BURKE, J., Dissenting. The majority opinion has the effect of creating the hazard of releasing certain highly dangerous criminals into society. Such [402]criminals include (1) those who but for the prosecutors’ and courts.’ justifiable reliance on the pronouncements of this court in cases before People v. Daniels (1969) 71 Cal.2d 1119 [80 Cal.Rptr. 897, 459 P.2d 225], would be but are not and cannot now be made subject to prison terms for crimes they committed (e.g. armed robbery, forcible rape, and assault with a deadly weapon) and (2) those who could have been convicted of kidnaping under the Daniels interpretation of Penal Code section 209 had the prosecutor been aware that this court was going to reinterpret that section in Daniels but who cannot now be proven guilty of such kidnaping since the evidence is no longer available.
The majority note that its ruling will not set this petitioner free—that “when the kidnaping counts are vacated, the previously stayed sentence on two counts of first degree robbery will go into effect.” But the rule adopted by the majority is applicable in other cases, and, as we shall see, there is a substantial likelihood that in some of those cases the defendants will be released from custody as a result of the majority opinion.
Another effect of the majority opinion may well be to impede or block future changes in statutory construction that are favorable to defendants since under the theory employed by the majority such reinterpretations likewise will be fully retroactive. Proponents considering such changes may be deterred by the effect of such changes upon other defendants incarcerated under the previous interpretation of the law.
In support of their holding, that a defendant, whose conviction for kidnaping became final before Daniels, is entitled to relief upon a showing that his conduct was not prohibited by the statute as construed in Daniels, the majority state, “the purpose of . . . Daniels was . . . simply to declare what the intent of the Legislature has been in this regard since the enactment of the 1951 amendment to section 209.” The majority concludes that in the light of that purpose Daniels must be made fully retroactive. Unless Daniels is fully retroactive the rale in cases such as In re Zerbe, 60 Cal.2d 666, 668 [36 Cal.Rptr. 286, 388 P.2d 182, 10 A.L.R.3d 840], relied upon by the majority,1 manifestly could not apply since petitioner’s acts violated section 209 as interpreted in cases such as People v. Chessman, 38 Cal.2d 166, 192 [238 P.2d 1001].2
[403]The conclusion of the majority that Daniels is fully retroactive is unwarranted. That Daniels involved a new interpretation of the statute does not compel holding Daniels to be fully retroactive. This court has a choice whether or not to make Daniels fully retroactive, and in the application of the relevant criteria established by the United States Supreme Court and this court, I respectfully submit Daniels should not be made fully retroactive to cases wherein the judgments were final as to state courts when the decision in Daniels was rendered.
“At common law there was no authority for the proposition that judicial decisions made law only for the future. [Fn. omitted.] Blackstone stated the rule that the duty of the court was not to ‘pronounce a new law, but to maintain and expound the old one.’ 1 Blackstone, Commentaries 69 (15th ed. 1809). . . . In the case of the overruled decision . . . it was thought to be only a failure at true discovery and was consequently never the law; while the overruling one . . . was ‘not new law but an application of what is, and theretofore had been, the true law.’” (Linkletter v. Walker, 381 U.S. 618, 622-623 [14 L.Ed.2d 601, 604-605, 85 S.Ct. 1731].) Pursuant to the foregoing theory the overruling case was generally given retroactive effect, although exceptions were established to the general rule of retroactivity to protect those who relied on the overruled decision. (Forster Shipbldg. Co. v. County of L.A., 54 Cal.2d 450, 458 [6 Cal.Rptr. 24, 353 P.2d 736]; County of Los Angeles v. Faus, 48 Cal.2d 672, 680-681 [312 P.2d 680]; In re McNeer, 173 Cal.App.2d 530, 533 [343 P.2d 304]; see Note, 10 A.L.R.3d 1371, 1378, 1384.)
