Lopez, In re

Decision Date29 January 1965
Docket NumberCr. 7794
Citation42 Cal.Rptr. 188,398 P.2d 380,62 Cal.2d 368
CourtCalifornia Supreme Court
Parties, 398 P.2d 380 In re Ernest Barrangan LOPEZ and Willard Arthur Winhoven on Habeas Corpus.

Willard Arthur Winhoven, in pro. per.

Morris Lavine and Hugh R. Manes, Los Angeles, under appointment by Supreme Court, for petitioners.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., Albert W. Harris, Jr., Deputy Atty. Gen., for respondent.

TOBRINER, Justice.

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 and Winhoven (1963) 60 Cal.2d 223, 32 Cla.Rptr. 424, 384 P.2d 16; cert. den. 375 U.S. 994, 84 S.Ct. 634, 11 L.Ed.2d 480.)

Lopez's petition for a writ of habeas corpus presents the question whetehr 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. State of 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 overbore defendant's will to resist nor is there any indication that his admissions were anything but 'freely self-determined. " (People v. Lopez and Winhoven (1963) 60 Cal.2d 223, 248, 32 Cal.Rptr. 424, 438, 384 P.2d 16, 30.) We further held that Lopez could not challenge the reading into the record of Luna's notes since he had not objected to this evidence at the trial. (Id. at p. 249, 32 Cal.Rptr. 424, 384 P.2d 153.)

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, 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, 84 S.Ct. at 1203.)

In the second of the cases, Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, the Supreme Court extended the right to counsel to the pre- indictment 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, 84 S.Ct. at p. 1765.)

We have held today in People v. Dorado (1965) Cal., 42 Cal.Rptr. 169, 398 P.2d 361, that a defendant's confession could not properly be introduced into evidence if (1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence established that he had waived these rights.

Whether or not Lopez's incriminating statements were improperly admitted under either Massiah or under Escobedo and Dorado, we hold that Massiah may not serve as the basis for collateral attack upon judgments which have become final before the date upon which the United States Supreme Court rendered that decision, nor may Escobedo or Dorado be applied to cases which have become final prior to the date that the United States Supreme Court rendered the Escobedo decision. 1

We reach this conclusion upon the basis of the three following propositions which we shall more fuly 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. Second, new interpretations of constitutional rights have been, and should be, applied retroactively only in those situations in which such new rules protect the innocent defendant against the possibility of conviction of a crime he did not commit; the fact that defendant was denied counsel under Escobedo does not affect the issue of guilt. Third, an absolute rule of retroactivity as to interpretations of constitutional rights which envisage the correction of future practices would impair the administration of criminal law and ultimately result in constitutional rigidity.

Turning to the first proposition, we believe that the United States Supreme Court in Escobedo sought primarily to prevent police tactics which, in the past, have spawned involuntary confessions. The court has concluded that presence of counsel would go far to eradicate such tactics. As a means to that end it held that, if the opportunity to procure such counsel had beendenied, the confession or incriminating statement procured by the police should not be introduced into evidence. Thus the rule contemplated the prospective prevention of coercive practices not the extirpation of such practices committed in the past.

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 selfdisclosure 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. (State of) Washington, 373 U.S. 503, 519, 83 S.Ct. 1336, 1346 (10 L.Ed.2d 513).' (378 U.S. at pp. 488-490, 84 S.Ct. at p. 1764.)

Likewise, the dissenting opinion of Mr. Justice White, in which Justices Clark and Stewart joined,...

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