MOSK, J. I dissent.
There is no question that habeas corpus is a proper remedy to challenge violations of constitutional rights relevant to the determination of guilt if the petitioner presents an adequate excuse for failing to invoke his remedy by appeal. I do not believe that a valid excuse exists under the circumstances before us.
The majority adopt a subjective test: what were petitioner’s innermost fears, apprehensions and motives at the time he abandoned his earlier appeal? He is an intelligent young man, a college student, and was represented by able counsel of his own choice. It cannot be doubted that abandonment of the appeal was a deliberate step taken after mature reflection. To presently undertake a search of the deepest recesses of his mind as of that earlier date in order to fathom motivation impresses me as a chimerical and futile exercise.
In the absence of some objective manifestation of reasonable reliance upon erroneous or outmoded legal authority, abandonment of the appeal should preclude granting relief in these habeas corpus proceedings.
If it be assumed arguendo that some circumstances could justify relief under the majority’s subjective formula, the writ should nevertheless be denied here.
This petitioner was convicted of murder in the first degree after an exhaustive trial in which he was defended by vigorous and experienced counsel. Two earlier trials had resulted in jury disagreement. In the first two trials no objection was made to the introduction of any of the confessions. In the third trial, no objection was made to the first two confessions, but only to the third and fourth statements.
[506]This court held in People v. Matteson (1964) 61 Cal.2d 466, 469 [39 Cal.Rptr. 1, 393 P.2d 161], that the “introduction of an involuntary confession or admission requires reversal of a judgment of conviction despite defendant’s failure to object to its introduction.” (Also see People v. Underwood (1964) 61 Cal.2d 113, 126 [37 Cal.Rptr. 313, 389 P.2d 937].) Categorically stated, that is sound law. But its application is. not invariable.
Not infrequently counsel choose defense trial tactics which dictate that a statement, even though properly objectionable, be received in evidence. To permit raising the issue of admissibility for the first time on habeas corpus long after conviction would place our stamp of approval on strategy of opportunism. As long ago as People v. Kramer (1897) 117 Cal. 647, 650-651 [49 P. 842], this court said: “It is an obviously just rule that such objection cannot be here made for the first time. . . . The defendant cannot remain silent and take the chance of a favorable issue, and, losing, urge as ground for reversal an error, which, but for his silence, might never have found its way into the case. His failure to object justly gives rise to the inference that at the time he saw no injury being done him, and he cannot complain on being met here by a barrier arising from his own omission. ’ ’
When defense counsel raised no objection to the introduction of any of the confessions in the first two trials and none to the first two confessions in the third trial, it must be assumed this omission was by design. Indeed, there is ample reason to conclude that not only did counsel deem the statements nonprejudicial but they also believed the manifest remorse of the petitioner to be beneficial to his cause. Their maneuver obviously did not fail in the first two trials. Our role on review is not to second-guess trial tactics, nor to reward calculated strategy which was ultimately frustrated below. (People v. Reeves (1966) 64 Cal.2d 766 [51 Cal.Rptr. 691, 415 P.2d 35].) Yet the majority do so when they condemn as inadmissible statements which defense counsel considered properly before the jury. The consequence of the majority opinion, though not explicitly stated, is to expect a trial court to reject sua sponte evidence to which neither party offers an objection and which both parties desire in the record. This is an unreasonably heroic requirement for trial ■judges.
. Finally, the majority undertake to reweigli the facts another time and to reach a conclusion on the voluntariness of [507]defendant’s confessions contrary to that of the original trier of fact, and contrary to the considered findings of the referee appointed by this court, Judge Perluss of the Sacramento Superior Court. I would adopt the facts found and the conclusions reached by the referee, and I do so in haec verba (references to the transcripts have been omitted):
4. The evidence
a. The taped confession made at approximately 1 a.m. on December 23, 1958.
Petitioner’s first confession was taped and was made at approximately 1 a.m. on December 23,1958, in the Chico police station in the presence of a sheriff’s captain and a deputy district attorney. At the commencement of the interrogation, the deputy district attorney smelled the odor of alcohol on petitioner’s breath and requested Dr. Ted Oster, a qualified medical doctor, to give petitioner a sobriety test. Dr. Oster conducted various tests including the Romberg test and other physical tests and determined that petitioner was “mentally alert.” He was of the opinion that petitioner’s mind was working in a “rational manner” and was not under the influence of alcohol insofar as the drunk driving laws were concerned despite a blood alcohol count of .18.
