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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Gale Loraine McINTIRE, Defendant and Appellant.

Cr. 30883.

Decided: March 17, 1978

William L. Streitfeld, Marina del Ray, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield and John W. Carney, Deputy Attys. Gen., for plaintiff and respondent.

Defendant was convicted of a violation of Health and Safety Code section 11360, subdivision (a), sale of marijuana, after a jury verdict of guilty. She appeals from an order granting probation. We affirm the order.

Questions going to whether the defendant committed the offense were made nonprejudicial by the defendant's testimony that she sold two “lids” of marijuana for money paid to her brother, defendant having brought the marijuana to her brother for the purpose of its being sold. The most important question on appeal is whether the trial court should have allowed evidence to be introduced relevant to entrapment and should have given, as requested, instructions on entrapment. At a pretrial conference, the court and counsel discussed the entrapment defense. The defendant made an offer of proof.1 A portion of the offer is off the record and not reported, but sufficient is reported or repeated on the record to show that defendant's proof would have been substantially as follows: Officer Greeley of the Los Angeles Police Department was acting as an undercover agent by posing as a student at Westchester High School. His assignment was to detect drug traffic at the high school. The testimony which the defendant desired to offer2 would show that officer Greeley, passing under the assumed name “Jeff,” was introduced to the defendant's 16-year-old brother Todd by his friend and classmate Scott. According to Scott and Todd, “Jeff” on many occasions over a period of weeks3 importuned Todd to find him some marijuana and other drugs. Todd said eventually that he would try. There came a time when Todd said that he would try to get some marijuana from his sister. “Jeff” continually then asked that Todd get his sister to obtain a quantity of marijuana to sell to him. Todd refused to give “Jeff” his sister's address. Todd daily for over a week asked his sister, the defendant, for the marijuana. Finally, she agreed to bring it when she picked Todd up on a Friday. She was not a dealer in marijuana, had never sold it before, and was only bringing it to satisfy Todd's desire to “help” his friends and because she felt sorry for him because of some family difficulties. The defendant's attorney told the judge in the pretrial conference: “(I)f we can show that the evidence that the police officers controlled another party and had that party enlist a civilian in crime, that the purpose of the entrapment statute (sic ) should apply; that if the police officer is encouraging the commission of crime using in its encouragement a private party, that the police officer not be exempt from liability.” He also argued that the evidence would show that Todd was a police agent, although the offer of proof made it clear that defendant was not contending that Todd knew at any time that “Jeff” was a policeman or that Todd was dealing with his sister for the purpose of getting her arrested.

The trial judge ruled that, as a matter of law, if the defendant could prove all that she said she could prove, there was no entrapment. The court relied on People v. Van Alstyne (1975) 46 Cal.App.3d 900, 121 Cal.Rptr. 363 and People v. Gregg (1970) 5 Cal.App.3d 502, 85 Cal.Rptr. 273.4 The trial judge, consistent with his pretrial ruling, sustained objections to all questions which were designed to show that defendant was persuaded to commit the crime by her brother, and refused to give instructions on entrapment. The jury found defendant guilty. If the facts asserted by the defendant were sufficient to support a finding of entrapment, the exclusions of evidence on that issue and the refusal to instruct on entrapment were prejudicial and would require a reversal. However, we hold as a matter of law that the evidence sought to be introduced would not support a defense of entrapment.

A widely accepted definition of the entrapment doctrine is contained in the 1970 revision of CALJIC 4.60. It reads: “A person is not guilty of crime when he commits an act or engages in conduct, otherwise criminal, when the idea to commit the crime did not originate in the mind of the defendant but originated in the mind of another and was suggested to the defendant by a law enforcement officer or a person acting under the direction, suggestion or control of a law enforcement officer for the purpose of inducing defendant to commit the crime in order to entrap him and cause his arrest.”

It will be noted that the defendant must show three elements. First, that the idea for the crime originated in the mind of a person other than the defendant. Second, that the idea was suggested to the defendant by a law enforcement officer or another “acting under the direction, suggestion or control of a law enforcement officer.” Third, that the suggestion is made to the defendant by a person whose purpose is to induce “defendant to commit the crime in order to entrap him and cause his arrest.” The offer of proof negates the existence of the second and third elements. The offer of proof and the evidence admitted show that defendant's brother had no knowledge that Officer Greeley was a policeman and had no intention of causing his sister to commit a crime so she could be arrested.

