PEOPLE v. ALLEN (1987)

Defendant Linda M. Allen (Allen ) was convicted of the crime of sale of a controlled substance (Health & Saf. Code, § 11379) by a jury, which also found her to be armed with a firearm at the time of the crime's commission (Pen.Code, § 12022, subd. (a)).   She appeals from an order placing her on conditional probation.

I. Allen first and principally contends that:  “Appellant's conviction should be reversed because the trial court's jury instructions of the entrapment defense included wording requiring subjective rather than objective consideration of the evidence.”

Allen had raised the issue of entrapment at the trial.   The trial court had instructed the jury on the issue in the “new rule ” language of CALJIC 4.60 (1979 3d Revision), 4.61 (1981 Revision) and 4.61.5 (1979 Revision), purporting to be the requirement of People v. Barraza (1979) 23 Cal.3d 675, 153 Cal.Rptr. 459, 591 P.2d 947.   In People v. Martinez (1984) 157 Cal.App.3d 660, 203 Cal.Rptr. 833, we held that certain language of Barraza which became incorporated, as above, in CALJIC instructions was “uncertain,” “confusing,” and “unintended.”   Concluding that the instructions on the “new rule ” of Barraza were erroneous, we reversed the conviction.   Allen here argues that under our holding in Martinez her conviction, and the order subjecting her to probation, must be set aside.

Martinez has since not been followed by several Courts of Appeal, so we again consider our holding on that appeal.

Under the pre-Barraza “old rule” (the terms are those of the Supreme Court—see People v. McIntire (1979) 23 Cal.3d 742, 745, 153 Cal.Rptr. 237, 591 P.2d 527), as here material and as stated by CALJIC 4.60 (1979 Revision) and 4.61 (1974 Revision), juries were instructed:

“A person is not guilty of a crime when he commits an act or engages in conduct otherwise criminal, when the intent to commit such a 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 ․ for the purpose of inducing defendant to commit the crime in order to entrap him and cause his arrest.”  (Our emphasis.)

“Law enforcement officers ․ may provide opportunity for the commission of crime and extend their apparent cooperation for the purpose of detecting the offender.   If the suspect, originally and independently of the officers ․ had the intent, whenever the opportunity arose, to commit the acts constituting the crime charged, and if he does acts necessary to constitute the crime, he is guilty of the crime committed.   He has no defense in the fact that officers ․ engaged in detecting crime were present and provided the opportunity, or aided or encouraged the commission of the offense.”  (Our emphasis.)

Under the “new rule ” of Barraza, the court held:  “[T]hat the proper test of entrapment in California is the following:  was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense?   For the purposes of this test, we presume that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully․  [H]owever ․ under this test such matters as the character of the suspect, his predisposition to commit the offense, and his subjective [criminal] intent are irrelevant.”  (Our emphasis;  23 Cal.3d pp. 689–690, 690–691, 153 Cal.Rptr. 459, 591 P.2d 947.)

And following Barraza, the pertinent CALJIC jury instructions were revised, as here relevant, to read:

“[CALJIC 4.60 (1979 3d Revision):]  To establish this defense [of 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.”  (Our emphasis.)

“[CALJIC 4.61 (1981 Revision):]  Such 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.”  (Our emphasis.)

It will be seen that under Barraza's “new rule” there was added to California's concept of entrapment, the principle that the police conduct must be “such as would likely induce a normally law-abiding person to commit the crime,” and that the defendant's “predisposition to commit the offense, and his subjective intent are not relevant to the determination of the question of whether entrapment occurred.”

Barraza's “new rule” was aptly so named;  it appears to be sui generis.

The leading case of the nation's high court on the subject appears to be Sorrells v. United States (1932) 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, which held:

“It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution.   Artifice and stratagem may be employed to catch those engaged in criminal enterprises [and that] decoys may be used to entrap criminals, and to present opportunity to one intending or willing to commit crime.   But decoys are not permissible to ensnare the innocent and law-abiding into the commission of crime․   The predisposition and criminal design of the defendant [ARE] relevant.”  (Pp. 441, 445, 451, 53 S.Ct. at pp. 210, 214, 216;  the emphasis is ours.)

And in Sherman v. United States (1958) 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, Chief Justice Warren, speaking for the court, reasserted the holding of Sorrells, and said:  “To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.   The principles by which the courts are to make this determination were outlined in Sorrells.   On the one hand, at trial the accused may examine the conduct of the government agent;  and on the other hand, the accused will be subjected to an ‘appropriate and searching inquiry into his own conduct and predisposition ’ as bearing on his claim of innocence.  [Were the rule otherwise:]  The handicap thus placed on the prosecution is obvious.”  (Pp. 372, 373, 377, 78 S.Ct. at pp. 821, 823;  the emphasis is ours.)