The Blackstonian view, however, has been called a fiction or myth (see Griffin v. Illinois, 351 U.S. 12, 26 [100 L.Ed. 891, 902, 76 S.Ct. 585, 55 A.L.R.2d 1055] [concurring opinion by Frankfurter, J.]; United States v. LaVallee, 330 F.2d 303, 304 [cert. den. 377 U.S. 998 (12 L.Ed.2d 1048, 84 S.Ct. 1921)]; In re Lopez, 62 Cal.2d 368, 379 [42 Cal.Rptr. 188, 398 P.2d 380] [cert. den. 384 U.S. 1016 (16 L.Ed.2d 1038, 86 S.Ct. 1929, 1930)]; Levy, Realist Jurisprudence and Prospective Overruling, 109 U.Pa.L.Rev. 1, 2 et seq.; Note, 14 L.Ed.2d 992, 1001). And some courts have applied the Austinian view. Austin “maintained that judges do in fact do something more than discover law; they make it interstitially by filling in with judicial interpretation the vague, indefinite, or generic statutory or common-law terms that alone are but the empty crevices of the law. Implicit in such an approach is the admission when a case is overruled that the earlier decision was wrongly decided. However, rather than being erased by the later overruling decision it is considered as an existing juridical fact until overruled, and intermediate cases finally decided under it are not to be disturbed.” (Linkletter v. Walker, supra, 381 U.S. 618, 623-624 [14 L.Ed.2d 601, 605].)
[404]The Austinian approach was applied in Great Northern Ry. v. Sunburst Co., 287 U.S. 358, 364-365 [77 L.Ed 360, 366-367, 53 S.Ct. 145, 85 A.L.R. 254], in denying a federal constitutional due process attack on the prospective application of a state court decision changing the interpretation of a statute. There Justice Cardoza, speaking for the court, declared: “the federal constitution has no voice upon the subject [of refusal to make a new statutory interpretation retroactive]. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled are law none the less for intermediate transactions . . . whenever injustice or hardship will thereby be averted. . . . The alternative is the same whether the subject of the new decision is common law [citation] or statute [citations].”
This court has explicitly recognized that the Austinian approach may be applied. (See Forster Shipbldg. Co. v. County of L.A., supra, 54 Cal.2d 450, 458-459.) That approach was followed, or an exception made to the general rule of retroactivity under the Blackstonian view, in a recent New York case which concluded that the reinterpretation of the kidnaping statute in People v. Levy, 15 N.Y.2d 159 [256 N.Y.S.2d 793, 204 N.E.2d 842] (which, like Daniels, narrowed the definition of that crime), had no retroactive effect upon a case “no longer in the appellate process.” (People v. Pelio, 24 App.Div.2d 500 [261 N.Y.S.2d 433, 434]; see also United States v. Fay, 394 F.2d 109, 110, fn. 1; United States v. Foilette, 298 F. Supp. 925, 926.) Similarly the Pennsylvania Supreme Court held a decision limiting the felony-murder rule inapplicable to cases final when that decision was rendered (Commonwealth v. Maroney, 425 Pa. 411 [229 A.2d 913, 918]; Commonwealth ex rel. Almeida v. Rundle, 409 Pa. 460 [187 A.2d 266, 267]), but applicable to cases not then final (Commonwealth ex rel. Smith v. Myers, 438 Pa. 218 [261 A.2d 550, 559]). And some federal courts have concluded that a new broader test of insanity should not be retroactively applied to cases that were final when the new test was announced (See Wade v. United States (9th Cir. 1970) 426 F.2d 64, 73-74; Blake v. United States (5th Cir. 1969) 407 F.2d 908, 916; United States v. Smith (6th Cir. 1968) 404 F.2d 720, 728), but should be applied to cases then on appeal (Wade v. United States, supra; United States v. Tarrago (2d Cir. 1967) 398 F.2d 621, 622 et seq.; Blake v. United States, supra; United States v. Smith, supra; United States v. Shelter (2d Cir. 1966) 369 F.2d 293, 295). Other federal courts have held that such a test is prospective only except for the case before the court (United States v. Shapiro (7th Cir. 1967) 383 F.2d 680, 687; Durham v. United States, 214 F.2d 862, 874 [94 App.D.C. 228, 45 A.L.R.2d 1430]).
