*1 19837. No. Mar. [Crim. 1979.] PEOPLE,
THE Plaintiff Respondent, BARRAZA, Defendant and ZAPATA
JULIAN Appellant.
Counsel Court, Turner, Arthur under
Paul. Supreme appointment by Defendant and Appellant. General, Jack R.
Evelle J. and Deukmejian, Younger George Attorneys General, Philibosian, S. Winkler Robert H. Chief Assistant Attorneys Moore, General, Asari, Frederick R. Clark Assistant Shunji Attorney Millar, Jr., Pounders, William S. Morrison- R. Theodora Randy Berger, Jr., General, Bruck and Edward for Plaintiff T. Fogel, Attorneys Deputy and Respondent.
Opinion
MOSK, J.We confront in this criminal two issues: (1) appeal separate i.e., a the effect of what be denominated mini-Allen a may charge, jury verdict, “If fail to a instruction case will be you agree upon declaring . . tried another test to be before proper applied defense entrapment. on
Defendant from his conviction two counts of heroin appeals selling Code, Saf. 11352). & The first count defendant with (Health § charged heroin to an undercover narcotics of the Los selling agent Angeles trial, Sheriff’s on 1975. At County agent Department August sold her testified defendant a balloon heroin for containing yellow Defendant, behalf, $25 of funds. in his own county-advanced testifying a different account of his with the interaction narcotics on that gave agent date, her a sale heroin had occurred. contradicting testimony II 11, 1975;
Count sale of second heroin both charged September the female and the defendant testified that the tried to contact agent agent defendant Golden State Mental Health Detoxification by telephoning Center, technician, where he worked as a care several times patient *6 the three weeks between the dates the two heroin sale during alleged transactions. On the succeeded in to September agent finally speaking and if defendant asked him he had defendant asked her to “anything”; to the come detoxification center. The two then met at the center and talked for some time—a few minutes to the more than according agent, an hour defendant’s account. by version this encounter described defendant as hesitant to agent’s “he had a lot of in
deal because done time and he couldn’t afford to jail to ... he had about he back and to be careful what was jail go doing.” after further testified that she convinced defendant she “wasn’t She a note, Stella, her a to to a woman named he which gave present cop,” a read: “Saw Give her agent]. [argot Cheryl pair pants [the heroin]. that she then concluded her Cal.” The testimony by stating agent [signed] Stella, defendant, herself to the dealer and the note to introduce left used heroin. an balloon containing orange purchased with of interaction different a somewhat
Defendant described pattern that he had asked He related 11th at their meeting. September agent her” wanted “fed with he was and see him because her to come up because he was he worked at the where him her to calling hospital quit he told her He insisted him to lose his during afraid she would cause job. more that he had did not have conversation that he their anything; spent at the detoxification now he had held a but than job years prison clean, and was and wanted was on methadone center for four years, in her that the him. He testified to agent persisted stop “bugging” agent heroin, more and that efforts to enlist his aid finally—after purchasing for a note to asked hour of conversation—when than an agent her to he to a note source of heroin introduce her “get agreed give defendant, he told the that . . back.” her off. agent According [his] read: know if Stella had her a note which he did not anything, gave them.” let tier have If have a “Saw Cheiyl. you pair pants, submitted to late After final the case was argument, the next afternoon, 6, 1976. The deliberating juiy began Thursday May and resumed continued its deliberations throughout day, morning, a.m., that it 9 a.m. At 10:45 juiy reported following Monday count but was deadlocked had reached a verdict on the second hopelessly the trial first count. on the by judge, Responding questions posed taken, the court that ttiree ballots had been foreman of advised juiy three, nine to no was made on the numerical was progress being split division, and there was no reasonable resolving possibility juiy then delivered the would arrive at a verdict on the first count. The judge following charge: I an am
“All ladies and going give you right, gentlemen jury, more or less This not to be taken as additional instruction. you any the rest. Just it with than other instruction. along regard important any *7 can, if a “It desirable that you reasonably you agree upon eminently one, involved, and its the case is an verdict. For important parties If fail to involved to both sides. to has you agree you expense presentation anottier selected verdict, will have to be tried before a the case jury upon were ctiosen. There source as and from the same in the same manner you be is no reason to believe that the case will ever submitted to a more jury it. to decide competent course,
“Of out to a you desirability your reaching by pointing verdict, not that the court is surrender suggesting any you you of what the truth is and of the effect conscientious convictions and weight does, however, It to call to of all the evidence. wish attention in your that, cannot and each most cases absolute be while certainty expected not must decide the case for you yourself merely acquiesce conclusion of fellow examine the should your jurors, you questions frankness, submitted to with candor and and with deference you proper to and It is for the of each other. after full regard opinions your duty, evidence, deliberation and of all consideration of the a agree upon verdict, if so can do without individual you violating judgment your conscience. your
“You be as as conscience dictates in further may leisurely good deliberation.