The cases hold that the person doing the entrapping must be a law enforcement officer or an agent of a law enforcement officer. (People v. Perez (1965) 62 Cal.2d 769, 775, 44 Cal.Rptr. 326, 401 P.2d 934; People v. Gregg, supra, 5 Cal.App.3d 502, 507, 85 Cal.Rptr. 273; People v. Benjamin (1974) 40 Cal.App.3d 1035, 1040, 115 Cal.Rptr. 668; People v. Van Alstyne, supra, 46 Cal.App.3d 900, 907, 121 Cal.Rptr. 363; People v. Wirth (1960) 186 Cal.App.2d 68, 72, 8 Cal.Rptr. 823.) To be an “agent,” a party must knowingly be working for law enforcement. (People v. Benford (1959) 53 Cal.2d 1, 14, 345 P.2d 928.) The Perez, Gregg, Benjamin, and Wirth cases all involved situations where the person persuading the defendant to commit the crime was not a police agent or where there was no proof of connection with the police. In each case, there was evidence from which it could be inferred that the private citizen intended to persuade the defendant to commit the crime so the defendant could be arrested. It was held that police involvement was necessary before the doctrine applied. The Van Alstyne case is a little different. There the person allegedly entrapped was not the defendant (who was already willing to commit the crime) but a codefendant who brought the defendant into a narcotic sale. The holding of the Court of Appeal was that it would not create a doctrine of “vicarious” entrapment.

The present case has a slight factual difference from the above cited cases in that the evidence offered, if believed, would support a finding that defendant's brother Todd was “entrapped,” and that as a result of and at the urging of the officer, he in turn placed the idea of committing the crime in defendant's mind where no preexisting intent to do so existed, and thus persuaded her to commit the crime. While the additional facts serve to provide a slight factual difference from those present in the above cited cases, we do not believe that the difference is material for purposes of the policies behind the entrapment doctrine.

For guidance as to the policy behind the entrapment doctrine, we turn first to the leading California case, People v. Benford, supra, 53 Cal.2d 1, 345 P.2d 928, wherein it is said (pp. 8-9, 345 P.2d p. 933): “In California recognition of the defense is said to rest upon the broadly stated grounds of ‘sound public policy’ and ‘good morals.’ (Citations.) The precise nature of this public policy has not been spelled out in any California majority opinion concerning entrapment, but obviously California has recognized the defense for reasons substantially similar to those which caused this court, in People v. Cahan (1955) 44 Cal.2d 434, 445-446(7), 282 P.2d 905, 50 A.L.R.2d 513, to adopt the rule that evidence obtained in violation of constitutional guaranties is not admissible; i. e., out of regard for its 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, the court refuses to enable officers of the law to consummate illegal or unjust schemes designed to foster rather than prevent and detect crime. . . . Although there is an instinctive sympathy for the originally well-intended defendant who is seduced into crime by persuasion and artifice, such a defendant is just as guilty where his seducer is a police officer as he would be if he were persuaded by a hardened criminal accomplice. Entrapment is a defense not because the defendant is innocent but because, as stated by Justice Holmes (dissenting in Olmstead v. United States (1928), 277 U.S. 438, 470, 48 S.Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376, an illegally obtained evidence case), ‘it is a less evil that some criminals should escape than that the Government should play an ignoble part.’ ”

