People v. Lara

PETERS, J.

I dissent.

The “totality of circumstances” rule in reference to the admissibility of a confession of a minor, adopted by the majority, is based on outdated concepts, disregards the recent cases in this field, and deprives the minor of the constitutional *396 protection to which he is entitled. The majority persist in looking upon the admission of minors’ confessions entirely from the standpoint of coercion; that is, their concern is with the conduct of the police, not with the competency of the minor to waive his constitutional rights. For many years some enlightened courts and scholars have been concerned because in their opinion the coercion concept did not sufficiently protect the rights of either adults or minors. Gradually the emphasis of legal thinking has shifted from the coercion concept to that of the competency of the accused to waive his constitutional rights. The United States Supreme Court first emphasized this concept in the so-called waiver at trial cases (Johnson v. Zerbst, 304 U.S. 458, 464 [ 82 L.Ed. 1461, 1466 , 58 S.Ct. 1019 , 146 A.L.R. 357 ] ; Carnley v. Cochran, 369 U.S. 506 [ 8 L.Ed.2d 70 , 82 S.Ct. 884 ]), and this new development reached its clearest expression in Escobedo v. Illinois, 378 U.S. 478 [ 12 L.Ed.2d 977 , 84 S.Ct. 1758 ], Miranda v. Arizona, 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ], and related eases. In none of these cases did the court concern itself with coercion. Tested by the coercion standard both confessions were admissible. These cases held that after the required warnings are given, if the defendant demands counsel, further interrogation is prohibited until counsel is furnished—in other words, regardless of coercion, the accused is incompetent to confess until he has counsel. This new approach was extended last May to the confessions of minors in the landmark decision of In re Gault, 387 U.S. 1 [ 18 L.Ed.2d 527 , 87 S.Ct. 1428 ], dealing with the rights of juveniles in a juvenile court.

We are now required to apply this new approach to the confessions of minors in criminal courts insofar as waiver of their constitutional rights is concerned. It is crystal clear to me that the ‘‘ totality of circumstances ’ ’ rule has not afforded the protection to minors to which they are constitutionally entitled. The exhaustive collection of cases all decided under the coercion concept cited in the majority opinion is the most eloquent argument that can be made in favor of repudiating the thinking upon which those eases are based. It is my view that if minors are to be given the full advantage of modern concepts to which they are constitutionally entitled we must hold that no minor may waive his constitutional rights unless he has the advice and counsel of an adult, such as a parent, guardian or other responsible person. To state the concept more specifically—I believe that no minor may waive his constitutional right to remain silent, and his right to counsel, *397 unless and until he has the advice and counsel of a friendly adult.

The facts of the instant ease are not in dispute. Both defendants are minors. Both have confessed to murder, implicating not only themselves, but also their fellow defendant. Defendant Lara was just over 18 when the crime was committed, and somewhat sophisticated in police station procedure. The death penalty was imposed by the jury. His conviction in large part was predicated on his confession. Defendant Alvarez was 17 years and 11 months of age, and so was given a life sentence. His conviction, too, is largely based on his confession. He, as the prosecution conceded, has an I.Q. of between 65 and 71, and a mental age of 10 years and 2 months. Both boys, after their arrests, were separately given the Dorado warnings (People v. Dorado, 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ]). They both stated that they understood the warnings. They then made complete confessions. No adult was present other than the police. Had the warnings been given to an adult under similar circumstances a waiver would probably have resulted. (People v. Sanchez, 65 Cal.2d 814, 824 [ 56 Cal.Rptr. 648 , 423 P.2d 800 ] ; People v. Thomas, 65 Cal.2d 698, 704-705 [ 56 Cal.Rptr. 305 , 423 P.2d 233 ].) The question is whether we should apply to minors the same rules that apply to adults. I think not.

Traditionally minors have been the special concern of the law. In an adult-controlled society, for their protection, minors are afforded a preferred status. This concept developed in the civil law by the holding that a minor has but a limited capacity to act. Thus he cannot make a binding contract like an adult. This rule is codified in California, the statutes providing that a minor cannot bind himself by contract (Civ. Code, §§ 33, 34, 35, 1556, 3103; Lab. Code, § 300) except for necessities, and even then only to the extent of their reasonable value (Civ. Code, § 1722).

