People v. Rivers

be reconsidered on appeal, do not arise under the “natural life” of Lopez. They constitute a separate category of cases that threaten to be of significant quantity, and they present considerations different from those in Lopez and are not governed by the rationale of Rollins. This new category of cases was spawned by the disapproval of California’s procedure for determining when counsel should be appointed to represent indigent defendants on appeal. (Douglas v. California, supra, 372 U.S. 353 ; see also Swenson v. Bosler (1967) 386 U.S. 258 [ 18 L.Ed.2d 33 , 87 S.Ct. 996 ]; Anders v. California (1967) 386 U.S. 258 [ 18 L.Ed.2d 493 , 87 S.Ct. 1396 ].) Under Douglas, defendants whose convictions were final years ago, having exhausted all routes of appeal, are today afforded the assistance of counsel on appeal in all cases in which it was previously denied. We directed the recall of the remittitur and the reinstatement of the appeal in this case for the sole purpose of affording equality in representation between defendants denied counsel on appeal and defendants who had counsel. (372 U.S. at pp. 355-358.) To apply Escobedo at a reinstated appeal and to review police conduct that occurred years before that decision would not promote equality. To the contrary, “the indigent defendant deprived of counsel anomalously would find himself possessed of more shafts in his quiver than would have been the ease had he been able to afford to properly arm himself in the first instance.” (People v. Garner (1965) 234 Cal.App.2d 212 , 215, fn. 1 [ 44 Cal.Rptr. 217 ].)

Insofar as the additional shaft provided by Escobedo is primarily prophylactic, it is directed at controlling future police conduct, not conduct that was long ago completed and that was then lawful. Retroactive application of Escobedo, regardless of the finality of the judgments of conviction or the voluntariness of the defendants’ statements would create the very harms we sought to foreclose in Lopez. It “would result in the reconsideration of countless eases that were correctly decided under the law in force at the time of trial; in many such eases witnesses and evidence would no longer be available. Many hardened and dangerous criminals would glean the greatest profit from [such a rule]; they serve lengthy sentences imposed long ago; their cases thus offer the least likelihood of successful retrial. To require a general release of prisoners of undoubted guilt would be to cripple the orderly administration of the criminal laws.” (In re Lopez, supra, 62 Cal.2d at p. 381.)

The serious disruption of the administration of the criminal law that would be caused by retrials and by the denial of the use of statements received in full compliance with the law compels adherence to the rationale of In re Lopez. We therefore hold that the Escobedo-Dorado rules do not apply to reinstated appeals such as this one. Cases in which it lias been held or assumed that those rules apply to reinstated appeals are disapproved insofar as they are inconsistent with the views expressed herein (e.g., People v. Jaquish (1966) 244 Cal.App.2d 444 , 448 [ 53 Cal.Rptr. 123 ] ; People v. Boyden (1965) 237 Cal.App.2d 695 , 697 [ 47 Cal.Rptr. 136 ]; People v. Garner (1965) 234 Cal.App.2d 212 , 215, fn. 1 [ 44 Cal.Rptr. 217 ]; People v. Benavidez (1965) 233 Cal.App.2d 303 [ 43 Cal.Rptr. 577 ]).

Defendant correctly contends that even if Escobedo does not apply to his case, the rules of Escobedo and Miranda must nevertheless be taken into account on the issue of voluntariness. (Cl ewis v. Texas (1967) 386 U.S. 707 , 709 [ 18 L.Ed.2d 423 , 426, 87 S.Ct. 1338 , 1339]; Johnson v. New Jersey, supra, 384 U.S. 719 , 730.) Both defendant and the interrogating officer testified to the voluntariness of the statements, and there is nothing in the record to sui>port defendant’s contention of involuntariness other than an absence of evidence that he was properly warned. Although we cannot presume from a silent record that proper warnings were given (Miranda v. Arizona, supra, 384 U.S. 436 , 475-476, 498-499; People v. Stewart (1965) 62 Cal.2d 571 , 580-581 [ 43 Cal.Rptr. 201 , 400 P.2d 97 ]), a failure to warn standing alone is not sufficient to support defendant’s contention that the statements were involuntary (Davis v. North Carolina (1966) 384 U.S. 737 , 740 [ 16 L.Ed.2d 895 , 86 S.Ct. 1761 ] ; Pembrook v. Wilson (1966) 370 F.2d 37 , 39).

The judgment is affirmed.-

McComb, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan J., concurred.

I dissent.

When appellate courts fix different dates for the operative effect of their decisions in criminal cases involving the same constitutional rights, confusion is bound to result. The instant case adds to that confusion by creating another unnecessary exception to an established rule.

Until relatively recently it was an established doctrine that

decisions recognizing the existence of constitutional rights were retroactive in the full sense of that word. (Gideon v. Wainwright, 372 U.S. 335 [9 L.Ed.Ed 799, 83 S.Ct. 792 , 93 A.L.R.2d 733 ]; Hamilton v. Alabama, 368 U.S. 52 [ 7 L.Ed.2d 114 , 82 S.Ct. 157 ]; Douglas v. California, 372 U.S. 353 [ 9 L.Ed.2d 811 , 83 S.Ct. 814 ].) Then this court and the Supreme Court of the United States discovered the device of making such decisions partially retroactive so as to apply only to eases not reduced to final judgment when the rules were announced. (In re Lopez, 62 Cal.2d 368 [ 42 Cal.Rptr. 188 , 398 P.2d 380 ]; Linkletter v. Walker, 381 U.S. 618 [ 14 L.Ed.2d 601 , 85 S.Ct. 1731 ]; Tehan v. Shott, 382 U.S. 406 [ 15 L.Ed.2d 453 , 86 S.Ct. 459 ].) Then, apparently impressed with this newly discovered power, the United States Supreme Court in Johnson v. New Jersey, 384 U.S. 719 [ 16 L.Ed.2d 882 , 86 S.Ct. 1772 ], held that the rules announced in Miranda v. Arizona, 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ], should apply only to cases tried after the date of Miranda. We followed this decision (People v. Rollins, 65 Cal.2d 681 [ 56 Cal.Rptr. 293 , 423 P.2d 221 ]). Then, just a few weeks ago, the high court went all out and held that the lineup rule, based on the Sixth and Fourteenth Amendment rights, should apply only where the illegal lineup was held after June 12, 1967, the date of its decision. (Stovall v. Denno, 35 U.S.L. Week 4610.)

