Stanford Law School - Robert Crown Law Library

Filed 12/22/03

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S108309
v.
Ct.App. 2/7 B142943
EDALEENE SHERRIE SMITH et al.,
Los Angeles County
Defendants and Appellants.
Super. Ct. No. BA109845

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).)
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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

1
Indeed, the case cited in our order limiting issues uses them
interchangeably. “Sentencing entrapment or ‘sentence factor manipulation’ occurs
when ‘a defendant, although predisposed to commit a minor or lesser offense, is
entrapped in committing a greater offense subject to greater punishment.’
[Citation.]” (Staufer, supra, 38 F.3d at p. 1106.)
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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, 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 (Russell).) In Russell, the
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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.)
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.)
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.
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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
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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 to commit robbery, received a sentence of 33
years including the 25-year enhancement.
The Court of Appeal affirmed defendants’ judgments of conviction, but
modified each defendant’s sentence by reducing the sentence enhancement from
25 years to 15 years.
We reverse the judgment of the Court of Appeal insofar as it reduces
defendants’ 25-year sentence enhancement for attempting to transport more than
80 kilograms of cocaine (§ 11370.4(a)(6)). In all other respects, the Court of
Appeal’s judgment is affirmed.
DISCUSSION
To reiterate, the questions presented by this case are whether the courts of
this state should accept the defenses upon which defendants rely in contending
their sentences should be reduced or their convictions reversed: (1) sentencing
entrapment, (2) sentencing manipulation, and (3) outrageous conduct.
At the threshold, the Attorney General contends defendants forfeited the
sentencing entrapment and sentencing manipulation claims by failing to raise them
at the sentencing hearing. The contention lacks merit. Like some courts (ante, at
p. 2, fn. 1), defendants, in arguing the trial court should not impose the 25-year
enhancements, did not distinguish between sentencing entrapment and sentencing
manipulation. However, defense counsel made it abundantly clear they were
invoking those concepts under the rubric of entrapment. Clearly, neither the
prosecutor nor the court was in any doubt as to the thrust of defendants’
arguments. The officers had decided upon 85 kilograms of cocaine, the prosecutor
responded, because the considerable risk of violence involved in home-invasion
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robberies meant the robbers had to foresee considerable rewards. In effect, the
defendants were claiming, the trial court observed, that “there is some obligation
of law enforcement in a sting operation to only use a minimum amount to
minimize the penalty.” Moreover, the Court of Appeal addressed these claims,
and an appellate court is generally not prohibited from reaching questions that
have not been preserved for review by a party. (People v. Williams (1998) 17
Cal.4th 148, 161-162, fn. 6.)
I. SENTENCING ENTRAPMENT
Four federal circuit courts of appeals—the First, Seventh, Eighth, and
Ninth—appear to accept the doctrine of sentencing entrapment. (United States v.
Woods (1st Cir. 2000) 210 F.3d 70, 75 (Woods); United States v. Gutierrez-
Herrera (7th Cir. 2002) 293 F.3d 373, 377 (Gutierrez-Herrera); United States v.
Searcy (8th Cir. 2000) 233 F.3d 1096, 1099 (Searcy); Staufer, supra, 38 F.3d 1106
[9th Cir.].)2
The United States Courts of Appeals of the District of Columbia and the
Eleventh Circuit, and possibly also the Tenth Circuit, reject it. (United States v.
Walls (D.C. Cir. 1995) 70 F.3d 1323, 1328-1330 (Walls) [one who agrees to
commit a murder for hire deserves the sentence for that crime, even if he initially
offered only to beat the victim up]; United States v. Sanchez (11th Cir. 1998) 138
F.3d 1410, 1414 (Sanchez) [Eleventh Circuit has rejected sentencing entrapment
as a viable defense]; Lacey, supra, 86 F.3d at p. 963, fn. 5 [Tenth Circuit finds the

