To establish the defense of entrapment, a defendant must show undisputed evidence that an otherwise innocent person was induced to commit a crime by a government agent’s trickery, persuasion or fraud. The defense fails if the defendant has a predisposition to commit the crime. Appellant argued he had established the defense of entrapment as a matter of law. The Court of Appeals considered the five factors used to determine predisposition: 1) the defendant’s character or reputation, including criminal record; 2) whether the government initially suggested the criminal activity; 3) whether the defendant engaged in the activity for profit; 4) whether the defendant seemed reluctant to commit the offense, but that reluctance was overcome by repeated inducement or persuasion; and 5) the nature of the government persuasion or inducement. The evidence showed appellant was wanted for bank robbery, had committed prior gun sales, had been introduced to a paid government informant as a drug dealer who was planning a drug deal worth hundreds of thousands of dollars, had told the agents of a plan to commit a separate bank robbery before they suggested the other crime, and expressed no reluctance to commit the suggested crime. These factors show predisposition, and the entrapment defense fails.
The court erred in giving an Allen instruction after an identified juror declared she was a holdout. During deliberations, one of the jurors sent the court a note indicating disagreement with the other jurors and revealing she was a holdout. The court denied the defense motion for a mistrial, and instead re-read one of the jury instructions (similar to CALJIC No. 17.40 or CALCRIM No. 3550), but supplemented it with an additional admonition to treat each juror respectfully. After being convicted, appellant argued on appeal that the supplemental instruction was a coercive Allen instruction. The appellate court agreed the instruction qualified as an Allen instruction because it reminded a deadlocked jury of the importance of reaching a verdict and asked them to reconsider potentially unreasonable positions. And while such instructions may be acceptable when the judge does not know the identity of the hold out jurors, whereas here the court does, the court cannot give a supplemental instruction; rather, a mistrial must be declared.