Concurring and dissenting.

I agree with the majority insofar as they reverse the judg *101 ment imposing the death penalty. I dissent from that portion of the majority opinion that refuses to consider the impact of the errors on the issue of guilt.

This case has been before us several times. On April 2, 1963, we affirmed the first degree murder judgment, imposing the death penalty (People v. Jackson, 59 Cal.2d 375 [ 29 Cal.Rptr. 505 , 379 P.2d 937 ]). Thereafter, on July 6, 1964, on habeas corpus, a new penalty trial was ordered because of errors condemned in People v. Morse, 60 Cal.2d 631 [ 36 Cal.Rptr. 201 , 388 P.2d 33 , 12 A.L.R.3d 810 ], The judgment was affirmed in all other respects (In re Jackson, 61 Cal.2d 500 [ 39 Cal.Rptr. 220 , 393 P.2d 420 ]). At the new penalty trial, a jury was waived, and again the death penalty was imposed. The present appeal is from that judgment and is automatic. (Pen. Code, § 1239, subd. (b).)

The appellant contends that at both the original guilt trial and at the retrial of the penalty issue there were admitted into evidence admissions and a confession in violation of the rules established in Escobedo v. Illinois, 378 U.S. 478 [ 12 L.Ed.2d 977 , 84 S.Ct. 1758 ], and People v. Dorado, 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ], and that such errors were highly prejudicial.

The majority find that such errors occurred and require a reversal of the penalty issue, but also hold that such errors cannot be legally considered on the guilt issue. With this latter conclusion T disagree.

It is established law that judgments which become “final” prior to the date of Escobedo (June 22, 1964) may not be attacked on the basis of Escobedo or Dorado. (In re Lopez, 62 Cal.2d 368, 372 [ 42 Cal.Rptr. 188 , 398 P.2d 380 ].) The rule defining finality for this purpose is stated by the United States Supreme Court in Linkletter v. Walker, 381 U.S. 618, 622 , in footnote 5 [ 14 L.Ed.2d 601, 604 , 85 S.Ct. 1731 ] : “By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed. ...”

In the present case the availability of appeal was exhausted on Hay 1, 1963, when defendant's petition for rehearing was denied by this court (People v. Jackson, supra, 59 Cal.2d 375 . 381), and, since certiorari was not sought by defendant, the time for petitioning for certiorari elapsed 90 days thereafter. 1 *102 Thus, under these rules, there can be no doubt that at one point the issue of guilt and the issue of penalty were both “final” before Escobedo was decided. But we recalled the remittitur, at least on the penalty issue. This reopened the penalty issue and required a retrial of that issue, which occurred after Escobedo . The real question with which we are now concerned is whether that action had any effect on the guilt issue so far as certiorari is concerned.

In several cases decided by this court we have apparently held that a determination of guilt is final for some purposes even though we reverse for a new penalty trial. We have held that if on the penalty retrial an attack is made on the guilt issue it is a collateral attack. (People v. Polk, 63 Cal.2d 443, 447-448 [ 47 Cal.Rptr. 1 , 406 P.2d 641 ] ; cf. People v. Terry, 61 Cal.2d 137, 151 [ 37 Cal.Rptr. 605 , 390 P.2d 381 ] ; People v. Love, 56 Cal.2d 720, 725 [ 16 Cal.Rptr. 777 , 17 Cal.Rptr. 481 , 366 P.2d 33, 809 ].) But we are not concerned with these generalizations. We are concerned with what the United States Supreme Court considers as “final” for the purposes here involved. That court has determined that finality for such purposes depends on when the time for petitioning for certiorari to that court has elapsed. Thus, the question of whether a reversal of the penalty issue also affected the finality of the judgment of guilt depends not upon our own definition of finality but upon whether the United States Supreme Court would treat the issue of guilt as reopened on a petition for certiorari properly filed from an affirmance after a penalty retrial.

There can be no doubt that affirmance of a judgment of guilt is considered a “final” judgment, so as to permit an immediate review by the United States Supreme Court, even though a new trial is ordered on the penalty issue. (Brady v. Maryland, 373 U.S. 83, 85, fn. 1 [ 10 L.Ed.2d 215, 217 , 83 S.Ct. 1194 ].) But this is not decisive. The high court has also held that, even though such a first review is possible on the issue of guilt, after a final determination of the penalty the issues involved on the guilt trial may be reviewed on the review of the penalty trial. This was the precise holding of Corey v. United States, 375 U.S. 169 [ 11 L.Ed.2d 229 , 84 S.Ct. 298 ], cited with approval by this court in People v. Ketchel, 63 Cal.2d 859, 864 [ 48 Cal.Rptr. 614 , 409 P.2d 694 ], There *103 defendant was sentenced twice for the same crime under a federal statute providing that an initial sentence may be rendered until more detailed information as a basis for determining final sentence is available. Recognizing that certiorari was available to review the first sentence, the court held that as a practical matter, the severity of the final sentence imposed is often a major factor in deciding whether to appeal, and that defendant had the option of appealing from either sentence because Congress did not intend to subject a defendant to the burden of having to choose whether to appeal without first knowing his punishment. The court stated that “Long-accepted and conventional principles of federal appellate procedure require recognition of the defendant’s right to await the imposition of final sentence before seeking review of the conviction. That is the general rule.” (Corey v. United States, supra, 375 U.S. at p. 176 [ 11 L.Ed.2d at p. 234 ].)

