*1 Dec. S108309. 2003.] [No. PEOPLE,
THE Plaintiff Respondent, al., et Defendants and Appellants. EDALEENE SHERRIE SMITH *3 Counsel Bronson, Court, I. under for Defendant
Phillip appointment by Supreme Edaleene Sherrie Smith. Appellant *4 Weksler, Court, Maxine under for Defendant appointment Supreme and Thomas. Waymond Appellant Gilbert, Court, under and William
Stephen appointment by Supreme Flenniken, Jr., under the Court of for Defendant and appointment Appeal, Obed Gonzalez. Appellant D. and T. for California for Attorneys
Charles John Weisselberg Philipsborn Amicus Criminal Curiae on behalf of Defendants and Justice as Appellants. Medeiros, General, General, Bill Manuel State Solicitor Lockyer, Attorney Anderson, General, Hamanaka, R. Chief Assistant Pamela C. Attorney Robert General, Winters, Fuster, Lance E. Jaime L. Donald De Assistant Attorney Keller, General, Plaintiff and Nicola and Michael C. for Attorneys Deputy Respondent.
Opinion
case,
this
we
BROWN,
In ourorder
for review in
granting
petitions
J.
(1)
to: Whether the doctrine
argued
limited the issues to be briefed
United
(see,
cases
e.g.,
in some federal
“sentencing
recognized
entrapment”
(Stаufer))
States v.
1994)
affords a defense
(9th
While sentencing are terms entrapment sentencing manipulation sentencing them, some courts have used as we shall use interchangeably,1 on the intent entrapment primarily subjective defendant, while focuses of sentencing on the conduct manipulation primarily objective focuses of police. Under the theory defendant’s sentence should sentencing entrapment, predisposed offense, be commit reduced if he was to a lesser but was into an offense entrapped police committing subject greater e.g., Staufer, supra, (See, 38 F.3d at punishment.
Under the be reduced sentence should theory sentencing manipulation, officials, if a defendant’s law enforcement for the purpose increasing 1Indeed, limiting interchangeably. “Sentencing the case cited in our order issues uses them defendant, although entrapmеnt manipulation’ predisposed or ‘sentence factor occurs when ‘a offense, subject entrapped committing greater to commit a minor or lesser in offense greater (Staufer, supra, punishment.’ 38 F.3d at [Citation.]” sentence, in conduct so as to violate the defendant’s engaged right (See, (10th 1996) United v. Lacey to due States process. e.g., (Lacey).) 963-964 While the Court of the doctrine of rejected sentencing entrapment, it not the doctrine of it only sentencing manipulation, significantly accepted the bar a violation. “We do not believe a finding showing lowered for conduct is in order to establish sentence ‘outrageous’ manipula- required Rather, . . . we believe defendants establish sentence tion. manipulation enhancement when show the selected they purposes quantity but legitimate purpose solely amount of for no law drugs enforcement maximize defendants’ sentence.” the doctrine of as inconsistent with sentencing We reject doctrine, California under which “the character of the his suspect, crime, to commit the and his intent are irrelevant.” subjective predisposition (1979) 23 Cal.3d v. 690-691 (People Cal.Rptr. Barraza 947], (Barraza).) P.2d fn. omitted case, outrageous;
In this the conduct of the undercover officer was far from Therefore, indeed, we need not decide here it was quite unexceptionable. should be sentencing whether the doctrine of manipulation adopted However, our California. we do take this occasion to express disapproval the less test of Court rigorous adopted by manipulation law conduct has “no allegedly legitimate Appeal—that manipulative to maximize thedefendants’ solely enforcement but purpose undertaken] [was to be sentence.” Were the doctrine of sentencing manipulation adopted contrast, California, the be as truly outrageous. By conduct should predicate observed, “garden variety the United States First Circuit Court of Appeals (U.S. (1st are a waste of time.” largely Montoya claims F.3d 4 (Montoya).) sentences, a due of their defendants also invoke for modification arguing con- (outrageous defense based on outrageous government process defense). duct test, is subjective
The federal test of unlike the California entrapment, *6 “the intent or of the defendant to commit and focuses on predisposition (1973) 411 U.S. L.Ed.2d (United crime.” States v. Russell 429 [36 Russell, Court, (Russell).) reaffirming In while S.Ct. Supreme 1637] an left the federal test for subjective entrapment, open possibility due “While we some may constitutional defense based on process: objective in which the conduct of law enforcement be with a situation day presented bar the due would absolutely is so that agents outrageous process principles [citation], a to obtain conviction from government invoking judicial processes (Id. 431-432.) not of that breed.” distinctly pp. the instant case is courts, California, focuses the test for entrapment In unlike in federal if the law and is established Entrapment on the conduct is objective. normally law-abiding person to induce a enforcement conduct is likely 689-690.) (Barrаza, Cal.3d at commit the offense. pp. California, are, therefore, the context this In in We with question: presented claim, defense superfluous is the conduct outrageous the conduct of law enforce- our defense itself focuses on because address the viability ment? Just as this case is the case in which to wrong because the conduct of California of the doctrine of sentencing manipulation so, too, is it the case wrong law enforcement here was unexceptionable, quite in which to address the this state viability defense.
