IN RE: Erwin M. WALKER On Habeas Corpus. The PEOPLE of the State of California

Reset A A Font size: Print

Court of Appeal, First District, Division 1, California.

IN RE: Erwin M. WALKER On Habeas Corpus. The PEOPLE of the State of California, Plaintiff and Appellant, v. Erwin M. WALKER, Defendant and Respondent.

Cr. 10131.

Decided: November 28, 1972

Evelle J. Younger, Atty. Gen. of California, Edward P. O'Brien, Gloria F. DeHart, Deputy Attys. Gen., San Francisco, for appellant. Atherton Phleger, Brobeck, Phleger & Harrison, San Francisco, for respondent.

The People appeal from an order granting a writ of habeas corpus which, in its effect, sets aside petitioner Erwin M. Walker's 25-year-old convictions of first degree murder and two counts of attempted murder. Such an order is appealable. (Pen.Code, § 1506.)

The murder conviction was affirmed December 29, 1948, by a unanimous decision of the California Supreme Court. The decision is reported in People v. Walker, 33 Cal.2d 250, 201 P.2d 6. Rehearing was denied January 27, 1949, and certiorari was thereafter denied by the United States Supreme Court, March 28, 1949 (336 U.S. 940, 69 S.Ct. 744, 93 L.Ed. 1098). The convictions of attempted murder went unappealed and became final according to law in 1947.

The preconviction factual background of the case is set out at length in People v. Walker, supra, 33 Cal.2d at pages 252–258, 201 P.2d 6, and need not be repeated here. In the trial court Walker's only pleas to the charges were ‘Not guilty by reason of insanity.’ By not entering additional pleas of ‘Not guilty,’ he admitted commission of the offenses charged. (Pen.Code, § 1016.) He waived a jury and was found by the court to have been sane at the time of the commission of the offenses. The sufficiency of the evidence to support this finding was not questioned on the appeal (see People v. Walker, p. 258, 201 P.2d 6) nor is it questioned here. The penalty on the murder conviction was fixed at death.

On his prison arrival in June 1947, Walker was considered by a psychiatrist to be a paranoid schizophrenic, the result of his wartime combat experiences. His condition deteriorated after the suicide death in December 1947 of his father. On the day set for Walker's execution, April 15, 1949, a panel of psychiatrists found him to be insane; and his execution was for that reason stayed. He was thereafter determined to be insane by a superior court jury following which he was, in May 1949, transferred to a state mental institution. Presumably insane, and but for one brief escape, he remained in state hospitals for twelve years.

In 1961, at Walker's request, another hearing on the issue of his sanity was held in the Marin County Superior Court, resulting in an adjudication of sanity. He was thereafter returned to prison, where he petitioned the governor for executive clemency. The governor soon thereafter commuted Walker's sentence to life imprisonment without possibility of parole.

On January 21, 1970, Walker applied to the California Supreme Court for a writ of habeas corpus. The application was denied February 13, 1970, without hearing or opinion.

The instant proceedings were commenced by Walker, June 9, 1970, with an application to the Solano County Superior Court, which, to distinguish it from the ‘trial’ court, we shall refer to as the ‘habeas corpus' court. The application was identical with that previously filed in and denied by the Supreme Court.

Among the contentions of Walker's application were the following:

1. His representation by counsel at the trial was constitutionally inadequate;

2. Statements made by him to the police which were admitted and considered at his trial were involuntary;

3. His statements to psychiatrists were improperly considered by the court; and

4. The procedure followed by the court in determining the degree of, and penalty for, his murder conviction was invalid.

After extended hearings the habeas corpus court determined each of these contentions adversely to the People. The here contested order granting the writ and remanding Walker to the trial court in Los Angeles County ‘for further proceedings,’ was thereupon entered.

On the instant appeal the People contend that the order granting the writ was unsupported in fact and in law.

We find ourselves impelled to agree. The order will be reversed; our reasons follow.

Preliminarily we point out certain well-established rules by which courts are bound in such proceedings.

