People v. Wesley (1990)

In People v. Wesley (1990) 224 Cal. App. 3d 1130, a police officer in a "reverse sting" operation was given 15 baggies containing a substance. He examined the substance, and, based upon his training and experience, he formed the opinion that the substance was rock cocaine. ( Id. at p. 1136.) He sold a baggie to defendant, who threw it away as soon as he realized he was about to be arrested. The superior court judge set aside the information on several grounds, including that, "there was no competent testimony that the substance sold to the defendant was cocaine," because the rocks had not been chemically analyzed. ( Id. at pp. 1137, 1146.) The court of appeal held that the expert opinion of the police officer, which was credited by the magistrate, was sufficient "for the purpose of holding defendant to answer." ( Id. at p. 1146.) The court explained: "This evidence was produced on the preliminary hearing not on a trial where the court or jury must be convinced to a moral certainty and beyond a reasonable doubt of the existence of the crime charged in the information and of every essential element of that crime. But a magistrate conducting a preliminary examination must be convinced of only such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. In other words, evidence that will justify a prosecution need not be sufficient to support a conviction. . . . An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it." ( Id. at pp. 1146-1147.) The Court impliedly recognized 1 there can be situations in which the government's conduct in investigating, arresting or prosecuting a defendant is so outrageous a conviction would deny the defendant due process of law. Wesley identified 2 four factors a court should consider in determining whether due process principles had been violated by outrageous police conduct: "'(1) whether the police manufactured a crime which otherwise would not likely have occurred, or merely involved themselves in an ongoing criminal activity ; (2) whether the police themselves engaged in criminal or improper conduct repugnant to a sense of justice ; (3) whether the defendant's reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation of exorbitant gain, or by persistent solicitation in the face of unwillingness ; and (4) whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace.'" (People v. Wesley, 224 Cal. App. 3d at page 1144.) The Court went on to say these factors are only illustrative and no one is, in itself, determinative. Each factor should be viewed in context with all pertinent aspects of the case and proper law enforcement objectives. (People v. Wesley, 224 Cal. App. 3d at page 1144.)