FACTUAL AND PROCEDURAL HISTORY The facts on the limited issues before us be stated. bearing may briefly Juan Martinez was an undercover narcotics officer. An informant of demon- strated told Officer Martinez that defendant Edaleene Sherrie Smith reliability dealers, was involved in and off’ other and that drug trafficking drug “ripping where, Smith was excited about the a home on the very robbing prospect officer, that instructions him another the informant had told Smith given of cocaine would be found. kilograms In furtherance of thе Officer Martinez then met with Smith. Officer sting, Martinez told Smith that he wanted to off’ a dealer he major drug “rip for, and that worked the amount of cocaine involved would be between 30 and 100 Smith assured Officer Martinez that she made her kilograms. that and that living doing, she knew what she was she way, exactly used the same crew. Smith then informed always experienced three-person Officer Martinez of her fee schedule: If the robbery yielded kilograms cocaine, to divide she was to receive five for herself and nine more kilograms crew, her officer. If more than 50 with the remainder to the among going involved, share, said, be 60 were the officer’s Smith would kilograms percent. conversations, Officer Martinez Smith the address of subsequent gave informed her that of cocaine would be located in kilograms house defendants, van in an to the arrival of Prior parked adjoining garage. order, withdrawn, had of cocaine kilograms officers court pursuant it in the van from the division of the police placed property department in the The left in the of the van. When garage. ignition was parked key *7 arrived, car, defendants Smith remained in the while codefendants Waymond and Thomas and Obed Gonzalez entered the house then the As garage. and Thomas Gonzalez van out of the began backing garage, a activated remote-controlled switch shut off Thomas and engine. Gonzalez, Smith, then as well as were arrested. stated,
As convicted to defendants previously jury attempting transport cocaine, and the found true an that the of cocaine jury allegation quantity Code, (Health 11352(a), exceeded & Saf. involved kilograms. §§ 11370.4(a)(6).) Smith and were Thomas also convicted of to conspiracy Code, 182, (Pen. (a)(1)), (Pen. commit subd. robbery robbery attempted § Code, Code, 664), (Pen. theft of an automobile grand §§ § Code, (d)), (Pen. (a)). subd. and theft of subd. grand personal property § including Smith received sentence of 36 years prison, 25-year enhancement for to more than 80 quantity attempting transport kilograms months, cocaine. Thomas was sentence of 47 given prison years eight Gonzalez, enhancement. who was convicted of the including 25-year commit same for received a sentence charges, except conspiracy robbery, of 33 enhancement. years, including 25-year conviction,
The Court of affirmed defendants’ but judgments Appeal modified each defendant’s sentence the sentence enhancement by reducing from years years.
We reverse the of the Court of insofar as it reduces judgment enhancement more defendants’ sentence 25-year attempting transport (§ 11370.4(a)(6)). In all than 80 of cocaine other kilograms respects, affirmed. Court of Appeal’s judgment
DISCUSSION reiterate, are whether the courts of To this case presented by questions in contend- this state should the defenses which defendants upon rely accept (1) their sentences should be reduced or their convictions reversed: ing (3) sentencing entrapment, sentencing manipulation, conduct. threshold, General contends defendants forfeited Attorney
At claims to raise sentencing by failing sentencing Like courts The contention lacks merit. some hearing. them the sentencing (ante, defendants, 1), the trial court should not fn. arguing enhancements, did not between distinguish the 25-year impose However, made defense counsel it and sentencing manipulation. under the rubric of clear were those they invoking concepts abundantly
1215 as nor the court was in doubt any neither the Clearly, prosecutor entrapment. 85 The officers had decided upon defendants’ arguments. to the thrust of cocaine, the considerable risk because kilograms prosecutor responded, to meant the robbers had involved in home-invasion robberies of violence effect, the trial claiming, the defendants were foresee considerable rewards. observed, a sting law enforcement in that “there is some obligation court minimum amount to minimize penalty.” to use only operation claims, Moreover, and an the Court of addressed these appellate that have not been court is not from generally reaching questions prohibited 148, Cal.4th v. Williams 17 (People for review preserved by party. 161-162, 917, 429].) fn. P.2d 6 948 Cal.Rptr.2d [69 Sentencing Entrapment
I.
Seventh,
First,
Eighth,
Four federal circuit courts of appeals—the
(United
the doctrine of sentencing entrapment.
Ninth—appear
accept
70,
(Woods);
v.
(1st
2000)
States v. Woods
Cir.
210 F.3d
75
United States
373,
(7th
2002)
(Gutierrez-Herrera);
Cir.
F.3d
377
293
Gutierrez-Herrera
1096,
(8th
2000)
(Searcy); Staufer,
United States v.
Cir.
