TOBRINER, J. The single question that we must answer here is whether a writ of habeas corpus properly enables us to review the sentence of death pronounced against petitioner after a penalty trial embracing the errors described in People v. Morse (1964) 60 Cal.2d 631 [36 Cal.Rptr. 201, 388 P.2d 33], and which resulted in the prejudice found in People v. Hines (1964) ante, p. 164 [37 Cal.Rptr. 622, 390 P.2d 398]. For the reasons hereinafter stated we have concluded that the writ should be granted to provide petitioner with a new penalty trial.
The jury found petitioner guilty of a rape-murder. The [502]evidence showed that petitioner previously had served two prison sentences, one imposed in 1946 for assault with intent to commit great bodily harm, and one rendered in 1952 for attempted rape. Petitioner, who served almost nine years for the latter offense, participated while in prison in various counselling and psychotherapy programs. Some few days after his release on parole from the latter sentence he committed the murder. We affirmed the conviction and sentence on appeal. (People v. Jackson (1963) [Crim. No. 7147] 59 Cal.2d 375 [29 Cal.Rptr. 505, 379 P.2d 937].)
The record of the penalty trial unquestionably discloses the errors that we described in Morse: the improper admission of evidence, the erroneous argument of counsel, the incorrect instruction of the trial court as to the possible grant of parole by the Adult Authority, and the additional erroneous argument and instruction as to the possible reduction of the death penalty by the trial judge and the Governor.
Specifically, the trial court instructed the jury that it could consider the possibility of parole in the event of a life sentence; the prosecutor argued that only a small number of those sentenced to life imprisonment remained in prison for their natural lives. The prosecutor also introduced testimony which disclosed “the average time” served by those released on parole who were serving life sentences. The deputy district attorney further contended the defendant “fooled” the Adult Authority “once by being a model prisoner,” and that there was no reason “not to believe ten, twelve or fifteen years from now” he would “be able to fool them again.” He later urged, “I don’t think anyone of you want to share in turning this man loose on the streets in seven years, ten years, fifteen years, or twenty years. This is a responsibility I won’t take and I am sure none of you ladies and gentlemen on this jury want to accept that responsibility. . . . [A]ny other verdict except the extreme penalty . . . would place sometime in the future some unknown woman at your hands on a time table of death. ’ ’
The prosecutor further argued that the jury’s verdict was not “the final say-so as the judge will instruct you. . . . The next thing in this matter is under the control of Judge Waite ... he must review it in his mind. . . . [T]he Justices of the Supreme Court, the Governor may commute Mr. Jackson's sentence to life imprisonment.” The court told the jury of the possible reduction of the death penalty by the trial judge and the Governor.
[503]Petitioner’s penalty trial, although it contained such errors, was affirmed upon appeal; in Morse, however, we expressly overruled those portions of the opinion dealing with the possibility of parole1 and the Governor’s power of commutation.2 If, in a case subsequent to Morse such errors were brought to us by appeal, they would obviously compel reversal. (People v. Hines (1964) ante, p. 164 [37 Cal.Rptr. 622, 390 P.2d 398].) But petitioner has exhausted his appellate review. He comes to us for a writ of habeas corpus.
Historically the function of the writ has been hugely expanded. Its original limited purpose of releasing a person imprisoned or restrained as a result of a void proceeding or jurisdictional defect in the imprisoning authority (e.g., Ex parte Long (1896) 114 Cal. 159 [45 P. 1057]; Ex parte Max (1872) 44 Cal. 579) has been extended to review the constitutionality of statutes (In re Bell (1942) 19 Cal.2d 488, 495 [122 P.2d 22]) as well as trial procedure (In re Harris (1961) 56 Cal.2d 879 [16 Cal.Rptr. 889, 366 P.2d 305]; In re Newbern (1960) 53 Cal.2d 786, 791-792 [3 Cal.Rptr. 364, 350 P.2d 116]). Nor have the decisions confined the review to the face of the trial court proceedings; such reexamination has embraced the entire course of the proceedings, including additional evidence taken either directly or under an order of reference. (In re Seeley (1946) 29 Cal. 2d 294, 297 [176 P.2d 24]; In re Connor (1940) 16 Cal.2d 701, 712 [108 P.2d 10].) The eases do not limit the writ to the procurement of the release of one wrongfully imprisoned but enlarge its scope to the protection of the rights of prisoners while incarcerated. (In re Riddle (1962) 57 Cal. 2d 848, 851 [22 Cal.Rptr. 472, 372 P.2d 304]; In re Ferguson (1961) 55 Cal.2d 663, 669 [12 Cal.Rptr. 753, 361 P.2d417].)