We further note the more recent case of United States v. Russell (1973) 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366.   There the defendant who concededly was predisposed to the subject criminal activity, argued for a rule, substantially similar to Barraza's “new rule,” providing that “any prosecution be barred absolutely because of the police involvement in criminal activity.”   The high court said:  “This Court's opinions in Sorrells v. United States, supra, and Sherman v. United States, supra, held that the principal element in the defense of entrapment was the defendant's predisposition to commit the crime․  Sorrells and Sherman both recognize ‘that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution,’ ․  The Court of Appeals was wrong, we believe, when it sought to broaden the principle laid down in Sorrells and Sherman.”  (Pp. 433, 435, 436, 93 S.Ct. at pp. 1643, 1644, 1645;  our emphasis.)

California had long followed the same rule, People v. Benford (1959) 53 Cal.2d 1, 10, 345 P.2d 928:

“[C]alifornia formulations of the doctrine of entrapment state that the availability of the defense depends upon whether the intent to commit the crime originated in the mind of defendant or in the mind of the entrapping officer ․, and that where a defendant has a preexisting criminal intent, the fact that when solicited by a decoy he commits a crime does not show entrapment․”  (Our emphasis.)

We observe also, the holding of People v. Moran (1970) 1 Cal.3d 755, 760, 83 Cal.Rptr. 411, 463 P.2d 763:

“ ‘Entrapment as a matter of law is not established where there is any substantial evidence in the record from which it may be inferred that the criminal intent to commit the particular offense originated in the mind of the accused.’ ”  (Our emphasis.)

And the “old rule” is followed by the courts of the other states of the nation, overwhelmingly:

“In essence, the defense of entrapment prohibits law enforcement officials from instigating criminal acts by otherwise innocent persons in order to punish them․   What is meant by ‘innocent’ in this connection is the absence of a predisposition or state of mind that readily responds to the opportunity furnished by the officer or his agent to commit the forbidden act with which the accused is charged.  ‘Innocent’ in the context of entrapment means that defendant would not have perpetrated the crime with which he is presently charged but for the enticement of the police official.   Under this approach, once it is established that a defendant engaged in illegal activity as a result of his own preexisting readiness to do so, it becomes virtually irrelevant that the government's blandishments might have been sufficient to induce some hypothetically innocent person to commit the same criminal acts.”  (21 Am.Jur.2d (Crim. Law) §§ 202, 205, pp. 365, 373;  and see authority there collected.)

“One who is instigated, induced, or lured by an officer of the law or other person, for the purpose of prosecution, into the commission of a crime which he had otherwise no intention of committing may avail himself of the defense of ‘entrapment.’   Such defense is not available, however, where the officer or other person acted in good faith for the purpose of discovering or detecting a crime and merely furnished the opportunity for the commission thereof by one who had the requisite criminal intent.”  (22 C.J.S. (Crim.Law) § 45(2), p. 138;  and see authority there collected.)

Barraza purports to rely heavily on the dissenting opinion of Sorrells v. United States, supra, 287 U.S. 435, 453, 53 S.Ct. 210, 216.   But we find in the dissent nothing of aid to Barraza's “new rule.”   Indeed, the dissent states:

“Society is at war with the criminal classes, and courts have uniformly held that in waging this warfare the forces of prevention and detection may use traps, decoys, and deception to obtain evidence of the commission of crime.   Resort to such means does not render an indictment thereafter found a nullity nor call for the exclusion of evidence so procured.   But the defense here asserted involves more than obtaining evidence by artifice or deception.   Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.”  (287 U.S. at pp. 453–454, 53 S.Ct. at p. 217;  our emphasis.)

Barraza's reliance is also said to be upon the dissenting opinion of Chief Justice Traynor in People v. Moran, supra, 1 Cal.3d 755, 763, 83 Cal.Rptr. 411, 463 P.2d 763.   But that dissent also expresses no “new rule” on entrapment.   The Chief Justice recognized applicability of the “old rule,” saying:  “In the case of traffic in narcotics, law-abiding citizens would not ordinarily be seduced into becoming involved in such traffic by an officer's offer to purchase them.   Such an offer, however, is quite likely to lead to a sale when made to one prepared to sell.   Accordingly, such an offer without more would not constitute entrapment.   If in addition, however, the officer adopts methods of persuasion and inducement that create a substantial risk that a person other than one ready to commit the crime solicited will commit the crime, the defense of entrapment is established.”  (1 Cal.3d at p. 765, 83 Cal.Rptr. 411, 463 P.2d 763;  our emphasis.)

We are called upon to interpret the true holding of Barraza.   On the one hand it purports to introduce a “new rule” of entrapment but on the other, it declares itself to be following the contrary dissenting opinions of Sorrells v. United States, supra, 287 U.S. at p. 453, 53 S.Ct. at p. 216, and People v. Moran, supra, 1 Cal.3d at p. 763, 83 Cal.Rptr. 411, 463 P.2d 763, clinging to the “old rule.”  “It is settled that the same rules of interpretation apply in ascertaining the meaning of a judgment as in ascertaining the meaning of any other writing.”  (Lesh v. Lesh (1970) 8 Cal.App.3d 883, 890, 87 Cal.Rptr. 632.)  Barraza is ambiguous, and we follow such settled rules.

