California Landmark Cases on Entrapment

In California, the test for entrapment is focused on police conduct. (People v. Watson (2000) 22 Cal.4th 220, 223.) It is an objective analysis and asks whether a law enforcement officer or his agent was "likely to induce a normally law-abiding citizen to commit the offense." (People v. Barraza (1979) 23 Cal.3d 675, 689-690 (Barraza); Watson, supra, at p. 223.) The test presumes that when presented with the opportunity to act unlawfully, such a person would resist the temptation to commit a crime. (Barraza, supra, at p. 690.) While official conduct that merely offers an opportunity for criminal activity is permissible, such as a decoy program, "it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime." (Ibid.) Although the distinction between permissible and impermissible police conduct is largely based on the circumstances of each case, the court in Barraza provided two guiding principles. "First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established." (Barraza, supra, 23 Cal.3d at p. 690.) Examples would include appeals to commit a criminal act out of sympathy rather than for personal gain. (See, e.g., Bradley, supra, 315 F.3d at pp. 1096-1097 entrapment instruction was appropriate where law enforcement officers' used a decoy visibly suffering from drug withdrawals to beg defendant to obtain cocaine for him, raising a question of whether a normally law-abiding person would have been induced to commit the crime out of sympathy.) "Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment." (Barraza, supra, at p. 690.) Examples under this principle might include "a guarantee that the act is not illegal or the offense will go undetected, an offer of exorbitant consideration, or any similar enticement." (Ibid.) In addition, a court should also consider the effect the police conduct would have "on a normally law-abiding person situated in the circumstances of the case at hand" (i.e. prior transactions, suspect's responses to the officers, gravity of the crime, and difficulty of detecting perpetrators). (Ibid.) For example, in People v. Reed (1996) 53 Cal.App.4th 389, the court held that there was no evidence to support the entrapment defense. The court reasoned that the officer's regular phone and mail correspondence with the defendant over the course of several weeks did not cajole or importune him into attempting to molest two young girls given defendant's repeated assurance of desire to go through with the crime. (Id. at pp. 400-401; see also Federico, supra, 191 Cal.App.4th at pp. 1423-1424 evidence did not support a jury instruction for entrapment in part because defendant pursued online communications with a person he believed was a 12-year-old girl and attempted to meet her for sex.) Detectives did ask defendant to describe what he planned to do with the girls, but they offered no specific suggestions, other than that they sought "a 'good teacher' who would make the activities fun" for the girls. (Reed, supra, at p. 400.) By contrast, in Bradley, the court found that there was substantial evidence to support an instruction on the entrapment defense. (Bradley, supra, 315 F.3d at p. 1096.) It reasoned that officers' use of a drug addict experiencing symptoms of withdrawal would likely appeal to the sympathies of a normally law-abiding person. (Ibid.) Moreover, the decoy's desperate and persistent pleas for defendant to help him find cocaine was sufficient evidence such that a jury could conclude that the conduct "badgered" or "cajoled" defendant into committing a crime. (Ibid.)