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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Andrew Dock HILLARY, Defendant and Appellant.

No. E012138.

Decided: March 15, 1994

Nancy E. Olsen, Escondido, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., M. Howard Wayne, Supervising Deputy Atty. Gen., and David Delgado–Rucci, Deputy Atty. Gen. for plaintiff and respondent.


Defendant and appellant Andrew Dock Hillary appeals from a judgment of conviction for transporting, selling or furnishing cocaine base in violation of Health & Safety Code section 11352, subdivision (a).   Defendant argues that the court committed prejudicial error in refusing to instruct on entrapment, and in denying his motions for mistrial and new trial based on juror misconduct.   We find no error and affirm the judgment.


The evidence introduced by the prosecution and the defense presented two quite different versions of how the admitted transfer of cocaine came to take place.   The first issue raised by defendant is whether the evidence he introduced was sufficient to require the court to instruct on entrapment.

The chief prosecution witness was Rae Ross, a citizen regularly working with the Riverside Police Department as a paid confidential informant.   She testified that she placed an “advertisement” with a “976 date line” telephone service;  her personal advertisement indicated that she was interested in drug activities.   Defendant responded, and from the beginning their conversations over the telephone involved drugs rather than sex.   Ms. Ross stated that “I could use some rock, or I would like some rock cocaine,” and defendant stated that he could get it for her.   The calls continued for approximately a week, by which time defendant quoted a price of $4,500 for four ounces, plus a $500 “transportation fee.”   Arrangements were made for a meeting.

At the agreed time, Ms. Ross met defendant at a Jack-in-the-Box.   He told her the cocaine was “down the freeway a couple of exits,” and Ms. Ross told him she was unwilling to accompany him in his truck.   After purchasing some food and chatting briefly with Ms. Ross, defendant drove off in his truck, returning shortly.   During his absence, he had been observed by surveilling officers pulling up next to a white Nissan station wagon at another location.   Defendant was seen contacting the driver of the Nissan, although the officers could not observe what precisely passed between them because their view was blocked when the hatchback of the Nissan was raised.

When defendant returned to the Jack-in-the-Box (with the white Nissan following), Ms. Ross went back to the truck and asked where the cocaine was.   Defendant showed her a package which he insisted that she take at once.   Ms. Ross gave a signal—she was wearing a wire—and an arrest was made when defendant, who fled, was eventually apprehended.

Defendant's version differed in substantial respects.   He admitted contacting Ms. Ross through the dating line, but testified that her “ad” merely indicated that she was a woman seeking a man, nothing “weirdo.”   He gave her his cellular phone number because she sounded like a “nice, pretty woman,” and he was married.   He tried to arrange a date, and when Ms. Ross mentioned drugs, he told her that he only smoked cigarettes and drank beer.   He also told her, however, that he knew people that “did it,” but that he was not involved.

According to defendant, Ms. Ross brought up the subject of drugs every time they talked, although she also indicated that she was willing to have sex with defendant and described possible activities which appealed to him, including the participation of a second woman.  (Although the record is not entirely clear on the number of completed calls, both Ms. Ross and defendant testified that a large number of conversations passed between them, sometimes several in a day.)   Defendant testified that Ms. Ross led him to believe that getting drugs was a condition for having sex with him.

On the date of the eventual arrest, defendant arranged to take cocaine to the Jack-in-the-Box because Ms. Ross told him that if he came up with the drugs, she and a friend were waiting to have three-way sex with him.   The promise of such an encounter led him to contact a casual acquaintance to obtain the cocaine.

Defendant also testified that when he arrived at the Jack-in-the-Box and saw Ms. Ross, he only wanted to leave, because she did not meet his expectations.   At that point, he assumed that she had been lying all along, and no longer wished to have sex with her.   He admitted on cross-examination that he did not have the drugs with him at that time, and that he drove off and fetched them from his acquaintance at another location down the road.   He did so because, having asked his acquaintance to help him arrange the deal, he felt that he should go through with it for the sake of this third person.


During the noon recess while Ms. Ross was undergoing cross-examination, a juror approached her and mentioned that she had just seen her first bicycle police officers, and that they were wearing shorts.   The juror asked Ms. Ross if she felt as if she herself were on trial, and asked her if she was “ever nervous being in the position that she was in.” 1  The juror asked her what happened to the white car which, as Ms. Ross had testified, pulled in next to defendant's truck in the parking lot of the Jack-in-the-Box.   Ms. Ross did not respond substantively to any of these remarks, but told the juror that she could not talk about the case, or that she did not know if she could respond.

