In Re Lopez

been had the favorable to the defendant reached applying this constitutional error not been committed. firmly justified, I no reversal the ver- test believe upheld judgment jury dict of the be and the should court affirmed. trial I

For these reasons dissent. J.,*

Schauer, concurred. 7794. In No. Bank. Jan. [Crim. 1965.] In re ERNEST BARRAGAN LOPEZ WILLARD Corpus. WINHOVEN on Habeas

ARTHUR sitting assign- *Retired Justice of the Associate ment the Chairman Judicial Council. pro. Winhoven, per., Willard Arthur and Morris Lavine Hugh Manes, appointment and R. Court, for Petitioners. Stanley Lynch, and Attorneys Mosk Thomas General, C. Deputy Harris, Jr., Attorney and Albert W. General, Respondent. Lopez and TOBRINER, Winhoven, joint trial, J. degree murder were convicted first four counts of Angeles attempted robbery murder in connection with a Los July 29, committed on sentenced to death. We (People Lopez (1963) Cal.Rptr. affirmed. 60 Cal.2d 223 [32 den, 284 P.2d cert 375 U.S. 994 S.Ct. 480].) L.Ed.2d petition Lopez’s for a corpus writ of presents habeas question grant whether we must him a new trial because of the admission at trial of allegedly his statements obtained in violation of Sixth his Amendment to counsel as delineated recent cases of Escobedo v. Illinois 977], and Massiah United States U.S. 201 though judgment against 246], even him became final petitions before these were cases decided. The for writs of corpus by Lopez present ques- habeas both and Winhoven tion whether penalty the commission of errors in the trials People similar to those condemned in v. Morse Cal.2d 631 P.2d requires us to grant petitioners penalty new We concluded trials. to counsel as established Escobedo and Massiah apply retroactively does not on collateral attack. We further petitioners penalty conclude that afford we must new trials. August Lopez on and Winhoven were arrested Bakersfield charges they burglary committed a community. suspected At them that time the also robbery Angeles July 29, 1960, in perpetrating the Los fatality which a had occurred. Attorney concedes that September General “on 15th Angeles police Attorney’s 16th the Los District office

arranged Luna, Robert being have who was held on other placed in charges, County criminal the Kern Jail in the same Lopez report police any cell as to the statements of pertinent Lopez investigation.” to the murder then under Lopez worked; incriminating The ruse made several state- implicated Sep- ments to Luna which also On Winhoven. down memory. tember 30th Luna wrote the statements from County Upon Angeles September 30, on return to Los September 26, a warrant for their arrest issued arraigned charges of trial, were on murder. the defendants At Lopez; his likewise, Luna testified as to conversation concerning the memorandum content of the Luna’s conversa- record. was read into the tion appeal alleged argued that his Lopez statements to jail by in the Bakersfield were admissions obtained Luna their a trickery, and that use constituted denial due the statements admissible since there process. We held was by behavior the State’s law enforcement officers that “no any indication to resist nor is there defendant’s will overbore anything ‘freely were but self-deter his admissions ” 223, (People Lopez (1963) mined.’ Cal.2d Lopez 16.].) further Cal.Rptr. 424, 384 We held P.2d against him at a criminal may trial. interrogation be used the 490-491.) (Id. pp. p. People (1965) ante, Dorado today in We have held a P.2d that defendant’s properly could not be introduced into evidence if confession investigation longer general inquiry no a into an was begun particular suspect, but had to focus on a unsolved crime suspect custody, the authorities had was carried interrogations eliciting in- process that lent itself to out a criminating effectively had not statements, the authorities of Ms to counsel or of his absolute informed defendant silent, and no evidence established that he had remain rights. waived these Lopez’s incriminating

Whether or not statements improperly either under Massiah or were admitted Dorado, may hold Massiah Escobedo and we not serve upon judgments as the basis for collateral attack which have upon final become before the date which United States may Supreme decision, nor Escobedo or Court rendered prior applied which have become final be to eases Dorado Supreme States Court rendered the the date that the United Escobedo decision.1 upon We reach this conclusion the basis of the three follow ing propositions which fully we shall analyze more herein First, although after : Supreme United States

