People v. Moran , 1 Cal. 3d 755 ( 1970 )

TRAYNOR, C. J.

I dissent.

The trial court instructed the jury that “[i]f the intent to commit the crime did not originate with the defendant and he was not carrying out his own criminal purpose, but the crime was suggested by another person for the purpose of entrapping and causing the arrest of the defendant, then the defendant is not criminally liable for the acts so committed.” (CALJIC No. 851 (Revised).) The jury rejected the defense and found defendant guilty.

It is my opinion that the cases on which this instruction was based should be overruled (see notes 1 and 2, infra) and that the issue of entrapment should be determined by the trial court.

The theory of the defense of entrapment as it bears on the elements of the defense and the issue whether it presents a question for the court or jury sharply divided the United States Supreme Court on the two occasions it confronted these problems. The court held that entrapment goes to the guilt or innocence of the accused. According to its test, if the intent to commit the offense originated in the accused’s mind, entrapment cannot be established; if the intent originated in the mind of a law enforcement officer the defense is established. The issue is for the jury to decide. (Sherman v. United States (1958) 356 U.S. 369 [2 L.Ed.2d 848, 78 S.Ct. 819]; Sorrells v. United States (1932) 287 U.S. 435 [77 L.Ed. 413, 53 S.Ct. 210, 86 A.L.R. 249].) A minority of the Justices would permit the defense, not because the accused is innocent, but to protect the purity of government processes and to deter impermissible police conduct. In their view these policies, basic to the administration of justice, are for the court, not the jury, to enforce. (Sherman v. United States, supra, 356 U.S. 369, 378 [2 L.Ed.2d 848, 854, 78 S.Ct. 819] (Frankfurter, J. concurring); Sorrells v. United States, supra, 287 U.S. 435, 453 [77 L.Ed. 413, 423, 53 S.Ct. 210, 86 A.L.R. 249] (Roberts, J. concurring).)

In 1959 this court adopted the government policy and police conduct theory of the defense. “[0]ut of regard for its own dignity, and in the exercise of its power and the performance of its duty to formulate and apply proper standards for judicial enforcement of the criminal law, the court refuses to enable officers of the law to consummate illegal or unjust schemes designed to foster rather than prevent and detect crime.” (People v. Benford (1959) 53 Cal.2d 1, 9 [345 P.2d 928].) The court acknowleged that in the past California courts placed at least as much emphasis on the susceptibility of the defendant as on the propriety of the police methods (People v. Benford, supra, 53 Cal.2d 1, 9-10), but stated that now the court was primarily concerned with police conduct. (People v. Benford, supra, 53 Cal.2d 1, 13 ,fn. 5.) Nevertheless, decisions since Benford repeatedly have used the origin of intent test for entrapment¹ and have committed the issue to the jury.² In so doing they have departed from the rationale of the Benford case and seriously undermined the deterrent effect of the entrapment defense on impermissible police conduct.

Because the purpose of the defense is to control impermissible police conduct, “it is wholly irrelevant to ask if the ‘intention’ to commit the crime originated with the defendant or government officers, or if the criminal conduct was the product of ‘the creative activity’ of law-enforcement officials.” (Sherman v. United States, supra, 356 U.S. 369, 382 [2 L.Ed.2d 848, 856, 78 S.Ct. 819] (Frankfurter, J. concurring); Rotenberg, The Police Detection Practice of Encouragement (1963) 49 Va.L.Rev. 871, 892-893.) Instead, the court must concern itself with the activity it would seek to control. It must not lose sight of that purpose by focusing on the character and conduct of the accused. (See Remarks of Professor Paulsen, ALI Proceedings 1959, p. 228.)

Not all police conduct can be condemned, however, merely because it might tempt a person into crime. Criminal activity such as prostitution and traffic in narcotics normally does not bring complaints from its willing “victims.” To enforce laws against such activities, an officer often must become a seemingly willing participant in crime. (See Tiffany et al., Detection of Crime (1967) p. 209.) In so doing, however, he may not engage in methods that might induce persons to commit offenses who would not otherwise do so, thereby manufacturing rather than preventing crime.

The line must be drawn between methods likely to persuade those otherwise unwilling to commit an offense from methods likely to persuade only those who are ready to do so. If the purpose of the defense of entrapment is to be achieved, the test must be objective and focus only on the methods used. In the case of traffic in narcotics, law-abiding citizens would not ordinarily be seduced into becoming involved in such traffic by an officer’s offer to purchase them. Such an offer, however, is quite likely to lead to a sale when made to one prepared to sell. Accordingly, such an offer without more would not constitute entrapment. If in addition, however, the officer adopts methods of persuasion and inducement that create a substantial risk that a person other than one ready to commit the crime solicited will commit the crime, the defense of entrapment is established. (See Model Pen. Code, § 2.13(l)(b) (Proposed Official Draft 1962).)

The post-Benford cases following the rule that the defense of entrapment should be determined by the jury have not discussed the significance of that case to that rule, and neither the pre-Benford (see, e.g., People v. Gutierrez (1954) 128 Cal.App.2d 387, 390 [275 P.2d 65]) nor postBenford cases have given any explanation for the rule.