Under examination, the juror told the court that she had not felt any particular sympathy for Ms. Ross, but that the latter had appeared to her to be “feeling defensive.”   The juror stated that her mind was still open and she had not made up her mind, but could still be fair.   She had not mentioned the incident to any other juror.


A.The Entrapment Defense

 Defendant contends that the trial court erred in refusing to instruct on entrapment.   It is “black letter law the trial court must instruct the jury on every theory of the case which is supported by substantial evidence.”  (People v. Glenn (1991) 229 Cal.App.3d 1461, 1465, 280 Cal.Rptr. 609, citing People v. Edwards (1985) 39 Cal.3d 107, 116, 216 Cal.Rptr. 397, 702 P.2d 555.)   In general, doubts about the sufficiency of the evidence to support the giving of an instruction should be resolved in favor of the defendant (People v. Flannel (1979) 25 Cal.3d 668, 685, 160 Cal.Rptr. 84, 603 P.2d 1) and the court should not weigh the credibility of the offered evidence.  (Id., at p. 685, 160 Cal.Rptr. 84, 603 P.2d 1.)   However, if the evidence is legally insufficient to support an instruction, it need not be given.  (People v. Kaurish (1990) 52 Cal.3d 648, 696, 276 Cal.Rptr. 788, 802 P.2d 278.)

The leading California case on entrapment is People v. Barraza (1979) 23 Cal.3d 675, 689–690, 153 Cal.Rptr. 459, 591 P.2d 947, in which the court set forth a test which has not proved easy to apply.   The test is “was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense?”   This seems simple enough;  in this case, for example, it would lead one to say that the offer of sex (even three-way sex) with a woman or women whom defendant had never even seen would not induce a law-abiding person to procure a substantial amount of cocaine.   However, the Barraza court then offers the view that although merely presenting the opportunity for crime is permissible, for example by using a decoy, “overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime” are barred.   The court then states that if the action by the police, or police agent, would “generate ․ a motive for the crime other than ordinary criminal intent, entrapment will be established.”

 This formulation in effect excuses criminal conduct committed for motives which would not constitute a defense if developed independently of official encouragement, but the rule of entrapment is designed to deter improper official conduct.  (Barraza, at pp. 689–691, 153 Cal.Rptr. 459, 591 P.2d 947;  People v. Thoi (1989) 213 Cal.App.3d 689, 694, 261 Cal.Rptr. 789.)   Thus, the court takes the position that conduct which is no more severe than badgering or cajoling, if committed by officials or official agents, will excuse criminal conduct in the interests of discouraging such behavior by the police and their agents.

 In this case, the evidence was sufficient under the Barraza explanations—up to a point.   Defendant testified that Rae Ross initiated the discussions on drugs, persisted with her inquiries over his efforts to deflect her, and called him repeatedly with requests for drugs.   He also testified that she offered highly alluring sexual pleasures in return—“a motive for the crime other than ordinary criminal intent.” 2  Defendant correctly relies on People v. Martinez (1984) 157 Cal.App.3d 660, 668, 203 Cal.Rptr. 833, in which the court (albeit in dicta) remarked that “[t]he use of an attractive young female undercover agent posing as an unemployed Las Vegas card dealer, introduced to appellant by a friend who was a known prostitute, and, generally, acting the part of a loose woman who might trade sexual favors for narcotics, falls far short of an acceptable standard of police conduct and constitute[s] entrapment.”

 The Attorney General criticizes Martinez for the apparently implicit assumption that men are unable to control their sexual urges when confronted with an enticing woman.   However, in our view Martinez correctly interprets Barraza on the basic issue.  Barraza is not limited to motives which are socially approved or laudable.   Although it might well be agreed that a desire for sexual favors is not the sort of excuse for crime which deserves a great deal of condonation, nevertheless, as a motive it is as distinct from “ordinary” criminal intent as is “friendship” or “sympathy.”   Barraza directs the focus to the activities of the police in encouraging the commission of a crime, not to the motive which is created by the police conduct.   It is not possible analytically to distinguish a defendant who acts out of sexual lust from one who acts out of the purer motives of love or friendship.   Police inducements which play on “base” emotions are no less reprehensible than those which appeal to more altruistic feelings.   In both cases the question is whether the police conduct would induce a normally law-abiding person to commit the crime.3

 Thus, we find that defendant submitted sufficient evidence to explain as a matter of entrapment his decision to obtain cocaine for Ms. Ross.   Unfortunately, he then went too far.