Escobedo, by providing suspect opportunity with an to obtain protection of counsel at accusatory stage, sought to eliminate which conditions invited coerced confessions, the ruling require does not application. retroactive Sec interpretations ond, new rights of constitutional been, applied be, retroactively and should in only in those situations protect which such new rules against innocent defendant possibility of conviction of a crime he did not commit; the fact that defendant was denied counsel under Escobedo does guilt. not affect the issue Third, an absolute rule of retro- activity interpretations as to rights constitutional envisage practices the correction future impair administration of criminal law and ultimately result in con rigidity. stitutional Turning proposition, to the first we believe that the United sought States primarily prevent Court Escobedo 1 strictly Although, speaking, prospective opinion is one in which the applies only new rule of law to future cases and not even to the case court, before the we prior are concerned with eases that became final thus, Massiah; “prospective” Escobedo and we use the terms ‘ ‘ ’ ’ accordingly. retroactive See United ex rel. Linkletter v. Walker 323 F.2d 13. assume, purposes We shall for the analysis, this the decisions designate which we shall generic hereinafter under the term Escobedo, apply presented to the factual situation here. spawned involuntary past, in the which, tactics presence of counsel concluded that court has confessions. to that end a means tactics. As go far eradicate such counsel had procure such opportunity to that, if the it held pro- incriminating statement or denied, the confession been into introduced evidence. not be police should cured prevention of prospective contemplated the the rule Thus practices com- extirpation of such practices—not the coercive past. mitted in Supreme Court, The words of the United States written Goldberg, philosophy announce the of the hold- Mr. Justice history, ing Escobedo-. “We have learned the lesson of of system modern, that a of criminal law enforce- ancient and depend will, comes to ‘confession’ in the ment which long subject reliable and more to abuses than a run, be less depends independently system on extrinsic evidence which investigation. Wigmore through As Dean skillful so secured ‘ system permits which wisely [A]ny administration said: habitually to trust prosecution to compulsory self-disclo- proof source must morally sure as a thereby. itself suffer develops rely mainly upon The inclination such evidence, incomplete investigation and to be satisfied with an simple peaceful process .. . The other sources. question- ing bullying breeds a readiness to resort to physical and to and torture. If there is a answer, force to an there soon expected answer,—that to the seems to be is, to a con- (8 guilt. Wigmore, (3d . . .’ fession Evidence 1940) ed. in (Emphasis original.) recognized This Court 309.) also has ‘history amply shows that confessions have often been to save law enforcement extorted officials the trouble and obtaining independent valid and effort of evidence. . .’ . Washington, Haynes 373 U.S. S.Ct. (378 pp. 488-490.) U.S. at L.Ed.2d 513].” dissenting opinion Likewise, White, of Mr. Justice in joined, recognizes Clark and Stewart which that the Justices majority prevention practices objective was the might to coerced confessions: “This new American lead applied in judge’s rule, is to be both federal and which state thought necessary safeguard against perhaps to be a courts, (378 p. 498.) possibility of extorted confessions.” U.S. at justices joined majority four of the who Indeed urged only previously that the effectiveantidote had police tactics and extorted confessions was the to abusive dissenting opinion presence of counsel the accused. his Crooker U.S. S.Ct. California Mr. Chief Justice Warren Douglas joined, Black and Brennan Mr. and Justices Justice degree only secrecy. said, third flourishes One who “The lawyer asking and asks for one is for some feels the need against give can him protection which the law coerced con (See Lagay (1958) also Cicenia 357 U.S. fession.” (Douglas, J., dissent dissenting Black, in In re Groban ing).) Mr. Justice 376], stated, 510, L.Ed.2d 342-343 prevent “Nothing would be better calculated misuse of suspect or power dealing with a witness than the official lawyer by scrutiny or friends even disinterested of his 596, Haley (1948) Ohio 332 (See also U.S. standers.” J., 302, (Frankfurter, con 92 L.Ed. 605-606 S.Ct. 234] Spano 315, York 360 324 curring) (1959) New U.S. J., (Douglas, concurring.)2 1202, 3 L.Ed.2d 1265] the court in police The resolution of the sterilize from the use of coercive tactics undoubtedly antechamber inadequacy present from the realization of the resulted of dealing involuntary methods of confessions. The mere rejection prevented of such confessions from evidence has not overreaching. police questionable Studies have shown that widespread to obtain confessions or admissions a tactics continue on very difficulty detecting of s.3 The the coercion that basi Traynor presence recognized that the of 2Justice counsel at the inter ‘‘discourage police rogation stage custody.’ persons of mistreatment in ’ (1961) 135, (People Garner Cal.2d 164 57 (concurring opinion).) 367 P.2d 680] ‘‘ stated, degree—that 3In 1931 the Wiekersham Commission the third is, physical brutality, the cruelty, use of or other forms of to obtain involuntary widespread.” confessions admissions—is U.S. National Enforcement, Report Commission on Law Observance and on Lawlessness (1931) (1940) in Law Enforcement 4. In Chambers v. 309 Florida 472, 227 84 L.Ed. [60 S.Ct. which a conviction was reversed on ‘1 confession, police the basis of a coerced Mr. Justice Black stated [t]he practices degree widespread throughout here examined are to some our country.” (Id. 240, 15.) Pound, Legal Interrogations fn. Persons of Suspected (1934) J.Crim.L., Accused or Crime 24 C. & P.S. 1014. of 1016, 1017; Warner, Degree see Sow Can the Third Be Eliminated? Rights 24, 1 Bill of Rev. 25. Bights 1961 the In President’s Civil Commission reached similar con- present-day police techniques. Equal about clusions Justice Under Law Justice, Bights Beports (1961). on U.S. Commission Civil 5-28 After survey practices Jersey of conditions and in the State of New Bights, further research for the United States Commission on Civil Arnold ‘‘ police prevalent. Trebaeh concluded that coercive tactics were still The Court has found that coercion occurred and has overruled convictions only strongly where evidence indicated that used exceed- pQnfmions, pbtam pf ingly shocking As methods lute Court *34 vagueness interrogation* 5and the during police might occur have been for such determination5 applicable standards approach. necessitating a new factors adverse sought the correction in Escobedo court Thus the the at- confessions coerced invited the conditions back not reach need new rule But tendant evils.6 en- past; if that in the entombed an environment eradicate con- the coerced fruit of produce the evil did vironment despite the trial, process of may trust fession we possibility say it. We cannot disclosed difficulties, twenty-two only in a total on this basis convictions had overruled only represent fraction my opinion, the smallest these cases eases. con on coerced been based that have number of convictions the total conviction the first such reversed fessions since ” (1963) 4, Memorandum Rationing 38. See also 1936. on the Detention Justice their Production Persons and Arrested Before Chaffee, Human Committing Magistrate in Fundamental Documents Argument Comment, (1951-1952); Rights Right An Historical 1000; During Interrogation 73 Yale L.J. Police Counsel 851(a) (1962). Evidence, Supp. Wigmore § usually testify way, 4”Law one the accused officers another. . . The . degree long abuse of the third will mischief and continue as as an period accused can be denied counsel at this the most critical (Crooker his ordeal.” 357 U.S. 443-444 California (Douglas, J., dissenting); L.Ed.2d [78 S.Ct. In re Groban J., (Black, 343 n. 352 U.S. [77 S.Ct. L.Ed.2d 376] ; Smith, dissenting) Public Interest and the Interests the Accused in Lawyer (1958) the Criminal a Scottish 32 Tulane Process—Reflections of 349, 354.) L.Rev. 5“ Expanded concepts obtaining of fairness in confessions have been accompanied correspondingly greater complexity determining frequently whether an accused’s will puted, questions been overborne—facts are dis credibility crucial, are often and inferences to be (Jackson drawn from facts are often determinative.” v. Denno 908]; Goldstein, 378 U.S. The State Advantage and the Accused: Balance 69 Yale L.J. (1960) in Criminal Procedure of 1149, Mueller, 1188; Relating Interroga The Law to Police Privileges tion, Freedom Sowle, and Limitations in Police Power and Individual (1962) 131, 137-142; Comment, Argument An Historical for Right During Interrogation (1963) 1000, to Counsel Police 73 Yale L.J. 1007-1010, 1042-1045.) Packer, (1964) Two Models 6See the Criminal Process 113 U.Pa. of 1, placing police 36. interroga L.Rev. Jurisdictions similar controls on prevent police tion have done so to Devlin, coercive tactics. Patrick High England, discussing Judges’ Rules, Justice of the Court of place during interroga controls on the use of statements elicited tion, stated, always “The extraction of confessions has been condemned law; questioning which, but common there are methods of without violence, oppressive; the use of threats or tend to be unfair or and it against Judges’ (The is them that Rules are directed.” Criminal England (1958) 33.) (1878) Prosecution in which, The Evidence Act of India effect, prohibits interrogation suspects, was said to be (Monir, Principles Digest directed at of Evidence Sess. Cas. abuses. of the Law (3d 1950) 215.) ed. (1954) Chalmers v. H.M. Advocate 66, (Scotland). 78-79 376 voluntary past statement such that then