A presumption of regularity attaches to a judgment under collateral attack by habeas corpus (In re Smith, 2 Cal.3d 508, 510, 86 Cal.Rptr. 4, 467 P.2d 836); the burden of overcoming this presumption rests upon the applicant (In re Carlson, 64 Cal.2d 70, 75, 48 Cal.Rptr. 875, 410 P.2d 379). Habeas corpus will rarely be allowed to resolve claims of error which could have been raised on appeal; nor does the writ lie to relitigate issues which were previously decided on appeal. (See In re Terry, 4 Cal.3d 911, 927, 95 Cal.Rptr. 31, 484 P.2d 1375, cert den., 404 U.S. 980, 92 S.Ct. 348, 30 L.Ed.2d 295; People v. Jackson, 67 Cal.2d 96, 99–100, 60 Cal.Rptr. 248, 429 P.2d 600; In re Streeter, 66 Cal.2d 47, 52, 56 Cal.Rptr. 824, 423 P.2d 976; In re Lessard, 62 Cal.2d 497, 507, 42 Cal.Rptr. 583, 399 P.2d 39.) As reiterated in In re Shipp, 62 Cal.2d 547, 552, 43 Cal.Rptr. 37, 399 P.2d 571, 575, cert. den., 382 U.S. 1012, 86 S.Ct. 623, 15 L.Ed.2d 528, “The general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction.' . . .' And, “It is, of course, an established rule that habeas corpus may not be used instead of an appeal to review determinations of fact made upon conflicting evidence after a fair trial. . . .” (In re Chapman, 43 Cal.2d 385, 390, 273 Cal.Rptr. 817, 820; In re Dixon, 41 Cal.2d 756, 760, 264 P.2d 513.)

The ‘special circumstances' where relief by habeas corpus will nevertheless be allowed, occur (1) where a court has acted in excess of its jurisdiction or power “as defined by constitutional provision, statute, or rules developed by courts . . ..” (People v. Mutch, 4 Cal.3d 389, 396, 93 Cal.Rptr. 721, 725, 482 P.2d 633, 637), and (2) where a judgment is obtained in violation of ‘fundamental constitutional rights' (In re Winchester, 53 Cal.2d 528, 531, 2 Cal.Rptr. 296, 348 P.2d 904; In re Ali, 230 Cal.App.2d 585, 590, 41 Cal.Rptr. 108). It is of particular concern to the law whether the claimed violation frustrates the guilt-finding process and enhances the possibility that an innocent person is undergoing punishment. (See 79 Harv.L.Rev. 79–86, and the authority there cited.) As tersely stated by Chief Justice Traynor in In re Cameron, 68 Cal.2d 633, 635: ‘Habeas corpus is available 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. . . .’ (Emphasis added.)

I. A previously unadjudicated issue of fundamental constitutional concern was presented by Walker's insistence of inadequate representation by counsel both at the trial and on his appeal. The issue, bearing closely on the guilt-finding process, was of the type in which in a proper case, relief will be granted retroactively and without limit in time. (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; In re Woods, 64 Cal.2d 3, 5–6, 48 Cal.Rptr. 689, 409 P.2d 913.) Since the right to effective counsel is guaranteed by the Sixth and Fourteenth Amendments (Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; People v. Ibarra, 60 Cal.2d 460, 464–465, 34 Cal.Rptr. 863, 386 P.2d 487), the contention was properly considered by the habeas corpus court.

To justify a judicial conclusion of inadequacy of counsel ‘am extreme case must be disclosed.’ It must appear that counsel's lack of diligence or competence reduced the trial to a ‘farce or a sham.’ Nevertheless, ‘It is counsel's duty to investigate carefully all defenses of fact and of law that may be available to the defendant, and if his failure to do so results in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he is [constitutionally] entitled. . . .’ (People v. Ibarra, supra, 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 866, 386 P.2d 487, 490; see also Kaplan v. Superior Court, 6 Cal.3d 150, 157, 98 Cal.Rptr. 649, 491 P.2d 1; People v. Shells, 4 Cal.3d 626, 630–631, 94 Cal.Rptr. 275, 483 P.2d 1227; In re Johnson, 3 Cal.3d 404, 419–420, 90 Cal.Rptr. 569, 475 P.2d 841.) But upon the defendant rests the burden of establishing his contention of inadequate representation ‘not as a matter of speculation but as a demonstrable reality. . .’ (Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed. 268; People v. Reeves, 64 Cal.2d 766, 774, 51 Cal.Rptr. 691, 415 P.2d 35, cert. den., 385 U.S. 952, 87 S.Ct. 332, 17 L.Ed.2d 229.)

