By On the occasion of our 20th anniversary
By Gustavo Arellano
By R. Scott Moxley
By Alfonso Delgado
By Courtney Hamilton
By Joel Beers
By Peter Maguire
By Charles Lam
The July 2009 Orange County Craigslist adult ad won more than 100 responses thanks to the headline "Looking to get by in a hard time W4M/HB" and a simple, though deceptive, message (written in punctuation-free Internet shorthand): "looking to have a good time are u :)." The men who replied received an email from Jessie Browne, who revealed, "im only 13 and need a $100 so if still interested let me know."
After Chris Hansen's alarming To Catch a Predator series several years ago on NBC, we might assume all the men recognized the rapidly waving, bright-red flag and quickly moved on to Tube 8 rather than tempt fate. It's against the law, of course, for an adult to have sex with a minor under any circumstances. But men are men, and as many as 15 of them—including a registered sex offender—continued to communicate with Jessie.
One of those intrigued individuals, 25-year-old Venson Villapando of Brea, asked Jessie what she would do "to earn the $100."
The girl replied, "what u want,, ill do almost anything."
Villapando fired back, "r u down to fck?"
Her answer: "sure are u down to give me a 100 bucks." She claimed she needed the money to pay her phone bill and agreed to a sex date by writing, "ok i can do it i guess but we need a condom cuz i can't get into trouble."
Jessie and Villapando, a native of the Philippines who immigrated to the United States at the age of 10, eventually scheduled a rendezvous in Huntington Beach. Carrying $110 in cash but no condoms, Villapando drove his blue BMW to a Carl's Jr. parking lot near Jessie's home, but he chickened out before entering the fast-food restaurant to meet the girl. As he attempted to speed away, he was surrounded by cops. Jessie—the mindless, cash-hungry, seventh-grade prostitute—was in reality Alan Caouette and Brian Smith, two vice squad detectives at the Huntington Beach Police Department.
The officers' Craigslist ad produced multiple arrests, underscoring the importance of their work to catch an apparently endless supply of men in Southern California who pursue minors for sex. From a glance, the Villapando case appears standard fare. Caouette and Smith got their evidence to a jury. Deputy District Attorney Eric Scarbrough won two felony convictions for attempted lewd conduct, and Superior Court Judge Gregg L. Prickett issued a sentence of one year in county jail, supervised probation for five years and lifetime sex-offender registration.
The overwhelming majority of appeals of sex crime cases are easily rejected. But this month, a three-judge panel on the California Court of Appeal based in Santa Ana reversed Villapando's convictions and tossed out his punishments. In a 16-page opinion written by Justice Richard D. Fybel on behalf of justices Raymond J. Ikola and David A. Thompson, the court labeled the case a miscarriage of justice.
According to California courts, the key test to determine if entrapment occurred centers on whether an average, law-abiding person would be unwittingly tempted by undercover police tricks to commit a crime. Patrick Morgan Ford, Villapando's San Diego-based appellate attorney, forcefully argued that HBPD "engaged in aggressive and perhaps outrageous government conduct" by luring his client into making contact with the decoy first by placing an adult ad, failing to initially mention her age, making risqué statements, and repeatedly pursuing the suspect with text messages and emails when his interest waned.
"The vice squad officer[s] here did far more than provide an 'opportunity' for [Villapando] to commit the charged offenses," Ford told the justices. "Once [he] made contact, they teased, cajoled, delayed, sent him a provocative photo of what he was 'going to get,' assured him that he was not being 'set up,' and, after seven months, managed to convince him to meet with 'Jessie.' . . . A normal, otherwise law-abiding person of [Villapando's] age and character in these circumstances might well be enticed to commit these offenses."
Ford unraveled another major issue in the case: About six weeks before Villapando—a graduate of Brea Olinda High School—finally agreed to meet his date, police detectives changed the MySpace account for their fake girl to indicate her mood was "adventurous" and her age was 17. They weren't being underhanded. They altered the age in a successful effort to lure a different suspect, an Army deserter from Texas, but the cops didn't anticipate the potential excuse the move handed Villapando, who testified in his trial that he saw the older age listed online and, given all the circumstances, didn't believe the girl was actually 13.
Furthermore, according to Ford, Scarbrough cheated by failing to inform the defense of the age switch before Villapando's trial, a fact he deemed "exculpatory" for the defense. He called the prosecutor's move an "ambush" of the defense and "the type of gamesmanship" pretrial discovery is designed to prevent. "Here, the withheld evidence went to the heart of the defense," wrote the appellate attorney.
Deputy Attorney General Sharon L. Rhodes told the justices that Ford's complaint was "meritless" and reminded them that Villapando hadn't ceased sex talk with the decoy despite repeatedly being advised she was a minor. Rhodes also noted another piece of incriminating evidence police claimed was obtained. When asked by detectives if he knew why he'd been arrested, the defendant allegedly replied, "Yes, because I came here to meet a 13-year-old girl."
In the Deputy AG's mind, Villapando should blame himself for his troubles because he "could have simply ignored the [decoy's first] email, like the 85 or 90 others who initially responded to the Craigslist ad." By driving to meet the decoy for a prearranged sex date, he undoubtedly violated the law, according to Rhodes. She also deemed any potential law-enforcement errors "harmless."
In deciding the case, the appellate justices didn't consider whether Scarbrough violated discovery rules because they sided with Ford on his other complaints. "The circumstances constitute substantial evidence that would support a finding the police conduct went beyond simply creating the opportunity for Villapando to act unlawfully," they determined. "The record supports the finding that the intent to commit the charged offenses, by seeking out a 13-year-old girl, originated in the mind of the police officers involved in the investigation, not in Villapando's mind. In the course of seeking consensual sex with a woman in an adult forum, [the defendant] was arguably induced by the police to pursue the fictional 13-year-old Jessie, as they appealed to Villapando's sexual fantasies and urged him to continue the exchange of communications and meet for sex."
While careful to not declare that Caouette and Smith engaged in entrapment—that's to be determined only by a future jury—the justices also ridiculed Judge Prickett for failing to give Villapando's original jury the option of considering entrapment as a defense. They wrote that a "reasonable jury could have found that the police conduct here was likely to induce a normally law-abiding person to commit some or all of the charged crimes." Lastly, they ordered a new trial.
For Ford, who is also the publisher of the California Criminal Law Reporter, the justices made the right call.
"Creating a crime, then 'solving' it in this manner may be a relatively easy means by which to make arrests," he argued. "But crime prevention cannot be prefaced with crime creation [by police]."