Dore, J.
Petitioner collaterally attacks his conviction for second degree murder.
Issue
Should the holding of State v. Rogers, 83 Wn.2d 553, 520 [287] P.2d 159, cert. denied, 419 U.S. 1053, 42 L. Ed. 2d 650, 95 S. Ct. 633 (1974), invalidating RCW 9.41.030,1 be applied retroactively on a personal restraint petition?
Procedure
Petitioner was convicted of second degree murder in September 1969. The jury made a special finding that at the time the offense was committed, he was armed with a deadly weapon. He was sentenced to a term of 20 years of confinement.
This court affirmed petitioner's conviction. State v. Gilbert, 3 Wn. App. 491, 475 P.2d 797 (1970). The Supreme Court denied review. State v. Gilbert, 78 Wn.2d 996 (1970). A personal restraint petition dated October 31, 1979, requested petitioner's release from prison.
Decision
Issue: Rogers should be retroactively applied.
In Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975), the United States Supreme Court held that the state has the burden of establishing, beyond a reasonable doubt, all elements of the criminal charge before an accused may be convicted. The court rejected the state court's determination that the prosecution could rely on a "presumption of implied malice" and require the defendant to prove that he had acted in the heat of passion on sudden provocation in order to successfully reduce the charge of murder to manslaughter.
In State v. Rogers, supra, our Supreme Court held that RCW 9.41.0302 was an unconstitutional intrusion on [288] defendant's Fifth and Fourteenth Amendment rights. The following jury instruction, based on that statute, was held improper:
You are instructed that in the trial of a person for committing or attempting to commit a crime of violence, the fact that he was armed with a pistol and had no license to carry the same shall be prima facie evidence of his intention to commit said crime of violence. The presumption thus created is not binding upon you, but should be given only such weight as it seems to you to merit. This presumption permits, but in no way directs, you to convict the accused, and must be considered by you in light of the presumption of innocence which arises upon a plea of not guilty and accompanies the accused throughout the trial until overcome by evidence which convinces you of the accused's guilt beyond a reasonable doubt.
(Italics ours.) State v. Rogers, supra at 555. The court reasoned that the presumed fact (specific intent to commit murder) did not follow beyond a reasonable doubt from the proven fact (armed with an unlicensed handgun).
The identical jury instruction as that set forth above, and invalidated in Rogers, was read to the jury in the subject case. State v. Gilbert, supra at 492. Both Rogers and Mullaney were handed down subsequent to Gilbert's appeal. This court rested its decision to affirm Gilbert's conviction in part on State v. Thomas, 63 Wn.2d 59, 385 P.2d 532 (1963), which was overruled by State v. Rogers, supra at 556. The question as to the retroactivity of Rogers and Mullaney still remains, which we must resolve.
The rule of Mullaney is to be given full retroactive effect. In Hankerson v. North Carolina, 432 U.S. 233, 243, 53 L. Ed. 2d 306, 316, 97 S. Ct. 2339 (1977), it was held
[W]e have never deviated from the rule stated in Ivan V. [Ivan V. v. New York, 407 U.S. 203, 32 L. Ed. 2d 659, 92 S. Ct. 1951 (1972)] that '"[w]here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the [289] accuracy of guilty verdicts in past trials, the new rule [is] given complete retroactive effect.'" 407 U. S., at 204.
(Italics ours.)
In Williams v. United States, 401 U.S. 646, 28 L. Ed. 2d 388, 91 S. Ct. 1148 (1971), the court rejected the contention that the application of constitutional doctrines differed when the courts were confronted with collateral, as opposed to direct, appeals.3 In any event, the defendant in Mullaney was before that court as a habeas corpus petitioner.
Retroactivity of a federal constitutional rule which would determine the validity of a personal restraint petition was discussed in In re Farney, 91 Wn.2d 72, 583 P.2d 1210 (1978). The court found the constitutional rule, decided subsequent to the proceedings in that case, was applicable. This was grounded on Robinson v. Neil, 409 U.S. 505, 35 L. Ed. 2d 29, 93 S. Ct. 876 (1973).
