People v. Doherty

429 P.2d 177, 67 Cal. 2d 9, 59 Cal. Rptr. 857, 1967 Cal. LEXIS 202

• Court: California Supreme Court
• Decided: July 10, 1967
• Docket: Crim. 10097
• Status: Published

Opinions

TOBRINER, J.

The prosecution charged defendant with violations of Health and Safety Code sections 11500 (possession of heroin) and 11530 (possession of marijuana). The jury failed to reach a verdict on the first count but found defendant guilty of possessing marijuana. Ordering the dismissal of the first count, the court entered a judgment of conviction on the second count. Defendant appeals from this judgment.

We reverse this conviction because the trial court errqneously admitted certain of defendant’s extrajudicial statements, which he gave without advice of his right to counsel and his right to remain silent. (Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758] ; People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361].) Upon retrial, if the prosecution should again seek to use these or any other statements, the trial court must determine their admissibility in light of the rules set forth in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], For further guidance of the court upon retrial we take this occasion to reject defendant’s additional argument that evidence introduced against him constituted the product of an illegal-search.

According to the testimony at trial, two Los Angeles County deputy sheriffs, responding to a call from the attendant, went to a service station at 3 a.m., the morning of-August 24, 1964. The attendant had called law enforcement officers because three men refused to leave the premises. The deputies saw two men, including defendant, standing near the open hood of a car parked in the service station lot. A third man was lying underneath the car, apparently repairing it.

One deputy, asked defendant and his companions for identification. At that time the other deputy, Deputy Dunlop, saw defendant take a small white package out of his pocket and put it down in the engine. The deputies ordered the men to stand away from the vehicle. They then searched the engine and found the object; it was a white paper towel wrapped around -a brown bag, which contained material that was later -identified as marijuana and heroin. The deputies thereupon arrested defendant and his companions.

After his arrest defendant gave three statements to the authorities, each of which we discuss separately. The first of these was exculpatory; the second and third, incriminatory. The first occurred about noon on August 24 when Deputy Sheriff Berman and another deputy engaged in a “conversation” with defendant at the sheriff’s Lennox Station. The deputies did not advise defendant of his right to remain silent or his right to counsel. In response to questions defendant stated that he had never seen the package containing the heroin and marijuana until after the deputies had discovered it in the engine of the car.

DeputyBerman nagain -questioned -.defendant at 6 :1b pun: the next: day-.and obtained answers to.-his. queries .which'we have characterized as defendant’s second statement. The deputy did not first advise defendant of his right to counsel or his right to remain silent but told defendant that he had talked with defendant's two companions and had become convinced that defendant had possessed the package. He asked if defendant would like to make a statement; defendant replied, “I want to say something but I can’t.” The deputy then told defendant that if in fact he was the possessor of the package he should not allow his two companions to go to jail. Explaining in detail his reasons for believing defendant to be the guilty party, the deputy again asked if defendant wanted to make a statement.

Defendant then stated that on the previous evening a friend had approached him and asked him to hold a package; the friend told defendant, “The police are outside. I am going to get rousted. ’ ’ Defendant asked what was in the package; the friend replied, “Weed and pills.”¹ Defendant thereupon put the package in his pocket and forgot about it until the deputies approached him at the service station. He stated that he would not have accepted the package if he had not been intoxicated. Defendant signed a written statement containing the substance of his oral remarks, which we designate as his third statement; again the officers did not advise him of his right to counsel or his right to remain silent.

We first consider defendant’s contention that the admission into evidence of his incriminating second and third statements violated the constitutional rules set forth in Escobedo v. Illinois, supra, 378 U.S. 478, and People v. Dorado, supra, 62 Cal.2d 338.² The Attorney General, while admitting that defendant objected to the introduction of the third statement on Escobedo-Dorado grounds, contends that defendant failed so to object to the admission of the second statement and that defendant is therefore precluded from raising the issue here. Since defendant’s trial took place in November 1964, after the date on which the United States Supreme Court decided Escobedo, the Attorney General argues that a failure to tender such objection constitutes a waiver of the constitutional right.