abuse elicited must now be exorcised. Supreme rulings of the United States Second, unlike other interpretations Constitution, dealing new Court automatically call for retroactive rule does not the Escobedo past convictions innocent de- application in order to correct prior inadequacies procedures, of our Whatever the fendants. they a substantial risk of the that carried we do not believe person of the use evidence innocent because conviction of an voluntary statement. his discussion, the

Without United retroactively requiring attack applied on collateral its decisions proceedings procedural criminal vindicated fairness at *****7 indigent’s right appeal,8 trial* and an to counsel at trial,9 indigent’s right transcript guaranteed to a an determining stringent imposed more standards counsel, a defend Without the voluntariness confessions.10 might properly to technique not be able ant unskilled in trial (1932) (Powell trial. v. Alabama establish his innocence at the 158, ; 45, 55, 84 A.L.R. 287 68-69 77 L.Ed. 527] U.S. S.Ct. [53 Wainwright (1963) 335, v. 372 Gideon U.S. 344-345 S.Ct. [83 799, 733].) transcript 93 792, 9 L.Ed.2d A.L.R.2d Without a adequate appellate could not obtain an defendant review might alleged prejudicial. trial which errors be (Griffin (1956) 12, Illinois 351 16 585, v. U.S. S.Ct. 100 [76 1055].) involuntary 891, confession, 55 A.L.R.2d The L.Ed. always potentially unreliable, could result in the conviction (In (1961) guiltless 879, re Harris defendant. 56 Cal.2d (Traynor, J., 886 366 P.2d concur- 305] [16 7Doughty (1964) 702, v. Maxwell 202 S.Ct. 11 376 U.S. L.Ed.2d [84 Wainwright curiam) ; (1963) Pickelsimer (per 2 375 U.S. 650] S.Ct. [84 curiam) (per (1964) 80, LaVallee Durocher 11 L.Ed.2d 41] 1921, Comment, S.Ct. 12 L.Ed.2d See 1048]. 377 U.S. 998 [84 Supreme Court, (1964) 143, 186; Pope, 1963 Term 78 Harv.L.Rev. Developments Applications. in the Field Frivolous Pro Further Is 423, Freund, (1963) 424-425; Probable? 33 F.R.D. but see liferation (1964) 631, Law Vistas In 112 New Constitutional U.Pa.L.Rev. 637-638. (1964) 8Smith v. Crouse S.Ct. 12 [84 U.S. L.Ed.2d 1039] (1964) (per curiam); Ruark v. Colorado 378 U.S. 585 S.Ct. curiam). (per L.Ed.2d Washington 9Eskridge Prison State Board Terms Paroles & 1269]; Norvell 357 U.S. 214 S.Ct. but see Illinois 10 L.Ed.2d 456]. U.S. 948]; v. Pate 10Reck Overruling Application Prospective Note, and Retroactive in the see 907, 939, 173; Note, Courts Collateral Federal L.J. fn. Yale Pre-Mapp Illegally v. Ohio Convictions Based on Obtained Attack of Rutgers Evidence in State Courts L.Rev. fn. 32. ring).)11 reject retroactivity To the of the above constitutional rights continued incarceration of a would be to sanction the upon correction, despite which, at trial defendant errors the could well establish his innocence. not, however, from the in-