“I now ask that back and retire for further at this deliberation go you time.”
The then resumed their After deliberations. one hour jurors they returned to the courtroom defendant’s be requesting testimony reread in The its record was reread and the continued to entirety. jury deliberate until it returned at 2:20 verdicts of both with on p.m. guilty counts. The record does not if of that time disclose included period any for lunch.
I I issue defendant’s conviction count is the effect posed when it mini-Allen more charge given jury reported—after than one full it was deliberations—that deadlocked as day hopelessly to the first count.
Our recent Gainer Cal.3d 835 opinion 861, 566 P.2d 997], ruled the Allen or Cal.Rptr. impermissible “dynamite” instruction “blast” a verdict out of a charge, designed deadlocked we were confronted in Gainer with a full Allen jury. Although the more of a charge—including highly prejudicial portion consisting direct admonition to held that it was error minority jurors—we expressly *8 to that “the case must at time be decided.” for the be instructed some jury Gainer, that case at we said in “It is not true a criminal ‘must As simply of a is an inevitable time be decided.’ The some hung jury possibility with a our unanimous verdict Confronted requirement. by-product mistrial, the of the action. the retain to dismissal request authority People Code, Moreover, exercised, as the this 1385.) (Pen. § frequently option knows, the that its to bar when concludes criminal inability prosecution case. a stemmed from deficiencies in its Thus obtain conviction a well stand as the final word on inconclusive may judgment hung jury of a that “an which the issue defendant’s We concluded instruction guilt.” a in that will result a retrial misstates the law implies hung jury assuredly .” . . . (Fn. omitted.) (Id.,
We made our in Gainer retroactive to all not cases expressly holding as of the final date of that it is therefore clear that the trial opinion; judge herein erred in “If that fail to a instructing you jury agree upon verdict, the case will be tried before another . . . .” We now must determine whether such error reversal of defendant’s conviction requires on count I.
The General contends that defendant in the Attorney acquiesced of the erroneous instruction because the court informed the giving defense, “I and the am to the Allen blockbuster- prosecution going give I instruction and see if can them off the dime.” court then type get there asked if was to that and counsel “No. defense any objection replied: It Whatever Your Honor feels. is immaterial me.” It is to claimed was thus erroneous instruction invited defense not be may the conviction. asserted reverse Graham 71 Cal.2d
In Cal.Rptr. in an we effect of an P.2d considered 153], express acquiescence “In the of a clear tactical instruction and concluded: absence erroneous of the ‘invited and commentators eschew a courts finding purpose, full and a trial from correct error’ excuses rendering judge . if of law. . . defense material instructions questions Accordingly, accedes counsel or erroneous instruction because suggests error’; do not if counsel or mistake we find ‘invited only neglect expresses or an tactical a deliberate resisting, purpose suggesting, acceding instruction, do we deem it to the trial court’s to instruct nullify obligation cause.” We noted in added.) (Italics particular legislative set forth in section 1259—and in section 1469—of command repeated Code “instructions which affect the substantial Penal rights *9 684 review, counsel,
defendant should be to even his subject though through mistake, or has failed to to them.” at 319- (Graham, neglect object pp. We have reaffirmed our 320.) in Graham. (See subsequently holding 379, 1 379, v. Mosher Cal.3d 393 (1969) 461 P.2d People Cal.Rptr. [82 82, v. 58, Tidwell 3 Cal.3d 473 659]; (1970) P.2d Cal.Rptr. 762].)
