PEOPLE v. MUNOZ (1983)

The ringing of three shots shattered the calm of Oceano on a Sunday night, May 11, 1980.   John Klima had been murdered.   The shots had come from the interior of a 1955 blue Victoria Ford driven by 18-year-old Edwardo Ramirez.   A jury determined that defendant Edward Munoz was a passenger in the rear of that vehicle and was the person responsible for Klima's tragic and senseless killing.   Munoz was convicted of first degree murder (Pen.Code, §§ 187/189) ¹ while personally using a firearm (§ 12022.5) and sentenced to prison for 27 years to life.

Munoz attacks the judgment entered on the jury verdict with a barrage of arguments.   Some of those arguments involve issues on the cutting edge of the criminal law which are awaiting resolution in cases pending before the California Supreme Court.   Specifically, he claims the felony-murder rule should be abolished (see People v. Dillon (Crim. 21964, hg. granted April 16, 1981)) and two surreptitious tape recordings of his conversations while he was a pretrial detainee should have been suppressed (see Robinson v. Superior Court (S.F. 24185, hg. granted June 25, 1980);  People v. Maxie (Crim. 21556, hg. granted July 16, 1980);  People v. Crowson (Crim. 22415, hg. granted Dec. 30, 1981).)   Inherent in Munoz' latter argument requesting suppression of the tapes is whether the California Supreme Court's decision in De Lancie v. Superior Court (1982) 31 Cal.3d 865, 183 Cal.Rptr. 866, 647 P.2d 142, established an exclusionary rule and, if so, whether that rule should be applied to cases tried but not yet final before De Lancie.   The issue of retroactivity is also before the California Supreme Court in Donaldson v. Superior Court (L.A. 31424, hg. granted May 29, 1981).   Recognizing that little, if any, practical benefit will be gained by adding our views to the issues before the Supreme Court, we reject Munoz' contention the felony-murder rule is invalid on the basis of established precedent (see People v. Ramos (1982) 30 Cal.3d 553, 590, 180 Cal.Rptr. 266, 639 P.2d 908, mod. 30 Cal.3d 879a) and limit our discussion on his suppression argument to the issue of retroactivity.   As we shall explain, we conclude any exclusionary rule emanating from De Lancie should not be applied to cases pending on appeal if tried before De Lancie was decided.   Although Munoz' claim of insufficiency of the evidence to support a verdict of premeditated first degree murder has merit, we decide the error is harmless in light of our conclusion the jury resolved his guilt on the basis of the felony-murder rule.   We also reject his claims of trial (People v. Cardenas (1982) 31 Cal.3d 897, 184 Cal.Rptr. 165, 647 P.2d 569, mod. 31 Cal.3d 941a) and instructional errors and therefore affirm the judgment.   We also deny his consolidated writ of habeas corpus.

FACTS

In reviewing a claim of insufficiency of the evidence to support a first degree murder conviction, we must examine the entire record in the light most favorable to the judgment in order to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.   In making this determination, we must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.   We may not, however, limit this review to the evidence favorable to the People for the issue must be resolved on the whole record in order to evaluate properly whether the evidence of each of the essential elements is substantial.   This evidence must be reasonable, credible and of solid value.  (People v. Johnson (1980) 26 Cal.3d 557, 575–578, 162 Cal.Rptr. 431, 606 P.2d 738.)   Because of this mandate, and Munoz' alibi theory of defense, the facts are stated in a detailed fashion to assure a careful analysis of his insufficiency argument.

Ramirez was a key witness for the prosecution;  he alone fingered Munoz as the killer.   Although Ramirez was biased because of his bargain with the district attorney,² the jury accepted his version of the following events.

Between 6:00 and 6:30 p.m. on May 11, 1980, Ramirez, Munoz and Galvan started to go “cruising.”   Ramirez was driving;  Munoz was alone in the back seat.   Between 7:00 and 7:30 p.m., Munoz and Galvan went into Ophelia Yracheta's house for about five minutes.   When they returned Peter Salinas was with them.   Salinas and Munoz had a short, whispered conversation in the back seat.   Salinas left and Munoz, Galvan and Ramirez drove off.

About 10:00 p.m., Ramirez saw a man crossing the street.   Munoz told Ramirez to drive up to the man and to stop the car.   Munoz asked for directions to Los Angeles and the man, Klima, responded.   Ramirez drove off but at Munoz' request backed the car to question the man again.   Klima said to keep going the same way.   Ramirez began to drive away when Munoz told Ramirez to stop.   Munoz again asked Klima for directions.   When Klima bent down to answer, Munoz demanded his wallet.   Klima took a step backwards;  Munoz shot him from a distance of four to five feet.   Ramirez heard three shots from the back of the car, saw Klima grab his chest and heard him yell for help.   Munoz told Ramirez to drive away, hitting him on the back of the head when he did not immediately do so.   Ramirez asked why Munoz shot the man.   Munoz said “For the hell of it.”   Ramirez testified there had been no discussion of a robbery and he did not know there was a gun in the car.

Several neighbors saw Ramirez' car drive past Klima and observed the conversation and gestures between Klima and the car's occupants.   The neighbors heard shots, Klima's shout for help and saw the car speed away.   Gaittan, a neighbor, rushed to help Klima and asked who had shot him.   Klima answered “Young kids.”   Klima died from a .22 caliber gunshot wound to the chest.   The 35 degree downward angle of the wound indicated that if Klima were four to five feet away from the weapon then he had been bending over or the assailant had fired from several feet above him.

After Munoz and Galvan jumped out of the car, Ramirez went home.   He looked for but was unable to find a gun in the car.   The next morning he found a .22 caliber pistol under a rug in the back seat and put it in the glove compartment.   That same morning Salinas telephoned and asked Ramirez to meet Munoz and Galvan at Jerry Rodriguez' house.   There Ramirez talked with Munoz but did not give him the gun.   Ramirez left with Larry Croy.   Croy saw the gun in Ramirez' glove compartment.   About 7:30 p.m., Ramirez returned to Rodriguez' house.   As he was giving the gun to Rodriguez, Salinas grabbed it and threw it under a bed.   Ramirez told Salinas to give the gun back to Munoz.

Ramirez was arrested for murder between 1:30 and 2:00 a.m. on May 13.   He first lied, telling the investigating officers he had been at his girlfriend's house on the night of the killing but later told them essentially the same facts to which he testified at trial.   He blamed the murder on Munoz.   He failed to mention Munoz' demand for Klima's wallet or his own possession of the gun the day after the shooting.   Only after the preliminary examination—two weeks before trial—did Ramirez add these elements to his story.   He explained he was afraid he could still be charged with murder and that this information might further implicate him.

Salinas relied on his privilege against self-incrimination when asked if he were with Munoz the day of the shooting, whether he possessed a .22 caliber weapon, or whether Ramirez had ever admitted shooting Klima.   District attorney investigator Ray Jauregue testified that in an interview on May 15, Salinas admitted he had put a .22 caliber revolver under the back seat of Ramirez' vehicle on May 11 before 8:30 p.m. when he was in the car with Munoz, Ramirez and Galvan.   Salinas said he had forgotten to take the gun when he left the vehicle.

