Gaines, In re

• Decision Date: 20 August 1965
• Docket Number: Cr. 8821
• Citation: 45 Cal.Rptr. 865,63 Cal.2d 234,404 P.2d 473
• Court: California Supreme Court
• Parties: , 404 P.2d 473 In re Nathniel GAINES on Habeas Corpus.

Page 865

45 Cal.Rptr. 865

63 Cal.2d 234, 404 P.2d 473

In re Nathniel GAINES on Habeas Corpus.

Cr. 8821.

Supreme Court of California, In Bank.

Aug. 20, 1965.

William B. Wolfson, San Rafael, for petitioner.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Robert R. Granucci and Jennifer L. Bain, Deputy Attys. Gen.. , for respondent.

PETERS, Justice.

This is a petition for habeas corpus urging that a judgment of death must be reversed because, during the penalty trial of petitioner, errors of the type condemned by People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33, occurred. It is contended that such errors may be raised collaterally on habeas corpus, that they require a reversal, and that, therefore, the penalty issue must be retried. Under wellsettled principles these contentions must be upheld.

The facts are that petitioner was charged with murder in Los Angeles County. The jury fixed the degree as first and determined that the penalty should be death. Judgments were entered accordingly. On the automatic appeal (Pen.Code, § 1239, subd. (b)), this court, in October of 1962, affirmed both as to guilt and the penalty. (People v. Gaines, 58 Cal.2d 630, 25 Cal.Rptr. 448, 375 P.2d 296.) Certiorari was denied by the United States Supreme Court (373 U.S. 928, 83 S.Ct. 1532, 10 L.Ed.2d 427). This all occurred prior to the decision of this court in the Morse case, supra, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33.

There is no doubt that error of the type condemned in People v. Morse, supra, occurred during the penalty trial of this case. The prosecuting attorney argued at length that life imprisonment does not mean that the defendant will be incarcerated for life, but that it simply means that the defendant will be eligible for parole in seven years; that factor should be considered by the jurors in determining whether or not to impose the death penalty; that the death penalty should be imposed not because of the individual involved or the nature of the crime, but as a protection to society; that the chances of rehabilitation of defendant were slim; that if released on parole there would be no assurance that he would not kill again; and that the Adult Authority might parole him and the chances were that he would kill again. The death penalty, it was argued, would prevent this from happening. The jury was instructed that: 'In making your determination as to the penalty to be imposed, you may consider that the laws of California provide that a defendant sentenced either to death or life imprisonment may be pardoned or have his sentence reduced by the Governor. A prisoner serving a life sentence may be paroled but not until he has served at least seven calendar years.'

This is the type of argument and substantially the type of instruction held to be reversible error in Morse (supra, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33). As was pointed out in People v. Hines, 61 Cal.2d 164, 169-170, 37 Cal.Rptr. 622, 390 P.2d 398 (see also People v. Hamilton, 60 Cal.2d 105, 136-137, 32 Cal.Rptr. 4, 388 P.2d 412 and People v. Terry, 61 Cal.2d 137, 153-154, 37 Cal.Rptr. 605, 390 P.2d 381) such error is substantial, it must be deemed to have been prejudicial, and is reversible per se. It has also been held that in death penalty cases such reversible error may be reached in a collateral proceeding on habeas corpus after the judgment has been affirmed on appeal. That was the holding in In re Jackson, 61 Cal.2d 500, 505-508, 39 Cal.Rptr. 220, 393 P.2d 420. The instant proceeding is substantially similar to that involved in the Jackson case, and the result reached there must be reached here.

The holding in In re Lopez, 65 A.C. 380, 42 Cal.Rptr. 188, 398 P.2d 380, to the effect that the Escobedo-Dorado type of error cannot be reached retroactively on collateral attack by habeas corpus, in no way limits or qualifies the rule of the Jackson case. In Lopez we held that the Escobedo- Dorado type of error could not be reached retroactively by habeas corpus because the rules of those cases were fundamentally predicated on correcting improper police practices, and should not, therefore, be retroactive. But as held in Morse, Terry, Hines and Jackson, supra, the type of error here involved goes to the fundamental issue of whether defendant has been afforded a fair trial on the issue of whether he should suffer the death penalty. Such an issue may be raised on habeas corpus after the decision on appeal has become final.