We have concluded, however, that the failure of a defendant to object to the introduction of illegally obtained statements at a trial held prior to January 29, 3965, the date of this court’s final Dorada ruling as to defendant's constitutional rights,³ does not automatically operate as a waiver of such rights. We held in Dorado that the principles established by Escobedo could not logically be limited to statements which had been obtained after the suspect’s request for counsel had been denied. A number of state and federal courts, however, had not yet fully " perceived the implications of Escobedo.” (Johnson v. New Jersey (1966) 384 U.S. 719, 733 [16 L.Ed.2d 882, 892, 86 S.Ct. 1772].) “Defendants can no more be charged with anticipating [those implications] than can the States.” (O’Connor v. Ohio (1967) 385 U.S. 92, 93 [17 L.Ed.2d 189, 196, 87 S.Ct. 252] (per curiam) (referring to Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229]).)

In the absence of special circumstances justifying an inference of knowing and intelligent waiver of an Escobedo-Dorado claim,⁴ cannot assume such a waiver in a trial held before January 29, 1965. (People v. Natividad (1966) 240 Cal.App.2d 244, 246-247 [49 Cal.Rptr. 437] ; see also People v. Janssen (1965) 238 Cal.App.2d 106, 109 [47 Cal.Rptr. 453] ; People v. Gastelum (1965) 237 Cal.App.2d 205, 209 [46 Cal.Rptr. 743] ; People v. Berry (1965) 236 Cal.App.2d 460, 462 [46 Cal.Rptr. 298] ; compare Miranda v. Arizona, supra, 384 U.S. 436, 495-496 fn. 69 [16 L.Ed.2d 694, 735-736] ; People v. Treloar (1966) 64 Cal.2d 141, 143-144 [49 Cal.Rptr. 100, 410 P.2d 620] ; In re Varnum (1965) 63 Cal.2d 629. 631 [47 Cal.Rptr. 769, 408 P.2d 97] ; People v. Hillery (1965) 62 Cal.2d 692, 711 [44 Cal.Rptr. 30, 401 P.2d 382] ; People v. Kitchens (1956) 46 Cal.2d 260, 262-263 [294 P.2d 17].) Insofar as previous decisions of the Courts of Appeal rest on a contrary assumption they are disapproved and not to be followed (see, e.g., People v. Miller (1966) 245 Cal.App.2d 112, 144, 145 [53 Cal.Rptr. 720] (dictum) ; People v. Woods (1966) 239 Cal.App.2d 697, 704-705 [49 Cal.Rptr. 266] ; People v. Valdez (1966) 239 Cal.App.2d 459, 465-466 [48 Cal.Rptr. 840] ; People v. Almond (1965) 239 Cal.App.2d 46, 49-50 [48 Cal.Rptr. 308] ; People v. Brown, supra, 238 Cal.App.2d 924, 929 ; People v. Palmer (1965) 236 Cal.App.2d 645, 650 [46 Cal.Rptr. 449] (dictum)).

In the instant case, however, we need not determine whether special circumstances justify an inference of knowing and intelligent waiver. Contrary to the Attorney General’s contention, the record discloses upon closer examination that defense counsel appropriately objected to the admission of both defendant’s second and third statements.

Having thus determined that we may properly consider defendant’s Dorado contention, we point out that the prosecution has not sustained its burden of showing that at the time the deputy obtained defendant's incriminating second and third statements the accusatory stage had not matured. Since the. deputy did not first advise defendant of his right to counsel and his right to remain silent the trial court should have excluded the statements; its failure to do so constituted reversible error.⁵

In People v. Stewart (1965) 62 Cal.2d 571 [43 Cal.Rptr. 206, 400 P.2d 97], affd. sub nom. Miranda v. Arizona, supra, 384 U.S. 436, we set forth the circumstances which signal the advent of the accusatory stage. " [W] hen the officers have arrested the suspect and the officers have undertaken a process of interrogations that lends itself to eliciting incriminating statements, the accusatory or critical stage has been reached. . . .” (62 Cal.2d at p. 577.) We entertain no doubt that the first of these conditions clearly appears; when defendant made his incriminating statements he had been arrested and thereafter held in custody for over 36 hours.

Turning to the second condition, we note that the record fails to disclose that, the officers had not undertaken a process of interrogations that lent itself to eliciting incriminating statements. In People v. Luker (1965) 63 Cal.2d 464 [47 Cal.Rptr. 209, 407 P.2d 9], we said: “When a record, however, reveals that the defendant has been arrested, has [thereafter] been questioned about the offense which occasioned the arrest, and no evidence indicates that the statements are in the nature of spontaneous disclosures, we do not presume that such a process of interrogations has not been undertaken.” (63 Cal.2d at pp. 473-474.) We held in People v. Stockman (1965) 63 Cal.2d 494 [47 Cal.Rptr. 365, 407 P.2d 277] : “It may reasonably be assumed, objectively, that an interrogation which does elicit incriminating statements was conducted by the police for that purpose, at least in part, and therefore the burden should be on the prosecution to show that the statements were the result of something other than a ‘process of interrogations that lends itself to eliciting incriminating statements. ’ ” (63 Cal.2d at pp. 498-499.)