Walker's instant contention results principally from his trial attorney's failure to assert the defense of ‘diminished capacity’ at the trial and later on the appeal.

The diminished capacity concept is commonly known as the ‘Wells-Gorshen’ rule. It has its genesis in People v. Wells (1949) 33 Cal.2d 330, 202 P.2d 53. In brief—it declares that a mental aberration not amounting to legal insanity may negative the existence of a particular mental state which is an element of the crime charged. The rule was further developed in People v. Gorshen (1959) 51 Cal.2d 716, 336 P.2d 492. As to this case it is urged that its application might have negatived the malice, deliberation, premeditation, and specific intent which were elements of the crimes of which Walker was convicted.

No contention is made by Walker that his judgment of conviction should now, 25 years later, be set aside because of the trial court's Wells-Gorshen error. Instead, as indicated, he urges that it be set aside because of his attorney's failure to raise the point. The reasons are obvious: Wells-Gorshen's rule of diminished capacity is not a subject of fundamental constitutional concern (see People v. Wells, supra, 33 Cal.2d 330, 346–357, 202 P.2d 53), while, as we have pointed out, the right to adequate representation by counsel is.

Walker urged in his habeas corpus proceedings below that ‘The chief question before the court is whether Walker had a defense of diminished capacity sufficient to go the the trier of fact, . . .’ If so, it was argued, counsel was derelict in ‘withdrawing a crucial defense’ from the case. The hearing was given over, in its near entirety, to the question whether at the time of the charged offenses more than 20 years earlier Walker did, or did not, suffer from diminished capacity. Some psychiatrist witnesses testified that he did; others testified that he did not.

In its order granting Walker's habeas corpus application the court commented on the ‘mystery’ why the ‘applicability [of the diminished capacity defense] to the Walker case’ did not occur to counsel. The court then stated: ‘The defense of want of capacity to formulate the necessary specific intent to sustain a burglary charge [an element of the first degree felony murder rule—Pen.Code, § 189], or to premeditate and deliberate, a necessary element in the only other theory of first degree murder, was never advanced on Walker's behalf. The testimony at the hearing on this writ of habeas corpus was that the announcement of the Wells decision created a considerable amount of interest on the part of bench and bar. Its implications were immediately the subject of much discussion. Why its application to Walker's case was not considered is purely speculative, but certainly curious.’ The court concluded ‘that Walker had a crucial defense available which was not presented on his behalf’ by counsel.

Walker's trial ended in June 1947. People v. Wells, supra, 33 Cal.2d 330, 202 P.2d 53, was decided more than one and a half years later on January 25, 1949. Certainly Walker's trial attorney is not to be faulted for not presenting a diminished capacity defense at the trial. And as we have indicated, Walker's murder conviction became final by the Supreme Court's denial of a rehearing on January 27, 1949, two days after filing of the People v. Wells decision. The habeas corpus court's finding of constitutional inadequacy of counsel's representation seems to be based upon his failure to somehow advise himself and the Supreme Court, within those two days, of the application of the new diminished capacity rule to Walker's case.

Contrary to the habeas corpus court's recital we find no testimony ‘that the announcement of the Wells decision created a considerable amount of interest on the part of bench and bar,’ and that its ‘implications were immediately the subject of much discussion.’ (Emphasis added.) Indeed, the record shows the contrary; Walker's attorney at the habeas corpus proceedings conceded that the decision ‘was not published in time’ and that its impact ‘apparently was slow in being felt.’

While Walker on habeas corpus was arguing ‘constitutional inadequacy’ of counsel for not raising the Wells-Gorshen rule, he at the same time was advising the court, ‘You can't condemn the counsel for not knowing about Wells and Gorshen.’ The argument seems to have urged some sort of legal fiction, admittedly based on nonexistent circumstances, designed to accomplish a result otherwise unattainable. (See Black's Law Dict. (4th ed.): ‘Fiction of Law. Something known to be false is assumed to be true. . . .’) Constitutional inadequacy is not to be proved in this manner; as we have stated it must be established as a ‘demonstrable reality.’ (Adams v. United States ex rel. McCann, supra, 317 U.S. 269, 63 S.Ct. 236.)

