In re Jose L.












Filed 11/19/10 In re Jose L. CA2/4





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re JOSE L., a Person Coming Under the Juvenile Court Law.	B222785
THE PEOPLE, Plaintiff and Respondent, v. JOSE L., Defendant and Appellant.	(Los Angeles County Super. Ct. No. PJ40106)

APPEAL from a judgment of the Superior Court of Los Angeles County,
Fred J. Fujioka, Judge. Affirmed.
Stephen Borgo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.


Jose L. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 following the juvenile court’s finding that he committed the crime of sale or transportation of marijuana, in violation of Health and Safety Code section 11360, subdivision (a). Appellant contends the trial court erred in denying his motion to dismiss the petition on the grounds of entrapment at the close of the People’s case. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
I. Factual Summary
A. Prosecution
The People presented the testimony of Los Angeles Police Department narcotics officer Rahsaan Fobbs, who was working undercover in May 2009, wearing a wire that transmitted sound to his supervisors. Fobbs approached appellant, who was standing in front of a barber shop with someone named Rubio. Fobbs asked appellant “if he had a sack on him,” which was “street vernacular for a baggy of marijuana.” Appellant asked Fobbs how much he wanted, and Fobbs replied that he wanted a “dime,” or $10 worth. Appellant replied that he had a dime, but he planned to smoke it himself. Fobbs told appellant he was tired of walking around and would be willing to pay him $20 for it. Appellant “repeated what [Fobbs] said and basically confirmed that [Fobbs] was willing to pay $20 for his dime.” Fobbs “then offered that [he] would be willing to let him keep some for himself,” in addition to paying him $20 for the marijuana.
Appellant then pulled out a pill bottle containing marijuana, gave some to Fobbs, and Fobbs gave appellant a marked bill that was later found on appellant. Fobbs signaled his partners that a transaction had occurred and walked away.
Appellant gave Fobbs 0.08 grams of marijuana, and officers found another 11.01 grams on appellant when they arrested him. The officers found no scales, pay/owe sheets, or individually wrapped baggies of marijuana on appellant when they arrested and searched him.
At the close of the prosecution’s case, appellant filed a motion to dismiss the petition pursuant to Welfare and Institutions Code section 701.1 on the grounds of entrapment. The juvenile court denied the motion, reasoning that, although Fobbs had offered appellant $10 more than the marijuana was worth, that amount was not enough to entice a normally law-abiding citizen to break the law.
B. Defense[1]
Appellant testified on his own behalf and called two other witnesses. Appellant’s grandmother, J.C., testified that she was sitting in front of the barber shop when Fobbs approached appellant, and she heard their entire conversation. According to J.C., Fobbs walked up and started asking various people if they had marijuana for sale. Appellant said that he had “personals,” meaning he was going to smoke it himself, and that he did not sell marijuana. Fobbs asked appellant four to five times to sell it to him, but appellant refused until Fobbs left and then returned and started asking him again. Fobbs continued “begging” appellant to sell to him and returned three to four times to ask him, offering appellant $20 for the $10 worth of marijuana and offering to let appellant keep some. Appellant then agreed to sell some to Fobbs.
Rodolfo Rubio testified that he was waiting with appellant for a haircut when Fobbs approached. Rubio testified similarly to J.C. that appellant refused to sell his marijuana to Fobbs because it was “personals” and not for sale, that Fobbs repeatedly asked appellant to sell him marijuana, and that Fobbs left and returned to ask again. Rubio stated that, when Fobbs returned, he offered appellant $20 and only wanted part of the $10 worth of marijuana.
Appellant testified that he told Fobbs he had marijuana that he was going to smoke himself and that Fobbs asked him repeatedly for marijuana, leaving and coming back several times to ask again. Appellant also testified that he was not going to sell Fobbs any marijuana before Fobbs offered him $20, offered to let him keep some, and repeatedly asked him to sell it.
II. Procedural Summary
A petition was filed pursuant to Welfare and Institutions Code section 602 on July 20, 2009, alleging that appellant committed the crime of sale or transportation of marijuana in violation of Health and Safety Code section 11360, subdivision (a), a felony. A second petition was filed on October 30, 2009, alleging that appellant committed two offenses: (1) false imprisonment by violence (Pen. Code, § 236) and (2) corporal injury to the mother of his child (Pen. Code, § 273.5, subd. (a)).