The Escobedo rule emanate did unreliability confessions introduced the trials of the herent guilt uncertainty who past or from the of the those of the emerged confessed; it from the belief that secret had thus interrogation opportunity coercion, that the was the source of secrecy presence and that the of counsel would end opportunity without such of the confession obtained exclusion sought discourage op- court deter those tactics. The would pressive police procedures practices; it did not to undo the seek undesirability despite did not neces- yesterday, which their of the innocent.12 sarily cause the conviction of a which induce the denial retro considerations The same against the introduction of spective application of the rule support result here. The a similar illegally seized evidence Mapp v. Ohio 367 U.S. purpose of the rule chief A.L.R.2d was to ‘‘ right privacy ignored the police preclude conduct to make certain that in the Fourth Amendment” embodied against privacy rude invasions right be secure “the empty promise.” an longer no . . . officers... remain[ed] state agree, many Although do not 660.) all courts (Id. p. at collateral attack basis for Mapp cannot be the held elevating the exclusion purpose judgments because final requirement to a constitutional procured evidence illegally Thus, searches.13 since deterring unconstitutional lies evidence does not infect illegally obtained admission unfairness, and individual particular the trial Advantage in Goldstein, Balance Accused: and the The State 11See 1149, 1187, fn. 124. Yale L.J. Procedure Criminal grounds the on the Sixth 12Although decision in Escobedo the court counsel, the denial of not indicate it does Amendment interrogation stage in reversal absent would result at counsel incriminating also indicates The court statement. an introduction of meaningful interrogation make will presence of counsel not relate to the reason does This remain silent. accused’s erroneous conviction rarely guiltless persons do since of the innocent voluntarily confess. compel 13“ exclusionary re to deter—to purpose rule ‘is [T]he only effectively guaranty available in the spect for the constitutional ” disregard Mapp v. removing it.’ Ohio way—by incentive to 933]. A.L.R.2d 367 U.S. operates prospectively purpose since deterrence only, the Mapp application.14 not be served retroactive Judge Medina in To use words United States ex rel. Angelet Fay (1964) 12, 19, F.2d . v. 333 “.. the new exclusion any ary principle not arise out of claim that does the evidence untrustworthy admitted is or that was trial was by regard some fundamental unfairness in to in tainted particular of the defendant.” as terests Or Chief Justice stated, purpose Traynor exclusionary “It is not the guilty. purpose deterring protect the Its rule to lawless law amply any served will be state from now on enforcement orderly procedure affording an challenging defendants admissibility of the evidence at before trial and on Large Fifty (Mapp (1962) v. Ohio at States appeal.” 341.)15 319, Likewise the role of de Duke L.J. police terring improper conduct will not be served retro application.16 active refusing apply Mapp to on collateral attack include United 14Cases Fay (1964) 12; Angelet 333 F.2d United States ex rel. v. ex rel. States 890; F.Supp. 309; (1963) affd. 328 Gaitan 220 F.2d Emerick v. Denno v. United States 494; (1963) ex 317 F.2d United States rel. McCrea v. 917; (Ala. 1962) F.Supp. (1963) Moore v. State 146 219

