Lopez and Winhoven, at a joint trial, were convicted of first degree murder and four counts of attempted murder in connection with a Los Angeles robbery committed on July 29, 1960, and sentenced to death. We affirmed. (People v. Lopez (1963) 60 Cal.2d 223 [32 Cal.Rptr. 424,
Lopez's petition for a writ of habeas corpus presents the question whether we must grant him a new trial because of the admission at trial of his statements allegedly obtained in violation of his Sixth Amendment right to counsel as delineated in the recent cases of Escobedo v. Illinois (1964) 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977], and Massiah v. United States (1964) 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246], even though the judgment against him became final before these cases were decided. The petitions for writs of habeas corpus by both Lopez and Winhoven present the question whether the commission of errors in the penalty trials similar to those condemned in People v. Morse (1964) 60 Cal.2d 631 [36 Cal.Rptr. 201, 388 P.2d 33], requires us to grant petitioners new penalty trials. We have concluded that the right to counsel as established in Escobedo and Massiah does not apply retroactively on collateral attack. We further conclude that we must afford petitioners new penalty trials.
Lopez and Winhoven were arrested in Bakersfield on August 30, 1960, on charges that they committed a burglary in that community. At that time the police also suspected them of perpetrating the Los Angeles robbery of July 29, 1960, in which a fatality had occurred.
The Attorney General concedes that "on September 15th or 16th the Los Angeles police and District Attorney's office arranged to have Robert Luna, who was being held on other criminal charges, placed in the Kern County Jail in the same cell as Lopez and report to the police any statements of Lopez pertinent to the murder then under investigation." The ruse worked; Lopez made several incriminating statements to Luna which also implicated Winhoven. On September 30th Luna wrote down the statements from memory. Upon return to Los Angeles County on September 30, 1960, under a warrant for their arrest issued September 26, 1960, defendants were arraigned on charges of murder. At the trial, Luna testified as to his conversation with Lopez; likewise, Luna's memorandum concerning the content of the conversation was read into the record.
Lopez argued on appeal that his alleged statements to Luna in the Bakersfield jail were admissions obtained by trickery, and that their use constituted a denial of due process. We held the statements admissible since there was "no behavior by the State's law enforcement officers that
Lopez now contends that in view of the two above cited decisions of the United States Supreme Court, which were rendered after the final determination of his case, the introduction of the evidence concerning his incriminating statements to Luna wrongfully deprived him of his constitutional right to counsel.
In the first of these cases, Massiah v. United States (1964) 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246], a codefendant, in cooperation with federal agents, elicited from the defendant incriminating statements which were communicated by a radio transmitter to the police. The defendant had already been indicted and was represented by counsel. The United States Supreme Court held that "the petitioner was denied the basic protections of [the Sixth Amendment] ... guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel." (Id. at p. 206.)
In the second of the cases, Escobedo v. Illinois (1964) 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977], the Supreme Court extended the right to counsel to the preindictment interrogation stage, holding that "where ... the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied `the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as `made obligatory upon the States by the Fourteenth Amendment,' ... and that no statement elicited by the police during the interrogation may be used against him at a criminal trial." (Id. at pp. 490-491.)
We have held today in People v. Dorado (1965) ante, p. 338 [42 Cal.Rptr. 169, 398 P.2d 361] that a defendant's
We reach this conclusion upon the basis of the three following propositions which we shall more fully analyze hereinafter: First, although the United States Supreme Court in Escobedo, by providing a suspect with an opportunity to obtain the protection of counsel at the accusatory stage, sought to eliminate conditions which invited coerced confessions, the ruling does not require a retroactive application.
Turning to the first proposition, we believe that the United States Supreme Court in Escobedo sought primarily to prevent
The words of the United States Supreme Court, written by Mr. Justice Goldberg, announce the philosophy of the holding of Escobedo: "We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the `confession' will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation. As Dean Wigmore so wisely said: `[A]ny system of administration which permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer morally thereby. The inclination develops to rely mainly upon such evidence, and to be satisfied with an incomplete investigation of the other sources.... The simple and peaceful process of questioning breeds a readiness to resort to bullying and to physical force and torture. If there is a right to an answer, there soon seems to be a right to the expected answer, — that is, to a confession of guilt....' (8 Wigmore, Evidence (3d ed. 1940) 309.) (Emphasis in original.) This Court also has recognized that `history amply shows that confessions have often been extorted to save law enforcement officials the trouble and effort of obtaining valid and independent evidence....' Haynes v. Washington, 373 U.S. 503, 519 [83 S.Ct. 1336, 10 L.Ed.2d 513]." (378 U.S. at pp. 488-490.)