The decisions have thus broadened the compass of the writ not by an expansion of the concept of jurisdiction but by a proliferation of its availability in situations in which the trial court in a strict sense could exercise “jurisdiction.” (See In re McInturff (1951) 37 Cal.2d 876, 880 [236 P.2d 574]; In re McVickers (1946) 29 Cal.2d 264, 270 [176 P.2d 40]; Granucci, Review of Criminal Convictions by Habeas Corpus in California (1962) 15 Hastings L.J. 189,198.)
In this manner the courts have used the writ to reach such [504]matters as an adjudication of habitual criminality (In re McVickers, supra, at p. 274; In re Seeley, supra, at p. 303 ;3 In re Rosencrantz (1931) 211 Cal. 749, 751 [297 P. 15]); a prisoner’s right to apply for relief from default in perfecting an appeal (In re Martin (1962) 58 Cal.2d 133, 141 [23 Cal.Rptr. 167, 373 P.2d 103]; In re Gonsalves (1957) 48 Cal.2d 638, 642 [311 P.2d 483]; In re Byrnes (1945) 26 Cal.2d 824, 828 [161 P.2d 376]); the erroneous imposition of an excessive sentence (In re Morck (1919) 180 Cal. 384 [181 P. 657]); the improper rendition of multiple sentences (Neal v. State of California (1960) 55 Cal.2d 11, 17 [9 Cal.Rptr. 607, 357 P.2d 839]); an erroneous conviction under an inapplicable statute (In re Zerbe (1964) 60 Cal.2d 666, 668 [36 Cal.Rptr. 286, 388 P.2d 182]); an incorrect conviction under a complaint not charging a public offense (In re Allen (1962) 59 Cal.2d 5, 6 [27 Cal.Rptr. 168, 377 P.2d 280]).
Finally, the decisions have many times stated that the writ may be granted under exceptional circumstances to review a matter that cannot otherwise be reached and to present a question of law that is sufficiently important to justify this extraordinary remedy. In In re Bell, supra, at page 493, we quoted approvingly from Bowen v. Johnston (1939) 306 U.S. 19, 26-27 [59 S.Ct. 442, 83 L.Ed. 455, 461], that “It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher [505]duty than to maintain it unimpaired. . . . The rule is not so inflexible that it may not yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” We further stated, at page 494, that “There are other situations in which habeas corpus is used, not as a test of jurisdiction, but to review a question of law that cannot otherwise be raised or is so important as to render the ordinary procedure inadequate.”
Likewise, we said in In re Byrnes, supra, at page 827, that “It is well settled that a writ of habeas corpus ordinarily may not be employed as a substitute for an appeal. . . yet the scope of inquiry in such proceedings has been broadened rather than narrowed . . . and the writ may be used to present questions of law that cannot otherwise be reviewed or are so important as to justify an extraordinary remedy. . . .” (See In re McVickers, supra, at p. 273.) In In re Seeley, supra, at page 296, we stated that “It is the general rule that the writ may not be used to correct error. . . . But in exceptional cases it may be issued even though other remedies might have been available.” The court in In re Silverstein (1942) 52 Cal.App.2d 725, 727 [126 P.2d 962], held that the “writ may be resorted to in order to afford a review of a question of law that cannot otherwise be raised, or where because of the importance of the issue involved, ordinary procedure would prove inadequate. ”
This ease presents an exceptional situation. The punishment of death has been decreed for petitioner upon the basis of a trial which, within one year of the disposition of his appeal, has been held by this court in a comparable case to contain the vice of prejudicial error. Since petitioner has exhausted his remedy by appeal to this court, his sole hope lies in the writ. Unless we grant the review, the fortuity of time alone will seal the sentence of death, which, if petitioner’s trial had occurred later, might never have been uttered. These exceptional circumstances demonstrate and justify the use of the writ in this ease.
