THE PEOPLE, Plаintiff and Respondent, v. JAN CURTIS HARZAN, Defendant and Appellant.
G064798
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Filed 4/16/26
Terri K. Flynn-Peister, Judge.
(Super. Ct. No. 20WF1838)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JAN CURTIS HARZAN,
Defendant and Appellant.
G064798
(Super. Ct. No. 20WF1838)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County,
Terri K. Flynn-Peister, Judge. Reversed.
Quinn & Dworakowski and David Dworakowski for Defendant
and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Robin Urbanski, Donald W. Ostertag and Flavio
Nominati, Deputy Attorneys General, for Plaintiff and Appellant.
then age 65, exchanged sexually explicit electronic messages with an
undercover police detective whom he believed was a 13-year-old girl named
Brianna. At Harzan’s trial for communicating with and arranging to meet a
minor with the intent to commit a sexual offense, the trial court ruled there
was sufficient evidence to support jury instructions on the defense of
entrapment. Howevеr, the court ruled that if Harzan decided to pursue that
defense, it would allow the prosecution to introduce evidence Harzan had
engaged in sexual misconduct nearly 50 years earlier, when he was in his
teens. To prevent the jury from hearing that highly prejudicial evidence,
Harzan surrendered his right to present an entrapment defense, and he
ultimately was convicted as charged.
On appeal, Harzan contends: (1) the trial court should have
excluded the prior misconduct evidence altogether, irrespective of the
entrapment issue, and its failure to do so violated his constitutional right to
present a defense; and (2) there is insufficient evidence to support his
convictions. Although we find Harzan’s convictions are supported by
substantial evidence, we conclude the trial court prejudicially violated
Harzan’s constitutional rights by requiring him to give up his entrapment
defense in order to keep his prior sexual misconduct out of evidence. We
therefore reverse the judgment.
STATEMENT OF FACTS
In May 2020, Harzan posted an ad on Craigslist under a category
called “Missed Connections.” Entitled “Missing my young friend,” the ad
stated: “GL older M here looking to find my young coed friend I use[d] to
hang out with. We would have such good times together. Is that you?”
Detective Joseph Baugh, who specializes in internet-related crimes against
children. Baugh believed the ad’s repeated use of the word “young” indicated
the person posting it might be trying to contact minors for illicit purposes. So,
on June 25, 2020, he responded to the post using an undercover email
account.
Pretending to be a girl named “Brianna,” Baugh asked Harzan
what “GL” meant and what he did for fun. Harzan replied: “GL means ‘Good
Looking’ which is of course in the eye of the beholder. LOL I am looking for a
fun little playmate and someone I can mentor. What are you looking for? Do
you have a pic? Yours gets mine.” “Brianna” did not respond to that message.
The next day, Harzan emailed a photograph of himself to
“Brianna,” along with the following message: “Would you like to talk? I can
give you my cell number or we could meet somewhere and talk. A pic would
be nice. Here’s mine. I‘m available all afternoon today.” When “Brianna” did
not reply, Harzan sent her several follow-up messages, saying he was
generous and asking if she would like to meet. Still, she did not reply until
four days later, on June 30, 2020.
That day, the following email exchange occurred between
“Brianna” and Harzan:1
to get some from someone that knows what to do lol.
“[Harzan:] I am more than happy to talk with you, but honestly
you are only 13 and therefore underage so sex is out of the question. I would
focus on your school work and getting a good education at this point and
forget about sex until you are at least 18. Always happy to talk with you
about life, boys, school, careers, and anything else on your mind. You sound
like a very sharp and intelligent young lady. Let me know if you would like
this type of mentoring support.
“[Brianna:] ur so sweet,,,but I have enough friends to talk with,
thk u tho
“[Harzan:] Would you be sweet enough to share a picture of
yourself?
“[Brianna:] why would u want a pic of me,,,u basically just said u
didnt want to do anything lol and how do I kno ur not gonna spread my pic
everywhere??
“[Harzan:] I promise I would never do that.
