P. v. Villapando

 

 

 

 

 

 

 

 

 

 

 

 

 

Filed 6/10/13  P. v. Villapando CA4/3

 

 

 

 

 

 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH
APPELLATE DISTRICT

 

DIVISION
THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   VENSON VILLAPANDO,         Defendant and Appellant.

G046110            (Super. Ct. No. 10WF0127)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Gregg L. Prickett, Judge.  Reversed.

                        Patrick Morgan Ford,
under appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Meagan J. Beale and Sharon L. Rhodes,
Deputy Attorneys General, for Plaintiff and Respondent.

*                      *                      *

 

INTRODUCTION

                        Defendant
Venson Villapando appeals from the judgment entered after a jury found him
guilty of one count each of attempting to commit a lewd and lascivious act upon
a child under the age of 14 years and of attempting contact with a minor with
the intent to commit a lewd act upon the minor. 
Villapando argues the trial court erred by failing to instruct the jury,
sua sponte, on the defense of
entrapment.  He also argues the
prosecution wrongfully failed to disclose exculpatory
evidence, in violation of Penal Code section 1054.1 and >Brady v. Maryland (1963) 373 U.S.
83.  (All further statutory references
are to the Penal Code.)

                        We reverse.  For the reasons we will explain, there was
substantial evidence of entrapment admitted at trial.  Therefore, the trial court erred by failing
to give an instruction on entrapment to the jury, notwithstanding Villapando’s
trial counsel’s failure to request such an instruction.  The court’s error was not harmless because a
more favorable result for Villapando was reasonably probable had an entrapment
instruction been provided.  The jury, as
the trier of fact, should have received the entrapment instruction and reached
its verdict with that instruction in mind. 
Because we reverse for a new trial on this ground, we need not reach
Villapando’s other contention of error.

 

FACTS

I.

Summary of the Prosecution’s Evidence

                        On July 9, 2009,
Detective Alan Caouette of the Huntington Beach Police Department, who was
assigned to the special investigations bureau responsible for prostitution,
pimping, and pandering cases, posted an advertisement on an online Internet‑based
advertisement board known as Craigslist. 
Caouette’s advertisement was posted in the “casual encounters” section
of the Craigslist Web site (the advertisement) and bore the heading, “looking
to get by in hard time – w4m (hb).” 
Caouette testified that based on his training and experience, the term
“w4m” referred to “women for men” in the “world of prostitution.”  He testified “hb” stood for the City of
Huntington Beach.  The body of the
advertisement read:  “looking to have a
good time are u .” 

                        Caouette received over
100 responses to the advertisement, including one from Villapando on
July 9, 2009 at 6:29 p.m., in which he stated, “hey i want to have fun...
what do you have in mind... anything is possible.”  Within a minute, Caouette responded to
Villapando, stating, “im only 13 and need a $100 so if still interested let me
know, jess.”href="#_ftn1" name="_ftnref1"
title="">^[1] 

                        We set forth below the e‑mail
communications exchanged between Villapando and Caouette, and the text messages
exchanged between Villapando and Detective Brian Smith, who took over
communicating with Villapando later in the investigation; both Caouette and
Smith used the undercover identity of “Jess” in these communications.  All grammatical and spelling errors were
contained in the original messages.href="#_ftn2"
name="_ftnref2" title="">^[2]

A.