Thus, under well-settled principles, the judgment must be reversed as to the penalty, and that issue must be ordered retried.

The next contention, raised in a supplementary brief, is governed by different principles. It is that the judgment as to guilt must also be reversed because the record shows error of the type condemned in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. ^a In that case the United States Supreme Court held that the California constitutional provision permitting comment on the failure of the defendant to testify (Cal.Const., art. I, § 13) was unconstitutional for the reason that it violated the Fifth Amendment to the United States Constitution made applicable to the states by the decision of Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.

There can be no doubt that error occurred during the trial in this respect. The prosecutor argued at length about the permissible adverse inferences based on defendant's failure to take the stand, and a jury instruction similar to the one condemned in Griffin v. State of California, supra, was given to the jury. The question presented is whether or not such error can be raised retroactively on collateral attack by habeas corpus. In other words, is Griffin v. State of California, supra, to be applied retrospectively so as to affect judgments final at the time it was decided?

We think not. The error is not of the type that pervades the entire trial so as to deny due process and a fair trial such as was involved in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed. 908, and similar cases. In fact, it is not even the type of error that is reversible we must 'weigh the merits and demerits 869, 44 Cal.Rptr. 649, 402 P.2d 529.)

The problem here involved is controlled by the recent decision of the United States Supreme Court in Linkletter v. Walker, 85 S.Ct. 1731. ^b In that case we were told that in determining whether a particular rule was or was not to be applied retroactively we must 'weight the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.' (Id. at p. 1738.) If the rule announced in Griffin v. State of California, supra, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, be examined in the light of these factors we conclude 'that though the error complained of might be fundamental it is not of the nature requiring us to overturn all final convictions based upon it.' (Id. at p. 1743.)

Insofar as the prior history of the rule is concerned, historically the courts of this state have relied, previous to Griffin, upon United States Supreme Court decisions permitting the court and prosecutor to comment, and the court to instruct, as to defendant's failure to testify. Based primarily on United States Supreme Court decisions which hold that the privilege against self-incrimination is not safeguarded against state action by the Fourteenth Amendment and hence that comments on a defendant's failure to take the stand violated none of his constitutional rights (Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Adamson v. State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903), the courts of this state have long utilized the 1934 constitutional amendment permitting the court and the prosecutor to comment on the defendant's failure to testify and to advise the jury that it may draw inferences unfavorable to the defendant on that account. (See, e. g., People v. Adamson, 27 Cal.2d 478, 165 P.2d 3.) It was not until last year that the United States Supreme Court overruled these prior decisions and held that the Fifth Amendment right against self-incrimination applies to the states through the Fourteenth Amendment. (Malloy v. Hogan, supra, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.)

In Linkletter the court emphasized 'the reliance placed upon' Wolf v. State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, by the states. (85 S.Ct. at p. 1741.) Wolf was the case overruled by Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. In similar fashion we cannot ignore the fact that until very recently the courts of this state applied the comment rule in reliance upon Supreme Court decisions as firmly implanted as the Wolf doctrine. We believe that the announced constitutionality of the comment rule prior to Griffin, just as the Wolf doctrine prior to Mapp, is "an operative fact and may have consequences which cannot justly be ignored." (Ibid.)

Although the purpose of Griffin was not solely to deter futur comments or instructions in violation of the Fifth Amendment, neither was Griffin directed to the correction of past errors to the same degree as those cases which have been retroactively applied. Certainly, the comment rule has not infected trials to the same degree as those errors that the Supreme Court has cured retroactively. ¹

It should also be kept in mind that the limiting rules of California which surrounded the coment rule materially reduced the effect of the comment or instruction on the resolution of the case. Long ago this court severely curtailed the effect of the comment rule by requiring instructions that defendant's failure to deny or explain evidence against him did not create a presumption of guilt or of the truth of the facts, that the prosecution was...