“[Brianna:] but i dnt know that....im 13 but im not a dumb girl. id
have to get to know you beforе sending pics...and u already said i was to
young for u
“[Harzan:] Well, we better meet then. When are you avail.”
friends. But she gave Harzan a phone number and told him he could text her
if he wanted to.
A couple of minutes later, Harzan sent “Brianna” a text message,
asking if she used Signal or WhatsApp, which are encrypted messaging apps
that have heightened privacy protections. “Brianna” said she used to use
WhatsApp, but her parents made her delete it. In response to Harzan’s
inquiry about what she liked to do, she said she was into “all sorts of things”
and wanted to “try some different stuff,” as well.
which led to the following exchange:
“[Harzan:] I like teaching young ladies like yourself about life
“[Harzan:] Sex for sure.
“[Brianna:] like what
“[Brianna:] mmmm
“[Brianna:] im interested,,
“[Brianna:] how do uteach
“[Harzan:] But other things as well if you’re up for it.
“[Harzan:] We would need to meet and talk about it
“[Brianna:] id wanna kno what im getting myself into,,,,but im for
sure down for stuff
“[Harzan:] I prefer hands on teaching to be honest
“[Brianna:] Ill be honest with u,,,ive never gone all the way with
a guy
“[Harzan:] But nothing would happen without your consent
“[Brianna:] have done pretty muvh everything else
“[Brianna:] well if ur nice and not an asshle when we meet
up,,,like I said
“[Brianna:] im down
“[Harzan:] I am very nice and respectful
“[Harzan:] Okay then. When would you like to get started”
When “Brianna” asked how long their first meeting would be, Harzan told
her, “One hour maybe. Or two. Could be shorter if you like.” “Brianna”
replied “an hour? that’s it......i don’t kno if id want my first time being a
complete rush” “im not really sure how this woud go” “was hoping u would
kno and show me lol.”
Harzan texted back: “How about I swing by tomorrow or
Thursday and we meet face to face. If you like what you see we will set up
time on Friday. Several hours for training and taking it slow.” “Or you tell me
what your dream would be and I’ll make it come into being. It sounds like
you’re ready to move to the next step.” When “Brianna” asked Harzan what
they would do, he told her, “I have some ideas.” “Dream your vision tonight
and let’s talk about it tomorrow.” He then encouraged “Brianna” to delete
their conversation and said he would do the same.
saying, “i was up all night thinking about u” “u r very handsome btw [smiling
emoji]” She asked Harzan, “[I]f we were to have sex,,, would it be likein a
hotel?” Harzan answered, “Yes or my office.” “Brianna” told Harzan she
wanted to have sex but not get pregnant. When she asked Harzan about birth
control, he said condoms used with foam were the best way to prevent
pregnancy. That led to further discussions about their prospective encounter:
“[Brianna:] will u get whatever [birth control] u think is best if
we decide today is the day??”
“[Brianna:] i dont thnk I can get that stuff without it looking
sketchy
“[Harzan:] Yes
“[Harzan:] I‘ll do that
“[Brianna:] last dumb question,,,[¶] . . . [¶] . . . because ur older
than me,,,will it hurt more because urs is probably bigger than boys my age?
there
“[Harzan:] Stretch you out as it were
“[Brianna:] Wat do u mean as it were? [¶] . . . How do you stretch
a vagina…that sounds terrible lol [¶] . . . or not....
“[Harzan:] Very slowly and carefully. It is built to stretch and
expand. Where do you think babies arrive from?
“[Harzan:] It’s built to handle different sizes of penises
“[Harzan:] [Eggplant emoji]”
Harzan then asked “Brianna” about her prior sexual experiences
and whether she had ever had an orgasm. She said she had a few sexual
encounters with boys her age but had never gone “all the way” or had an
orgasm. Harzan then told her, “I can make you orgasm by licking you, or by
fingering you while I lick.” “There is the Gspot inside your vagina that gives
you the best orgasms. One has to hit it.” “Brianna” responded, “gotcha” “ok
now im excited” “lol.”
we are planning on doin this today lemme kno” because I “have to start tellin
my parents something” as an excuse to get out of the house. Harzan
suggested they meet in two days, on Friday July 3, 2020. He also asked
“Brianna” if she would be willing to send him a picture of herself. She said
she preferred not to, but if things went well when they met, he could have all
the pictures he wanted.