2
Defendants have not brought to our attention, nor has our own research
revealed, any other federal circuit court besides the Ninth Circuit Court of Appeals
that has actually granted a downward departure from the federal sentencing
guidelines on the basis of sentencing entrapment. (See, e.g., United States v.
Stavig (8th Cir. 1996) 80 F.3d 1241, 1245 [although having repeatedly recognized
the doctrine, “we have yet to find that sentencing entrapment existed under the
facts of a particular case”].)
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analogy to entrapment at the sentencing phase is misplaced, for once a defendant
crosses the reasonably bright line between innocence and guilt, his criminal
inclination has been established, and the extent of the crime is more likely to be a
matter of opportunity than of scruple].)
In the remaining federal circuits, the status of the doctrine is unclear. (See
United States v. Gomez (2d Cir. 1997) 103 F.3d 249, 256 [validity of concept of
sentencing entrapment not yet determined in Second Circuit]; United States v.
Raven (3d Cir. 1994) 39 F.3d 428, 438 (Raven) [Third Circuit has not yet had
occasion to address theory of sentencing entrapment]; United States v. Jones
(4th Cir. 1994) 18 F.3d 1145, 1154 (Jones) [Fourth Circuit has never addressed
legal viability of sentencing entrapment theory]; United States v. Snow
(5th Cir. 2002) 309 F.3d 294, 295 [Fifth Circuit has yet to determine whether
sentencing entrapment is a cognizable defense to a sentence]; United States v.
Jones (6th Cir. 1996) 102 F.3d 804, 809 [Sixth Circuit has never acknowledged
validity of sentencing entrapment].)
We reject the doctrine of sentencing entrapment because, as the Court of
Appeal below observed, the concept simply “does not fit with California’s
criminal law.” (Accord, People v. Graves (2001) 93 Cal.App.4th 1171, 1179,
fn. 5 (Graves).) The federal doctrine of sentencing entrapment, like the federal
doctrine of entrapment generally, focuses on the intent of the defendant and is
subjective. (See Woods, supra, 210 F.3d at p. 75; Searcy, supra, 233 F.3d at
p. 1099; Gutierrez-Herrera, supra, 293 F.3d at p. 377; Staufer, supra, 38 F.3d
at p. 1106.) The California test of entrapment, by contrast, “focuses on the police
conduct and is objective.” (People v. Watson (2000) 22 Cal.4th 220, 223
(Watson).) Under the California test, “such matters as the character of the suspect,
his predisposition to commit the offense, and his subjective intent are irrelevant.”
(Barraza, supra, 23 Cal.3d at pp. 690-691, fn. omitted.)
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Another reason for rejecting the doctrine of sentencing entrapment, relied
upon by the Court of Appeal in Graves, as well as by the Court of Appeal in this
case, is that “California courts do not follow the same rigid sentencing guidelines
as federal courts, so the need for a specific basis for departure from a guideline is
not present.” (Graves, supra, 93 Cal.App.4th at p. 1179.) Defendants here
received 25-year quantity enhancements pursuant to section 11370.4(a)(6).
Subdivision (e) of section 11370.4 provides: “Notwithstanding any other
provision of law, the court may strike the additional punishment for the
enhancements provided in this section if it determines there are circumstances in
mitigation of the additional punishment and states on the record its reasons for
striking the additional punishment.” Rule 4.428(a) of the California Rules of
Court provides in pertinent part: “If the judge has statutory discretion to strike the
additional term for an enhancement, the court may consider and apply any of the
circumstances in mitigation enumerated in these rules . . . .” The circumstances in
mitigation enumerated in the rules include the fact that the defendant, “with no
apparent predisposition to do so, was induced by others to participate in the
crime.” (Cal. Rules of Court, rule 4.423(a)(5).)
II. SENTENCING MANIPULATION
Again, under the theory of sentencing manipulation, as it is usually defined
by the federal courts discussing the concept, a defendant’s sentence should be
reduced if law enforcement officials, for the purpose of increasing the defendant’s
sentence, engaged in conduct that was so outrageous or extraordinary as to violate
the defendant’s right to due process of law. (See, e.g., Montoya, supra, 62 F.3d at
p. 4 [in the First Circuit, “government’s conduct must be viewed as ‘extraordinary
misconduct’ ”]; United States v. Bala (2d Cir. 2000) 236 F.3d 87, 93 [the status of
sentencing manipulation is undecided in the Second Circuit, but would have to
involve outrageous conduct]; Raven, supra, 39 F.3d at p. 438 [the theory of
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sentencing manipulation, which the court of appeals refers to as sentencing
entrapment, has not yet been addressed by the Third Circuit, but has been defined
by other courts as involving outrageous official conduct]; Jones, supra, 18 F.3d at
p. 1154 [Fourth Circuit notes its “skepticism as to whether the government could
ever engage in conduct not outrageous enough . . . to violate due process to an
extent warranting a dismissal of the government’s prosecution, yet outrageous
enough to offend due process to an extent warranting a downward departure with
respect to a defendant’s sentencing”]; United States v. Tremelling (5th Cir. 1995)
43 F.3d 148, 151 (Tremelling) [the Fifth Circuit had previously addressed
sentencing manipulation in the context of a due process claim, and the defendant
failed to allege outrageous government misconduct in the case at bar]; United
States v. Berg (8th Cir. 1999) 178 F.3d 976, 984 (Berg) (dis. opn. of Bright, J.)
[“We properly test fact patterns for sentencing manipulation by examining the
government conduct at issue to determine whether it served some legitimate law
enforcement objective, or whether it was outrageous and aimed only at increasing
the defendant’s sentence”]; United States v. Scull (10th Cir. 2003) 321 F.3d 1270,
1276, fn. 3 [the Tenth Circuit addresses the issue of sentencing manipulation
“ ‘under the appellation of “outrageous governmental conduct” ’ ”].)
While several federal circuit courts have discussed sentencing manipulation
in dicta, not a single case has been brought to our attention where a federal circuit
court approved a downward departure from the federal sentencing guidelines on
this basis. (See Sanchez, supra, 138 F.3d at p. 1414 [“No court of appeals has
overturned a conviction or departed downward on the basis of a sentencing
manipulation claim”].)
At least four states have addressed the doctrine of sentencing manipulation.
The Court of Appeals of New Mexico has apparently left the question open.
(State v. Rael (N.M.Ct.App. 1999) 981 P.2d 280, 287 [under some circumstances
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continuing transactions may constitute unfair manipulation of a defendant’s
sentence, but no sentencing manipulation found in case at bar].) The
Superior Court of Pennsylvania has adopted the doctrine of sentencing
manipulation as defined by the outrageous conduct standard. (Commonwealth v.
Petzold (Pa.Super.Ct. 1997) 701 A.2d 1363, 1366-1367 [sentence reduction an
appropriate and just response to outrageous government conduct designed solely
to increase a defendant’s term of incarceration].) The District Court of Appeal of
Florida has adopted the lesser standard of sentencing manipulation embraced by
the Court of Appeal here. (State v. Steadman (Fla.Dist.Ct.App. 2002) 827 So.2d
1022, 1024-1025 [no legitimate law enforcement purpose given for undisputed
sentencing manipulation].) The Court of Criminal Appeals of Tennessee
apparently accepts the doctrine of sentencing manipulation under the rubric of
sentencing entrapment, but has not spelled out whether it adopts the outrageous
conduct standard or some lesser standard. (State v. Thornton (Tenn.Crim.App.
1999) 10 S.W.3d 229, 244 [imposition of consecutive sentences for sale of
narcotics may be inappropriate, “ ‘depending upon the number of specific buys the
officers [choose] to conduct and the amounts purchased in each buy’ ”].)
A. The Conduct of the Undercover Officer Here Was