This solicitude for minors, and the protective attitude of the law, exists in many fields besides contracts. Thus, a minor can appear in a civil court only through a guardian. (Civ. Code, §42.) The doctrine of estoppel cannot be applied against infants. (Lackman v. Wood, 25 Cal. 147 , 153 ; Lee v. Hibernia Sav. & Loan Soc., 177 Cal. 656, 660 [ 171 P. 677 ] ; Morgan v. Morgan, 220 Cal.App.2d 665, 675 [ 34 Cal.Rptr. 82 ].) Other civil disabilities, particularly in the field of torts, are too well known to require further elaboration.

This protective mantle has also been thrown about the *398 minor in the field of criminal law, hut while in the civil law this protection centered upon the inability to consent, the criminal law made a different approach. From the early common law it was held that minors were the special concern of the crown, and thus developed the doctrine of in parens patriae. (See discussion in Note (1967) 1 San Fernando Valley L. Rev., 73, 74.) This concept has had a profound effect on the development of the criminal law insofar as it relates to minors. Based on this concept, in California, and in most other states, a complete system of courts was set up to handle most of the juvenile delinquents. (Welf. & Inst. Code, §§ 500-911.) A minor under 14 was made presumptively incapable of committing crime. (Pen. Code, § 26.) It was provided that a minor under 18 should not suffer the death penalty. (Pen. Code, § 190.1.) During confinement minor offenders are separated from adult offenders. (Pen. Code, § 273b.)

It was a natural development of the in parens patriae doctrine to hold, as the courts did, that a juvenile court proceeding was not aimed at punishment but was in fact not a criminal proceeding at all, and was civil in nature. This doctrine, conceived for the purpose of protecting minors, had some unexpected results. One was that, since the guarantees in the Bill of Rights are mainly aimed at protecting rights in criminal eases, minors were deprived of the protection of the Bill of Rights. Thus, as early as 1876 in California minors were denied the right of trial by jury in juvenile eases. (Ex parte Ah Peen, 51 Cal. 280 ; see for a later decision In re Daedler, 194 Cal. 320 [ 228 P. 467 ].) This doctrine also led naturally to the rule expressed in In re Castro, 243 Cal.App.2d 402 [ 52 Cal.Rptr. 469 ], that a minor was not entitled to the protection of Escobedo v. Illinois, supra, 378 U.S. 478 ; People v. Dorado, supra, 62 Cal.2d 338 ; and Miranda v. Arizona, supra, 384 U.S. 436 . Thus, what started out as a doctrine for the protection of minors, became a straitjaeket that made of minors second class citizens deprived of constitutional rights.

Concurrently with these developments the courts became increasingly concerned with the possibility of the abuse of the confession process, both as it affects adults and as it affects minors. Thus developed the rule that confessions were inadmissible if coerced. But some courts soon realized that the coercion rule was not a sufficient protection for minors. Thus in Haley v. Ohio, 332 U.S. 596, 599-600 [ 92 L.Ed. 224 , 228229, 68 S.Ct. 302 ], the United States Supreme Court held that, although no physical coercion had been used to secure a *399 confession from a 15-year-old. boy who had been interrogated for 5 hours without the presence of a friendly adult, and although such a confession would have been admissible against an adult, it was not admissible against the minor. It was held that special safeguards should be thrown around confessions of minors. Long before Escobedo, supra, (in 1947) the Supreme Court applied to the confessions of minors the tests later adopted in that case. It was in the context of particularly protecting the rights of minors in connection with confessions that the court said: “ [W]hen, as here, a mere child—an easy victim of the law—is before us, special care in scrutinizing the record must be used. . . . He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. . . . [W]e cannot believe that a lad of tender years is a match for the police in such a contest. He needs counsel and support if he is not to become the victim first of fear, then of panic. He needs someone on whom to lean lest the overpowering presence of the law, as he knows it, crush him. ’ ’

It was in this same context that the high court expressed its solicitude toward a 14-year-old boy who had voluntarily confessed in Gallegos v. Colorado, 370 U.S. 49, 54 [ 8 L.Ed.2d 325, 328-329 , 82 S.Ct. 1209 , 87 A.L.R.2d 614 ], when it stated:

‘ 1 The prosecution says that the boy was advised of his right to counsel, but that he did not ask either for a lawyer or for his parents. But a 14-year-old boy, no matter how sophisticated, is unlikely to have any conception of what will confront him when he is made accessible only to the police. . . . He cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions.” (See also Reck v. Pate, 367 U.S. 433 [ 6 L.Ed.2d 948 , 81 S.Ct. 1541 ].)