The deputy district attorney stated that the petitioner was lucid and the sheriff’s captain indicated that the petitioner understood the questions he was asked and talked intelligently.
. The taped confession was played at the reference hearing. To the referee it appeared that petitioner’s voice was somewhat slurred but his answers were rational and he seemed coherent. In the middle of the tape petitioner began to cry and he cried and broke down at the end of the tape. Nevertheless, he was able to answer questions such as those relating to the residence of his parents, where he went to school, the age of his child and an adapter for his camera. Unquestionably, petitioner was emotionally upset and remorseful but the referee does not believe that he was irrational and that he did not exercise his own judgment in making the first confession.
b. The confession made at DeWitt State Hospital at approximately 11 a.m. on December 23, 1958.
After his first interrogation and confession, petitioner was taken to the Butte County Hospital where he was admitted as a mental hold .to prevent him from harming himself. At [508]approximately 3 :30 a.m., Nurse Julia Catón administered 300 mgs. of Thorazine to petitioner at the direction of Dr. Paul R. Swinderman. Dr. Swinderman did not see petitioner personally and did not know he had been drinking. He testified that the drug would cause a person under the influence of alcohol to take a longer time than usual in becoming sober.
At approximately 9 a.m. petitioner was taken to DeWitt State Hospital in Auburn. He dozed at times en route and had juice, coffee and doughnuts in the town of Lincoln. Petitioner arrived at the hospital at approximately 11 a.m. where he was examined by Drs. Carl Jackson and G. D. Tipton, psychiatrists. The petitioner told the doctors the facts which he remembered which were a confession of the crime.
The doctors did not know that Thorazine had been administered to petitioner. He appeared to be suffering from a hangover, his clothing was disheveled and he held his head as though he had a headache. His speech was slow.
Although there can be no question but that petitioner received an unusually massive dosage of Thorazine, a fair reading of the evidence establishes that petitioner was able to exercise his judgment in making his second confession.
Dr. Thomas Burbridge, petitioner’s witness, said: “Yes, one of the characteristics of the, of a tranquilizer is, as compared to an ordinary hypnotic sedative, is what, as a matter of fact is one of the ways you separate them from an ordinary hypnotic sedative, like a barbiturate, or alcohol, is that he is easier aroused. The person will sleep but then if you shake him and wake him up and put a question to him he will be able to answer it, or he will be able to, if he could, he is stimulated enough to play a bridge game, but he will not play his best game, and his questions will not be answered with clarity that it ordinarily would be. ’ ’
Dr. Burbridge also said:
1 ‘ Q. Now thorazine is a tranquilizer ?
“A. Thorazine is a tranquilizer. If a large dose is given, enough to produce sleep, you will awaken the person, he will arouse easily, he will answer questions quite well without any trouble at all.
‘1Q. Even with a fairly heavy dose ?
“A. With a fairly, with a fairly heavy dose, yes. ’ ’
As to the combined effects of alcohol and Thorazine, Dr. Burbridge, in commenting on the third interrogation of petitioner at 1:30 p.m., approximately two hours subsequent to the instant confession, testified that he would not state that [509]petitioner’s free will was destroyed and that he had the ability to choose whether he would answer questions or not.
A portion of the recross-examination of Dr. G. D. Tipton by Judge Friedman, petitioner’s counsel,,at petitioner’s second trial is of interest:
“Q. I see. Well, doctor, let me ask you this: Isn’t it a fact the people who have been given thorazine are readily amenable to suggestion?
“A. I can’t say that they are. I don’t know why they should be.
“Q. Well, neither do I, doctor. It is your opinion they are not, is that right?
1 ‘A. Yes, that is right. ’ ’
c. The taped confession made at approximately 3 p.m. on December 23, 1958.
Upon completion of his interview at DeWitt State Hospital, petitioner was taken to the Bureau of Criminal Identification and Investigation in Sacramento where he again was interrogated. Two polygraph examinations were run. The referee permitted limited inquiry of Mr. Joseph F. McVarish, the then polygraph operator, as to whether petitioner’s responses fluctuated normally for the purpose of ascertaining whether at that time petitioner was under the influence of alcohol or Thorazine or both. Petitioner was normally responsive and was alert and attentive.