Unexceptionable, Hence We Need Not Decide Whether

We Accept the Doctrine of Sentencing Manipulation.
To reiterate, defendants were each sentenced to an additional term of 25
years for having attempted to transport more than 80 kilograms of cocaine, and
they contend they should instead have received the 15-year additional terms
applicable to more than 20 but less than 40 kilograms, because the undercover
officer manipulated them into agreeing to steal more than 80 kilograms.
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Even assuming arguendo that we accepted the doctrine of sentencing
manipulation, defendants’ contention would fail for the simple reason that it lacks
any factual basis.
Sentencing manipulation, as we have said, focuses primarily on the
objective conduct of the police. However, the conduct of the police does not occur
in a vacuum, especially in a sting operation. The court’s assessment of an
officer’s objective conduct will inevitably be colored by, for example, whether the
defendant was from the start an enthusiastic proponent of the proposed crime or
initially declined and was only gradually worn down.
When initially approached by the informant, defendant Smith expressed
nothing but enthusiasm at the prospect of robbing a home where she was told 200
kilograms of cocaine would be found. When the undercover officer himself first
met with Smith, he told her the amount of cocaine involved would be 30 to 100
kilograms. Smith did not express any preference for a transaction at the lower end
of that range. To the contrary, Smith sought to reassure the officer that she was up
to the job as described, telling him 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. Indeed, rather than expressing a concern about the large amount of
cocaine potentially involved, Smith set out a fee schedule that actually gave the
officer a discount for quantity: If the robbery yielded 30 kilograms of cocaine,
Smith was to receive five kilograms for herself and nine more to divide among her
crew, with the remainder of the cocaine, which would work out to 54 percent of it,
for the officer. If more than 50 kilograms were involved, the officer’s share,
Smith said, would be 60 percent. In a subsequent conversation, the officer told
Smith 85 kilograms of cocaine would be found at the designated location, and that
was the sum actually found there. Again, there is no indication whatsoever that
Smith expressed any qualms about the prospect of stealing 85 kilograms of
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cocaine, an amount that was well within the range that had been discussed from
the outset. To borrow a phrase from the Third Circuit Court of Appeals, Smith
“was an experienced drug courier who demonstrated what can only be
characterized as a yeoman’s attitude towards this venture.” (Raven, supra, 39 F.3d
at p. 438.)
It is quite clear that none of the federal circuit courts that accept the
doctrine would find sentencing manipulation on these facts. In Montoya, supra,
62 F.3d 1, the defendants purchased 10 kilograms of cocaine, but contended they
should have been sentenced on the basis of only three or four kilograms because
the undercover agent had reduced the down payment for the cocaine from $50,000
to $25,000 in order to subject them to longer sentences. The First Circuit Court of
Appeals rejected the contention, holding that the defendants had failed to show the
extraordinary misconduct required in that circuit for a successful sentencing
manipulation claim. (Id. at p. 4.) “All that [the undercover agent] did was to
reduce the down payment in the face of claims by [the defendants] that they were
short of cash to make the full down payment originally proposed. This is so far
from government misconduct,” the court of appeals explained, that it would not
have published its opinion, but for two considerations, one of which was “to make
very explicit the plain import of our previous cases: sentencing factor
manipulation is a claim only for the extreme and unusual case.” (Ibid.)
In
Tremelling, supra, 43 F.3d 148, the defendant contended that undercover
agents had engaged in sentencing manipulation by producing 240 pounds of
marijuana when the defendant had contracted to buy only 150 pounds. The Fifth
Circuit Court of Appeals had not previously addressed the viability of the doctrine
of sentencing manipulation, but it had addressed similar contentions in the context
of due process claims, and it found no due process violation in the case at bar.
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(Id. at pp. 151-152.) “Tremelling does not contend that he resisted taking the extra
amount and that the government, through overbearing and outrageous conduct,
overcame his resistance. [Citation.] He merely contends that the government
brought the extra amount and offered it to him without requiring payment, which
no drug dealer in his right mind would do. Tremelling’s argument is not
persuasive. ‘Fronting’ is a recognized practice among drug dealers.” (Id. at p.
151.) The conduct ascribed to the government—producing the extra 90 pounds of
marijuana and offering to “front[]” the cost of it—did not constitute sentencing
manipulation, the court of appeals held. (Ibid.)
In
United States v. Sivils (6th Cir. 1992) 960 F.2d 587, the defendant, in
arranging to buy $15,000 worth of cocaine, revealed in his conversation with the
undercover cooperating witness that he believed he would receive somewhat less
than 500 grams for that sum. Instead, the police delivered one kilogram of cocaine
to the defendant, subjecting him to a higher sentence. The Sixth Circuit Court of
Appeals said that if the defendant could demonstrate the government manipulated
the dollar amount of cocaine to increase his sentence, “such manipulation would
certainly provide a fundamental fairness defense against the higher sentence. The
record reveals, however, that Jordan ratified the amount of cocaine actually sold to
the defendants.” (Id. at pp. 598-599, fn. omitted.)
In
United States v. Shephard (8th Cir. 1993) 4 F.3d 647 (Shephard), in a
drug sting that went on for eight months, the undercover officer purchased drugs
from the defendant on 12 occasions, working her way up from an initial purchase
of .2 grams of cocaine to a final purchase of 218.6 grams, and along the way,
switching from paying for the drugs with cash to paying with food stamps. The
defendant, convicted of 12 counts of selling cocaine, seven counts of accepting
food stamps in payment for the drugs, and one count of conspiracy to distribute
crack and cocaine, claimed he was a victim of sentencing manipulation, which he
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called sentencing entrapment. (Id. at pp. 648-649.) The Eighth Circuit Court of
Appeals distinguished between sentencing entrapment and sentencing
manipulation, and it found that neither was shown by the facts of the case. Of the
defendant’s sentencing manipulation claim, the court of appeals said: “We
recognize that there could be situations in which the government engages in
continuing undercover or sting transactions for the sole purpose of ratcheting up a
sentence under the guidelines. We are aware that a potential for abuse exists, but
abuse is not present on the record before us.” (Id. at p. 649, fn. omitted.) The
court of appeals added: “Shephard essentially asks the judiciary to fashion a code
of conduct for sting operations, deciding at what point leading on even a willing
criminal becomes unfair to the point of being unconstitutional. Obviously, any
transaction in a sting after the first violation of law, however minor, will be subject
to such attacks. Yet, we have established that it is legitimate for police to continue
to deal with someone with whom they have already engaged in illicit transactions
in order to establish that person’s guilt beyond a reasonable doubt or to ‘probe the
depth and extent of a criminal enterprise, to determine whether coconspirators
exist, and to trace the drug deeper into the distribution hierarchy.’ [Citation.] The
course of the transactions in this case shows a legitimate pattern of increasing
amounts of drugs culminating with the final 218 grams sale, which indicates that
police did no more than persist in ascertaining what quantity Shephard was willing
and able to deal.” (Ibid.)
In
Lacey, supra, 86 F.3d 956, the defendant claimed that the government’s
confidential informant, after purchasing smaller amounts of cocaine from the
defendant’s distributor on several previous occasions, purchased another five
kilograms “for no reason other than to increase the quantity of drugs involved and
thereby enhance the severity of his punishment.” (Id. at p. 964.) Rejecting the
defendant’s claim of sentencing manipulation, the Tenth Circuit Court of Appeals
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found no fault with “the government’s decision to seek a ‘bigger buy’ from [the
defendant’s distributor]. We have previously held that it is not outrageous for the
government to induce a defendant to continue criminal activity ‘or even to induce
him to expand or extend previous criminal activity.’ [Citation.]” (Id. at p. 965.)
The defendants here were merely given an apparent opportunity to do what
Smith so proudly proclaimed they did for a living. Nevertheless, the Court of
Appeal concluded that defendants were victims of sentencing manipulation
because Smith had indicated that they “would do the theft for 30 kilos.” However,
stings are permissible stratagems in the enforcement of criminal law (Watson,
supra, 22 Cal.4th at p. 223), and the purpose of a sting is to catch criminals at
work, not to find out how cheaply they will work. (See Walls, supra, 70 F.3d at
p. 1329 [“Consider a defendant who agrees with an undercover agent to murder
someone for a fee. Are we to suppose that if the defendant initially offered only to
beat the person up, he should be sentenced as if that were his offense?”].)