July 9, 2009 E‑mail Messages Between Villapando and Caouette

                        From 6:44 p.m. to 8:04
p.m. on July 9, 2009, Villapando and Caouette exchanged the following e-mail
messages.  Villapando:  “send me a pic and a number... why do you
need $100?”  Caouette:  “cuz i wanta buy something,, i only have text
minutes I need to pay my bill... .” 
Villapando:  “what are going to do
for me?  to earn that $100.”  Caouette: 
“what u want,, ill do most anything.” 
Villapando:  “where you located
at?  where do you want to meet?  r u trying to set me up?  for my safety.”  Caouette: 
“well seeing im 13 i cant drive so i would need to be picked up,, by my
house is cool i can go whereever,,, and NO im not setting u
up ,, .”  Villapando:  “where do you live? r u down to fck?”  Caouette: 
“sure are u down to give me a 100 bucks ,, and can u pickme up i cant
drive.”  Villapando:  “im sure...i promise, im a man of my word.”  Caouette: 
“ok i can do it i guess, but we need a condom cuz i cant get into
trouble,, whats the plan ,, do i need to walk to u.”  Villapando: 
“well tell me where you want to meet and i will pick you up... just go
up to me, i will get out of my car and i will where my key chain around my neck
ITS BLACK WITH LAKERS LOGO AND I WILL BE WEARING A BLACK ANGELS HAT WITH WHITE
NIKE SHOES, go up to me and say hi... will take it from there.... but you need
to tell me where to meet.” 
Caouette:  “ok,, what do i call u
,, and what should i wear and can i shower first ,, and where we going.”  Villapando: 
“just say ‘hey dude do you have a cigaratte’ where what ever you want...
i was think we should get a hotel room and chill for like an hour... im only
22!!!^{[href="#_ftn3" name="_ftnref3" title="">[3]]} tell me where to meet you so when your done
showering im already there.” 
Caouette:  “hotel room, wow ,,
maybe i can shower there if u want.. .” 
Villapando:  “yeah we can shower
together... so where do you want me to pick you up?”  Caouette: 
“where do u live so i can give ur directions.”  Villapando: 
“fullerton.”  Caouette:  “shit my mom just cam home,,gota go ill be back.”  Villapando: 
“ok well im going to play basketball, for like an hour... if you want to
do it tonight im still down or tomorrow afternoon... shoot me an email.” 

B.

>July 10, 11, 14, and 25, 2009 E‑mail
Messages

Exchanged Between Villapando and Caouette

                        At 9:20 p.m. on
July 10, 2009, Caouette reestablished contact with Villapando by sending
the following e‑mail: 
“eyyyyyyyyyyyyyyyy,,hiiiiiiiiiiii hows was the game.”  From 9:28 p.m. until 10:13 p.m.,
they exchanged the following e‑mail messages.  Villapando: 
“It was cool I played til 1030... So what’s up?”  Caouette: 
“Nodda.”  Villapando:  “If you still want to hang out...  Tell me where to meet you at.”  Caouette: 
“im not wanting to hang out in need to make some money,, silli.”  Villapando: 
“Well make that money then...  You
have to let me know now where to meet.” 
Caouette:  “yes later ok.”  Villapando: 
“Well I got stuff to do today... 
But hit me up n we’ll see!  Right
now would be the best time.” 

                        On July 11,
Caouette received three e‑mail messages from Villapando.  At 7:13 a.m., Villapando’s e‑mail
stated:  “so when are we going to meet
up?”  At 3:28 p.m., Villapando
wrote:  “hey wats up?  im really bored.....”  At 11:33 p.m., Villapando wrote:  “Hey I’m off work today!  Just hitting u up to see if u want tmake some
money?  I have $150 that can be
urs...  Hit me up.”  Caouette did not respond to Villapando that
day. 

                        On July 14,
Caouette sent an e‑mail message to Villapando, stating:  “ILL BE BACK ON THURS HAD TO GO OUT OF TOWN
WITH GRANDMA.  JESS.” 

                        On July 25,
Villapando’s e‑mail stated:  “Hey
hey wats up?”  

C.

>August and September 2009 E‑mail
Messages

Exchanged Between Villapando and Caouette

                        On August 4, 2009
at 8:08 p.m., Villapando wrote: 
“Hey let me know if you still want to make money.”  On August 7, Caouette wrote, “sure where
do u live” and also wrote, “notta.”  On
August 8, Villapando wrote, “i live in fullerton... where do you live
at?” 