We read Robinson to mean that when a positive constitutional right, such as the prohibition against placing a defendant in double jeopardy, is violated, the controlling United States Supreme Court decision is retroactively applied.
In re Farney, supra at 75-76.
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Dore, J.
Petitioner collaterally attacks his conviction for second degree murder.
Issue
Should the holding of State v. Rogers, 83 Wn.2d 553, 520 [287] P.2d 159, cert. denied, 419 U.S. 1053, 42 L. Ed. 2d 650, 95 S. Ct. 633 (1974), invalidating RCW 9.41.030,1 be applied retroactively on a personal restraint petition?
Procedure
Petitioner was convicted of second degree murder in September 1969. The jury made a special finding that at the time the offense was committed, he was armed with a deadly weapon. He was sentenced to a term of 20 years of confinement.
This court affirmed petitioner's conviction. State v. Gilbert, 3 Wn. App. 491, 475 P.2d 797 (1970). The Supreme Court denied review. State v. Gilbert, 78 Wn.2d 996 (1970). A personal restraint petition dated October 31, 1979, requested petitioner's release from prison.
Decision
Issue: Rogers should be retroactively applied.
In Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975), the United States Supreme Court held that the state has the burden of establishing, beyond a reasonable doubt, all elements of the criminal charge before an accused may be convicted. The court rejected the state court's determination that the prosecution could rely on a "presumption of implied malice" and require the defendant to prove that he had acted in the heat of passion on sudden provocation in order to successfully reduce the charge of murder to manslaughter.
In State v. Rogers, supra, our Supreme Court held that RCW 9.41.0302 was an unconstitutional intrusion on [288] defendant's Fifth and Fourteenth Amendment rights. The following jury instruction, based on that statute, was held improper:
You are instructed that in the trial of a person for committing or attempting to commit a crime of violence, the fact that he was armed with a pistol and had no license to carry the same shall be prima facie evidence of his intention to commit said crime of violence. The presumption thus created is not binding upon you, but should be given only such weight as it seems to you to merit. This presumption permits, but in no way directs, you to convict the accused, and must be considered by you in light of the presumption of innocence which arises upon a plea of not guilty and accompanies the accused throughout the trial until overcome by evidence which convinces you of the accused's guilt beyond a reasonable doubt.
(Italics ours.) State v. Rogers, supra at 555. The court reasoned that the presumed fact (specific intent to commit murder) did not follow beyond a reasonable doubt from the proven fact (armed with an unlicensed handgun).
The identical jury instruction as that set forth above, and invalidated in Rogers, was read to the jury in the subject case. State v. Gilbert, supra at 492. Both Rogers and Mullaney were handed down subsequent to Gilbert's appeal. This court rested its decision to affirm Gilbert's conviction in part on State v. Thomas, 63 Wn.2d 59, 385 P.2d 532 (1963), which was overruled by State v. Rogers, supra at 556. The question as to the retroactivity of Rogers and Mullaney still remains, which we must resolve.
The rule of Mullaney is to be given full retroactive effect. In Hankerson v. North Carolina, 432 U.S. 233, 243, 53 L. Ed. 2d 306, 316, 97 S. Ct. 2339 (1977), it was held
[W]e have never deviated from the rule stated in Ivan V. [Ivan V. v. New York, 407 U.S. 203, 32 L. Ed. 2d 659, 92 S. Ct. 1951 (1972)] that '"[w]here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the [289] accuracy of guilty verdicts in past trials, the new rule [is] given complete retroactive effect.'" 407 U. S., at 204.
(Italics ours.)
In Williams v. United States, 401 U.S. 646, 28 L. Ed. 2d 388, 91 S. Ct. 1148 (1971), the court rejected the contention that the application of constitutional doctrines differed when the courts were confronted with collateral, as opposed to direct, appeals.3 In any event, the defendant in Mullaney was before that court as a habeas corpus petitioner.
