Gonzales v. People
| Citation | 168 Colo. 545,452 P.2d 46 |
| Decision Date | 01 April 1969 |
| Docket Number | No. 22958,22958 |
| Parties | Eugene David GONZALES, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Edward H. Sherman, Public Defender in and for the City and County of Denver, Truman E. Coles, Deputy Public Defender, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Robert L. Hoecker, Asst. Atty. Gen., Denver, for defendant in error.
By information filed in June of 1966, the defendant was charged with the crimes of assault to murder, assault with a deadly weapon, and conspiracy. Following a jury trial, the defendant was found guilty of assault with a deadly weapon and sentenced to four to five years imprisonment.
A recital of the facts is necessary for an understanding of the points relied on in this writ of error.
Shortly after midnight on June 18, 1966, nineteen year old Daniel Juarez, the complaining witness, driving a car with a teenage friend, stopped for a traffic signal at the intersection of 7th and Kalamath Streets in Denver. Juarez testified that while he was waiting for the 'go light' the defendant Gonzales and one Ernest Apolinar walked up to his automobile. Apolinar grabbed Juarez around the neck while defendant pointed a gun at him and called the teenagers 'punks.' Juarez escaped by quickly accelerating the car. Juarez had noted a couple of police cruisers parked a few blocks away, so returning there he found the policemen and told them of his encounter with the defendant.
There were at least five policemen and two police cars where Juarez sought help, but it was agreed that two officers, Juarez and his companion should return to the scene of the alleged assault, with the two policemen hiding on the floor in the back of Juarez' automobile. This plan was put into action, and the boys drove back to the vicinity of the alleged first encounter. They saw the defendant and Apolinar sitting on the front porch of a house, and, according to plan, Juarez parked at the curb and commenced to taunt and 'dare' Gonzales and Apolinar to come out to the car. Their statements were such as: 'Are you the one that pulled the gun on my buddy?'; 'Well, why don't you come up here?'; and 'If you were so brave with the gun before, why don't you come over here and show it to us again?' This taunting had gone on for several minutes when the defendant came unnoticed to the far side of the car, stuck a gun in the front window, and fired. The bullet nicked Juarez' head, but fortunately he was not seriously injured. At the sound of the shot the police officers made their presence known and shouted for the defendant to halt. The police had to chase the defendant and Apolinar a short distance before apprehending them.
The defendant's main argument is that that there was an entrapment by the police and that the court erred in refusing to dismiss the charge against him on that ground.
The defense of entrapment is defined generally in 22 C.J.S. Criminal Law § 45(2) as follows:
It is further stated in that section:
'* * * Entrapment occurs only when the criminal conduct is the product of the 'creative activity' of law enforcement officials, that is, only where the criminal design originates in the mind of the police officer and not with accused, * * *.'
This court has had occasion to consider the defense of entrapment. As early as 1893, this court pronounced the following view of entrapment in Connor v. People, 18 Colo. 373, 33 P. 159, 25 L.R.A. 341:
'* * * (W)e do say that when in their zeal, or under a mistaken sense of duty, detectives suggest the commission of a crime and instigate others to take part in its commission in order to arrest them while in the act, although the purpose may be to capture old offenders, their conduct is not only reprehensible, but criminal, and ought to be rebuked, rather than encouraged, by the courts. * * *'
In the more recent case of Reigan v....
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People v. Bossert
...the offense, the commission of which was nonexistent in the mind of the intended victim of the 'entrapment.' " Gonzales v. People, 168 Colo. 545, 549, 452 P.2d 46, 48 (1969) (quoting Reigan v. People, 120 Colo. 472, 477, 210 P.2d 991, 993 (1949)); see Bailey v. People, 630 P.2d 1062 (Colo.1......
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Bailey v. People
...(1973); People v. Ross, 182 Colo. 267, 512 P.2d 1154 (1973); People v. Simmons, 179 Colo. 431, 501 P.2d 119 (1972); Gonzales v. People, 168 Colo. 545, 452 P.2d 46 (1969); Reigan v. People, 120 Colo. 472, 210 P.2d 991 (1949). When the General Assembly codified the entrapment defense in 1971,......
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People v. Hankin, 24853
...of which was not in the mind of the accused prior to the entrapment. Mora v. People, 172 Colo. 261, 472 P.2d 142; Gonzales v. People, 168 Colo. 545, 452 P.2d 46; Reigan v. People, 120 Colo. 472, 210 P.2d The police officers did not entrap this defendant; they did not place defendant's name ......
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Locklayer v. State
...as follows: 'The law is clear that entrapment is a defense which goes to the merits of the charge against a defendant. Gonzales v. People, 168 Colo. 545, 452 P.2d 46; Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. Entrapment does not present a question of admissibility......