In re Gaines , 45 Cal. Rptr. 865 ( 1965 )

BURKE, J., Concurring and Dissenting.

I concur in that portion of the majority opinion holding that the judgment as to guilt need not be reversed because the record shows error of the type condemned in Griffin v. California, 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106], and that such error cannot be raised collaterally on habeas corpus after the judgment has become final.

I dissent from that portion of the opinion which reverses the judgment imposing the death penalty. In that connection, I would deny the writ for the reasons set forth in the prior opinion of this court in October 1962 when the judgment of conviction of this defendant and the sentence of death were both affirmed after full review and consideration following which the United States Supreme Court denied certiorari (373 U.S. 928 [83 S.Ct. 1532, 10 L.Ed.2d 427]).

The majority base their reversal of the death penalty on People v. Morse, 60 Cal.2d 631 [36 Cal.Rptr. 201, 388 P.2d 33], In this connection, I refer to the dissent of Mr. Justice Schauer in People v. Hillery, 62 Cal.2d 692, 714-715 [44 Cal.Rptr. 30, 401 P.2d 382], wherein he pointed out that section 4½, article VI of the California Constitution “peremptorily forbids this court to reverse for mere error ‘as to any matter of pleading, or . . . procedure,’ whether prejudicial or otherwise, ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. ’ ”

In the instant case, as in Hillery, there is no suggestion that there is any doubt whatsoever as to the guilt of this defendant, or the justness of the verdict. Under these circumstances, in Hillery, (62 Cal.2d at p. 715) Justice Schauer posed the question, “How then could the majority solemnly hold that the verdict in this case works a miscarriage of justice ? Absent that holding, the reversal works a miscarriage of justice.”

See also my dissenting opinion in In re Lessard, 62 Cal.2d 497, 513-514 [42 Cal.Rptr. 583, 399 P.2d 39].

McComb, J., and Schauer, J.,^* concurred.

* Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.