Defendant testified that when he saw Ms. Ross, he no longer desired to have sex with her.   By his own admission, his non-criminal motive evaporated.

 In his reply brief, defendant argues that under Barraza his actual motive is irrelevant.   We may accept his argument arguendo, up to the point at which his sexual desire disappeared, and agree that, until then, his actual motive is subsidiary to an evaluation of the police conduct.   However, his actual motive is not irrelevant once the effect of the police conduct disappears.  “[T]he defense must show at a minimum that the improper police practice yielded the charged crime.   Otherwise, a defendant would have tantamount to a get-out-of-jail-free card for the first crime he commits after the improper police activity.”  (People v. Thoi, supra, 213 Cal.App.3d at p. 694, 261 Cal.Rptr. 789.)   In Thoi, defendant asserted that he had been induced to write prescriptions for medications for non-existent patients, by representations that the medicines so obtained would be sent to his destitute countrymen in Vietnam.   However, as the court pointed out, defendant denied having billed Medi–Cal for these prescriptions, and he was in fact charged with later billings made after his move to a new office.   Acknowledging that “California entrapment law focuses upon the actions of the police and not the predisposition of the accused,” the court nevertheless pointed out that the inducements to which the doctor admittedly yielded in part had nothing to do with the crimes with which he was charged.   This approach is consistent with Barraza 's use of the phrase “normally law-abiding person” in conjunction with its focus on police conduct.4  Although the acts of the police must be evaluated first, Barraza supports the conclusion that an entrapment defense cannot succeed if the acts, however repellent or unfair, could not conceivably lead a “normally law-abiding person” to commit the crime.   In Thoi, the court found a causation requirement and that it was not satisfied where the police acts were not directed towards inducing the charged crime.   In this case, we apply a similar causation test and hold that once the defendant's induced motive disappears, he cannot justify his criminal act by a claim of entrapment.

Here, defendant testified repeatedly that after he saw Ms. Ross, he was not acting out of an induced desire for sex.   Furthermore, when Ms. Ross refused to get in the truck with him and accompany him in fetching the cocaine, she said “I guess we can't do this deal.”   Defendant, however, assured her that the deal could be completed, and then went himself to obtain the cocaine.   (Defendant did not dispute this testimony, which was supported by a tape of the conversation.)   Furthermore, the record is devoid of any evidence that Ms. Ross continued to promise defendant sexual favors after they actually met.   From that point, their conversation consisted of small talk and discussions about the drug deal.   Thus, defendant had a clear opportunity to abandon his intent to sell cocaine after the induced motive disappeared, and no improper conduct from that point on led him to continue and consummate the deal.

Although defendant argues that no case law supports the theory of “abandonment” urged by the Attorney General, we do not find this dispositive;  Thoi supplies some guidance and the lack of other reported authority may simply reflect the factual unusualness of this case.   The salutary goal of the rule of Barraza does not require that a defendant who openly and adamantly admits that the wrongful conduct of the police agent did not cause him to commit the crime be permitted to escape criminal liability.   In this case, defendant was arguably (according to his testimony) lured into a drug deal by the repeated “badgering” of a police agent who promised him irresistible sexual delights.   Had he consummated the deal in expectation of receiving those delights, his entrapment claim would certainly have been required to be submitted to the jury.   However, once defendant saw Ms. Ross, the scales fell from his eyes.   A “normally law-abiding person” in his position would not have continued with the drug transaction, and his evidence was insufficient.5 ,6


The Claim of Juror Misconduct

 As defendant acknowledges, the trial court has a broad discretion in ruling on claims of jury misconduct and the possibility of prejudice.   (People v. Perez (1992) 4 Cal.App.4th 893, 906, 6 Cal.Rptr.2d 141.)   We find no abuse of discretion here.

Defendant asserts that “both Ross and the juror acknowledged during the evidentiary hearing that they talked about matters relating to the trial.”   This is not quite accurate.   There was no dialogue.   The juror (after remarking upon the sight of police bicycle officers in shorts) asked Ms. Ross if she were ever nervous about her position, whether she felt as if she were on trial, and what happened to the white car.   Ms. Ross responded either that she could not discuss the case, or that she was not sure whether she could discuss the case.   No information was exchanged.