LaVallee Ellington Fay 734; People New York ex rel. the State v. So.2d Myers (1962) 595; F.Supp. (1962) ex rel. Stoner v. Commonwealth 207 806]; Pa.Super. Commonwealth ex rel. Wilson v. 341 A.2d [185 199 ; (1962) People (1963) Muller 143] 109 A.2d 11 412 Pa. [194 Rundle N.Y.2d 99]; (1964) 154, v. Lane 421 N.E.2d Sisk [182 227 N.Y.S.2d (1963) 235; 174 Maxwell Ohio St. 483 N.E.2d. Villasino v. 331 F.2d ; (1964) N.J.Super. McNulty 30 A.2d United 84 799] State v. 265] (1963) 11; granted Walker 323 F.2d cert. Linkletter v. ex rel. 1340, (No. 1125, (1964) 12 1963 295] 930 [84 95, 377 term); (1961) term, In re Harris 56 1964 see Cal.2d No. renumbered (Traynor, J., 889, concurring); Cal.Rptr. 879, 305] 366 P.2d 880 [16 Holloway retroactively Mapp applying include United States ex rel. cases Maryland (1964) F.Supp. 132; Warden, Peni Hall v. v. Reincke Fay 483; (1963) tentiary ex rel. Eastman v. 313 F.2d United States (1963) 891; F.Supp. 677; (1963) Hurst 325 F.2d California 1964) (No. (U.S. 12, 913, filed, pet. March 32 U.S.L. Week for cert. term). term; renumbered No. (1964) 500, 507, Cal.Rptr. fn. 6 In re 61 Cal.2d Jackson 15See Comment, Overruling 420]; Prospective and Retroactive 393 P.2d 907; Note, (1962) 71 L.J. Col Application in the Federal Courts Yale Illegally Pre-Mapp Based on v. Ohio Convictions Attack lateral 587; Bender, Rutgers L.Rev. in State Courts Evidence Obtained Mapp Overruling Decision: an Constitutional The Retroactive Effect of Freund, 650; New Vistas Constitu 110 U.Pa.L.Rev. v. Ohio 637-638. 112 U.Pa.L.Rev. Law tional retroactively prospectively application eases of Escobedo 16The In re appeal to deter unlawful conduct. See will be sufficient on Harris Cal.Rptr. 366 P.2d 56 Cal.2d concurring). J., (Traynor, in right which newly constitutional Third, defined than errone practices rather future the correction volves subject rigid retro- past should not be ous convictions myth” “splendid longer to that activity. subscribe noWe interpretations are eternal constitutional that all Blaekstone infinity.17 forwards backwards and that stretch verities F.2d LaVallee Durocher v. ex rel. (United States Angelet Fay (1964) F.2d 312; ex rel. United States here between must choose 15.) now that we Imow We concept dynamic preserve values; must seek competing we upon an unreal it rather than sacrifice of constitutional As Justice altar of absolutism. istic and destructive constitutionality prospective upholding the Cardozo, in defining the limits courts, said, state overrulings by “A state may a choice for itself between precedent make of adherence back and that of relation operation of forward principle highest court, though say of its may that decisions It ward. for intermediate trans the less overruled, are law none later ’’ Refining Sunburst Oil & Ry. Co. (Great Northern actions. 360, L.Ed. 85 358, 145, 77 364 S.Ct. (1932) 287 U.S. Co. [53 254].)18 A.L.R. judicial opinions recent Indeed some maintained that give “generally undesirable to retroactive to it is effect over ’’ decisions, except compelling in ruling the most circumstances. Angelet Fay (United (1964) 21; rel. v. 12, States ex 333 F.2d Westinghouse Corp. (1964) F.Supp. Electric 235 Lyons v. (1962) 761, 762], in v. Smith N.J. 481 17The court State A.2d [181 justice change. said, “Concepts Doctrines, incomprehensible today, of by judges who in their were once embraced times were doubtless the Surely long-range retrospect. epitome the reasonable man. this in of is so change equally at the moment of It is true that choice is not neces sarily wrong. judicial between dead and dead The scene is studded conflicting upon respectable support. views command issues course, preference, it but a court alters its is often a a belief that When way, justice in better served another with no intimation that is whoever ’’ disagrees must be mean or inane. Drainage County (1940) Dist. v. Baxter also Chicot State Bank 18See 371, 317, 329]; Spark Plug 84 L.Ed. S.Ct. Aero [60 U.S. Co. (1942) Corporation (Frank, J., concurring) B. G. 130 F.2d Judge (1932) Rep. Cardozo 55 N.Y. Address of Chief 294 et St. Bar Assn. reprinted Hall, Writings Benjamin seq., in Selected of Nathan Comment, (1947) 7, 33; Overruling Prospective Cardozo Retroactive (1962) 907; Application Levy, in the Federal Courts 71 Yale L.J. Overruling (1960) Jurisprudence Prospective Realistic 109 U.Pa. 1; Note, Prospective Operation Limitation Judicial L.Rev. Decisions of 600; Note, (1961) Overruling Judg 46 Iowa L.Rev. Prior Effect of (1957) 1279; Note; on Issues L.Rev. ments pective Operation Constitutional Va. Pros Holding Decisions Statutes Unconstitutional or (1947) Overruling Prior Decisions 60 Harv. L.Rev. 437. explicitly recognized 526.) This court in certain given situations a decision not be should retroactive effect. (Forster Shipbuilding Angeles County (1960) Co. Los 736]; County Cal.2d 450 P.2d Los Angeles (1957) 680].) Faus 48 Cal.2d 672 P.2d Courts, instances, apply in some have refused to retroactive- ly legal ruling a new to criminal defendants who were con- prior subsequently disap- victed under a or decision statute proved. Warring Colpoys (1941) In 122 F.2d 646-647 J., (Vinson, cert. den. 314 U.S. 678 sought 543]) prisoner upon 86 L.Ed. corpus release writ habeas ground interpreting on that the decision a federal contempt statute under which he had been convicted had been refusing grant In writ court overruled. stated guide the considerations that “should the lawmakers and the lawappliers making respect their determinations change only whether a the law is to be effective for the past applicable future or also for the . . . should be to both potential litigation, of a civil criminal. sides ...” Courts apply (Jencks v. have refused to rule United States 1103]) Jencks retro- actively (United collateral attack. States v. Gandia 454.) 255 F.2d In Durham v. United States 214 F.2d Appeals in which the Court of for the District of Colum- announced a new bia rule the determination insanity “ cases, said, criminal adopting court test, a new [I]n power we invoke our change inherent prospec- make the (Id. tively.” p. 874.) Shioutakon v. District Colum- bia court, holding 236 F.2d judge juvenile statute a in a juveniles court must inform the counsel, applied their its prospectively.19 decision argues Petitioner that because we deal with a constitu protection tional apply we must retroactively it on collateral refusing apply Mapp attack. In Appeals retroactively, the Court of argument for the Second Circuit met that as follows: “ pointed It is rights out that where constitutional are violated prejudice presumed. It view, is our however, that development of constitutional law play precisely calls into operations judicial process the same of develop as does the body ment of any a of decisional law in other field. The extent applied to which the new doctrine is to be depend, should in language Cardozo, upon of Mr. Justice ‘considerations People Maughs (1906) 187]; 19See v. 149 People Cal. 253 P. v. Ryan (1907) 152 Cal. 364 P. 853]. deepest convenience, utility, and of the sentiments ” justice.’ Angelet Fay (United States ex rel. 12, 16.)20

