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8A Cal D 2d-456
C.A.Cal. 1976. Denial of due process in state criminal case, sufficient to justify federal court interference, is failure to observe that fundamental fairness essential to very concept of justice. Nolen v. Wilson, 372 F.2d 15, certiorari denied 87 S.Ct. 2085, 387 U.S. 948. 18 L.Ed.2d 1337.
8A Cal D 2d-470
Cal.A. 1952. Federal Rules of Criminal Procedure authorizing court at any time after filing of information or indictment to order attorney for Government to permit defendant to inspect and copy or photograph designated books, papers, documents or tangible objects obtained from or belonging to defendant or obtained from others by seizure or by process, has no alication in state courts and cannot be incorporated into Fourteenth Amendment to the federal Constitution as a limitation on state action. Fed.RulesCrim. Proc. rule 16, 18 U.S.C.A.; U.S.C.A.Const.Amend. 14. People v. Kross, 247 P.2d 44, 112 C.A.2d 602.
A person is incapable of committing a crime where the act is committed or the omission is made under threats or menaces sufficient to show that he had reasonable cause to believe, and did believe, hit life would be endangered if he refused. This defense is unavailable, however, where the offense is punishable by death. To establish the defense of duress in a criminal case, it is essential to show a threat of imminent violence. The danger to the life of the person claiming the defense must be, or reasonably aear to be, imminent and immediately impinging; a future and remote danger is not sufficient. This qualification alies not only to persons of age, but also to a minor otherwise capable of committing the crime involved.
An honest but unreasonable belief as to duress may negate the specific intent necessary for robbery and kidnaing for the purpose of robbery. Where the evidence suggests an honest belief, which if reasonable , would absolve the defendant of liability for the charged crime, the court has a sua sponte duty to instruct on honest but unreasonable belief by defendant that his life was in danger.
Discriminatory enforcement of the law may be a valid defense in a case in which the defendant can establish deliberate invidious discrimination by prosecutorial authorities.
Entrapment in California is that conduct of a law enforcement agent likely to induce a normally law-abiding person to commit an offense (sec. 2267). It is impermissible for the police or their agents to pressure a suspect by overbearing conduct, such as badgering, cajoling, or importuning or other affirmative acts likely to induce a normally law-abiding person to commit a crime (Sec. 2268). Entrapment may be effected by an unwitting agent of law enforcement officials (Sec. 2269).
Aside form the defense of entrapment, sufficiently gross police misconduct could conceivably lead to a finding that conviction of the accused would violate his constitutional right to due process of the law (Sec. 2272). Entrapment is an affirmative defense, and the defendant has the burden of proving it (Sec. 2273). Failure to give entrapment instructions sua sponte constitutes a reversible error where substantial evidence to sustain the defense is offered or introduced (Sec. 2274).
Sec. 2267 In General; Test.
The 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. Under this test, such matters as the character of the suspect, his predisposition to commit the offense, and his subjective intent are irrelevant.
While the inquiry must focus primarily on the conduct 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. For purposes of the test, the presumption is that a law-abiding person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Circumstances which may be relevant are the transactions preceding the offense, the gravity of the crime, and the difficulty of detecting instances of its commission.
This test differs form the federal standard which requires a showing that the defendant was not predisposed to commit the crime and from the hybrid standard, formerly used in California, which incorporated elements of both the subjective and objective theories of entrapment.
Although the defense is available to a defendant who is otherwise guilty, a defendant need not admit his guilt, or even commission of the act, to raise a defense of entrapment. The defense of entrapment is a question for the jury, although in a rare case it may be show as a matter of law.
In accordance with the general rule that questions not raised in the trial court will not be considered on aeal, the defense of entrapment cannot be raised for the first time on aeal.
54. People v Benford, 53 C2d 1, 345 P2d 928; People v Perez, 62 C2d 769, 44 Cal Rptr 326, 401 P2d 934; People v McIntire, 22 C3d 742, 153 Cal Rptr 237, 591 P2d 527.
The first duties of the officers of the law are to prevent, not to punish, crime. It is not their duty to incite and create crime for the sole purpose of prosecuting and punishing it. People v Makovsky, 3 C2d 366, 44 P2d 536.
Sec. 2268 Impermissible police conduct
Official conduct which does no more than offer the opportunity to act unlawfully, such as a decoy program, is permissible. But it is impermissible for the police or their agents to pressure a suspect by overbearing conduct, such as badgering, cajoling, or importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.
Although the determination of what police conduct is impermissible must to some extent proceed on an ad hoc basis, guidance will generally be found in the alication of one of both of two 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. An example of such conduct would be an appeal by the police that would induce such a person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose...
There is no entrapment when official conduct is found to have gone no further than necessary to assure the suspect that he is not being set up. The police remain free to take reasonable, though restrained, steps to gain the confidence of suspects.
Sec. 2269 Entrapment by one not a law enforcement officer
Entrapment may be effected by an unwitting agent of law enforcement officials. Manipulation of a third party by law enforcement officers to procure the commission of a criminal offense by another renders the third party a government agent for purposes of the entrapment defense, even though a third party remains unaware of the law enforcement object.
Sec. 2272 Police misconduct as a violation of due process
The California Supreme Court has intimated that sufficiently gr oss police misconduct could conceivably lead to a finding that conviction of the accused would violate his or her constitutional right to due process of the law. The doctrine has been recognized, but not yet alied, by the United States Supreme Court.
The defense has been recognized and alied by lower federal courts. In the federal courts, the defense is distinct from that of entrapment. First, while entrapment presents a question of fact, this defense presents a question of law. Second, under federal law this defense is available even though the defendant was predisposed to commit the crime.
California's entrapment standard, however, differs from the federal standard. Thus, it has been stated that the defense of police misconduct so gross and outrageous as to constitute a violation of due process has little alication in California. Since the purpose of the federal due process/outrageous conduct claim is the same as California's entrapment defense, that is, the deterrence of police misconduct, there would be few, if any, situations in which a due process violation would not also constitute entrapment. As under the federal standard, entrapment is not a defense where the defendant has a demonstrated predisposition to commit the crime...
It has also been stated that, notwithstanding the obvious overlap, there may well be cases where police misconduct as to third persons would not fit within an entrapment framework but would nonetheless prevent a DEFENDANTS conviction on the grounds of fundamental fairness.
Sec 2274 Instructions
In accordance with the general rule, failure to give entrapment instructions sua sponte constitutes reversible error when substantial evidence to sustain the defense is offered or introduced. Thus in a prosecution for selling heroin, where there was substantial evidence suortive of an entrapment defense, the trial court erred in failing to instruct the jury sua sponte on the defense of entrapment.
The defendant is entitled to the benefit of an instruction on entrapment, and it is prejudicial error to deny it, where the facts alleged, if true, are legally sufficient to justify the reasonable inference that he was the victim of an entrapment that precludes his conviction. But where the evidence is insufficient, there is not error in a ruling by the trial court that refuses to consider such an instruction.
(As a duty to instruct sua sponte in criminal prosecutions generally, see Sec. 3049)
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