I 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.
I respectfully dissent, however, from that portion of the majority’s opinion which establishes a new test for the defense of entrapment.
As 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.
*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.
The 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.
Further, 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.
The 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.
The judgment as to count II should be affirmed.