F.2d further consideration that Nor can we overlook the upon retroactivity impose impossible burdens the ad would justice. appli retroactive ministration of criminal Unlimited would result the reconsideration cation correctly the law in were decided under countless cases that many and trial; such cases witnesses force at the time of Many longer hardened and no be available. evidence would greatest profit dangerous glean from un criminals would imposed they lengthy sentences retroactivity; limited serve long likelihood of successful ago; their cases thus offer the least general prisoners of undoubted require a release of retrial. To (cid:127) orderly guilt cripple the administration would be to (See criminal laws. United States Sobell 314 F.2d J.) 314, 323, 6, (Friendly, fn. United States ex rel. Du 314, rocher v. LaVallee (1964) (concurring 330 F.2d dissenting Angelet opinions); United States ex rel. Fay (1964) 12, 20-21.)21 333 F.2d stated, thumb, 20The court further “There is no rule of nor should that, opinion attempt there by It be. is the burden of to demonstrate this test, Mapp Justice Cardozo’s should not be Mr. v. Ohio doctrine given general retroactive effect. problem, “As view we there is at stake one of the most now important principles proud federal interpretation. It been the constitutional distinguished jurists boast of the most of our American Constitution, including especially Rights, the Bill of Amendment, rigid aggregation Fourteenth but a to conform to the social and is not a rules fundamental dynamic document, interpreted and flexible be from time time to society changing economic needs of a power judicial . . . modern world. We do not doubt the estab Mapp given lishment to decide that the doctrine of v. Ohio is to be general effect, given general retroactive or to it not to be decide is philosophical effect. There no retroactive is obstacle to a decision either way. (Ibid.) But there must be a rational basis for that decision.” See also v. Illinois [76 S.Ct. Griffin (Frankfurter, J., concurring); 55 A.L.R.2d L.Ed. in fn. 14 cases cited supra. County Drainage In Chicot Dist. v. Baxter State Bank 84 L.Ed. the United U.S. Court unconstitutional was res holding subsequently that a decree based on a statute held judicata said, quite clear, however, “It broad as to the effect of a determination of such staatements uncon- stitutionality qualifications. The must be taken with actual existence determination, operative statute, prior may to such a is an fact and ignored. past always consequences cannot be cannot be have erased ’’ judicial new declaration. living governed by been said that should not be 21“It has often eyes dead, changing be to our to the the which time not be for that would close conditions say living imposes. It seems even sounder to that the should that, turn, governed posterity, downright be their Warring J.) Colpoys (Vinson, F.2d 647. chaotic.” ruling compelled retroactive collateral at that A developments in impede further constitutional tack could well interpretations, application of new The absolute law. reality play, of fair in appears as an instrument on the surface application dynamic may a formidable barrier to a stand as change ipso every must facto If of constitutional standards. ancient, prior proceedings, no matter how applied all be to jeopardy. (See in United change may put be future Freund, 12, 20-21; F.2d Angelet Fay (1964) 333 ex rel. (1964) 112 L.Rev. Law U.Pa. in New Constitutional Vistas 631, 637-638.) justification conclude that because the We therefore of the accusatory stage counsel requirement of the at the lies benefiting system prospective purpose of the overall in the by drying up the sources of of criminal administration coer- by applying purpose be Escobedo retro- cion, no served actively. however, substantially Error, similar to that com People v. Morse (1964) Cal.Rptr.

