Criminal defendants in California have a constitutional right to assert a defense to the charges against them. In some cases, they can claim a defense of entrapment. This involves proving that law enforcement induced you to commit the charged crime.
Here is a detailed explanation of what is and isn’t entrapment in California.
Legal Elements of Entrapment in California
As outlined in the California Criminal Jury Instructions (CALCRIM) promulgated by the Judicial Council of California, you have been entrapped if a law enforcement officer (or their agent) engaged in conduct that would cause a normally law-abiding person to commit the crime with which you have been charged. Let’s break down what that means.
Conduct by a Law Enforcement Officer or Their Agent
A law enforcement officer, or officer’s agent, must have engaged in the entrapping conduct. Law enforcement officers include local and state police, federal law enforcement agents (such as DEA, FBI, or Homeland Security), and any other employee of a government agency tasked with enforcing a law or regulation (such as, for example, a prosecutor or a code enforcement officer).
An agent of a law enforcement officer is anyone who does something at a law enforcement officer’s request, suggestion, or direction. But, importantly, the agent does not need to know the officer’s true identity or that they are acting as an agent. For instance, you could be entrapped by a person who was acting at the request of someone they did not know was an undercover police officer.
Conduct that Would Cause a Normally Law-Abiding Person to Commit the Charged Crime
In California, the defense of entrapment focuses on the likely effect of a law enforcement officer’s (or agent’s) conduct on an ordinarily law-abiding person. A jury weighing an entrapment defense cannot consider the actual criminal defendant’s character, intentions, or predisposition for committing a crime. Instead, they must determine if an ordinary law-abiding person in the criminal defendant’s shoes would have been induced to commit the crime by the officer’s/agent’s conduct.
California law focuses on the effects law enforcement conduct would have on an ordinary law-abiding citizen instead of taking the actual criminal defendant’s personal characteristics into account for at least two reasons. First, it safeguards the defendant’s constitutional right to a presumption of innocence. Second, it recognizes that entrapment is wrong no matter who is being entrapped, even if the defendant had personal reasons for going along with criminal conduct or had committed similar crimes in the past.
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Examples of Entrapment in California
Here are some examples of conduct by a law enforcement officer or agent that could amount to entrapment in California:
- Encouraging a person to engage in criminal conduct as a way of proving themself to the officer or agent—”To prove I can trust you, you have to do this shooting.”;
- Using excessive flattery designed to overcome someone’s doubts about committing a crime—”Do this job with me, and you’ll see that this is what you were born to do.”;
- Threatening a person or that person’s loved ones with harm if a person does not commit a crime—”Something bad will happen to your family if you don’t go in with me on doing this drug crime.”;
- Appealing to friendship or sympathy to convince someone to break the law—”I’m only asking you to do this crime with me because I have no one else to turn to.”;
- Guaranteeing that the act is not a crime—”What I’m proposing we do is 100% legit, nobody will get hurt, and I promise you won’t get in any trouble.”
- Offering an extraordinary benefit in exchange for the person taking a relatively small action—”All you need to do is sit there in the car for ten minutes while I do my thing, and I’ll pay you $1,000,000.”).
In contrast to the examples above, it is not entrapment if the officer or agent did nothing more than allow the defendant to commit the crime or simply tried to gain confidence through reasonable and restrained words or actions. For example, it is not entrapment for an undercover agent to help arrange a drug transaction or to agree to play a role in a kidnapping.
Proving Entrapment in California
Entrapment is a defense. It’s up to the criminal defendant’s lawyer to raise and prove it in court by a preponderance of the evidence, demonstrating that it is more likely than not that you were entrapped. This is a lower standard than the burden of proof the prosecutor must meet to convict you of a crime.
Criminal defense lawyers make a case for entrapment by presenting evidence and arguments focused primarily on the law enforcement officer’s or agent’s conduct. They often also seek to paint a clear picture of the context in which that conduct took place to help the jury evaluate what a normally law-abiding person in the criminal defendant’s shoes would have done in the same situation.
If proven, entrapment entitles you to acquittal on the charged crime.
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Contact a Skilled California Criminal Defense Lawyer Today
If you have been charged with a crime and believe you were entrapped by a law enforcement officer’s or agent’s conduct, you need an experienced California criminal defense lawyer on your side immediately. There’s no time to waste. An attorney may need to take swift action on your behalf to locate and preserve evidence critical to proving your entrapment defense.
At Simmren Law Group, we have years of experience defending individuals who have been accused of criminal conduct in California. We carefully evaluate the evidence to determine if you have an entrapment defense, and if you do, we know how to present it most effectively and convincingly. Contact us today for a free, confidential case evaluation to learn more about your rights and potential defenses to criminal charges in California.