In Warring v. Colpoys, 122 F.2d 642, 644 [74 App.D.C. 303, 136 [405]A.L.R. 1025] (Vinson, J., cert. den. 314 U.S. 678 [86 L.Ed. 543, 62 S.Ct. 184]), the Austinian approach also apparently was applied. There it was held that a prisoner was not entitled to discharge by habeas corpus where the court had power under the statutory construction to punish his acts in a criminal contempt proceeding at the time the acts were done and the sentence imposed but did not have such power under a new statutory construction at the time the writ of habeas corpus was filed.3
The Austinian approach likewise was followed, or an exception made to the general rule of retroactivity under the Blackstonian view, in cases where criminal responsibility was expanded by holding that a statute proscribed certain conduct that had previously been considered outside the reach of the statute or by upholding the constitutionality of a statute that had previously been held to be unconstitutional. (State v. White (Fla.) 194 So.2d 601, 604; State v. Jones, 44 N.M. 623 [107 P.2d 324, 329]; State v. Stout, 90 Okla. Crim. 35 [210 P.2d 199, 203-204]; cf. James v. United States, 366 U.S. 213 [6 L.Ed.2d 246, 81 S.Ct. 1052]; see Note, 10 A.L.R.3d 1371, 1412-1414; 20 Am.Jur.2d, Courts, § 236, pp. 563-564; 21 C.J.S. Courts, § 194, pp. 326-328.)
The federal Constitution neither forbids nor requires a retroactive application of Daniels. (Cf. Linkletter v. Walker, supra, 381 U.S. 618, 629 [14 L.Ed.2d 601, 608]; Great Northern Ry. v. Sunburst Co., supra, 287 U.S. 358, 364 [77 L.Ed. 360, 366]; Benson v. Carter, 396 F.2d 319, 323 [cert. den. 393 U.S. 1080 [21 L.Ed.2d 773, 89 S.Ct. 852]; motion for leave to file pet. rehg. den. 394 U.S. 994 [22 L.Ed.2d 772, 89 S.Ct. 1451]; United States v. Follette, supra, 298 F.Supp. 925.)4
It is apparent from the foregoing authorities that there is no philosophical or constitutional bar to not making Daniels fully retroactive. I turn next to a consideration of the criteria that should guide this court in determining whether to make Daniels fully retroactive.
In determining whether to apply newly adopted constitutional rulings retroactively, courts have considered three criteria: (1) the purpose of the new rule; (2) the extent of reliance upon the old rule; and (3) the effect [406]retroactive application would have upon the administration of justice. (Eg., Desist v. United States, 394 U.S. 244, 249 [22 L.Ed.2d 248, 255, 89 S.Ct. 1030]; Stovall v. Denno, 388 U.S. 293, 297 [18 L.Ed.2d 1199, 1203, 87 S.Ct. 1967]; Johnson v. New Jersey, 384 U.S. 719, 727 [16 L.Ed.2d 882, 888, 86 S.Ct. 1772]; Linkletter v. Walker, supra, 381 U.S. 618, 636 [14 L.Ed.2d 601, 612]; People v. Edwards, 71 Cal.2d 1096, 1107-1108 [80 Cal.Rptr. 633, 458 P.2d 713]; People v. Feggans, 67 Cal.2d 444, 448 [62 Cal.Rptr. 419, 432 P.2d 21]; In re Gaines, 63 Cal.2d 234, 238-240 [45 Cal.Rptr. 865, 404 P.2d 473].) The same criteria have been considered in determining retroactivity of a decision based on a federal rule regarding acceptance of a guilty plea (Haltiday v. United States, 394 U.S. 831, 832 [23 L.Ed.2d 16, 19, 89 S.Ct. 1498]), of a new rule of substantive law that broadened the test regarding insanity (United States v. Tarrago, supra, 398 F.2d 621, 624), and of the new rule enunciated in People v. Ireland, 70 Cal.2d 522 [75 Cal.Rptr. 188, 450 P.2d 580] limiting the felony-murder rule (People v. Jenkins, 275 Cal.App.2d 545, 552-554 [80 Cal.Rptr. 257]). And the stated criteria likewise appear appropriate here.