On May 16, San Luis Obispo sheriff's detective Larry Hobson secretly recorded a conversation between Munoz, Ramirez and Galvan while the three were in custody in a sheriff's department transportation van outside the municipal court.   A portion of this tape was played to the jury and a partial transcript received in evidence.³

On May 31, personnel at the San Luis Obispo County Jail monitored and secretly recorded a conversation over the telephone in the county jail visiting center among Munoz, his mother and Aurora Galvan.   A portion of this tape was also played to the jury and a transcript of the portion played was entered into evidence.⁴  Of significance is Munoz' statement to Aurora that she should remember to say they had been together at Ophelia's house at the time of the crime.

Munoz was arrested two days after the killing.   He testified he was at Ophelia's house on the day of the killing from between 8:00 and 8:30 p.m. until the next morning.   He denied ever being in Ramirez' vehicle on May 11, 1980.   He also denied handling Salinas' .22 caliber pistol, he did see Ramirez hand Salinas a gun on May 12, 1980 at Rodriguez' house.   With respect to the recorded jailhouse conversation with Aurora Galvan, Munoz claimed he was just trying to get her to tell the truth.   He also denied he threatened Ramirez when they were together in the transportation van.   Munoz claimed his reference to “Bear is fucking up” meant only that he was just trying to protect Salinas' rights.   Munoz also said that on May 12, Ramirez admitted the killing in attempting to rob an old man.   The reason Ramirez blamed Munoz was that both had dated Aurora Galvan.

Irma Rangel testified that on May 11, Munoz remained at Ophelia's house from about 7:45 p.m. until after 6:00 a.m. the next morning.

Croy testified that while intoxicated on May 12, 1980, he overheard Ramirez who was also drunk tell Munoz he had a gun and along with a couple of other people had tried to rob a man the night before.   Rodriguez corroborated that on May 12, he also heard Ramirez say he had killed a man the night before.   Samuel Salas, who had previously been convicted of forgery, claimed that while he and Ramirez were both in jail, Ramirez told him he had shot a man while loaded and that Munoz need not worry because Ramirez was going to “cop to it.”   Joe Ramirez, no relation to Edwardo Ramirez, testified that on May 12, he refused Edwardo's request for some .22 caliber bullets.

APPEAL

I

The jury was instructed on two alternative theories on the first degree murder charge:  premeditated first degree murder and first degree felony-murder.   Munoz contends the trial court erred in instructing on premeditated first degree murder since the evidence before the jury was legally insufficient to sustain a conviction on that theory.   He insists where a jury is instructed on two legal theories, one of which is not supported by the evidence, and the reviewing court cannot tell which theory the jury utilized, the conviction must be reversed.  (People v. Green (1980) 27 Cal.3d 1, 70–71, 164 Cal.Rptr. 1, 609 P.2d 468.)

 The issue of premeditation and deliberation in the case before us is a close one.

“Numerous decisions have discussed and defined the concept of premeditation as it serves to distinguish first and second degree murder.   A killing is deliberate, they explain, if the killer acted ‘ “as a result of careful thought and weighing of considerations;  as a deliberate judgment or plan;  carried on cooly and steadily, [especially] according to a preconceived design.” ’   [Citations];  (People v. Anderson (1968) 70 Cal.2d 15, 26 [447 P.2d 942].)   ‘The true test is not the duration of time as much as it is the extent of the reflection.   Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly, but the express requirement for a concurrence of deliberation and premeditation excludes ․ those homicides ․ which are the result of mere unconsidered or rash impulse hastily executed.’  [Citations.]”  (People v. Velasquez (1980) 26 Cal.3d 425, 435 [162 Cal.Rptr. 306, 606 P.2d 341], judgment vacated and cause remanded (1980) 448 U.S. 903 [100 S.Ct. 3042, 65 L.Ed.2d 1132], reiterated (1980) 28 Cal.3d 461 [171 Cal.Rptr. 507, 622 P.2d 952].)

In People v. Anderson (1968) 70 Cal.2d 15, 447 P.2d 942, our Supreme Court explained:

“The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories:  (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as ‘planning’ activity;  (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations' rather than ‘mere unconsidered or rash impulse hastily executed’ (People v. Thomas, supra, 25 Cal.2d 880, at pp. 898, 900, 901 [156 P.2d 7] );  (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim's life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2).

“Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).”  (Id., at pp. 26–27, 447 P.2d 942, italics in original.)

Although the evidence must be considered in the light most favorable to the judgment, we believe the requisite solid evidence of premeditated first degree murder is lacking.

At trial, the district attorney argued the only evidence to support the premeditated killing occurred between Munoz' first contact with Klima and the shooting.⁵  On appeal, the Attorney General points out the jury could have drawn reasonable inferences of premeditation and deliberation from Munoz' possession of the weapon after it was given to him by Salinas and in the planning activity during his several confrontations with the victim.   On the basis of these facts, combined with Munoz' senseless desire to shoot someone that night, the Attorney General asserts the jury had adequate facts to find Munoz guilty of premeditated first degree murder.

Admittedly, this is a difficult case.   In our judgment, however, the events surrounding the killing do not contain sufficient solid planning or motive facts of credible value to support a murder conviction on that theory.   Under the circumstances of this case the brief time, seconds, from Munoz' first confrontation with Klima until the shooting do not establish the killing was the result of preexisting reflection, careful thought and weighing of considerations.

 The Green rule upon which Munoz relies is limited, however, to situations in which the reviewing court cannot discern upon which theory the jury relied.  (See People v. Green, supra, 27 Cal.3d at p. 71, 164 Cal.Rptr. 1, 609 P.2d 468.)   Here, we have no doubt the jurors reached their verdict by way of the felony-murder rule's imputation of malice.   To require reversal under these circumstances necessitates an assumption the jury premised its verdict on a legal theory on which there was minimal evidentiary support with only token argument while ignoring the uncontradicted evidence of felony-murder.   Under these circumstances, the error which Munoz complains has not resulted in a miscarriage of justice.  (Cal. Const., art. VI, § 13;  People v. Green, supra, 27 Cal.3d at p. 74, 164 Cal.Rptr. 1, 609 P.2d 468.) ⁶

II

Munoz' next contention is the trial court prejudicially erred by allowing the prosecutor to question Munoz and his witnesses regarding Mexican youth gang membership.

In his cross-examination of defense witness Rodriguez, the prosecutor inquired whether Rodriguez and Munoz were in any clubs together.   After colloquy on this issue, in the absence of the jury, the court permitted the deputy district attorney “to do some probing and some fishing to see what answers you get” but ordered the People not to use the word “gang” in any of his questions.⁷  Munoz challenges the court's semantic solution because it permitted “equally devastating transparent synonyms, ‘association,’ ‘group,’ ‘club,’ and ‘brothers.’ ” ⁸

In People v. Cardenas, supra, 31 Cal.3d 897, 184 Cal.Rptr. 165, 647 P.2d 569, the California Supreme Court recently addressed the prejudicial effect of questions eliciting gang membership.   The concern expressed in the lead opinion was that reference to “common gang membership” creates “a substantial danger of undue prejudice” because a jury could improperly infer the defendant has a criminal disposition from membership in a youth gang which commits criminal acts and thus, from that predisposition, infer guilt in a particular case.  (Id., at pp. 904–905, 184 Cal.Rptr. 165, 647 P.2d 569.)   The plurality opinion states:

“In Southern California, Chicano youth gangs have received widespread media publicity for their purported criminal activities.   In this case, the prosecutor did not specifically refer to the El Monte Flores as a youth gang.   However, the jury undoubtedly identified the group as such, either from their personal knowledge or from their in-court observations of the witnesses' age, ethnicity, and tattoos.”  (Id., at p. 905, 184 Cal.Rptr. 164, 647 P.2d 569.)

