In re Montgomery

Opinion

WRIGHT, C. J Petitioner was convicted on January 21, 1964, of two counts of robbery in the first degree. (Pen. Code, § 211.) Sentences were ordered to run concurrently. The only evidence introduced by the People on count I, the robbery of John Dewey Bloss on September 29, 1963, was the transcript of Bloss’ testimony at the preliminary hearing. The testimony was admitted, over petitioner’s objection, after the People had established that Bloss was absent from the state at the time of the trial.

At the trial on January 17, 1964, the prosecutor stated that a subpoena previously had been sent to Bloss at his place of employment. Bloss was in New York at that time but was expected to return on January 4, 1964. During the noon recess an investigator made a telephone call to Bloss in New York, and he was informed that Bloss planned to remain in that state for an extended period of time. This constituted the entire showing of the prosecution’s “good faith effort” to locate the absent witness and to secure his presence at the trial.1

In this habeas corpus proceeding petitioner challenges his conviction on that count contending that it is invalid because he was denied the right of confrontation and cross-examination of witnesses as set forth in Barber v. Page (1968) 390 U.S. 719 [20 L.Ed.2d 255, 88 S.Ct. 1318], made “fully retroactive" by Berger v. California (1969) 393 U.S. 314 [21 L.Ed.2d 508, 89 S.Ct. 540].2

[866]In Berger the United States Supreme Court held that because a defendant’s lack of opportunity to cross-examine a witness at trial may have a significant effect on the “integrity of the fact-finding process” (Linkletter v. Walker (1965) 381 U.S. 618, 639 [14 L.Ed.2d 601, 614, 85 S.Ct 1731]), Barber v. Page must be given “fully retroactive application.” (Berger v. California, supra, 393 U.S. 314, 315 [21 L.Ed.2d 508, 510]; italics added.) The Attorney General contends, however, that by “fully retroactive” the court meant retroactive only to April 5, 1965, the date upon which Pointer v. Texas (1965) 380 U.S. 400 [13 L.Ed.2d 923, 85 S.Ct. 1065], which the court stated had “foreshadowed, if not preordained” Barber, was decided. He urges that prosecutors reasonably relied on pre-Pointer law. Whatever merit there may be in this contention, we are of the opinion that the court did not intend that that phrase should, in any way, limit the retroactive effect of Berger.

Although the United States Supreme Court stated that Barber was preordained by Pointer, it is equally true that it was also foreshadowed by earlier cases dealing with the right to confrontation and cross-examination of witnesses. That area of the law was not clearly delineated prior to Pointer. (See Turner v. Louisiana (1964) 379 U.S. 466, 472-473 [13 L.Ed.2d 424, 428-429, 85 S.Ct. 546]; Greene v. McElroy (1959) 360 U.S. 474, 496-497 [3 L.Ed.2d 1377, 1390-1391, 79 S.Ct. 1400]; In re Oliver (1948) 333 U.S. 257, 273 [92 L.Ed. 682, 694, 68 S.Ct. 499]; see also Kirby v. United States (1899) 174 U.S. 47, 55 [43 L.Ed. 890, 893, 19 S.Ct. 574]; Alford v. United States (1931) 282 U.S. 687, 692 [75 L.Ed. 624, 628, 51 S.Ct. 218]; and Willner v. Committee on Character (1963) 373 U.S. 96, 103-104 [10 L.Ed.2d 224, 229-230, 83 S.Ct. 1175] [“Procedural due process often requires confrontation and cross-examination”].) Indeed, it may well be said that this entire area may have been “foreshadowed” by Motes v. United States (1900) 178 U.S. 458 [44 L.Ed. 1150, 20 S.Ct. 993], which reversed a conviction based on an absent witness’ statements at the preliminary hearing, where such absence was a direct result of negligence by the prosecution. (Cf. Mattox v. United States (1895) 156 U.S. 237 [39 L.Ed. 409, 15 S.Ct. 337].) Thus the argument of reliance of prosecutors on pre-Pointer law cannot be persuasive to limit the retro-activity of Barber in light of the express language of Berger. However, even if the impact of retroactivity may be significant, Berger must be interpreted in accord with its plain language to make Barber fully retroactive, for the constitutional error presents a serious risk that the issue of guilt or innocence may not have been reliably determined. (Cf. Roberts v. Russell (1968) 392 U.S. 293, 295 [20 L.Ed.2d 1100, 1103, 88 S.Ct. 1921].)