No constitutional inadequacy of counsel is seen in the failure to assert a diminished capacity defense at Walker's trial or on his appeal.

Additionally, albeit parenthetically, it should be pointed out that the trial court expressly concluded that the murder of which Walker was found guilty (1) was committed in the attempted perpetration of burglary with its attendant specific intent to commit theft, and (2) was premeditated and deliberate. These conclusions were supported by substantial evidence.

Nor do we otherwise find any matters in the record which singly or collectively support Walker's instant contention. We have read the trial transcript which discloses that he was competently represented. The late Justice Carter and the court for which he prepared the People v. Walker opinion agreed, stating (33 Cal.2d at p. 260, 201 P.2d at p. 12): ‘The factual background of the proceedings shows that defendant's rights were adequately protected at all stages thereof. . . .’ (Emphasis added.)

We conclude that the habeas corpus court's finding of constitutional inadequacy of Walker's legal representation may not reasonably be allowed to stand.

II. On Walker's second contention that certain of his confessions considered at the trial were involuntary, we are not concerned with the well-known rules of People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, cert. den., 381 U.S. 937, 85 S.Ct. 1765, 14 L.Ed.2d 702; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Those decisions, announced long after Walker's trial, have no retroactive effect. (Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; People v. People v. Rollins, 65 Cal.2d 681, 691, 56 Cal.Rptr. 293, 423 P.2d 221; In re Shipp, supra, 62 Cal.2d 547, 549, 43 Cal.Rptr. 3, 399 P.2d 571; In re Lopez, 62 Cal.2d 368, 372, 42 Cal.Rptr. 188, 398 P.2d 380, cert. den. 384 U.S. 1016, 86 S.Ct. 1929, 16 L.Ed.2d 1038.)

Whether Walker's confessions were involuntary must be determined by the law as it existed at the time of his trial. (Procunier v. Atchley, 400 U.S. 446, 453, 91 S.Ct. 485, 27 L.Ed.2d 524, reh. den., 401 U.S. 966, 91 S.Ct. 966, 28 L.Ed.2d 249.) That law provided ample relief against involuntary incriminating admissions. In People v. Nagle (1944) 25 Cal.2d 216, 222–223, 153 P.2d 344, 347, it was reiterated that ‘The necessity for determining the voluntary character of the statement does not depend upon whether or not it constitutes a confession of guilt . . . .’ And the burden then, as now, was upon the prosecution to establish such voluntariness. (People v. Dye (1931) 119 Cal.App. 262, 270, 6 P.2d 313; People v. Berve (1958) 51 Cal.2d 286, 291, 332 P.2d 97.)

It may fairly be said that conflict existed at the trial whether the subject statements were voluntary. But this conflict was resolved against Walker when the statements were admitted in evidence against him. That decision, supported by substantial evidence, was binding upon the habeas corpus court and it is now binding upon us (People v. Crooker, 47 Cal.2d 348, 352–354, 303 P.2d 753, aff'd. 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448); it was improperly relitigated in the proceedings below.

III. It was in reliance on In re Spencer, 63 Cal.2d 400, 46 Cal.Rptr. 753, 406 P.2d 33, that the habeas corpus court held—that since Walker did not waive his right to counsel when he was examined in 1947 by the court-appointed psychiatrists—their testimony concerning his statements to them was constitutionally objectionable. But the rule of In re Spencer, q. v., is based solely on People v. Dorado (1965), supra, Massiah v. United States (1964), supra, and Escobedo v. Illinois (1964), supra, which as we have pointed out ante, have no retroactive application.

IV. The procedure followed by the trial court in determining the degree of, and the penalty for, Walker's murder conviction was found to be proper by the Supreme Court in People v. Walker, supra, 33 Cal.2d at pp. 260–267, 201 P.2d 6. The habeas corpus court was, and this court is, bound by that determination; it also was improperly relitigated.

V. An additional contention of Walker was unresolved by the habeas corpus court. It was urged that he was incompetent during his trial.