This taped confession also was played at the hearing. Petitioner’s voice was not slurred and he was able to remember details of the crime.
The referee believes that petitioner did exercise his own judgment in making this confession.
d. The confession made at approximately 8 p.m. on December 23, 1958.
Following the interrogation in Sacramento, petitioner was taken to the Butte County jail in Oroville, arriving at about 6 p.m. At approximately 8 p.m., petitioner was interrogated and again confessed. This confession, too, was tape recorded.
Petitioner contends that then he was threatened by Sheriff Gillick who questioned him. The tape confession was played at the hearing. The referee is unable to find any threats in manner, tone of voice or in content.
A closer question is presented by petitioner’s assertion that he was questioned after his counsel had informed the sheriff not to question petitioner without an attorney being present.
[510]Judge Barr, petitioner’s former counsel, was unable to assist the referee in this regard at the reference hearing. At petitioner’s third trial, however, Judge Barr testified that he phoned Sheriff Gillick in the afternoon of December 23, and requested him not to interrogate petitioner further. Mr. Alexander Cameron, petitioner’s father, states he heard Judge Barr make this statement over the telephone.
On the other hand, Sheriff Gillick testified that Judge Barr asked only where petitioner, was and said nothing about statements.' Thelma Mosely, the sheriff’s secretary, had been directed to listen to the telephone conversation. She testified Judge Barr said nothing about statements or interrogations.
After reviewing the conflicting evidence carefully, the referee has concluded, that no restrictive admonition was given to the sheriff by counsel before petitioner’s interrogation. Even if this were not so, the referee believes that the “rare ease” principle of which Mr. Justice Mosk speaks in People v. Powell (July 18, 1967) 67 Cal.2d 32, 51-55 [59 Cal. Rptr. 817, 429 P.2d 137], would be applicable here. It would be an “Escobedo-Dorado rule” error, and the fourth confession added nothing to the three prior confessions heretofore found to be voluntary.
5. The alleged suppression of evidence.
The referee also was directed to ascertain whether representatives of the State of California lost or suppressed any evidence, the introduction of which would have been favorable to petitioner’s defense.
The referee finds that no evidence was suppressed. It does appear, however, that two items have been lost.
The first item was a roll of colored motion picture film of the victim’s trailer which was lost prior to the first trial. No evidence was offered to the referee to indicate that the film would have been favorable to petitioner. To the contrarjr, the former district attorney who had viewed the film testified that the still photographs used at the trials were far better in clarity.
The second lost item is what appears to be a man’s style plaid shirt depicted in Petitioner’s Exhibit 5a. The picture was taken before the body was moved and the shirt was under the victim’s right forearm. The shirt was not produced' and apparently was lost.
The victim’s sister-in-law, Mrs. Elsie Robinson, specifically identified the plaid shirt as belonging to the victim, and its [511]absence was used by petitioner’s counsel to suggest that a person other than petitioner had- committed the crime. The referee cannot find that the lost plaid shirt if produced would have been favorable to petitioner’s defense.
Findings op Fact
Responsive to the questions propounded by the Court, it is found:
1. Despite petitioner’s consumption of alcoholic beverages, his taped confession made at approximately 1 a.m. on December 23.1958, was voluntary.
2. Despite petitioner’s consumption of alcoholic beverages and the administration to him of Thorazine, his confession made to the physicians at DeWitt State Hospital at approximately 11 a.m. on December 23,1958, was voluntary.
3. Despite petitioner’s consumption of alcoholic beverages and the administration to him of Thorazine, his taped confession made at approximately 3 p.m. on December 23, 1958, was voluntary.
4. The taped confession petitioner made at approximately 8 p.m. on December 23,1958, was voluntary.
5. No evidence was suppressed or lost by any representative of the State of California the introduction of which would have been favorable to petitioner’s defense.
I would therefore deny the petition.
Me Comb, J., and Burke, J., concurred.
Respondent’s petition for a rehearing was denied May 22, 1968. MeComb, J., Mosk, J., and Burke, J., were of the opinion that the petition should be granted.