Likewise, the dissenting opinion of Mr. Justice White, in which Justices Clark and Stewart joined, recognizes that the objective of the majority was the prevention of practices that might lead to coerced confessions: "This new American judge's rule, which is to be applied in both federal and state courts, is perhaps thought to be a necessary safeguard against the possibility of extorted confessions." (378 U.S. at p. 498.)
Indeed four of the justices who joined the majority in Escobedo had previously urged that the only effective antidote to abusive police tactics and extorted confessions was the presence of counsel for the accused. In his dissenting opinion
The resolution of the court in Escobedo to sterilize the police antechamber from the use of coercive tactics undoubtedly resulted from the realization of the inadequacy of present methods of dealing with involuntary confessions. The mere rejection of such confessions from evidence has not prevented police overreaching. Studies have shown that questionable tactics to obtain confessions or admissions continue on a widespread basis.
Thus the court in Escobedo sought the correction of the conditions which invited the coerced confessions and the attendant evils.
Second, unlike other rulings of the United States Supreme Court dealing with new interpretations of the Constitution, the Escobedo rule does not automatically call for retroactive application in order to correct past convictions of innocent defendants. Whatever the inadequacies of our prior procedures, we do not believe that they carried a substantial risk of the conviction of an innocent person because of the use in evidence of his voluntary statement.
Without discussion, the United States Supreme Court has applied retroactively on collateral attack its decisions requiring procedural fairness at criminal proceedings that vindicated an indigent's right to counsel at trial
The Escobedo rule did not, however, emanate from the inherent unreliability of the confessions introduced in the trials of the past or from the uncertainty of the guilt of those who had thus confessed; it emerged from the belief that secret interrogation was the source of coercion, that the opportunity for the presence of counsel would end the secrecy and that the exclusion of the confession obtained without such opportunity would deter those tactics. The court sought to discourage oppressive police practices; it did not seek to undo the procedures of yesterday, which despite their undesirability did not necessarily cause the conviction of the innocent.
The same considerations which induce the denial of a retrospective application of the rule against the introduction of illegally seized evidence support a similar result here. The chief purpose of the rule in Mapp v. Ohio (1961) 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933], was to preclude police conduct which ignored "the right to privacy embodied in the Fourth Amendment" and to make certain that "the right to be secure against rude invasions of privacy by state officers ... no longer ... remain [ed] an empty promise." (Id. at p. 660.) Although all courts do not agree, many have held that Mapp cannot be the basis for collateral attack on final judgments because the purpose of elevating the exclusion of illegally procured evidence to a constitutional requirement lies in deterring unconstitutional police searches.
To use the words of Judge Medina in United States ex rel. Angelet v. Fay (1964) 333 F.2d 12, 19, "... the new exclusionary principle does not arise out of any claim that the evidence that was admitted is untrustworthy or that the trial was tainted by some fundamental unfairness in regard to the interests of the particular defendant." Or as Chief Justice Traynor has stated, "It is not the purpose of the exclusionary rule to protect the guilty. Its purpose of deterring lawless law enforcement will be amply served in any state from now on by affording defendants an orderly procedure for challenging the admissibility of the evidence at or before trial and on appeal." (Mapp v. Ohio at Large in the Fifty States (1962) Duke L.J. 319, 341.)
Indeed some recent judicial opinions have maintained that it is "generally undesirable to give retroactive effect to overruling decisions, except in the most compelling circumstances." (United States ex rel. Angelet v. Fay (1964) 333 F.2d 12, 21; Lyons v. Westinghouse Electric Corp. (1964) 235 F.Supp. 526.)
Courts, in some instances, have refused to apply retroactively a new legal ruling to criminal defendants who were convicted under a prior decision or statute subsequently disapproved. In Warring v. Colpoys (1941) 122 F.2d 642, 646-647 (Vinson, J., cert. den. (1941) 314 U.S. 678 [62 S.Ct. 184, 86 L.Ed. 543]) a prisoner sought release upon a writ of habeas corpus on the ground that the decision interpreting a federal contempt statute under which he had been convicted had been overruled. In refusing to grant the writ the court stated that the considerations that "should guide the lawmakers and the lawappliers in making their determinations in respect of whether a change in the law is to be effective only for the future or also for the past ... should be applicable to both sides of a potential litigation, civil or criminal...." Courts have refused to apply the Jencks rule (Jencks v. United States (1957) 353 U.S. 657 [77 S.Ct. 1007, 1 L.Ed.2d 1103]) retroactively on collateral attack. (United States v. Gandia (1958) 255 F.2d 454.) In Durham v. United States (1954) 214 F.2d 862, in which the Court of Appeals for the District of Columbia announced a new rule for the determination of insanity in criminal cases, the court said, "[I]n adopting a new test, we invoke our inherent power to make the change prospectively." (Id. at p. 874.) In Shioutakon v. District of Columbia (1956) 236 F.2d 666, the court, in holding that under a statute a judge in a juvenile court must inform the juveniles of their right to counsel, applied its decision prospectively.
