People v. Perez

Opinion

STEPHENS, J.

Defendant was convicted of two counts of violation of Health and Safety Code section 11501 and sentenced to state prison for the terms prescribed by law, the sentences to run concurrently. This appeal followed.

We adopt the factual statement set forth in defendant’s brief, and there is no need for restating the facts here as the sole issue on appeal relates to the instruction as to burden of proof in the defense of entrapment.

The trial court instructed the jury that the “defendant has the burden of proving by a preponderance of the evidence that he was entrapped into the commission of the crime.” (CALJIC instruction No. 4.63, based upon

People

v.

Valverde,

246 Cal.App.2d 318 [54 Cal.Rptr. 528] and

People

v.

Moran,

1 Cal.3d 755, 760 [83 Cal.Rptr. 411, 463 P.2d 763].) The court refused defendant’s requested instruction that “if the evidence in the case should leave you with a reasonable doubt whether the defendant had the previous intent or purpose to commit any offense of the character here charged, and did so only because he was induced or persuaded by some officer or agent of the Government, then it is your duty to- acquit him.” (Based on federal entrapment cases.)

Defendant argues that the case of

People

v.

Loggins,

23 Cal.App.3d

[354]

597 [100 Cal.Rptr. 528] held that it was error to instruct that “the burden is on the defendant to raise a reasonable doubt as to his guilt of the charge of murder [CALJIC No. 5.15].” He also contends that CALJIC No. 4.63 (the instruction given) is in conflict with Penal Code section 1096, declaring that guilt must be established beyond a reasonable doubt, and urges that