One of the most common defenses used against allegation of solicitation of prostitution is the defense of entrapment. This article is a summary of the defense of entrapment as it relates to California prostitution charges, including penal code 647(b) [Solicitation of Prostitution], PC 266g [Prostituting Wife], PC 315 [Keeping a House of Prostitution], and PC 647(m) [Soliciting a Minor for Prostitution].
This summary does not cover the law, penalties, or other common defenses related to various prostitution crimes. For information on the law, penalties, and other common defenses related to any particular prostitution crime, see PC 647(b) [Solicitation of Prostitution], PC 266g [Prostituting Wife], PC 647(m) [Solicit Minor for Prostitution] & PC 315 [Keeping a House of Il Repute].
In short, entrapment is a is a defense to any criminal charge where law enforcement unintentionally, but negligently, encourages, entices, or promotes the defendant’s criminal conduct.
Example: John runs a late-night taco stand on a street corner where street prostitution is common (PC 647(b) Crimes). While working at his taco stand, John is repeatedly approached by an undercover police officer who poses as a street prostitute. The undercover officer repeatedly offers John a “blowjob” in exchange for tacos. John declines the offer many times over the course of several days, but eventually, John agrees to the “prostitute’s” offer.
Result: The undercover officer’s repeated offer to engage in oral copulation (i.e., “blowjob”) for tacos promoted John’s illegal conduct; therefore, John was entrapped by law enforcement, and he should be acquitted of the PC 647(b) charges.
Focus on Police Conduct
Per California Jury Instruction 3408: A person is entrapped when law enforcement officers engage in conduct that would cause a normally law-abiding person to commit the crime (Calcrim (3408). If the police engage in such conduct, it does not matter whether the defendant was predisposed to commit the crime.
Example: John regularly contacts escorts for "outcall" services to his home. When the escorts arrive, John propositions them for sex in exchange for money. Law enforcement is aware of John’s exploits, but it is difficult for law enforcement to catch and charge John with PC 647(b) [Engaging in Prostitution] because no female police officer is willing to go into John’s house without backup. Therefore, an undercover officer, posing as a prostitute, stops John on his way home by flagging down his vehicle and offering him oral sex for cash. John accepts the “prostitute’s” offer and John is immediately busted by undercover sting operators.
Result: Even though John is predisposed to commit prostitution because he regularly hires prostitutes, he should be acquitted of the PC 647(b) criminal charges because law enforcement entrapped John when they flagged him down for sex on his way to work. Remember: The focus is on police conduct when evaluating an entrapment defense in California.
Note: Other examples of entrapment include, but are not limited to, badgering a person for sex, persuaded a person to agree to prostitution by flattery or coaxing, repeated and insistent requests for prostitution services, assertion by undercover police officers that prostitution is not illegal, guarantee of an extraordinary benefit to engage in prostitution, or an appeal to friendship or sympathy.
Example: John is driving to work. At a stoplight, an undercover police officer, who is posing as a homeless woman, approaches John's vehicle and tells him that she is destitute and starving, and that she can give John a “hand job” in exchange for food. John agrees and he is immediately arrested by undercover officers during a prostitution sting operation.
Result: John is probably entrapped by law enforcement in this scenario. This is because law enforcement enticed John to engage in prostitution by appealing to his sympathy for the "homeless woman."
As stated, in California, an entrapment defense to a prostitution crime may be available even when the defendant is predisposed to commit prostitution.
Example: Maria works as a prostitute in a massage parlor. Maria is approached by an undercover officer, who is posing as a massage parlor customer. The undercover officer offer Maria ten times her massage rate for a “happy ending.” Maria agrees and she is immediately busted for prostitution and charged with PC 647(b).
Result: Even though Maria regularly engages in prostitution, law enforcement entrapped her by offering her an extraordinary benefit to engage in prostitution (i.e., ten times Maria’s massage rates).
Public Policy Defense: The purpose of the entrapment defense is to encourage law enforcement officers from engaging in conduct that is unethical and against public policy. Namely, law enforcement should discourage prostitution, not promote prostitution, and enticing citizens to commit crime, who would not ordinarily commit prostitution without law enforcements' entrapment conduct, is a breach of the public’s trust in law enforcement.