Harzan later asked “Brianna” why she wanted to lose her
virginity so badly. When she replied she wanted her first time to be with
someone who knew what he was doing, Harzan said, “I can teach you alot.”
“Brianna” told Harzan “im ready” and asked about his previous sexual
encounters. Harzan said he had never had sex with someone as young as
“Brianna,” and his first sexual encounter—with “an older married woman”
when he was 17 years old—was not very good. He also told “Brianna” sex is
more pleasurable when “you‘re doing it with someone who” “you‘re attracted
to,” to which “Brianna” repliеd “well at least i got that going [kissing emoji].”
When “Brianna” asked where they were going to “do it,” Harzan said he had a
comfy blanket in his office that they could lay on, and she replied “ok.”
told Harzan her parents had given her permission to go to her friend‘s house
the next day, to which Harzan replied, “Great!” He then sent “Brianna” a long
message that read:
“Brianna, I want to encourage you to consider 5 reasons NOT to
have intercourse before you are over 16. Preferably 17 or 18. Here they are; 1.
Boys will always want to sleep with you that is how they are genetically
wired. Your not having sex (intercourse) with them only makes them want
you more. You already know how to satisfy their desires without having
intercourse. Trust me they will respect you more. 2. When you have
intercourse with someone we are wired to want to bond with that person. The
more partners one has the less and less the stickiness for bonding occurs.
This can create potential problems when you get married and want to bond
with your mate. It‘s a chemical thing. You do not want to ‘lose’ your stickiness
for bonding. 3. Once you begin sexual intercourse you turn on your biological
internal clock and begin aging faster. Girls who hold off tend to blossom later
and age at a slower rate. 4. Once you start you are going to want it all the
time. You will live 100 years at your current age. What‘s holding off 3 or 4
more years? Thats 84 years of sex ahead of you. 5. Finally, the usual issues of
pregnancy and or disease that can come with promiscuity. Please give these
points careful consideration.”
“[Brianna:] i dont understand..
“[Brianna:] u could have just said u didnt want to meeet with me
“[Brianna:] im not forcing u to do anything
“[Harzan:] I do want to meet you
“[Brianna:] u didmnt have to be ,mean about it
“[Brianna:] Im not stupid and have thought about all that
“[Brianna:] Its MY choice
“[Brianna:] not urs or anyone elses
“[Harzan:] I‘m not being mean. I just want to make sure you‘ve
thought it all the way through
“[Brianna:] so what are u saying?
“[Harzan:] You decision”
“Brianna” then told Harzan, “i truly feel like u dont really want
to have sex with me anymore, which isn‘t how I wanted to feel for my first
time.” “[P]lease let me know if you still want to meet me, and if you are still
good with having sex with me, i want to know that you WANT to, just let me
kno either way.” Harzan replied, “I cannot because it is illegal for me to do so.
Believe me I WANT to. Let‘s talk tomorrow.” “Brianna” told Harzan she was
confused and would talk to him later.
The next day, “Brianna” messaged Harzan saying she still
wanted to have sex with him, but she wanted to know if the feeling was
mutuаl. Harzan replied, “I really really really want to, but i also really really
really don‘t want to go to jail. [Frowning emoji] A call would be nice.”
At that point, Detective Baugh had a female undercover police
officer call Harzan, pretending to be “Brianna.” During the call, the following
exchange occurred:
“[Brianna]: So are we going to meet up or something? Because I
told my mom I have soccer practice at 2:00.
“[Harzan]: Oh, gosh.
“[Brianna]: Because like, you know, it seems like you don‘t really
want to, and I thought this was like for sure.
“[Harzan]: Well, look. I really, really want to. The problem is I‘m
the one who takes the risk because if anyone finds out we did this, I am
hosed, I‘m screwed. That‘s the thing I‘m concerned about, so—
“[Brianna]: But, like, no one will know and it will just be us.