Retroactivity of a federal constitutional rule which would determine the validity of a personal restraint petition was discussed in In re Farney, 91 Wn.2d 72, 583 P.2d 1210 (1978). The court found the constitutional rule, decided subsequent to the proceedings in that case, was applicable. This was grounded on Robinson v. Neil, 409 U.S. 505, 35 L. Ed. 2d 29, 93 S. Ct. 876 (1973).
We read Robinson to mean that when a positive constitutional right, such as the prohibition against placing a defendant in double jeopardy, is violated, the controlling United States Supreme Court decision is retroactively applied.
In re Farney, supra at 75-76.
The petitioner in the subject case contends that the error made at his trial violated one of his "positive constitutional rights." We agree. At stake in the subject case is the possibility that, without the mandatory presumption raised by RCW 9.41.030, the State would have been unable to prove beyond a reasonable doubt the intent of the defendant to commit the crime. The general intent to commit murder is one of the essential elements of the offense which the State must prove beyond a reasonable doubt before an accused may be convicted of that crime. RCW 9A.32.050(l)(a).4 [290] The use of the mandatory presumption therefore "raises serious questions about the accuracy of [the] guilty verdicts". Hankerson v. North Carolina, supra at 243. This presumption goes to the very heart of a defendant's Fifth and Fourteenth Amendment rights, State v. Rogers, supra at 556. We hold that a "positive constitutional right" of the defendant is at issue and the controlling case of Mullaney v. Wilbur, supra, should be applied retroactively.
The retroactive application of State v. Roberts, 88 Wn.2d 337, 562 P.2d 1259 (1977), which found a burden-shifting jury instruction to be constitutionally infirm, was discussed in In re Myers, 91 Wn.2d 120, 587 P.2d 532 (1978), cert. denied sub nom. Myers v. Washington, 442 U.S. 912, 61 L. Ed. 2d 278, 99 S. Ct. 2828 (1979). In Myers the court followed our state procedural rule and refused to grant the personal restraint petition. It found that Roberts did not have to be retroactively applied on collateral attack inasmuch as the petitioner had failed to make the objection on his direct appeal to the instructions given at his trial. It relied, in part, on Hankerson v. North Carolina, supra, which stated at page 244 n.8, quoted by Myers, supra at page 125,
If the validity of such burden-shifting presumptions was as well settled in the States that have them as respondent asserts, then it is unlikely that prior to Mullaney many defense lawyers made appropriate objections to jury instructions incorporating those presumptions. . . . The States, if they wish, may be able to insulate past [291] convictions by enforcing the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error.
The court noted that " [ejxecutive clemency and the parole system are available for those cases that are particularly deserving." Myers, at 125.
The holding in Myers was based on the petitioner's failure to object to the instructions on direct appeal. "Accordingly, we hold that the general rule—i.e., the failure to identify errors at trial or prosecute them on appeal precludes reliance thereon in subsequent proceedings—applies to alleged errors raised for the first time on collateral attack." (Italics ours.) In re Myers, supra at 125-26. This rationale was apparently employed in State v. Davis, 25 Wn. App. 134, 141, 605 P.2d 359 (1980), where the court refused to apply Roberts retroactively.
The case at bar does not suffer from the Myers infirmity. Petitioner Gilbert did object to the instruction, based on RCW 9.41.030, which raised a presumption of specific intent from the fact of his having been armed with an unlicensed handgun. This objection was raised on his direct appeal to this court, even though his case predated the Rogers opinion. State v. Gilbert, 3 Wn. App. 491, 492, 475 P.2d 797 (1970).
We conclude that the rationale of Rogers shall be retroactively applied to the subject case, and the petitioner's personal restraint writ be granted.
Conclusion
We order that the personal restraint petition of Ross Martin Gilbert is granted subject to the following conditions:
1. That the State retry the defendant as charged within 60 days after issuance of a writ of mandate from this court (RAP 12.5).
2. That the trial court determine the propriety of permitting the defendant to post bail and secure his freedom pending his retrial.
[292] If the State fails to retry the defendant within the time frame as provided here, the charges against the defendant will be dismissed with prejudice.
We remand the subject case to the trial court for procedures consistent with this opinion.
Ringold, J., concurs.