The record herein does not in reflect a tactical decision. any way remark, Defense me,” counsel’s “It is immaterial to suggests, that the mistake, derived from or inatten- contrary, acquiescence neglect, tion rather than from a deliberate tactical choice. It is evident that the conscious choice Graham was not thus the required by expressed; General’s claim of invited error must be Attorney rejected. further that the of the General maintains Attorney giving Gainer, herein In we
mini-Allen was harmless error. discussed charge effect of that “the case will prejudicial erroneously instructing jury have to be retried.” we declined se rule of Although adopt per reversal, we cautioned that courts must remain cognizant “signifi cant that the verdict will be influenced a false belief that a danger by will mistrial result in a retrial” when “all the necessarily examining under circumstances which the was to determine whether it charge given was that a result more favorable to the defendant reasonably probable would have been reached in the absence of the error. (See People 836 . . . Watson Cal.2d 19 Cal.3d at (1956) .)” (Gainer, 855.) p. elucidated' We further of this standard proper application that “when the statement is the central feature of instructions declaring met, to a deadlocked such standard would be as given jury” “presumably there would be little to indicate that for heightened potential had not been realized.” fn. (Id., prejudice herein was the central The mini-Allen instruction erroneously given feature of instructions a deadlocked and thus involves given jury Indeed, we in Gainer. heightened potential prejudice recognized himself voiced the that the instruc- expectation “blockbuster-type judge them tion” would off the dime.” We therefore must find error “get unless there are affirmative indications that us this prejudicial persuade not was realized. heightened potential
Such indications are in the fact that the arguably present continued deliberate for two or three hours after it heard the mini-Allen the deliberations were (2) demonstrated charge, it the trial when evidence adduced on the during focused properly however, cannot, We be reread. *10 testimony portions requested to factors suffice prejudice that these presumption conclude dispel at erroneous instruction is a deadlocked when given created jury issue. deliberations after evinced a division of
The had long opinion; jury ballots, found themselves three hopelessly separate jurors set in a nine-to-three apparently deadlocked Though jurors split. to after as about their task as being urged pursue conscientiously possible with misinforma- deliberations, that task infected their they approached influence on the a have exerted tion that could significant very likely the substantial We cannot discount outcome of the deliberative process. that “since some the erroneous to decide caused by perception pressure other, later, or the and since sooner or must decide this case one way jury, be, we we’re as to do so as future is may likely well-equipped any jury as well finish the task we’ve begun.” further is
The influence of such misinformation compounded pervasive here, involved in a when, to the as refers trying charge expense jury We case. observed in inconve Gainer that reference to the expense nience of a retrial or is irrelevant defendant’s to the issue of a guilt fn. That 16.) innocence and is thus (Gainer, impermissible. retrial is
reference here did not link the notion of to a expense prospective immaterial, be inferred for the link is obvious and will by naturally It not much the irrelevance once the is introduced. is so jurors subject however, a reference that as the additional
such pressure troubling, have an decide thus created. Consideration of incalculably “may expense costs effect on concerned about coercive spiraling jurors reasonably Recent Problems and The Allen (Note, Recurring Charge: government.” reference 47 N.Y.U. L.Rev. improper Developments substantial, subtle, if herein thus pressure augments expense retrial. the need for created instructions concerning improper direct not constitute a these erroneous instructions may Although much the have for all admonition purposes minority, they practical effect, in tandem. when same particularly given were herein erroneous instructions therefore hold that the