                        From August 12
through 26, Villapando and Caouette engaged in the following e‑mail
exchanges.  Caouette:  “Hb,, did i tell u i was 13 years old,, are u
cool with that.. and what do you have in mind.” 
Villapando:  “lets meet up and i
will tell you.... r u down for tonight?” 
Caouette:  “maybe but i dont like
suprises im a straight shooter,, i like to know what is expected..
sooo.. .”  Villapando:  “i want to do it with you, you know what i
mean.... when can you do it? be straight up.” 
Caouette:  “like sex u mean,,, iil
do almost anything.”  Villapando:  “Yeah, so when can you do it?”  Caouette: 
“how old r u ,, i think im free thurs or fri.”  Villapando: 
im 21... lets do it on friday around noon.  where do you want to meet?”  Caouette: 
“how bout thurs at 2 ish.” 
Villapando:  “I can’t do it on
thur at 2, I get off work at 4.  I can do
it on friday after 11am or thurs after 4 pm.” 


                        From September 1
through 29, Caouette and Villapando exchanged the following e‑mail
messages.  Caouette:  “hiiiiiiiiiiiiiiiiiiiiiii.”  Villapando: 
“Hey hey!”  Caouette:  “so do u have face book,, and can u meet
later. do u still want me.” 
Villapando:  “I don’t have a face
book but I do have myspace.  Look me up
it’s an old one but search me under v[]@yahoo.com,,, I still want to meet but I
work 11am-8pm now! So just let me know when ur available.”  Caouette: 
“ok whats ur name any way.” 
Villapando:  “Vince!  Hey can u send me more pics of u?”  Caouette: 
“i think i found your my space thats a nice car, that the one u picking
me up in,, hubbaaaaa.”  After Villapando
had not responded for four days, Caouette wrote:  “Where u go.” 
At some unspecified point in time, Caouette e‑mailed to Villapando
a photograph that he had obtained after using the Google search engine to find
a picture of a 13‑year‑old female. 


                        On September 8,
Villapando responded:  “So you going to
send me more pics?  When do you want to
meet, I want to see you.”  Caouette:  “i might be able to get out tomorow nite . to
much to do tonite?  BTW nice car on
myspace =)~ is it urs.”  Villapando:  “Yup that’s my car!  Well I get off at 8 tomorrow so just let me
know.”  Caouette:  “can we hhok up friday,, or something busy
day at school.. im tired xoxox.” 
Villapando:  “hey wats up? how is
school going?  i have been thinking about
you...lol.”  Caouette:  “me 2,, when we meeting maybe thurs ?”  Villapando: 
“Sure around what time?” 

D.

>October 2009 E‑mail Messages Exchanged
Between Villapando and Caouette

                        From October 1
through 20, 2009, Villapando and Caouette exchanged the following e‑mail
messages.  Caouette:  “im at school,,,, may go to a football game
soo ill email u k.”  Villapando:  “ok.” 
Six days later, Caouette wrote: 
“hiiiiiiiiiiiiii how are u.” 
Villapando:  “im good just
chillen... wats up with you?  hey send me
more of your pics and i will send you some of mine if you like.”  Caouette: 
“ok ill get a few,, so when do u wanta meet,, .”  Villapando: 
“when ever you can... Soon i hope.” 
Five days later, Villapando wrote: 
“hey wats up?”  Caouette:  “nodda u how bout friday afternoon
ish.”  Villapando:  “i wish i could but weekends would work best
for me cuz i work nights on the weekdays... so let me know if you can do it on
the weekend or weekdays after 8pm.” 
Caouette:  “yeah after 8 is fine
with me,, we have the same deal right,,,,,,u said 100 for sex.. and since i
cant drive yet at 13 ,, u gonna pick me up..........and where will we go i
think my mom will be home,,   xoxoxxo.”  Villapando: 
“well tell me a spot where i can pick u up... We’ll figure it out from
there.”  Caouette:  “coolll sounds fun lets meet this week
.”  Villapando:  “just let me know when and where.” 

E.

