¶1I concur in that portion of the majority’s opinion which holds that defendant’s conviction on count I should be reversed because of the prejudicial “mini-Allen” instruction erroneously given to the jury.
¶2I respectfully dissent, however, from that portion of the majority’s opinion which establishes a new test for the defense of entrapment.
¶3As the majority concedes, in determining the existence of an entrapment, the United States Supreme Court has consistently rejected the “objective” (“hypothetical person”) test which the majority adopts in favor of the “subjective” (“origin of intent”) test. In Sorrells v. United States (1932) 287 U.S. 435 [77 L.Ed. 413, 53 S.Ct. 210, 86 A.L.R. 249], Sherman v. United States (1958) 356 U.S. 369 [2 L.Ed.2d 848, 78 S.Ct. 819], and recently in United States v. Russell (1973) 411 U.S. 423 [36 L.Ed.2d 366, 93 S.Ct. 1637], the high court has approved and reapproved the “subjective” test. Following this lead, the federal courts and the courts of the overwhelming majority of states, including California, apply the “subjective” test, thereby keeping attention properly focused on the unique interrelationship of the police and the particular defendant who is asserting the defense of entrapment.
¶4*693The majority now proposes to ban consideration of the particular defendant and replace him with a hypothetical “normally law-abiding person” who is described as “a person [who] would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully.” (Ante, p. 690.) The briefest reflection reveals the difficulties inherent in this definition. The individual who has never committed a criminal act can safely be categorized as a “normally law-abiding person” since presumably his unblemished record is proof of his ability to resist temptation. However, what of the individual who has transgressed in the past either once or several times? Is he no longer “normally law-abiding”? Is “normally” synonymous with “generally”? If it may be drawn at all, the line between “normally law-abiding” individuals and “others” is not so easily fixed as the majority suggests.
¶5The fallacy underlying the majority’s thesis, of course, is that in the very real world of criminal conduct there are no hypothetical people. To attempt to judge police conduct in a vacuum is to engage in a futile and meaningless exercise in semantics. It is the recognition of this precise fact that has restrained the United States Supreme Court from discarding the subjective test whereby attention is pointed at the particular defendant rather than at some imaginary or fictitious person. The majority abandons the actual for the hypothetical. It thereby substitutes the unreal for the real, with unnecessary complications that inevitably result therefrom.
¶6Further, by adopting an “objective” test, the majority does not really eliminate the “subjective” test. Even if the jury makes a finding adverse to the defendant pursuant to the “objective” test, the defendant may still presumably argue entrapment to the jury using the “subjective” standard to negate intent. The question of what the defendant intended is always relevant. Indeed, in the present case defendant admitted commission of the act. He denied only the requisite intent. The majority ignores entirely this problem of the double assertion of the entrapment defense.
¶7The issue of entrapment is a factual matter, the determination of which is of critical importance to both" parties. Regardless of any salutary effect which a trial court opinion might have on police administration, the matter is properly entrusted to the jury and should remain within its province.
¶8The judgment as to count II should be affirmed.
¶9The most significant question presented by this case is whether this court should adopt the “hypothetical-person” (“objective”) test of entrapment.
¶10The test now applied in California, in all but seven of the other states, and in the federal courts is the “origin-of-intent” (“subjective”) standard. This test focuses, quite properly, upon the guilt of the particular defendant, asking whether he was predisposed to commit the crime charged. If he was ready and willing to commit the offense at any favorable opportunity, then the entrapment defense fails even if the police used an unduly persuasive inducement.
¶11The guilt of the particular defendant is irrelevant under the hypothetical-person test. It focuses instead upon the conduct of the police. If the police use an inducement likely to cause a hypothetical person to commit the crime charged, then the fact that the particular defendant was ready and willing to commit it does not defeat the entrapment defense. The evil of the hypothetical-person test is apparent —it leads to acquittal of persons who are in fact guilty. By focusing on police conduct rather than the defendant’s predisposition, it creates a risk of acquitting dangerous chronic offenders.
¶12That risk is strikingly illustrated by the facts of this case. The evidence would support the conclusion that defendant is one of the most cynical manipulators of the criminal justice system imaginable, that he abused the trust placed in him as an employee of a drug detoxification program to sell heroin to the patients with whom he worked, nullifying the program’s slight chances of success and wasting countless thousands of tax dollars, that he initially refused to sell heroin to the deputy solely because he suspected she was an undercover officer, and that, before finally agreeing to make the sale through his wife, he sought to immunize himself by “entrapping” the deputy into the conduct he now relies upon as the basis of his entrapment defense. If the factfinder takes this view of the evidence, but also concludes the officer’s conduct would have induced a hypothetical person to commit the offense, defendant goes free.
