Act of law enforcement officer in inducing a person to commit a crime he is not otherwise disposed to commit for the purpose of instituting a criminal prosecution against him.

People v. Barraza, 23 Cal. 3d 675, 686-688 (1979).

Though long recognized by the courts of almost every United States jurisdiction, the defense of entrapment has produced a deep schism concerning its proper theoretical basis and mode of application. The opposing views have been delineated in a series of United States Supreme Court decisions. The court first considered the entrapment defense in Sorrells v. United States (1932) 287 U.S. 435 [77 L.Ed. 413, 53 S.Ct. 210, 86 A.L.R. 249]. The majority held that entrapment tended to establish innocence, reasoning that Congress in enacting the criminal statute there at issue could not have intended to punish persons otherwise innocent who were lured into committing the proscribed conduct by governmental instigation. This focus on whether persons were “otherwise innocent” led the majority to adopt what has become known as the subjective or origin-of-intent test under which entrapment is established only if (1) governmental instigation and inducement overstep the bounds of permissibility, and (2) the defendant did not harbor a preexisting criminal intent. Under the subjective test a finding that the defendant was predisposed to commit the offense would negate innocence and therefore defeat the defense. Finally, because entrapment was viewed as bearing on the guilt or innocence of the accused, the issue was deemed proper for submission to the jury.

Justice Roberts wrote an eloquent concurring opinion, joined by Justices Brandeis and Stone, in which he argued that the purpose of the entrapment defense is to deter police misconduct. He emphatically rejected the notion that the defendant’s conduct or predisposition had any relevance: “The applicable principle is that courts must be closed to the trial of a crime instigated by the government’s own agents. No other issue, no comparison of equities as between the guilty official and the guilty defendant, has any place in the enforcement of this overruling principle of public policy.” (Id., at p. 459 [77 L.Ed. at p. 426].) Because he viewed deterrence of impermissible law enforcement activity as the proper rationale for the entrapment defense, Justice Roberts concluded that the defense was inappropriate for jury consideration: “It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law.” (Id., at p. 457 [77 L.Ed. at p. 425].)

In Sherman v. United States (1958) 356 U.S. 369 [2 L.Ed.2d 848, 78 S.Ct. 819], the majority refused to adopt the “objective” theory of entrapment urged by Justice Roberts, choosing rather to continue recognizing as relevant the defendant’s own conduct and predisposition. The court held that “a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” (Id., at p. 372 [2 L.Ed.2d at p. 851].) Justice Frankfurter, writing for four members of the court in a concurring opinion, argued forcefully for Justice Roberts’ objective theory: “The courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced.” (Id., at p. 380 [2 L.Ed.2d at p. 855].) He reasoned that “a test that looks to the character and predisposition of the defendant rather than the conduct of the police loses sight of the underlying reason for the defense of entrapment. No matter what the defendant’s past record and present inclinations to criminality, or the depths to which he has sunk in the estimation of society, certain police conduct to ensnare him into further crime is not to be tolerated by an advanced society…. Permissible police activity does not vary according to the particular defendant concerned….” (Id., at pp. 382-383 [2 L.Ed.2d at p. 857].) “Human nature is weak enough,” he wrote, “and sufficiently beset by temptations without government adding to them and generating crime.” (Id., at p. 384 [2 L.Ed.2d at p. 858].) Justice Frankfurter concluded that guidance as to appropriate official conduct could only be provided if the court reviewed police conduct and decided the entrapment issue.

The United States Supreme Court recently reviewed the theoretical basis of the entrapment defense in United States v. Russell (1973) 411 U.S. 423 [36 L.Ed.2d 366, 93 S.Ct. 1637], and once again the court split five votes to four in declining to overrule the subjective theory adopted in Sorrells.