233 F.3d
Searcy
1099
Cir.].)2
In the federal the status of the doctrine is remaining 249, (2d 1997) United States v. Cir. 103 F.3d 256 [validity concept Gomez Circuit]; United not determined in Second sentencing yet 1994) (Raven) Circuit has (3d States v. Raven Cir. 39 F.3d [Third revealed, attention, any other brought Defendants have not to our nor has our own research actually granted a Appeals circuit the Ninth Circuit Court of that has federal court besides sentencing sentencing guidelines on the basis of departure downward from the federal 1996) Stavig (See, (8th [although United States e.g., Cir. 80 F.3d entrapment. doctrine, having repeatedly recognized yet “we have to find that case”].) particular existed under the facts of a not had occasion to address yet United theory sentencing entrapment]; (4th 1994) (Jones) States v. Jones Circuit has [Fourth never addressed legal viability United sentencing entrapment theory]; (5th States v. Snow F.3d Circuit has yet [Fifth *9 determine whether is a defense to a sentencing entrapment cognizable sentence]; (6th 1996) United States v. Jones 102 F.3d 809 [Sixth Circuit has never acknowledged validity sentencing entrapment].) because,
We the doctrine of as the Court reject sentencing entrapment observed, below the “does not fit with California’s Appeal concept simply 1171, 1179, (Accord, (2001) criminal law.” v. Graves People 93 Cal.App.4th (Graves).) fn. 5 The federal doctrine of Cal.Rptr.2d sentencing [113 708] like the federal doctrine of focuses on the entrapment, generally, Woods, (See intent of the defendant and is 210 F.3d at subjective. supra, 75; 1099; Gutierrez-Herrera, 233 F.3d at p. Searcy, supra, 293 F.3d p. supra, 377; 38 F.3d at Staufer, The California test of p. supra, p. contrast, “focuses on the conduct and is by entrapment, objective.” 22 Cal.4th (People Watson 223 P.2d Cal.Rptr.2d test, (Watson)) the Under California “such matters as the character of 1031] offense, the his to commit the intent his suspect, predisposition subjective 690-691, (Barraza, are irrelevant.” omitted.) 23 Cal.3d at fn. supra, pp. Another reason for the doctrine of relied rejecting sentеncing entrapment, Graves, the Court of in as well as the Court of in upon by by Appeal case, this is that “California courts do not follow same rigid sentencing courts, as federal the need guidelines so for a basis for specific departure (Graves, from a is not guideline present.” supra, 93 Cal.App.4th p. here Defendants received enhancements to section 25-year quantity pursuant 11370.4(a)(6). (e) of Health and Subdivision Code section 11370.4 Safety law, other “Notwithstanding any court strike provides: provision may it additional for enhancements in this section if provided punishment determines there are circumstances in of the additional mitigation punishment states on record its reasons for additional striking punishment.” 4.428(a) Rule of the California Rules of Court “If provides pertinent part: has discretion to strike the additional term for an judge statutory enhancement, the court consider and may circumstances apply any enumerated in these rules . . . .” The circumstances in mitigation mitigation defendant, enumerated in include the fact that the no the rules “with apparent so, to do was induced others to in the crime.” by predisposition participate Court, (Cal. 4.423(a)(5).) Rules of rule Sentencing Manipulation
II. as it is defined usually under the Again, theory sentencing manipulation, the federal courts a defendant’s sentence should be by discussing concept, officials, increasing enforcement purpose
reduced if law
sentence,
or extraordi
that was so outrageous
in conduct
engaged
defendant’s
(See, e.g.,
to due
of law.
to violate the defendant’s right
process
as
nary
Circuit,
Montoya, supra,
“government’s
62 F.3d at
First
p.
[in
v. Bala
”];
(2d
United States
misconduct’
‘extraordinary
must be viewed as
is unde
of sentencing manipulation
status
[the
conduct];
Circuit,
involve outrageous
cided in the Second
but would have to
Raven,
which
supra,
F.3d at
theory
sentencing manipulation,
[the
been
yet
has not
the court of
refers
as
entrapment,
appeals
Circuit,
courts as
but has been defined
other
addressed
the Third
Jones,
conduct];
18 F.3d at
official
involving outrageous
could ever
as to whether the government
Circuit notes its “skepticism
[Fourth
to violate due
in conduct not
...
engage
outrageous enough
process
yet outrageous
*10
extent
a dismissal of the
warranting
government’s prosecution,
due
an extent
a downward
to offend
to
enough
warranting
departure
process
(5th
Tremelling
United States
with
v.
sentencing”];
to
defendant’s
respect
148,
1995)
Cir.
43 F.3d
151
Fifth Circuit had
(Tremelling)
previously
[the
claim,
a due
and
addressed
in the context of
sentencing manipulation
process
the
in the case
defendant failed to
misconduct
allege outrageous government
976,
United
bar];
Berg
(Berg)
States v.
