3409. When Conduct of Officer May Not Be Attributed to Defendant

If, while acting for a law enforcement purpose, an officer [or (his/her) agent] pretends to be an accomplice of a defendant, then no act done by the officer [or agent] may be attributed to the defendant or held against the defendant, unless the defendant, using (his/her) independent will, directed the officer [or agent] to do the act.

[As used in this instruction, an agent is a person who does something at the request, suggestion, or direction of an officer. It is not necessary that the agent know the officer's true identity, or that the agent realize that he or she is acting as an agent.]

Bench Notes

Instructional Duty

Give this instruction on request if supported by the evidence. (People v. Goldberg (1957) 152 Cal.App.2d 562 [314 P.2d 151]; People v. Lanzit (1925) 70 Cal.App. 498, 509 [233 P. 816].)

Authority

Case Law. People v. Goldberg (1957) 152 Cal.App.2d 562 [314 P.2d 151]; People v. Lanzit (1925) 70 Cal.App. 498, 509 [233 P. 816].

Agent Defined. People v. McIntire (1979) 23 Cal.3d 742, 748 [153 Cal.Rptr. 237, 591 P.2d 527].

Secondary Sources

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, § 73.08 (Matthew Bender).

(New January 2006)