The principle currently applied in California represents a hybrid position, fusing elements of both the subjective and objective theories of entrapment. In People v.Benford (1959) 53 Cal.2d 1, 9 [345 P.2d 928], this court unanimously embraced the public policy/deterrence rationale that Justices Roberts and Frankfurter had so persuasively urged. In doing so, we ruled inadmissible on the issue of entrapment the most prejudicial inquiries that are allowed under the subjective theory, i.e., evidence that the defendant “had previously committed similar crimes or had the reputation of being engaged in the commission of such crimes or was suspected by the police of criminal activities….” (Id., at p. 11.)[2] In Patty v. Board of Medical Examiners (1973) 9 Cal.3d 356, 363-364 [107 Cal. Rptr. 473, 508 P.2d 1121], we reiterated the public policy basis for the defense, characterizing it as “crucial to the fair administration of justice.” (Id., at p. 364.) Despite the lessons of Benford and Patty, however, this court has continued to maintain that entrapment depends upon where the intent to commit the crime originated. (See, e.g., People v. Sweeney (1960) 55 Cal.2d 27, 49 [9 Cal. Rptr. 793, 357 P.2d 1049]; People v. Francis (1969) 71 Cal.2d 66, 78 [75 Cal. Rptr. 199, 450 P.2d 591]; People v. Moran (1970) 1 Cal.3d 755, 760 [83 Cal. Rptr. 411, 463 P.2d 763].)

Chief Justice Traynor, dissenting in Moran (1 Cal.3d at pp. 764-765), in an opinion joined by two other justices of this court, recognized that in thus departing from the rationale adopted in Benford, we have seriously undermined the deterrent effect of the entrapment defense on impermissible police conduct. He reasoned that attempts to fix the origin of intent or determine the defendant’s criminal predisposition divert the court’s attention from the only proper subject of focus in the entrapment defense: the dubious police conduct which the court must deter. (5) The success of an entrapment defense should not turn on differences among defendants; we are not concerned with who first conceived or who willingly, or reluctantly, acquiesced in a criminal project. What we do care about is how much and what manner of persuasion, pressure, and cajoling are brought to bear by law enforcement officials to induce persons to commit crimes. As Chief Justice Warren observed, the function of law enforcement manifestly “does not include the manufacturing of crime.” (Shermanv. United States (1958) supra, 356 U.S. 369, 372 [2 L.Ed.2d 848, 851].) Even though California courts do not permit introduction of the highly prejudicial evidence of 689*689subjective predisposition allowed in jurisdictions following the federal rule, our more limited focus on the character and intent of the accused is still misplaced and impairs our courts in their task of assuring the lawfulness of law enforcement activity.

Commentators on the subject have overwhelmingly favored judicial decision of the issue by application of a test which looks only to the nature and extent of police activity in the criminal enterprise. (See, e.g., LaFave & Scott, Handbook on Criminal Law (1972) pp. 371-373; authorities cited in State v. Mullen (Iowa 1974) 216 N.W.2d 375, 381; authorities cited in Park, The Entrapment Controversy (1976) 60 Minn. L.Rev. 163, 167, fn. 13.) Professor Kamisar observed that only two law review articles in the past 25 years have favored the subjective test. (Kamisar et al., Modern Criminal Procedure (4th ed. 1978 Supp.) p. 119.) The Model Penal Code has adopted an objective test (Model Pen. Code (Proposed Official Draft 1962) § 2.13(1); see also Nat. Com. on Reform of Fed. Crim. Laws, Final Rep. — Proposed New Fed. Crim. Code (1971) § 702(2)), and in recent years several state courts (see Grossman v.State (Alaska 1969) 457 P.2d 226; People v. Turner (1973) 390 Mich. 7 [210 N.W.2d 336]; State v. Mullen (Iowa 1974) supra, 216 N.W.2d 375) and legislatures (see N.D. Cent. Code, § 12.01-05-11 (1976); N.H. Rev. Stat. Ann., § 626:5 (1974); Pa. Stat. Ann., tit. 18, § 313 (Purdon 1973); Haw. Rev. Stat., § 702-237) have recognized that such a test is more consistent with and better promotes the underlying purpose of the entrapment defense. Such support for the position no doubt derives from a developing awareness that “entrapment is a facet of a broader problem. Along with illegal search and seizures, wire tapping, false arrest, illegal detention and the third degree, it is a type of lawless law enforcement. They all spring from common motivations. Each is a substitute for skillful and scientific investigation. Each is condoned by the sinister sophism that the end, when dealing with known criminals or the `criminal classes,’ justifies the employment of illegal means.” (Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs (1951) 60 Yale L.J. 1091, 1111.)