We given Gainer, and defendant’s set forth under the standards prejudicial I on count must be reversed. conviction
II Defendant that his conviction on the second count must be urges reversed because the trial court erred in to instruct the sua failing on the defense His contention that we sponte entrapment. requires reexamine the doctrine to determine the manner in which the entrapment must be defense raised. United the courts of almost States every
Though long recognized by the defense of has schism jurisdiction,1 produced deep *11 theoretical basis and mode of The its concerning proper application. in a series of United States views have been delineated opposing the Court decisions. The court first considered entrapment Supreme 413, 435 L.Ed. 53 287 U.S. defense in Sorrells v. United States (1932) [77 tended to S.Ct. 86 A.L.R. held that entrapment majority 249]. innocence, the criminal establish that reasoning Congress enacting otherwise there at issue could not have intended to statute persons punish conduct innocent who were lured into the committing proscribed by on whether were “otherwise This focus governmental instigation. persons led the what has become known as the innocent” majority adopt subjective or test under which is established origin-of-intent entrapment the if and inducement bounds (1) only governmental instigation overstep of and the defendant did not harbor a (2) permissibility, preexisting criminal intent. Under the test a that the defendant was subjective finding to commit the offense would innocence therefore predisposed negate defeat the defense. because was viewed as Finally, entrapment bearing accused, the or innocence of the the deemed issue was for guilt proper submission to the jury. wrote an
Justice Roberts eloquent concurring opinion, joined by Stone, in which he that the of the Justices Brandéis and argued purpose He is to deter misconduct. defense emphatically entrapment conduct or had the notion that defendant’s predisposition rejected is that courts must be closed to relevance: “The any applicable principle No crime own other the trial of a agents. instigated by government’s issue, no of as between the official comparison equities guilty Eve, 1The have when defense first been asserted who appears complained, with “The fruit of the tree of of and evil: eating knowledge charged good serpent me, (Genesis 3:13.) and I did eat.” Eve unsuccessful asserting was beguiled defense, Though her because the it has been that the defense was unavailable suggested (Groot, was not an of the The Serpent party agent punishing authority. entrapping (Without Scienter) I Did Eat—Denial Crime and Entrapment Me and Beguiled 1973 U. Ill.L.F. Defense,
687 of this defendant, in the enforcement has overruling any place guilty (Id., Because at 459 L.Ed. at 426].) p. p. policy.” [77 principle public as the law enforcement viewed deterrence of he activity impermissible defense, Roberts concluded Justice rationale for entrapment proper “It is the the defense was consideration: inappropriate and the and of the court alone to itself protect province-of-the-court at from such criminal law.” (Id., p. government prostitution [77 at L.Ed. 425].) p.
In Sherman v.
The United Court States reviewed the theoretical Supreme recently of the in 411 basis defense United States v. Russell (1973) entrapment 366, 423 U.S. L.Ed.2d 93 S.Ct. and once the court 1637], again split [36 five votes to four in to overrule the in declining subjective theoiy adopted Sorrells.
688
in California
principle currently applied
represents
_Jhyhrid
elements of
both
of
theories
posiffarviusing
subjective
objective
1,
v.
In
53
9
(1959) Cal.2d
P.2d
this
928],
entrapment.
People
[345
Benford
court
embraced the
that
rationale
unanimously
public policy/deterrence
Justices Roberts and
had
so,
Frankfurter
so
In
persuasively urged.
doing
we ruled inadmissible on the issue of
the most
entrapment
prejudicial
i.e.,
are allowed
under
evidence that
inquiries
subjective theory,
the defendant “had
committed similar crimes or had the
previously
in the
commission
such
or
crimes
was
reputation
being engaged
(Id,
of criminal
. . .”
activities .
at
In
II.)2
suspected by
police
p.
v.
