Gary BRADLEY, Petitioner-Appellee, v. W.A. DUNCAN, Warden, Respondent-Appellant, 315 F.3d 1091

Opinion by Judge FERGUSON; Dissent by Judge GRABER. OPINION FERGUSON, Circuit Judge: Warden William A. Duncan (“the State”) appeals the District Court’s conditional grant of Defendant/Petitioner Gary Bradley’s (“Bradley”) 28 U.S.C. § 2254 petition for a writ of habeas corpus challenging his conviction on the grounds that the state trial court’s refusal to instruct the jury on the defense of entrapment violated his federal due process rights.

The District Court adopted the recommendations of the Magistrate Judge, who found that the refusal to instruct effected prejudicial constitutional error, and that the California appellate court’s denial of his claim was contrary to and involved an objectively unreasonable application of controlling federal law. We affirm the District Court’s conditional grant of habeas relief. Defendant/Appellee Gary Bradley (“Bradley”) was arrested and charged with one count of selling cocaine in violation of California Health and Safety Code

section 11352(a). Bradley’s only defense at trial was that he was entrapped by the police into committing the offense. At the conclusion of trial, the state trial court instructed the jury on the defense of entrapment pursuant to the defense’s request. The instructions are set forth in the appendix to this opinion. During deliberation, the jury requested two clarifications regarding the entrapment instructions. After three days of deliberations, the jury still could not reach a verdict as to Bradley’s guilt, and a mistrial was declared. Bradley was retried before another state court judge.

During the second trial, Bradley’s testimony from the first trial was read into evidence during the prosecution’s case-in-chief. Bradley had admitted that he facilitated the sale of cocaine, but testified that his sole purpose was to help an unwitting police agent, Jose de Jesus Flores, who was suffering greatly due to drug withdrawal. At the close of evidence, the defense again requested an entrapment instruction. This time, the trial court denied the request without explanation. Not surprisingly, the jury found Bradley guilty.

He was sentenced to twenty-five years to life imprisonment pursuant to California’s “three strikes” provisions. CAL. PEN. CODE §§ 667(b)-©, 1170.12(a)-(d). The state claims that Bradley did not present sufficient evidence to deserve an instruction on entrapment. Its reasoning is simply fallacious. The evidence presented at the first trial warranted an instruction. The same evidence was adduced at the second trial. Yet, Bradley was deprived of an instruction on entrapment at his second trial.

To demonstrate why the District Court was correct in granting habeas corpus relief, we review the facts underlying Bradley’s arrest. Next, we analyze these facts in light of the governing state law and find that Bradley was entitled to an entrapment instruction. Third, we determine that the failure to instruct on Bradley’s only defense violated his due process right to present a full defense. Finally, we conclude that Bradley is entitled to habeas relief under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). A.

Factual Background On January 8, 1996, while conducting an undercover narcotics operation, Officers Servando Pena and Melissa Town observed Jose de Jesus Flores standing on the sidewalk. Officer Pena pulled the unmarked car over and motioned for Flores to approach the car. Flores came over to the car, smelling of alcohol. Officer Pena asked Flores if he could “hook” him up with twenty dollars worth of cocaine. Flores stated that he did not have any, but he would take the officers to obtain drugs.

Flores got into the car and directed Officer Pena to drive toward a particular intersection, but he did not state that he was looking for any specific person. Officer Pena knew something was wrong with Flores and believed that he was going through drug withdrawal. Flores was pale and shaking, his head kept moving back and forth, and he said he desperately needed cocaine. As they approached the intersection, Flores spotted Bradley, whom he had previously seen in passing, and called out for him to stop.

Flores told Officer Pena to pull over, exited the vehicle, and vomited audibly in front of the officers and Bradley. Moments later, he approached Bradley. Bradley observed that Flores was going through withdrawals — he looked “pinkish, yellowish, sick”; he smelled like vomit; he was “tweaking and twitching”; and he was “shaking, like ... a junky dude.” Flores implored him to help him “get something.” Bradley asked him what he meant, and Flores responded “I’m hurting.