“[Harzan]: Yeah. And then what? If you tell a girlfriend or you
tell a friend at school, I‘m—and it gets back, then I‘m the one who is going to
be damaged. Not you. I mean, I‘m going to be—look, I really, really want to
do it. I mean, honestly. I mean, trust me. I want to help—I want to help you
do this. I‘m just nervous about—
school anyways so I wouldn‘t tell anyone. And, like, I‘ve been talking to you
for a while now. I thought like—like—
“[Harzan]: Okay.
“[Brianna]: I thought we had something special here. And, like, I
don‘t even like the guys my age or anything so I thought this would be nice.
“[Harzan]: Why? Is this a one-time deal? Is that what we‘re doing
or were you thinking of something more?
“[Brianna]: I don‘t—well, I don‘t know. Whatever you want to do,
but I just really want to lose my virginity already. It feels like all the girls in
my class have already done it.
“[Harzan]: Wow. I doubt they have. They‘re probably just talking
big. Seriously. You think they all have? I don‘t think so. I don‘t think—
“[Brianna]: Well, yeah.
“[Harzan]: Is that—is that what‘s driving yоu is you want to—you
don‘t want to—you want to be like the other girls that you‘ve done it?
“[Brianna]: Well, kind of, but I want it to be like, I don‘t know,
better.
“[Harzan]: Uh-huh. How better?
“[Brianna]: Well, okay. Well, my mom is calling me. She wants to
know if I‘m actually going to go out or not. So I got to go. I‘m going to text
you. Okay?
“[Harzan]: Okay. Thanks, Brianna.”
with Harzan again:
“[Brianna:] are we doing this or not?
“[Brianna:] i dont know what else i can do to make u want to
“[Harzan:] How about we meet and talk and see where things go
from there
“[Brianna:] i told u I don‘t need friends
“[Brianna:] i wanted to have sex with u,,,,but its kinda ovbious u
dont anymore
“[Harzan:] Tell me when and where and I‘ll be there
“[Brianna:] u promise?
“[Harzan:] Y
“[Brianna:] [Smiling hearts emoji]”
Harzan and “Brianna” then made arrangements to meet at a fast
food restaurant in Huntington Beach later that day. When Harzan arrived at
the restaurant, the police arrested him and took him into custody. Harzan
did not have any condoms in his possession, but he had already deleted about
70 percent of his text messages with “Brianna” by that time.
Harzan was charged with one count of communicating with a
minor with the intent to commit a sexual offense and one count of arranging
to meet a minor with the intent to commit a sexual offense. (Pen. Code,
§§ 288.3 & 288.4.)2
Harzan had sexually molested his younger sister and her friend when he was
in his teens, back in the early 1970s. The trial court ruled the evidence could
not be admitted in the prosecution’s case-in-chief, but if Harzan was going to
raise the defense of entrapment, the prosecution could introduce the evidence
to rebut that defense.
Harzan ended up foregoing an entrapment defense, and he did
not present any evidence in his defense. In closing argument, defense counsel
argued Harzan did not have the intent tо have sex with “Brianna” when he
was communicating with and arranging to meet her. However, the jury
convicted Harzan as charged, and the trial court sentenced him to two years
in prison for his crimes.
DISCUSSION
I.
THE PRIOR SEXUAL MISCONDUCT EVIDENCE
Harzan contends the trial court erred in ruling the prosecution
could admit evidence of his prior sexual misconduct if he raised an
entrapment defense. Harzan argues the misconduct evidence should have
been categorically excluded as unduly prejudicial and, by conditioning its
exclusion on him giving up an entrapment defense, the court infringed his
constitutional right to present a defense. The Attorney General asserts the
court’s ruling is nonreviewable because the misconduct evidence was never
admitted at trial and, in any event, the ruling was within the court’s
discretion and constitutionally sound. For the reasons explained below, we
conclude the court committed prejudicial error by allowing the prosecution to
introduce evidence of Harzan’s prior sexual misconduct if he did not
relinquish his right to assert the defense of entrapment.