>November and December 2009 E‑mail
Messages

Exchanged Between Villapando and Caouette

                        On
November 12, 2009, Villapando wrote: 
“Hey whats up?”  Caouette
responded on November 17, stating: 
“yo been real busy sorry,, how are u doing,, whats new.”  On November 22, Villapando wrote:  “hey wats up? 
Well let me know if you want to hang out, i get off work at 2pm now.” 

                        On December 10,
Caouette wrote:  “cool how bout next
week,, .”  Villapando responded on
December 14:  “Yea I down for that,
just let me know when.  Hope to hear from
you soon.”  On December 21,
Villapando and Caouette had the following e‑mail exchange.  Caouette: 
“hi whats new, how r u im on break from school, so u wanta hook up this
week or what. what do u want to do, im trying to earn some $.”  Villapando: 
“Yea fo sho...  You already know
what I want to do!  Let me know when you
want to do this I’m free after 2pm...$$$.” 


                        On December 22,
Villapando and Caouette exchanged the following e‑mail messages.  Caouette: 
“was it a hand job for $100 or what did we negotiate i forgot. remember
im only 13 so u will have to pick me up is that cool, give me ur number and ill
text u later, k,, anytime after 3 is cool. jess.”  Villapando: 
“No that wasn’t it... Shoot me a text 714[].”  Caouette: 
“first tell me what u want so i know what im in for ahhaha,,, i wanta
make sure ill do it, u know .” 
Villapando:  “S e x ! .” 

F.

>On December 22, 2009, Smith, Assuming
the Identity of Jess, and Villapando Exchange Text Messages and Set Up a
Meeting at a Fast Food Restaurant; Villapando Arrives at the Restaurant and Is
Arrested.

                        Between 3:01 p.m.
and 3:56 p.m. on December 22, 2009, Villapando and Smith, who took
over communicating with Villapando in the investigation and assuming the
identity of Jess, exchanged the following text messages and set up a meeting
for that afternoon.  Smith:  “whats up... its jessie .”  Villapando: 
“Hey.”  Smith:  “whatcha doing.”  Villapando: 
“Just got off work... Relaxin! U?” 
Smith:  “being lazy.”  Villapando: 
“Haha...So where do you stay at?” 
Smith:  “my moms house in
hb.”  Villapando:  “Cool! So r u still down to meet?”  Smith: 
“yeah as long as u can pick me up...where u want to go.”  Villapando: 
“Ummm dunno... I can pick u up n we can get a hotel.”  Smith: 
“okay I guess ill tell my mom im heading out to eat or something so il
be good for a lil bit.”  Villapando:  “Ok where should I pick u up... It will
probably take me an hour to get there cuz of traffic.”  Smith: 
“okay... ill get cleaned up... .” 
Villapando:  “Well let me knwwhere
to pick u up.”  Smith:  “okay...um theres a carls jr around the
corner ...I hang out there.”  Villapando:  “Wats the cross street.”  Smith: 
“beach and yorktown.”  Villapando:  “Ok... 
Hey ur not a cop r u?lol kind of scared.”  Smith: 
“nope.”  Villapando:  “I hope so.” 
Smith:  “ just.”  Villapando: 
“U wanna meet there around 4:45.” 
Smith:  “sure ...just promise me
ur a nice guy and ull wear a condom.” 
Villapando:  “No worries, I won’t
force you to do anything u don’t want.” 
Smith:  “thanks... its actually
been a while since ive done anything lol ur not gonna stick it in my butt or
anything right lol.”  Villapando:  “Haha do u want me to... Lol.”  Smith: 
“during the summer... .” 
Villapando:  “When is the last
time u had sex.”  Villapando:  “Have u done this before?”  Smith: 
“u mean sex for money?  Or
sumthing else.”  Villapando:  “Yea.” 
Smith:  “only once...but it was a
guy I knew.”  Villapando:  “Ok, I’ve never done it.”  Smith: 
“so is 100 okay with u.” 
Villapando:  “yea.”  Smith: 
“okay ” and “hey im gonna hop in the shower real quick so don’t text
me pleeeease.” 

