CALCRIM No. 3408. Entrapment

Judicial Council of California Criminal Jury Instructions (2020 edition)

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3408.Entrapment
Entrapment is a defense. The defendant has the burden of proving this
defense by a preponderance of the evidence. This is a different standard
from proof beyond a reasonable doubt. To meet this burden, the
defendant must prove that it is more likely than not that (he/she) was
entrapped.
A person is entrapped if a law enforcement officer [or (his/her) agent]
engaged in conduct that would cause a normally law-abiding person to
commit the crime.
Some examples of entrapment might include conduct like badgering,
persuasion by flattery or coaxing, repeated and insistent requests, or an
appeal to friendship or sympathy.
Another example of entrapment would be conduct that would make
commission of the crime unusually attractive to a normally law-abiding
person. Such conduct might include a guarantee that the act is not illegal
or that the offense would go undetected, an offer of extraordinary
benefit, or other similar conduct.
If an officer [or (his/her) agent] simply gave the defendant an
opportunity to commit the crime or merely tried to gain the defendant’s
confidence through reasonable and restrained steps, that conduct is not
entrapment.
In evaluating this defense, you should focus primarily on the conduct of
the officer. However, in deciding whether the officer’s conduct was likely
to cause a normally law-abiding person to commit this crime, also
consider other relevant circumstances, including events that happened
before the crime, the defendant’s responses to the officer’s urging, the
seriousness of the crime, and how difficult it would have been for law
enforcement officers to discover that the crime had been committed.
When deciding whether the defendant was entrapped, consider what a
normally law-abiding person would have done in this situation. Do not
consider the defendant’s particular intentions or character, or whether
the defendant had a predisposition to commit the crime.
[As used here, an agent is a person who does something at the request,
suggestion, or direction of an officer. It is not necessary that the agent
know the officer’s true identity, or that the agent realize that he or she is
actually acting as an agent.]
If the defendant has proved that it is more likely than not that (he/she)
<insert charged crime, e.g., committed embezzlement> because
(he/she) was entrapped, you must find (him/her) not guilty of
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<insert charged crime>.
New January 2006; Revised April 2008
BENCH NOTES
Instructional Duty
The court must instruct on a defense when the defendant requests it and there is
substantial evidence supporting the defense. The court has a sua sponte duty to
instruct on a defense if there is substantial evidence supporting it and either the
defendant is relying on it or it is not inconsistent with the defendant’s theory of the
case.
When the court concludes that the defense is supported by substantial evidence and
is inconsistent with the defendant’s theory of the case, however, it should ascertain
whether defendant wishes instruction on this alternate theory. (People v. Gonzales
(1999) 74 Cal.App.4th 382, 389-390 [88 Cal.Rptr.2d 111]; People v. Breverman
(1998) 19 Cal.4th 142, 157 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)
Substantial evidence means evidence of entrapment, which, if believed, would be
sufficient for a reasonable jury to find that the defendant has shown the defense to
be more likely than not.
Give the bracketed definition of an agent if agency is an issue.
In the last paragraph, enter a phrase with a verb in the first blank to state what the
defendant did (e.g., “committed embezzlement” or “sold cocaine”). Enter the
crime(s) in the second blank (e.g., “embezzlement” or “sale of a controlled
substance”).
AUTHORITY
• Instructional Requirements. People v. McIntyre (1990) 222 Cal.App.3d 229,
232 [271 Cal.Rptr. 467]; People v. Barraza (1979) 23 Cal.3d 675, 689-691 [153
Cal.Rptr. 459, 591 P.2d 947].
• Burden of Proof. People v. McIntyre (1990) 222 Cal.App.3d 229, 232 [271
Cal.Rptr. 467]; People v. Peppars (1983) 140 Cal.App.3d 677, 684 [189
Cal.Rptr. 879]; People v. Barraza (1979) 23 Cal.3d 675, 691, fn. 6 [153
Cal.Rptr. 459, 591 P.2d 947]; In re Foss (1974) 10 Cal.3d 910, 930-931 [112
Cal.Rptr. 649, 519 P.2d 1073].
• Definition of Agent. People v. McIntire (1979) 23 Cal.3d 742, 748 [153
Cal.Rptr. 237, 591 P.2d 527].
RELATED ISSUES
Decoy Programs Permitted
The use of “ruses, stings, and decoys” to expose illicit activity does not constitute
entrapment, as long as no pressure or overbearing conduct is employed by the
decoy. (Provigo Corp. v. Alcoholic Beverage Control Appeals Board (1994) 7
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Cal.4th 561, 568-570 [28 Cal.Rptr.2d 638, 869 P.2d 1163] [use of underage, but
mature-looking, decoys to expose unlawful sales of alcoholic beverages to minors
not entrapment; no pressure or overbearing conduct occurred, and targets could have
protected themselves by routinely checking customer IDs].) The conduct of an
unwitting decoy may also constitute sufficient badgering, cajoling, or importuning
that entitles the defendant to an entrapment instruction. (Bradley v. Duncan (9th Cir.
2002) 315 F.3d 1091, 1096-1098.)
Multiple Defenses Permitted
A defendant may assert entrapment and still deny guilt. (People v. Perez (1965) 62
Cal.2d 769, 775-776 [44 Cal.Rptr. 326, 401 P.2d 934].) “Although the defense of
entrapment is available to a defendant who is otherwise guilty [citation], it does not
follow that the defendant must admit guilt to establish the defense. A defendant, for
example, may deny that he committed every element of the crime charged, yet
properly allege that such acts as he did commit were induced by law enforcement
officers [citation].” (Ibid.)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 45-46.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.07 (Matthew Bender).
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