The prosecution has not sustained the described burden. Defendant, during the first interrogation, had disclaimed any knowledge of the parcel. Only after the deputy confronted defendant with the evidence against him, and after the deputy explained his reasons for concluding that defendant was the guilty possessor of the package, did defendant make the incriminating second statement. Moreover, the deputy in effect suggested that, if defendant did not confess, his innocent friends would go to jail.

Since the record does not indicate that the accusatory stage had not yet matured but nevertheless shows that defendant’s second and third statements, given in the absence of the required advice, were received into evidence, we must, in accordance with our decisions, hold that error occurred. As the United States Supreme Court has noted, '‘ [W] e will not presume that a defendant has been effectively apprised of his rights ... on a record that does not show that any warnings have been given or that any effective alternative has been employed. Nor can a knowing and intelligent waiver of these rights be assumed on a silent record.” (Miranda v. Arizona, supra, 384 U.S. 436, 498-499 [16 L.Ed.2d 694, 737], affirming People v. Stewart, supra, 62 Cal.2d 571.)

As we shall explain, the error caused prejudice to defendant. We cannot accept the Attorney General’s argument that defendant’s second and third statements were merely exculpatory and hence harmless; that defendant said that he would not have accepted the parcel from his friend if he had not been intoxicated; and that, consequently, defendant did not confess to knowing possession of marijuana. Whether or not these statements technically constituted confessions, their use in evidence clearly prejudiced defendant. Aside from defendant’s incriminating statements, the only evidence connecting him with the crime consisted of the testimony of Deputy Dunlop that defendant had placed in the engine of the automobile a package later shown to contain marijuana. In his statements defendant admitted that he had in fact possessed the package and that he had been informed that the package contained marijuana.⁶ Following the test set forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824], we must reverse this conviction.

Upon retrial the issues of the admissibility of the defendant’s first statement, which was exculpatory, as well as of the succeeding incriminatory ones, may very well arise. We have pointed out that we need not discuss the admissibility of the first statement under Escobedo-Dorado because the second and third statements called for reversal on that score.

We believe that if the prosecution seeks to use the first statement or any other extrajudicial statement of defendant at retrial,⁷ Johnson v. New Jersey, supra, 384 U.S. 719, requires its exclusion unless the prosecution can prove that it was obtained in conformity with the standards announced in Miranda v. Arizona, supra, 384 U.S. 436. Johnson holds that Miranda governs " cases in which the trial began after ’' June 13, 1966 (p. 721 [16 L.Ed.2d p. 885]); it does not distinguish between original trials and retrials.

We reach this conclusion by pointing out that the United States Supreme Court in Johnson listed several grounds upon which the court relied in limiting the class of persons who, pursuant to the constitutional procedures set forth in Miranda, would obtain the protection of the Fifth Amendment privilege. We then explain that the court, in affording Miranda protection to defendants in trials beginning after June 13, 1966, thereby identified as the determinative factor the need to avoid imposition of undue burdens upon the administration of justice. Such burden would take the form of retrials of those numerous defendants who had been convicted in proceedings which contained no reversible error except the failure to comply fully with the guidelines enumerated in Miranda. We finally explain that no such undue burden attends our instant requirement for Miranda protections upon retrial because we must in any event reverse the conviction on the basis of other prejudicial errors.

The court in Johnson recognized that Miranda provides “important new safeguards against the use of unreliable statements at trial. ...” (Johnson v. New Jersey, supra, 384 U.S. 719, 730 [16 L.Ed.2d 882, 890].) Nevertheless, the court took the extraordinary step of according purely prospective effect to the newly announced constitutional standards. The court reasoned that “Law enforcement agencies fairly relied on . . . prior cases, now no longer binding, in obtaining incriminating statements during the . . . years preceding Escobedo and Miranda. ... At the same time retroactive administration of . . . Miranda would seriously disrupt the administration of our criminal laws. It would require the retrial or release of numerous prisoners found guilty by trustworthy evidence in conformity with previously announced constitutional standards.” (P. 731 [16 L.Ed.2d at p. 891].)