B. The Standard for Sentencing Manipulation Proposed by the

Court of Appeal is Rejected.
It is unnecessary for us to decide in this case whether we accept the
doctrine of sentencing manipulation because the conduct of the police here was
not overreaching by any reasonable standard. However, we reject the standard of
sentencing manipulation adopted by the Court of Appeal.
The Court of Appeal stated: “We do not believe a showing of ‘outrageous’
conduct is required in order to establish sentence manipulation. As discussed . . .
[above], outrageous police conduct is a complete defense to the prosecution.
Thus, in cases where outrageous conduct has occurred there would be no need to
reach the issue of sentencing. Furthermore, we surely need not wait until we find
the sentence-manipulation equivalent of forced stomach pumping before we
declare a violation of due process has occurred. Rather, we believe defendants
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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.”
The federal circuit courts that accept the doctrine of sentencing
manipulation, as well as those that reject it, caution against the adoption of such a
standard. The First Circuit Court of Appeals entertains claims of sentencing
manipulation. However, “[i]t is no accident,” the First Circuit observed, “that
statements condemning sentencing factor manipulation are usually dicta. A
defendant cannot make out a case of undue provocation simply by showing that
the idea originated with the government or that the conduct was encouraged by it
[citation], or that the crime was prolonged beyond the first criminal act [citation],
or exceeded in degree or kind what the defendant had done before. [Citation.]
What the defendant needs in order to require a reduction are elements like these
carried to such a degree that the government’s conduct must be viewed as
‘extraordinary misconduct.’ [Citation.] [¶] The standard is high because we are
talking about a reduction at sentencing, in the teeth of a statute or guideline
approved by Congress, for a defendant who did not raise or did not prevail upon
an entrapment defense at trial. The standard is general because it is designed for a
vast range of circumstances and of incommensurable variables. [Citation.]”
(Montoya, supra, 62 F.3d at pp. 3-4.) “Because of the diversity of circumstances,”
the court of appeals continued, “we have declined to create detailed rules as to
what is or is not undue manipulation [citation], but we think it is useful now to be
very candid in saying that garden variety manipulation claims are largely a waste
of time.” (Id. at p. 4.)
Another panel of the First Circuit Court of Appeals admonished: “By their
nature, sting operations are designed to tempt the criminally inclined, and a well-
constructed sting is often sculpted to test the limits of the target’s criminal
17