 Undoubtedly it was misconduct for the juror to approach Ms. Ross and ask her any question which related to the case.   A presumption of prejudice therefore arises.  (People v. Honeycutt (1977) 20 Cal.3d 150, 156, 141 Cal.Rptr. 698, 570 P.2d 1050.)   However, such a presumption is rebuttable.   This is not a case in which the jury obtained evidence from outside sources.  (Cf. People v. Wong Loung (1911) 159 Cal. 520, 525–529, 114 P. 829.)   It involved a contact which Ms. Ross either rebuffed or to which she did not respond.   There can be no contention that the content of the jury's deliberations was affected by the misconduct.  People v. Pierce (1979) 24 Cal.3d 199, 206–209, 155 Cal.Rptr. 657, 595 P.2d 91, cited by defendant, is inapposite, as in that case the juror not only spoke with a police officer witness outside of court, but obtained information which had not been introduced at trial.   The reversible misconduct was not the contact, but the unauthorized receipt of unadmitted evidence and reassurances on points concerning which the juror was in doubt.7

Defendant argues that the juror revealed a level of sympathy with Ms. Ross which indisputably indicated that she did not have the ability to be fair.   We do not agree.   The juror's questions about Ms. Ross' possibly dangerous position, and whether she felt as if she herself were on trial, do suggest personal sympathy.   However, the juror also told the court that Ms. Ross seemed “defensive” on the stand, which carries some connotation of having something to hide or apologize for, and also denied that she actually felt sympathy for Ms. Ross.   The juror repeatedly affirmed that she had not prejudged the case or made up her mind on guilt.   The trial court was in the best position to assess her credibility and good faith, and we defer to its decision.  (See People v. Cumpian (1991) 1 Cal.App.4th 307, 311, 1 Cal.Rptr.2d 861;  People v. Craig (1978) 86 Cal.App.3d 905, 919, 150 Cal.Rptr. 676.) 8  Furthermore, we have performed our constitutional obligation and reviewed the entire record to evaluate the effect of the misconduct (People v. Wisely (1990) 224 Cal.App.3d 939, 947, 274 Cal.Rptr. 291), and are satisfied that there was no prejudice.


Constitutionality of Definition of Reasonable Doubt in CALJIC No. 2.90. 9


The judgment is affirmed.


1.   Presumably this referred to Ms. Ross' role as a secret informant.

2.   The examples of motive in Barraza are friendship and sympathy, but the list does not purport to be exclusive and the motives given are expressly only examples.   In any event, presumably defendant's claimed motive here would fall somewhere within the general framework of “friendship.”

3.   The Attorney General argues that defendant cannot claim lack of a criminal intent, because he intended to “barter” sex for drugs, and “bartering” drugs for any item is illegal.   This misconstrues Barraza.   The fact that a person is improperly induced to commit a criminal act does not mean that he is not acting intentionally or that he does not intend to commit a crime.  Barraza merely allows a defendant to avoid criminal responsibility if the police conduct is likely to create an underlying motive other than a general readiness to do evil.   In fact, Barraza also allows the defense of entrapment to be used if the police encouraged the defendant to believe that he had an excellent chance of getting away with the crime, or was offered an “exorbitant” consideration.   There is obviously no requirement that the defendant raising entrapment as a defense be able to show that he did not intend to commit a crime, or that he intended only a lawful act.

4.   The court in People v. Martinez, supra, 157 Cal.App.3d at pp. 666–668, 203 Cal.Rptr. 833, held that the phrase “normally law-abiding person” is misleadingly included in jury instructions, because it tends to focus attention not on police conduct, but the predisposition of the accused.   Later courts have pointed out that the challenged language comes straight from Barraza, and that if its use is improper, it is for the high court to say so.  (See e.g. People v. Lee (1990) 219 Cal.App.3d 829, 838, 268 Cal.Rptr. 595 [rev. den.].)

5.   Defendant argues that it violated due process to deprive him of the instruction, pointing out that the jury asked for information on entrapment and the court informed it that entrapment did not exist as a matter of law.   It is true that this inevitably led to defendant's conviction.   However, this does not mean that due process was violated.   It only means that he elected to present a defense which was not supported by the evidence.   Faulty analysis of the possible success of a defense, or the unfulfilled hope that the court will be generous beyond the requirement of the law, do not constitute a deprivation of due process.   After all, it is apparent that defendant had no other hope of avoiding conviction.