In the instant case, the majority opinion adds a new rule to this already overcrowded field of confusion. It first reaffirms the rule announced in Lopez, that the rules of Escobedo and Dorado apply to all cases not yet final when those cases were decided, but then holds that the “finality” there referred to does not apply where the lack of finality is caused by recalling the remittitur. In other words, the majority hold that when a remittitur is recalled, and the judgment set aside because the appellant never had the appeal guaranteed him, and is afforded for the first time a proper appeal, the law in effect when the abortive appeal was decided governs. In other words, we must treat the appeal as if a final judgment had been rendered before the date of Escobedo even though we know no such final judgment exists because the remittitur has been recalled!

To accomplish this result the majority find it necessary to disapprove four recent cases. (People v. Jaquish, 244 Cal.App.2d 444 [ 53 Cal.Rptr. 123 ]; People v. Boyden, 237 Cal.App.2d 695 [ 47 Cal.Rptr. 136 ]; People v. Garner, 234

Cal.App.2d 212 [ 44 Cal.Rptr. 217 ]; People v. Benavidez, 233 Cal.App.2d 303 [ 43 Cal.Rptr. 577 ].) In these four cases, this court, in denying hearings after decision by the Court of Appeal, had established the rule that where a remittitur was recalled and the second appeal was heard after Escobedo, Escobedo applied.

In each of these four eases this court passed upon the precise legal point involved here, and then determined, for apparently convincing reasons, that Escobedo applied after the remittiturs were recalled. Such a well settled rule should not be disturbed except for the most compelling reasons. No convincing reasons are offered by the majority.

The majority opinion is also contrary to the fundamental theory announced by this court in In re Estrada, 63 Cal.2d 740 [ 48 Cal.Rptr. 172 , 408 P.2d 948 ]. That case held that the law in effect when the appeal is decided, even where the new rule is statutory, governs, and not the law when the act was committed or the case tried. The majority in the instant case by some undisclosed nunc pro tunc process apply the law in effect when the abortive appeal was considered. This is inconsistent and contrary to In re Estrada, supra.

But of even greater importance the majority completely disregard, in fact do not even mention, the law applicable to the recall of a remittitur. It must be remembered that the remittitur was recalled here because appellant never had a valid appeal—he never had the appeal guaranteed to him, that is an appeal with counsel. The appeal without counsel was abortive and was set aside. The first legal appeal that Rivers has had is the instant one.

The very effect of recalling the remittitur is to set aside the “final” judgment. The so-called “final” judgment disappears from tlie case, and the appeal is in the same position as if no appeal had been decided. The theory is that when an appellate court recalls its remittitur it does not “resume” a jurisdiction it has lost, but, because of the facts requiring the recall, it has never lost jurisdiction—that the judgment recalled is a nullity and should be disregarded. (Isenberg v. Sherman, 214 Cal. 722 , 725 [ 7 P.2d 1006 ]; Trumpler v. Trumpler, 123 Cal. 248 , 252 [ 55 P. 1008 ].) These principles are disregarded in the majority opinion.

There are other factors to be considered. Had Rivers had counsel on his first appeal it is conceivable counsel could have raised the very point later decided in Escobedo. The majority deny him that right. Moreover, had the appeal of Rivers been

delayed until after Escobedo was decided, he would, of course, have been entitled to the benefits of that decision under In re Lopez, supra, 62 Cal.2d 368 . These possibilities suggest a denial of equal protection in the instant case.

Once it is conceded that Rivers is entitled to raise the Escobedo point, there can be no doubt that he was interrogated in violation of the rules of that case, and that such violation was prejudicial. At the very least, during his improper interrogation he made damaging admissions. One statement amounted to a confession. This interrogation clearly violated the prejudicial error rule established by Fahy v. Connecticut, 378 U.S. 85 [ 11 L.Ed.2d 171 , 84 S.Ct. 229 ], and Chapman v. California, 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 ],

In Fahy v. Connecticut, supra, at page 86, the rule is stated to be that an error is prejudicial unless it can be said that there is no “reasonable possibility that the evidence complained of might have contributed to the conviction.” In Chapman v. California, supra, 386 U.S. 18 , 24, the Fahy case is specifically reaffirmed and the rule restated as “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. ’ ’

Once error is established, these rules require a reversal unless the appellate court affirmatively finds that there is no "reasonable possibility that the evidence complained of might have contributed to the conviction. ” In the present case there is more than “reasonable possibility” that the error may have “contributed to the conviction.” Certainly it cannot be said that “beyond a reasonable doubt” the error was harmless. That being so the error must be held prejudicial and therefore reversible.

The fact that Rivers took the stand at his trial and repeated some but not all of the admissions did not immunize the error. Obviously, there is at least a “reasonable possibility” that he took the stand because he had already made the admissions which had been erroneously admitted. (People v. Spencer, ante, p. 158 [ 57 Cal.Rptr. 163 , 424 P.2d 715 ].)

I would reverse the judgment for the reasons stated.