                        At 4:16 p.m., Smith
sent a text message to Villapando, stating, “okay im out.”  Villapando responded, “I’m on my way, I’ll
let u knw when I’m close.”  Villapando
and Smith exchanged the following text messages.  Smith: 
“okay...is it cold outside.” 
Villapando:  “Yup it’s 56 degress.”  Smith: 
“brrr hope u have a warm car lol.” 
Villapando:  “Lol.”  Smith: 
“turn up ur heater.” 
Villapando:  “K.”  Smith: 
“ill just wait inside unless u get there b4 me.”  Villapando: 
“K.”  Smith:  “okay il head over there.”  Villapando: 
“I’m almost there.”  Smith:  “im wearing a purple sheatshirt and my hair
is up.”  Villapando:  “K.” 
Smith:  “I hope ur car is
warm!”  Villapando:  “It is.” 
Smith:  “kk” and “ill wait
insiiide...to cold out here .. R u heree yet.” 
Villapando:  “too many red lights,
I should be there in a couple of mins... Sorry.”  Smith: 
“good cuz this place is makin me hungry lol.”  Villapando: 
“Haha.” 

                        At 5:06 p.m.,
Villapando arrived at the parking lot of the Carl’s Jr. restaurant located at
the intersection of Yorktown Avenue and Beach Boulevard in Huntington Beach.href="#_ftn4" name="_ftnref4" title="">^[4]  Smith sent Villapando a text message stating,
“where r u.”  Villapando responded, “R u
by itself” and Smith stated, “yes.” 
Villapando then drove out of the parking lot and was stopped by police
officers in the area.  Villapando told
the police officers that he thought he was being arrested “because I came here
to meet a 13‑year‑old girl.” 
On the driver’s seat of Villapando’s car was a cell phone showing
Smith’s last text message to him. 
Villapando was wearing the black key chain lanyard with the Lakers logo
he had described in an earlier e‑mail to Caouette.  He also had $110 cash in his wallet. 

II.

Summary of Defendant’s Evidence

                        Villapando testified
that on July 9, 2009, he went to the casual encounters section of the
Craigslist Web site and answered a classified advertisement, hoping to meet
someone.  He stated he thought there was
“no way” a 13 year old would be on Craigslist because it is an adult Web site.  He testified that on July 9, he
conducted a search using Jess’s e‑mail address and found a profile on the
social Web site, MySpace.  He stated that
although Jess said she was 13 years old in the e‑mail messages, the
profile stated she was a 17 year old from Huntington Beach and displayed a
picture of her.  He admitted exchanging
communications with Jess and discussing sexual activity in those
communications.  (Caouette testified in
rebuttal that Jess’s MySpace page had been changed to reflect that Jess was 17
years old, not 13 years old, but that change did not occur until November 12,
2009.)

                        Villapando testified
that he traveled to Huntington Beach on December 22 because he “[j]ust
wanted to find out who the person was [he] was talking to because [he] had no
idea who [he] was talking to.”  He stated
the cash he had with him that day was “poker money.”  Villapando also testified that he was not
going to have sex with the person he met, but was going to give her $100.  He stated he did not think he was meeting a
13‑year‑old girl that day. 

                        Dr. Laura Brodie, a
clinical and forensic psychologist, conducted an assessment of Villapando.  She testified, “[t]he test indicated he did
not, at that time, have a deviant sexual interest in children.  He had what we call a normal heterosexual
profile, which is adolescent and adult females.” 

 

PROCEDURAL
HISTORY

                        Villapando was charged
in an information with attempting to commit a lewd and lascivious act upon a
child under the age of 14 years, in violation of sections 664,
subdivision (a) and 288, subdivision (a) (count 1); meeting a
minor with the intent to engage in lewd conduct, in violation of
section 288.4, subdivision (b) (count 2); and attempted contact
with a minor with the intent to commit a lewd act upon the minor, in violation
of section 288.3, subdivision (a) (count 3). 