This general concern for lack of adult guidance was recognized by the Legislature of California when it adopted section 858 of the Penal Code. It provides: 11 When the defendant is brought before the magistrate upon an arrest . . . the magistrate must immediately inform him ... of his right to the aid of counsel in every stage of the proceedings. . . . [A]nd if the magistrate concludes that it is probable that the defendant is a minor ... he shall immediately either notify the parent or guardian of the minor, by telephone, telegram, or messenger, of the arrest, or appoint counsel to represent the minor. ’ ’

*400 Chief Justice Traynor recognized the problem in his dissent in In re Patterson, 58 Cal.2d 848, 857 [ 27 Cal.Rptr. 10 , 377 P.2d 74 ], when he stated: “In my opinion the purpose of the Legislature in enacting section 700 [Welf. & Inst. Code] and the language it used to express that purpose require the judge at the outset of the hearing personally to find out by examining the minor and his parents or guardian, if present, whether they have been informed of the minor’s right to representation by counsel and whether they wish the aid of counsel. In performing that duty the judge must also make certain that they understand the nature of the charge and its possible consequences and that if they cannot afford to employ counsel, the court can appoint counsel, if the charge is of felony proportions. ’ ’

Obviously these protections afforded minors in the courtroom would be meaningless if not extended to interrogation upon arrest. When an interrogation at the accusatory stage produces a confession, the minor has, in many eases, had his “trial.” As pointed out in Dorado , quoting from Escobedo : “ ‘This was the “stage when legal aid and advice” were most critical to petitioner. Massiah v. United States, supra at p. 204 [ 377 U.S. 201 [ 12 L.Ed.2d 246, 249 , 84 S.Ct. 1199 )]. It was a stage surely as critical as was the arraignment in Hamilton v. Alabama, 368 U.S. 52 [ 82 S.Ct. 157 , 7 L.Ed.2d 114 ], and the preliminary hearing in White v. Maryland, 373 U.S. 59 [ 83 S.Ct. 1050 , 10 L.Ed.2d 193 ]. What happened at this interrogation could certainly ‘ ‘ affect the whole trial, ’ ’ Hamilton v. Alabama, supra, at p. 54 [ 7 L.Ed.2d at p. 116 ], since rights “may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes.” ’ ” (People v. Dorado, supra, 62 Cal.2d 338, 348 .) Indeed, to deprive the minor at the accusatory stage of the protection considered necessary for his protection at arraignment—which is what the majority here does—is to repudiate the basic reasoning of Dorado and Escobedo . The rule I advocate assures that at no stage of the orderly administration of justice will the minor receive anything less than the full measure of protection to which he, because of his immaturity, is entitled.

The failure of the coercion concept to protect even adults from the abuse of the old confession rule was recognized in Escobedo and Miranda . Now the concepts that the accused must be informed of his constitutional rights and can waive them only by an informed consent have been added to the old *401 coercion concept. This new approach was extended last May to minors in a juvenile court setting in the decision of In re Gault, supra, 387 U.S. 1 [ 18 L.Ed.2d 527 , 87 S.Ct. 1428 ], That decision ended once and for all the holding that juvenile court proceedings resulting in confinement are civil and not criminal. It held that the Bill of Rights and the Fourteenth Amendment were applicable in juvenile proceedings. It not only restored juveniles to the status of first-class citizens, but continued to expand the concept that the juvenile must be afforded greater protection as to confessions than that given to adults. The majority opinion cavalierly dismisses the Gault opinion by a brief reference in a footnote. It is worthy of much more serious consideration.

