In re Gaines

I concur in that portion of the majority opinion holding that the judg *241 ment 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…

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 , 338 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 well-settled 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 *236 to the decision of this court in the Morse case, supra, 60 Cal.2d 631 .

There is no doubt that error of the type condemned in People v. Morse, supra, occurred during the penalty trial of…