The later cases carry out the theme that the effect of a finding of entrapment is not that the defendant is innocent of crime, but that there may be no conviction, and this is so as a method of regulating police conduct. (People v. Gregg, supra, 5 Cal.App.3d at p. 508, 85 Cal.Rptr. 273; People v. Van Alstyne, supra, 46 Cal.App.3d at p. 907, 121 Cal.Rptr. 363.) Thus, in applying the entrapment doctrine, we focus not on whether the defendant has committed the crime (she has) but on whether something needs to be done to regulate the conduct of the police. In this regard, we believe the language of the Van Alstyne opinion to be equally applicable here (46 Cal.App.3d at pp. 907-908, 121 Cal.Rptr. at p. 367): “Finally, appellant cites us no case that permits the entrapment defense to be asserted vicariously, which is what he seeks to do under his ‘fruits of the poisonous tree’ analogy. To our mind, reprehensible police tactics are adequately deterred under a rule that limits the availability of this defense in the usual case to the victims of such tactics. The marginal deterrence that would be added by making the defense available to others as well ordinarily is far out-weighed by society's interest in seeing those who are guilty of crime punished for their offenses. (Fn. omitted.)” (Emphasis in original.)

There is another reason why the doctrine of entrapment should not be extended to the situation present in this case. If the entrapment doctrine is to be extended to second degree entrapment to obtain the “marginal deterrence” referred to in the Van Alstyne opinion, a substantial risk exists that the good to be accomplished is outweighed by the risk of putting in the sole control of the codefendants all of the facts at issue. In the usual case, codefendants will be dealing with each other outside the presence of police and are therefore free to present factual material on the state of mind of one of them and of what the other said to overcome any unwillingness without any chance of rebuttal. The core fact in the entrapment defense is the state of mind of the defendant, i. e., whether a preexisting willingness to commit the crime was present. In the usual case where the dealings are between the defendant and the police or a police agent, the police officer or the agent is available to give evidence which the fact finder may weigh to determine the state of the defendant's mind and the amount of persuasion necessary to cause the defendant to commit the crime. Where, however, codefendants are allowed to present the defense that one persuaded the other unwilling one in secret to commit the crime, no exposure to countervailing evidence is present for the fact finder to weigh; in effect, the evidence cannot be contradicted. We think that such a one-sided result is not required by the policies behind the entrapment doctrine. In short, it is sufficient that the police are responsible for what they and their agents say, without making them also responsible for the degree of persuasiveness exhibited by crime-committing nonagents with whom they deal. This consideration was recognized in the Gregg case, supra, 5 Cal.App.3d at pages 508-509, 85 Cal.Rptr. at page 277, as an additional reason for not allowing second degree entrapment as a defense. To do so, said the court, would be “out of kilter with courtroom realities and heavily weighted in favor of the defense.” We conclude that the entrapment doctrine should be limited to its purpose promoting police therapeutics and that it should not be extended to cover a case where one really intending to commit a crime is requesting another to join him. The marginal benefits, if any, in improving the conduct of the police by making them responsible for the conduct of nonagents dealing with the unknown state of mind of still another are far outweighed by the practical problems inherent in the trial of such cases and in the unreality of making the police responsible for the conduct of those over whom they have no control.

We think that it is sufficient to apply the entrapment doctrine where the police or their agents knowingly acting for law enforcement use persuasive wiles to lead an otherwise innocent person astray, without also making them responsible for the persuasive abilities of a nonagent trying to enlist still another's aid in committing a crime. In short, as have the cases before us, we reject a doctrine of second degree entrapment.

There remains to be discussed the two-sentence dictum in People v. Moran (1970) 1 Cal.3d 755, 761, 83 Cal.Rptr. 411, 463 P.2d 763, relied on by defendant in the trial court and on this appeal. The two sentences, which implied approval of former versions of two CALJIC instructions stating that entrapment could be committed by any person, were clearly dictum, have not been repeated by the Supreme Court in any holding since, and were expressly repudiated by each authority which subsequently considered the question. (People v. Gregg, supra, 5 Cal.App.3d at pp. 506-507, 85 Cal.Rptr. 273; People v. Benjamin, supra, 40 Cal.App.3d at p. 1040, 115 Cal.Rptr. 668; 1970 revision of CALJIC Instruction No. 4.60.) The dictum is also not in accord with the Supreme Court's prior but uncited holding in People v. Perez, supra, 62 Cal.2d at page 775, 44 Cal.Rptr. 326, 401, P.2d 934, and with its reasoning in the Benford case. We conclude that the trial court correctly held that entrapment was not a defense on the facts sought to be proved, and therefore the rulings excluding evidence and refusing entrapment instructions were correct.