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inclinations. Courts should go very slowly before staking out rules that will deter
government agents from the proper performance of their investigative duties.”
(United States v. Connell (1st Cir. 1992) 960 F.2d 191, 196.) The Fourth Circuit,
which has not yet decided whether it accepts the doctrine of sentencing
manipulation, reiterated this admonishment. (Jones, supra, 18 F.3d at p. 1155.)
The Fifth Circuit Court of Appeals also appears to accept the doctrine of
sentencing manipulation. However, it rejected the notion that governmental
conduct should be “subject ‘to a special brand of scrutiny when its effect is felt in
sentence, as opposed to offense, determination.’ [United States v.] Cotts [(7th Cir.
1994)] 14 F.3d [300,] 306, [fn.] 2.] Indeed, ‘[i]f we are willing to accept the
assumption apparently approved by Congress that dealing in greater quantities of
drugs is a greater evil, it is not clear to us what the precise legal objection to
governmental behavior based on cognizance of relative penal consequences in this
area could be (so long as it does not rise to the level of true entrapment or conduct
“so outrageous that due process principles would absolutely bar the government
from invoking judicial processes[)].” ’ Id. (quoting United States v. Russell
[(1973)] 411 U.S. 423, 431-[4]32).” (Tremelling, supra, 43 F.3d at p. 152.)
In
Shephard, supra, 4 F.3d 647, the Eighth Circuit Court of Appeals, while
accepting the doctrine of sentencing manipulation, declined the task effectively
undertaken by the Court of Appeal here, that is, “fashion[ing] a code of conduct
for sting operations.” (Id. at p. 649.)
In
Lacey, supra, 86 F.3d 956, in the course of rejecting the defendant’s
claim of sentencing manipulation, the Tenth Circuit Court of Appeals observed
that although it recognized the viability of the outrageous conduct defense, it had
never been presented with governmental conduct sufficiently egregious to warrant
a dismissal. “The strict nature of the outrageous conduct inquiry is due in primary
part to the reluctance of the judiciary to second-guess the motives and tactics of
18

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law enforcement officials. [Citation.] Government involvement is essential in the
context of sting operations, which are often the only effective way to detect and to
develop proof of illegal drug activity. To be sure, there is a point at which
excessive government zeal may warrant judicial intervention. However, prior to
that point, the courts will not fine tune conduct of law enforcement officials that
does not ‘offend the universal sense of justice.’ [Citation.]” (Id. at p. 964.)
III. The Outrageous Conduct Defense
We now come to the question embedded in the outrageous conduct defense
asserted by defendants: In California, in the context of an entrapment claim, is the
defense of outrageous law enforcement conduct superfluous because our
entrapment defense itself focuses on the conduct of law enforcement?
The outrageous conduct defense has been called the “deathbed child of
objective entrapment.” (United States v. Santana (1st Cir. 1993) 6 F.3d 1, 3.) In
Russell, supra, 411 U.S. 423, the Supreme Court reaffirmed the subjective test for
entrapment focusing on “the intent or predisposition of the defendant to commit
the crime.” (Id. at p. 429.) However, the high court 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. . . . The law enforcement conduct here stops far short
of violating that ‘fundamental fairness, shocking to the universal sense of justice’
mandated by the Due Process Clause of the Fifth Amendment.” (Id. at pp. 431-
432, quoting Kinsella v. United States ex rel. Singleton (1960) 361 U.S. 234, 246.)
In Hampton v. United States (1976) 425 U.S. 484 (Hampton), the high court again
left open the possibility that a defendant might successfully invoke an outrageous
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conduct defense even if the entrapment defense were unavailable to him because
of his predisposition to commit the crime.3
The vast majority of the federal circuit courts of appeals allow the
outrageous conduct defense. (See, e.g., United States v. Penagiarcano-Soler
(1st Cir. 1990) 911 F.2d 833, 839, fn. 1; United States v. Rahman (2nd Cir. 1999)
189 F.3d 88, 131; United States v. Nolan-Cooper (3rd Cir. 1998) 155 F.3d 221,
230; United States v. Osborne (4th Cir. 1991) 935 F.2d 32, 36; United States v.
Arteaga (5th Cir. 1986) 807 F.2d 424, 426; United States v. Quintana (7th Cir.
1975) 508 F.2d 867, 878; Berg, supra, 178 F.3d at p. 979 [8th Cir.]; Bogart, supra,
783 F.2d at p. 1438 [9th Cir.]; United States v. Mosley (10th Cir. 1992) 965 F.2d
906, 909; United States v. Capo (11th Cir. 1982) 693 F.2d 1330, 1336; United
States v. Kelly (D.C. Cir. 1983) 707 F.2d 1460, 1468-1469; but see United States
v. Warwick (6th Cir. 1999) 167 F.3d 965, 973-975 [outrageous conduct defense
not available where defendant alleges inducement].)
While the test for entrapment in California is objective and focuses on the
conduct of law enforcement (Barraza, supra, 23 Cal.3d at pp. 689-690), this court,
like the high court, has left open the possibility that we might accept the

3
Bogart parsed Hampton: “The Hampton plurality concluded that the
defendant’s predisposition to the crime would bar an outrageous conduct defense.
[Hampton, supra, 425 U.S.] at 490 (Rehnquist J., joined by White J. and Burger
C.J.). Justices Powell and Blackmun concurred in the result but stated their view
that a due process outrageous conduct defense would be available in an
appropriate case, although ‘[p]olice overinvolvement in crime would have to reach
a demonstrable level of outrageousness before it could bar conviction.’ Id. at 495
n. 7 (Powell J., concurring). The three dissenters reaffirmed their belief in the
objective entrapment rule and would have held that the police conduct was
sufficiently offensive to bar Hampton’s conviction. Id. at 497 (Brennan J.,
dissenting, joined by Stewart J. and Marshall J.). Thus, a majority of the court
recognized the potential availability of an outrageous police conduct defense no
matter what the defendant’s criminal predisposition.” (Bogart, supra, 783 F.2d at
p. 1432, fn. omitted.)
20

