Section 3408 | CALCRIM (Jury Instructions)

<insert charged crime>.
New January 2006; Revised April 2008
BENCH NOTES
Instructional Duty
The court must instruct on a defense when the defendant requests it and there is
substantial evidence supporting the defense. The court has a sua sponte duty to
instruct on a defense if there is substantial evidence supporting it and either the
defendant is relying on it or it is not inconsistent with the defendant’s theory of the
case.
When the court concludes that the defense is supported by substantial evidence and
is inconsistent with the defendant’s theory of the case, however, it should ascertain
whether defendant wishes instruction on this alternate theory. (People v. Gonzales
(1999) 74 Cal.App.4th 382, 389–390 [88 Cal.Rptr.2d 111]; People v. Breverman
(1998) 19 Cal.4th 142, 157 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)
Substantial evidence means evidence of entrapment, which, if believed, would be
sufficient for a reasonable jury to find that the defendant has shown the defense to
be more likely than not.
Give the bracketed definition of an agent if agency is an issue.
In the last paragraph, enter a phrase with a verb in the first blank to state what the
defendant did (e.g., “committed embezzlement” or “sold cocaine”). Enter the
crime(s) in the second blank (e.g., “embezzlement” or “sale of a controlled
substance”).
AUTHORITY
•
Instructional Requirements. People v. McIntyre (1990) 222 Cal.App.3d 229, 232
[271 Cal.Rptr. 467]; People v. Barraza (1979) 23 Cal.3d 675, 689–691 [153
Cal.Rptr. 459, 591 P.2d 947].
•
Burden of Proof. People v. McIntyre (1990) 222 Cal.App.3d 229, 232 [271
Cal.Rptr. 467]; People v. Peppars (1983) 140 Cal.App.3d 677, 684 [189
Cal.Rptr. 879]; People v. Barraza (1979) 23 Cal.3d 675, 691, fn. 6 [153
Cal.Rptr. 459, 591 P.2d 947]; In re Foss (1974) 10 Cal.3d 910, 930–931 [112
Cal.Rptr. 649, 519 P.2d 1073].
•
Definition of Agent. People v. McIntire (1979) 23 Cal.3d 742, 748 [153 Cal.Rptr.
237, 591 P.2d 527].
RELATED ISSUES
Decoy Programs Permitted
The use of “ruses, stings, and decoys” to expose illicit activity does not constitute
entrapment, as long as no pressure or overbearing conduct is employed by the
decoy. (Provigo Corp. v. Alcoholic Beverage Control Appeals Board (1994) 7
CALCRIM No. 3408
DEFENSES AND INSANITY
990

Cal.4th 561, 568–570 [28 Cal.Rptr.2d 638, 869 P.2d 1163] [use of underage, but
mature-looking, decoys to expose unlawful sales of alcoholic beverages to minors
not entrapment; no pressure or overbearing conduct occurred, and targets could have
protected themselves by routinely checking customer IDs].) The conduct of an
unwitting decoy may also constitute sufficient badgering, cajoling, or importuning
that entitles the defendant to an entrapment instruction. (Bradley v. Duncan (9th Cir.
2002) 315 F.3d 1091, 1096–1098.)
Multiple Defenses Permitted
A defendant may assert entrapment and still deny guilt. (People v. Perez (1965) 62
Cal.2d 769, 775–776 [44 Cal.Rptr. 326, 401 P.2d 934].) “Although the defense of
entrapment is a