(8th
1999)
(dis.
at
178 F.3d
984
J.)
of
test fact
for
Bright,
sentencing manipula
opn.
properly
patterns
[“We
determine
tion
at
to
whether
it
by
conduct
issue
examining
government
served some
law enforcement
or whether it was outra
legitimate
objective,
United
sentence”];
aimed
geous
only
defendant’s
increasing
1270, 1276,
States v. Scull
(10th
2003)
fn. 3
Tenth Circuit
[the
“
addresses the
‘under the
of
sentencing
issue
manipulation
appellation
’ ”].)
conduct”
“outrageous governmental
While several
circuit
sentencing
federal
courts have discussed
manipulation
dicta,
not a
been
our attention where a federal
case has
to
single
brought
circuit court
the federal sentencing
downward
from
approved
departure
Sanchez,
(See
on this basis.
At least four of sentencing states have addressed doctrine manipulation. The Court of of New Mexico has left the question open. Appeals apparently 280, (State Rael N.M. P.2d v. NMCA 68 981 1999 287] unfair some circumstances transactions constitute continuing may [under sentence, of a defendant’s but no found sentencing manipulation manipulation bar].) The Court of has doctrine Pennsylvania adopted case Superior standard. as defined conduct sentencing outrageous manipulation (Commonwealth 1997) A.2d 1366-1367 Petzold (Pa.Super.Ct. govern reduction an and just response outrageous аppropriate [sentence to increase a defendant’s term of ment conduct designed solely incarceration].) The District Court of of Florida has the lesser Appeal adopted standard of embraced sentencing Court of here. manipulation (State 2002) v. Steadman 827 So.2d 1024—1025 (Fla.Dist.Ct.App. [no law enforcement for legitimate given purpose undisputed sentencing manipu lation].) The Court of Criminal of Tennessee Appeals apparently accepts doctrine of under the rubric of sentencing entrap ment, but has not out whether it spelled adopts (State standard or some lesser standard. v. Thornton (Tenn.Crim.App. S.W.3d of consecutive sentences for sale of narcotics [imposition “ be may number of inappropriate, ‘depending upon specific buys ”].) officers to conduct and the amounts in each buy’ purchased [choose] A. The Conduct the Undercover Here Was Officer Hence Unexceptionable, WeNeed Not Decide Whether WeAccept
the Doctrine Sentencing Manipulation. reiterate, To defendants were each sentenced additional term of 25 cocaine, more than years having attempted kilograms transport contend they they should instead have received the additional 15-year terms to more than 20 but less than because applicable kilograms, undercover officer them into to steal more than manipulated agreeing kilograms.
Even that we the doctrine of assuming arguendo sentencing accepted defendants’ contention would fail the for reason that it manipulation, simple factual lacks basis. any said,
Sentencing as we have focuses on the manipulation, primarily However, conduct of the the conduct of the does not objective police. vacuum, occur in a in a The court’s assessment of sting especially operation. an officer’s conduct will be colored for objective inevitably by, example, whether the defendant was from the start an enthusiastic of the proрonent crime or declined and was worn initially down. proposed only gradually informant, When defendant Smith initially approached expressed told but enthusiasm at of home where she was nothing robbing prospect of cocaine would be found. When the undercover officer kilograms Smith, himself first met with he told her the amount of cocaine involved for a would be 30 to 100 Smith did not kilograms. express any preference end that To the Smith range. contrary, sought transaction at lower of described, to the him she telling reassure the officer that she was as up job and that doing, made her that that she knew what she was living way, exactly Indeed, crew. rather than she used same always experienced three-person involved, of cocaine amount large potentially a concern about expressing a discount for the officer that actually gave set out a fee schedule Smith cocaine, was to Smith 30 kilograms If the robbery yielded quantity: her among and nine more to divide for herself kilograms receive five cocaine, crew, would work out to percent which with the remainder involved, it, the officer’s were kilograms the officer. If more than for conversation, said, share, In a subsequent would be 60 percent. Smith found at the designated cocaine would be told Smith 85 kilograms officer there is no location, there. Again, the sum found actually and that was about any prospect indication whatsoever that Smith expressed qualms cocaine, well within the range an amount that was stealing kilograms from the Third the outset. To borrow phrase that had been discussed from courier who drug “was an Circuit Court of Smith Appeals, experienced as a attitude towards yeoman’s demonstrated what can be characterized only (Raven, supra, venture.” F.3d at this circuit courts that
It is clear that none of the federal quite accept Montoya, would find on these facts. In doctrine manipulation cocaine, but kilograms the defendants purchased have been sentenced on the basis of three or four only contended should they because the undercover had reduced the down kilograms agent payment $50,000 $25,000 them to subject longer cocaine from in order contention, holding sentences. The First Circuit Court of Appeals rejected that the defendants had failed to show the misconduct extraordinary required (Id. claim. at p. in that circuit for a successful sentencing manipulation in the “All that did to reduce the down agent] payment undercover was [the cash to make the face of claims were short of they [the defendants] full down is so far from government This payment originally proposed. misconduct,” that it would not have the court of appeals explained, published considerations, very its but for one of which was “to make two opinion, factor of our cases: sentencing explicit plain import previous (Ibid.) is a claim for the extreme and unusual case.” only *12 In the defendant contended that undercover Tremelling, supra, had in agents sentencing by producing pounds engaged manipulation The defendant had cоntracted to buy only pounds. when the marijuana viability Fifth Circuit had not addressed Court of Appeals previously it had addressed similar conten- the doctrine of but sentencing manipulation, claims, it no due tions in the context of due and found process process not (Id. 151-152.) at does “Tremelling violation in the case at bar. pp. and that the government, contend that he the extra amount taking resisted conduct, overcame his resistance. and through overbearing [Cita- and the extra amount brought He contends that the merely government tion.] dealer in his right it which no drug offered to him without requiring payment, ‘Fronting’ mind would do. is not Tremelling’s argument persuasive. recognized among (Id. dealers.” at The conduct practice drug ascribed to the the extra government—producing and pounds marijuana “front[j” offering cost of it—did not constitute sentencing manipula- tion, the court of held. (Ibid.) appeals defendant,