A. Factual Background
In their trial briefs, the parties laid out the communications
between Harzan and “Brianna” and set forth their respective positions on the
admissibility of Harzan’s prior sexual misconduct. According to the
prosecutor, that misconduct came to light after the Huntington Beach Police
Department posted about Harzan’s arrest on its Facebook page. In response
to the post, Harzan’s sister (Jane Doe #1) reached out to the department and
reported Harzan had molested her one time when she was about six years old
and Harzan was about sixteen. She said the incident occurred in the garage
of their family home. Harzan pulled down his pants, exposing his erect penis,
and told her to put it in her mouth like “a lollipop.” She did as told, orally
copulating Harzan for a brief period. Afterwards, she did not tell anyone
were adults. Harzan told her he was sorry, wrote her an apology, and offered
to go to therapy with her to help her work through it.
In addition to revealing her own abuse, Jane Doe #1 told the
police Harzan may also have victimized her childhood friend, Jane Doe #2, so
the police interviewed her, as well. Jane Doe #2 alleged Harzan molested her
one day when she was about eight or nine years old and he was about 18. She
had gone over to Harzan’s house to play with Jane Doe #1 that day, and when
she went into Harzan’s room to retrieve a toy, he orally copulated her and
offered her a dollar to lick his penis. When she refused, Harzan rubbed his
erect penis against her vagina, but he did not penetrate her. At one point
during the encounter, Jane Doe #1 opened the door, saw what was going on,
and quickly ran away. After that, Harzan made a comment that made Jane
Doe #2 think he might have molested Jane Doe #1, too.
The prosecutor contended this evidence was admissible under
Evidence Code section 1108 to show Harzan’s propensity to commit the
charged offenses.3 Alternatively, the prosecutor argued the evidence was
admissible under section 1101, subdivision (b) to show Harzan’s intent and
absence of mistake.
Defense counsel objected to admitting the evidence of Harzan’s
prior sexual misconduct, arguing, among other things, it was unduly
prejudicial under section 352. Defense counsel also informed the trial court
he would be seeking instructions on entrapment because, in communicating
with Harzan, Detective Baugh (under the guise of “Brianna“) engaged in “a
pattern of persistent badgering, cajoling, and importuning . . . which was
likely to induce a normally law-abiding person to commit” the charged
offenses. (Capitalization omitted.)
the outset, the court determined there was sufficient evidence to warrant
instructions on the defense of entrapment, based on the transcripts of the
messages between Harzan and “Brianna.”
The trial court then turned to the prosecution’s motion to
introduce evidence of Harzan’s prior sexual misconduct. The court ruled the
evidence was not admissible under section 1108 because Harzan was not
charged with a sexual offense as defined in subdivision (d)(1) of that statute.
It also ruled that, for purposes of section 1101, subdivision (b), the evidence
was not admissible in the prosecution’s case-in-chief because it was unduly
prejudicial under section 352. In fact, the court determined it would be
fundamentally unfair to allow the prosecution to admit the evidence because
Harzan’s prior sexual misconduct was “very, very old and very, very different
than the conduct we’re looking at in this case.”
However, the trial court believed the calculus would change if
Harzan raised an entrapment defense and requested instructions on that
theory. In that event, said the court, “the People [would] then have the
burden of proving the defendant was not entrapped.” And to meet that
burden, the prosecution could admit the evidence of Harzan’s prior sexual
misconduct to show he had the motive and intent to commit the charged
offenses.
to the wording of CALCRIM No. 3408, the standard jury instruction on
entrapment. That instruction statеs, “The defendant has the burden of
proving the defense [of entrapment] by a preponderance of the evidence.”
(CALCRIM No. 3408.) The instruction also makes clear the test for
determining whether a person has been entrapped is an objective one. That
is, whether the police “engaged in conduct that would cause a normally lawabiding person to commit the [charged] crime” under the circumstances
presented. (Ibid.) Therefore, CALCRIM No. 3408 specifically states the jury
may not consider the defendant’s “particular intentions or character, or
whether [he] had a predisposition to commit the crime.” (Ibid.) Because the
focus of the entrapment defense is on the conduct of the police, defense
counsel argued Harzan’s prior sexual misconduct was not relevant to whether
he was entrapped by Detective Baugh.
