Filed 6/9/15 P. v. Munoz CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067334
    Plaintiff and Respondent,
                                                                             (Super. Ct. No. CRM021350)
    v.

LUIS MIGUEL MUNOZ,                                                                       OPINION
    Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Merced County. Mark V.
Bacciarini, Judge.
         Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant
and appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Detjen, Acting P. J., Franson, J. and Peña, J.
       A jury found appellant, Luis Miguel Munoz, guilty of contacting a minor with
intent to commit a sexual offense (Pen. Code, § 288.3, subd. (a)),1 and attending an
arranged illicit meeting with a minor (§ 288.4, subd. (b)).
       Appellant was sentenced to serve nine months in jail and was credited with 116
days. The trial court further sentenced him to three years in state prison but suspended
execution of the sentence and instead placed him on 60 months of felony probation.
       On appeal, appellant contends the trial court violated his federal and constitutional
rights to due process when it refused to instruct the jury on the affirmative defense of
entrapment, requiring reversal of his conviction. We affirm.
                            STATEMENT OF THE FACTS
       Testimony of Detective Dabney
       On January 5, 2012, Detective Dabney of the Central California Internet Crimes
Against Children Task Force (ICAC) began a proactive internet investigation on
Craigslist2 to identify male sexual predators seeking contact with young girls. A
particular section on Craigslist, “Casual Encounters,” was targeted because past
investigations indicated it was a common site men use when seeking women.
Appellant’s particular advertisement caught Dabney’s attention. The posting stated
“How much would you charge for the panties you are wearing?” There was no
indication that appellant was seeking panties from a juvenile.3 Posing as a 13-year-old
girl with a screen name “Chavalita,” Dabney responded to the ad by email. Chavalita
said she had panties if appellant wanted to buy them. She told appellant she was 13
years old and needed the money. She also offered to sell her mother’s panties, who she


1      All further statutory references are to the Penal Code unless otherwise stated.
2       Craigslist is an open-forum website that allows people to submit requests to buy or
sell things, and also includes a section where men can seek women.
3      Detective Dabney explained that appellant’s ad caught his attention because it did
not specify any particular age.

                                             2.
said was 30. Appellant responded that he was interested in the mother’s panties and
would pay $40 for them.
       Their next communication occurred approximately a week later on January 14.
Detective Dabney, as Chavalita, initiated the conversation by asking if appellant was
really going to buy them and asked if he lived in Merced. The next day, appellant
responded, stating that he was 22 years old, he did live in Merced, and he asked how
much she wanted for the underwear. He also suggested that they should “meet up or
hang out.”
       On January 16, the correspondence continued over Yahoo Messenger,4 and
appellant asked specifically for Chavalita’s panties, not her mother’s. Detective Dabney
reiterated the fictitious girl’s age as 13. Appellant said he was “cool with that.” The
possibility of purchasing the mother’s underwear was never brought up again by either
party. The internet chatting continued on and off again over the next two weeks. Each
time there was a lull in communications for a few days, Detective Dabney would
eventually reach out to appellant over Yahoo Messenger.
       The January conversations were primarily concerned with appellant wanting to
acquire a pair of Chavalita’s panties, but the content of the messages also became more
sexual. Appellant frequently asked Chavalita if she wanted to “meet up” or “hang out,”
and offering to wait to meet her at a nearby McDonald’s. He asked her to describe her
underwear, and later told her to get her “panties dirty for me.” During one conversation
Detective Dabney, acting as Chavalita, asked “What do you want? Me?” Appellant
replied “Ahh, that’s what’s up.” At another point Chavalita told appellant that he was
“making [her] hot.”




4     Yahoo Messenger is an online instant messenger service that allows users to send
messages through a server and “chat” with others.


                                            3.
       There was another lull in communications until February 7, when Detective
Dabney again initiated online communications. Appellant continued to push for a pair of
Chavalita’s underwear and to see her. Appellant offered $20 to $40 for them and asked
if she wanted anything else, stating “I’ll hook you up with anything you want.”
Chavalita agreed to leave a pair of panties at a designated location for appellant to pick
up. Detective Dabney purchased some girls’ underwear, left them in a brown paper bag
in a park, and then told appellant where to find them. Detective Dabney arranged to
have surveillance in the park, which observed appellant picking up the bag.
       That same night, conversations between appellant and Chavalita began again and
the sexual nature of the conversations escalated. Appellant said he was happy with the
pair that she gave him and said “I wish I could have taken them off of you.” Chavalita
responded “Well, maybe you can.” Then appellant talked about wanting to engage in
oral sex with Chavalita. She told appellant that she was virgin and appellant said,
“Maybe I can pop that cherry of yours.”
       On February 9, Detective Dabney reached out to appellant again. Appellant
offered payment for the panties and also discussed in detail his desire to have sexual
relations with Chavalita. She responded that she was nervous about meeting but also
excited. They discussed meeting in a place where she would feel comfortable.
Chavalita reiterated that she was only 13. Appellant said he would treat her well but if
she was uncomfortable he would leave. He said he had not been with a girl her age
before, and he also said they would have to be careful because he could “get locked up” if
caught. Chavalita said their meeting would be “our secret.” They agreed to meet the
next day after Chavalita finished school, and she told him to bring condoms.
       The next day, appellant suggested that they meet at a McDonald’s. Chavalita
indicated that she was not able to meet right after school but had left another bag of
panties for appellant in the same location as before. Police surveillance observed
appellant pick up the bag and noted his car’s license plate number. Detective Dabney