' ‘ All of the reasons set forth above for making . . . Miranda non-retroactive suggest that [Miranda] should apply only to trials begun after [the decision was] announced. Future defendants will benefit fully from our new standards governing in-custody interrogation, while past defendants may still avail themselves of the voluntariness test. Law enforcement officers and trial courts will have fair notice that statements taken in violation of these standards may not be used against an accused. . . . Authorities attempting to protect the privilege [against self-incrimination] have not been apprised heretofore of the specific safeguards which are now obligatory. Consequently they have adopted devices which, although below the constitutional minimum, were not intentional evasions of the requirements of the privilege. In these circumstances, to upset all of the convictions still pending on direct appeal which were obtained in trials preceding . . . Miranda would impose an unjustifiable burden on the administration of justice.” (Italics added.) (384 U.S. at pp. 732-733 [16 L.Ed.2d at pp. 891, 892].)

Although the court in Johnson in part justified Miranda’s prospectivity upon the reliance of law enforcement agencies on eases decided before Miranda, the court did not accord decisive importance to the reliance of police officers on prior decisions in planning admissible custodial interrogations. The court afforded the protection of Miranda “to cases in which the trial began after the. date of [that] decision” (p. 721 [16 L.Ed.2d at p. 885]) ; it did not hold that statements obtained prior to that date by methods not fully meeting the Miranda standard could be used in trials beginning thereafter. Thus even if a police officer, prior to June 13, 1966, had secured a confession from a suspect fully advised of, and willing to waive, the rights enumerated in Escobedo and Dorado, Johnson would forbid use of this confession at a trial held after June 13 unless the prosecution could also prove that the defendant had been advised of the additional rights set forth in Miranda and had knowingly and intelligently waived those rights.

In light of the numerous considerations underlying Miranda, including ‘ ‘ the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself” (Miranda v. Arizona, supra, 384 U.S. 436, 439 [16 L.Ed.2d 694, 704]) and the “possibility of unreliable statements in every instance of in-custody interrogation” (Johnson v. New Jersey, supra, 384 U.S. 719, 730 [16 L.Ed.2d 882, 890]), the court in Johnson evidently did not consider it unduly burdensome to require the prosecution to abstain from use of confessions obtained by methods permitted at the time of interrogation but condemned at the time of trial. (Cf. People v. Rollins, supra, 65 Cal.2d 681, 688 fn. 7.)⁸ The court found an “undue burden on the administration of justice ’’ (italics added) (384 U.S. at p. 733 [16 L.Ed.2d at p. 892]) only in those situations in which the application of Miranda would require reversal of " convictions . . . which were obtained in trials preceding . . . Miranda.” (Ibid.) Thus the specific rule adopted in Johnson emanated from the court’s expressed reluctance to “require the retrial or release of numerous prisoners” (p. 731 [16 L.Ed.2d 891]) whose trials were untainted with errors other than a lack of compliance with the later-announced Miranda rule.

As we have pointed out, however, we must reverse this conviction regardless of any Miranda violation; applying preMiranda law we must order a new trial because of errors prejudicial to the defendant. A retrial observance of contemporary constitutional requirements will not burden the administration of justice in the sense found undesirable in Johnson. We recognize, of course, that if the prosecution is to comply with Miranda upon retrial it may be constrained to forego use of extrajudicial statements elicited prior to June 13, 1966, which would have been admissible under the standards set forth in Escobedo and Dorado. This burden, however, is no greater than that caused by the prosecution’s inability to use statements similarly obtained against a defendant who faces trial for the first time after June 13, 1966. Since the United States Supreme Court in setting its cutoff date-did not consider that burden sufficient to outweigh the need for Miranda protections at trials beginning after June 13, 1966, we must, pursuant to Johnson, accord defendant those safeguards upon his second trial.

