People v. Ausborn CA5

Opinion

Filed 9/16/26 P. v. Ausborn CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F089887, F089888 Plaintiff and Respondent, (Super. Ct. Nos. PV003223A, v. BF199739A)

RANDY AUSBORN, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge. Jake E. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary and Hannah Janigian Chavez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Defendant Randy Ausborn was convicted of failing to register as a sex offender upon release from incarceration, and failing to register as a transient upon release from incarceration. On appeal, he contends the trial court erred by declining to instruct the jury on the defense of entrapment. We affirm. PROCEDURAL SUMMARY On April 23, 2025, the District Attorney of Kern County filed an amended information charging Ausborn with failure to register as a sex offender upon release from incarceration (Pen. Code, § 290.015, subd. (a);1 count 1); failing to register as a transient upon release from incarceration (§ 290.011, subd. (a); count 2); and failure to update registration annually (§ 290.012, subd. (a); count 3). Several circumstances in aggravation were alleged as to each count. It was further alleged that Ausborn had a prior serious or violent felony conviction (§§ 667, subds. (e)–(j), 1170.12, subds. (a)–(e)). Following the presentation of evidence at trial, the trial court granted Ausborn’s motion for acquittal (§ 1118.1) as to count 3. The jury found Ausborn guilty of counts 1 and 2. In a bifurcated proceeding, the trial court found true all aggravating factors and Ausborn’s prior felony conviction allegation. The trial court sentenced Ausborn to the low term of two years eight months on count 1. The sentence on count 2 was stayed under section 654. Ausborn filed a notice of appeal on May 23, 2025. FACTUAL SUMMARY The Prosecution Case Adriana Kramer, an agent for the Department of Corrections and Rehabilitation, supervised registered sex offenders who were released on parole. Kramer was Ausborn’s parole agent. Kramer testified that since Ausborn was in custody for longer than 30 days, he was required to update his registration within five working days. Ausborn did not 1 All further statutory references are to the Penal Code.

2. have a listed address and therefore he also had to register as transient within five days upon release. The custodian of records for the Bakersfield Police Department, Daniell Schaub, testified about the registration process. The registration process includes the offender calling the department and making an appointment, and the department uses the offender’s information to fill out the sex offender registration forms and update several online databases. The registration forms require updated information for registration including name, date of birth, address, and physical descriptors, and whether the offender is transient. Schaub testified offenders are made aware of the fact that they need to register: “Upon their initial intake, we go over each requirement and ask that they initial a stamp that says they understood and they didn’t have any questions.” Ausborn was released from custody on May 21, 2024. Ausborn had medical needs including the use of a wheelchair, and may have had intellectual disabilities. On May 23, 2024, Kramer located Ausborn and reminded him that he was required to register within five days of release from custody. Ausborn acknowledged he was required to register and told Kramer that he planned to register the next day. On May 30, 2024, Kramer confirmed with the Bakersfield Police Department that Ausborn had not registered. Ausborn did not attend his registration appointment scheduled on May 30 due to a medical reason. Ausborn wore a GPS monitor, and data from that device showed that Ausborn was in an area he usually frequented, but it did not show him at a healthcare facility or hospital at any point that day. Ausborn was arrested the next day, on May 31, 2024, for noncompliance with his duty to register. The Defense Case Ausborn testified in his own defense. When Ausborn was released on May 21, 2024, he was transient and used a wheelchair. Ausborn knew that after his release there were certain requirements he had to follow, including that he had to report to his parole agent within one day of being released to get the GPS monitor. 3. The following day, on May 22, Ausborn met with a different agent who put the GPS monitor on Ausborn’s leg. Kramer “tracked [Ausborn] down” the next day on May 23, and told Ausborn about his registration requirements. On May 24, Ausborn went to the Bakersfield Police Department, but was not allowed to register that day. Maryann King, who was an employee at the department, told Ausborn that he had to make an appointment. She set an appointment for May 30, 2024. On May 30, Ausborn felt sick. He was vomiting and his heart rate and blood pressure were “dropping down” to “low” levels. He was too sick to transport himself from his location to the Bakersfield Police Department building. He called Kramer, told her that he was not feeling well, and tried explaining his medical symptoms to her. He tried to “mak[e] some deal” with Kramer but she did not want to pay attention to Ausborn at that time regarding his medical problems. Ausborn then called King and asked her if he was going to “get in trouble” if he changed his registration, to which she responded “no.” Ausborn was given a new appointment date for June 4, 2024, at 8:30 a.m. Ausborn began feeling better later that same day, May 30, and did not seek medical attention.2 Ausborn believed his change of appointment was still in compliance with the registration requirements because he asked King if he would get in trouble and she stated “no” and explained that it was the Bakersfield Police Department, not the “state parole,” who “had jurisdiction over [his] registration.” Ausborn knew of his registration requirements, including that he had to register within five days of being released from custody, five days before or after his birthday, and every 30 days as transient. Ausborn did not believe his absence of registration was a 2 Ausborn also testified: “I ended up falling, and I didn’t remember how I even got there. Next thing I know, I woke up at [the] hospital and I didn’t know what happened.”