Consequently, at first blush it appears Cardenas stands for the proposition that reference to “gang” membership or words having a comparable connotation is prejudicial.   On closer analysis, however, we conclude Cardenas is distinguishable from the present case and the questions asked, even if improper, do not require reversal.

 As a general proposition, “․ a witness may, on cross-examination, be asked about group membership he shares with a party to the action, on the theory that such common membership is a factor that tends to impeach a witness' testimony by establishing bias․  Thus, the prosecution in the instant case properly could inquire of [defense] witnesses ․ regarding their friendship with Wing, including their common group membership, as a means of attacking their credibility as witnesses, by establishing a bias in favor of the minor.”  (In re Wing Y. (1977) 67 Cal.App.3d 69, 76–77, 136 Cal.Rptr. 390;  see also cases cited in People v. Cardenas, supra, 31 Cal.3d at p. 916, 184 Cal.Rptr. 165, 647 P.2d 569, dis. opn. of Richardson, J.)   Here, the excerpted portions of the testimony (see fns. 7 and 8, ante ) indicate that with defense counsel's acquiescence and consistent with the court's direction that is all the prosecutor did.   Counsel for the People limited his inquiry to possible bias or prejudice flowing from a common club or association relationship.   Unlike Cardenas he did not add any fillips relating to violence or hostilities between competing groups.

 Arguably, once Ramirez testified to being Munoz' friend, any evidence of mutual “club” or “gang” affiliation became cumulative.   And unquestionably “ ‘[t]he prosecution has no right to present cumulative evidence which creates a substantial danger of undue prejudice to the defendant.’ ”  (People v. Cardenas, supra, 31 Cal.3d at p. 905, 184 Cal.Rptr. 165, 647 P.2d 569, quoting from People v. De La Plane (1979) 88 Cal.App.3d 223, 242, 151 Cal.Rptr. 843.)   Even assuming error, however, the issue remains whether the error here was prejudicial.

The determination of prejudice in Cardenas followed from the court's threshold question whether there was “cumulative prejudice” resulting from the trial court's “several evidentiary errors.”  (31 Cal.3d at p. 907, 184 Cal.Rptr. 165, 647 P.2d 569, italics supplied.)   The several evidentiary errors included not only the cumulative evidence of gang membership, but “[o]n at least two occasions, the prosecutor posed questions ․” (id., at p. 905, 184 Cal.Rptr. 165, 647 P.2d 569) unrelated to whether the witnesses and defendant were close associates but “․ suggested to the jury that hostilities existed between the two youth gangs.   Given the widespread publicity concerning violence between rival youth gangs, the jury may well have assumed that members of the Flores gang were accustomed to using violence to further their interests.”  (Id., at p. 905, 184 Cal.Rptr. 165, 647 P.2d 569.)   In addition, and “even more serious,” was the error relating to the prosecutor's line of questioning which left the impression that the attempted robbery was a gang operation.  (Ibid.)  “Thus, the trial court's error in admitting the evidence of common membership in the Flores gang was compounded by the prosecutor's broad inquiries suggesting that the gang was involved in criminal activities.   These questions made it a near certainty that the jury viewed [defendant] as more likely to have committed the violent offenses charged against him because of his membership in the Flores gang.”  (Id., at p. 906, 184 Cal.Rptr. 165, 647 P.2d 569.)   Unlike Cardenas none of those references or inferences occurred in the questioning by the district attorney in the case before us.  Cardenas also held evidence of the defendant's narcotics addiction was improperly introduced to establish a financial motive for the attempted robbery.   There, witnesses testified “․ at great length about [defendant's] physical condition at the time of his arrest, the length of time [defendant] had been using narcotics, and the alleged size and value of [defendant's] heroin habit.”  (Id., at p. 907, 184 Cal.Rptr. 165, 647 P.2d 569.)   Again, the record before us is devoid of any such irrelevant evidence similar to that presented in Cardenas.

 We have previously described the question of the sufficiency of the evidence as being “a close one.”   Obviously, whether an evidentiary ruling results in prejudice turns on how strong the prosecution case is evaluated by the jurors called upon to render judgment.   Here, the jury, like Cardenas, deliberated for about 12 hours, indicating the issue of guilt was not “open and shut.”  (People v. Cardenas, supra, 31 Cal.3d at p. 907, 184 Cal.Rptr. 165, 647 P.2d 569.)   Nonetheless, in the context of the limited questions asked and the responses given, we do not believe it is reasonably probable that a result more favorable to Munoz would have been reached if evidence pertaining to club membership had not been admitted.   We therefore hold no miscarriage of justice occurred under article VI, section 13 of the California Constitution.  (See People v. Watson (1956) 46 Cal.2d 818, 834, 836, 299 P.2d 243.)

III

By necessity we repeat our recent discussion in People v. Stiles (1983) 189 Cal.Rptr. 260, on the following issues.

In De Lancie, the California Supreme Court probed the very narrow question of whether county jail officials can monitor ostensibly private conversations between pretrial detainees and their visitors for purposes other than institutional security or public protection.  (Id., at pp. 867–868, 183 Cal.Rptr. 866, 647 P.2d 142.)   That careful dissection resulted in a reversal of the judgment of dismissal after the trial court sustained the defendants' demurrer without leave to amend in a civil suit brought by plaintiffs seeking injunctive and declaratory relief.   The court held plaintiffs could state a cause of action under sections 2600 and 2601, but refrained from ruling on whether plaintiffs could state a cause of action on either state or federal constitutional grounds.  (Id., at p. 877, 183 Cal.Rptr. 866, 647 P.2d 142.)

