In Re Jackson

McCOMB, J.

I dissent from the granting of the writ of habeas corpus. The record in this case discloses the following:

This court unanimously affirmed (a) the conviction of petitioner of first degree murder and (b) the imposition of the death penalty. (People v. Jackson, 59 Cal.2d 375 [29 Cal.Rptr. 505, 379 P.2d 937].)

In that opinion Chief Justice Gibson, speaking for a unanimous court, stated, at pages 377 et seq.: “The evidence is clearly sufficient to sustain the finding of guilt, and defendant makes no claim of error with respect to that issue. His contentions relate to asserted errors occuring during the penalty trial.

“It was error to instruct as to the possibility of parole without a qualification based on the practices of the Adult Authority. However, the principal consideration with respect to parole was not whether defendant might be released in seven years as distinguished from 10 or 12 years but whether in the event of a life sentence defendant would at any time become eligible for parole. In arguing to the jury defense counsel did not rely on the difference between seven years on the one hand and 10 or 12 years on the other but urged that, in view of the crimes committed, defendant would never be paroled if he were given a life sentence. Moreover, the jury was instructed that in fixing the penalty it was under a duty to consider all the evidence. Accordingly, there is no reasonable likelihood that the instruction as to the possibility of parole without an appropriate qualification prejudiced defendant. ...” (Italics added.)^*

Petitioner now contends that he is entitled to a writ of habeas corpus in view of the decision of this court in People v. Morse, supra, 60 Cal.2d 631. It is my opinion that he is not.

In the Morse case our reversal was expressly predicated on our finding that “after examination of the entire cause, including the evidence, we are of the opinion that it is reasonably probable that a result more favorable to defendant as to penalty would have been reached in the absence of the error.” (60 Cal.2d at p. 653.)

As set forth above, whether an instruction on the possibility of parole, without an appropriate qualification, prejudiced defendant was the very question passed upon by a unanimous court in People v. Jackson, supra, 59 Cal.2d 375, 379 [1], The record before us now is precisely the same record that was before us then. Because the prior decision of this court, holding that the giving of such instruction was not prejudicial error, has become final, and because the Supreme Court of the United States has, as pointed out, recently-denied a petition for writ of certiorari, I am of the view that we should not reopen the matter for further discussion.

Mr. Justice Traynor has stated the danger of reopening a matter under such circumstances as here exist, as follows: "There might well be a quarrel between the Constitution and common sense if each such change served to invite fresh attacks on final judgments. Every judgment would be vulnerable that had been affirmed on appeal under the pre-existing rule.” (Traynor, Mapp v. Ohio at Large in the Fifty States, 1962 Duke L.J. 319, 341.)

Mr. Justice Traynor’s view is in accord with that of the federal courts, which do not give retroactive effect to overruling decisions of the Supreme Court of the United States. (Gaitan v. United States (10th Cir. 1961) 295 F.2d 277, 280; United, States v. Sobell (D.C.S.D.N.Y. 1962) 204 F. Supp. 225, 227 [1, 2]; cf. Collins v. Webb (D.C.N.D.Cal. 1955) 133 F. Supp. 877, 879 [2-4].)

Mr. Justice Douglas, speaking for the Supreme Court of the United States in Sunal v. Large, 332 U.S. 174, 181-182 [67 S.Ct. 1588, 91 L.Ed. 1982, 1988-1989], discussing a similar question, stated: "But since they chose not to pursue the remedy which they had, we do not think they should now be allowed to justify their failure by saying they deemed any appeal futile.

"We are dealing here with a problem which has radiations far beyond the present eases. The courts which tried the defendants had jurisdiction over their persons and over the offense. They committed an error of law in excluding the defense which was tendered. That error did not go to the jurisdiction of the trial court. Congress, moreover, has provided a regular, orderly method for correction of all such errors by granting an appeal to the Circuit Court of Appeals and by vesting us with certiorari jurisdiction. It is not uncommon after a trial is ended and the time for appeal has passed to discover that a shift in the law or the impact of a new decision has given increased relevance to a point made at the trial but not pursued on appeal. Cf. Warring v. Colpoys, supra. [122 F.2d 642.] If in such circumstances, habeas corpus could be used to correct the error, the writ would become a delayed motion for a new trial, renewed from time to time as the legal climate changed. Error which was not deemed sufficiently adequate to warrant an appeal would acquire new implications. Every error is potentially reversible error; and many rulings of the trial court spell the difference between conviction and acquittal. If defendants who accept the judgment of conviction and do not appeal can later renew their attack on the judgment by habeas corpus, litigation in these criminal eases will be interminable. Wise judicial administration of the federal courts counsels against such course, at least where the error does not trench on any constitutional rights of defendants nor involve the jurisdiction of the trial court.