6.   Defendant testified that he completed the transaction because he felt badly about potentially having wasted the time of his drug-dealing acquaintance.   For one thing, the police cannot be blamed for the fact that defendant arranged the transaction in such a way that he felt obliged, as a matter of good manners, to see that it was carried out.   For another, we do not consider that the desire to avoid irritating a casual acquaintance is the type of non-criminal motive which can tie in to an entrapment defense.  (See People v. Lee, supra, 219 Cal.App.3d at p. 836, 268 Cal.Rptr. 595, finding that the superficial relationship involved did not involve “any claim of intimacy,” and remarking that the casual manner in which the police agent initiated the acquaintance was in no way improper.)We need not consider whether the result would be different if there had been evidence that defendant, while under the influence of Ms. Ross' improper blandishments, had placed himself in a position of danger by contacting a drug dealer, and risked physical retribution if he failed to assist with the deal.

7.   Defendant asserts that neither Ms. Ross nor the juror revealed the content of their conversations until prodded, and suggests that the full extent of the discussion may never have been disclosed.   This is mere speculation.   It is true that Ms. Ross omitted to mention the inquiry about the white car, but we do not find this sinister in light of the fact that it was Ms. Ross who brought the incident to the attention of the court in the first place.   The juror was asked “[w]ould you want to tell us what you said to her?”   She responded “I asked her if she was ever nervous being in the position that she was in.”   The court asked for clarification, and then asked if the juror remembered “the entire conversation.”   The juror admitted “Not actually” but did proffer that she had asked about the white car and that Ms. Ross had indicated that she was unsure if she should respond.   We read the juror's responses as honest efforts to recall a trivial conversation;  there is no hint of deception or attempted concealment.

8.   We do not accept the proposition that it is improper for a juror to express sympathy for a witness;  such a rule would create chaos.   Furthermore, sympathy can be felt both for a witness viewed as being unfairly badgered, and for one humiliated by being revealed as a liar.We also note that even if the juror had determined to believe Ms. Ross over any subsequent contrary witnesses, it would make no difference in this case because defendant conceded the transportation and transfer of cocaine, and his attempted defense was legally inadequate.

9.   This court deems defendant to have contended:  (1) that the definition of reasonable doubt, as set forth in CALJIC No. 2.90, is unconstitutional pursuant to Cage v. Louisiana (1990) 498 U.S. 39, 40–41, 111 S.Ct. 328, 329–330, 112 L.Ed.2d 339, 342 and see People v. Sandoval (1992) 4 Cal.4th 155, 185–186, 14 Cal.Rptr.2d 342, 841 P.2d 862, certiorari granted September 28, 1993, 509 U.S. 954, 114 S.Ct. 40, 125 L.Ed.2d 789;  and (2) that his conviction must be reversed because the trier of fact, in applying the law stated in that instruction, used an unconstitutional standard for determining guilt or innocence.  (Sullivan v. Louisiana (1993) 508 U.S. 275, –––– – ––––, 113 S.Ct. 2078, 2082–2083, 124 L.Ed.2d 182, 190–191, citing Arizona v. Fulminante (1991) 499 U.S. 279, 307–311, 111 S.Ct. 1246, 1264–1265, 113 L.Ed.2d 302, 331.)This court further deems the People to have opposed this contention on the ground that under the principles of stare decisis (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937), this court is bound by prior decisions of the California Supreme Court upholding the constitutionality of the definition of reasonable doubt as provided in CALJIC No. 2.90, which decisions rejected constitutional challenges based upon Cage v. Louisiana, supra, see People v. Sandoval, supra.We agree that we are bound to follow the decisions of our state Supreme Court in People v. Noguera (1992) 4 Cal.4th 599, 633–634, 15 Cal.Rptr.2d 400, 842 P.2d 1160;  People v. Johnson (1992) 3 Cal.4th 1183, 1235, 14 Cal.Rptr.2d 702, 842 P.2d 1;  and People v. Jennings (1962) 53 Cal.3d 334, 385–386, 279 Cal.Rptr. 780, 807 P.2d 1009, and thus hold that the definition of reasonable doubt as stated in CALJIC No. 2.90 is constitutional.  (People v. Van Fossan (1993) 19 Cal.App.4th 1680, 24 Cal.Rptr.2d 266.)

DABNEY, Associate Justice.

RAMIREZ, P.J., and McKINSTER, J., concur.