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outrageous conduct defense. In People v. McIntire (1979) 23 Cal.3d 742, in the
course of rejecting the prosecution claim that entrapment cannot be effected
through an unwitting agent, an argument that would have permitted
unconscionable law enforcement activity so long as the target of entrapping agents
was not reached directly but indirectly through the use of unsuspecting dupes, we
observed: “Sufficiently gross police misconduct could conceivably lead to a
finding that conviction of the accused would violate his constitutional right to due
process of the law. (See, e.g., People v. Issacson (1978) 44 N.Y.2d 511.)”
(McIntire, at p. 748, fn. 1.)4
In
Provigo Corp. v. Alcoholic Beverage Control Appeals Bd. (1994)
7 Cal.4th 561, we rejected the claim that the practice of using mature-looking
minors to buy alcoholic beverages rose “to the level of ‘overbearing’ conduct
needed to constitute entrapment under Barraza.” (Id. at p. 569.) We rejected the
petitioners’ due process claim, as well, and in the course of doing so, we assumed,
simply for the sake of argument, that “the Russell doctrine applies in this state.”
(Id. at p. 570.) We noted, however, that a contrary conclusion had been reached in
People v. Thoi (1989) 213 Cal.App.3d 689 (Thoi). (Provigo, at p. 570.)
In
California,
Thoi concluded, the defense of outrageous conduct is
superfluous. “[U]nder federal law, there is a rationale for the defense of
outrageous police conduct in entrapment-type situations. The conduct of the
police may be so egregious that the sanction of dismissal would be appropriate
notwithstanding the defendant’s propensity to commit the crime. In California,
where entrapment law looks primarily at the conduct of the authorities in the first
instance, the defense of outrageous police conduct is superfluous. We hold the

4 The
McIntire statement is, of course, dictum. (In re Martin (1987) 44
Cal.3d 1, 55.)
21

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doctrine does not exist separately within the context of entrapment cases.” (Thoi,
supra, 213 Cal.App.3d at p. 696, fn. omitted.) That said, the Thoi court, upon
examining the challenged police conduct, found it did “not rise to the level
necessary for [the defendant] to prevail on the outrageous conduct issue . . . .”
(Id. at p. 697.)
In
People v. Holloway (1996) 47 Cal.App.4th 1757 (Holloway),5 the Court
of Appeal disagreed with Thoi to the extent Thoi rejected the outrageous conduct
defense in entrapment cases. (Holloway, at p. 1767.) However, the Holloway
court found the defendant in that case could claim neither the entrapment nor the
outrageous conduct defenses because he was not himself affected by the alleged
police overreaching. (Id. at pp. 1767-1768.)
The Court of Appeal here treated outrageous conduct as a viable defense,
but found “nothing shocking or offensive about the police conduct.” In People v.
Wesley (1990) 224 Cal.App.3d 1130, one of its own earlier decisions, this Court of
Appeal identified four factors a court should consider in determining whether due
process principles had been violated by outrageous police conduct: (1) whether
the police manufactured a crime that otherwise would not likely have occurred, or
merely involved themselves in an ongoing criminal activity; (2) whether the police
themselves engaged in criminal or improper conduct repugnant to a sense of
justice; (3) whether the defendant’s reluctance to commit the crime is overcome by
appeals to humanitarian instincts such as sympathy or past friendship, by
temptation of exorbitant gain, or by persistent solicitation in the face of
unwillingness; and (4) whether the record reveals simply a desire to obtain a
conviction with no reading that the police motive is to prevent further crime or

5
Holloway, supra, 47 Cal.App.4th 1757, was disapproved on an unrelated
ground in People v. Fuhrman (1997) 16 Cal.4th 930, 947.
22

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protect the populace. (Id. at p. 1144.) These factors, the Wesley court said, are
only illustrative and no one is, in itself, determinative. Each factor should be
viewed in context with all pertinent aspects of the case and proper law
enforcement objectives. (Ibid.)
None of the factors it had identified in Wesley, the Court of Appeal found,
are present in this case. “While it is true the police approached Smith and not vice
versa they did not do so on a whim or out of personal malice. Rather, the police
acted on information from a dependable informant that Smith was engaged in drug
trafficking and home invasion robberies. The informant . . . had established his
reliability with the federal Drug Enforcement Agency by providing its agents with
information for the past 13 years. [The informant] had also worked with Detective
Alvarez of the Los Angeles Police Department who orchestrated the sting
operation in this case. Furthermore, before the police initiated the sting [the
informant] had two conversations with Smith in which she confided to him ‘she
had some people that will do some rip-offs.’ [The informant] asked Smith ‘if she
would be interested in doing one.’ Smith affirmed her interest, telling [the
informant] she and her crew were ‘professionals’ and ‘[knew] how to handle that
kind of work’ because she had been doing these robberies ‘10 years and . . . never
even been caught.’ Our review of the record shows Smith never expressed any
reluctance to steal the cocaine nor did [the informant] or the police exert any
pressure on her to do so. On the contrary, just prior to executing the robbery
Smith told Detective Martinez, the undercover officer directing the crime, to
‘continue with the plan’ and ‘don’t back off.’ Smith repeatedly emphasized to [the
informant] and Martinez they had nothing to worry about because she and her
crew knew what they were doing, nobody would get hurt and everyone would get
their cut.
23