                                             4.
received a message confirming that appellant had picked up the bag. Shortly thereafter,
police arrested appellant. He had condoms and both pairs of underwear with him.
       Testimony of Appellant
       Appellant has a fetish for women’s underwear but never had sexual conversations
with or fantasized about underage girls before his encounter with Chavalita. He testified
that when he posted his initial ad for underwear on Craigslist, he was not seeking a
response from underage girls.     He testified that when Chavalita responded and told him
she was 13 he was uncomfortable at first, but as the conversations continued he became
“all right with it.” He proposed meeting with Chavalita only for the purpose of acquiring
the underwear he wanted. Although Chavalita offered to sell him the underwear of an
adult, he testified that he did not pursue that offer because Chavalita was the one who
responded to his ad.
       After retrieving the panties that appellant believed Chavalita left for him in the
park, he admitted that having them made him feel aroused “[b]ecause she had gave [sic]
me what I wanted.” He testified that he continued the conversations with Chavalita
because she kept communicating with him. He also testified that, despite knowledge of
Chavalita’s age, he engaged in the overtly sexual conversations with her because she put
the ideas in his head and led him to believe it was all right.
       On the day appellant expected to meet Chavalita, he brought condoms because she
told him to bring protection. He testified that he was planning to engage in some sort of
sexual activity with her but also expected that he would not go through with it upon
seeing her because of her age. He testified that he does not believe a 13-year-old can
consent to sexual activity and that it is wrong to discuss or engage in sexual activity with
someone that age. Finally, he admitted that he was the one to mention specific sexual
activities he wanted to perform with Chavalita.
                                       DISCUSSION
       Standard of Review

                                              5.
       A defendant is entitled to an entrapment instruction “if, but only if, substantial
evidence supported the defense.” (People v. Watson (2000) 22 Cal.4th 220, 222
(Watson).) Any doubts as to sufficiency of the evidence warranting the instruction are
resolved in favor of the defendant. (Bradley v. Duncan (9th Cir. 2002) 315 F.3d 1091,
1096 (Bradley).) Thus, failure to give instructions on entrapment constitutes reversible
error when substantial evidence to sustain the defense is offered. (19 Cal. Jur. 3d (2015)
Criminal Law: Defenses, § 36.) We review the record to determine whether appellant
presented substantial evidence to support the entrapment defense. (People v. Federico
(2011) 191 Cal.App.4th 1418, 1422 (Federico).)
Applicable Law and Analysis
       In California, the test for entrapment is focused on police conduct. (Watson,
supra, 22 Cal.4th at p. 223.) It is an objective analysis and asks whether a law
enforcement officer or his agent was “likely to induce a normally law-abiding citizen to
commit the offense.” (People v. Barraza (1979) 23 Cal.3d 675, 689-690 (Barraza);
Watson, supra, at p. 223.) The test presumes that when presented with the opportunity to
act unlawfully, such a person would resist the temptation to commit a crime. (Barraza,
supra, at p. 690.) While official conduct that merely offers an opportunity for criminal
activity is permissible, such as a decoy program, “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.” (Ibid.)
       Although the distinction between permissible and impermissible police conduct is
largely based on the circumstances of each case, the court in Barraza provided two
guiding principles. “First, if the actions of the law enforcement agent would generate in a
normally law-abiding person a motive for the crime other than ordinary criminal intent,
entrapment will be established.” (Barraza, supra, 23 Cal.3d at p. 690.) Examples would
include appeals to commit a criminal act out of sympathy rather than for personal gain.

                                             6.
(See, e.g., Bradley, supra, 315 F.3d at pp. 1096-1097 [entrapment instruction was
appropriate where law enforcement officers’ used a decoy visibly suffering from drug
withdrawals to beg defendant to obtain cocaine for him, raising a question of whether a
normally law-abiding person would have been induced to commit the crime out of
sympathy].) “Second, affirmative police conduct that would make commission of the
crime unusually attractive to a normally law-abiding person will likewise constitute
entrapment.” (Barraza, supra, at p. 690.) Examples under this principle might include
“a guarantee that the act is not illegal or the offense will go undetected, an offer of
exorbitant consideration, or any similar enticement.” (Ibid.) In addition, a court should
also consider the effect the police conduct would have “on a normally law-abiding person
situated in the circumstances of the case at hand” (i.e. prior transactions, suspect’s
responses to the officers, gravity of the crime, and difficulty of detecting perpetrators).
(Ibid.)
          For example, in People v. Reed (1996) 53 Cal.App.4th 389, the court held that
there was no evidence to support the entrapment defense. The court reasoned that the
officer’s regular phone and mail correspondence with the defendant over the course of
several weeks did not cajole or importune him into attempting to molest two young girls
given defendant’s repeated assurance of desire to go through with the crime. (Id. at pp.
400-401; see also Federico, supra, 191 Cal.App.4th at pp. 1423-1424 [evidence did not
support a jury instruction for entrapment in part because defendant pursued online
communications with a person he believed was a 12-year-old girl and attempted to meet
her for sex].) Detectives did ask defendant to describe what he planned to do with the
girls, but they offered no specific suggestions, other than that they sought “a ‘good
teacher’ who would make the activities fun” for the girls. (Reed, supra, at p. 400.) By
contrast, in Bradley, the court found that there was substantial evidence to support an
instruction on the entrapment defense. (Bradley, supra, 315 F.3d at p. 1096.) It reasoned
that officers’ use of a drug addict experiencing symptoms of withdrawal would likely