The application of the writ meets no obstacle here in the form of limiting factors set forth in prior cases. We need not redetermine facts found at the trial. (See In re Zerbe, supra, at p. 668; Neal v. State of California, supra, at p. 17.) We deal in an issue of law only; People v. Hines, supra, has designated the error as prejudicial. Nor do we question the conviction and guilt; we test only the sentence rendered in the penalty trial. (See In re McVickers, supra, at p. 270.) [506]We do not engage in the kind of rescue operation in which a petitioner asks a court to issue the writ to salvage an effective point which he missed or waived. Defendant did present some of the errors described in Morse upon appeal; this court, then, in the current state of the law, rejected them; the other errors in petitioner’s trial, now so recognized in Morse, could not have been successfully urged at the time of his appeal. Thus, petitioner does not seek the writ to present matters which could have been, but were not, raised upon appeal.4 (Cf. Bender, The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio (1962) 110 U.Pa.L.Rev. 650, 657.)
Having approved review here by habeas corpus, we believe that petitioner merits redetermination of the penalty [507]trial under the doctrine of Morse and Hines-, the retrospective application of the ruling is not self defeating. In Morse itself we applied retrospectively a new doctrine to a fact situation and a trial that had transpired before we had reached our decision. Cases on appeal which came to us after Morse involved proceedings which took place prior to it. We cannot accept the paradox that would occur if defendant Morse, whose appeal overrules the precedent under which he was erroneously sentenced, obtains a new penalty trial, but petitioner Jackson, sentenced under the same precedent, must suffer death in a grim sequence of judicial error.5
Furthermore, the retrospective effect of our holding has limited application. Our ruling can only affect those defendants who, awaiting execution after the imposition of the death sentence, suffered the prejudicial error described in Morse and Hines during their own penalty trials. These are a fixed group, and none hereafter will be added to their number.6
[508]Nor is such retrospective application of the ruling without precedent. We stated in In re Bell, supra, at page 493, that “There are instances where habeas corpus affords the only-method of testing constitutionality as when a statute upheld as valid at the time of conviction is subsequently declared invalid in another ease and in the interim the petitioner either exhausts his remedy by appeal or the time for taking an appeal expires.” (Emphasis added.) (See Eskridge v. Washington State Board of Prison Terms & Paroles (1958) 357 U.S. 214 [78 S.Ct. 1061, 2 L.Ed.2d 1269].) The retrospective effect of the decision which reverses a constitutional holding serves as a comparable ruling to that which we make here in another dimension.
The judicial process, once having recognized that prejudicial error occurred in defendant’s penalty trial, cannot ruthlessly refuse to stay the death penalty and grant a new penalty trial upon the ground that the court discovered its error too late. We therefore grant petitioner the relief sought upon the narrow ground that habeas corpus provides review of a matter that cannot otherwise be considered, that is sufficiently important to justify this extraordinary remedy, and that involves prejudicial error in a penalty trial in which petitioner was sentenced to death.
The writ is granted as to the penalty trial of petitioner. The remittitur issued in Crim No. 7147, People v. Jackson, 59 Cal.2d 375 [29 Cal.Rptr. 505, 379 P.2d 937] is recalled and the judgment imposing the death penalty is reversed insofar as it relates to the penalty. In all other respects the judgment is affirmed. Petitioner is remanded to the custody of the Superior Court of Riverside County for a new penalty trial.
Gibson, G. J., Traynor, J., Peters, J., and Peek, J., concurred.
Morse also overruled other eases on this point which had been decided within a previous period of about 12 years. (People v. Morse, supra, at pp. 637-638, n. 2.)
People v. Morse, supra, at p. 639, n. 5.
These eases have recognized that á lesser degree of finality attaches to the adjudication of penalty than the judgment of conviction. Thus 'Justice Schauer, speaking for the court in In re McVickers, supra, said:
“. . . The judgment of conviction, as such, retains full finality but the matter of length of terms of imprisonment and other elements of the penological process relating to punishment, rehabilitation, supervision, etc., are being largely severed from direct, specific, or final control by the judgment of conviction. It seems, therefore, that, if we are not by established procedural law precluded, it will be more in harmony with the spirit and purpose of our substantive criminal law as it is intended to operate after conviction, to regard an adjudication of habitual criminality as having somewhat less finality and sanctity than a judgment of- conviction. It will likewise be more in harmony with the policy of law if we can entertain petitioner’s application on its merits rather than dismiss it on technical grounds.” (Italics added.) (P. 272.) In the Seeley ease, Justice Shenk summarized the rule enunciated in McVickers as follows: “. . . In that case it was held that an adjudication of habitual criminal status is not a judgment of conviction but is, in effect, .only an ancillary and severable determination of a fact pertinent to the length of imprisonment and right to, parole, and hence that such determination is not necessarily characterized by the high degree of finality of a judgment of conviction. ...” (P. 299.)