4. “mistake,” because he had to “abide by what [he] said” and “follow by what Ms. King had asked [him] to do.” DISCUSSION Ausborn contends the trial court erred by denying his request to instruct the jury on the defense of entrapment, and that such error violated his due process right to present a defense. The People contend the instruction was not warranted because insufficient evidence supported the defense. We agree with the People. A. Additional Background The trial court reviewed jury instructions at a hearing on April 22, 2025. The court stated it believed the defense of entrapment “[was] an appropriate instruction to give based upon [Ausborn]’s testimony that he was told by a representative of the police department that he could come back at a later time, and I’ll rely on [defense counsel] for you to prepare that particular instruction.” The following day, the trial court indicated that it would instruct with CALCRIM No. 3411 (mistake of law as a defense) instead of entrapment. Defense counsel objected, requesting that the court give the entrapment instruction because it “fit the circumstances of this case very well.” The court denied the instruction request, finding that the evidence in support of the law enforcement activity was not normally what would be considered entrapment. The trial court instructed the jury with CALCRIM No. 3411, as follows:

“The charges here require that the defendant acted with a specific and mental state. The act and specific mental state required are explained in the instruction for the—for the charged crimes.

“If you have a reasonable doubt about whether the defendant had the specific mental state required, you must find him not guilty of those crimes. The mental state required in all counts is that the defendant knew he had a duty to register within five days of his release from custody.”

