People v. Billingsley

SWAIN, J.

On April 1, 1943, the defendant was convicted of violating section 41.05 of Ordinance 77000 of the city of Los Angeles (offering.) Her motion for a new trial was denied on April 5, 1943. On the same day the court on its own motion, and over the objection of the defendant, continued the cause to April 15 for hearing on probation and sentence, without a waiver by the defendant of time for sentence. The court thereupon referred the case to the Probation Department for investigation and report. On April 15 the court sentenced the defendant to 180 days in jail, suspended the execution of judgment and sentence, and granted probation for two years on condition that the defendant serve 120 days in jail, leave the State of California within

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48 hours after her release from jail and remain out of the state during the rest of her period of probation. On that day before sentence was pronounced, the defendant again moved for a new trial on the ground that sentence had not been pronounced within the time prescribed by law (Penal Code, sec. 1449). This motion was denied. The defendant appeals from the order of April 5 denying her motion for a new trial, from the order of April 5 continuing sentence to April 15, from the order of April 15 denying her motion for a new trial, and from the judgment and sentence.

Entrapment.

In her appeal from the judgment on the merits she claims that the trial court erred in refusing to give the instruction, which she requested, on the law of entrapment. No question is raised as to the correctness of the form of the proposed instruction. The only question is whether there is any evidence under which the doctrine of entrapment is applicable. It is undisputed that the complaining witness, police officer Gunn, then in plain clothes, met the defendant in the cocktail lounge of a certain hotel. That Gunn and the defendant went to his room in that hotel where, shortly thereafter, the defendant was arrested by two other police officers. The evidence is conflicting as to who suggested going to Gunn’s room and as to what happened in the room. Gunn testified that, after they reached his room, the defendant demanded and he gave her $50 to have intercourse with him. Defendant denied that there was any talk of intercourse or that Gunn paid her any money. The arresting officers testified to defendant’s state of undress and to finding under her pocketbook the $50, which had previously been marked.

The only evidence as to who suggested sexual intercourse is found in the testimony of Officer Gunn, which is to the effect that the defendant suggested it. If a crime is committed at the suggestion of the defendant, the doctrine of entrapment is not applicable. In