Hayes

Opinion '

Defendant Louis Victor Hayes was convicted by jury trial of the first degree murder of Rigoberto G. (Pen. Code, § 187), 1 and the robbery (§ 211), rape (former § 261, subd. 3), and forcible oral copulation (§ 288a, subd. (c)) of the deceased victim’s wife, Marie G., as well as the burglary of their residence (§ 459). Hayes was found to have personally used a firearm in the commission of each offense (§ 12022.5.) Three special circumstances were found true: that defendant committed the murder while engaged in the commission of a robbery, rape, and burglary (§ 190.2, subd. (a)(17)(i), (iii), and (vii)). Hayes was sentenced to life imprisonment without possibility of parole on the murder count and determinate terms for the related offenses.

Surviving victim Marie G. was hypnotized within hours of the crimes for the purpose of assisting a police artist in the creation of a composite sketch of the face of her unmasked assailant, and to develop more information regarding the details of the crime.

For the reasons set forth hereafter, we conclude that under the rule of People v. Shirley (1982) 31 Cal.3d 18 [ 181 Cal.Rptr. 243 , 723 P.2d 1354 ], made retroactive in People v.…

I concur in the judgment. In the course of its opinion, however, the majority hold that Evidence Code section 795 (hereafter section 795) does not govern the admissibility of prehypnotic evidence that predated its effective date of January 1, 1985, and hence will not apply to a retrial in this case. I write separately to express my disagreement with this point.

I recognize, of course, the principle that a new statute is ordinarily presumed to operate prospectively. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1206-1209 [ 246 Cal.Rptr. 629 , 753 P.2d 585 ].) But I believe a well-settled corollary to that principle applies here, i.e., “procedural changes generally govern pending as well as future cases” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 843, fn. 7 [ 239 Cal.Rptr. 292 , 740 P.2d 404 ]), provided that vested rights are not adversely affected (see Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 394-395 [ 182 P.2d 159 ]). Under this rule our courts have often applied new procedural statutes to causes of action or proceedings arising from events that occurred before the statutes in question took effect. (See, e.g., Vinson v. Superior Court, supra,…

Defendant Louis Victor Hayes was convicted by jury trial of the first degree murder of Rigoberto G. (Pen. Code, § 187), [1] and the robbery (§ 211), rape (former § 261, subd. 3), and forcible oral copulation (§ 288a, subd. (c)) of the deceased victim's wife, Marie G., as well as the burglary of their residence (§ 459). Hayes was found to have personally used a firearm in the commission of each offense (§ 12022.5.) Three special circumstances were found true: that defendant committed the murder while engaged in the commission of a robbery, rape, and burglary (§ 190.2, subd. (a)(17)(i), (iii), and (vii)). Hayes was sentenced to life imprisonment without possibility of parole on the murder count and determinate terms for the related offenses.

Surviving victim Marie G. was hypnotized within hours of the crimes for the purpose of assisting a police artist in the creation of a composite sketch of the face of her unmasked assailant, and to develop more information regarding the details of the crime.

For the reasons set forth hereafter, we conclude that under the rule of People v. Shirley (1982) 31 Cal.3d 18 [ 181 Cal. Rptr. 243 , 723 P.2d 1354 ], made retroactive…