                        The jury found
Villapando guilty of counts 1 and 3, but not guilty of count 2.  The trial court imposed a total prison
sentence of four years, but suspended execution of the prison sentence and
placed Villapando on formal probation for five years with terms and conditions,
which included serving 365 days in Orange County jail.  Villapando appealed. 

 

DISCUSSION

I.

Standard of Review

                        The trial court must
instruct the jury on the general principles of law relevant to the issues
raised by the evidence and necessary for the jury’s understanding of the
case.  (People v. Martinez (2010) 47 Cal.4th 911, 953; People v. Breverman (1998) 19 Cal.4th 142, 154.)  This obligation includes the duty to give
instructions on any affirmative defenses for which the record contains
substantial evidence.  (>People v. Salas (2006) 37 Cal.4th 967,
982.)  A trial court must instruct the
jury on the defense of entrapment “if, but only if, substantial evidence
supported the defense.”  (>People v. Watson (2000) 22 Cal.4th 220,
222‑223.)  The Attorney General
properly agrees that a trial court has a sua sponte duty to instruct on the
defense of entrapment if substantial evidence supports the defense, citing >People v. Watson, supra, 22 Cal.4th 220. 
Accordingly, we review the record to determine whether substantial
evidence supported the entrapment defense to have triggered the trial court’s
obligation to instruct the jury regarding that defense.  (People
v. Salas, supra, at p. 982; >People v. Federico (2011) 191 Cal.App.4th
1418, 1422.)

II.

The Trial Court Erred by Failing to Instruct
the Jury

on the Defense of Entrapment Sua Sponte.

                        “In California, 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.  [Citation.] 
‘[S]uch 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 subject by overbearing conduct such as badgering, cajoling, importuning, or
other affirmative acts likely to induce a normally law-abiding person to commit
the crime.’”  (People v. Watson, supra,
22 Cal.4th at p. 223; see People v.
Benford (1959) 53 Cal.2d 1, 10 [the application of the entrapment defense
depends upon whether “the intent to commit the crime originated in the mind of
defendant or in the mind of the entrapping officer”].)href="#_ftn5" name="_ftnref5" title="">^[5] 

                        In People v. Watson, supra,
22 Cal.4th at page 223, the California Supreme Court identified the
following two “guiding principles” in determining the applicability of the
entrapment defense:  (1) â€œâ€˜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’”; and (2) â€œâ€˜affirmative police conduct that would make
commission of the crime unusually attractive to a normally law‑abiding
person will likewise constitute entrapment. 
Such conduct would include, for example, a guarantee that the act is not
illegal or the offense will go undetected, an offer of exorbitant
consideration, or any similar enticement.’” 


                        Here, substantial
evidence of entrapment was admitted at trial, showing police conduct that made
the commission of the charged offenses unusually attractive to a normally law‑abiding
person.  Villapando answered the
advertisement in the casual encounters section of an adult forum that is
limited to users age 18 and over.  The
advertisement inquired, “looking to get by in hard time” and offered “w4m,”
understood in such circles as offering a woman for a man.  The advertisement also stated, “looking to
have a good time are u .”  Nothing in
the advertisement revealed that the poster was underage, much less 13 years
old.  Instead, the advertisement
contained mature content, and the use of terms, such as “w4m,” suggested the
poster was at least somewhat experienced in the world of “casual encounters” on
Craigslist.  There is no evidence
Villapando intended to reach out to a minor when he responded to the
advertisement.

                        After Villapando answered
the advertisement, Caouette informed him that he was communicating with a 13‑year‑old
girl named Jess.  Caouette later sent
Villapando a picture of Jess, which Caouette had found on the Internet by using
the Google search engine.  The photograph
showed an attractive, sexually developed young woman, wearing a skimpy bikini
and standing in a provocative pose. 

