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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. James Daniel TRAVIS and Carlton Paul Vincent, Defendants and Appellants.


Decided: November 25, 1985

Catalina Lozano, El Cerrito, for Travis. Lincoln N. Mintz, Oakland, for Vincent. John Van de Kamp, Atty. Gen., Thomas A. Brady, Matthew P. Boyle, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Defendants Travis and Vincent were jointly charged and tried in the superior court.   A jury's verdict found Travis guilty of four counts of sale, and one count of possession, of heroin.   And the jury found Vincent guilty of sale and of possession of heroin.   Travis has appealed from a judgment and Vincent from an order granting probation, entered upon the jury's verdicts.

No merit is seen in either appeal, and we affirm the respective determinations.   Our reasons follow.

The Appeal of Defendant Travis

I.–III. Contentions 1

IV. Contention:  Travis urges, for the first time in his closing brief on appeal, that:  “The jury was improperly instructed on the defense of entrapment.”

Here Travis relies on the decision and opinion of another panel of this court, People v. Martinez, 157 Cal.App.3d 660, 203 Cal.Rptr. 833, filed June 25, 1984, in which we held that CALJIC instructions 4.60, 4.61, and 4.61.5, as given in the instant case, were prejudicially erroneous.   Such instructions had followed the literal language of the Supreme Court in People v. Barraza, 23 Cal.3d 675, 689–690, 153 Cal.Rptr. 459, 591 P.2d 947, “that the proper test of entrapment in California is the following:  was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense?”   Our court held that the “mischief inherent in the ‘normally law abiding person’ language” of Barraza and the above-noted CALJIC instructions was unintended by the high court, that Barraza did not correctly state the law, and we accordingly reversed the Martinez conviction and judgment.

We are satisfied that our court erred in Martinez, and that Barraza reasonably and correctly states the law.   And in any event this court is, and was, bound by the rule of Barraza.  (See Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.

Other of the state's Courts of Appeal are in agreement with our present holding.  (See People v. Kelley, 158 Cal.App.3d 1085, 205 Cal.Rptr. 283, passim;  People v. Grant, 165 Cal.App.3d 496, 211 Cal.Rptr. 343, passim;  People v. Arthurlee, 168 Cal.App.3d 246, 214 Cal.Rptr. 5;  Grant, supra, and Arthurlee, supra, q.v., expressly repudiate this court's holding in Martinez.)

For all of the above-stated reasons we find no merit in Travis' appeal.

The Appeal of Defendant Vincent 2

The judgment as to defendant Travis, and the order granting probation as to defendant Vincent are, and each is, affirmed.

I concur in the result only.


1.   Not certified for publication.

2.   Not certified for publication.

ELKINGTON, Acting Presiding Justice.

HOLMDAHL, J., concurs.

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