Defendant contends that the trial court erred in refusing her request for instructions on the lesser and included offenses of possession of marijuana (Health & Saf. Code, s 11357) and of transportation or giving away of less than one ounce of marijuana (Health & Saf. Code, s 11360, subd. (c), as it existed at the time of the offense, now s 11360, subd. (b)). There were two versions of the facts in the testimony. The officer's testimony supports only a conclusion of a direct sale by defendant. Defendant's testimony was that she gave the marijuana to her brother knowing that it was to be sold, and that her brother received the money. If defendant's version is accepted, beyond doubt she is an aider and abetter to a sale and therefore is liable as a principal. (Pen. Code, s 31.) While instructions on lesser included offenses must be given where the state of the evidence would warrant a finding that only the lesser offense has been committed, such is not required where there is no evidence that the offense was less than that charged. (People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913; People v. Noah (1971) 5 Cal.3d 469, 479, 96 Cal.Rptr. 441, 487 P.2d 1009; People v. Osuna (1969) 70 Cal.2d 759, 767, 76 Cal.Rptr. 462, 452 P.2d 678.) We find no error.

Certain other issues are raised and disposed of as follows:

1. The argument that the maximum punishment prescribed for a violation of section 11360, subdivision (a), is so severe as to run afoul of the cruel or unusual punishment clause (Cal. Const., Art. I, s 17) is premature. Proceedings were suspended and defendant was placed on straight probation without any time of incarceration.

2. The argument that certain of the prosecution's testimony was hearsay and should not have been admitted over objection is not decided on the merits, since the error, if any, could not have been prejudicial in the light of defendant's testimony of facts showing commission of the offense.

3. The argument that equal protection of the laws (U.S. Const., 14th Amend.; Cal.Const., Art. I, s 7) has been denied by making sale of any quantity of marijuana a felony5 while making possession, transportation or giving away of less than an ounce an infraction or a misdemeanor has no merit. The Legislature could reasonably conclude that transportation, possession, or giving away of small quantities of marijuana involves less potential societal damage than commercial transactions in any amount.

4. The word “sells” as used in section 11360, subdivision (a), is not unconstitutionally vague.

The order granting probation is affirmed.

As I read the offer of proof, it was to the effect that the police officer not only used undue pressure on Todd but that he also, as part of that conduct, pressured Todd to use undue pressure on the defendant. If the jury read testimony as showing that kind of conduct on the part of the officer (as distinguished from the officer's testimony that he exerted no undue pressure on Todd to do anything), then Todd was an agent of the officer both to secure marijuana and to secure it by exerting pressure on the defendant. I cannot see that it is here material that Todd did not act to secure the arrest of his sister; the theory of the offer of proof was that that was the officer's purpose, accomplished by using a person whom the officer had duped into regarding the undercover officer as a friend and fellow student. If the jury accepts (again, as I say, they might not) the theory of the offer of proof the officer was guilty of exactly the kind of unprofessional conduct that the entrapment defense was designed to prevent. I concur in the portions of the opinion rejecting the other contentions of the defendant.



1.  Entrapment is an affirmative defense on which defendant has the burden of proof. (People v. Valverde (1966) 246 Cal.App.2d 318, 54 Cal.Rptr. 528.)

2.  It is necessary in this opinion to assume as true defendant's version of the facts, since the question is whether defendant had a right to get the entrapment question to the jury. Officer Greeley testified to facts which, if accepted by the trier of fact, show that there was no undue persuasion of defendant's brother.

3.  Officer Greeley's testimony was that so far as he could recall he first met Todd on the date of the sale, which was arranged by Scott.

4.  The trial judge initially also stated that the defendant could not rely on the entrapment defense unless the crime was admitted. However, this view was not reiterated after defendant cited People v. Perez (1965) 62 Cal.2d 769, 44 Cal.Rptr. 326, 401 P.2d 934, which holds to the contrary.

5.  The only evidence admitted on the subject leads to the conclusion that the total amount sold by defendant was less than an ounce.

HUPP,* Associate Justice. FN* Assigned by the Chief Justice of California.

FILES, P. J., concurs.

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