Whether De Lancie requires an exclusionary rule grounded on the constitution is an issue which we believe is best left to the California Supreme Court for resolution in one of the cases pending before it.  (See Robinson v. Superior Court (S.F. 24185, hg. granted June 25, 1980);  People v. Maxie (Crim. 21556, hg. granted July 16, 1980);  People v. Crowson (Crim. 22415, hg. granted Dec. 30, 1981).)   In deference, and for the sake of brevity, we address Munoz' argument on this issue by assuming arguendo that De Lancie established an exclusionary rule and restrict our analysis to whether such a rule, emanating from sections 2600 and 2601 only, should have pipeline retroactivity.  (This issue is also before the Supreme Court in Donaldson v. Superior Court (L.A. 31424, hg. granted May 29, 1981).)   In other words, should De Lancie be applied to those cases whose appeals had not yet become final when De Lancie was filed (July 8, 1982)?   We stress that culling the retroactivity issue from the other questions involving admissibility of the tape recordings is not tied to our belief retroactivity is an easy issue (see Westbrook v. Mihaly (1970) 2 Cal.3d 765, 802, 471 P.2d 487, conc. opn., Mosk, J.) or that somehow we have prescience, judicial or otherwise, on how this question will ultimately be decided.⁹

In Johnson v. United States (1982) 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202, the United States Supreme Court acknowledged the doctrinal morass resulting from conflicting and inconsistent precedent on retroactivity and concluded “retroactivity must be rethought.”  (Id., at p. 2586.)   Deciding the rule announced in Payton v. New York (1980) 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (Fourth Amendment proscribes a warrantless and nonconsensual entry into an individual's home to make a routine felony arrest) should apply to all convictions not yet final when it decided Payton, the court rejected an earlier test focusing on three factors (see, e.g., Desist v. United States (1969) 394 U.S. 244, 245, 89 S.Ct. 1030, 1031, 22 L.Ed.2d 248;  Stovall v. Denno (1967) 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199) ¹⁰ and announced a new rule for determining whether a standard created by a decision interpreting the Fourth Amendment should be applied retroactively.¹¹  Johnson focused on whether a new decision clearly broke new legal ground.   Decisions applying settled precedents to new and different factual situations should be applied to all cases whose appeals are not final because the new decision has not materially altered the law.   (102 S.Ct. at p. 2587.)   On the other hand, decisions imposing rules which clearly break with previous cases are generally applied only prospectively because law enforcement authorities have usually relied on the old legal standards and retroactive application would adversely affect the administration of justice.  (Ibid.)  Johnson also noted that a decision expressly or impliedly ruling the trial court lacked the authority to convict or to punish the defendant accords full retroactivity to earlier decisions, including collateral relief to defendants whose appeals have been exhausted.  (See id., at pp. 2587–2588.)

 Most decisions do not clearly break new ground.   Thus, pipeline retroactivity is the norm.  (See United States v. Johnson, supra, 102 S.Ct. at pp. 2589–2590.)   The De Lancie rule, however, fits within the second Johnson category.   As Johnson recognized, a decision which “․ overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.  [Citations.]”  (id., at p. 2588) indicates that the new rule constitutes a “ ‘sharp break in the web of the law.’ ”  (Id., at p. 2588, quoting Milton v. Wainwright (1972) 407 U.S. 371, 381, n. 2, 92 S.Ct. 2174, 2180, n. 2, 33 L.Ed.2d 1, dis. opn., Stewart, J.) ¹²  With the exception of North v. Superior Court (1972) 8 Cal.3d 301, 502 P.2d 1305,¹³ California courts have uniformly held incarcerated individuals enjoy no right of privacy.  (See cases in attached appendix, post.) ¹⁴  Thus, our presumed De Lancie rule constitutes a clear break with precedent.  (See People v. Mojica (1982) 138 Cal.App.3d 48, 187 Cal.Rptr. 634.)   Although we do not know the extent of official reliance on the old standard, clearly the number of reported decisions on this issue reveals official reliance is more than trivial.  (See cases cited in appendix, post.)   Moreover, even pipeline retroactivity with retrials in all nonfinal cases where the officials have monitored inmates would adversely affect the administration of justice.   Therefore, under Johnson, we hold De Lancie should not apply to those trials which concluded before July 8, 1982.

 We recognize California courts may impose stricter standards of retroactivity than those adopted by the United States Supreme Court.   (Johnson v. New Jersey (1966) 384 U.S. 719, 733, 86 S.Ct. 1772, 1781, 16 L.Ed.2d 882;  People v. Rollins (1967) 65 Cal.2d 681, 683, 423 P.2d 221.)   Even under California law we reach the same result.

 Absent a contrary indication from our Supreme Court, we will assume California courts will continue to adhere to its previous pronouncements on this issue.   Where a judicial decision results in an exclusionary rule which furthers the integrity of the factfinding process that rule will be applied retroactively.  (See, e.g., People v. Gainer, supra, 19 Cal.3d at p. 853, 139 Cal.Rptr. 861, 566 P.2d 997;  People v. Hitch (1974) 12 Cal.3d 641, 654, 117 Cal.Rptr. 9, 527 P.2d 361;  In re Johnson (1970) 3 Cal.3d 404, 410–413, 475 P.2d 841;  see also fn. 10, ante.)   A judicial decision will be applied prospectively, however, where the new rule's primary purpose is to deter unlawful police conduct.  (See, e.g., People v. Barraza (1979) 23 Cal.3d 675, 691, fn. 5, 153 Cal.Rptr. 459, 591 P.2d 947 [entrapment];  People v. Hitch, supra, 12 Cal.3d at pp. 654–655, 117 Cal.Rptr. 9, 527 P.2d 361 [nonmalicious destruction of evidence];  People v. Rollins, supra, 65 Cal.2d at p. 683, 423 P.2d 221 [Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694].)   The De Lancie rule, designed to deter unlawful surreptitious monitoring, is not directed at purifying the factfinding process at trial.   If anything, the surreptitious tape recording of conversations of persons in custody with visitors to whom they may be talking will generally result in acquiring information which will be beneficial by permitting a more thorough law enforcement investigation and assist the courts in reaching the truth at trial.   In addition, prospective application of a rule designed to deter unlawful official conduct does not preclude collateral relief when other constitutional violations are revealed.  (See, e.g., In re Lopez (1965) 62 Cal.2d 368, 376–377, 42 Cal.Rptr. 188, 398 P.2d 380, cert. den., 384 U.S. 1016, 86 S.Ct. 1929, 16 L.Ed.2d 1038 [involuntary confession];  see generally In re Johnson, supra, 3 Cal.3d at pp. 412–413, 475 P.2d 841.)   Accordingly, Munoz is still able to attack his conviction on the ground the authorities created the appearance of privacy with respect to either conversation.  (See North v. Superior Court, supra, 8 Cal.3d 301, 502 P.2d 1305;  see fn. 13, ante.)   Therefore, guided by both federal and state precedent, we conclude a De Lancie exclusionary rule does not apply to cases tried before that decision became final and accordingly reject Munoz' arguments that his tape-recorded conversations were inadmissible.

IV

 We also reject Munoz' contention that it was prejudicial error for the trial court to instruct on consciousness of guilt without including a limiting instruction that such evidence could not be considered on the question of his state of mind before committing the crime.  (See People v. Anderson, supra, 70 Cal.2d at p. 32, 447 P.2d 942.)   Munoz' failure at trial to request a qualification of this ruling precludes our consideration of this argument in his appeal.   Moreover, his assertion of error on this ground was properly rejected.  (People v. Mathews (1979) 91 Cal.App.3d 1018, 1027, 154 Cal.Rptr. 628.)

 Munoz further urges trial court error in allowing references to a polygraph test (see fn. 3, ante ).   Again, no objection to the tape recording and/or transcript on this ground was made at trial.   In addition, this is not a case where the prosecutor commented on defendant's rejection of an offer to take a lie detector test.   The trial court properly ruled on Munoz' Evid.Code section 352 objection.

