People v. Smith

• Decision Date: 22 December 2003
• Docket Number: No. S108309.,S108309.
• Citation: 7 Cal.Rptr.3d 559,80 P.3d 662,31 Cal.4th 1207
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Edaleene Sherrie SMITH et al., Defendants and Appellants.

7 Cal.Rptr.3d 559

80 P.3d 662

31 Cal.4th 1207

The PEOPLE, Plaintiff and Respondent, v. Edaleene Sherrie SMITH et al., Defendants and Appellants.

No. S108309.

Supreme Court of California.

December 22, 2003.

Phillip I. Bronson, under appointment by the Supreme Court, Encino, for Defendant and Appellant Edaleene Sherrie Smith.

Maxine Weksler, under appointment by the Supreme Court, Agoura Hills, for Defendant and Appellant Waymond Thomas.

Stephen Gilbert, under appointment by the Supreme Court, and William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Obed Gonzalez.

Charles D. Weisselberg and John T. Philipsborn, San Francisco, for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendants and Appellants.

Bill Lockyer, Attorney General, Manuel Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters, Jaime L. Fuster, Donald De Nicola and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

BROWN, J.

In our order granting the petitions for review in this case, we limited the issues to be briefed and argued to: (1) Whether the doctrine of "sentencing entrapment" recognized in some federal cases (see, e.g., United States v. Staufer (9th Cir.1994) 38 F.3d 1103 (Staufer)) affords a defense to charged drug offenses or enhancements in state court; and (2) whether the federal defense of outrageous governmental conduct (see, e.g., United States v. Bogart (9th Cir.1986) 783 F.2d 1428 (Bogart)) applies in state courts in addition to the entrapment defense under state law, which itself looks to the allegedly entrapping government conduct.

A jury convicted defendants of, among other crimes, attempting to transport a controlled substance — cocaine. (Health & Saf.Code, § 11352, subd. (a); hereafter section 11352(a).) The jury also found true an allegation that the quantity of cocaine involved exceeded 80 kilograms. Accordingly, defendants were each sentenced to an additional term of 25 years. (Health & Saf.Code, § 11370.4, subd. (a)(6); hereafter section 11370.4(a)(6).)

Defendants contend their sentences on the transportation counts should be modified by reducing the additional terms from 25 years to 15 years, the enhancement terms provided for transportation of quantities of controlled substances in excess of 20, but less than 40, kilograms. (Health & Saf.Code, § 11370.4, subd. (a)(4); hereafter section 11370.4(a)(4).) In arguing for the modification, defendants rely, first, on the related doctrines of "sentencing entrapment" and "sentencing manipulation." While sentencing entrapment and sentencing manipulation are terms that some courts have used interchangeably,¹ as we shall use them, sentencing entrapment focuses primarily on the subjective intent of the defendant, while sentencing manipulation focuses primarily on the objective conduct of the police.

Under the theory of sentencing entrapment, a defendant's sentence should be reduced if he was predisposed to commit a lesser offense, but was entrapped by the police into committing an offense subject to greater punishment. (See, e.g., Staufer, supra, 38 F.3d at p. 1106.)

Under the theory of sentencing manipulation, a sentence should be reduced if law enforcement officials, for the purpose of increasing a defendant's sentence, engaged in conduct so outrageous as to violate the defendant's right to due process. (See, e.g., United States v. Lacey (10th Cir.1996) 86 F.3d 956, 963-964 (Lacey).)

While the Court of Appeal rejected the doctrine of sentencing entrapment, it not only accepted the doctrine of sentencing manipulation, it significantly lowered the bar for finding a violation. "We do not believe a showing of `outrageous' conduct is required in order to establish sentence manipulation.... Rather, we believe defendants establish sentence manipulation for purposes of the quantity enhancement when they show the police selected the amount of drugs for no legitimate law enforcement purpose but solely to maximize the defendants' sentence."

We reject the doctrine of sentencing entrapment as inconsistent with California entrapment doctrine, under which "the character of the suspect, his predisposition to commit the crime, and his subjective intent are irrelevant." (People v. Barraza (1979) 23 Cal.3d 675, 690-691, 153 Cal.Rptr. 459, 591 P.2d 947, fn. omitted (Barraza).)