356,
Board Medical Examiners
9 Cal.3d
(1973)
363-364
Patty
[107
473, 508 P.2d
we reiterated the
1121],
basis
Cal.Rptr.
policy
public
defense,
it as “crucial to the fair administration of
characterizing
justice.”
(Id.,
however,
at
the lessons
this
Despite
Patty,
Benford
court has continued to maintain that
where the
entrapment J^psnds upon
the crime
v.
(1960)
(See,
intenOcuximmit
originated.
e.g., People
Sweeney
793,
27,
55
49
357
Cal.2d
P.2d
v.
(1969)
Francis
1049];
Cal.Rptr.
People
[9
66,
199,
78
450
Cal.2d
P.2d
Moran
591];
[75 Cal.Rptr.
Cal.3d
689 allowed in S the federal subjective predisposition jurisdictions following ' the, rule, our more limited focus on character and intent of the accused is still Dur courts their task of misplaced anxTTmpairs assuring lawfulness of law enforcement activity.
Commentators on the
have
favored
subject
overwhelmingly
judicial
decision of the issue
of a test which looks
by application
only
nature and extent of
in the criminal
(See,
activity
enterprise.
e.g.,
Scott,
LaFave &
Handbook on
371-373;
Criminal Law (1972) pp.
authorities cited in State v.
375,
Mullen
216
(Iowa 1974)
381;
N.W.2d
Park,
authorities cited in
60 Minn.
Entrapment
(1976)
Controversy
163, 167,
L.Rev.
13.)
fn.
Professor Kamisar observed that
law
two
only
review
in the
articles
25
have favored the
past
years
test.
subjective
al.,
et
(Kamisar
Modern Criminal Procedure
ed. 1978
(4th
119.)
Supp.) p.
The Model Penal Code has
an
Pen.
(Model
Code
adopted
ohjectiwe-test
Official Draft 1962) 2.13(1); see also Nat.
§
Com. on
(Proposed
Reform
Laws,
of Fed. Crim.
Final
New Fed. Crim. Code (1971)
Rep.—Proposed
and in
702(2)),
recent
§
several state courts
(see Grossman
State
years
226;
(Alaska 1969)
P.2d
v. Turner
entrapment following:3 _ enforcement to induce a to agent likely normally law-abiding person 3The (Nat. of this test is from the wording derived new federal criminal code proposed Laws, of Com. Reform Fed. Crim. Final New Fed. Crim. Code Rep.—Proposed (1971) 702(2)) § and Chief Justice Traynor’s v. Moran dissenting opinion 1 Cal.3d 765. supra, test, of
commit the offense? For the this we that such a purposes presume would the commit a crime resist to person normally temptation presented that the to act Official conduct does no unlawfully. by simple opportunity offer that more than a example, decoy opportunity suspect—for therefore but it for the is police program—is permissible; impermissible conduct as or their to the such by overbearing agents pressure suspect or affirmative acts to other likely badgering, cajoling, importuning, to commit the crime. induce a normally law-abiding person the of what determination conduct is Although impermissi police basis, to on an ble must extent ad hoc will guidance some proceed of be found the one or both of two generally application principles. First, if the actions of the law enforcement would in a generate agent motive for than a the crime other normally law-abiding person ordinary intent, will be An of such established. criminal example would be an the conduct that would induce such a police appeal to commit the of a act because or instead of person friendship sympathy, Second, desire for or other criminal personal gain typical purpose. affirmative that would of the crime conduct make commission police attractive a will likewise unusually normally law-abiding person include, Such conduct for constitute would entrapment. example, undetected, that the act not or the will an offense guarantee illegal go consideration, offer of exorbitant or similar enticement.4 any on the conduct of while must focus Finally, inquiry primarily vacuum; in a conduct is be viewed enforcement that not to the law agent, on a the effect it have also be would it should normally judged by the case at hand. in thé situated circumstances law-abiding person for this that be relevant circumstances may purpose, Among offense, are transactions suspect’s preceding example, officer, crime, to the inducements of the gravity response of its Grossman v. (See instances commission. the difficulty detecting reiterate, however, 457 P.2d We 1969) State (Alaska supra, as the character of his under this test such matters suspect, however, is found to have when official conduct gone 4There will be no entrapment, “set he is not being up.” further than to assure necessary suspect no reasonable, restrained, the confidence of to gain suspects. remain free to take though steps indeed, enforcement; in the case of law rule would hamper many A contrary unduly crimes, the most only it would tend limit convictions “victimless” the so-called offenders. gullible *15 offense, intent are commit and his subjective predisposition to. irrelevant.5 case the trial court erred in