In United (6th 1992) States v. Sivils F.2d in $15,000 cocaine, worth of arranging buy revealed in his conversation with the undercover witness that he believed he would rеceive some- cooperating Instead, what less than 500 for that sum. delivered grams one police defendant, of cocaine to the kilogram him to a sentence. subjecting higher The Sixth Circuit Court of said that if the defendant Appeals could demon- strate the government dollar amount of cocaine to increase manipulated sentence, his “such would certainly fundamental provide reveals, however, fairness defense against sentence. The record higher that Jordan ratified the amount of cocaine sold actually defendants.” (Id. 598-599, omitted.) at fn. pp. (8th United States v. Shephard F.3d 647 in a (Shephard), months,
drug that went on for sting eight the undercover officer purchased occasions, from the drugs defendant on 12 her from an working way up initial of .2 of cocaine to a final purchase grams of 218.6 purchase grams, along from way, switching for with cash to with paying drugs paying defendant, cocaine, food The convicted of 12 counts of stamps. seven selling counts of food for the and one acсepting stamps count of payment drugs, cocaine, to distribute crack and claimed he conspiracy was victim of (Id. which he called sentencing at manipulation, sentencing entrapment. 648-649.) The Circuit Court of pp. Eighth between Appeals distinguished and it found that neither sentencing manipulation, was shown facts of the case. Of the defendant’s sentencing manipula- claim, tion the court of said: “We that there could be appeals recognize situations in which the government undercover or engages continuing sting transactions for the sole a sentence under the purpose ratcheting up exists, We are that a guidelines. aware for abuse but abuse is not potential (Id. omitted.) on the record before us.” present fn. The court of added: asks the to fashion a code of appeals “Shephard essentially judiciary conduct for sting what on even a operations, deciding point leading willing criminal becomes unfair to the unconstitutional. point being Obviously, minor, law, transaction in a after the will any first violation of however sting Yet, be to such attacks. we have established that it is subject legitimate to continue to deal with someone with whom have they already in illicit transactions in order to establish that engaged guilt beyond person’s a reasonable doubt or to and extent of a criminal ‘probe enterprise, depth exist, to determine whether and to trace the into drug *13 coconspirators deeper distribution The course of the transactions this hierarchy.’ [Citations.] case shows a amounts of legitimate increasing drugs culminating pattern than sale, did no more which indicates police the final 218 grams
with deal.” and able to willing was Shephard what ascertaining quantity persist (Ibid.) that the government’s defendant claimed Lacey, F.3d supra, informant, amounts of cocaine from smaller after purchasing
confidential occasions, another five purchased distributor on several previous defendant’s involved drugs increase the quantity no reason other than to “for kilograms (Id. at of his p. enhance the sеverity punishment.” and thereby the Tenth Circuit sentencing manipulation, the defendant’s claim of Rejecting decision to seek “the government’s found no fault with Court of Appeals held that We have from defendant’s previously ‘bigger buy’ distributor]. [the continue induce a defendant for the government it is not outrageous extend him to or previous ‘or even to induce activity expand criminal (Id. at criminal activity.’ p. [Citation.]” what to do here were merely given apparent opportunity
Defendants Nevertheless, the Court of did a living. Smith so for they proudly proclaimed defendants were victims of concluded that Appeal do the theft for 30 kilos.” because Smith had indicated that “would they However, in the enforcement are stings stratagems permissible (Watson, 223), sting criminal and the supra, law Cal.4th purpose work, work. not find how will they is to catch criminals at out cheaply Walls, with a defendant who (See agrees [“Consider that if someone for a fee. Are we to suppose an undercover to murder agent he should be to beat only рerson up, the defendant offered initially offense?”].) that were his sentenced as if the Court Sentencing Proposed
B. The Standard Manipulation is Rejected. whether we accept It for us to decide in this case unnecessary is here police because the conduct doctrine of sentencing manipulation However, we reject standard. was not reasonable overreaching by any Court of Appeal. standard of sentencing manipulation adopted showing believe stated: “We do not The Court of Appeal sentence in order to establish conduct ‘outrageous’ required is a [above], . As discussed . . manipulation. Thus, where out- in cases defense to the prosecution. complete the issue there would be no need to reach conduct has occurred rageous Furthermore, find not wait until we we need surely of sentencing. before of forced stomach pumping equivalent sentence-manipulation Rather, we occurred. of due has we declare a violation process *14 believe defendants establish sentence manipulation purposes quan- enhancement when tity they show selected the amount of drugs for no law legitimate but to purpose solely maximize enforcement defendants’ sentence.”