In United States ex rel. Kulick v. Kennedy (2d Cir. 1946) 157 F.2d 811, the trial court, refusing to allow defendant to establish a certain proffered defense, convicted him of failure to submit to induction in the army. Defendant did not appeal. Nine months after the elapse of his time for such appeal, the United States Supreme Court in another case upheld the propriety of the asserted defense. Defendant petitioned for habeas corpus; the Court of Appeals granted it; Judge Learned Hand stated: "We can find no more definite rule than that the writ is available, not only to determine points of jurisdiction, strieti juris, and eonstitituonal questions; but whenever else resort to it is necessary to prevent a complete miscarriage of justice. ... It would pass all fair demands upon Kulick’s diligence to conclude him because of his failure to appeal.” (P. 813.)
The United States Supreme Court reversed the Kulick decision in Sunal v. Large (1947) 332 U.S. 174 [67 S.Ct. 1588, 91 L.Ed. 1982], on the ground that, since the petitioner had unreasonably failed to pursue his remedies by appeal, he could not appropriately invoke habeas corpus. Justice Douglas stated for the majority, "The case, therefore, is not one where the law was changed after the time for appeal had expired. ... It is rather a situation where at the time of the convictions the definitive ruling on the question of law had not crystallized. Of course, if Sunal and Kulick had pursued the appellate course and failed, their cases would he quite different. But since they chose not to pursue the remedy which they had, we do not think they should now be allowed to justify their failure by saying they deemed any appeal futile.” (Italics added.) (P. 181 [67 S.Ct. 1588, 91 L.Ed. at p. 1988].) Thus, Justice Douglas and Judge Hand disagreed only on the significance of Kulick’s failure to appeal, not on the applicability of habeas corpus to prevent a miscarriage of justice in a proper case.
The instant case presents both of the elements that Justice Douglas noted as absent in Sunal. The rule of instructing the jury regarding parole had "crystallized,” and in petitioner’s automatic appeal this court followed that rule, affirming his conviction. We therefore do not reach the situation of a petitioner who seeks, in the absence of special circumstances, habeas corpus as a substitute for his remedy by appeal. [507](Compare In re Mitchell (1961) 56 Cal.2d 667, 671 [16 Cal.Rptr. 281, 365 P.2d 177], and In re Dixon (1953) 41 Cal.2d 756, 759 [264 P.2d 513], which involved defendants who failed to pursue their remedies by appeal. Indeed in Dixon, Chief Justice Gibson recognizes that “in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie . . .” (Italics added, p. 759) and Mitchell quotes this language of Dixon.)
See Note (1947) 60 Harv.L.Rev. 437, 447-448; In Warring v. Colpoys (D.C.Cir. 1941) 122 F.2d 642, 647 [74 App.D.C. 303, 136 A.L.R. 1025], the court held that an overruling decision of the United States Supreme Court was not applicable to an earlier ease decided under the old law. (See United States v. Sobell (D.C.S.D.N.Y. 1962) 204 P.Supp. 225.) Warring involved the scope of a law defining criminal contempt, and under the old law the wrongful acts of bribing jurors were clearly within the court’s contempt power. The Warring decision is criticized in Hart & Sacks, The Legal Process (1958) 631-636. The court in Gaitan v. United States (10th Cir. 1961) 295 F.2d 277, 280, denied habeas corpus to petitioners who were convicted by the use of illegally obtained evidence in proceedings that transpired prior to the decisions in Mapp v. Ohio (1961) 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933], and Elkins v. United States (1960) 364 U.S. 206 [80 S.Ct. 1437, 1453 [4 L.Ed.2d 1669], (See Collins v. Webb (D.C.N.D.Cal. 1955) 133 P.Supp. 877.)
The special circumstances of the present ease completely differ from those in cases involving the retrospective application of the rule of Mapp v. Ohio (1961) 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933], as to the introduction of illegally procured evidence. (See concurring opinion of Traynor, J., in In re Harris (1961) 56 Cal.2d 879, 898, 899 [16 Cal.Rptr. 889, 366 P.2d 305]; Traynor, Mapp v. Ohio at Darge in the Fifty States, 1962 Duke L.J. 319; Gaitan v. United States (10th Cir. 1961) 295 P.2d 277, 280.)