Opinion
A128291
09-01-2011
THE PEOPLE, Plaintiff and Respondent, v. DONALD ANTHONY BARRETT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Marin County Super. Ct. No. SC166456A
INTRODUCTION
Following a jury trial, defendant Donald Anthony Barrett was convicted of communicating with a minor for the purpose of engaging in lewd and lascivious behavior (Pen. Code, § 288.3, subd. (a)) and arranging a meeting with a minor for the purpose of engaging in lewd and lascivious behavior (§ 288.4, subd. (b)). The trial court suspended imposition of sentence and placed defendant on five years of probation subject to numerous conditions, including lifetime sex offender registration. Defendant's sole claim on appeal is that the trial court erred in refusing to instruct the jury on entrapment. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
We confine our discussion of the facts to those pertinent to the issue raised on appeal. Between February and May of 2009, then 17-year-old John Doe maintained a consensual sexual relationship with defendant. On July 12, 2009, after defendant contacted Doe's employer, Doe contacted the police and reported defendant was "bothering" him. At the time, Doe denied having sex with defendant. An officer went to defendant's residence, informing him Doe was 17 and wanted no further contact with him, and warning charges might be filed if there was continued contact.
Despite this warning, defendant continued to contact Doe, sending one text between July 12 and 23, 2009, two on July 24, 2009, and one text each on August 22, 24, and 26. Doe again contacted the police and, on August 26, Sheriff's Detective Salma Tijero (Tijero) met with Doe at his school. There, Doe informed Tijero of the sexual relationship he had had with defendant.
During this meeting, Tijero had Doe make a pretext call to defendant. Doe began by telling defendant: "You called me yesterday and I didn't pick up, sorry." Defendant responded, "I'm sorry. I'm not going to bother you any more, okay. I'm sorry, okay." "I miss you a lot but I am not going to bother you anymore, okay? I swear to you" and immediately hung up the phone before Doe could say anything more. After defendant ended the call, Tijero had Doe call again. When defendant did not answer, Tijero had Doe call again and leave a voice message, as well as send a text message. Tijero instructed Doe not to text or contact defendant again.
Three days later, on August 29, 2009, defendant sent 25 text messages to Doe, while Doe responded with only one. Included in defendant's barrage were the messages: " 'I love you asshole. Want, yes or no?' " at 11:42 a.m.; " 'Do you want to be my girlfriend, yes or no. Old man Don' " at 2:27 p.m.; and " 'A[m] I wasting or losing time trying to be with you?' " at 3:52 p.m. The next day, on August 30, 2009, defendant sent two texts to Doe, followed by 19 texts on August 31, 2009, and four texts on September 1, 2009.
Doe showed Tijero defendant's communications on September 1, 2009, and on September 3, Tijero met Doe at his school. There Tijero instructed Doe to answer one of defendant's prior texts, to which there was no response. Ten minutes later, Tijero told Doe to send another text asking defendant what he wanted to do with Doe. There is no record of Doe's exact message, but Tijero told Doe generally to say: " 'Tell me what you want.' " Again there was no response from defendant. Finally, Tijero had Doe text defendant: " 'Hey, you never responded about what you want to do if I go to your trailer' " to which defendant responded: " 'I don't know. You tell me. Fuck, suck, pee.' "
Tijero then began using Doe's cell phone to text defendant to elicit a more detailed response, saying: "You are playing. Tell me what you want to do or I am not going," " 'Tell me what we will do. I am not playing. Tell me, or I am not going,' " and " 'In class. Tell me what we'll do.' " At 12:51 p.m. defendant responded: " 'Make love.' " Tijero, in the guise of Doe, texted back: " 'What we do is love? Tell me what you do to me, or I am not coming.' " Defendant answered: " 'I want to lay with you and make love.' " Tijero then wrote: " 'In class. I can't answer. Do you love me?' " Defendant responded: " 'Yes stupid. I love you a lot.' "
At 1:39 p.m., Tijero texted: " 'Do you want to see me now and you get cigarettes?' " Defendant answered: " 'Yes, I'll go to the store. We'll see each other at the house.' " Tijero then wrote: " 'You want to make love in your bed with me? We'll see each other at the Fiesta Taqueria. I'll see you there.' " Defendant responded: " 'When and where are you?' " Tijero responded by texting " 'I'm going to the taqueria. Come, yes?' " and defendant texted back: " 'Yes. I'll be there in five minutes.' " Shortly thereafter, defendant was arrested at the taqueria.