I need a fix.” Flores begged Bradley for drugs, asking repeatedly “Can you help me?” Flores told Bradley he was ill and appealed to him saying, “Please, please, big man, would you help me out?” Bradley finally agreed but told Flores to wait, stating: “I have to go see because I don’t, you know, do it. I know people up and down the street that does it, but I don’t do it.” Bradley then rode his bicycle up the street where drug dealers congregated. The officers and Flores followed him in the vehicle. When they reached the designated intersection, Flores gave Bradley the officers’ twenty-dollar bill.

However, Bradley did not locate anyone selling drugs and returned the money. Bradley then proceeded homeward on his bicycle, but he stopped upon observing co-defendant Tyrone Jennings walking towards a liquor store. Bradley caught up with Flores and the officers and told them to meet him at the liquor store. Bradley obtained twenty dollars from the officers, exchanged it for cocaine from Jennings, and delivered the cocaine to the officers and Flores. Bradley was arrested minutes later. No drugs were found on his person. B.

Entrapment under California Law The purpose of the entrapment defense is to deter impermissible police conduct. People v. Barraza, 23 Cal.3d 675, 153 Cal.Rptr. 459, 591 P.2d 947, 956 n. 5 (1979); People v. Holloway, 47 Cal.App.4th 1757, 55 Cal.Rptr.2d 547, 551 (1996), overruled on other grounds by People v. Fuhrman, 16 Cal.4th 930, 67 Cal.Rptr.2d 1, 941 P.2d 1189, 1199 n. 11 (1997).

In adopting an objective test of entrapment, the California Supreme Court reasoned, “the function of law enforcement manifestly ‘does not include the manufacturing of crime.’ ” Barraza, 153 Cal.Rptr. 459, 591 P.2d at 954 (quoting Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848(1958)). ' It is permissible for the police to offer “the simple opportunity to act unlawfully,” by the use of decoys or otherwise. Id. at 955.

However, “it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.” Id. It is also impermissible for the police or their agents to conduct themselves in a manner that would induce a normally law-abiding person “to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose.”- Id.

Entrapment is a jury question because of “its potentially substantial effect on the issue of guilt.” Id. at 956 n. 6; see also People v. Lee, 219 Cal.App.3d 829, 268 Cal.Rptr. 595, 598 (1990) (“Entrapment is ordinarily a fact question.”) (citations omitted). The defendant is entitled to an entrapment instruction if he presents sufficient evidence for a reasonable jury to conclude that he was entrapped. See People v. Watson, 22 Cal.4th 220, 91 Cal.Rptr.2d 822, 990 P.2d 1031, 1032 (2000) (citing substantial evidence standard from People v.

Flannel, 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1, 10 (1979)). “Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.” Flannel, 160 Cal.Rptr. 84, 603 P.2d at 10 (internal quotation marks and citation omitted). In this case, the California Court of Appeal found that Bradley was not entitled to an entrapment instruction under California law. However, its decision involved “an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(2). Moreover, it failed to view the evidence in the light most favorable to Bradley.

First, the California Court of Appeal’s decision was unreasonable in light of the record. The court characterized the police conduct as “an ordinary, run-of-the-mill, undercover drug operation in which a decoy was used.” In so doing, it stated that “[njeither officer badgered, cajoled, nor did any other affirmative act likely to induce a normally law-abiding person to commit the crime.” Although the California Court of Appeal was correct that neither Officer Pena nor Officer Town badgered, cajoled, or importuned Bradley personally, their decoy did.

The court overlooked Flores’ actions in determining that the facts did not support an entrapment instruction. Yet, a decoy who is manipulated by the police also constitutes a police agent “for purposes of the entrapment defense, even [if] the third party remains unaware of the law enforcement object.” People v. McIntire, 23 Cal.3d 742, 153 Cal.Rptr. 237, 591 P.2d 527, 530 (1979). Flores, the unwitting police agent, targeted Bradley individually and begged him for drugs.