On record of this failing the defense of Defendant was instruct the sua on sponte entrapment.6 under set to such an the standards forth in v. entitled instruction People 1, 10 Cal.3d 715-716 518 P.2d in (1974) 913], Sedeno Cal.Rptr. [112 made clear to instruct arises when there which we that a sua duty sponte of a not substantial evidence defense that is inconsistent with supportive the defendant’s of the case. theory controverted there is substantial evidence
Though by People, defense, herein of an under the even supportive entrapment subjective test followed. believed, Defendant’s if tends to previously testimony, who, establish he was a after man of addiction long history drug behavior, and criminal was a sincere effort to control of his making gain to function life and in his He had held a responsibly community. steady for some four which time he to become job years, during managed free of methadone heroin use in a mainte- completely by participating nance His characterization of the of conduct course between program. himself and undercover narcotics is consistent with his agent contention that he was a offender to reform past trying desperately himself but was from an so overzealous law prevented doing enforcement who him until his resistance agent importuned relentlessly was worn down and overcome.
Further, such a not defense is inconsistent with the defendant’s theoiy the second count. His defense of denial not did extend to the act note with a to facilitate her inculpatory alleged—providing agent heroin transaction with another—but to the intent with purchase only act was which such committed. He he claimed did not intend to only in a heroin he sale when with the note. He participate provided agent not subvert intent, does his in “and position arguing, irrespective my the overzealous law enforcement conduct directed at me constitutes court, Chief Justice made it clear for this without Traynor entrapment.” the test 5Because we herein is to deter entrapment adopt designed primarily conduct, defendant, it will be applicable, impermissible except present only have not trials that time this final. yet decision becomes begun 6In view its substantial effect on the potentially issue guilt, defense of However, remains a entrapment under the new jury question test. for the reasons stated Chief Justice by Cal.3d Traynor (1970) his v. dissenting opinion Moran supra, Mosk, Tobriner, three (Justices 765-766. members of this court Newman) are of view that claims of should be for the trial exclusively courts to decide (See subject appropriate review. also appellate People D’Angelo Mich. 167 655].) N.W.2d *16 692 326, 769, 775 401 62 Cal.2d in v. Perez (1965)
dissent Cal.Rptr. [44 People commission admit his or even need not that a defendant P.2d 934], guilt, act, a defenue of of the to raise entrapment. of was not this case the issue
In the circumstances the other instructions. under to the Accordingly, submitted any on this defense was instruct sua error in sponte court’s failing II count must be set aside. (Cf. the conviction People and prejudicial, 703, 720-721.)7 10 Cal.3d (1974) Sedeno supra, is reversed. The judgment J., Manuel, J., Newman, Tobriner, J., and concurred. J.,
Bird, C. in RICHARDSON, J., and I concur Concurring Dissenting. which holds that defendant’s conviction opinion majority’s portion I reversed because of “mini-Allen” should be on count prejudicial instruction given jury. erroneously however, of the dissent, from that majority’s
I
portion
respectfully
for the defense of
a new test
establishes
entrapment.
which
opinion
concedes,
the existence of an
theAs
determining
entrap-
majority
Court has
ment,
United States
consistently
rejected
Supreme
test which
majority adopts
person”)
(“hypothetical
“objective”
In
v. United
intent”)
test.