Defendant was charged by information with oral copulation of a person under 18 (§ 288a, subd. (b)(1)—counts 1, 2, & 5), sodomy of a person under 18 (§ 286, subd. (b)(1)—counts 3 & 6), sexual penetration by foreign object with a person under 18 (§ 289, subd. (h)—count 4), contacting and communicating with a minor for the purpose of engaging in lewd and lascivious behavior (§ 288.3, subd. (a)—count 7), arrangement of meeting with minor for purpose of engaging in lewd and lascivious behavior (§ 288.4, subd. (b)—count 8), and vehicle habitation (Marin Mun. Code, § 7.52.020—count 9).
On February 9, 2010, the jury acquitted defendant of all counts except 7 and 8 (communicating with a minor to engage in lewd behavior and arranging to meet a minor to engage in lewd behavior). On April 1, 2010, the court suspended imposition of sentence and placed defendant on probation for five years with conditions including lifetime sex offender registration.
DISCUSSION
Defendant contends the trial court erred in denying his request for a jury instruction on the defense of entrapment. The trial court denied the request on the ground no substantial evidence supported such an instruction. Defendant challenges the court's ruling, contending the evidence was sufficient to support an instruction on entrapment.
Standard of Review
A trial court is "required to instruct the . . . jury on the defense of entrapment if, but only if, substantial evidence supported the defense." (People v. Watson (2000) 22 Cal.4th 220, 222-223 (Watson).)"We review the record to determine whether defendant presented substantial evidence to support the claimed defense and thus require the trial court to give the jury the entrapment jury instruction." (People v. Federico (2011) 191 Cal.App.4th 1418, 1422 (Federico).)
Entrapment
"In California, the test for entrapment focuses on the police conduct and is objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense. '[S]uch 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.' " (Watson, supra, 22 Cal.4th at p. 223, quoting People v. Barraza (1979) 23 Cal.3d 675, 689-690 (Barraza); Federico, supra, 191 Cal.App.4th at p. 1422.)
"The Barraza court described two guiding 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.' [Citation.]" (Watson, supra, 22 Cal.4th at p. 223.) " 'Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment. Such conduct would include, for example, a guarantee that the act is not illegal or the offense will go undetected, an offer of exorbitant consideration, or any similar enticement.' [Citation.]" (Ibid.; Federico, supra, 191 Cal.App.4th at p. 1422)
"[T]he rule is clear that 'ruses, stings, and decoys are permissible stratagems in the enforcement of criminal law, and they become invalid only when badgering or importuning takes place to an extent and degree that is likely to induce an otherwise law-abiding person to commit a crime.' " (Provigo Corp. v. Alcoholic Beverage Control Appeals Bd. (1994) 7 Cal.4th 561, 569, quoting Reyes v. Municipal Court (1981) 117 Cal.App.3d 771, 777.) The use of a sting operation only constitutes entrapment if the methods used by law enforcement authorities are "likely to induce a normally law-abiding person to commit the offense." (Barraza, supra, 23 Cal.3d at pp. 689-690.)
Defendant claims Detective Tijero's directions to Doe and direct texting amounted to entrapment. He characterizes the three pretext phone calls and one text message made on August 26, 2009, as a "sudden rush" or badgering, inducing him to commit the crimes. The pretext calls and text were not such " 'overbearing conduct . . . likely to induce a normally law-abiding person to commit the crime.' " (Watson, supra, 22 Cal.4th at p. 223.) When Tijero initially instructed Doe to make the pretext call, defendant responded by telling Doe that he would not bother Doe anymore and refused to respond to any other communications made that day. Nevertheless, three days later, on August 29, 2009, defendant sent an unsolicited and inappropriate barrage of texts, including messages saying: " 'I love you asshole. Want, yes or no?' " and " 'Do you want to be my girlfriend, yes or no. Old man Don.' " and " 'A[m] I wasting or losing time trying to be with you?' "
On September 3, 2009, Detective Tijero instructed Doe to send only three text messages, one of which was in response to defendant's prior text and two asking what defendant wanted to do with Doe. This as well, did not constitute overbearing conduct that badgered a law-abiding person to commit a crime. (Watson, supra, 22 Cal.4th at p. 223.) The three text messages, all with the theme "Tell me what you want to do," merely provided an opportunity for defendant to commit a crime. The messages neither made commission of the crime unusually attractive to defendant, (Federico, supra, 191 Cal.App.4th at p. 1422) nor generated in defendant a motive for the crime other than ordinary criminal intent. (Watson, at p. 223.) Indeed, defendant could have simply ignored the text messages rather than responding with lewd and lascivious communications. Accordingly, Detective Tijero's actions constituted no more than a legally permissible sting or ruse, and the trial court correctly ruled no substantial evidence supported an instruction on entrapment. (Provigo Corp. v. Alcoholic Beverage Control Appeals Bd., supra, 7 Cal.4th at p. 569.)
DISPOSITION
The judgment is affirmed.
Banke, J. We concur:
Marchiano, P. J.
Dondero, J.