The juvenile court held an adjudication hearing on the July 20, 2009 petition, found the allegations true, and sustained the petition. At a subsequent hearing, appellant admitted the allegation in the October 30, 2009 petition that he violated Penal Code section 273.5 by inflicting injury on the mother of his child. The court declared appellant a ward of the court, found the allegation true, sustained the petition, and dismissed the second count, false imprisonment by violence.[2] The court committed appellant to a short term camp community placement program of three months with a maximum term of confinement of six years, four months. Appellant filed a timely notice of appeal.
DISCUSSION
Appellant contends the trial court erred in denying his motion to dismiss pursuant to Welfare and Institutions Code section 701.1 because Officer Fobbs entrapped him by making the commission of the crime unusually attractive to him. We disagree that the evidence at the close of the prosecution’s case established that the police conduct constituted entrapment.
“Courts have held that [Welfare and Institutions Code] section 701.1 is substantially similar to Penal Code section 1118 governing motions to acquit in criminal trials and that therefore the ‘rules and procedures applicable to [Penal Code] section 1118 . . . apply with equal force to juvenile proceedings.’ [Citation.]” (In re Anthony J. (2004) 117 Cal.App.4th 718, 727 [fn. omitted].) The trial court accordingly “is required ‘to weigh the evidence, evaluate the credibility of witnesses, and determine that the case against the defendant is “proved beyond a reasonable doubt before [the defendant] is required to put on a defense”’ . . . . [Citation.]” (Ibid.)
We review the trial court’s denial of the motion for substantial evidence. (In re Andre G. (1989) 210 Cal.App.3d 62, 66.) “In applying the substantial evidence rule, we must ‘assume in favor of [the court’s] order the existence of every fact from which the [court] could have reasonably deduced from the evidence whether the offense charged was committed and if it was perpetrated by the person or persons accused of the offense. [Citations.] Accordingly, we may not set aside the trial court’s denial of the motion on the ground of the insufficiency of the evidence unless it clearly appears that upon no hypothesis whatsoever is there sufficient substantial evidence to support the conclusion reached by the court below.’ [Citations.]” (In re Man J. (1983) 149 Cal.App.3d 475, 482.)
“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 suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.’ [Citation.] . . . [¶] [A]ffirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will . . . constitute entrapment. Such conduct would include, for example, . . . an offer of exorbitant consideration, or any similar enticement.’ [Citation.]” (People v. Watson (2000) 22 Cal.4th 220, 223.)
We conclude that the trial court did not err in denying appellant’s motion to dismiss based on entrapment. Because the motion is to be decided at the close of the prosecution’s case, the trial court properly considered the prosecution evidence and not the defense evidence. (See In re Anthony J., supra, 117 Cal.App.4th at p. 727.) The record accordingly indicates that Fobbs asked appellant if he had any marijuana, and appellant asked Fobbs how much he wanted. The fact that appellant asked Fobbs how much he wanted indicates that appellant was interested in selling marijuana to him.
When Fobbs replied that he wanted $10 worth, appellant declined to sell because he had only that amount and wanted to smoke it himself. Fobbs then offered to pay appellant $20 and offered to allow appellant to keep some of the marijuana for himself.
We cannot say that, based on this record, “it clearly appears that upon no hypothesis whatsoever is there sufficient substantial evidence to support the conclusion reached by the court below.’ [Citations.]” (In re Man J., supra, 149 Cal.App.3d at p. 482.) Rather, crediting Fobbs’s testimony, the trial court could reasonably have deduced that appellant was willing to sell to Fobbs and was bargaining with Fobbs. At the time appellant brought his motion to dismiss at the close of the prosecution’s case, the evidence was sufficient to sustain the petition.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




EPSTEIN, P. J.
We concur:



WILLHITE, J.



MANELLA, J.


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