Flores’ appeal, “Please, please, big man, would you help me out?” — despite Bradley’s statements that he neither had drugs nor sold them — could certainly be found by a jury to constitute “badgering” or “cajoling.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 161 (1966) (defining “badger” as to “pester ... in a manner likely to confuse, annoy, or wear down”); id. at 313 (defining “cajole” as “to persuade with deliberate flattery especially] in the face of reasonable objection or reluctance”). • In light of the urgency of Flores’ requests, his conduct also constituted “importuning” in the ordinary meaning of the term.

Id. at 1135 (defining “importune” as “to press or urge with ... unreasonable requests”). Moreover, the California Court of Appeal’s determination that the police merely offered the opportunity to act illegally was unreasonable in light of the record. Officers Pena and Town chose as their “hook” a drug addict who was going through withdrawals and was very ill. This was not a case in which the police merely used an underage decoy to purchase alcohol, see Provigo Corp. v.

Alcoholic Beverage Control Appeals Bd., 7 Cal.4th 561, 28 Cal.Rptr.2d 638, 869 P.2d 1163 (1994), or to respond to an ad soliciting sex with a female of any age. See People v. Reed, 53 Cal.App.4th 389, 61 Cal.Rptr.2d 658 (1996). This was a case in which the police used a decoy whose physical suffering would appeal to the sympathies of most people. Second, the California Court of Appeal failed to resolve its doubts as to whether, a normally-law-abiding person would have been induced to commit the crime out of sympathy for Flores in favor of Bradley. See Flannel, 160 Cal.Rptr. 84, 603 P.2d at 10.

The court.denied Bradley’s claim, reasoning that “the average person would not ... purchase illegal drugs to aid a stranger, even if the stranger appeared to be a drug addict going through withdrawal.” What a normally-law-abiding person would do under the circumstances should have been left to the jury. A reasonable jury could find that a normally-law-abiding person would feel sympathy for Flores in his desperate state and decide to help him obtain drugs to relieve his suffering.

The Court of Appeal compounded its error by speculating that a normally-law-abiding person confronted by an evidently ill drug-addicted stranger in the throes of withdrawal would not purchase drugs for Flores, but would opt for a legal alternative. Of course, calling the police is an alternative to acquiescing in illegal activity, and it is conceded that taking a drug addict to a clinic is preferable to enabling his drug addiction. But one could always speculate about a legal alternative to the illegal action ultimately taken.

A normally-law-abiding person does not always take the high road in the face of pressures or inducements by the police or their agents. As Justice Frankfurter observed in Sherman: “Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.” 356 U.S. at 384, 78 S.Ct. 819 (Frankfurter, J., concurring). The state ignores the purpose of the entrapment defense, which is to curb unsavory police conduct. Instead of focusing on the impermissible police conduct, the state chooses to blame Bradley and to point out what he should have done differently.

This argument is circuitous and leaves no situation where the defendant can assert entrapment as a defense. Moreover, in faulting Bradley for failing to call the police or take Flores to a treatment center, the state turns a blind eye to the fact that the officers' did not do so either. Not only did the officers in this case fail to help Flores, they isolated him from any potential assistance, using him as a decoy and then arresting him as a co-defendant in this case. If anyone in this case had a duty to assist Flores, it was the officers, not Bradley.

This is especially true because Bradley was on a bicycle (and could not transport Flores anywhere), whereas the officers were in a vehicle and had control over Flores as a passenger. However, instead of taking him to get help, the officers decided to exploit Flores’ addiction as a tool to induce another person’s participation in a drug sale. Under Barraza and its progeny, this is impermissible. It is important to remember that at Bradley’s first trial, the trial judge found that the evidence presented required that the jury be given an entrapment instruction.

The evidence presented at the second trial was exactly the same as the first trial, yet the second trial judge refused to give the instruction. As the District Court below observed: By refusing to instruct the jury on entrapment, the trial judge essentially left the jury with petitioner’s confession to the offense, without ever allowing them to consider petitioner’s preclusive defense.

By rejecting petitioner’s request for an entrapment instruction, the trial court effectively deprived petitioner of his only defense. (ER 77) This kind of manipulation of the jury is simply not permissible. “The trial judge is ... barred from attempting to override or interfere with the jurors’ independent judgment in a manner contrary to the interests of the accused.” United States v. Martin Linen Supply Co., 430 U.S. 564, 573, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977).