Enhanced Penalty Entrapment: In some situations, law enforcement will entrap a person into committing a greater crime than he or she is already committing. In this situation, the entrapment defense still applies.
Example: John regularly avails himself of the prostitution services offered at his local massage parlor. To catch John in the act of violating penal code 647(b)(2) [solicitation of prostitution] an undercover police officer, who poses as a massage therapist, "works" at John's favorite massage parlor. When John requests a massage and his regular “happy ending,” the undercover officer tells John that a "new girl" who is "underage," is available for massages and "happy endings" at an extreme discount because the "new girl is in training." John agrees to pay for the massage and “happy ending” from the underage prostitute.
Result: John is probably guilty of PC 647(b) [soliciting prostitution] when he requests a "happy ending" from the undercover officer, but as to the charge of soliciting a minor for prostitution (PC 647(m), John is probably not guilty. This is because John is entrapped as to the PC 647(m) charge (extreme cost savings benefit associated with employing the "new girl" for both the massage and the "happy ending." It is also ambiguous as to whether John wants the cost savings associated with the massage or the "happy ending."
Note: It is not uncommon for undercover police officers, and/or "Johns," to use somewhat cryptic language when referring to sexual services. The purpose of the cryptic language during the offering and/or accepting of prostitution services is to avoid the use and detection of obvious sexual terms that are found in the language of prostitution crimes. This rarely leads to a defense unless the language is so cryptic that it is ambiguous and uncommon nomenclature in the trade.
Example: Maria, a prostitute, offers the following services to her customers online: "Greek," "Girlfriend Experience," and "MSOG." When Maria is busted for prostitution, she tells the arresting officer that "Greek," "Girlfriend Experience," and MSOG," are not sexual services. However, at court, the arresting officer will testify that these terms are used in the prostitution trade and are synonymous with sexual acts (i.e., "Greek" = "Anal Intercourse," "MSOG" = "Multiple Ejaculations," etc.). There are dozens of pseudonyms for sexual acts in the prostitution trade.
Decoys and Ruses Permitted
Police are constitutionally permitted to lie to criminal suspects that are believed to be engaging in prostitution In other words, it is not entrapment when an undercover officer lies to a criminal suspect and tells the criminal suspect that he or she is not affiliated with law enforcement.
Example: John is driving around looking for prostitutes. John pulls over and approaches an undercover police officer who is posing as a prostitute during a “prostitution sting.” John asks the undercover officer if she “is a police officer,” or whether she “is employed by any law enforcement agency.” The undercover officer says “No.” Thereafter, John says “You know you have to tell me the truth if I ask, and it’s entrapment if you lie.” The undercover officer repeats that she does not work for any law enforcement agency. Thereafter, John solicits the undercover officer for oral sex in exchange for money.
Result: John is guilty of PC 647(b) [Soliciting Prostitution] because the officer is not required to be truthful to John’s question of whether the undercover officer works for law enforcement. In other words, the undercover officer's misrepresentation to John as to her true identity as a police officer, is not entrapment.
Police Stings Operations
As stated, police sting operations, which are conducted to catch suspects engaging in prostitution, are legal in California. However, the legality of sting operations is not what makes or breaks an entrapment defense. The entrapment defense may apply despite the legality of the sting operation. Again, if the officers encourage, entice, or otherwise promote the crime of prostitution during a police sting operation, then a defendant is entitled to an acquittal of the prostitution charges on public policy grounds.
Opportunity v. Entrapment
If an officer only gives the defendant an opportunity to commit the crime, then entrapment is not found. There must be some conduct on the part of law enforcement that encourages, entices, or promotes the defendant’s criminal conduct before the defendant is entitled to an entrapment defense.
Example: Law enforcement sets up a sting operation to catch prostitutes engaging in street prostitution. As part of the sting operation, a male undercover officer, dressed in plain civilian clothing, walks silently down the prostitute-laden boulevard. Several prostitutes approach the undercover officer and offer him various sexual services in exchange for money.
Result: The prostitutes do not have an entrapment defense because the undercover officer does nothing to encourage or entice the prostitutes to engage him in prostitution activity. The undercover officer only offers the opportunity to the prostitutes to engage in prostitution. Therefore, the prostitutes will not have an entrapment defense to PC 647(b) charges.