By this rule, the United States Supreme Court has recognized the decisive importance of knowing what the final sentence is before deciding whether to seek certiorari. Obviously the high court would not require one whose conviction is affirmed but the penalty reversed to choose once and for all right then whether to petition for certiorari on the guilt issue. In fact, it has been held in this state that where the issue of guilt is final but not the issue of penalty, the issue of guilt can be attacked on Escobedo-Dorado grounds. (People v. Ketchcl, supra, 63 Cal.2d 859, 863-865 .) In the present case the penalty judgment as well as the guilt judgment was “final” before Escobedo , so that the defendant knew his punishment at the time he was required to determine whether to petition for certiorari. He did not do so. But then, for proper reasons, we recalled the remittitur, and reopened the penalty issue. The present status of the case is the same as if we had ordered a new penalty trial on the first appeal. When we recalled our remittitur so as to reverse as to the penalty, the remittitur relating to the guilt trial was also necessarily recalled. 2 It is quite significant that without passing directly on the issue, it has been our practice to again affirm the judgment of guilt after reversing the penalty determination. (In *104 re Jackson, supra, 61 Cal.2d 500, 508 .) This would be meaningless if the guilt issue were not before us.

Under both state and federal law a final judgment from which an appeal may be taken in a criminal case is the sentence, that is, the judgment is the sentence. (Corey v. United States, supra, 375-U.S. 169, 174 [ 11 L.Ed.2d 229, 233 ] ; People v. Sweeney, 55 Cal.2d 27, 33, fn. 1 [ 9 Cal.Rptr. 793 , 357 P.2d 1049 ].) This equation of the judgment with the sentence strongly suggests that when a sentence is reversed no matter when, the United States Supreme Court 'will deem the whole judgment, including the conviction, to be reopened for the purpose of direct attack by writ of certiorari.

It follows, of course, that since the penalty determination is not yet final, defendant may attack the guilt trial on the ground that statements were admitted in violation of Escobedo and Dorado, 3 Because the case on the guilt issue was tried before Escobedo , defendant’s failure to object to the admission of his statements does not preclude him from raising the question on appeal. (People v. IIillery, 62 Cal.2d 692, 711 [ 44 Cal.Rptr. 30 . 401 P.2d 382 ].)

If the guilt trial is reopened by the granting of a new trial as to penalty, as I believe should be done, there can be no doubt that evidence was admitted during the guilt trial that violated the principles of Escobedo and Dorado . The question of whether such errors were prejudicial should, in my opinion, be reviewed on this appeal. That they were prejudicial seems to me clear beyond a possibility of a doubt. My reasons need not now be set forth in view of the majority’s refusal to even consider the question of error.

Thus, while I agree with the majority in the holding that the judgment insofar as it relates to penalty must be reversed, I disagree with the majority in holding that the propriety of the guilt determination should not also be reversed.

The 90-day period runs from the date of filing of the opinion unless a timely petition for rehearing is filed, in which ease it runs from the date *102 of the denial of the petition for rehearing. (Market Street Ry. Co. v. Railroad Com., 324 U.S. 548, 550-552 [ 89 L.Ed. 1171, 1176-1177 , 65 S.Ct. 770 ].)

When a remittitur is recalled the court does not "resume” jurisdiction that was lost by the issuance of the remittitur after the first appeal. The theory is that because of the irregularity jurisdiction was never lost. Once recalled, the decision on the first appeal is a nullity. (Isenberg v. Sherman, 214 Cal. 722, 726 [ 7 P.2d 1006 ] ; Rowland v. Kreyenhagen, 24 Cal. 52, 59 .)

It is true that in In re Lopez, supra, 62 Cal.2d 368 , where we reversed the penalty trial because of errors condemned in People v. Morse, supra, 60 Cal.2d 631 , we held that the judgment of guilt may not be attacked on Escoiedo-Dorado grounds because the guilt judgment had been affirmed prior to the decision in Escoiedo. Thus, factually, the problem involved here was also there involved, but the legal effect of the reversal as to penalty, the point here discussed, was not considered. It is elementary law that an opinion is not an authority for any proposition not considered in it.