Moreover, when one judge determines, as a matter of law and fact, that the evidence requires the giving of an entrapment instruction, and no additional evidence to the contrary is profféred at a subsequent trial, the second judge may not simply ignore the findings of the first. “It is a fundamental principle of jurisprudence ... that a question of fact or of law distinctly put in issue and directly determined by a[criminal or civil] court of competent jurisdiction cannot afterwards be disputed between the same parties.” Frank v.

Mangum, 237 U.S. 309, 334, 35 S.Ct. 582, 59 L.Ed. 969 (1915) (internal citation omitted). California recognizes this application of the law of the case doctrine. The California Court of Appeal recently held that a superior court judge lacked the authority to vacate and redetermine the bail setting determination of another superior court judge. In re Alberto, 125 Cal.Rptr.2d 526, 2002 WL 31116128, slip, op.11205 (Ct.App.2002).

The decision reasoned that “for one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court.” Id. at 11206. See also, People v. Woodard, 131 Cal.App.3d 107, 111, 182 Cal.Rptr. 254 (1982). In the instant case, the second judge simply ignored the findings of the previous judge, without even bothering to assert that the earlier decision was erroneous or that the circumstances of the case had changed.

This kind of unauthorized second-guessing is impermissibly arbitrary and can amount to a violation of Due Process. C. Due Process Violation The failure to instruct the jury on Bradley’s defense theory of entrapment was not simply a state law error. It also effected a violation of Bradley’s due process rights. The Supreme Court has held that “[a]s a general proposition, a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” Mathews v.

United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988) (citation omitted). We have applied this standard to habeas petitions arising from state convictions. See Conde v. Henry, 198 F.3d 734, 739 (9th Cir.1999) (“It is well established that a criminal defendant is entitled to adequate instructions on the defense theory of the case.”). The failure to instruct the jury on entrapment deprived Bradley of his due process right to present a full defense.

The Supreme Court has held: “Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (emphasis added). Thus, the state court’s failure to correctly instruct the jury on the defense may deprive the defendant of his due process right to present a defense. See Barker v.

Yukins, 199 F.3d 867, 875-76 (6th Cir.1999) (granting habeas relief under AED-PA because the erroneous self-defense instruction deprived the defendant’s of a “meaningful opportunity to present a complete defense”) (relying on Trombetta, 467 U.S. at 485, 104 S.Ct. 2528), cert. denied, 530 U.S. 1229, 120 S.Ct. 2658, 147 L.Ed.2d 273 (2000). This is so because the right to present a defense “would be empty if it did not entail the further right to an instruction that allowed the jury to consider the defense.” Tyson v. Trigg, 50 F.3d 436, 448 (7th Cir.1995).

In this case, the refusal to instruct on entrapment deprived Bradley of his only defense and, as a result, of due process. Bradley testified at his first trial that he bought the cocaine for Flores and explained that he did so out of concern for Flores’ well-being and sympathy for his plight. At the second trial, the prosecution read Bradley’s testimony into the evidence. During closing argument, the prosecutor pointed to the portion of the record in which Bradley had confessed to the crime.

He admonished the jury not to consider the evidence that Bradley had acted as a “Good Samaritan” or that he had committed the crime out of sympathy for Flores. He also reminded the jury of the court’s instruction not to acquit on the basis of “sympathy” for Bradley. Defense counsel argued that the officers’ .“tactics” of manipulating a drug addict going through withdrawals was “despicable” and is not “something that should be done.” However, because of the court’s refusal to instruct on entrapment, he could not point to a legal grounds on which the jury could acquit Bradley if it agreed.

Under these circumstances, the failure to instruct on entrapment prevented Bradley from presenting his full defense. Accordingly, due process was violated. Nevertheless, because the failure to instruct on entrapment was a trial error, Bradley is entitled to relief only if he can show prejudice. Cal. v. Roy, 519 U.S. 2, 5, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996) (explaining harmless-error analysis). Prejudice is shown for purposes of habeas relief if the trial error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Id. at 6, 117 S.Ct. 337 (quoting Brecht v.

Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). Moreover, we must grant the petition if we are “ ‘in grave doubt as to the harmlessness of an error.’ ” Id. (quoting O’Neal v. McAninch, 513 U.S. 432, 437, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)). As aforementioned, Bradley presented ample evidence supporting the giving of the entrapment instruction. Moreover, we need only look at the differing results of the two trials to find that the failure to so instruct had a substantial and injurious effect on the jury verdict.

In the first trial, an instruction was given, and a mistrial was declared after three days of deliberation and two clarifications on the defense. In the second trial, the same evidence was presented, but the instruction was not given. A guilty verdict was the result.

In addition, in his appeal to the California Court of Appeals, Bradley filed declarations from two jurors on the second, jury, both of whom stated that “the jury verdict (or the jury’s ability to reach a unanimous verdict) would have been different if these [entrapment] instructions had been given.” Under these circumstances, the failure of the trial court to instruct the jury as to Bradley’s entrapment defense, causes at least a “grave doubt as to the harmlessness of the error.” O’Neal, 513 U.S. at 437, 115 S.Ct. 992.

Thus, Bradley has sufficiently shown prejudice and is entitled to relief on his due process claim. D. Habeas Relief under AEDPA Having concluded that Bradley’s due process rights were violated, we turn to the issue whether he has fulfilled the requirements of AEDPA. As previously discussed, the California Court of Appeal’s decision that Bradley was not entitled to an entrapment instruction involved an “unreasonable determination of the facts in light of the evidence presented.” 28 U'.S.C. § 2254(d)(2). However, it is the due process violation, not the state law error, that triggers our habeas relief.

Because the California Court of Appeal did not address Bradley’s due process claim, we must conduct an independent review of the record to determine “whether the state court’s resolution of the case constituted an unreasonable application of clearly established federal law.” Thomas v. Hubbard, 273 F.3d 1164, 1170 (9th Cir.2001) (as amended) (quoting Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000)). We' have held that a state court decision must be reversed as involving an “unreasonable application” of clearly established federal law when we have a “firm conviction” that the state court erred. Van Tran v.

Lindsey, 212 F.3d 1143, 1153-54 (9th Cir.2000) (adopting a “clear error” standard for habeas review under AED-PA), cert. denied, 531 U.S. 944, 121 S.Ct. 340, 148 L.Ed.2d 274 (2000). Contrary to the dissent’s suggestion, we accept the principles mandated by the Supreme Court in Woodford v. Visciotti, 123 S.Ct. 357, 154 L.Ed.2d 279, 2002 WL 31444314 (2002) (per curiam) and Early v. Packer, 123 S.Ct. 362, 154 L.Ed.2d 263, 2002 WL 31444316 (2002) (per curiam), requiring that the state court decision reflect an “objectively unreasonable” application of federal law.

However, the record is clear that the California Court of Appeal’s decision was an “objectively unreasonably” application of federal law. The Court of Appeal failed to recognize Bradley’s right to present a complete and meaningful defense to the jury under the principles set out in Mathews and Trombetta. It failed to consider the facts relevant to the due process prejudice prong, including the undisputed evidence that jurors in the second trial would not have convicted the defendant if the entrapment instruction had been given.

It faded to explain why the second judge could unilaterally ignore the first trial judge’s findings of fact and conclusion of law regarding the entrapment instructions and not compose even a single senténce to explain away the law of the case doctrine. It is clear that the California Court of Appeal’s failure to address these issues constituted an objectively unreasonable determination of both the law and the facts.

The dissent would dismiss Bradley’s ha-beas petition on the basis that he “has cited no United States Supreme Court case ... that would require the giving of an entrapment instruction in a state-criminal trial when there is insufficient evidence to support such an instruction under state law.” Dissent at 27 (citing Bueno v. Hallaban, 988 F.2d 86, 88 (9th Cir.1993)). However, no such case need be cited here. As shown above, Bradley more than sufficiently supported his defense theory of entrapment, and the fact that the entrapment instruction was given in his first trial is further proof of this.