Then, as now, Penal Code section 1368 provided: ‘If at any time during the pendency of an action and prior to judgment a doubt arises as to the sanity of the defendant, the court must order the question as to his sanity to be determined by a trial . . ..’

It has been held that a ‘strong showing is required before an abuse of discretion is deemed to result from the failure of the trial court . . ..’ to entertain and express the doubt contemplated by section 1368. (People v. Gomez, 41 Cal.2d 150, 158, 258 P.2d 825, 830.)

Three court-appointed psychiatrists examined Walker, reporting to the trial court that he was sane not only at the time of the charged offenses, but also at the time of their examinations. At the trial's conclusion the court, discussing Walker's mental condition, stated, “I am convinced affirmatively that the defendant was [sane] at the time of the commission of the acts charged in the indictment and is now legally sane . . ..' (33 Cal.2d, at p. 259, 201 P.2d at p. 11.) The sufficiency of the evidence to support this finding went unquestioned at the trial and on the appeal. And on the appeal the Supreme Court concluded that the ‘record affords abundant support for the conclusion that he was sane’ at the time of the charged offenses. (People v. Walker, supra, p. 257. 201 P.2d p. 10.) There was clearly no abuse of discretion in the trial court's nonexpression of a doubt as to Walker's sanity at the trial. Furthermore, as we have pointed out, habeas corpus may not now be used to review a point which could, and should, have been raised on the appeal.

The habeas corpus court properly declined to consider the issue of Walker's competence to stand trial.

VI. Although we have found the writ of habeas corpus to have been erroneously granted, the cause must nevertheless be remanded to the habeas corpus court for further proceedings.

We are required to ‘pass upon and determine all the questions of law involved in the case, presented upon such appeal, and necessary to the final determination of the case. . . .’ (Code Civ.Proc., § 43, prior to 1967, § 53; and see Yarrow v. State of California, 53 Cal.2d 427, 439–440, 2 Cal.Rptr. 137, 348 P.2d 687; Salsbery v. Ritter, 48 Cal.2d 1, 7, 306 P.2d 897; Chamberlain Co. v. Allis-Chalmers Mfg. Co., 74 Cal.App.2d 941, 942–943, 170 P.2d 85.)

As we have noted, in 1961 the Governor commuted the sentence of death previously imposed on Walker to life imprisonment without possibility of parole. This was purportedly done under the power granted by former article VII, section 1, of the state Constitution (transferred 1966 to art. V, § 8), authorizing ‘commutations of sentence.’ It resulted in a prison term not otherwise permitted by law since the statutory penalty for murder, alternative to that of death, was life imprisonment with possibility of parole. (See Pen.Code, §§ 190, 3040.)

‘Commutation’ in the instant context is variously defined as ‘a reduction or change of the penalty imposed by a judicial sentence, the change of punishment to a less severe one, or the substitution of a less for a greater penalty or punishment’ (15A C.J.S., p. 91, and see authority there cited); and as ‘The change of a penalty or punishment to a lesser one by the pardoning power’ (Webster's New Internat. Dict. (2d ed.).) Our Supreme Court has stated that commutation of sentence is an exercise of executive ‘clemency’ (Ex parte Kelly, 155 Cal. 39, 41, 99 P. 368); and that ‘A commutation is in the nature of a favor which may be withheld entirely or granted upon such reasonable conditions, restrictions and limitations as the governor may think proper. . . .’ (In re Collie, 38 Cal.2d 396, 398, 240 P.2d 275, 276.)

In February of this year, the California Supreme Court in People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, cert. den., 405 U.S. 983, 92 S.Ct. 1243, 31 L.Ed.2d 450, held Penal Code section 190, insofar as it purported to authorize the death penalty for murder, to be unconstitutional The holding was declared (p. 657, fn. 45, 100 Cal.Rptr. 152, 493 P.2d 880) to be ‘fully retroactive.’ (Emphasis added.) This broad language must reasonably be construed as applying to Walker's death sentence, for his life-prisoner without possibility of parole status could not now exist in the absence of that judgment. It follows that the only legally permissible sentence, even in 1947, on Walker's murder conviction was ‘confinement in the state prison for life.’ (See Pen.Code, § 190.) The severity of Walker's sentence was increased by the condition ‘without possibility of parole.’ Such an added burden of punishment may not reasonably be considered the ‘commutation,’ or the ‘reasonable condition,’ or the extension of ‘clemency’ or ‘favor’ to an imprisoned felon, permitted by the state's Constitution.