mitted in 60 Cal.2d 631 [36 penalty 388 P.2d occurred trials. In that case murder case penalty phase degree held that in the of a we first possibility judge’s “that the instructions as to the possible penalty reduction of the death tend to Governor’s jury assuming into mislead penalty rendition of the proceedings by a chain of initiates the court and the reweighing which will achieve a Governor sentence and produce nullification. The possibly its instructions and evi Authority’s grant possible parole of the Adult invite dence argument jury by speculative to the and surmise it of the society possible improper of a defendant in the release province yet truly not lie in that matter does its but future; in the p. 653.) Authority.”22 (At expert judgment Adult substantially given appears the ease be 22The instruction stating: given except in Morse that a sentence was added same as eligibility parole on at certain that while for release "You are instructed by indicated, prisoner prison a life minimum terms has been service necessarily prison not mean that he would be minimum terms does such parole upon minimum service of such term.” so released presenting appears that, instead of statistical evidence further It Lopez Morse, Joseph Spangler stipulation defendant called as was done Authority witness, respect who to the as a testified of the Adult argued prosecution jury persons paroled. The to the if number it eligible sentence, apply imposed defendants would be for a a life imposed penalty, it parole, the death would know that it if it had but society” by precluding something good for the chance that de- "done parole escape. event of another life would take fendants 506-509 61 Cal.2d held In re Jackson We error could bo that such 393 P.2d 420] application given retroactive collateral attack and reached judgment changed subsequent had been the rule since Cal.2d Hines becoming People v. final.23 Under 398], we must Cal.Rptr. 622, 390 P.2d 170 [37 from the deviation since “substantial the convictions reverse ’’ in Morse has occurred. established standards penalty granted as to the petitioners. The writ trials of 7067, People Lopez issued in The remittitur Crim. Cal.Rptr. 424, 384 P.2d 16], 60 Cal.2d is recalled imposing penalties judgments death and the are reversed penalties. they to the In all respects as relate other insofar Lopez judgments are Petitioners affirmed. and the Winhoven custody Superior to the remanded Court are of Los penalty Angeles County trials. for new Peters, J., Peek, J., and J., Traynor, C. concurred. SCHAUER, and J.* McCOMB, J. We concurin the order affirming judgments guilt. the We dissent from the order

recalling the remittitur in Crim. 7067 and from the order reversing judgments imposing penalty the death insofar they penalties. as relate to the Adopting language People Morse, Cal.2d P.2d “we [6a] are [not] of Morse on collateral 23The retroactive application attack differs significantly of Escobedo. from such an application in erroneous argument in Morse evidence and structions, condemned affect obviously the fairness of the penalty trial; such errors must have affected such trials before Morse. In the instant case we have held that the error Escobedo did not affect proscribed the fairness trial; indeed, Mapp Ohio, supra, compared we instant case to that of as to in Jacicson we “The said, special circumstances of the present involving differ from completely case those cases the retrospective Mapp v. Ohio. . . .” of the rule of application Cal.2d at p. fn. Jacicson, 6. we Furthermore, as said “the retrospective effect of our holding ruling [in Morse] limited Our application. can affect only awaiting those defendants who, execution after the imposition prejudicial in Morse death suffered sentence, error described during Sines group, their own trials. are a penalty These fixed ’ ’ will their number. none hereafter be added to 61 Cal.2d 507. As we supra, of out the retroactive pointed application would affect countless cases and would administration cripple orderly of criminal justice. sitting assign- *Retired Associate Justice of the the Chairman of the Judicial Council. ment opinion reasonably probable it that a result more penalty favorable to as would have defendant[s] [the] (See People been reached in absence of the error.” also Cal.Rptr. seq. et Hines, Cal.2d 398].) P.2d ’ rehearing February application for a was Petitioners denied J., participate did not therein. Mosk, 1965. Feb. No. 7856. In Bank. 1965.]

[Crim. Corpus. Habeas re GLENN ROSE on notes challenge reading the record of Luna’s the into could not objected (Id. at the trial. had not to this evidence since he 249.) p. at above cited Lopez that in view of the two now contends Supreme Court, which were States decisions United ease, intro- after final determination his rendered duction of the evidence incriminating concerning state- his deprived constitutional wrongfully him of his ments to Luna right to counsel. cases, the first of these Massiah v. United States 246], codefendant, 12 L.Ed.2d U.S. cooperation agents, with federal elicited from the defendant incriminating by statements which were communicated police. already radio transmitter to the The defendant had represented by been indicted and was counsel. The United Supreme petitioner held States Court that “the was denied protections guarantee the basic . . Sixth . [the Amendment] against him when there was used at his evidence of trial his incriminating agents words, own which federal had delib erately elicited from him after he had been indicted and in (Id. p. 206.) counsel.” the absence his eases, Illinois In the second of the Escobedo v. preindictment interroga extended the counsel holding investigation stage, tion that “where . . the is no . begun longer general inquiry into an unsolved crime but has suspect particular suspect, the has been taken to focus on a carry process interroga police custody, police out a into incriminating eliciting statements, tions that lends itself opportunity an suspect requested and been denied effectively not lawyer, and the consult with his to remain him of his absolute constitutional warned ‘ ’ the Assistance of Counsel has been denied silent, the accused to the Constitution as Amendment in violation of the Sixth Fourteenth obligatory upon Amend ‘made ’ police during elicited ment, . and that no statement . . ’’

Case Details

Case Name: In Re Lopez

Court Name: California Supreme Court

Date Published: Jan 29, 1965

Citation: 398 P.2d 380

Docket Number: Crim. 7794

Court Abbreviation: Cal.