## Facts

- John L. Bottger, living in Nevada, discussed with Morris Wade his relationship with Martha, a married woman in Fresno, and said Martha’s husband Billy was “in the way” and that he wished Billy were dead.
- Bottger offered Wade $5,000 to kill Billy, later increasing the offer to $20,000 to be paid from life-insurance proceeds (or other expected funds), and stated murder was preferable to divorce because it would yield greater financial benefit.
- Wade was a law-enforcement informant and contacted authorities; he introduced Bottger to Walt Kubas, a California Department of Justice agent, as someone who could carry out the killing.
- Bottger discussed the plan with Kubas, including what property might be taken from Billy’s home, and confirmed he would pay $20,000 after receiving anticipated proceeds.
- Bottger traveled with Wade and Kubas to Fresno, bought a map, wrote Billy’s address and directions, and showed Kubas the house.
- Bottger and Kubas discussed entry, killing Billy, and staging the scene as a burglary; Bottger signed a promissory note for $20,000 understood to refer to the killing.
- Bottger later failed to make a planned confirming call; when Kubas later told him Billy was dead, Bottger smiled and was arrested.
- A jury convicted Bottger of solicitation of murder under California Penal Code § 653f(b); he appealed on jury-instruction and entrapment grounds.

## Issues

1. Whether the trial court’s instructions misdefined solicitation under Penal Code § 653f(b) by omitting or misstating required elements, thereby reducing the prosecution’s burden.
2. Whether entrapment was established as a matter of law such that the trial court erred by instructing the jury on entrapment and submitting the issue to the jury.

## Decision

- The court affirmed the conviction for solicitation of murder.
- The court held the jury instructions, considered as a whole, adequately required (1) specific intent that the murder be committed and (2) a serious request that another commit it.
- The court held entrapment was properly submitted to the jury because the evidence did not compel a finding of entrapment as a matter of law.

## Legal Principles

- Solicitation of an enumerated felony under Penal Code § 653f(b) requires a specific intent that the solicited crime be committed and conduct amounting to a serious request (e.g., urging, advising, commanding, or otherwise requesting) that another commit the offense.
- When evaluating claimed instructional error, instructions are read as a whole; reversal requires a reasonable likelihood the jury applied the instruction in an impermissible manner.
- Entrapment is ordinarily a factual question for the jury; it becomes a legal issue for the court only when uncontradicted evidence shows law-enforcement conduct so improper that no reasonable jury could find the defendant was not entrapped.
- Where the criminal design originates with the defendant and law enforcement primarily provides an opportunity for commission, entrapment need not be found as a matter of law.

## Conclusion

The appellate court upheld Bottger’s solicitation-of-murder conviction, concluding the trial court’s nonpattern instructions sufficiently conveyed the statute’s intent and serious-request requirements and that the entrapment claim presented a jury issue because the plan originated with Bottger and police conduct did not compel an entrapment finding as a matter of law.


People v. Bottger, 142 Cal. App. 3d 974 (Cal. Ct. App. 1983)