The trial court disagreed. Although it stated it never liked “to put
a defense attorney in a position where they can’t do their defense,” the court
stood by its decision to allow the prosecution to introduce evidence of
Harzan’s prior sexual misconduct if he raised the defense of entrapment.
Faced with that prospect, defense counsel informed the court he would not be
seeking instructions on that defense. Counsel explained, “I am not requesting
the entrapment instruction in order to avoid the possibility of the
introduction of these other actions as a bootstrap way to get into the prior
conduct.”4
As a preliminary matter, the Attorney General contends Harzan
is procedurally barred from challenging the trial court’s decision to permit
the prosecution to introduce evidence of his prior sexual misconduct if he
raised an entrapment defense. Because Harzan did not raise the defense and
the misconduct evidence was never admitted, the Attorney General argues
Harzan failed to preserve the issue for appellate review.
In so arguing, the Attorney General relies on the rule that, to
challenge a pretrial ruling allowing the prosecution to impeach the defendant
with evidence of a prior сonviction, the defendant must actually take the
stand and suffer the impeachment. (Luce v. United States (1984) 469 U.S. 38;
People v. Collins (1986) 42 Cal.3d 378). The rationale for the rule is threefold:
“First, in order to determine the admissibility of [the
impeachment evidence], the court must balance its probative value against
its prejudicial effect under . . . section 352, an analysis that cannot be
performed unless the record discloses the content of the defendant’s
testimony. [Citations.] Second, if the defendant does not testify, any possible
harm from the trial court’s ruling is wholly speculative. The ruling might
change in response to the actual content of the defendant’s testimony, or the
prosecution might choose not to use the evidence at issue. [Citations.] Third,
if the trial court erred in its ruling, the appellate court could not ‘intelligently
weigh the prejudicial affect [sic] of that error.‘”
defendant fails to testify and suffer impeachment by virtue of a prior
conviction. In that situation, there is an insufficient factual record to
determine whether the impeachment evidence was admissible and how it
would have impacted the defendant’s case in terms of prejudice. (Luce v.
United States, supra, 469 U.S. at p. 43 [the defendant’s testimony provides
the necessary factual context to permit meaningful review]; People v. Collins,
supra, 42 Cal.3d at p. 384 [same].)
But, in this case, Harzan is not arguing the trial court’s decision
to allow the prosecution to use the evidence of his prior sexual misconduct
infringеd his constitutional right to testify. (See supra, p. 16, fn. 4.) Rather,
he is arguing the ruling infringed his constitutional right to present a defense
that the trial court had already deemed factually viable. Although we do not
know what Harzan would have said had he taken the stand at trial, the facts
pertaining to his entrapment defense are largely undisputed.
“Brianna,” which were set forth at length in the parties’ trial briefs. So was
the evidence pertaining to Harzan’s alleged prior sexual misconduct. There
was no secret what the victims of that misconduct were going to say at trial if
Harzan had opted to raise the defense of entrapment. Under these
circumstances, there is a sufficient factual basis to review the propriety and
prejudicial effect of the trial court’s ruling regarding that evidence. Thus,
Harzan’s challenge to that ruling is not procedurally barred.
Harzan’s Right to Present a Defense
Relying on section 1101, subdivision (b), the Attorney General
asserts the trial court properly ruled the evidence of Harzan’s prior sexual
misconduct would be admissible if he raised an entrapment defense.5
We disagree.
Under section 1101, evidence of a defendant’s prior uncharged
misconduct generally is inadmissible to prove his conduct on a specific
occasion or his propensity fоr criminal activity. (Id., subd. (a).) However, such
evidence may be admitted to prove a material fact in the case, such as
motive, intent, or absence of mistake. (Id., subd. (b).) Factors bearing on
admissibility include the relevance of the particular fact to be proven and
whether the evidence would be unduly prejudicial under section 352. (People
v. Roldan (2005) 35 Cal.4th 646, 705, disapproved on another point in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Courts must keep in mind that “[e]vidence of uncharged offenses
‘is so prejudicial that its admission requires extremely careful analysis.