The dissent misconstrues the nature of our inquiry under AEDPA. Bradley need not produce a “spotted calf’ on the precise issue at hand to warrant habeas relief. See Van Tran, 212 F.3d at 1154 & n. 16 (“AEDPA does not require an on-point Supreme Court case for us to reverse .... ”). Rather, it is sufficient that the due process violation involved here offends the principles previously enunciated by Supreme Court precedent and reaffirmed by our case law. See id.; see also Taylor v.

Withrow, 288 F.3d 846, 852 (6th Cir.2002) (“The [Supreme] Court has made clear that its relevant precedents include not only bright-fine rules but also the legal principles and standards flowing from precedent.”) (citing Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). The District Court was correct to grant habeas relief. Affirmed.

Appendix CALJIC No. 4.60 provides: It is a defense to a criminal charge that the commission of the alleged criminal act, was induced by the conduct of law enforcement agents or officers [or persons acting under their direction, suggestion or control] when the conduct would likely induce a normally law-abiding person to commit the crime. [¶] To establish this defense the defendant has the burden of proving by a preponderance of the evidence that the conduct of the law enforcement agents or officers[or persons acting under their direction, suggestion, or control] would likely induce a normally law-abiding person to commit the crime.

CALJIC No. 4.61 provides: In deciding whether this defense has been established, guidance will generally be found in the application of one or both of two principles. First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the criminal other than ordinary criminal intent, entrapment will be established. An example of this type of conduct would be an appeal by the police that would induce a normally law-abiding person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose.

Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law abiding person will likewise constitute entrapment.

This conduct would include, for example, a guarantee that the act is not illegal or the crime will go undetected, an offer of exorbitant consideration, or any similar enticement. [¶] Finally, while the inquiry must focus primarily on the conduct of the law enforcement agent, that conduct is not to be Viewed in a vacuum; it should also be judged by the effect it would have on a normally law-abiding person situated in the circumstances of the case at hand.

Among the circumstances that may be relevant for this purpose, for example, are the transactions preceding the crime, the suspect’s response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission. [¶] [Matters such as the character of the defendant, [his], [her] predisposition to commit the crime, and [his][her] subjective intent are not relevant to the determination of the question of whether entrapment occurred.] CALJIC No. 4.61.5 provides: ■ It is permissible for law enforcement agents or officers [or persons acting under their direction, suggestion or control] to provide opportunity for the commission of a crime including reasonable, though restrained, steps to gain the confidence of suspects.

It is not permissible for law enforcement agents or officers [or persons acting under their direction, suggestion or control] to induce the commission of a crime by overbearing conduct such as badgering, coaxing or cajoling, importuning, or other affirmative acts likely to induce a normally lawabiding person to commit the crime. . The prior convictions were for a 1980 and a 1988 burglary. . The California Court of Appeal's statement that Flores was a ''stranger” is also unreasonable in light of the record. At the very least, Flores was an acquaintance. The record reflects that Bradley had seen Flores in passing.

Moreover, Officer Town testified at trial that Bradley assured the officers that he would not 'rip them off' because Flores knew where to find him. Thus, Flores was not a stranger to Bradley. . Further, the state’s reliance on People v. Graves, 93 Cal.App.4th 1171, 113 Cal.Rptr.2d 708 (2001), for the proposition that Bradley should have chosen a "lawful alternative,” is misplaced. In that case, the defendant responded illegally to a legal, request. Id. at 713. Here, Bradley acquiesced in an illegal request. .

Use of Bradley’s testimony from the first trial, in which an entrapment instruction was given, against him in the second trial, in which no entrapment instruction was given, presents an additional element of unfairness. Presumably, Bradley elected to testify at the first trial to support his entrapment defense. If he knew that no entrapment instruction would be given, he may well have elected to stand on his Fifth Amendment right not to testify.

Thus, the refusal to give an entrapment instruction at the second trial, in effect, sandbagged Bradley into testifying and virtually confessing guilt, even though no entrapment instruction was given.