The federal circuit courts that the doctrine of accept sentencing manipula tion, it, as well as those that caution reject of such a against adoption standard. The First Circuit Court of entertains claims of Appeals sentencing However, accident,” observed, no manipulation. is the First Circuit “that “[i]t statements condemning factor sentencing are dicta. A manipulation usually defendant cannot make out a case of undue provocation by showing simply that the idea with the originated or that the conduct government was [citation], it encouraged by or that the crime was the first prolonged beyond [citation], criminal act or exceeded in or kind what the degree defendant had done before. What defendant needs in order tо [Citation.] require reduction are elements like these carried to such a that the degree govern ment’s conduct be must viewed as misconduct.’ ‘extraordinary [Citation.] [][] The standard is because we are high talking about a reduction at sentencing, in the teeth of a statute or guideline approved by Congress, for a defendant who did not raise or did not defense at trial. The prevail upon standard is because it general for a vast designed range of circumstances and of incommensurable variables. 62 F.3d at (Montoya, supra, [Citation.]” 3-4.) circumstances,” “Because of the pp. diversity court of appeals continued, “we have declined to create detailed rules as to what is or is not [citation], undue but we think it manipulation is useful now to be candid very that saying garden variety claims are a waste of largely (Id. time.” at p.
Another of the First Circuit Court of panel admonished: their Appeals “By nature, inclined, are to sting operations designed and a tempt criminally well-constructed is often to test the sting limits of the sculpted target’s criminal inclinations. Courts should before go very slowly out rules staking that will deter from the government agents of their proper performance (United duties.” investigative (1st States v. Connell 960 F.2d Circuit, 196.) The Fourth which has not decided whether it yet accepts doctrine of sentencing (Jones, reiterated this admonishment. manipulation, 18 F.3d at
The Fifth Circuit Court of
also
the doctrine of
Appeals
appears
accept
However, it
rejected
notion that
manipulation.
governmental
conduct should be
a‘to
brand of
when its effect is
“subject
special
scrutiny
sentence,
offense,
felt in
as
determination.’
States Cotts
opposed
[United
v.]
Indeed,
[(7th
1994)]
[300,]
we are
willing
[fn.] 2.]
‘[i]f
accept
by Congress
dealing
assumption apparently approved
*15
evil,
what
it
not clear to us
the
of
is a
is
drugs
greater
greater quantities
of
cognizance
behavior based on
to
legal objection
governmental
precise
not
area
be
as it does
rise
(so long
in this
could
relative penal consequences
due
“so
that
process
of true
or conduct
outrageous
to the level
entrapment
invoking judicial
the
from
government
would
bar
absolutely
principles
’
423,
Russell,
411 U.S.
States v.
supra,
Id.
United
(quoting
processes[)].”
366,
In F.3d Shephard, task the doctrine of declined the effec- sentencing manipulation, accepting here, is, the a code of by “fashioning] undertaken Court of that tively (Id. 649.) at sting conduct operations.” p. 956,
In in the course the Lacey, supra, F.3d defendant’s rejecting the Tenth Court of claim Circuit ob- Appeals manipulation, that it although viability served conduct recognized outrageous defense, it had never with governmental been conduct presented sufficiently to warrant dismissal. “The strict nature of the conduct egregious outrageous due in to the reluctance of the to second- primary judiciary inquiry part motives tactics of law enforcement officials. Govern- guess [Citation.] ment involvement is essential in the context of which are sting operations, often the effective to detect and to only way illegal drug develop proof sure, be at zeal To there is a which excessive activity. government may point However, warrant the courts will judicial intervention. that not prior point, fine tune conduct law enforcement officials that does not ‘offend the (Id. 964.) universal sense of justice.’ [Citation.]” Outrageous III. The Defense Conduct now come to the We embedded in conduct defense outrageous question California, claim, defendants: in the asserted In context of entrapment is the defense of law enforcement because outrageous conduct superfluous our defense itself focuses on the conduct of law enforcement?