[Citations.]’ [Citations.] ‘Since “substantial prejudicial effect [is] inherent in
[such] evidence,” uncharged offenses are admissible only if they hаve
substantial probative value.‘” (People v. Ewoldt (1994) 7 Cal.4th 380, 404.)
charged offenses, the evidence of Harzan’s prior sexual misconduct was
“highly prejudicial” and “unfair” because the misconduct occurred roughly
half a century ago and was “very different” from what he was accused of
doing in this case. Therefore, the prosecution could not use that evidence in
its case-in-chief.
That evidence would not have become any less prejudicial if
Harzan had raised an entrapment defense. Nevertheless, the trial court
believed that with an entrapment defense in play, the probative value of the
evidence would increase, thereby tipping the scales in favor of admission.
This conclusion was informed by the court’s understanding that evidence of
Harzan’s state of mind was relevant to rebut a claim of entrapment.
As defense counsel pointed out below, however, entrapment turns
on whether the police conduct at issue would have caused a normally lawabiding person to commit the charged offenses; it does not depend on what
the particular defendant was thinking when he committed the acts in
question. The California Supreme Court made this clear many years ago, in
People v. Barraza (1979) 23 Cal.3d 675 (Barraza).
Barraza recognized the traditional test for entrapment is based on a
subjective standard that focuses on the defendant’s state of mind: If the
defendant had a preexisting intent or disposition to commit the charged
offense, he may be found guilty even if the police overstepped the bounds of
permissible investigative conduct. (Barraza, supra, 23 Cal.3d at pp. 686–689.)
Barraza also acknowledged the subjective standard for entrapment is used in
the federal courts and in the vast majority of states. (Id. at pp. 686–689 & p.
692 (concur. and dissent. opn. of Richardson, J.); see also Roiphe, The Serpent
Beguiled Me: A History of the Entrapment Defense (2003) 33 Seton Hall
L.Rev. 257, 258.)
In Barraza, however, our Supreme Court took a different
approach to the issue and adopted an objective standard for determining
whether a defendant has been entrapped. As set forth in Barraza, “[T]he
proper test of entrapment in California is [whether] the conduct of the law
enforcement agent [was] 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. Official conduct that does no more
than offer that opportunity to the suspect—for example, a decoy program—is
therefore permissible; but 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.” (Barraza, supra, 23 Cal.3d at pp. 689–690, fn.
omitted.)
induce a normally law-abiding person to commit a crime “because of
friendship or sympathy, instead of a desire for personal gain or other typical
criminal purpose.” (Barraza, supra, 23 Cal.3d at p. 690.) Or entrapment may
be established if the police make the crime unusually attractive to such a
person by promising the act is not illegal or the offense will go undetected.
(Ibid.)
“[W]hile the inquiry must focus primarily on the сonduct of the
law enforcement agent, that conduct is not to be viewed in a vacuum; it
should also be judged by the effect it would have on a normally law-abiding
person situated in the circumstances of the case at hand. Among the
circumstances that may be relevant for this purpose, for example, are the
transactions preceding the offense, the suspect’s response to the inducements
of the officer, the gravity of the crime, and the difficulty of detecting instances
of its commission. [Citation.] . . . [H]owever, . . . such matters as the character
of the suspect, his predisposition to commit the offense, and his subjective
intent are irrelevant.” (Barrazа, supra, 23 Cal.3d at pp. 690–691, italics
added.)
entrapment defense would open the door to Harzan’s prior misconduct
evidence bearing on his motive and intent was incorrect. Contrary to the trial
court’s understanding, those issues regarding Harzan’s subjective state of
mind were not relevant to whether Detective Baugh’s actions would cause a
normally law-abiding person to commit the offenses at issue here.
In arguing otherwise, the Attorney General relies on People v.