“If a judgment or order is ambiguous, it is subject to construction by a reviewing court” (Yarrow v. State of California (1960) 53 Cal.2d 427, 436, 2 Cal.Rptr. 137, 348 P.2d 687) as a matter of law.

We are of the opinion that if the high court of California wished to substitute a “new rule” for the long-established and universal rule defining “entrapment,” it would in unmistakable terms have said so differently.

We observe further that the purported “new rule” asserts that entrapment exists only “when the conduct of the law enforcement agent is likely to induce a normally law-abiding person to commit the offense.”  (See People v. Barraza, supra, 23 Cal.3d at pp. 689–690, 153 Cal.Rptr. 459, 591 P.2d 947.)  “Normally law-abiding persons” do not commit crimes, as seems to be expressly conceded by Barraza:  “[W]e presume that such a person would normally resist the temptation to commit a crime.  ․”  (People v. Barraza, supra, 23 Cal.3d at p. 690, 153 Cal.Rptr. 459, 591 P.2d 947.)   Thus, under the purported “new rule” the concept of entrapment in California would, at least for all practical purposes, be eliminated from the law.   For few, if any, crimes would be committed by “normally law-abiding persons.”   Such an unreasonable result was manifestly unintended by Barraza.

We note further the state's high court's comment in People v. McIntire, supra, 23 Cal.3d 742, 745, 153 Cal.Rptr. 237, 591 P.2d 527, after reviewing “the entrapment doctrine” of Barraza, that:  “ ‘California has recognized the defense for reasons substantially similar to those which caused this court ․ to adopt the rule that evidence obtained in violation of constitutional guaranties is not admissible;  ․’ ”

As has been pointed out, according to the United States Supreme Court, the “old rule” violated no federal constitutional principal.   And if the reference be to California's Constitution it appears, since the advent of Proposition 8 (June 8, 1982), that it has been the clear public policy of this state that in such matters the federal, and not the state, Constitution is controlling.  (In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744, passim.)

 For these several reasons, we conclude that the trial court erred in instructing the jury in accordance with its view of the “new rule” of Barraza.   We reaffirm our holding in Martinez.

The question remains, whether the error we have found, is harmless.

 The trial's evidence established that defendant Allen had sold to an undercover police officer, a quantity of methamphetamine for $3,250, and that upon such sale and her arrest therefor she was armed with a loaded concealable firearm.   She makes no contrary appellate contention, nor does she argue that the jury's verdict was unsupported by substantial evidence.   The evidence of her guilt was strong and persuasive.   We are of the opinion that the above-noted instructional error was harmless under the criteria of the state's Constitution, article VI, section 13, People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, and Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.

And:  “Anyone who seeks on appeal to predicate a reversal of conviction on error must show that it was prejudicial.”  (People v. Archerd (1970) 3 Cal.3d 615, 643, 91 Cal.Rptr. 397, 477 P.2d 421.)

II. The remaining appellate contention of Allen is that:  “Appellant's conviction should be reversed because she was denied effective assistance of counsel.”

 The contention appears to be based upon the claim that trial “counsel failed to diligently pursue all avenues available to establish defendant's entrapment and, more importantly, failed to establish a record which might have required dismissal of the charges against appellant.”

As has been pointed out, such “failure to pursue all avenues,” if any there were, resulted in no prejudice to Allen.   As noted:  “Anyone who seeks on appeal to predicate a reversal of conviction on error [or inadequacy of counsel] must show that it was prejudicial.”  (People v. Archerd, supra, 3 Cal.3d 615, 643, 91 Cal.Rptr. 397, 477 P.2d 421.)   And in every trial resulting in a conviction, it must reasonably be said that counsel for the defendant “has failed to establish a record which might have required dismissal of the charges against appellant”;  inadequate representation does not follow.

 The remaining argument of trial counsel's inadequacy relates to a police informant, and counsel's failure to ascertain her name and address from the People.   The record establishes that the People “had lost contact with the confidential informant fairly soon after appellant's arrest.”   And the trial court might reasonably have concluded from the record that the People had made a “good faith effort to continue awareness of her whereabouts.”   We may reasonably presume that counsel had accepted such as a fact, and had accordingly desisted from further inquiry.  “Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.”  (People v. Fosselman (1983) 33 Cal.3d 572, 581, 189 Cal.Rptr. 855, 659 P.2d 1144.)   The record before us does not so affirmatively disclose.

The order imposing probation is affirmed.

ELKINGTON, Acting Presiding Justice.

NEWSOM and HOLMDAHL, JJ., concur.