People v. Smith

*1211 Opinion

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…

I concur in the result, but decline to join the majority in its unnecessary, potentially confusing, and questionable discussion of certain issues.

Having concluded the claim of sentencing manipulation “lacks any factual basis” (maj. opn., ante, at p. 1218) because “the conduct of the police here was not overreaching by any reasonable standard” (id. at p. 1221), the majority (id. at pp. 1221-1223) nonetheless goes out of its way to reject the test adopted by the Court of Appeal—viz., whether there was any legitimate law enforcement purpose or bona fide reason for the police conduct—even though that court’s opinion, by virtue of our grant of review, is no longer citable authority. (Cal. Rules of Court, rule 976(d).)

The majority’s extended discussion of the Court of Appeal’s test is also unnecessary because, even under the rejected standard, this is not a case requiring a sentence reduction. The prosecution posited, and the defense failed to rebut, a plausible legitimate law enforcement purpose for the police decision to use 85 kilograms of cocaine in their sting operation: given the *1228 high risk of violence involved in theft of the type contemplated, the officers could…

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…