WRIT OF HABEAS CORPUS

Munoz petitions for habeas corpus alleging he was denied the effective assistance of counsel.  (See People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859.)   He claims his lawyer (1) should have objected to the tape-recorded conversation in the van because it contained improper references to polygraph testing, (2) should have established a better record to show Munoz' statements were caused by a delayed arraignment and an agency relationship between the police and Ramirez, and (3) should have had Munoz take a polygraph test before trial.

 Appellate counsel has asked us to ponder why Munoz' trial counsel failed to ask certain questions at trial.   Why was Munoz' arraignment delayed nine days?   What was the relationship between Ramirez and the police at the time the police surreptitiously taped their conversation in the police van?   Counsel legitimately asserts that had these questions been asked they would have led to further inquiry and valid objections on constitutional grounds.   (See Rhode Island v. Innis (1980) 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297;  United States v. Henry (1980) 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115;  Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.)   Although these arguments appear to have merit, we decline to issue an order to show cause or to find lawyer incompetence on this record alone.   We adhere to the philosophy expressed in In re Lower (1979) 100 Cal.App.3d 144, 152–153, 161 Cal.Rptr. 24, that except in unusual cases the writ should be filed in the superior court for a factual determination on the issues presented.   The record before us is devoid of any statement from Munoz' trial counsel and we will not foreclose his opportunity to respond.   Accordingly, for procedural reasons only we deny Munoz' petition for writ of habeas corpus.  (See also People v. Perry (1979) 100 Cal.App.3d 251, 265, 161 Cal.Rptr. 108;  People v. Adams (1980) 101 Cal.App.3d 791, 802, 162 Cal.Rptr. 72;  People v. Hall (1980) 28 Cal.3d 143, 158, 167 Cal.Rptr. 844, 616 P.2d 826.)   We stress, however, the denial of the writ is grounded solely on procedural considerations and should not be construed as a holding on any of the issues presented.

DISPOSITION

Judgment affirmed.   Writ denied.

APPENDIX

The California Supreme Court has twice directly addressed the admissibility of an inmate's or a detainee's statements obtained surreptitiously.  North v. Superior Court (1972) 8 Cal.3d 301, 502 P.2d 1305 held the People may not introduce statements the defendant made to his wife after the police led them to believe they could converse in private.  People v. Hill (1974) 12 Cal.3d 731, 764–765, 528 P.2d 1 (overruled on another ground in People v. De Vaughn (1977) 18 Cal.3d 889, 896, 135 Cal.Rptr. 786, 558 P.2d 872) held absent evidence the police created an expectation or belief a defendant and his wife could converse in private, the statement obtained was admissible.   In addition, Halpin v. Superior Court (1972) 6 Cal.3d 885, 900, 101 Cal.Rptr. 375, 495 P.2d 1295, footnote 21 noted in passing California courts uniformly held an inmate had no right of privacy.

Appellate cases after North and Hill holding a prisoner has no reasonable expectation of privacy include:  People v. Williams (1982) 128 Cal.App.3d 981, 985–988, 180 Cal.Rptr. 734 (taping of a co-defendant's conversation in back of a police car—no right to privacy under the California Constitution);  People v. Dominguez (1981) 121 Cal.App.3d 481, 504–507, 175 Cal.Rptr. 445 (taping of codefendant's conversation with his mother—no standing;  no reasonable expectation of privacy subject to North exception);  People v. Jardine (1981) 116 Cal.App.3d 907, 914–915, 172 Cal.Rptr. 408 (taping of defendants' conversation in the back of a police car—defendants were not in a private place and had no reasonable expectation of privacy);  People v. Owens (1980) 112 Cal.App.3d 441, 447–449, 169 Cal.Rptr. 359 (taping a defendant in an interview room—no reasonable expectation of privacy);  People v. Estrada (1979) 93 Cal.App.3d 76, 98–100, 155 Cal.Rptr. 731 (taping of defendant's conversation with sister and brother-in-law—no reasonable expectation of privacy subject to North exception;  all monitoring is justified as having a legitimate penological objective);  People v. Suttle (1979) 90 Cal.App.3d 572, 577–580, 153 Cal.Rptr. 409 (taping of defendants in adjoining cells—no reasonable expectation of privacy subject to North exception);  People v. Martinez (1978) 82 Cal.App.3d 1, 15–16, 147 Cal.Rptr. 208 (taping of defendant's conversation with brother and sister-in-law—no reasonable expectation of privacy subject to North exception);  People v. Newton (1974) 42 Cal.App.3d 292, 296, 116 Cal.Rptr. 690 (taping of defendants' conversation in back of police car—no reasonable expectation of privacy);  People v. Fonville (1973) 35 Cal.App.3d 693, 706–709, 111 Cal.Rptr. 53 (taping of defendant's conversation with his uncle—no objection at trial;  no reasonable expectation of privacy);  People v. Finchum (1973) 33 Cal.App.3d 787, 789–791, 109 Cal.Rptr. 319 (taping of defendants' conversation in an interview room after sheriff told them he had heard two different stories from them and asked them if they could get their story straight—no reasonable expectation of privacy, distinguishing North on ground no privilege implicated here);  In re Joseph A. (1973) 30 Cal.App.3d 880, 882–886, 106 Cal.Rptr. 729 (conversation between defendant and his uncle after uncle asked police if he could speak to defendant alone—no reasonable expectation of privacy, distinguishing North on ground police did not represent the conversation would be in private—“by himself” could be construed to mean “away from other persons in custody” which does not mean “in private”).

Even before North, the Courts of Appeal consistently upheld convictions in which surreptitiously recorded conversations of inmates were used.  People v. Santos (1972) 26 Cal.App.3d 397, 400–403, 102 Cal.Rptr. 678 (taping of defendant's conversation with his wife over visitor telephone—because defendant believed police were listening and so told his wife, he had no subjective expectation of privacy);  People v. Todd (1972) 26 Cal.App.3d 15, 17, 102 Cal.Rptr. 539 (taping of defendants' conversation in back of police car—no reasonable expectation of privacy);  People v. Califano (1970) 5 Cal.App.3d 476, 480–483, 85 Cal.Rptr. 292 (taping of defendants' conversation in interview room—no subjective expectation of privacy because defendant believed police were listening);  People v. Blair (1969) 2 Cal.App.3d 249, 256, 82 Cal.Rptr. 673 (taping of defendants'—who were brothers—conversation at police station—defendant was told by police they would be listening to his conversation, so no expectation of privacy);  People v. Hiser (1968) 267 Cal.App.2d 47, 59–61, 72 Cal.Rptr. 906 (taping of defendant's conversation with his inamorata—no right to privacy in a jail).

 I concur in the majority opinion in its entirety except I believe there is sufficient evidence to support the conviction of murder first on the theory of premeditated acts.

After the initial contact with Klima intended to hassle the victim, the party then drove away.   Sometime after this, admittedly a short time later, Munoz told Ramirez to stop and back up.   About this time, he obtained the gun from Salinas and, without provocation, shot his victim “for the hell of it.”   He had some time in which to develop his thoughts about a killing when he told the driver to stop and back up.   I believe that period of the thought process is enough to support a jury's finding premeditated and a first degree murder conviction.