Under the rationale of the Benford case, submission of the issue to the jury cannot be justified on the ground that it goes to the defendant’s guilt or innocence. The crucial issue is whether the court or the jury can best achieve the purpose of the defense: the deterrence of impermissible police conduct. A jury verdict of guilty or not guilty tells the police nothing about the jury’s evaluation of the police conduct. A verdict of guilty may mean that the jury did not believe the defendant’s testimony that would have established entrapment. It may also mean that the jury did not believe that the conduct created a substantial risk of inducing one not ready to commit the offense into doing so. Since the defendant may assert entrapment and also deny that he committed the crime (People v. Perez (1965) 62 Cal.2d 769, 775-776 [44 Cal.Rptr. 326, 401 P.2d 934]), a “not guilty” verdict may also shed no light on the jury’s assessment of police conduct. Moreover, even when the verdict settles the issue of entrapment in the particular case, it “cannot give significant guidance for official conduct for the future. Only the court, through the gradual evolution of explicit standards in accumulated precedents, can do this with the degree of certainty that wise administration of criminal justice demands.” (Sherman v. United States, supra, 356 U.S. 369, 385 [2 L.Ed.2d 848, 858, 78 S.Ct. 819] (Frankfurter, J. concurring); accord, Model Pen. Code, § 2.13(2) (Proposed Official Draft 1962).) In other areas involving police conduct, we have recognized the paramount importance of committing the assessment of such_conduct to the court. Thus, the trial court, subject to appropriate appellate reviéw, determines the admissibility of confessions and other evidence claimed to have been illegally obtained. (People v. Gorg (1955) 45 Cal.2d 776, 780-781 [291 P.2d 469]; Pen. Code, § 1538.5, ubd. (c); Evid. Code, § 405; see Witkin, Cal. Evidence (2d ed. 1966) § 492, pp 462-463.) It should also determine the issue of entrapment.

Peters, J., and Tobriner, J., concurred.

1 People v. Francis (1969) 71 Cal.2d 66, 78 [75 Cal.Rptr. 199, 450 P.2d 591]; People v. Sweeney (1960) 55 Cal.2d 27, 49 [9 Cal.Rptr. 793, 357 P.2d 1049]; People v. Tambini (1969) 275 Cal.App.2d 757, 764 [80 Cal.Rptr. 179]; People v. Chatfield (1969) 272 Cal.App.2d 141, 148 [77 Cal.Rptr. 118]; People v. Dickerson (1969) 270 Cal.App.2d 352, 363 [75 Cal.Rptr. 828]; People v. Glaser (1968) 265 Cal.App.2d 849, 852 [71 Cal.Rptr. 706]; People v. Sweet (1967) 257 Cal.App.2d 167, 170 [65 Cal.Rptr. 31]; People v. Barone (1967) 250 Cal.App.2d 776, 781 [58 Cal.Rptr. 783]; Los Robles Motor Lodge, Inc. v. Department of Alcoholic Beverage Control (1966) 246 Cal.App.2d 198, 206 [54 Cal.Rptr. 547]; People v. Goree (1966) 240 Cal.App.2d 304, 311 [49 Cal.Rptr. 392]; People v. Hicks (1963) 222 Cal.App.2d 265, 270 [35 Cal.Rptr. 149]; People v. Tostado (1963) 217 Cal.App.2d 713, 719 [32 Cal.Rptr. 178]; People v. Hawkins (1962) 210 Cal.App.2d 669, 672 [27 Cal.Rptr. 144]; People v. Harris (1962) 210 Cal.App.2d 613, 616 [26 Cal.Rptr. 850]; People v. Head (1962) 208 Cal.App.2d 360, 366 [25 Cal.Rptr. 124]; People v. Cline (1962) 205 Cal.App.2d 309, 311 [22 Cal.Rptr. 916]; People v. Burnett (1962) 204 Cal.App.2d 453, 456 [22 Cal.Rptr. 320]; People v. Ortiz (1962) 200 Cal.App.2d 250, 258 [19 Cal.Rptr. 211]; People v. D’Agostino (1961) 190 Cal.App.2d 447, 463 [11 Cal.Rptr. 847]; People v. Valdez (1961) 188 Cal.App.2d 750, 759 [10 Cal.Rptr. 664]; People v. Rivers (1961) 188 Cal.App.2d 189, 192 [10 Cal.Rptr. 309]; People v. Buckman (1960) 186. Cal.App.2d 38, 51 [8 Cal.Rptr. 765]; People v. Haggard (1960) 181 Cal.App.2d 38, 44 [4 Cal.Rptr. 898]; People v. Serrano (1960) 180 Cal.App.2d 243, 248 [4 Cal.Rptr. 470]; see CALJIC No. 851 (Revised).

2 People v. Mason (1969) 276 Cal.App.2d 386, 388 [81 Cal.Rptr. 195]; People v. Walters (1968) 264 Cal.App.2d 834, 845 [70 Cal.Rptr. 766]; People v. Carter (1967) 251 Cal.App.2d 400, 404 [59 Cal.Rptr. 394]; People v. Hicks (1963) 222 Cal.App.2d 265, 270 [35 Cal.Rptr. 149]; People v. Hawkins (1962) 210 Cal.App.2d 669, 672 [27 Cal.Rptr. 144]; People v. Head (1962) 208 Cal.App.2d 360, 365 [25 Cal.Rptr. 124]; People v. Austin (1961) 198 Cal.App.2d 186, 189 [17 Cal.Rptr. 782]; People v. D’Agostino (1961) 190 Cal.App.2d 447, 462 [11 Cal.Rptr. 847].