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Name: People v. Smith
Case #: B142943
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 06/10/2002
Subsequent History: Rev. granted 9/11/02: S108309. Depublished.

In a sting operation , the police arranged to leave 85 kilograms of cocaine in a house, which appellants loaded into a van and backed down the driveway, where they were stopped by police. Appellants were properly convicted of theft because the govenment consented only to a temporary taking in the sting operation. However, where the police have discretion in the amount of drugs to use in a sting operation, and select an amount for no other reason to maximize the defendant’s sentence, the police have acted in a mannor so fundamentally unfair as to deny the defendant due process of law. Here the enhancement was triggered at 80 kilograms, and the police knew defendants would have agreed to the operation if it only involved 30 kilograms. The court modified the punishment to relect involvement of 30 kilograms.