Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF153600, Richard Hanscom, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
I. INTRODUCTION
Defendant Wael Kardoh appeals from his conviction of attempted grand theft (Pen. Code, §§ 664, 487) and perjury (§ 118) arising from a lottery ticket “sting” operation. He contends the trial court erred in failing to instruct the jury on the defense of entrapment. We find no error, and we affirm.
All further statutory references are to the Penal Code.
II. FACTS AND PROCEDURAL BACKGROUND
On April 25, 2009, Alan Chidester, an investigator for the California State Lottery (lottery), entered Sherman’s Liquor Store in Indio. He was dressed in civilian clothes, and he carried a decoy lottery ticket that the store machine would read as a $10,000 winner. The machine would issue a receipt indicating the amount with instructions on how to file a claim over $599.
Chidester handed defendant three lottery tickets, including the decoy, and asked the clerk to scan and check them. He said he had received the tickets as a birthday present, and he just wanted someone to check to see if they were winners. Chidester wandered away when defendant scanned the tickets, but Chidester could hear the scanning machine generate a receipt. The scanner screen was visible only from the clerk’s side of the counter. Defendant told Chidester that one of the tickets was worth $100. Defendant gave Chidester five $20 bills, and Chidester left the store. The liquor store’s surveillance videotape of the transaction was played for the jury.
That same day, defendant told his fellow employee, Jose Flores, that he (defendant) had won on a lottery ticket. Defendant asked Flores how to collect on a winning ticket of $600 or more, and Flores showed defendant the claim form and described how to fill it out. Defendant later said he was just joking.
Four days later, a claim form for the $10,000 decoy ticket was received at the lottery headquarters. The name of the claimant was Ghatas Habhab.
Chidester interviewed defendant in June 2009 after giving him Miranda admonitions. Defendant said he had mistakenly read the ticket as a $100 winner, and he had not realized it was a $10,000 winner until he rescanned it five or 10 minutes later. Lottery computer records showed, however, that the ticket had been scanned only once on April 25 and again the next day. In the interview, defendant did not say anything about looking for the customer or reporting the mistake to his supervisors. Instead, defendant said he had arranged to have a friend who worked at a different liquor store claim the money, which defendant would then use to pay off debts. Defendant said he had put $100 back into the cash register so the books would balance at the end of the day.
Miranda v. Arizona (1966) 384 U.S. 436.
In another interview, defendant said he had initially made a mistake in reading the ticket, and when the customer did not return for the ticket, he arranged for his friend Habhab to cash the ticket so that relatives to whom defendant owed money would not find out about it.
Habhab, the owner of a different liquor store, testified that defendant had given him the ticket and asked him to claim it. Defendant had told Habhab he did not want his family to find out about his winnings because defendant owed them a lot of money. Habhab had told investigators the ticket belonged to him. When Habhab told defendant he was being questioned about the ticket, defendant told Habhab the truth. Habhab was charged with and pled guilty to attempted grand theft.
Defendant’s counsel requested that the jury be instructed on entrapment. The trial court refused the instruction.
The jury found defendant guilty of attempted grand theft (§§ 664, 487) and perjury (§ 118). The trial court suspended imposition of sentence and placed him on three years’ probation.
III. DISCUSSION
Defendant’s sole contention on appeal is that the trial court erred in refusing to instruct the jury on entrapment.
In a criminal case, the trial court must instruct the jury on principles of law closely connected to the facts and which are necessary for the jury’s understanding of the case, including instructions on any defense theory supported by substantial evidence. (People v. Russell (2006) 144 Cal.App.4th 1415, 1424.) Substantial evidence sufficient to support a defense instruction is any evidence deserving consideration from which a reasonable jury could have found that the defense was valid. (People v. Barton (1995) 12 Cal.4th 186, 201.) Thus, a requested instruction on entrapment must be given if sufficient evidence supports it.
In People v. Barraza (1979) 23 Cal.3d 675 (Barraza), our Supreme Court declared the general law of entrapment: “[T]he proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense? For the purposes of this test, we presume that such 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.” (Id. at p. 690, fn. omitted.) The defendant has the burden of showing entrapment. (People v. Reed (1996) 53 Cal.App.4th 389, 401 (Reed).)
In Reed, the court cited examples of police activity that might be considered entrapment under the standards set forth in Barraza. Such activities include friendship or sympathy, inducements based on extraordinary monetary or other considerations, or a guarantee that the act in question is not illegal. (Reed, supra, 53 Cal.App.4th at p. 400.)
However, the use of ruses or decoys to expose criminal behavior is not entrapment so long as no pressure or overbearing conduct is used. Thus, in Provigo Corp. v. Alcoholic Beverage Control Appeals Bd. (1994) 7 Cal.4th 561 (Provigo), the Supreme Court found the defense of entrapment did not apply to a decoy operation that involved police-supervised minors making liquor purchases. (Id. at p. 569.)
Here, Chidester merely acted as a decoy and provided an opportunity to commit a crime. (People v. Watson (2000) 22 Cal.4th 220, 223.) Defendant argues that Chidester’s apparent lack of sophistication, and the extraordinary amount of money involved, would attract a normally law-abiding person to steal; however, the characteristics of the victim, such as apparent vulnerability, do not support an entrapment defense. (See, e.g., Provigo, supra, 7 Cal.4th at p. 570 [using mature-appearing and acting minors as decoys to purchase liquor did not constitute outrageous conduct that would support an entrapment defense].) And we simply disagree that $10,000 was an extraordinary amount of money that would lead a normally law-abiding person to steal. Chidester did nothing to cajole or importune defendant to commit the crime and in no way overbore his will. (Reed, supra, 53 Cal.App.4th at p. 401.)
Moreover, defendant’s defense was that he was mistaken—he claimed he had not realized the ticket was a winner until after Chidester had left the store. That defense was inconsistent with entrapment, which is present when police conduct creates an overwhelming temptation to break the law such that no normal person could resist. (Barraza, supra, 23 Cal.3d at p. 690.) We find no error in the trial court’s refusal to give the entrapment instruction.
Moreover, we observe that defendant attempted to conceal his “windfall” from his own family, to whom he owed money, by enlisting Habhab to redeem the “winning” ticket.
DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER J., KING J.