Sorrells
of the
(“origin
favor
“subjective”
210,
413,
86
53 S.Ct.
A.L.R. 249],
L.Ed.
435
287 U.S.
(1932)
States
[77
848,
L.Ed.2d
78 S.Ct.
contention
441, 455,
(1972) 6 Cal.3d
(See
v. Beagle
viewed with caution.
should be
admissions
].)
The that in the the is fallacy underlying majority’s real world of criminal conduct there are no To very hypothetical people. in a futile and conduct in vacuum is to attempt judge engage police It the fact exercise semantics. is this meaningless recognition precise that has restrained the United States Court from the discarding Supreme test attention is at the defendant subjective whereby pointed particular rather than at some or fictitious imaginary majority person. abandons the actual the It substitutes the unreal hypothetical. thereby real, for the with result unnecessary complications inevitably therefrom.
Further, test, an does not by adopting “objective” majority really eliminate test. Even if the makes a adverse “subjective” jury finding to the defendant test, to the defendant still pursuant “objective” may standard presumably argue entrapment jury using “subjective” intent. The of what the intended defendant is negate question always Indeed, relevant. in the case defendant admitted commission of present act. He denied intent. The only requisite entirely majority ignores this of the double assertion of defense. problem entrapment matter,
The issue of is a factual the determination of which of critical to both" effect importance parties. Regardless any salutary a trial administration, which court have opinion might matter is entrusted to the and should remain within its properly province. II as to count should be affirmed.
The judgment CLARK, J., this The most question presented by Dissenting. significant whether this court should case is adopt “hypothetical-person” test of (“objective”) entrapment. states, California, other now in all but seven of the
The test applied in the standard. federal courts is (“subjective”) “origin-of-intent” *18 focuses, the the This test of guilt particular quite properly, upon defendant, he the whether was to commit crime asking predisposed If he at and to commit the offense was ready willing charged. any the then defense fails even if the favorable opportunity, entrapment an inducement. used persuasive police unduly defendant is irrelevant under the The guilt particular It instead the conduct of the test. focuses upon hypothetical-person a If the use an inducement to cause likely hypothetical police police. then the that the to the crime fact commit particular charged, person to commit it does not defeat the was and defendant willing ready test is defense. The evil of the apparent hypothetical-person —it leads to are in fact who By focusing acquittal persons guilty. it creates a risk than the defendant’s conduct rather predisposition, chronic offenders. acquitting dangerous the facts of case. The evidence
That risk is illustrated this strikingly that defendant is one of the most would the conclusion cynical support criminal that he the abused justice system imaginable, manipulators the trust in him as an of a detoxification drug placed employee program worked, he to heroin with whom sell to patients nullifying chances of success and countless thousands of slight wasting program’s dollars, tax that he refused to sell heroin to initially deputy solely that, officer, was because he she an undercover before suspected wife, to make the sale his he immunize sought finally agreeing through he now relies into the conduct himself upon by “entrapping” deputy If the takes this view of the basis of defense. factfinder as his entrapment evidence, have conduct would induced but also concludes officer’s offense, free. commit the defendant goes hypothetical person “it Justice Holmes’ observation that The majority by quoting respond than that the Government less that criminals should is a .evil some escape 2, 688, v. fn. Olmstead (Ante, an should quoting play part.” ignoble 564, 944, 953, 438, L.Ed. 48 S.Ct. 66 277 U.S. 470 States (1928) United [72 Holmes, J., that is a With deference Justice (Holmes, dis.).) A.L.R. 376] choose between not that must It is true false society dichotomy. simply
695 criminals and official misconduct. Take the case in freeing tolerating which an officer uses an inducement but the defendant unduly persuasive to commit the crime favorable ready willing any opportunity. can and should insist both criminal’s convicted Society upon being and the officer’s To officer assume will be not being disciplined. is but another instance of the “curious disciplined majority’s cynicism the rule of our law in which I have elsewhere decried. concerning society” (See, 67, 22 Cook Cal.3d e.g., (1978) Cal.Rptr. [148 J., P.2d (Clark, dis.).) 130] United States Court who have minority justices Supreme