That case involved the very constitutional warnings and the doctrine of waiver here involved in the context of juvenile court proceedings. The court, however, did not so limit its pronouncements. It used language sufficiently broad to indicate its concern with the whole problem of the competency of minors to waive their constitutional rights regardless of the forum adjudicating their competency to do so. In reference to the problem here involved, the court stated:

“We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed, the child and his parent must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.’’ (In re Gault, supra, 387 U.S. 1 at p. 41 [ 18 L.Ed.2d at p. 554 , 87 S.Ct. 1428 at p. 1451 ].) In reference specifically to waiver the court said (p. 55 [ 18 L.Ed.2d at p. 561 , 87 S.Ct. at 1458 ]): “We conclude that the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults. We appreciate that special problems may arise with respect to waiver of the privilege by or on behalf of children, and that there may well be some differences in technique—but not in principle—depending upon the age of the child and the presence and competence of parents. ... If counsel is not present for some permissible reason when an admission is obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it has not been coerced or suggested, but also that it is not the product of ignorance of rights or of adolescent fantasy, fright or de *402 spair.” In suggesting that the sole test is coercion the majority flies in the face of this language.

At page 49 [ 18 L.Ed.2d at p. 558 , 87 S.Ct. at p. 1455 ] appears this significant language : ‘ ‘ The authoritative ‘ Standards for Juvenile and Family Courts’ concludes that . . . ‘Before being interviewed [by the police] the child and his parents should be informed of his right to have legal counsel present and to refuse to answer questions ... if he should so decide. ’ ”

California has also been alert to the problem involved. In the report of the Governor's Special Study Commission on Juvenile Justice, Part II, page 14 (1960) it is stated: “ [I]t cannot always be said that the minor is fully aware of what he is actually admitting to or that the parents are always cognizant of the processes that are involved. In fact, it is indeed ironic that our laws view the competency of a minor to deal with financial matters with such strictness and yet fail to make any notice of such incompetence in a matter involving' the minor’s basic freedoms. ’ ’

The Court of Appeal in In re Castro, supra, 243 Cal.App.2d 402, 409 , although not recognizing the significance of its language and coming to the wrong conclusion under the facts of that case, expressed the thought under consideration in the following language: “An 8-, 9-, or 10-year-old boy, or even a minor of an age up to majority, is considered by our civil law as incapable of clearly making a binding contract in the same way as an adult; in tort law there are many situations in which a juvenile is not held to the same standard of care as one who has gained his majority; the necessity of guardianship, in connection with the property rights of minors, illustrates that juveniles are not invariably held to adult standards of understanding and judgment. An unaided minor cannot convey his real property, even though he knowingly wishes to do so. How then can he be expected knowingly aud effectively to waive his constitutional rights ? ’ ’

In Harling v. United States, 295 F.2d 161, 163 , footnote 12 [ 111 App.D.C. 174 ], the federal court stated: “AVhenever possible and especially in the case of young children, no child should be interviewed except in the presence of his parents or guardian. ’ ’

Thus, the pendulum has shifted. Now the law in the criminal field is approaching the capacity doctrine of the civil law.

It is a reasonable interpretation of these cases to hold that *403 it is the law that a minor is incompetent to waive his Escobedo rights unless he is afforded the counsel and advice of his parent, guardian or lawyer. He must be afforded the counsel and advice of such a friendly adult if he is to undergo police interrogation. This is also the view of legal scholars in the field (7 Santa Clara Laws. 114, 127 ; 40 Wash.L.Rev. 189, 200-201).

The majority opinion, in holding that each case of a minor must be decided on the “totality of circumstances” involved, disregards these modern cases, overlooks the modern thinking-in this field, and relies on the coercion cases which are concerned primarily with the issue of the voluntariness of the confessions there involved. It mentions only in passing the real issue of the competency of minors to waive crucial and complex rights. The two issues, although related, are substantially dissimilar in nature.

The majority opinion tries to erect an iron curtain between consensual concepts of our civil law and “those provisions of the law governing acts of wrongdoing by a minor.” It then discusses at length the voluntariness of confessions by minors and the ability of minors to withstand police coercion. As indicated, this is now a repudiated approach. It does not come to grips with the real problem involved, which is the intellectual capacity of the minor to waive or contract away his constitutional rights. Thus, the majority opinion clings fast to the old outdated authorities and refuses to recognize the impact and sophistication of the recent criminal rights decisions. It cites and relies upon some 19 cases where the sole issue discussed was coercion, and the issue of waiver and consent was not mentioned. Those cases need not be summarized here. The greater number of them arose and were decided long before the Hnited States Supreme Court came to grips with the idea that warnings and waiver were involved and not only coercion. It is not surprising therefore that they do not contain any enlightened analysis of the question of competency to waive constitutional rights, a subject not yet fully developed by the courts. The coercion eases are simply not in point and are outdated because they are concerned primarily with the conduct of the police. Today the focus of attention has shifted from the conduct of the police to the capacity of the accused. The majority opinion simply ignores this change in focus.