In the above holding we join other courts which have indicated that Miranda will apply in retrials of those defendants erroneously convicted in trials beginning before June 13, 1966. (See Gibson v. United States (5th Cir. 1966) 363 F.2d 146; United States ex rel. Pierce v. Pinto (D.N.J. 1966) 259 F.Supp. 729, 731, affd. per curiam (3d Cir. 1967) 374 F.2d 472; State v. Brock (1966) 101 Ariz. 168, 172 [416 P.2d 601, 605] ; State v. Ruiz (1966) 49 Hawaii 504, 506 fn. 3 [421 P.2d 305, 307 fn. 3] ; State v. McCarther (1966) 197 Kan. 279, 286-287 [416 P.2d 290, 296]; Creech v. Commonwealth (Ky. 1967) 412 S.W.2d 245, 247; State v. Shoffner (1966) 31 Wis.2d 412, 433 [143 N.W.2d 458, 468] ; see also People v. Hildabrandt (1966) 244 Cal.App.2d 423, 433 [53 Cal.Rptr. 99]; People v. Vaiza (1966) 244 Cal.App.2d 121, 128-129 [52 Cal.Rptr. 733] ; People v. Anderson (1966) 243 Cal.App.2d 243, 244 [52 Cal.Rptr. 201] ; cf. Moorer v. South Carolina (4th Cir. 1966) 368 F.2d 458, 462 ; contra, Jenkins v. State (1967) -Del.- [230 A.2d 262]; People v. Worley (1967) 37 Ill.2d 439 [227 N.E.2d 746]; People v. La Belle (County Ct. 1967) 53 Misc.2d 111 [277 N.Y.S.2d 847].)

We cannot apply a truncated version of the Constitution to the forthcoming proceeding merely because it is a second trial. We cannot rationally forbid the use of statements violative of Miranda for defendants first tried after June 13, 1966, and sanction such use for those tried at that time after an earlier nullified proceeding.⁹ Indeed Penal Code section 1180 specifically provides that “The granting of a new trial places the parties in the same position as if no trial had been had. . . .” (See People v. Clark (1965) 62 Cal.2d 870, 886 [44 Cal.Rptr. 784, 402 P.2d 856] ; People v. Murphy (1963) 59 Cal.2d 818, 833 [31 Cal.Rptr. 306, 382 P.2d 346].) This defendant on retrial is surely entitled to no less protection of the Constitution than one simultaneously brought to trial for the first time.

For further clarification of the case upon retrial we consider and reject defendant’s contention that the marijuana placed in evidence was the product of an illegal search and seizure. Although the deputies did not obtain a warrant before searching the car, we explain that the search was justified as incident to a lawful arrest. (United States v. Rabinowitz (1950) 339 U.S. 56 [94 L.Ed. 653, 70 S.Ct. 430] ; People v. Winston (1956) 46 Cal.2d 151, 162 [293 P.2d 40].)

The deputies had arrived at the service station at 3 a.m. in response to a call from the attendant, who had informed them that defendant and his companions had refused to leave the area. Under these circumstances the officers could properly ask defendant for identification. (People v. Mickelson (1963) 59 Cal.2d 448, 450 [30 Cal.Rptr. 18, 380 P.2d 658] ; People v. Simon (1955) 45 Cal.2d 645, 650 [290 P.2d 531].) Having observed that defendant furtively removed the small white package from his pocket and placed it in the engine, Deputy Dunlop could reasonably believe that defendant had been harboring contraband. (People v. Blodgett (1956) 46 Cal.2d 114, 117 [293 P.2d 57] ; People v. Fitch (1961) 189 Cal.App.2d 398, 403 [11 Cal.Rptr. 273].)

People v. Blodgett, supra, 46 Cal.2d 114, closely resembles the instant ease. Blodgett and some other persons were sitting in a taxicab which was double parked in front of a hotel late at night. Police officers, who had been watching the cab, determined to investigate; they asked the occupants to get out. At this point one officer observed the defendant withdraw his hand from behind the back seat of the vehicle. The officers then searched behind the seat and found three marijuana cigarettes. In rejecting the defendant’s claim that the officers had illegally obtained the marijuana cigarettes we held: “Since Officer Barker saw defendant’s furtive action in getting out, he had reasonable grounds to believe that he was hiding contraband and the search of the cab was therefore reasonable.” (People v. Blodgett, supra, 46 Cal.2d 114, 117.)

In the instant ease, since Deputy Dunlop observed similar furtive activity he had probable cause to arrest defendant for possessing contraband; the deputy could legally search the car as incident to the arrest. That the arrest in fact followed the search does not matter since the search was ‘‘ substantially contemporaneous” with the arrest. (People v. Cockrell (1965) 63 Cal.2d 659, 666-667 [47 Cal.Rptr. 788, 408 P.2d 116] ; People v. Simon, supra, 45 Cal.2d 645, 648-649.)