The United States Supreme Court has noted that it has “relied heavily on the factors of the extent of reliance and consequent burden on the administration of justice only when the purpose of the rule in question did not clearly favor either retroactivity or prospectivity.” (See Desist v. United States, supra, 394 U.S. 244, 251 [22 L.Ed.2d 248, 256].) However, we deal here with a question of state law and therefore are not required to give the same weight to the different criteria as the United States Supreme Court. Furthermore, I believe that the purpose of Daniels does not “clearly favor” retroactivity.5 That purpose manifestly was to ascribe to the Legislature an [407]intent regarding the 1951 amendment to section 209 that permitted dealing in a more compassionate manner with the substantive question of what conduct makes a person subject to the severe penalties authorized by section 209 (kidnaping for the purpose of robbery). However, the intent previously attributed by this court to the Legislature regarding that amendment (People v. Lara, 67 Cal.2d 365, 369 [62 Cal.Rptr. 586, 432 P.2d 202]; People v. Monk, 56 Cal.2d 288, 295 [14 Cal.Rptr. 633, 363 P.2d 865]; People v. Wein, 50 Cal.2d 383, 399-400 [326 P.2d 457]; People v. Chessman, supra, 38 Cal.2d 166, 192), did not require the courts to apply an inhumane rule. Indeed this court applied that rule during nearly two decades, and the same rule was long applied with respect to violations of section 207 (simple kidnaping). (See, e.g., People v. Oganesoff (1947) 81 Cal.App.2d 709 [184 P.2d 953]; People v. Shields (1945) 70 Cal. App.2d 628 [161 P.2d 475]; People v. Cook (1937) 18 Cal.App.2d 625 [64 P.2d 449] [each of which was cited in People v. Chessman, supra, for the rule that “It is the fact, not the distance, of forcible removal which constitutes kidnaping . . . ”]; People v. Roth (1964) 228 Cal.App.2d 522, 527 [39 Cal.Rptr. 582] [same rule applied].)
Furthermore, the second and third criteria militate against a fully retroactive application of Daniels. Courts and prosecutors have relied upon the interpretation given section 209 in the Chessman-Wein line of cases, and such reliance was fully justified. Although some legal commentators viewed Cotton v. Superior Court (1961) 56 Cal.2d 459 [15 Cal.Rptr. 65, 364 P. 2d 241], as being “in direct opposition” to the prior kidnaping cases (see 35 So.Cal.L.Rev. 212) or as having “rejected the thrust of [the] earlier kidnaping decisions” (see 110 U.Pa.L.Rev. 293, 295), Cotton did not state that the Chessman-Wein line of cases was overruled. People v. Monk, supra, 56 Cal.2d 288, 295, filed less than three weeks before the decision in Cotton, applied the Chessman-Wein rule, and a petition for rehearing was denied in Monk after Cotton was filed. Also the Chessman-Wein rule has repeatedly been applied in decisions after Cotton. (E.g., People v. Lara, supra, 67 Cal.2d 365, 395; People v. Martin (1967) 250 Cal.App. 2d 263, 268 [58 Cal.Rptr. 481]; People v. Johnson (1966) 242 Cal.App. 2d 870, 876 [52 Cal.Rptr. 38]; People v. Morrison (1964) 228 Cal. App.2d 707, 711-712 [39 Cal.Rptr. 874]; People v. Zurica (1964) 225 Cal.App.2d 25, 32-33 [37 Cal.Rptr. 118].)
Holding Daniels fully retroactive will have a serious impact upon the administration of justice. Although statistics have not been furnished to us as to the exact number of defendants who will be affected by such a holding,6 the number undoubtedly is substantial. It should be noted that [408]Daniels affects not only defendants convicted under section 209 (kidnaping for the purpose of robbery), as amended in 1951, but also defendants convicted under section 207 (simple kidnaping), which section was last amended in 1905. (E.g., People v. Williams, 2 Cal.3d 894, 901 [88 Cal.Rptr. 208, 471 P.2d 1008].)
In some situations a fully retroactive application of Daniels will create a substantial risk of a legalized prison break by kidnapers, rapists, robbers, and other dangerous criminals.7 For example, if the prosecutor, relying on the Chessman-Wein rule, had amended an accusatory pleading to charge only kidnaping and to omit charges of robbery and rape and had successfully prosecuted the defendant for the kidnaping, if the kidnaping conviction were reversed because of Daniels, evidence to establish the defendant’s guilt of the other crimes may no longer be available.8 Or if the prosecutor, relying on the Chessman-Wein rule, had deemed it unnecessary at a trial for kidnaping to introduce evidence then available to show the defendant’s conduct came within the test subsequently announced in Daniels and the defendant had been convicted of kidnaping, if the kidnaping conviction were reversed because of Daniels, evidence to show the defendant’s acts violated the [409]statute as construed in Daniels may no longer be available. Or if a defendant had pleaded guilty to robbery and been found guilty of kidnaping for the purpose of robbery and the trial court, in reliance on the ChessmanWein rule, and in order to avoid a violation of the proscription against multiple punishment in Penal Code section 654, had set aside the guilty plea and dismissed the robbery count, it may not be possible to reinstate the robbery count if the kidnaping conviction were set aside because of Daniels and, even if the robbery count could be reinstated, the defendant may not again plead guilty and sufficient proof of his guilt may no longer be available.