Note: Inquiry as to the prostitute's rates for sexual services is not entrapment, so long as the officer's conduct does not otherwise encourage, incite, or promote the crime of prostitution.
Example: An undercover police officer drives up to a woman suspected of engaging in street prostitution. The undercover officer asks the suspect for driving directions. The prostitute suspect asks the undercover officer if he would like a "car date," which is street code for sexual services in the "John's" vehicle. The undercover officer asks the suspect "how much for a car date?" Thereafter, the prostitute lays out her menu for sexual services.
Result: The prostitute is not entrapped when the undercover officer inquires as to the amount for a "car date." This is because the undercover officer does not otherwise encourage, incite, or promote the suspect's involvement in prostitution.
Law Enforcement Agents
Law enforcement agencies may employ non-law enforcement personnel to help catch prostitutes and “Johns.” When this occurs, an entrapment defense may still apply if the law enforcement agent encourages, incites, or promotes a crime. In other words, the words or conduct of the law enforcement agent may amount to entrapment, and that agent’s entrapment is imputed to the law enforcement agency.
Example: Maria works at the front desk of a massage parlor. Law enforcement asks Maria for help with catching massage parlor clients looking for prostitution services by reporting anyone who requests such services. Maria agrees to help, but Maria is overzealous about catching “Johns” and she incorporates tactics that promote clients to inquire about prostitution services (i.e., Maria entrapped her massage parlor clients into soliciting prostitution).
Result: Defendants entrapped by Maria will give those defendants an entrapment defense against PC 647(b) charges (Soliciting Prostitution). This is true even though Maria is not herself a law enforcement officer.
Alternative Defenses Allowed: A defendant may simultaneously use an entrapment defense and a defense that is inconsistent to an entrapment defense.
Example: John is charged with soliciting a prostitute (PC 647(b)). His defense is that he did not solicit a prostitute for sexual services, but if even if he did solicit a prostitute for sexual services, he was nevertheless entrapped into soliciting the prostitute for sexual services, and therefore, he is entitled to an acquittal of the PC 647(b) charges.
Note: Alternative defenses are commonly argued during plea negotiations in prostitution cases, but if the criminal case does not end in a plea bargain, then the criminal defense attorney will usually commit to one defense in front a jury.
Burden of Proof
The defendant has the burden of proving that he or she was entrapment by a preponderance of the evidence. This means that the defendant must prove that more likely than not, he or she was entrapped.
The defendant’s preponderance of the evidence standard does not alleviate the district attorney’s burden to prove the PC 647(b) charges beyond a reasonable doubt. Rather, the district attorney must first meet its burden of proving the prostitution allegations beyond a reasonable doubt. Then, and only then, does the defendant need to prove entrapment by a preponderance of the evidence.
Example: The district attorney charges John with solicitation of prostitution (PC 647(b)). At trial, John’s criminal defense attorney intends to prove that John was entrapped. However, before the defense is called to present its defense, the court finds that the district attorney, in his case-in-chief, did not prove every element of the PC 647(b) violation beyond a reasonable doubt (See PC 647(b) Elements).
Result: John’s criminal defense attorney never needs to prove John’s entrapment defense, by a preponderance of the evidence, because the district attorney did not first meet his burden of proving every element of the alleged PC 647(b) violation beyond a reasonable doubt.
Note: Entrapment is an “affirmative” defense in California. This means that the defendant must establish at least some evidence to support the entrapment defense (contrary to the basic rule that the defendant is not required to present a defense in a criminal case). It also means that the defendant may admit the alleged conduct that supports the criminal charge, and yet, be acquitted of the criminal charge because of the entrapment.
Court’s Duty to Instruct Jury
The court judge must instruct on an entrapment defense when the defendant requests it and when there is substantial evidence supporting the entrapment defense (Calcrim 3408). What is considered "substantial" evidence supporting an entrapment instruction is decided by the judge on a case-by-case basis.
For more information on the defense of entrapment as it relates to prostitution cases, contact our sex crimes criminal defense attorneys for a free consultation. Our sex crimes defense attorneys have successfully handled hundreds of misdemeanor and felony sex crimes in the Inland Empire.
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