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In a ruling that three concurring justices called “potentially confusing,” the California Supreme Court on Monday refused to adopt the federal courts’ doctrine of sentencing entrapment. The majority opinion, by Justice Janice Rogers Brown, included a lengthy discussion of sentencing manipulation and what constitutes “outrageous conduct” by law enforcement officials in entrapment situations, but then said the case at hand was the wrong one to address those issues. Justice Kathryn Mickle Werdegar wrote a concurring opinion, declining to join the majority “in its unnecessary, potentially confusing and questionable discussion of certain issues.” She said that after finding the claim wasn’t factually supported, Brown’s opinion “nonetheless goes out of its way to reject the test adopted by the court of appeal — viz., whether there was any legitimate law enforcement purpose or bona fide reason for the police conduct — even though that court’s opinion, by virtue of our grant of review, is no longer citable authority.” Chief Justice Ronald George and Justice Joyce Kennard concurred with Werdegar. The defendants in Monday’s ruling were challenging their convictions on robbery charges by arguing that they were entrapped in a way that let prosecutors seek an additional 25 years in prison for each. Under federal law, defendants can argue for a sentence reduction on the ground that police entrapped them to commit a greater offense than they were otherwise disposed to commit. They can also argue that police intentionally — and “outrageously” — manipulated the offense to produce a higher sentence. Brown’s ruling rejected the federal entrapment doctrine, saying it doesn’t fit with California’s entrapment test. “Under the California test,” she wrote, “‘such matters as the character of the suspect, his predisposition to commit the offense and his subjective intent are irrelevant.’” Justices Marvin Baxter, Ming Chin and Carlos Moreno signed Brown’s opinion. But the other three justices were clearly irked by what they saw as the majority’s attempt to reach out and stake out a position on sentencing manipulation. “Were this court actually presented with the issue in a proper case, it is at least possible it would . . . conclude that government conduct with no legitimate law enforcement purpose, designed solely to increase a defendant’s sentence, was so outrageous as to warrant a sentence reduction,” Werdegar wrote. “In any event, to purport to decide the issue here, while at the same time declining to decide whether the doctrine of sentencing manipulation even applies in California, is to engage in gratuitous dictum.” San Francisco’s John Philipsborn, one of two lawyers to file an amicus curiae brief by the California Attorneys for Criminal Justice on behalf of the defendants, said defense lawyers will be disappointed that the court declined to apply the federal doctrine of sentencing entrapment in California. But he said there would be a sigh of relief that they left the other issues for another day. “CACJ’s position,” he said, “was that if anything, if the court was inclined not to apply the doctrines, that they at least leave the door open for the application of them in the appropriate case, which they did.” The case is People v. Smith, 03 C.D.O.S. 11044. Also on Monday, the Supreme Court refused to expand the statute of limitations for filing defamation suits. The underlying suit had been filed by Jill Shively, a prosecution witness in the grand jury hearings of O.J. Simpson for the murders of Nicole Brown Simpson and Ronald Goldman. Shively, who allegedly had seen the former football star on the night of the murders in a location that would have refuted his testimony, was later dropped as a witness, only learning why in the book “A Problem of Evidence.” In that 1996 book, author Joseph Bosco wrote that a former Shively boyfriend had told two Los Angeles County prosecutors in 1994 that Shively was a “felony probationer” with a history of lying. One of those two, Deputy District Attorney Peter Bozanich, had told Bosco. Shively sued the author, the publishing company, Bozanich and the county of Los Angeles. She argued that the one-year statute of limitations for suing the author and the six-month limitation for suing Bozanich and the county didn’t begin running until she read the book in December 1996. The high court disagreed, saying that the statute should not be tolled and should begin running when the statement is published in a book distributed to the general public. By that reckoning, Shively missed the one-year statute by a day. If the court sided with Shively, George wrote for a unanimous court, “we would be adopting a rule subjecting publishers and authors to potential liability during the entire period in which a single copy of the book or newspaper might exist and fall into the hands of the subject of a defamatory remark.” The case is Shively v. Bozanich, 03 C.D.O.S. 11050.

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