Rivers

John Rivers and two codefendants, Benny Carter and Walter Robinson, were convicted in 1960 of first degree robbery (Pen. Code, § 211). 1 Rivers alone appealed. He abandoned the appeal after his application for appointment of counsel on appeal was denied. The appeal was dismissed in 1961. Pursuant to Douglas v. California, 372 U.S. 353 [ 9 L.Ed.2d 811 , 83 S.Ct. 814 ], this court in 1965 directed the Court of Appeal, Fourth District, Division One, to recall the remittitur, vacate the order of dismissal, reinstate the appeal, and appoint counsel for Rivers. The Court of Appeal affirmed the judgment of conviction. We ordered a hearing in this court on our own motion to give further consideration to the possible application of 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 Cal.Rptr. 169 , 398 P.2d 361 ],

On March 21, 1960, a San Diego food market was robbed. An employee identified Rivers’ ear as the one he saw slowly pass the market several times shortly before the robbery. There were three men in the car. Three eyewitnesses identified the two codefendants as the robbers who entered the store. A police…

I dissent.

When appellate courts fix different dates for the operative effect of their decisions in criminal cases involving the same constitutional rights, confusion is bound to result. The instant case adds to that confusion by creating another unnecessary exception to an established rule.

Until relatively recently it was an established doctrine that *1006 decisions recognizing the existence of constitutional rights were retroactive in the full sense of that word. (Gideon v. Wainwright, 372 U.S. 335 [9 L.Ed.Ed 799, 83 S.Ct. 792 , 93 A.L.R.2d 733 ]; Hamilton v. Alabama, 368 U.S. 52 [ 7 L.Ed.2d 114 , 82 S.Ct. 157 ]; Douglas v. California, 372 U.S. 353 [ 9 L.Ed.2d 811 , 83 S.Ct. 814 ].) Then this court and the Supreme Court of the United States discovered the device of making such decisions partially retroactive so as to apply only to eases not reduced to final judgment when the rules were announced. (In re Lopez, 62 Cal.2d 368 [ 42 Cal.Rptr. 188 , 398 P.2d 380 ]; Linkletter v. Walker, 381 U.S. 618 [ 14 L.Ed.2d 601 , 85 S.Ct. 1731 ]; Tehan v. Shott, 382 U.S. 406 [ 15 L.Ed.2d 453 , 86 S.Ct. 459 ].) Then, apparently impressed with this newly discovered power, the United States…