It is only necessary that the act of killing be preceded by a concurrence of will, deliberation and premeditation on the part of the slayer, and if such be the case, the killing is murder of the first degree no matter how rapidly these acts of mind may succeed each other, or how quickly they may be followed by the act of killing (People v. Wells, 10 Cal.2d 610, 625–626, 76 P.2d 493;  People v. Hashaway, 67 Cal.App.2d 554, 573, 155 P.2d 101;  Witkin, Cal.Crimes, § 298, p. 273).   It is a question of fact for the jury as to whether there was premeditation (People v. Hashaway, supra, at p. 573, 155 P.2d 101).   The fact that the prosecutor did not place special emphasis on this issue in his summation should not bar the jury from considering that basis for its conviction.

 I concur with Justice Wiener's conclusion no substantial evidence supports Munoz' first degree—premeditated—murder conviction.   The majority opinion, however, seeks to cover that glaring void—lack of substantial evidence to support even the “felony murder” conviction—with the unanalyzed conclusion that there was “uncontradicted evidence of felony-murder.”  (P. 410.)   Let us search the record for any substantial evidence sufficient in law to convict Munoz of that crime.

I

Eduardo Ramirez was the sole witness connecting Munoz to the crime;  he is the lone person who testified to implicate Munoz as to “some act or fact which was an element of the crime” which implicated Munoz.   He is the self-confessed accessory to the killing of John Klima.   Ramirez was not charged with murder.   He was arrested (May 13, 1980) for the Klima murder.   His car had been identified as the murder vehicle;  he was observed in possession of the gun immediately after the killing.   He admitted the killing to several witnesses.   In this web of evidence pointing to his guilt, Ramirez told police Munoz was the killer and agreed to testify against Munoz.   In return he was allowed to plead to a lesser offense—accessory after the fact—with CYA recommendation if he testified in conformity with his statement to police.   At the time of trial, Ramirez had entered his plea and was awaiting sentencing.

This witness was contradicted by Munoz and at least five independent unimpeached witnesses.   Not only was Ramirez contradicted by a multitude of independent witnesses but his own stories were admittedly a mendacious, vacillating account more self-serving with each retelling.¹

Whether Ramirez was an “accomplice” or a principal, as much testimony would indicate, or only an “accessory” after the fact as he pleaded in the bargain for his testimony, his statements cry out for corroboration before any credence can be given his evidence.

The rules are clear as to accomplices:

“To corroborate the testimony of an accomplice, the prosecution must present independent evidence which, without aid or direction from the testimony of the accomplice, tends reasonably to connect the defendant with the commission of the crime charged.  [Citation.]  Corroborating evidence is insufficient if it does no more than cast a ‘grave suspicion’ upon the accused, or merely connects him with the crime's perpetrators.  [Citation.]  While the corroborating evidence need not support every fact to which the accomplice has testified, it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime.  [Citations.]”  (People v. Mardian, 47 Cal.App.3d 16, 42, 121 Cal.Rptr. 269;  italics added.)

The reasons for the rule are equally clear.   An accomplice requires corroboration because of a most rational inherent distrust of a witness who bargains for his own freedom in exchange for the conviction of another.  (In re Miguel L., 32 Cal.3d 100, 108, 185 Cal.Rptr. 120, 649 P.2d 703.)   Whether accessory Ramirez is technically an accomplice is of no moment.   He is immersed in, endowed with all the attributes of untrustworthiness that surround an accomplice.

The accomplice issue was submitted to the jury as a question of fact.   The instructions include the requisite cautionary instructions as well as the corroboration requirements if Ramirez was found to be an accomplice of Munoz.   Appellate review rules require the jury's implied finding that Ramirez was not an accomplice or if an accomplice, his testimony was corroborated be respected.   Such concession does however not end the substantial evidence issue.

In In re Miguel L., supra, 32 Cal.3d 100, 185 Cal.Rptr. 120, 649 P.2d 703, the Supreme Court confronted the no-requirement-of-corroboration-of-accomplice rule found in juvenile proceedings and reversed a true finding of burglary (wardship) in face of the direct testimony of an admitted accomplice.   The Supreme Court could well have been speaking of 18-year-old Ramirez when it said:

“Evidence from an accomplice is regarded as untrustworthy because it is likely to have been influenced by the self-serving motives of the witness.   [Citation.]  Accomplice testimony is ‘often given in the hope, or expectation of leniency or immunity.’  [Citations.]  As a result, an accomplice has a strong motive to fabricate testimony which incriminates innocent persons or minimizes his participation in the offense and transfers responsibility for the crime to others.  [Citation.]

“It is not unusual for an accomplice to falsely incriminate innocent persons to seek revenge or to protect friends who actually committed the crime with him.  [Citation.]  Further, an accomplice, especially one who is a minor, ‘may be under great parental or social pressure to testify and to lay the blame for certain conduct or a certain condition on the accused.’  [Citation.]”  (Id., at pp. 108–109, 185 Cal.Rptr. 120, 649 P.2d 703;  italics added;  fn. omitted.)

The court said:

“The Fourteenth Amendment of the United States Constitution guarantees due process of law and mandates that ‘no person shall ․ suffer the onus of a criminal conviction except upon sufficient proof ․ to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.’  [Citation.]”  (Id., at p. 105, 185 Cal.Rptr. 120, 649 P.2d 703.)

and on this constitutional premise concluded:

“To affirm appellant's wardship adjudication would require this court to hold that a finding of criminal conduct may be based solely on an accusation which not only lacks the traditional indicia of trustworthiness, but also comes from an unreliable source.   Constitutional requirements of due process preclude this court from reaching such a holding.  [Citation.].

“As a matter of law, there was insufficient evidence ․”  (Id., at p. 111, 185 Cal.Rptr. 120, 649 P.2d 703, italics added.)

Ramirez, although impliedly found not to be an accomplice, suffers from all the traditional indicia of untrustworthiness.   Our duty under the due process clause of the federal Constitution precludes a finding of substantial evidence to support the felony murder verdict.   To do otherwise is to accept an appellate role of a mechanistic, pre-set robot, where no evaluative process is authorized once a fact finding is made by the lower court.   Ours is a humane, justice-oriented process which, 14th Amendment or no, demands the evidence from a suspect source be analyzed, weighed for substance.   This duty is especially heavy here in the light of no corroborating evidence plus multiple independent unchallenged contradictions of Ramirez' testimony.   Corroboration requirements have great significance in this mandated due process analysis.   This gross weakness, deficiency in the evidence must now be viewed in the context of multiple trial court errors.

II

On the issue of gang membership, the majority seeks to distinguish People v. Cardenas, 31 Cal.3d 897, 184 Cal.Rptr. 165, 647 P.2d 569, but holds the questions asked—if improper—do not require reversal.  (p. 412).   Several errors were committed by the trial court with which the majority opinion does not grapple.   Outside the presence of the jury, the prosecutor had requested and received the court's permission to cross-examine defense witness concerning membership in Mexican youth gangs, even though he admitted he could not produce direct evidence proving gang membership.²  In face of this concession the court overruled objections based on Evidence Code section 352, hearsay and lack of relevance or good faith in asking such questions but restricted the prosecutor's vocabulary, ruling he could not use the word “gang” but the term “club” instead.   The prosecutor then proceeded to ask Rodriguez, Munoz and Salas whether they were members of the “club” or “association” named the “Pee Wee Locos” or the “Oceano Trece.”