¶13The majority respond by quoting Justice Holmes’ observation that “it is a less .evil that some criminals should escape than that the Government should play an ignoble part.” (Ante, p. 688, fn. 2, quoting Olmstead v. United States (1928) 277 U.S. 438, 470 [72 L.Ed. 944, 953, 48 S.Ct. 564, 66 A.L.R. 376] (Holmes, J., dis.).) With deference to Justice Holmes, that is a false dichotomy. It is simply not true that society must choose between *695freeing criminals and tolerating official misconduct. Take the case in which an officer uses an unduly persuasive inducement but the defendant is ready and willing to commit the crime at any favorable opportunity. Society can and should insist upon both the criminal’s being convicted and the officer’s being disciplined. To assume that the officer will not be disciplined is but another instance of the majority’s “curious cynicism concerning the rule of law in our society” which I have elsewhere decried. (See, e.g., People v. Cook (1978) 22 Cal.3d 67, 102 [148 Cal.Rptr. 605, 583 P.2d 130] (Clark, J., dis.).)
¶14The minority justices of the United States Supreme Court who have advocated the hypothetical-person test have argued that its adoption would increase public respect for the criminal justice system. (See, e.g., Sherman v. United States (1958) 356 U.S. 369, 380 [2 L.Ed.2d 848, 855, 78 S.Ct. 819] (Frankfurter, J., conc.).) However, the hypothetical-person approach is no way to achieve this respect. The public is, understandably, not offended by conviction of a defendant found—beyond a reasonable doubt and by unanimous vote of 12 citizens—:to have been ready and willing to commit the crime charged. But the public will be offended by the adoption of an entrapment defense that ignores culpability and seeks to control police conduct by acquittal of professional criminals. As Justice Macklin Fleming has observed: “Each time the criminal process is thwarted by a technicality that does not bear on the innocence or guilt of the accused, we trumpet abroad the notion of injustice; and each time a .patently guilty person is released, some damage is done to the general sense of justice.” (Fleming, The Price of Perfect Justice: The Adverse Consequences of Current Legal Doctrine on the American Courtroom (1974) p. 9.)
¶15Bernard E. Witkin, beyond question the foremost commentator on California law, expressed the same sentiment when he recently addressed himself to the historic contribution of the United States Supreme Court during the period when Earl Warren was Chief Justice. His subject was “ ‘The Second Noble Experiment of the Century’ conceived in altruism, and dedicated to the principle that technical forms of criminal procedure are more important than the substance of guilt or innocence of the accused.” What Mr. Witkin has to say is always worthy of attention but his remarks on this occasion are particularly noteworthy because this court appears to see itself as keeper of the flame that might otherwise have died with the passing of the Warren era. (See, e.g., People v. Pettingill (1978) 21 Cal.3d 231, 252-254 [145 Cal.Rptr. 861, 578 P.2d 108] (Clark, J., dis.).)
*696“We begin with a simple and tragic admission: That there is a rising rate of crime and a falling rate of conviction and punishment for crime. And we are frequently told by bitter critics that the responsible agency is the judiciary; that the Courts have become increasingly concerned with barren technicalities of criminal procedure, and have lost sight of the primary objective of the criminal law. [H] Now none of us needs to be reminded that a system of criminal justice exists not just for the protection of the innocent but for the punishment of the guilty; and that only by consistent apprehension and conviction of the murderer, the burglar, the arsonist, the rapist, the drug-peddler, and other. . . predators that infest our society, can the system justify itself in the eyes of our people. We are therefore in deep trouble if, as these critics would have us believe, the judges of our state and federal courts are frustrating law enforcement by placing burdensome restrictions .on arrest, production of evidence, and trials.”
¶16After making it clear that he considers these criticisms justified with regard to the Warren court, Witkin concludes by saying: “The cases I have discussed, and many others, demonstrate the weird and wonderful solicitude of thin majorities of our highest court of the Warren era for the professional and nonprofessional criminal. Serenely confident, with a full head of steam, the court repeatedly found new and exciting grounds upon which to reverse the convictions for major crimes on records which overwhelmingly established guilt. And the nation’s legal scholars and students writing in law school reviews, deluged us with extravagant praise for these decisions, referring to them—in what is surely the most preposterous misclassification ever, made—as decisions establishing and protecting civil liberties.” (Witkin, The Second Noble Experiment of the Twentieth Century (Sept.-Nov. 1977) Prosecutor’s Brief 42-45.)
¶17Whatever else one may say of the Warren Court, it refused to take the step the majority of this court take today. Indeed, in Sherman v. United States, supra, 356 U.S. 369, 376-378 [2 L.Ed.2d 848, 853-854], Chief Justice Warren himself wrote the majority opinion in which the court declined to reconsider its adherence to the origin-of-intent test. With today’s decision this court outdoes its mentor in rendering guilt irrelevant.
¶18The judgment should be affirmed.
¶19Respondent’s petition for a rehearing was denied April 19, 1979. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.