The conduct defense has been the “deathbed child of outrageous called 1, (United F.3d (1st States v. Santana objective entrapment.” Russell, subjective U.S. Court reaffirmed Supreme test for on “the intent or defendant entrapment focusing predisposition However, (Id. the crime.” court left high to commit open due of an constitutional based on objective process: defense possibility “While we some be with situation in which conduct may day presented law enforcement is so due would agents outrageous process principles bar the from obtain absolutely government invoking judicial processes [citation], conviction the instant case is not of that breed. . . . The distinctly law enforcement conduct here far short of stops that ‘fundamental violating fairness, to the shocking universal sense of mandated justice’ the Due (Id. 431-432, Process Clause of the Fifth Amendment.” at pp. quoting Kinsella v. United (1960) States ex rel. Singleton 361 U.S. 246 [4 L.Ed.2d 297].) S.Ct. In Hampton v. United States 425 U.S. L.Ed.2d 96 S.Ct. (Hampton), court left high again 1646] open that a defendant possibility might invoke an successfully him defense even if the defense were unavailable *16 because of his to commit crime.3 predisposition
The vast
of the federal circuit
majority
courts of
allow the
appeals
(See,
conduct
outrageous
defense.
United
e.g.,
States v. Penagiarcano-Soler
(1st
833, 839,
1;
1990)
Cir.
F.2d
911
fn. United
(2nd
States v. Rahman
Cir.
88, 131;
1999) 189 F.3d
(3rd
United States v.
1998)
Cir.
155
Nolan-Cooper
221, 230;
F.3d
32,
Unitеd
(4th
36;
States v. Osborne
Cir. 1991)
F.2d
935
(5th
424, 426;
United States v.
1986)
Cir.
807 F.2d
Arteaga
United States v.
Quintana (7th
867, 878;
1975)
Cir.
508 F.2d
178 F.3d at
Berg, supra,
979
p.
Cir.]; Bogart,
Cir.];
While the test for
in California
entrapment
objective
is
and focuses
on the conduct of
(Barraza,
law enforcement
23 Cal.3d
at
court,
689-690),
Court,
this
like the United
pp.
States
has left
Supreme
open
that we
possibility
conduct
might accept
outrageous
defense. In
(1979)
237,
v. McIntire
527],
lead to (1978) Isaacson (See, People the law. e.g., due tional right process (McIntire, at 714].)” p. 406 N.Y.S.2d N.E.2d N.Y.2d [378 1.)4 fn. Bd. Appeals Control Beverage v. Alcoholic
In Provigo Corp.
1163],
the claim
we rejected
P.2d
The Court of Appeal conduct.” In about the or offеnsive shocking police but found “nothing 326], one of its 1130 (1990) Cal.Rptr. Wesley Cal.App.3d People a court decisions, four factors identified earlier this Court Appeal own had been whether due determining process principles consider in should 1, (In is, course, (1987) re Martin 44 Cal.3d 55 [241 The McIntire statement dictum. 374].) Cal.Rptr. 744 P.2d ground in Holloway, an unrelated disapproved was on Cal.App.4th People (1997) Cal.Rptr.2d 941 P.2d v. Fuhrman 1189]. Cal.4th 947 [67 violated by (1) conduct: outrageous police whether the manufactured a police occurred, crime that otherwise would not have or likely involved merely in themselves criminal ongoing (2) whether the activity; themselves police in criminal engaged or (3) to a sense improper repugnant of justice; whether the defendant’s reluctance to commit the crime is overcome by appeals humanitarian instincts such as or sympathy past friendship, by of exorbitant temptation or gain, solicitation in the face persistent unwillingness; and whether the record reveals a desire to obtain a simply conviction with no that the reading motive is to further police crime prevent (Id. or factors, protect said, Wesley court populace. These is, itself, are illustrative and only no one in determinative. Each factor should be viewed in context with all pertinent case and law aspects proper (Ibid.) enforcement objectives.
None of the found, factors it had identified in Wesley, Court of Appeal are in this case. “While it present is true the Smith and not police approached vice Rather, versa did not do they so on a whim or out of malice. personal acted on information police from a informant that Smith was dependable engaged drug and home trafficking invasion robberies. The informant . . . had established his with the federal reliability Enforcement Drug Agency by providing agents its with information for the past years. [The informant] had also worked with Detective Alvarez of the Los Angeles Police Depart- ment Furthermore, who orchestrated the sting operation this case. before initiatеd the had sting two conversations with [the informant] Smith in which she confided to him ‘she had some that will do some people asked Smith rip-offs.’ ‘if she would be [The interested in doing informant] interest, one.’ Smith affirmed her she and telling her crew [the informant] were ‘professionals’ how to handle that kind of work’ because ‘[knew] had she been doing these robberies *18 ‘10 and . . . years never even been Our review of the caught.’ record shows Smith never reluc- expressed any tance to steal the cocaine nor did or the exert any police [the informant] on her to do pressure so. On the to contrary, just the prior executing robbery Martinez, crime, Smith told Detective the undercover officer the to directing ‘continue with the and ‘don’t back off.’ plan’ Smith to repeatedly emphasized and Martinez had they to about because nothing worry [the informant] she. and her crew knew what were they would hurt and doing, nobody get would their everyone cut. get
“After of his hearing conversations with Smith reports [the informant’s] and to a secret listening of one of their the recording meetings police in designed which an undercover officer was operation introduced to Smith officer, Martinez, by The undercover told Smith he wanted [the informant]. her to off’ a dealer. help big-time When Smith to do the the ‘rip drag agreed job, to the ... In the case the did police proceeded arrange sting. not present police manufacture a crime that otherwise would not have occurred but involved admission, which, her she had by in criminal own activity,
themselves Smith’s for the 10 years. been pursuing past the this case were motivated simply
“The record not show in police does were they a desire to a conviction but rather demonstrates obtain by had undetected for that by robbery ring operated motivated desire to stop which could easily decade and to from violence public the past protect from a drug when a thieves to steal cocaine pure result gang attempts lord.” California, In the context are left we started with:
We with the question claim, enfоrcement of an is defense of law defense on the because our itself focuses superfluous case, law This which conduct of enforcement? the conduct law was in which to enforcement is case entirely unexceptionable, wrong this resolve question.
