Cappellia

*1334 Opinion

After a jury trial, defendant Richard James Cappellia was convicted of offering to sell heroin. (Health & Saf. Code, § 11352.) Defendant contends the court (1) improperly denied his pretrial motion to suppress evidence, and (2) improperly refused to admit into evidence certain postarrest police conduct which supported a defense of entrapment. We disagree, and affirm the judgment.

I

The police had been informed defendant was selling heroin from a barbershop in Huntington Beach. On December 19, 1985, defendant agreed to sell heroin the following day to Officer Gildea, a plainclothes investigator with the Huntington Beach Police Department, if Gildea would “slam,” or inject the drug, in front of him. When Gildea returned on December 20, defendant said he did not really trust Gildea, and wanted to see him “slam” because he knew a policeman would not inject the drug. Gildea said he would “slam” at his house in Santa Ana, which was agreeable to defendant.

As they prepared to leave, defendant went to the back of his shop, removed a toilet paper roll from the shelf, and said he was ready to go. The two left in Gildea’s truck and headed towards Santa Ana. On the way…

I very reluctantly concur. I find it hard to believe one can safely apply “the minimal pressure necessary to prevent swallowing” (maj. opn., ante, p. 1338, quoting 2 LaFave, Search and Seizure (2d ed. 1987) § 5.2(i), p. 473) while locked in a desperate struggle like the one here. As Justice Compton wrote in People v. Trevino (1977) 72 Cal.App.3d 686 [ 140 Cal.Rptr. 243 ]: “The application of force to a person’s throat is a dangerous and sensitive activity. It is the type of force that, more than any other, is likely to result in violent resistance by the arrestee.” (Id., at p. 692.) I could not agree more.

The Attorney General, and the majority, contend the police did not choke Cappellia. They refer to mere hands on the throat, pressure to the Adam’s apple, and “minimal force around the neck to prevent a defendant from destroying evidence by swallowing it . . . .” (Maj. opn., ante, p. 1338.) They should call a spade a spade. I invite my colleagues—who enjoy the benefit of a calm, controlled environment—to try swallowing an object while someone pressures the neck enough to prevent it. The swallowing reflex is a powerful one, and the considerable force required to thwart it can…

After a jury trial, defendant Richard James Cappellia was convicted of offering to sell heroin. (Health & Saf. Code, § 11352.) Defendant contends the court (1) improperly denied his pretrial motion to suppress evidence, and (2) improperly refused to admit into evidence certain postarrest police conduct which supported a defense of entrapment. We disagree, and affirm the judgment.

The police had been informed defendant was selling heroin from a barbershop in Huntington Beach. On December 19, 1985, defendant agreed to sell heroin the following day to Officer Gildea, a plainclothes investigator with the Huntington Beach Police Department, if Gildea would "slam," or inject the drug, in front of him. When Gildea returned on December 20, defendant said he did not really trust Gildea, and wanted to see him "slam" because he knew a policeman would not inject the drug. Gildea said he would "slam" at his house in Santa Ana, which was agreeable to defendant.

As they prepared to leave, defendant went to the back of his shop, removed a toilet paper roll from the shelf, and said he was ready to go. The two left in Gildea's truck and headed towards Santa Ana. On the…