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“After hearing [the informant’s] reports of his conversations with Smith
and listening to a secret recording of one of their meetings the police designed an
operation in which an undercover officer was introduced to Smith by [the
informant]. The undercover officer, Martinez, told Smith he wanted her help to
‘rip off’ a big-time drug dealer. When Smith agreed to do the job, the police
proceeded to arrange the sting. . . . In the present case the police did not
manufacture a crime that otherwise would not have occurred but involved
themselves in Smith’s criminal activity, which, by her own admission, she had
been pursuing for the past 10 years.
“The record does not show the police in this case were motivated simply by
a desire to obtain a conviction but rather demonstrates they were motivated by a
desire to stop a robbery ring that had operated undetected for the past decade and
to protect the public from the violence which could easily result when a gang of
thieves attempts to steal pure cocaine from a drug lord.”
We are left with the question we started with: In California, in the context
of an entrapment claim, is the defense of outrageous law enforcement conduct
superfluous because our entrapment defense itself focuses on the conduct of law
enforcement? This case, in which the conduct of law enforcement was entirely
unexceptionable, is the wrong case in which to resolve this question.
DISPOSITION
The judgment of the Court of Appeal is reversed insofar as it reduces
defendants’ 25-year sentence enhancement for attempting to transport more than
80 kilograms of cocaine (§ 11370.4(a)(6)). In all other respects, the Court of
Appeal’s judgment is affirmed.
BROWN, J.
WE CONCUR:
BAXTER,
J.
CHIN,
J.
MORENO,
J.
24

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CONCURRING OPINION BY WERDEGAR, J.
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. 12) because “the conduct of the police here was not
overreaching by any reasonable standard” (id. at p. 16), the majority (id. at pp. 16-
19) 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 high risk of violence
involved in theft of the type contemplated, the officers could reasonably have
believed a relatively large quantity was more likely to keep Smith and her crew
committed to the enterprise.
Moreover, the majority’s criticism of the Court of Appeal’s sentencing
manipulation standard appears to be unjustified. Contrary to the majority’s
1

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implication, not all courts “caution against the adoption of such a standard” (maj.
opn., ante, at p. 17). (See United States v. Shepard (8th Cir. 1993) 4 F.3d 647, 649
[suggesting sentencing manipulation might be found where “the government
engages in continuing undercover or sting transactions for the sole purpose of
ratcheting up a sentence”]; United States v. Sivils (6th Cir. 1992) 960 F.2d 587,
598-599 [“If [defendant] could demonstrate that the government manipulated the
dollar amount of cocaine to increase his sentence, such manipulation would
certainly provide a fundamental fairness defense against the higher sentence”];
State v. Steadman (Fla.Dist.Ct.App. 2002) 827 So.2d 1022, 1025 [sentence
reduction warranted where police extend sting operation against the defendant “for
no reason other than to enhance his or her sentence”].) Consequently, were this
court actually presented with the issue in a proper case, it is at least possible it
would similarly conclude that government conduct with no legitimate law
enforcement purpose, designed solely to increase a defendant’s sentence, was so
outrageous as to warrant a sentence reduction. In any event, to purport to decide
the issue here, while at the same time declining to decide whether the doctrine of
sentencing manipulation even applies in California, is to engage in gratuitous
dictum.
The majority also addresses the question whether “the defense of
outrageous law enforcement conduct [is] superfluous because our entrapment
defense itself focuses on the conduct of law enforcement” (maj. opn., ante, at
p. 19), though after considerable discussion it reaches no conclusion because the
facts here show no outrageous conduct (id. at p. 24). I agree with regard to the
police conduct in this case, but in place of the majority’s unhelpful and
inconclusive discussion I would explain the potentially important differences
between the doctrines of entrapment and outrageous law enforcement conduct.
2

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The due process “defense” of outrageous law enforcement conduct is
actually a bar to prosecution rather than a defense to the charge; as such, it is
properly raised by motion and decided by the court. (People v. Wesley (1990) 224
Cal.App.3d 1130, 1138; see also People v. Thoi (1989) 213 Cal.App.3d 689, 695-
697, fns. 2 & 4.) In contrast, entrapment is a defense to the charge and is decided
by jury trial. (People v. Barraza (1979) 23 Cal.3d 675, 691, fn. 6; People v. Thoi,
supra, at p. 693.) The constitutional bar of outrageous law enforcement conduct,
moreover, may be invoked against police or prosecutorial conduct that does not
involve inducement to crime and therefore cannot serve as the basis for an
entrapment defense. (People v. Holloway (1996) 47 Cal.App.4th 1757, 1767;
People v. Thoi, supra, at p. 696, fn. 3.)
The two doctrines are therefore distinct both substantively and
procedurally. They do overlap substantively in a particular factual context, i.e.,
“[i]n cases where the thrust of the defense is that the government improperly
instigated the crime.” (People v. Thoi, supra, 213 Cal.App.3d at p. 696.) But that
an area of overlap exists does not make either doctrine redundant and provides no
reason to doubt that in a proper case of outrageous conduct, whether or not
including government inducement to crime, the defendant may be able to obtain
dismissal of the action on due process grounds.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
3

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Smith
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 99 Cal.App.4th 138
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S108309
Date Filed: December 22, 2003
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Terry A. Green

__________________________________________________________________________________

Attorneys for Appellant:

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

Maxine Weksler, under appointment by the Supreme Court, 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 for California Attorneys for Criminal Justice as Amicus
Curiae on behalf of Defendants and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

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.

