Charles

In People v. Aranda (1965) 63 Cal.2d 518 [ 47 Cal.Rptr. 353 , 407 P.2d 265 ], we established rules governing the conduct of joint trials in which one defendant’s extrajudicial statement implicates a codefendant. We hold in the instant case that those rules are available to defendants whose judgments of conviction are still on appeal even though they were tried before the date of the Aranda decision, November 12,1965.

The trial in this ease began on May 28, 1964. .On June 26, 1964, after finding both defendants guilty of ármed robbery (Pen. Code, §§ 211, 211a), the trial court entered the judgments of conviction which defendants challenge in this appeal. These judgments were pending on direct review when we filed our decision in Aranda , and were not yet final on June 13, 1966, when the United States Supreme Court decided Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ].

Under People v. Rollins (1967) 65 Cal.2d 681 [ 56 Cal.Rptr. 293 , 423 P.2d 221 ], the present ease is governed by the principles set forth in Escobedo v. Illinois (1964) 378 U.S. 478 [ 12 L.Ed.2d 977 , 84 S.Ct. 1758 ], and People v. Dorado (1965) 62 Cal.2d 338 [ 42…

I concur with everything said in the main opinion except with that portion that attempts to explain, justify and distinguish the majority rule adopted in People v. Rollins, 65 Cal.2d 681 [ 56 Cal.Rptr. 293 , 423 P.2d 221 ], That case held that the rules adopted in Miranda v. Arizona, 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ], as a matter of state policy, should be applied prospectively. The rules there involved were of constitutional dimensions and affected the defendant’s right to a fair trial. In the present case, it is held that the rules announced in People v. Aranda, 63 Cal.2d 518 [ 47 Cal.Rptr. 353 , 407 P.2d 265 ], have partial retroactivity so as to apply to pending appeals, even though the rules there announced are not of constitutional dimensions. The two cases are completely inconsistent. This case cannot be distinguished from the Rollins case. Everything said in the main opinion in support of making Aranda partially retroactive applies with even greater force to the contention that Miranda should apply .to pending appeals. The main opinion expresses those reasons more eloquently and convincingly than I did in my dissent in the Rollins case…

I concur.

The result reached by the majority in reversing the Boddie conviction is compelled by the clear Dorado violation.

I cannot agree, however, that we should apply People v. Aranda (1965) 63 Cal.2d 518 [ 47 Cal.Rptr. 353 , 407 P.2d 265 ], to cases tried before the decision was rendered, even though hopefully there may be few in number. To do so makes rare prescience a requisite in prosecutors and trial judges.

The Chief Justice emphasized in Aranda (at p. 530) that “the rules we now adopt are to be regarded, not as constitutionally compelled, but as judicially declared rules of practice to implement section 1098. ’ ’

A rule of practice adopted by the Legislature would govern “from the date it takes effect and not before” (People v. Righthouse (1937) 10 Cal.2d 86, 88 [ 72 P.2d 867 ]). I find it difficult to accord greater sanctity to a judicially promulgated rule of practice.

I concur with the majority’s view that a collateral attack may not be used to challenge violations of the procedural requirements set forth in People v. Aranda, 63 Cal.2d 518 [ 47 Cal.Rptr. 353 , 407 P.2d 265 ], governing the conduct of joint trials in which one defendant's extrajudicial statement implicates a codefendant. I dissent, however, from the majority’s conclusions (1) that those requirements apply to cases on appeal that were tried before the requirements were even announced and (2) that those requirements should be extended to eases of trials by a judge sitting without a jury.

The United States Supreme Court utilized a trial date limitation for new rules of constitutional dimensions enunciated in Escobedo v. Illinois, 378 U.S. 478 [ 12 L.Ed.2d 977 , 84 S.Ct. 1758 ], and Miranda v. Arizona, 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ] (Johnson v. New Jersey, 384 U.S. 719 [ 16 L.Ed.2d 882 , 86 S.Ct. 1772 ]), and we adopted the same limitation with respect to the Miranda rules (People v. Rollins, 65 Cal.2d 681, 683 [ 56 Cal.Rptr. 293 , 423 P.2d 221 ] ; see also People v. Ryan, 152 Cal. 364, 368-369 [ 92 P. 853 ] ; Note 10 A.L.R.2d 1371 , 1414-1415). 1…