Even in this era when the courts generally did not understand the relevancy of competency as distinguished from the issue of coercion, there were some enlightened judges who *404 were concerned with the more sophisticated problem. Some of these authorities have already been mentioned. Others could be mentioned. In People v. De Flumer, 16 N.Y.2d 20 [ 209 N.E.2d 93 ], the New York Court of Appeal was concerned with the confession of a 15-year-old boy, and his resulting plea of guilty to murder. The majority held the confession was voluntary and therefore admissible. The case is cited for this holding by the majority. But the real importance of the case appears in the language of the three-man dissent. It was there stated (p. 24) : “To subject a child in the absence of his parents or friend or counsel to questioning which might have and was intended to convict him is a violation of a basic right of individual freedom.” (See also the dissenting opinion in United States v. State of New Jersey, 323 F.2d 146, 155 .) These dissenting views now express the recent attitude of the Supreme Court of the United States.

The majority opinion also refers to several cases dealing with the right of a minor to waive counsel on trial in court. These eases are obviously distinguishable because at the time of waiver in court the minor under California law has the benefit and support of a friendly adult.

Two Oregon cases are cited by the majority which decide the precise point at issue adversely to the views expressed in this dissent. (State v. Gullings, 244 Ore. 173 [ 416 P.2d 311 ] ; State v. Casey, 244 Ore. 168 [ 416 P.2d 665 ].) No useful purpose would be served by discussing the facts of those cases. They support the majority. They, like the majority, treat the real problem here involved in a most cursory and inadequate fashion. They, like the majority opinion, are just wrong and should not be followed. They, like the majority, reflect the thinking of an outdated era when coercion, not competency, was the main subject of concern.

The majority hold that the rule of waiver should vary with the age and maturity of each child. I think not. As was said in Harling v. United States, supra, at page 164, footnote 12: “ [W]e do not believe that the question of admissibility of the child’s statements as evidence against him in the District Court should vary from case to case depending on criteria which could at best only partially indicate the child’s capacity to waive his rights.” Moreover, the proposed rule would place on the police an almost impossible burden, requiring them, on the spur of the moment, to determine the competency and maturity of each child arrested by them.

Certainly, as a matter of federal constitutional law, minors *405 at some age, whether it be 21, 18 or 10, are incapable of waiving their constitutional rights to counsel and to remain silent in the absence of advice by an attorney or other adult. It is inconceivable that this court or any court would concern itself with the “totality of circumstances” when confronted with a confession and waiver of a 10-year-old who had not had the advice of an adult. But we are not here required to determine what is the particular age of constitutional disability because even in the absence of constitutional compulsion, we must, as a matter of California law, fix that age at 21.

The problem is a legislative one. The Legislature has repeatedly defined a minor as any person under 21. (Civ. Code, §25; Welf. & Ins. Code, §§ 600, 601, 602; Lab. Code, § 1172; Veh. Code, § 17700.) Twenty-one is the age the Legislature has fixed for the capacity to consent to a binding contract. The analogy to waiver is obvious. When a minor is to be deemed competent for some specific purpose at a lower age, the Legislature specifically provides for it. (See 36 Ops.Cal. Atty.Gen. 85, 88.) Section 858 of the Penal Code, which deals with the same constitutional rights involved here—but at arraignment—does not make an exception to the rule that 21 is the age of majority. (See 36 Ops.Cal.Atty.Gen. 85 .) As we have seen, the accusatory stage is every bit as important as arraignment, if not more so, with regard to protecting constitutional rights.

Since the Legislature has fixed 21 as the age of capacity to consent to a binding contract and as the age below which a criminal suspect needs the advice of counsel or a parent or guardian at arraignment, we have no choice but to adopt 21 as the age of capacity to consent unaided to waiver of Dorado rights at the accusatory stage. Until the Legislature determines otherwise, it should be held that 21 is the age below which a suspect is not legally competent to waive his rights without advice of counsel or parent or guardian.

