FOOTNOTES (back)
1/ In the 23 years I have practiced law, I have successfully had granted by courts over a dozen Writs of Error Coram Nobis on cases where defendants pled to conduct that was not a crime. Many of these persons were represented by counsel and these found themselves defendants in lawsuits for malpractice. 2/ This is similar to but different from entrapment. Although I always get an entrapment instruction on a decoy arrest (not without a fight usually), this defense based on Element 3 of CALJIC 16.400 requires far less police affirmative conduct. It only needs to be conduct which leads the defendant to the reasonable conclusion that far from being offended by sexual conduct, the decoy is looking for it. 3/ If you ever get a police report where the officer admits to "foot tapping" inside a rest room stall, call me immediately. Foot tapping is a common signal whereby a person inside a restroom stall communicates to a person in an adjacent stall that he is there for a sexual encounter. I have in my possession a written (but unpublished) opinion from the Appellate Department of the Superior Court, Orange County no less, that reversed a jury conviction where the decoy cop admitted to foot tapping to entice the defendant to masturbate through a "glory hole" between the two stalls.	4/ He also may have been arrested for a violation of PC 314.1, indecent exposure and/or 243.4(d)(1), sexual battery.  These require special care because they contain the potential for sex registration pursuant to PC 290, which PC 647(a) and (d) do not. 290 registration for PC 314.1 is completely inappropriate for arrests made by decoys (See In Re Reed, (1983) 33 Cal.3d 914, In Re King, (1984) 157 Cal.App.3d 554, and People v. King, (1996) 16 Cal. App. 4th 557) and may be reversible error to impose it. Registration for sexual battery (where the decoy is inviting the grope) is also inappropriate, but is not so clearly error. 5/ I win approximately one third of these "Murguia" motions.  However, even those that are lost, uncover such damning evidence of prejudice and questionable law enforcement practices that many jurisdictions have abandoned decoy operations even after successfully defeating a Murguia Motion.  The best example of this is the Fresno Police who have not conducted such a sting operation in three years following a Murguia Motion I filed.  Although it was ultimately defeated on  procedural grounds, the client was ultimately acquitted by Judge Gene M. Gomes (now on the Court of Appeal) in a court trial based on the police report.  Judge Gomes also found my client factually innocent pursuant to PC 851.8 so that he may resume his teaching career.	6/ An immediate visit to the site of the arrest, camera in hand, is always important. Doors may be removed, bushes may be trimmed or cut, a thicket may lose its leaves in the Winter, all of which may mean that a setting which made it very unlikely that a member of the public would be offended by the conduct does not now provide such assurances. 7/ This was the alleged fact situation in the Fresno case I court tried before Judge Gomes, who correctly ruled that a solicitation to engage in oral sex to be performed inside a nearby toilet stall was a legal solicitation. 8/ The Superior Court in Modesto, Stanislaus County, granted a demurrer with this fact situation.