Martinez

I respectfully dissent.

I

The majority concludes that, “as presently phrased, the CALJIC instructions on entrapment do not accurately reflect the actual holding of [People v. Barraza (1979) 23 Cal.3d 675 ( 153 Cal.Rptr. 459 , 591 P.2d 947 )] on which they are based,’’ and proceeds to state “[w]hat obviously was intended by our high court” in that decision.

By so holding, the majority validates appellant’s challenges both to the CALJIC instructions, which are taken verbatim from Barraza , and the language of Barraza itself.

There is little indication in Barraza that the court did not intend its “normally law-abiding person” language to be incorporated into jury instructions. To the contrary, that standard was used more than once in the opinion and was, in fact, emphasized by the court. While it may be true, as appellant protests, that “a court opinion is not an instruction to a jury” (Hansford v. United States (D.C.Cir. 1962) 303 F.2d 219, 222 ), CALJIC Nos. 460, 4.61, 4.61.5, given by the trial court, faithfully adhere to the Barraza test. I would accordingly hold that the CALJIC instruction on entrapment given by the trial court did not misstate the law of entrapment as…

*662 Opinion

Appellant was convicted after jury trial of two counts of sale of cocaine (Health & Saf. Code, § 11352). He has never contested his involvement in the sales, but instead relied at trial solely upon an entrapment defense. On appeal he challenges the instructions on entrapment given by the trial court.

According to the record, on July 7, 1980, Sergeant Charles Prandi of the Marin County Sheriff’s office contacted Ruth Harlan, a known prostitute, who indicated that appellant might sell drugs. At the time, Harlan was not under investigation for or charged with any criminal offense, and while Prandi had communicated previously with Harlan, the record does not indicate why he contacted her on this occasion, or why she mentioned appellant’s name to the officer, 1 or whether Martinez was a suspect in an ongoing investigation. A prior sexual relationship between Harlan and appellant had been discontinued after he discovered that she was prostituting on a regular basis; nevertheless, on occasion Harlan introduced him to young prostitutes for whom he had a predilection.

At Sergeant Prandi’s direction, Harlan telephoned appellant from the sheriff’s office at Hamilton Air Force…

Appellant was convicted after jury trial of two counts of sale of cocaine (Health & Saf. Code, § 11352). He has never contested his involvement in the sales, but instead relied at trial solely upon an entrapment defense. On appeal he challenges the instructions on entrapment given by the trial court.

According to the record, on July 7, 1980, Sergeant Charles Prandi of the Marin County Sheriff's office contacted Ruth Harlan, a known prostitute, who indicated that appellant might sell drugs. At the time, Harlan was not under investigation for or charged with any criminal offense, and while Prandi had communicated previously with Harlan, the record does not indicate why he contacted her on this occasion, or why she mentioned appellant's name to the officer, [1] or whether Martinez was a suspect in an ongoing investigation. A prior sexual relationship between Harlan and appellant had been discontinued after he discovered that she was prostituting on a regular basis; nevertheless, on occasion Harlan introduced him to young prostitutes for whom he had a predilection.

At Sergeant Prandi's direction, Harlan telephoned appellant from the sheriff's office at Hamilton…