Error No. 1

The three witnesses consistently denied belonging to or knowing of Munoz' association with these groups.   Rodriguez denied he was sworn to secrecy but admitted he had a tattoo saying “Ocean 13” on his hand.   The prosecutor had this exchange with Munoz on cross-examination:

“[Prosecutor]:  Did you hear Mr. Rodriguez talk about the existence of an association among a group of people from Oceano?

“[Munoz]:  Yes, I did.

“[Prosecutor]:  Are you in that association?

“[Munoz]:  No, I'm not.

“[Prosecutor]:  Did you hear him testify that you were?

“[Munoz]:  No.”

As a general proposition of law, a witness may be impeached by a showing of relationship to a party that reflects the witness' bias or prejudice.   (Jefferson, Calif.Evidence Handbook, 28.8, p. 458;  2 Wharton's Criminal Evidence, § 464, p. 405;  Evid.Code, § 780, subd. (f);  People v. James, 56 Cal.App.3d 876, 886, 128 Cal.Rptr. 733.)   And it has been held it is permissible to show a relationship, fraternal or otherwise exists between the witness and the party in whose behalf he is called as tending to effect his credibility.  (People v. Pickens, 61 Cal.App. 405, 408, 214 P. 405.)   However, there are foundational requirements to be met before such evidence becomes relevant and admissible.

As was said in Pickens, supra:

“[T]he fact of Stone's membership in the Ku Klux Klan without any proof that the witnesses whom it was sought to show were biased thereby had any knowledge of his being a member was clearly irrelevant to the issue․  The range of external circumstances from which probable bias may reasonably be inferred is too great for legal limitation, but the reason for admitting evidence of bias and interest is that the existence of such emotions renders the witness untrustworthy.   It is self-evident, in order that one may be influenced by an emotion due to some circumstance such relationship, the person thus affected must have had knowledge of the fact.”  (Id., at pp. 408–409, 214 P. 1027;  italics added.)

(See also Austin v. United States (D.C.Cir.1969) 418 F.2d 456, 459–460.)

In In re Wing Y., 67 Cal.App.3d 69, 77, 136 Cal.Rptr. 390, the trial court admitted evidence that seven boys were members of a Chinese youth gang (“Wah Ching”) over irrelevancy objection on the theory a common membership with the minor showed bias of the witness.   The court held:

“Thus, the prosecution in the instant case properly could inquire of witnesses Sammy Lee and Kenny Tam, called by the minor Wing, regarding their friendship with Wing, including their common group membership, as a means of attacking their credibility as witnesses, by establishing a bias in favor of the minor.   However, at that point the inquiry into Wah Ching should have ended.”  (Id., at pp. 76–77, 136 Cal.Rptr. 390;  italics added.)

In an attempt to impeach the credibility of the defendant's alibi witnesses by showing bias, the People In re Wing Y., supra, called a police officer who testified the defendant and his alibi witnesses were reputed in the Chinatown community of Los Angeles to be members of the “Wah Ching” gang.   The Court of Appeal held the trial court erred in overruling the defendant's hearsay objection to this reputation evidence.

“Officer Lou was competent to testify as to the membership in the Wah Ching gang of Lee, Tam and the minor Wing, but only from personal knowledge.   Thus, Evidence Code section 702, subdivision (a), provides that, unless the matter pertains to the subject of expert testimony, ‘the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.   Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.’ ”  (Id., at p. 78, 136 Cal.Rptr. 390;  italics added.)

The trial court here erred in permitting cross-examination of the defense witnesses about membership in the Pee Wee Locos or Oceano Trece without first showing the witnesses' competence (personal knowledge) or without other proper foundation.

Error No. 2

While recognizing group membership is a valid basis for showing bias, In re Wing Y. does not address all the problems here presented.   The objection is not just hearsay, irrelevancy or lack of foundation, but also Evidence Code section 352 was urged.   Furthermore, not just witnesses were cross-questioned but Munoz, the defendant, was also questioned concerning “club” membership.

When a defendant/witness is cross-examined on the ever present issue of veracity, the justification for gang membership questions found in In re Wing Y., supra, is totally absent.   Gang membership is not then relevant unless “the affairs of such an organization [are] in issue.”  (2 Wharton Crim.Evid. 405, italics added.)

In People v. Perez, 114 Cal.App.3d 470, 170 Cal.Rptr. 619 (hrg. den. S.Ct. Mar. 11, 1981) applied this rule to any evidence concerning gang membership of the defendant unless shown to be relevant to some issue in the case.³

In Perez, the People argued defendant's membership in the “CV3” gang was relevant to an issue at trial.   The court responded:

“We agree with this basic proposition and state at the outset that evidence of gang membership is not per se inadmissible.   In order to be admissible it must meet the test of relevancy.

“․

“The asserted active membership in the ‘CV3’ gang by defendant, as testified to by Deputy Valdemar, did not have any ‘tendency in reason’ to prove a disputed fact, i.e., the identity of the person who committed the charged offense.   Membership in an organization does not lead reasonably to any inference as to the conduct of a member on a given occasion.   Hence, the evidence was not relevant.   It allowed, on the contrary, unreasonable inferences to be made by the trier of fact that the defendant was guilty of the offense charged on the theory of ‘guilt by association.’  [Citation.]  (Perez, at p. 477, 170 Cal.Rptr. 619.)

In People v. Szeto, 29 Cal.3d 20, 27–28, 171 Cal.Rptr. 652, 623 P.2d 213, this principle was applied when gang membership in the “Joe Boys” gang was used to prove a motive to gain revenge on another Chinese youth gang for the slaying of one Joe Boys gang member.  (Ibid.)  Thus in Szeto the affairs of the organization were in issue;  therefore gang membership of defendant was relevant.⁴  (See also People v. Frausto, 135 Cal.App.3d 129, 185 Cal.Rptr. 314.)

The People have made no showing whatsoever the “club” membership of Munoz tended to prove or disprove any issue in the case.   No offer of proof or any attempt to lay a foundation showing relevancy preceded the improper questioning.   No hint of relevance is presented to this court.

The admission of irrelevant evidence is not left to the sound discretion of the trial judge.  “[I]f evidence is irrelevant, it must be excluded.   The trial judge has no discretion to admit irrelevant evidence.”  (People v. Slone, 76 Cal.App.3d 611, 631, 143 Cal.Rptr. 61;  italics added;  People v. Hall, 28 Cal.3d 143, 152, 167 Cal.Rptr. 844, 616 P.2d 826.)   What disputed fact or issue is proved or disproved by evidence of Munoz' gang membership?   None is tendered;  none is conceived.   The trial court erred in permitting any questions as to Munoz' “club” membership.