A wealth of authority is found to the effect that ‘a change or modification operating to increase the punishment imposed by a valid sentence is barred, . . .’ (24 C.J.S. Criminal Law § 1589, pp. 599–600; and see authority there cited.) And no public policy is served in holding one convicted murderer to the ‘life sentence without possibility of parole’ condition of his death sentence commutation, while others similarly situated, but with uncommuted sentences of death, are by virtue of People v. Anderson, supra, now serving life sentences with possibility of parole.

We recognize the holdings that a prisoner may ‘consent’ to an otherwise objectionable conditional pardon or sentence commutation. (See Green v. Gordon, 39 Cal.2d 230, 232, 246 P.2d 38; In re Peterson, 14 Cal.2d 82, 84, 92 P.2d 890.) But here the commutation records establish no more than Walker's request for executive clemency followed by the commutation of his sentence ‘without possibility of parole.’ His silence thereafter may not reasonably be deemed his consent. “Consent' differs very materially from ‘assent.’ The former implies some positive action and always involves submission. The latter means mere passivity or submission which does not include consent. . . .” (People v. Dong Pok Yip, 164 Cal. 143, 147, 127 P. 1031, 1032; People v. Conklin, 122 Cal.App. 83, 91, 10 P.2d 98; see also People v. Westek, 31 Cal.2d 469, 475, 190 P.2d 9; People v. Kanngiesser, 44 Cal.App. 345, 347, 186 P. 388.)

In these proceedings the habeas corpus court was required ‘to dispose of [Walker] as the justice of the case may require, . . . and to do and perform all other acts and things necessary to a full and fair hearing and determination of the case.’ (Italics added; Pen.Code, § 1484.) Where a prisoner has been denied a substantial right, courts on habeas corpus are empowered to fashion a remedy “to suit the needs of the case” (In re Pfeiffer, 264 Cal.App.2d 470, 477, 70 Cal.Rptr. 831, 836; LaFaver v. Turner, 10 Cir., 345 F.2d 519, 520), and to ‘dispose of the prisoner as will best serve the interests of justice. . . .’ (Aderhold v. O'Neill, 5 Cir., 66 F.2d 85; see also In re Bonner, 151 U.S. 242, 261, 14 S.Ct. 323, 38 L.Ed. 149; Powell v. Wiman, 5 Cir., 287 F.2d 275, 282; MacKenna v. Ellis, 5 Cir., 280 F.2d 592, 604.)

The ‘justice of the case’ requires that Walker be deemed to have been serving a life sentence with possibility of parole from the time he entered prison in 1947, and that his present or future eligibility for parole be determined without regard to the condition of his 1961 sentence commutation.

The ‘justice of the case’ presents yet a further consideration. Penal Code section 3046 permits parole of one sentenced to life imprisonment when ‘he has served at least seven calendar years.’ A recent publication of the Department of Corrections indicates the median prison term served by such paroled prisoners to be 12 1/2 years. Justice involves the perplexing task of reconstructing the probable past, had Walker throughout the years been deemed eligible for parole as provided by law. The present Adult Authority seems in no better position to determine what probable action its predecessor bodies would have taken than the superior court would be, after a hearing for that purpose.

The cause will accordingly be remanded to the superior court for its determination whether Walker probably would, or would not, have been previously paroled. If it be determined that Walker probably would not have been previously paroled he will be remanded to the Department of Corrections; if it be determined that he probably would have been previously paroled and would now be on parole, the superior court will direct the Adult Authority to order such parole forthwith.

Our resolution of this case, of course, does not purport to affect any right of the Legislature to fix the penalty for a criminal offense at life imprisonment without possibility of parole.

The order granting the writ of habeas corpus is reversed. The Superior Court of Solano County, after the designated hearing and determination, will enter judgment not inconsistent with the views we have expressed.

ELKINGTON, Associate Justice.

MOLINARI, P. J., and KONGSGAARD, J.*, concur.