People v. Guerra

LUCAS, J.

I respectfully dissent. I agree that the majority makes a case for reaffirming the rule announced in People v. Shirley (1982) 31 Cal.3d 18, 66-67 [ 181 Cal.Rptr. 243 , 641 P.2d 775 ], which made inadmissible any testimony of a previously hypnotized witness regarding those matters that were the subject of the hypnotic session. As I understand it, such a witness *433 could freely testify regarding any matters not explored during hypnosis. (See ante, p. 390; Shirley, at p. 68.) Nevertheless, I am troubled by (1) Shirley’s formulation of the test for determining whether the erroneous admission of testimony by a hypnotized witness was prejudicial, and (2) the present majority’s insistence on making its Shirley decision retroactive.

1. Prejudicial error test. In Shirley we stated: “[T]he proper application of the [People v.] Watson [(1956) 46 Cal.2d 818, 836 ( 299 P.2d 243 )] prejudicial error test in the present context requires the appellate court to determine whether it is reasonably probable that a result more favorable to the defendant would have occurred if the testimony of the previously hypnotized witness as to all matters relating to the events of the crime had not been admitted.” ( 31 Cal.3d at p. 70 , italics added.) The majority herein indicates an adherence to this formulation. {Ante, p. 429.) This standard, taken at face value, would appear to require reversal in all cases in which (1) a witness has been previously hypnotized concerning any aspect of the crime on which he or she gives later testimony at trial, resulting in Shirley error, and (2) it is reasonably probable that a result more favorable to the defendant would have ensued had all of that witness’ testimony relating to the events of the crime been excluded.

In my view, the foregoing test of prejudicial error is far too strict, and will result in an unwarranted number of reversals. Most cases involving hypnotized witnesses will stand or fall on that witness’ testimony. Shirley’s strict prejudicial error test apparently was based upon indications in the scientific literature that the hypnotic experience “will tend to clothe the witness’ entire testimony in an artificial but impenetrable aura of certainty, and may distort the witness’ recall of related events occurring both before and after the hypnotic session.” ( 31 Cal.3d at p. 69 , fns. omitted.) In light of the rather speculative nature of these concerns, I suggest there exists some room for acknowledging reasonable exceptions to Shirley’s sweeping exclusionary rule. For example, if the hypnotic session were prematurely terminated before any critical areas had been explored, or if the session had concerned an entirely severable and discrete incident or event, surely we need not exclude the witness’ entire trial testimony in appraising the likelihood of prejudicial error. Or, if the witness’ in-court testimony is entirely consistent with his version given to the police prior to hypnosis, why shouldn’t we deem admission of that testimony harmless error?

2. Retroactivity of Shirley. If, as I suspect, application of Shirley’s strict prejudicial error test would compel the reversal of most pr&-Shirley cases, then perhaps we should hesitate to give that case any retroactive effect. The majority herein would make Shirley retroactive, at least to all cases not final when that case was decided. (I note with apprehension the majority’s sug *434 gestión (ante, p. 413, fn. 24) that Shirley may even apply on collateral attack to cases already final.) In my view, the majority has failed to consider the practical ramifications of its decision.

The majority’s retroactivity ruling is directly contrary to People v. Williams (1982) 132 Cal.App.3d 920, 924-925 [ 183 Cal.Rptr. 498 ], a case in which we had denied a hearing. There, Justice Gardner discussed the various standards for deciding whether a new rule should be given retroactive effect. He observed that “There can be no question but that the effect [of retroactivity of Shirley] would be devastating in pending cases such as this. If applied to this case a defendant found guilty by the trier of fact of two serious crimes goes free.” (Ibid.) Justice Gardner believed that “Shirley is a policy decision which specifically applies to future cases in order to avoid a practice which the Supreme Court has condemned. Nevertheless the practice of admitting hypnotically induced testimony, subject to the trial court’s discretion existed for many years prior to Shirley and still exists in the majority of jurisdictions. [Citations.] [1] Therefore we are hardly in a position to say that in every case in which hypnosis rears its ugly head, the integrity of the fact-finding process has been seriously damaged.” (P. 925.)

As indicated above, Justice Gardner predicted that the effect of making Shirley retroactive to pending cases would be “devastating.” The Attorney General agrees with this assessment, having submitted (in his rehearing petition in Shirley) a lengthy list of cases in which hypnotism was used as an investigative tool. Amicus Appellate Committee of the California District Attorneys Association likewise observes that pre-Shirley reliance upon hypnotism was both reasonable and substantial, and amicus suggests that retroactivity will have a deleterious effect on pending cases, permitting many defendants to escape the consequences of their actions.

Although the majority strenuously disputes the assertion, it seems rather clear to me that Shirley broke new ground in declaring per se inadmissible the testimony of a previously hypnotized witness. Although the prior California cases may have been somewhat cloudy on the point, decisions from other states (as Justice Gardner noted in Williams, supra) generally supported the admissibility of hypnotically induced testimony, and law enforcement agencies in this state relied heavily upon the legitimacy of hypnotism as an investigative tool. Thus, our retroactivity decision should not be made until we have carefully assessed, among other things, “the effect on the administration of justice of a retroactive application of the new standards.” (Stovall v. Denno (1967) 388 U.S. 293, 297 [ 18 L.Ed.2d 1199, 1203 , 87 S.Ct. 1967 ]; accord Donaldson v. Superior Court (1983) 35 Cal.3d 24, 38 [ 196 Cal.Rptr. 704 , 672 P.2d 110 ].)

*435 If, as Justice Gardner, the Attorney General and amicus district attorneys association each suggest, making Shirley retroactive to pending cases will have a “devastating” effect on the administration of justice, then we should withhold such retroactivity unless application of the Shirley rule is essential to preserve the reliability of the factfinding process. {Donaldson, supra, at p. 38 .) Although Shirley may represent a sound policy judgment, I remain unconvinced that a per se rule is essential to the factfinding process. Accordingly, as the majority has failed to rebut the widespread assertion that retroactivity will adversely affect the administration of justice, I cannot join its opinion.

I would affirm the judgments.

Respondent’s petition for a rehearing was denied January 3, 1985. Lucas, J., was of the opinion that the petition should be granted.