Petitioner argues that because we deal with a constitutional protection we must apply it retroactively on collateral attack. In refusing to apply Mapp retroactively, the Court of Appeals for the Second Circuit met that argument as follows: "It is pointed out that where constitutional rights are violated prejudice is presumed. It is our view, however, that the development of constitutional law calls into play precisely the same operations of the judicial process as does the development of a body of decisional law in any other field. The extent to which the new doctrine is to be applied should depend, in the language of Mr. Justice Cardozo, upon `considerations
We therefore conclude that because the justification of the requirement of the right to counsel at the accusatory stage lies in the prospective purpose of benefiting the overall system of criminal administration by drying up the sources of coercion, no purpose would be served by applying Escobedo retroactively.
The writ is granted as to the penalty trials of petitioners. The remittitur issued in Crim. 7067, People v. Lopez (1963) 60 Cal.2d 223 [32 Cal.Rptr. 424, 384 P.2d 16], is recalled and the judgments imposing death penalties are reversed insofar as they relate to the penalties. In all other respects the judgments are affirmed. Petitioners Lopez and Winhoven are remanded to the custody of the Superior Court of Los Angeles County for new penalty trials.
Traynor, C.J., Peters, J., and Peek, J., concurred.
We concur in the order affirming the judgments of guilt. We dissent from the order recalling the remittitur in Crim. 7067 and from the order reversing the judgments imposing the death penalty insofar as they relate to the penalties.
Adopting the language of People v. Morse, 60 Cal.2d 631, 653 [6a] [36 Cal.Rptr. 201, 388 P.2d 33], "we are [not] of
Petitioners' application for a rehearing was denied February 24, 1965. Mosk, J., did not participate therein.
We shall assume, for the purposes of this analysis, that the decisions which we shall hereinafter designate under the generic term of Escobedo, apply to the factual situation presented here.
In 1961 the President's Civil Rights Commission reached similar conclusions about present-day police techniques. Equal Justice Under Law in Justice, 5 U.S. Commission on Civil Rights Reports 5-28 (1961). After a survey of conditions and practices in the State of New Jersey and further research for the United States Commission on Civil Rights, Arnold Trebach concluded that coercive police tactics were still prevalent. "The Court has found that coercion occurred and has overruled convictions only where the evidence strongly indicated that the police used exceedingly shocking methods to obtain confessions. As of late 1961, the Court had overruled convictions on this basis in a total of only twenty-two cases. In my opinion, these cases represent only the smallest fraction of the total number of convictions that have been based on coerced confessions since the Supreme Court reversed the first such conviction in 1936." The Rationing of Justice (1963) 4, 38. See also Memorandum on the Detention of Arrested Persons and their Production Before a Committing Magistrate in 2 Chaffee, Documents in Fundamental Human Rights 541 (1951-1952); Comment, An Historical Argument for the Right to Counsel During Police Interrogation (1964) 73 Yale L.J. 1000; 3 Wigmore on Evidence, Supp. § 851(a) (1962).
"As we view the problem, there is now at stake one of the most important principles of constitutional interpretation. It has been the proud boast of the most distinguished of our American jurists that the federal Constitution, and especially the Bill of Rights, including the Fourteenth Amendment, is not a rigid aggregation of fundamental rules but a dynamic and flexible document, to be interpreted from time to time to conform to the social and economic needs of a changing society in a modern world.... We do not doubt the power of the judicial establishment to decide that the doctrine of Mapp v. Ohio is to be given general retroactive effect, or to decide that it is not to be given general retroactive effect. There is no philosophical obstacle to a decision either way. But there must be a rational basis for that decision." (Ibid.) See also Griffin v. Illinois (1956) 351 U.S. 12, 26 [76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055] (Frankfurter, J., concurring); cases cited in fn. 14 supra.
In Chicot County Drainage Dist. v. Baxter State Bank (1940) 308 U.S. 371, 374 [60 S.Ct. 317, 84 L.Ed. 329], the United States Supreme Court in holding that a decree based on a statute subsequently held unconstitutional was res judicata said, "It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot be ignored. The past cannot always be erased by a new judicial declaration."
It further appears that, instead of presenting statistical evidence by stipulation as was done in Morse, defendant Lopez called Joseph Spangler of the Adult Authority as a witness, who testified with respect to the number of persons paroled. The prosecution argued to the jury that if it imposed a life sentence, defendants would be eligible to apply for a parole, but if it imposed the death penalty, it would know that it had "done something good for society" by precluding the chance that defendants would take another life in the event of parole or escape.