                        Villapando found Jess’s
MySpace profile by conducting an Internet search using Jess’s e‑mail
address.  The profile contained a
photograph of a similar‑looking young woman, who was also attractive and
appeared to be more sexually developed than the young woman in the photograph
Caouette had sent to Villapando; the young woman in the profile photograph was
also scantily clad and in a somewhat provocative pose. 

                        Villapando testified
that on July 9, 2009, he found Jess’s MySpace profile which stated she was
17 years old.  Caouette testified that
Jess’s MySpace profile identified Jess as a 13 year old, until November 2009
when Caouette changed Jess’s profile age to 17 years old.  In any event, the trial evidence showed that
Jess’s MySpace profile stated Jess was 17 years old, not 13 years old, before
Villapando drove to the Carl’s Jr. restaurant on December 22, 2009, and
was arrested.

                        Our review of the e‑mail
exchanges between Villapando and Caouette show that Jess had a flirtatious
personality in those communications, occasionally ending e‑mail messages
with happy faces and “xoxox.”  During
their first exchange of communications, Jess informed Villapando that she would
do what he wanted and would “do most anything” to earn $100.  About a month later, Caouette reiterated in
an e‑mail to Villapando that Jess would “do almost anything”
sexually.  During the first day that
Caouette and Villapando exchanged e‑mail messages, after Villapando
suggested that he pick up Jess and take her to a hotel room, Jess suggested
that instead of showering before he picked her up, she could shower in the
hotel room if he wanted her to.  In
another e‑mail, Caouette stated that meeting up with Villapando sounded
“fun.”  On several occasions, after
Caouette had not heard from Villapando for a few days, Caouette would reinstate
contact with him by sending another e‑mail from Jess.

                        The text messages
exchanged between Villapando and Smith similarly contained some banter of a
sexual nature, including a text message in which Jess joked that Villapando was
“not gonna stick it in [her] butt or anything right lol.”  Also, Smith, as Jess, told Villapando that
Jess once before had “sex for money” but with a guy she knew.

                        The circumstances,
described ante, constitute
substantial evidence that would support a finding the police conduct went
beyond simply creating the opportunity for Villapando to act unlawfully.  The record supports the finding that the
intent to commit the charged offenses, by seeking out a 13‑year‑old
girl, originated in the mind of the police officers involved in this
investigation, not in Villapando’s mind. 
In the course of seeking consensual sex with a woman in an adult forum,
Villapando was arguably induced by the police to pursue the fictional 13‑year‑old
Jess, as they appealed to Villapando’s sexual fantasies and urged him to
continue the exchange of communications and meet for sex.  The police officers involved in this
investigation, therefore, arguably engaged in entrapment. 

                        As we have noted in
other cases, we do not mean to endorse the practice of pursuing casual sex on a
Craigslist forum (although it is not against the law to engage in this
behavior, at least in theory).  But the
test for a finding of entrapment is whether the average law‑abiding
citizen would be unduly tempted by the police conduct at issue, and, for the
reasons discussed, we conclude substantial
evidence would support such a finding. 
We do not express any opinion on whether entrapment actually occurred in
this case.  On remand, it is for the
trier of fact to determine whether the police went too far in this case.  (See People
v. Barraza (1979) 23 Cal.3d 675, 691, fn. 6 [“the defense of
entrapment remains a jury question”].)

                        The trial court’s
failure to instruct the jury on the entrapment defense was not harmless, as a
more favorable result for Villapando was reasonably probable had an entrapment
instruction been provided.  (See >People v. Sojka (2011) 196 Cal.App.4th
733, 738 [reasonable probability standard applies to failure to instruct on
defenses].)  As discussed >ante, on this record, a reasonable jury
could have found that the police conduct here was likely to induce a normally
law‑abiding person to commit some or all of the charged crimes. 

 

DISPOSITION

                        The judgment is reversed
and the matter is remanded for a new trial.

 

 

                                                                                   

                                                                                    FYBEL,
ACTING P. J.

 

WE CONCUR:

 

 

 

IKOLA, J.

 

 

 

THOMPSON, J.