P. v. Villapando
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.
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