Moran

People v. Moran

Bad Law

1 Cal. 3d 755·1970 Cal. LEXIS 345·83 Cal. Rptr. 411·463 P.2d 763

Supreme Court of CaliforniaJanuary 27, 1970Crim. No. 13525California4,038 words

Opinion

dissent Opinion

Traynor, 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…

lead Opinion

An information charged defendant with selling lysergic acid diethylamine (hereinafter LSD) in violation of Health and Safety Code section 11912. At the trial the court instructed the jury on the lesser included offence of possession of LSD (Health & Saf. Code, § 11910). The jury found defendant guilty of sale and possession of LSD. Defendant waived application for probation, and the court sentenced him to the state prison for the term prescribed by law for the sale and to one year in the county jail for possession. It suspended execution of sentence on the possession conviction pending completion of service of sentence on the sale conviction, after which the suspension would become permanent. Defendant appeals.

During June 1967, Agents David Fuentes and Robert L. Mooney of *759 the Bureau of Narcotic Enforcement were working in the Orange County area with Robert J. McNerney, a police informant. At 4:35 p.m. on June 13, 1967, the agents received a~phone call from McNerney concerning a sale of drugs. The agents went to a shopping center in Capistrano Beach. Shortly after they arrived, McNerney drove up and parked beside Agent Fuentes. Defendant was a passenger in…

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Parties

THE PEOPLE, and
Plaintiff
THOMAS MORAN, and
Defendant

Judges

Traynor

Cites (44)

356 U.S. 369
287 U.S. 435
53 Cal. 2d 1
128 Cal. App. 2d 387
62 Cal. 2d 769
45 Cal. 2d 776
71 Cal. 2d 66
55 Cal. 2d 27
275 Cal. App. 2d 757
272 Cal. App. 2d 141
270 Cal. App. 2d 352
265 Cal. App. 2d 849
257 Cal. App. 2d 167
250 Cal. App. 2d 776
246 Cal. App. 2d 198
240 Cal. App. 2d 304
222 Cal. App. 2d 265
217 Cal. App. 2d 713
210 Cal. App. 2d 669
210 Cal. App. 2d 613
208 Cal. App. 2d 360
205 Cal. App. 2d 309
204 Cal. App. 2d 453
200 Cal. App. 2d 250
190 Cal. App. 2d 447
188 Cal. App. 2d 750
188 Cal. App. 2d 189
8 Cal. Rptr. 765
181 Cal. App. 2d 38
180 Cal. App. 2d 243
276 Cal. App. 2d 386
264 Cal. App. 2d 834
251 Cal. App. 2d 400
198 Cal. App. 2d 186
44 Cal. 2d 371
206 Cal. App. 2d 651
246 Cal. App. 2d 318
70 Cal. 2d 444
53 Cal. 2d 748
46 Cal. 2d 818
262 Cal. App. 2d 597
50 Cal. 2d 640
57 Cal. 2d 574
30 Cal. 2d 589