DISPOSITION The the Court of is reversed as it reduces judgment of insofar 25-year defendants’ sentence enhancement more attempting transport (§ 11370.4(a)(6)). than 80 cocaine kilograms of all other respects, Court affirmed. Appeal’s judgment
Baxter, J., Chin, Moreno, J., J., concurred. result, WERDEGAR, J., decline Concurring. join I concurin but in its discussion majority unnecessary, confusing, potentially questionable of certain issues. concluded the claim of “lacks factual
Having any ante, basis” at “the (maj. because conduct of here opn., police (id. 1221), was not standard” by any reasonable overreaching (id. 1221-1223) out majority pp. goes way reject nonetheless of its any legitimate test the Court whether there was adopted Appeal—viz., bona law enforcement оr fide reason for conduct—even purpose review, virtue of our is no though grant longer court’s opinion, Court, (Cal. 976(d).) authority. citable Rules rule *19 is The discussion of the Court test also majority’s extended Appeal’s because, standard, not a even under the this is case unnecessary rejected a and the sentence reduction. The defense posited, requiring prosecution rebut, a for the police failed to law enforcement plausible legitimate purpose the sting given decision to use 85 cocaine in their kilograms operation: 1228 risk of violence involved in theft of the
high officers type contemplated, a could have believed was more reasonably relatively large to quantity likely Smith and her to the keep crew committed enterprise.
Moreover, criticism of the Court of majority’s Appeal’s sentencing standard to be to the manipulation appears unjustified. Contrary majority’s not all “caution against courts such a standard” implication, adoption ante, United (Sеe Shephard States v. (maj. 1222). (8th at 4 opn., 1993) p. 647, F.3d 649 be found [suggesting might where manipulation government “the in or engages continuing undercover transactions for sting United States v. sentence”]; the sole Sivils ratcheting purpose up (6th 1992) F.2d could 598-599 demonstrate that the [“If [the defendant] the dollar amount of cocaine to government manipulated increase his sen- tence, such would a fundamental certainly fairness provide sentence”]; State v. Steadman defense against higher (Fla.Dist.Ct.App. 827 So.2d reduction warranted where police [sentence extend no sting defendant “for reason other operation against than to sentence”].) enhance his or her were this court Consequently, actually case, with the issue it least in is at it would presented proper possible conclude similarly conduct with no law government legitimate enforce- sentence, ment to purpose, designed solely increase a defendant’s was so event, outrageous as to warrant a sentence reduction. In to any purport here, decide issue at the same declining while time decide whether the California, doctrine even sentencing manipulation is to applies engage dictum. gratuitous The also addresses whether “the majority defense of outra- question law enforcement because our geous conduct superfluous entrapment [is] ante, defense itself conduct of focuses on the law enforcement” at (maj. opn., 1223), after considerable discussion it reaches no p. though conclusion (id. 1227). because the facts here no outrageous show conduct I agree case, regard with to the conduct in this but in place majority’s inconclusive discussion I would unhelpful potentially explain impor- tant differences between the doctrines of and outrageous law enforcement conduct. due enforcement
The “defense” law process such, bar to prosecution rather than a defense to as it is actually charge; v. (People Wesley (1990) raised decided motion and court. propеrly v. Thoi 326]; see People also Cal.App.3d Cal.Rptr. [274 689, 695-697, (1989) 789].) fns. 2 & 4 Cal.Rptr. Cal.App.3d [261 contrast, is decided charge is a trial. by jury defense 675, 691, (People v. Cal.3d fn. 6 Cal.Rptr. Barraza Thoi, 947]; People P.2d The constitutional bar of *20 conduct, moreover, be against invoked outrageous may law enforcement crime and or conduct that does not involve inducement to prosecutorial v. as for an (People therefore cannot serve the basis defense. 547]; v. People Holloway Cal.App.4th Cal.Rptr.2d Thoi, fn. supra,
The two are distinct and substantively doctrines therefore both procedur- context, i.e., in a factual ally. They do overlap substantively particular “[i]n cases where the thrust of the defense is that the government improperly Thoi, But instigated (People crime.” Cal.App.3d an area exists does not make either doctrine redundant overlap conduct, no to doubt that in a reason case of provides proper crime, whether or including government may not inducement to defendant be able obtain dismissal of the action on grounds. due process J., Kennard, J., George, C. concurred.