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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Edward Lares PEREZ, Defendant and Appellant.

Cr. 21281.

Decided: August 21, 1972

Joe Reichmann, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., William E. James Asst. Atty. Gen., and Howard J. Schwab and Joel S. Moskowitz, Deputy Attys. Gen., for plaintiff and respondent.

Defendant was convicted of two counts of violation of Health and Safety Code section 11501 and sentenced to state prison for the terms prescribed by law, the sentences to run concurrently. This appeal followed.

We adopt the factual statement set forth in defendant's brief, and there is no need for restating the facts here as the sole issue on appeal relates to the instruction as to burden of proof in the defense of entrapment.

The trial court instructed the jury that the ‘defendant has the burden of proving by a preponderance of the evidence that he was entrapped into the commission of the crime.’ (CALJIC instruction 4.63, based upon People v. Valverde, 246 Cal.App.2d 318, 54 Cal.Rptr. 528 and People v. Moran, 1 Cal.3d 755, 760, 83 Cal.Rptr. 411, 463 P.2d 763.) The court refused defendant's requested instruction that ‘if the evidence in the case should leave you with a reasonable doubt whether the defendant had the previous intent or purpose to commit any offense of the character here charged, and did so only because he was induced or persuaded by some officer or agent of the Government, then it is your duty to acquit him.’ (Based on federal entrapment cases.)

Defendant argues that the case of People v. Loggins, 23 Cal.App.3d 597, 100 Cal.Rptr. 528, held that it was error to instruct that ‘the burden is on the defendant to raise a reasonable doubt as to his guilt of the charge of murder (CALJIC 5.15).’ He also contends that CALJIC 4.63 (the instruction given) is in conflict with Penal Code section 1096, declaring that guilt must be established beyond a reasonable doubt, and urges that In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 compels the instruction that ‘the People have the burden of disproving the defense (of entrapment) beyond a reasonable doubt,'1 rather than the instruction which was given. We disagree. In People v. Moran (1970), 1 Cal.3d 755, 760—761, 83 Cal.Rptr. 411, 413, 463 P.2d 763, 765, the court stated:

‘Defendant also contends that the recent enactment of the Evidence Code overturns the holding in People v. Valverde (1966) 246 Cal.App.2d 318, 54 Cal.Rptr. 528, that the defendant has the burden of proving entrapment by a preponderance of the evidence. Evidence Code section 5011 subjects statutory burdens

of proof in criminal cases to Penal Code section 1096,2 which requires the

prosecution to establish the defendant's guilt beyond a reasonable doubt. The defendant's burden to prove entrapment, however, is not subject to Penal Code section 1096, for the defense of entrapment in California is not based on the defendant's innocence. The courts have created the defense as a control on illegal police conduct ‘out of regard for (the court's) own dignity, and in the exercise of its power and the performance of its duty to formulate and apply proper standards for judicial enforcement of the criminal law.’ (People v. Benford, Supra, 53 Cal.2d 1, 9, 345 P.2d 928, 933.) Moreover, this court acknowledged the continuing validity of the rule of the Valverde case in In re (Dennis) M. (1969) 70 Cal.2d 444, 457, fn. 10, 75 Cal.Rptr. 1, 450 P.2d 296.3

The rule of Winship is not contrary to the rule of Moran. In Winship (decided two months after Moran was decided), the court wrote that ‘the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ (Id., 397 U.S. at p. 364, 90 S.Ct., at p. 1073.) However, quite apart from the constitutional requirement that each element of the corpus delicti of any crime be proved beyond a reasonable doubt, there exist ‘special defenses which are not elements of the crime (;) * * * among these is entrapment.’ (People v. Valverde, Supra, 246 Cal.App.2d, at p. 324, 54 Cal.Rptr. 528, at p. 532, cited with approval in Moran.) ‘(T)he defense of entrapment in California is not based on the defendant's innocence. The courts have created the defense as a control on illegal police conduct . . ..’ (People v. Moran, Supra, 1 Cal.3d at p. 760, 83 Cal.Rptr. at p. 413, 463 P.2d at p. 765.) Since entrapment is not an element of the corpus delicti of all crimes, then the absence of entrapment is not a ‘fact necessary to constitute the crime.’ (In re Winship, Supra, 397 U.S. at p. 364, 90 S.Ct., at p. 1073.)

The judgment is affirmed.


1.  (Defendant cites as authority: ‘Section 530 of the Staff Draft of the Penal Code Revision Project of the Criminal Code, State of California.’)

1.  ‘Insofar as any statute, except Section 522, assigns the burden of proof in a criminal action, such statute is subject to Penal Code Section 1096.’

2.  ‘A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him guilty beyond a reasonable doubt.’

3.  The Model Penal Code, section 2.13(2) (proposed Official Draft 1962) also places the burden on defendant to prove entrapment by a preponderance of the evidence.'

STEPHENS, Associate Justice.

KAUS, P.J., and AISO, J., concur.

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