce[d] a normally law-abiding person to commit the offense” (People v. Barraza (1979) 23 Cal.3d 675, 689, 153 Cal.Rptr. 459, 591 P.2d 947), the jury may acquit.   Because the entrapment defense posits a hypothetical, objective, “normally law-abiding person”, there is no reason to inquire into the defendant's actual character or predisposition.   The standard instructions, which convey these principles, come directly from the Supreme Court's opinion in People v. Barraza, supra, at pp. 689–690, 153 Cal.Rptr. 459, 591 P.2d 947 (as to CALJIC No. 4.60) and pp. 690–691, 153 Cal.Rptr. 459, 591 P.2d 947 (as to CALJIC No. 4.61).

Raising the entrapment defense does not bar a defendant from introducing character evidence for other purposes.   The court in this case permitted witnesses to testify to Thorpe's honesty and instructed the jury per CALJIC No. 2.40 that Thorpe's good character, alone, could raise a reasonable doubt as to his guilt.   Thorpe's attorney made this argument to the jury.   But once the jury determined that Thorpe had attempted to buy stolen property, despite his good character, character evidence played no further role in the case.   Since Evidence Code section 1102 makes character evidence relevant only to the defendant's conduct, and since entrapment has nothing to do with the defendant's conduct, the section and the instructions on entrapment do not conflict.

Thorpe also urges that People v. Barraza, supra, should be overruled.   An intermediate appellate court does not have the right to do so.   (Auto Equity Sales Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

B. Jury Selection

 Thorpe next contends that the prosecutor's use of peremptory challenges to exclude two young women from the jury violated People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.

During jury selection the prosecutor asked the court to excuse two young, Black women.   When defense counsel suggested that Blacks were being systematically excluded, the trial court invited the prosecutor to rebut the charge by showing that he had valid reasons for the peremptory challenges other than group bias.  (See People v. Wheeler, supra, 22 Cal.3d at pp. 281–282, 148 Cal.Rptr. 890, 583 P.2d 748.)

The prosecutor explained that he had challenged the first prospective juror because she was a first-year law student and might use her legal expertise inappropriately in the jury's deliberations, because she was facing final examinations in a month, and because she had once been pulled over by police in Chicago, in her mind without justification, and might from that experience bring a prejudice against police to the jury's deliberations.   The prosecutor explained that he had challenged the second prospective juror because she had not been responsive to his questions or paid close attention to the proceedings.   Regarding both women, the prosecutor said that he “believe[d] young female jurors tend to be more gullible” and would have excluded them for that reason alone.

The prosecutor's last comment led defense counsel to make the argument that young women were also a cognizable group who should not be deliberately excluded.   In discussing this matter, counsel and the court thought that the term “young women” was either a gender or an age classification but could not agree which.   This disagreement did not prevent resolution of the Wheeler objection, however, since the court found the prosecutor's stated reasons adequate to rebut charges of gender, age, and racial bias.  (Id. at pp. 281–282, 148 Cal.Rptr. 890, 583 P.2d 748.)

We find no reason to question the court's ruling.   Thorpe does not contend on appeal that the prosecutor failed to rebut the charge of racial bias.3  Moreover, neither gender nor age, considered separately, presented a problem in this case.   There was no gender-based exclusion since the jury included at least six women;  and Wheeler has not been interpreted to bar the exercise of peremptory challenges against young people.  (People v. Marbley (1986) 181 Cal.App.3d 45, 46–48, 225 Cal.Rptr. 918;  People v. Parras (1984) 159 Cal.App.3d 875, 876–877, 205 Cal.Rptr. 766;  People v. Estrada (1979) 93 Cal.App.3d 76, 93–94, 155 Cal.Rptr. 731.)   Lastly, with respect to Thorpe's argument that the jury should have included jurors who were both young and female, we will not recognize a new Wheeler class without direction from higher authority.

Our disinclination to expand Wheeler is reinforced by the fact that this defendant is a 45–year–old white male with blue eyes.   While we are bound by the edict that “․ the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule” (People v. Wheeler, supra, 22 Cal.3d at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748), we note that Wheeler purported to rest its holding both on the federal and the California Constitutions (id. at p. 272, 148 Cal.Rptr. 890, 583 P.2d 748), and that the United States Supreme Court has subsequently repudiated the federal basis for the above-quoted dictum.  Batson v. Kentucky (1986) 476 U.S. 79 held at 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 that “To establish such a case, the defendant first must show that he is a member of a cognizable racial group ․ and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race.”  (Emphasis added.)   In U.S. v. Vaccaro (9th Cir.1987) 816 F.2d 443, 457, the court on the authority of Batson denied a white man standing to complain of the exclusion of Blacks.   In the light of these high federal precedents, perhaps our Supreme Court may wish to inquire anew whether Article I, section 16 of the California Constitution, which on its face does not speak to the point in issue, really compels a rule designed to punish the government for perceived misconduct rather than assuring to a defendant a fair trial before a jury of his peers.4

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   CALJIC No. 4.60 instructs, in relevant part:  “To establish this defense [entrapment] the defendant has the burden of proving by a preponderance of the evidence that the conduct of the law enforcement agents or officers or persons acting under their direction, suggestion or control was such as would likely induce a normally law-abiding person to commit the crime.”CALJIC No. 4.61 adds that “[s]uch matters as the character of the defendant, his predisposition to commit the offense, and his subjective intent are not relevant to the determination of the question of whether entrapment occurred.”  (CALJIC Nos. 4.60, 4.61 (4th ed. 1979 pocket pt.) pp. 67–70.)

2.   Evidence Code section 1102 provides:  “In a criminal action, evidence of the defendant's character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is:  (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character․”

3.   On appeal Thorpe has ignored the subject, except for this one sentence:  “Because the gender issue disposes of the case, it is noted only in passing that the very small proportion of Blacks in Santa Clara County explains why a challenge based on two exclusions may often make a prima facie showing.   Two is a lot.”   But no one doubts that Thorpe made a prima facie showing;  that is why the trial court invited the prosecutor to rebut.   Because he does not address the issue, we treat it as abandoned.  (See Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119–1120, 210 Cal.Rptr. 109;  Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 710–711, 152 Cal.Rptr. 65.)

4.   Abrogation of the sweeping right to complain of irrelevant racial exclusion would not, in our view, prevent a white man from raising the issue of group challenge of Blacks where, for instance, he is on trial for assaulting a white man who was engaged in harassing Blacks.

BRAUER, Associate Justice.

AGLIANO, P.J., and ELIA, J., concur.

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