In this case, the conduct of the undercover officer was far from outrageous; indeed, it was quite unexceptionable. Therefore, we need not decide here whether the doctrine of sentencing manipulation should be adopted in California. However, we do take this occasion to express our disapproval of the less rigorous test of sentencing manipulation adopted by the Court of Appeal — that the allegedly manipulative conduct has "no legitimate law enforcement purpose but [was undertaken] solely to maximize the defendants' sentence." Were the doctrine of sentencing manipulation to be adopted in California, the predicate conduct should be truly outrageous. By contrast, as the United States First Circuit Court of Appeals observed, "garden variety manipulation claims are largely a waste of time." (U.S. v. Montoya (1st Cir.1995) 62 F.3d 1, 4 (Montoya).)

In arguing for modification of their sentences, defendants also invoke a due process defense based on outrageous government conduct (outrageous conduct defense).

The federal test of entrapment, unlike the California test, is subjective and focuses on "the intent or predisposition of the defendant to commit the crime." (United States v. Russell (1973) 411 U.S. 423, 429, 93 S.Ct. 1637, 36 L.Ed.2d 366 (Russell).) In Russell, the Supreme Court, while reaffirming the federal subjective test for entrapment, left open the possibility of an objective constitutional defense based on due process: "While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction [citation], the instant case is distinctly not of that breed." (Id. at pp. 431-432, 93 S.Ct. 1637.)

In California, unlike in federal courts, 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. (Barraza, supra, 23 Cal.3d at pp. 689-690, 153 Cal.Rptr. 459, 591 P.2d 947.)

We are, therefore, presented with this question: In California, in the context of an entrapment claim, is the outrageous conduct defense superfluous because our entrapment defense itself focuses on the conduct of law enforcement? Just as this case is the wrong case in which to address the viability in California of the doctrine of sentencing manipulation because the conduct of law enforcement here was quite unexceptionable, so, too, is it the wrong case in which to address the viability in this state of the outrageous conduct defense.

FACTUAL AND PROCEDURAL HISTORY

The facts bearing on the limited issues before us may be briefly stated. Juan Martinez was an undercover narcotics officer. An informant of demonstrated reliability told Officer Martinez that defendant Edaleene Smith was involved in drug trafficking and "ripping off" other drug dealers, and that Smith was very excited about the prospect of robbing a home where, on the instructions given him by another officer, the informant had told Smith that 200 kilograms of cocaine would be found.

In furtherance of the sting, Officer Martinez then met with Smith. Officer Martinez told Smith that he wanted to "rip off" a major drug dealer he worked for, and that the amount of cocaine involved would be between 30 and 100 kilograms. Smith assured Officer Martinez that she made her living that way, that she knew exactly what she was doing, and that she always used the same experienced three-person crew. Smith then informed Officer Martinez of her fee schedule: If the robbery yielded 30 kilograms of cocaine, she was to receive five kilograms for herself and nine more to divide among her crew, with the remainder going to the officer. If more than 50 kilograms were involved, the officer's share, Smith said, would be 60 percent.

In subsequent conversations, Officer Martinez gave Smith the address of a house and informed her that 85 kilograms of cocaine would be located in a van parked in an adjoining garage. Prior to the arrival of defendants, the officers had withdrawn, pursuant to a court order, 85 kilograms of cocaine from the property division of the police department and placed it in the van parked in the garage. The key was left in the ignition of the van. When defendants arrived, Smith remained in the car, while codefendants Waymond Thomas and Obed Gonzalez entered the house and then the garage. As Thomas and Gonzalez began backing the van out of the garage, the police activated a remote-controlled switch that shut off the engine. Thomas and Gonzalez, as well as Smith, were then arrested.

As previously stated, a jury convicted defendants of attempting to transport cocaine, and the jury found true an allegation that the quantity of cocaine involved exceeded 80 kilograms. (Health & Saf.Code, §§ 11352(a), 11370.4(a)(6).) Smith and Thomas were also convicted of conspiracy to commit robbery (Pen.Code, § 182, subd. (a)(1)), attempted robbery (Pen.Code, §§ 211, 664), grand theft of an automobile (Pen.Code, § 487, subd. (d)), and grand theft of personal property (Pen.Code, § 487, subd. (a)). Smith received a sentence of 36 years in prison including the 25-year quantity enhancement for attempting to transport more than 80 kilograms of cocaine. Thomas was given a prison sentence of 47 years eight months including the 25-year enhancement. Gonzalez, who was convicted of the same charges, except for conspiracy...