Foster (1974) 36 Cal.App.3d 594, which upheld the admission of the
defendant’s prior criminal acts on the theory they were relevant to defeat his
entrapment defense by showing his predisposition to commit the chargеd
offense. (Id. at pp. 596–599.) In so doing, however, Foster applied the
subjective standard of entrapment that was disapproved five years later in
Barraza. (Foster at pp. 596–597.) Although evidence of the defendant’s prior
criminal activity may be admitted to refute a claim of entrapment under the
subjective standard, Barraza makes clear such evidence is inadmissible
under the objective standard of entrapment the court articulated in that case.
(Barraza, supra, 23 Cal.3d at pp. 688–691.) The Foster decision is thus of no
aid to the Attorney General here.6
did not violate Harzan’s right to present a defense because he voluntarily
chose to surrender his entrapment defense to avoid the introduction of the
prior sexual misconduct evidence. According to the Attorney General, that
choice was no different than any other strategic decision criminal defendants
are called upon to make during the trial process, such as whether to present
favorable evidence that might permit the introduction of unfavorable
evidence.7
As we explained above, however, the choice Harzan was
presented here—to either abandon a factually-supported entrapment defense
or suffer the introduction of highly prejudicial prior misconduct evidence—
was based on the trial court’s legal misunderstanding of the entrapment
defense. Because Hаrzan should never have been put to that choice, we reject
the Attorney General’s claim that he voluntarily surrendered his right to
present an entrapment defense. (See Holmes v. South Carolina (2006) 547
U.S. 319 [absent a valid justification, the state cannot impede a defendant’s
constitutional right to present a defense]; Crane v. Kentucky (1986) 476 U.S.
683 [same].)
Having determined the trial court violated Harzan’s right to
present a defense, we turn to the issue of prejudice. We must decide whether
that violation was harmless beyond a reasonable doubt on the record before
us. (See People v. Demetrulias (2006) 39 Cal.4th 1, 23 [assuming a violation of
a criminal defendant’s right to present a defense is rеviewed under the
harmless-beyond-a-reasonable-doubt standard set forth in Chapman v.
California (1967) 386 U.S. 18]; People v. Ahmed (2018) 25 Cal.App.5th 136,
138 [applying the Chapman standard in deciding whether the trial court’s
failure to instruct on an affirmative defense was prejudicial]; People v.
Mulcrevy (2014) 233 Cal.App.4th 127, 131 [same].) That is a demanding
standard: Reversal is required unless the failure to instruct on entrapment
was so unimportant and insignificant to the case that there is no reasonable
possibility it might have contributed to the jury’s guilty verdict. (Chapman,
supra, 386 U.S. at p. 24; People v. Aranda (2012) 55 Cal.4th 342, 367.)
According to Harzan’s Craigslist ad, he was seeking a “young
coed friend” to have “good times” with. And after “Brianna” contacted him, he
made it clear he was interested in having sex with her, even though she told
him she was only 13 years old. But Harzan also repeatedly told “Brianna”
he could not have sex with her, as much as he wanted to. As defense counsel
pointed out in closing argument, there is a difference between wanting to
commit a crime and actually carrying it out. Our criminal law prohibits the
latter but not the former.
More important, every time Harzan told “Brianna” he could not
have sex with her, she expressed disappointment and tried to convince him to
change his mind by using sympathy and guilt. In addition, “Brianna” assured
Harzan he would not get caught because she would not tell anyone if they did
have sex. These techniques were cited in Barrazа as examples of possible
police overreach. (Barraza, supra, 23 Cal.3d at p. 690.) Although there is no
way of knowing whether an entrapment defense would have succeeded at
Harzan’s trial, we cannot conclude the failure to instruct on that defense was
harmless beyond a reasonable doubt. Therefore, Harzan’s convictions cannot
stand.
II.
THE SUFFICIENCY OF THE EVIDENCE
Although the judgment must be reversed due to the evidentiary
error discussed above, we do not believe the evidence was insufficient to
support the jury’s verdict, so as to preclude the prosecution from retrying
Harzan, if it chooses to do so. Harzan maintains there is insufficient evidence
he acted with the rеquisite intent to commit a sexual offense with “Brianna.”
The record shows otherwise.
8DISPOSITION
The judgment is reversed.
GOODING, J.
WE CONCUR:
MOORE, ACTING P. J.
SANCHEZ, J.