5. B. Applicable Law and Standard of Review “The trial court was required to instruct the second jury on the defense of entrapment if, but only if, substantial evidence supported the defense.” (People v. Watson (2000) 22 Cal.4th 220, 222.) “In California, the test for entrapment focuses on the police conduct and is objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense.” (Id. at p. 223.) “For the purposes of this test, we presume that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect—for example, a decoy program—is therefore permissible; but 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.” (People v. Barraza (1979) 23 Cal.3d 675, 690 (Barraza).) In Barraza, our Supreme Court provided guidance in determining what constitutes impermissible police conduct. “First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established. An example of such conduct would be an appeal by the police that would induce such a person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose.” (Barraza, supra, 23 Cal.3d at p. 690.) “Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment. Such conduct would include, for example, a guarantee that the act is not illegal or the offense will go undetected, an offer of exorbitant consideration, or any similar enticement.” (Ibid., fn. omitted.) The Barraza court further noted that “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 6. 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 offense, the suspect’s response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission.” (Barraza, supra, 23 Cal.3d at p. 690.) “On appeal, we apply a de novo standard of review.” (People v. Manriquez (2005) 37 Cal.4th 547, 581; see People v. Waidla (2000) 22 Cal.4th 690, 733 [“Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that, we believe, is however predominantly legal” and should be examined without deference].) Even absent a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case. (People v. Brooks (2017) 3 Cal.5th 1, 73.) “[T]his duty to instruct extends to defenses ‘if it appears … the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ ” (Ibid.) C. Analysis Relying on the second principle in Barraza, Ausborn argues King’s assurance induced him to violate the laws requiring registration within five days. Contrary to Ausborn’s claim, the defense of entrapment is not supported by substantial evidence. An instruction on the defense of entrapment is not warranted every time law enforcement conduct gives rise to the occurrence of a criminal act. (See Barraza, supra, 23 Cal.3d at p. 690, fn. 4 [“There will be no entrapment, however, when the official conduct is found to have gone no further than necessary to assure the suspect that he is not being ‘set-up.’ ”]; Provigo Corp. v. Alcoholic Beverage Control Appeals Bd. (1994) 7 Cal.4th 561, 569 [“[T]he rule is clear that ‘ruses, stings, and decoys are permissible stratagems in the enforcement of criminal law, and they become invalid only when badgering or importuning takes place to an extent and degree that is likely to induce an otherwise law-abiding person to commit a crime.’ ”].) To warrant an 7. instruction, the conduct must involve pressuring through “overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.” (Barraza, at p. 690.) For the reasons we explain, the law enforcement conduct in question did not involve pressuring through overbearing conduct. The conduct assertedly giving rise to the instruction was King’s assurance that Ausborn would not get in trouble for rescheduling his registration appointment to a date beyond the five-day period. Absent from the record before us is any evidence suggesting that King’s assurance was part of a scheme designed to encourage Ausborn to violate his sex offender registration requirement. King did not seek out Ausborn. Instead, after he failed to reach a “deal” with Kramer, Ausborn called King and asked if he was going to get in trouble if he changed his registration. (Barraza, supra, 23 Cal.3d at pp. 690–691 [relevant circumstances of the case factoring include “the transactions preceding the offense, the suspect’s response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission”].) Although King stated that he would not get in trouble, and that assurance proved incorrect, this alone is insufficient to warrant an instruction on the entrapment defense. There was nothing in the record suggesting King coaxed or persuaded Ausborn not to attend his May 30 appointment. Her assurance that Ausborn would not get in trouble for rescheduling, even when combined with her explanation about jurisdiction, was not overbearing. Thus, even considering the evidence in a light most favorable to the defense, the record fails to provide substantial evidence warranting an instruction on entrapment. Ausborn highlights the guidance offered by the Barraza court. Barraza stated, “affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will … constitute entrapment,” including “a guarantee that the act is not illegal .…” (Barraza, supra, 23 Cal.3d at p. 690.) We are not persuaded. As noted by the high court, “[t]he Barraza language must be considered in its context.” (People v. Watson, supra, 22 Cal.4th at p. 223.) The affirmative police 8. conduct at issue in Barraza involved an undercover narcotics agent. (Barraza, at p. 680.) Of course, law enforcement schemes—such as “ ‘ “ruses, stings, and decoys” ’ ” (Watson, at p. 223)—reflect a degree of intent or design behind the affirmative police conduct. (See, e.g., People v. Perez (1965) 62 Cal.2d 769, 775 [“Entrapment is recognized as a defense because ‘the court refuses to enable officers of the law to consummate illegal or unjust schemes designed to foster rather than prevent and detect crime.’ ”].) But the record does not suggest King or the Bakersfield Police Department were engaged in such a scheme. In any event, the Watson court noted that the affirmative police conduct in question must still involve “ ‘pressur[ing] the suspect by overbearing conduct .…’ ” (Watson, at p. 223.) The record here fails to show that Ausborn was pressured by King or the Bakersfield Police Department. We do not read Barraza to mean that any assurance from an employee of a law enforcement agency will warrant an instruction on the defense of entrapment. We conclude the trial court properly denied Ausborn’s request for instruction on the defense of entrapment. Finding no error, we need not address Ausborn’s due process claim. DISPOSITION The judgment is affirmed.

HARRELL, J. WE CONCUR:

MEEHAN, Acting P. J.

GUERRA, J.

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