It should be noted that when the Legislature wants to regulate the waiver of constitutional rights it knows how to express its intent. This was dramatically illustrated in the last session of the Legislature by the amendment of section 372 of the Code of Civil Procedure. That is the section that requires a guardian to be appointed for a minor, insane or incompetent person who appears as a party in a civil suit. The amendment reads as follows: “Nothing in this section or in any other provision of this code, the Probate Code, or the Civil Code is *406 intended by the Legislature to prohibit a minor from exercising an intelligent and knowing waiver of his constitutional rights in any proceedings under the Juvenile Court Law.

This amendment, passed after the instant case was tried, is, of course, not retroactive, and has no application to the present case. But it is significant for several reasons. In the first place, presumptively, the amendment was intended to accomplish a change in the law. It implies that before the amendment was passed a minor could not waive his constitutional rights, even in a juvenile court proceeding, so a fortiori he could not waive them in a superior court proceeding.

In the second place, the amendment, by limiting its application to juvenile court proceedings, and by its careful reference to certain codes and its failure to refer to the Penal Code, indicates, as clearly as if it had expressed it directly, the intent that the waiver permitted should apply only to juvenile court proceedings. This is, of course, not such a proceeding. The obvious implication is that the Legislature did not intend that a minor could waive his constitutional rights in a superior court trial.

There is still another reason why the judgments should be reversed. The jury was never instructed on the theory so eloquently and strongly argued by the majority. If it be the proper rule that in considering whether a minor has intelligently waived his constitutional rights the “totality of circumstances ’ ’ must be considered, and that special rules apply and special factors must be considered in such eases, certainly the content of such rules, whether they were complied with, and what factors are involved are questions of fact for the jury. The majority emphasize time and time again that whether a waiver was made depends on the “totality of circumstances” and that that question is one “of fact.” Obviously, if it is a question of fact, and it is a most important one, it should be submitted to the jury on proper instructions. Otherwise, the defendant minors have been deprived of the jury trial guaranteed to them by the Constitution.

It is true that in People v. Sanchez, supra, 65 Cal.2d 814, 827 , it was held that the questions of whether the constitutional warnings were given and apparently whether they were waived were for the court and not the jury, but that case conflicts with People v. Eli, 66 Cal.2d 63, 76 [ 56 Cal.Rptr. 916 , 424 P.2d 356 ], where it was apparently held that when conflicting evidence is introduced on the issues, they *407 must be submitted to the jury. It is not necessary to resolve this apparent conflict in this case. Here, whether required to do so or not, the issues of whether the defendants were warned of and waived their rights were submitted to the jury. But the instruction on the issue was fatally incomplete.

It must be remembered that we are dealing with minors, not adults. The majority state, in fact strongly argue, that whether the minors were warned and the warnings waived is a question governed by special rules and governed by special factors. Certainly the jur; 1 , should be told what those special rules and factors are or they would not know what they were to determine. The fact defendants were minors was not even mentioned anywhere in the instructions. The jury was given but one general instruction on the issue of the warnings required, and on the issue of waiver. That instruction reads in its entirety as follows:

“You may consider a voluntary admission or confession made to a police officer only if the evidence establishes that before such interrogation:

“(1) the authorities effectively warned defendant of his absolute right to remain silent and of his right to be represented by counsel, and

“(2) defendant knowingly and intelligently waived the right to remain silent and to be represented by counsel. ’ ’

Nowhere was the jury told that waiver by a minor of constitutional rights presents special problems and that special factors are to be considered. They should have been so informed. To hold that the finding of the jury is supported under such circumstances, when the jury was not told what it was to consider, was clearly erroneous. That it was prejudicial, is obvious.

The fact defendants did not request instructions on the issue is immaterial. The issue is so fundamental that the court should have given the instructions on its own motion. (People v. Bevins, 54 Cal.2d 71, 77 [ 4 Cal.Rptr. 504 , 351 P.2d 776 ] ; People v. Eli, supra, 66 Cal.2d 63, 76 .)

For these reasons I would reverse the judgments.