“An endeavor is made to magnify the error in these trials to constitutional proportions by asserting that the refusal of the proffered evidence robbed the trial of vitality by depriving defendants of their only real defense. But as much might he said of many rulings during a criminal trial. Defendants received throughout an opportunity to be heard and enjoyed all procedural guaranties granted by the Constitution. Error in ruling on the question of law did not infect the trial with lack of procedural due process. As stated by Mr. Justice Cardozo in Escoe v. Zerbst, 295 U.S. 490, 494 [55 S.Ct. 818, 79 L.Ed. 1566, 1569], ‘When a hearing is allowed but there is error in conducting it or in limiting its scope, the remedy is by appeal. ’ ” (Italics added.)

Mr. Chief Justice Gibson, in In re Dixon, 41 Cal.2d 756, 759 [1] [264 P.2d 513], stated: “The general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction. (In re McInturff, 37 Cal.2d 876, 880 [236 P.2d 574]; In re Connor, 16 Cal.2d 701, 705 [108 P.2d 10]; see In re James, 38 Cal.2d 302, 309 [240 P.2d 596]; In re Manchester, 33 Cal.2d 740, 742 [204 P.2d 881]; In re Byrnes, 26 Cal.2d 824, 827 [161 P.2d 376]; cf. Brown v. Allen, 344 U.S. 443 [73 S.Ct. 397, 420-422, 97 L.Ed. 469].) The only explanation given by petitioner for his failure to appeal is that he lost the right because of his ignorance of the law and because of a lack of funds necessary to order a transcript of the record. [Italics added.]

“. . . Likewise, petitioner’s contentions that irrelevant evidence was erroneously admitted at his trial and that the prosecution was guilty of misconduct clearly could have been dealt with upon a timely appeal from the judgment of conviction, and such matters are not reviewable in this proceeding. (In re Manchester, 33 Cal.2d 740, 743-744 [204 P.2d 881]; In re Lindley, 29 Cal.2d 709, 723-724 [177 P.2d 918].)” (P. 762 [13].)

Mr. Justice Peters, in In re Mitchell, 56 Cal.2d 667, at page 671 [5] [16 Cal.Rptr. 281, 365 P.2d 177], said: “It is well settled that ‘habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction. ’ (In re Dixon, 41 Cal.2d 756, 759 [264 P.2d 513], citing many eases.) ”

I am in accord with the views expressed by Attorney General Mosk through Deputy Attorney General Albert W. Harris, Jr., during the oral argument on the matter now pending before this court.

In substance, he stated as follows: “Apparently all persons sentenced to death in this state and now awaiting execution, other than one tried by the court, will be able to raise the same point raised here; and the Supreme Court now must determine what it is going to do in connection with its own judgments of affirmance in those cases.

“I cannot conceive of any basis for reversing those judgments which have become final, unless this court is prepared to say that these men were not given fair trials.

“You have not made the rule of the Morse case retroactive, and I think that if you do, there are going to be serious questions about our system of justice in this state.

“This court has declared a rule, and the people who administer justice in this state are quite prepared to follow it, but we ask as to cases which were tried before and as to eases in which there was no question of unfairness that you should not set aside those judgments, or you will come very close to shattering the confidence of the people of this state in our system of justice and your judgments. The respect you give the judgments will be the measure of the respect other courts give those judgments.

“In the present case, in arguing to the jury defense counsel urged that in view of the crimes defendant had committed, he would never be paroled if he were given a life sentence, and the jury was instructed that in fixing the penalty, it was under a duty to consider all the evidence. Under the circumstances, there is no reasonable likelihood that the instruction as to the possibility of parole, without an appropriate qualification, prejudiced defendant. Defendant is subject to the death penalty, because the jury fixed it, and he had a fair trial. If those conditions are present, and the court had jurisdiction, this court has always said, ‘We will not inquire any further into it.’ This defendant had a fair trial. He was sentenced to death, and if there is some element of injustice, the Governor sits to take care of matters of that kind. If this court grants relief through the vehicle of habeas corpus, I see no end of litigation in death eases. ’ ’

An examination of the entire record in this ease convinces me that there was no prejudicial error. Therefore, under article VI, section 4%, of the Constitution, the petition should be denied. (Cf. concurring and dissenting opinions by Schauer, J., and myself in People v. Hines, ante, pp. 164, 175 et seq. [37 Cal.Rptr. 622, 390 P.2d 398].)

Schauer, J., concurred.

Respondent’s petition for a rehearing was denied August 5, 1964. Schauer, J., and McComb, J., were of the opinion that the petition should be granted.

* On March 26, 1964, two and a half months after the filing of our decision in People v. Morse, 60 Cal.2d 631 [36 Cal.Rptr. 201, 388 P.2d 33], petitioner filed in the Supreme Court of the United States a petition for writ of certiorari, contending that his criminal act was the result of an uncontrollable impulse and that therefore, even though he was legally sane under the M’Naghten rule, the imposition of the death penalty violated due process of law under the Fourteenth Amendment or the prohibition against cruel and unusual punishment of the Eighth Amendment. He again failed to raise the question he now presents. The petition was denied June 1,1964.