The judgment is reversed.

Traynor, C. J., Peters, J., and Sullivan, J., concurred.

1 Deputy Berman, an expert in the field of narcotics, testified that “weed” means marijuana in narcotics terminology, "but that the term ‘' pills ” does not refer to heroin.

2 Defendant’s trial began in November 1964, prior to the date on which the United States Supreme Court decided Miranda v. Arizona, supra, 384 U.S. 436. We therefore dispose of this appeal in accordance with the principles stated in Escobedo and Dorado, but not the additional rules set forth in Miranda. (People v. Rollins (1967) 65 Cal.2d 681, 691-692 [56 Cal.Rptr. 293, 423 P.2d 221].)

3 The United States Supreme Court decided Escobedo on June 22, 1964; this court rendered its first Dorado decision on August 31, 1964; it granted a rehearing on September 24, 1964; it handed down its final Dorado decision on January 29, 1965.

4 We recognize that defense counsel in a trial held prior to January 29, 1965, might have deliberately developed on voir dire facts which would support the exclusion of the statements under the Escobedo-Dorado rule, yet omitted to object to their introduction in the hope that upon subsequent appeal the showing would serve to reverse. (Compare the facts in People v. Brown (1965) 238 Cal.App.2d 924, 928 [48 Cal.Rptr. 204].) Such a tactical maneuver should not generate a valid basis for reversal. If the People should sustain the burden of establishing the fact of such tactics, we would treat defendant’s stratagem as a waiver of the objection.

5 We therefore need not decide whether the officers obtained defendant’s first statement, in which he denied any knowledge of the narcotics, after the accusatory stage had been reached.

6 The fact that the jury failed to reach a verdict on the charge of possessing heroin emphasizes the importance the jury attached to defendant’s statements. According to defendant’s statement, Ms friend had informed him that the package contained ‘ ‘ weed and pills. ” “ Pills, ’ ’ in narcotics terminology, does not mean heroin. (See fn. 1, supra.)

7 We have stated that the record does not support a finding that the officers obtained defendant’s second and third statements in accordance with his constitutional rights under Escobedo and Dorado. That holding would not foreclose the prosecution from attempting again to introduce these statements at a retrial; inasmuch as this trial took place prior to our Dorado decision the prosecution may not have perceived the necessity of adducing all evidence relevant to the statements’ admissibility under Escobedo and Dorado. (See People v. Green (1965) 63 Cal.2d 561, 565 [47 Cal.Rptr. 477, 407 P.2d 653].)

8 The court specifically noted that officers “relied on . . . prior cases ... in obtaining incriminating statements during the . . . years preceding . . . Miranda” (384 U.S. at p. 731 [16 L.Ed.3d at p. 891]) ; in light of this statement, the court’s rejection of a rule which would protect such reliance regardless of the date of trial assumes special significance. Since the court noted that it had previously “applied new judicial standards in a wholly prospective manner ’ ’ (italics added) (p. 733 [16 L.Ed.2d at p. 892]), and since it has declared certain rules inapplicable to any police conduct preceding the date of their announcement (see Stovall v. Denno (1967) 388 U.S. 293 [18 L.Ed.2d 1199, 87 S.Ct. 1967] (right to counsel at lineups applicable only to confrontations conducted after June 12, 1967)), we cannot assume that the court in Johnson thought itself powerless to hold the Miranda decision inapplicable to pre-Miranda interrogations. Its refusal to do so can only signify a considered judgment that, on balance, the interests advanced in Miranda outweigh the interest in permitting prosecutors to use confessions obtained by techniques held unconstitutional between the date of questioning and the date of trial.

9 We note that the California Legislature has adopted a similar approach in determining the applicability of the Evidence Code, which became effective January 1, 1967. (Evid. Code, §12, subd. (a).) The new evidence rules govern the conduct of trials commenced after the code’s effective date, and the code specifically provides that, “a new trial . . . commenced on or after January 1, 1967, shall be governed by this code.’' (Italics added.) (Evid. Code, §12, subd. (b)(1).) The Assembly Committee on Judiciary has commented: “[A]ny ruling made by the trial court on the admission of evidence in a trial commenced after December 31, 1966, is governed by;the Evidence Code, even if. a previous trial in the same action was .commenced prior'.to that. daté.(1 Assembly .Jour. 1712,1713 '(1965) (Rpt. of Assembly Committee bn Judiciary on Assembly Bill No.-333).)