                                              7.
appeal to the sympathies of a normally law-abiding person. (Ibid.) Moreover, the
decoy’s desperate and persistent pleas for defendant to help him find cocaine was
sufficient evidence such that a jury could conclude that the conduct “badgered” or
“cajoled” defendant into committing a crime. (Ibid.)
       Appellant argues that law enforcement’s conduct in this case induced him to act
criminally, and therefore the jury should have been instructed on the entrapment defense.
We disagree.
       The evidence is insufficient to support an entrapment instruction. Appellant
contends that Detective Dabney pressured and importuned him into engaging in criminal
activity by instigating the online conversations. Although Detective Dabney did initiate
many of the communications, his actions merely created an opportunity for appellant to
engage in criminal behavior. At all times, appellant believed he was chatting with a 13-
year-old. During their correspondence, Detective Dabney reminded appellant several
times of Chavalita’s age and her apprehensions about meeting and engaging in sexual
activities, thereby signaling to appellant the illegal nature of the proposed activities. Still,
appellant said he was fine with Chavalita’s age, he continued the explicit online
communications with her, and he remained committed to meeting and potentially
engaging in sexual activities with her. Additionally, Chavalita offered to sell an adult’s
underwear but appellant elected to not pursue that offer, opting instead to accept panties
from someone he believed was a juvenile. Moreover, he was aware of the illegal nature
of the proposed meeting and emphasized that he could get “locked up” if they were
caught. The record does not support a conclusion that Detective Dabney applied
overbearing pressure to induce appellant to act criminally. (See Federico, supra, 191
Cal.App.4th at p. 1424 [no evidence of entrapment where defendant engaged in online
sexual conversations and arranged to meet with a person he believed was a 12-year-old
girl]; Provigo Co. v. Alcoholic Beverage Control Appeals Bd. (1994) 7 Cal.4th 561, 568-
569 [use of underage boys as decoys to expose unlawful sale of alcohol to minors was not

                                               8.
entrapment where there is no evidence of law enforcement pressure or overbearing
conduct].) Appellant had numerous opportunities to withdraw and cease communications
with Chavalita. (See Reed, supra, 53 Cal.App.4th at p. 400.) He did not.
       The record also does not support appellant’s contention that Detective Dabney
manipulated and cajoled him into discussing sex and possible illegal conduct. Although
Detective Dabney did encourage appellant in a manner that might be viewed as
suggestive or flirtatious, his communications do not amount to badgering or cajoling
appellant into attempting to have sex with a minor. During the five-week
correspondence, Detective Dabney merely asked appellant if he wanted to have sex with
Chavalita. It was appellant who repeatedly initiated the sexual dialogue, explicitly
describing the sexual acts he wanted to do with Chavalita. Appellant also repeatedly
asked for a pair of Chavalita’s panties and asked her to make them “dirty” for him. He
pushed for hers despite being given the option to buy an adult’s underwear. He argues
that he offered to buy Chavalita’s because she told him she needed money. However, a
sense of sympathy for the financial struggles of a 13-year-old would not induce a
normally law-abiding person to seek a sexual encounter with a juvenile. (Cf. Bradley,
supra, 315 F.3d at p. 1096 [court found that physical withdrawal symptoms of a drug
addict could appeal to the sympathies of a normally law-abiding person].) Moreover, it
was appellant who proposed and pursued the idea of meeting in person. (See Federico,
supra, 191 Cal.App.4th at pp. 1423-1424 [defendant similarly pursued the opportunity to
meet and have sex with a 12-year-old online].) Chavalita, on the other hand, expressed
apprehension about meeting in person because of her age. Finally, although appellant’s
initial advertisement did not indicate a particular interest in the underwear of an underage
girl, a normal law-abiding person would not have pursued the opportunity for sex and
brought condoms to the proposed meeting with an underage girl. Appellant was merely
presented with an opportunity to commit a crime, and he did.



                                             9.
       The record demonstrates that Detective Dabney’s conduct was not likely to induce
a normally law-abiding person to commit the charged offenses. Therefore, the trial court
properly denied appellant’s request to instruct the jury on entrapment.
                                     DISPOSITION
       The judgment is affirmed.




                                            10.