advocated the test have its hypothetical-person argued adoption would increase for the criminal public (See, respect justice system. e.g., 848, 855, Sherman v. United States 356 U.S. 380 L.Ed.2d J., However, S.Ct. (Frankfurter, conc.).) hypothetical-person 819] *19 is, is no to achieve this approach way respect. understandably, public not offended of a conviction defendant a reasonable by found—beyond doubt and vote of 12 unanimous citizens—:to have been and by ready to commit the the crime But will be offended willing charged. public by the of an defense that and seeks adoption ignores culpability to control conduct of criminals. As Justice acquittal by professional Macklin has observed: “Each time the is criminal Fleming process thwarted a that does not bear on the innocence or of by technicality guilt accused, the we the abroad notion of and each a time trumpet injustice; released, is some is done person .patently guilty damage general sense of The Price of Perfect The Adverse Justice: justice.” (Fleming, of Current Doctrine on the American Courtroom Consequences Legal Witkin, Bernard E. the foremost commentator beyond question law, California the same sentiment when he addressed expressed recently himself to the historic contribution of the United States Court Supreme when Earl Warren was Chief Justice. His was during period subject “ altruism, ‘The Second Noble of the conceived in Experiment Century’ dedicated to the and that technical forms of criminal principle procedure more are than the of substance or innocence of important guilt accused.” What Mr. of but Witkin has to is attention say always worthy his remarks on this are this occasion because particularly noteworthy to see court itself as of the flame that otherwise appears might keeper have died with the of the era. (See, Warren e.g., passing 252-254 (1978) Cal.3d P.2d Pettingill Cal.Rptr. 108] J., (Clark, dis.).) there is a admission: That with a and rising
“We tragic simple begin for crime. of conviction and rate rate of crime and punishment falling that the told bitter critics we agency And are responsible frequently with have become concerned the Courts increasingly judiciary; lost of the and have of criminal barren technicalities sight procedure, be Now none us needs to criminal law. of the objective [H] primary not for the of criminal exists that a reminded justice just system and that but for the of the innocent guilty; punishment protection murderer, and conviction consistent only by apprehension . . arsonist, and other. drug-peddler, predators rapist, burglar, of our itself in can the that infest our justify eyes system society, if, have us as these critics would trouble We are therefore deep people. are law believe, federal courts of our state and frustrating the judges arrest, restrictions .on burdensome production enforcement by placing evidence, and trials.”
After it that he these with clear considers criticisms making justified court, I “The the Warren Witkin concludes cases by saying: regard discussed, others, have the weird and wonderful demonstrate many the Warren era for the solicitude of thin of our court of majorities highest confident, with a full criminal. nonprofessional Serenely professional steam, court found new and head grounds exciting upon repeatedly crimes on records which the convictions for which reverse major *20 scholars and And the nation’s established legal overwhelmingly guilt. reviews, with law students in school us praise deluged extravagant writing decisions, to them—in most for these what surely referring ever, made—as decisions misclassification establishing preposterous civil liberties.” The Second Noble (Witkin, Experiment protecting 42-45.) Twentieth Prosecutor’s Brief 1977) Century (Sept.-Nov. Court, it refused to take the else one Whatever Warren may say Indeed, take United court Sherman of this today. majority step Chief States, 853-854], 376-378 L.Ed.2d 356 U.S. supra, which the court wrote Warren himself Justice majority opinion test. With its adherence to reconsider declined origin-of-intent irrelevant. mentor in outdoes its decision this court guilt rendering today’s be affirmed. should judgment Clark, 19, 1979. was denied for a April rehearing Respondent’s petition should be J., Richardson, J., were of the petition opinion granted.