In connection with the last specified example it should be noted that the likelihood of dismissal of a count under such circumstances is greater where the sentencing preceded People v. Niles, supra, 227 Cal.App.2d 749, than in cases like the present one where the sentencing followed Niles. Niles inaugurated and approved the procedure of imposing sentences for two crimes that constituted but one act within the meaning of section 654 and staying execution of the sentence for the lesser crime. Before Niles this court approved the procedure of a trial court’s dismissing a lesser count in order to avoid a violation of section 654. (See, e.g., People v. Tideman, 57 Cal.2d 574, 577 [21 Cal.Rptr. 207, 370 P.2d 1007].)
A conclusion that Daniels is not retroactive to cases that were final as to state courts when that decision was rendered would not foreclose a defendant, who feels aggrieved by the refusal of the court to extend to him the benefit of the change in law effected by Daniels, from pointing out in an application for executive clemency whatever basis he may have to claim that under the circumstances of his case an injustice results. However, under the majority decision making Daniels fully retroactive, there is no sefeguard in some situations against releasing into society persons who are considered by the parole authorities as being highly dangerous and apt to repeat acts of violence.
In light of the foregoing criteria I am satisfied that Daniels should not be applied retroactively to cases that were final as to state courts when the decision in Daniels was rendered. Although some defendants will benefit from Daniels while others will not, solely because of the fortuities that determine the progress of their cases from initial investigation to final judgment,9 “The resulting incongruities must be balanced against the impetus the technique [of prospective decision-making] provides for the implementation of . . . reforms, which otherwise could not be practicably effected.” [410](See Jenkins v. Delaware, 395 U.S. 213, 218 [23 L.Ed.2d 253, 259, 89 S.Ct. 1677].)
My conclusion that Daniels should not be made fully retroactive does not subject innocent persons to punishment for a crime they did not commit. The instant case and others like it are manifestly dissimilar to cases involving an innocent person wrongfully convicted of a crime. Here at the time petitioner committed the acts in question they constituted (1) robbery and (2) kidnaping for the purpose of robbery under the interpretation we previously had given section 209 in the Chessman-W ein line of cases. When the Legislature enacts a statute it is expected that people will conform to its provisions. And when we construe a statute it is likewise expected that persons will not violate th¿ statute as construed by us. If the Legislature makes a prospective change narrowing the definition of a crime, it cannot reasonably be maintained that persons previously convicted of violating the statute are innocent. Nor are persons who violated section 209, as interpreted in Chessman and Wein and whose judgments of conviction became final before Daniels, innocent of that crime. Furthermore, such persons committed one or more other serious crimes such as armed robbery and forcible rape with respect to which in some cases they are under no sentence as a result of justifiable reliance on the Chessman-W ein rule, and irrespective of whether the acts of such persons violate section 209 as interpreted in Daniels, they are not “innocent” persons in the ordinary sense of that word.
In my opinion petitioner’s application for recall of the remittitur should be denied.
McComb, J., concurred.
Respondent’s petition for a rehearing was denied April 22, 1971. Wright, C. J., did not participate therein. Kaus, J.,* participated therein. McComb, J., and Burke, J., were of the opinion that the petition should be granted.
The majority also rely upon an analogy to the rule that habeas corpus will lie to discharge a defendant held under a final judgment of conviction of violating a statute subsequently ruled unconstitutional in another case. That rule is not analogous if Daniels is not fully retroactive.
Zerbe is inapplicable in cases where, unlike the present case, the facts are in dispute. Do the majority intend to deny applications for recall of the remittitur in such cases?
Commentators are not unanimous in their views regarding the Warring decision. (E.g., compare Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va.L.Rev. 201, 258, and 60 Harv.L.Rev. 437, 447-448 with 27 Iowa L.Rev. 315.)