1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Phillip I. Bronson
16311 Ventura Boulevard, Suite 1200
Encino, CA 91436
(818) 784-9702

Maxine Weksler
P.O. Box 157
Agoura Hills, CA 91367
(818) 865-1965

Michael C. Keller
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2258

2

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Opinion Information

Date:	Docket Number:
Mon, 12/22/2003	S108309

Disposition
Dec 22 2003	Opinion: Affirmed in part/reversed in part

Dockets
Jul 15 2002	Petition for review filed   counsel for appellant Edaleen Sherrie Smith
Jul 15 2002	Record requested
Jul 15 2002	Received Court of Appeal record   one doghouse
Jul 17 2002	2nd petition for review filed   respondent The People
Jul 22 2002	3rd petition for review filed   counsel for Waymond Thomas
Aug 27 2002	Record requested   remainder of c/a record
Aug 27 2002	Received Court of Appeal record   6 doghouses [being sent o/n]
Sep 11 2002	Petition for Review Granted; issues limited (criminal case)   The issues to be briefed and argued shall be limited 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) 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) applies in state court in addition to the entrapment defense under state law, which itself looks to the allegedly entrapping governmental conduct. Votes: George, CJ., Kennard, Werdegar, Chin, Brown and Moreno, JJ.
Sep 19 2002	Order filed   "For purposes of briefing and argument, appellants are hereby deemed petitioners to this court."
Oct 21 2002	Counsel appointment order filed   Phil Bronson to represent aplt Edaleene Smith, Stephen Gilbert to represent aplt Obed Gonzalez, Maxine Weksler to represent aplt Waymond Thomas. Aplts' btiefs shall be served & filed by Nov.20, 2002.
Nov 14 2002	Opening brief on the merits filed   appellant Edaleene Sherrie Smith
Nov 15 2002	Change of Address filed for:   attorney Phillip I. Bronson
Nov 18 2002	Request for extension of time filed   by counsel for aplt Waymond Thomas to file the brief on the merits, to 12/20.
Nov 18 2002	Request for extension of time filed   by counsel for aplt Obed Gonzalez to file the brief on the merits, to 12/20.
Nov 20 2002	Extension of time granted   On application of appellant Waymond Thomas and good cause appearing, it is ordered that the time to serve and file appellant's brief on the merits is extended to and including December 20, 2002. No further extensions of time will be granted.
Dec 19 2002	Request for extension of time filed   answer brief/merits to 1-20-02>>appellant Waymond Thomas
Dec 20 2002	Answer brief on the merits filed   by appellant (Obed Gonzalez)
Dec 20 2002	Request for judicial notice filed (in non-AA proceeding)   by counsel for appellant (Obed Gonzalez)
Dec 24 2002	Extension of time granted   On application of appellant Waymond Thomas and good cause appearing, it is ordered that the time to serve and file the Reply Brief on the Merits is extended to and including January 20, 2003. No further extensions of time will be granted.
Jan 23 2003	Opening brief on the merits filed   by aplt Thomas (timely per CRC 40k)
Feb 13 2003	Compensation awarded counsel   Atty Gilbert
Feb 18 2003	Request for extension of time filed   answer brief/merits to 3-24-03>>respondent People
Feb 24 2003	Extension of time granted   to 3-24-03 for resp to file the answer brief on the merits.
Mar 24 2003	Answer brief on the merits filed   respondent People
Apr 9 2003	Compensation awarded counsel   Atty Weksler
Apr 11 2003	Reply brief filed (case not yet fully briefed)   by aplt Gonzalez
Apr 15 2003	Reply brief filed (case fully briefed)   by aplt Thomas (timely per CRC 40k)
Apr 28 2003	Request for extension of time filed   for aplt Smith to file the reply brief on the merits, to 5-15-03
May 5 2003	Extension of time granted   to 5-15-03 for aplt Smith to file the reply brief on the merits.
May 8 2003	Received application to file amicus curiae brief; with brief   by Calif. Attorneys for Criminal Justice in support of aplts.
May 14 2003	Reply brief filed (case fully briefed)   by appellant Edaleene Smith
May 14 2003	Permission to file amicus curiae brief granted   by Calif. Attorneys for Criminal Justice in support of Aplts. An answer may be served & filed w/in 20 days.
May 14 2003	Amicus Curiae Brief filed by:   California Attorneys for Criminal Justice in support of aplts.
Aug 28 2003	Case ordered on calendar   10-08-03, 2pm, L.A.
Sep 8 2003	Filed:   request of counsel for aplts to divide oral argument time three ways.
Sep 11 2003	Order filed   The request of counsel for appellants in the above-referenced cause to allow three counsel to argue on behalf of appellants at oral argument is hereby granted.
Sep 11 2003	Order filed   The request of the appellants to allocate to their counsel 10 minutes each of appellants' 30-minute allotted time for oral argument is granted.
Sep 16 2003	Request for judicial notice denied   The request for judicial notice filed December 20, 2002, is denied.
Oct 8 2003	Cause argued and submitted
Oct 21 2003	Received:   via the L. A. Office -- Exhibits in one large sealed envelope.
Dec 22 2003	Opinion filed: Affirmed in part, reversed in part   Reversed as to 25-yr sentence for transportation of cocaine, otherwise affirmed. Majority opinion by Brown J. ---------------joined by Baxter, Chin, Moreno JJ. Concurring opinion by Werdegar, J.-----joined by George, C.J. & Kennard, J.
Jan 14 2004	Compensation awarded counsel   Atty Gilbert
Jan 27 2004	Remittitur issued (criminal case)
Feb 18 2004	Compensation awarded counsel   Atty Bronson
Feb 18 2004	Compensation awarded counsel   Atty Weksler

Briefs
Nov 14 2002	Opening brief on the merits filed
Dec 20 2002	Answer brief on the merits filed
Jan 23 2003	Opening brief on the merits filed
Mar 24 2003	Answer brief on the merits filed
Apr 11 2003	Reply brief filed (case not yet fully briefed)
Apr 15 2003	Reply brief filed (case fully briefed)
May 14 2003	Reply brief filed (case fully briefed)
May 14 2003	Amicus Curiae Brief filed by:

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website