Cases petitioner relies upon to support his position that due process requires a fully retroactive application of Daniels (Johnson v. Florida, 391 U.S. 596, 598-599 [20 L.Ed.2d 838, 840-841. 88 S.Ct. 1713]; Garner v. Louisiana, 368 U.S. 157, 173-174 [7 L.Ed.2d 207, 219-220, 82 S.Ct. 248]; Thompson v. Louisville, 362 U.S. 199, 206 [4 L.Ed.2d 654, 659, 80 S.Ct. 624, 80 A.L.R.2d 1355]) are not in point. Thompson held that it is a violation of due process to convict and punish a man without evidence of his guilt; Johnson and Garner followed Thompson. None of the cited cases involved the question of retroactivity of an overruling decision.
The United States Supreme Court has “ . . retroactively applied rules of criminal procedure fashioned to correct serious flaws in the fact finding process’ ” (italics added; Roberts v. Russell, 392 U.S. 293, 294 [20 L.Ed.2d 1100, 1102, 88 S.Ct. 1921]; see also Jackson v. Denno, 378 U.S. 368 [12 L.Ed.2d 908, 84 S.Ct. 1774, 1 A.L.R.3d 1205]; Gideon v. Wainwright, supra, 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733]), but has not retroactively applied rules of criminal procedure fashioned to correct flaws in the factfinding process that the United States Supreme Court appears to have regarded as of a less serious nature (Stovall v. Denno, supra, 388 U.S. 293, 298-299 [18 L.Ed.2d 1199, 1204-1205]; DeStefano v. Woods, 392 U.S. 631, 634 [20 L.Ed.2d 1308, 1311, 88 S.Ct. 2093]; Johnson v. New Jersey, supra, 384 U.S. 719, 728-729 [16 L.Ed.2d 882, 889-890]). It might be argued that, if the correction of a serious flaw in the .factfinding process clearly favors retroactivity, so does any change in statutory construction that narrows conduct coming within a criminal statute. However, such changes can include improvements in the law of various degrees, and in my opinion all such changes should not be viewed as clearly favoring retro-activity. A contrary view could tend to impede or block changes in statutory construction, especially where the change contemplated is from an interpretation that is reasonable and not harsh to one that is reasonable and more compassionate.
The court-appointed attorney in three companion cases to the instant one (People v. Adame, People v. Ungrad, and People v. Smith), states that, according to a Depart[408]ment of Corrections official, as of December 31, 1969, there were some 295 men in prison serving sentences under section 209 and that “at least some” of the 295 have appeals pending. He does not assert how many additional persons are now serving prison sentences for violating section 207 or how many convicted of violating section 209 or section 207 are on parole.
It should also be noted that in all likelihood some under restraint for violating section 209 or 207 pleaded guilty to the offense and if relief is to be afforded in such cases on the basis of a fully retroactive application of Daniels additional problems will be present since there will not be a full record and witnesses may no longer be available or their memories may have faded.
The majority’s assumption that such a risk does not exist is unwarranted. The majority notes that in the companion cases to Mutch and several Court of Appeal cases on appeal the defendant was convicted of robbery or other felonies in addition to kidnaping. This limited survey is wholly inadequate to show that there is no such risk since it is of only a small group out of an unknown total of cases and most of the cases in the survey are ones in which the sentencing was after People v. Niles (1964) 227 Cal.App.2d 749 [39 Cal.Rptr. 11], As shown herinafter above, in cases in which the sentencing was before Niles there is a greater likelihood that the defendant is subject to a sentence only for kidnaping and not for other felonies he committed such as armed robbery.
In Daniels the original indictment charged not only the aggravated kidnapings (Pen. Code, § 209) but also various crimes (rape, robbery, burglary and a violation of Pen. Code, § 288a) against the victims of the alleged kidnapings but the prosecuting authorities decided not to go to trial on the charges of the other crimes and amended the indictment accordingly. We stated that a second amended indictment could be filed charging the crimes listed above and that although the defendants may not be convicted on the record before us of the kidnaping charges, they may be prosecuted for the remaining crimes charged against them. There the remaining crimes were allegedly committed in 1966. In cases where the remaining crimes were committed years ago, the problem of proof could well be difficult or impossible.
Daniels applies to cases on appeal in a state court when the decision in Daniels was rendered. (People v. Williams, supra, 2 Cal.3d 894, 900-901, and cases there cited.)
Assigned by the Acting Chairman of the Judicial Council.