Error No. 3

Further error was committed in the cross-examination of Munoz.   It was observed in People v. James, supra, 56 Cal.App.3d 876, 887, 128 Cal.Rptr. 733:

“It is established law in California that, apart from matters affecting credibility, cross-examination of a witness is limited to the scope of the direct examination.  (Evid.Code, § 773.) ․

“A defendant in a criminal case, however, may not be examined by a cross-examiner beyond the scope of the direct examination.  (Evid.Code, § 772, subd. (d).)  The basis of this limitation on the cross-examination of a defendant in a criminal case is the constitutional privilege against self-incrimination.   To permit the prosecutor to exceed the scope of the direct examination in examining a criminal defendant would amount to forcing such defendant to become the prosecution's witness.  [Citation.]”

(See also People v. Collie, 30 Cal.3d 43, 55, 177 Cal.Rptr. 458, 634 P.2d 534;  People v. Bagwell, 38 Cal.App.3d 127, 140, 113 Cal.Rptr. 122 (hrg. den. Apr. 17, 1979);  Evid.Code, § 773, subd. (a);  People v. Schader, 71 Cal.2d 761, 769, 457 P.2d 841.)   Gang or club membership of the defendant does not, as in the case of a witness, tend to show a relationship contributing to bias in favor of the party on whose behalf the witness is called.   The cross-examination here was clearly beyond the scope of direct testimony.   It was aptly described by the trial judge as “probing and fishing to see what answers you get”—on an irrelevant issue.

Error No. 4

Munoz also objected on Evidence Code section 352 grounds—the evidence lacked probative force and was unduly prejudicial.

In People v. Cardenas, supra, 31 Cal.3d 897, 904, 184 Cal.Rptr. 165, 647 P.2d 569, the long-recognized rule was repeated:

“When a section 352 objection is raised, the trial court ‘must weigh the admission of [the challenged] evidence carefully in terms of whether the probative value of the evidence is greater than the potentially prejudicial effect its admission would have on the defense.’  [Citation.]  If the prejudicial effect outweighs the probative value, the trial court should exclude the evidence.  ‘[T]he fundamental rule [is] that relevant evidence whose probative value is outweighed by its prejudicial effect should not be admitted.’  [Citation.]”  (Italics added.)

(See also People v. Green, 27 Cal.3d 1, 24, 164 Cal.Rptr. 1, 609 P.2d 468.)

By his objection Munoz “specifically invoked the discretion vested in the court by Evidence Code section 352 to exclude otherwise relevant evidence ‘if its probative value is substantially outweighed by the probability that its admission will ․ create substantial danger of undue prejudice ․’ ”  (People v. Green, supra, 27 Cal.3d 1, 24, 164 Cal.Rptr. 1, 609 P.2d 468.)

The trial court here made no such mandated evaluation.   Concerning such a failure, the Supreme Court in People v. Green, supra, said (p. 24, 164 Cal.Rptr. 1, 609 P.2d 468):

“As defendant correctly points out, the record does not show that the court did in fact discharge its statutory duty in these circumstances by weighing the statements potential for prejudice against its probative value and concluding that the latter was not ‘substantially outweighed’ by the former.   Instead, the court simply ruled that it would deny defendant's motion and would admit the statement with a limiting admonition to the jury.”

Said the Supreme Court (at p. 25, 164 Cal.Rptr. 1, 609 P.2d 468):

“The Attorney General responds that the record in the case at bar does not contain a similar affirmative showing that the trial court misunderstood its duty to weigh prejudice against probative value;  here the record is simply silent on the point, and the Attorney General implies that in such event it should be assumed the court knew and performed its duty.   The argument is untenable: ․  Moreover, since the enactment of section 352 the Ford [People v. Ford, 60 Cal.2d 772, 801, 36 Cal.Rptr. 620, 388 P.2d 892] requirement—i.e., that on a motion invoking this ground the record must affirmatively show that the trial judge did in fact weigh prejudice against probative value—has been reiterated both by the courts [citation] and by the writers [citation].”  (Italics added;  fn. omitted)

The probative value of Munoz' gang membership (if it were a fact) was zero for it did not in any way connect the defendant with the crime itself.  (See In re Ricky B., 82 Cal.App.3d 106, 111, 146 Cal.Rptr. 828.)   Membership in the Pee Wee Locos or Oceano Trece does not have any “tendency in reason” to prove the disputed fact, i.e., the identity of the person who committed the murder.   As was said in People v. Perez, supra, 114 Cal.App.3d 470, 477, 170 Cal.Rptr. 619:

“Membership in an organization does not lead reasonably to any inference as to the conduct of a member on a given occasion.   Hence, the evidence was not relevant.   It allowed, on the contrary, unreasonable inferences to be made by the trier of fact that the defendant was guilty of the offense charged on the theory of ‘guilt by association.’  [Citation.]”

Evidence is not admissible to show a defendant's criminal propensity or bad character as the means of raising an inference the defendant committed the charged crime.  (People v. Sam, 71 Cal.2d 194, 206, 454 P.2d 700.)

Thus not only does the evidence lack any probative value, the danger of undue prejudice was great.   In less violent times, an appellate court could observe the evidence a youthful Hispanic, was a member of a youth gang was not prejudicial.  (See People v. Zammora, 66 Cal.App.2d 166, 214, 152 P.2d 180.)   But as pointed out in People v. Perez, supra, at page 479, 170 Cal.Rptr. 619:

“Zammora was decided in 1944.   In the decision on page 215 [152 P.2d 180] it states ‘it seems only reasonable to assume that the use of the word “gang” referred only to the usual and ordinary crowd of young people living in any particular neighborhood, who associate themselves together, and from time immemorial has been referred to as a “gang.” ’   Thirty-six years have passed since Zammora.   It is fair to say that when the word ‘gang’ is used in Los Angeles County, one does not have visions of the characters from the ‘Our Little Gang’ series.   The word gang as used in the case at bench connotes opprobrious implications.”

The Supreme Court in People v. Cardenas, supra, 31 Cal.3d 897, 905, 184 Cal.Rptr. 165, 647 P.2d 569, accepted the Perez reasoning, saying:

“[T]he jury would improperly infer that appellant had a criminal disposition because (1) the El Monte Flores was a youth gang, (2) such gangs commit criminal acts;  and (3) appellant was a member of the Flores gang.”

The conclusion is inevitable.   The gang membership questioning constituted not just an abuse of discretion;  it was in direct contravention of multiple statutory and judicially decided rules of evidence.

III

The majority opinion skirts the reasoning and rule of People v. Cardenas, supra, 31 Cal.3d 897, 184 Cal.Rptr. 165, 647 P.2d 569.   In Cardenas, as here, the prosecutor did not specifically refer to the group as a “gang,” but the Supreme Court observed the jury “undoubtedly identified the group as [a gang] either from their personal knowledge or from their in-court observations of the witnesses' age, ethnicity, and tattoos.”  (Id., at p. 905, 184 Cal.Rptr. 165, 647 P.2d 569.)   Other testimony already established Cardenas and defense witnesses were friends and lived in the same neighborhood.   The Supreme Court held the inquiries into group (gang) affiliations were unnecessary, cumulative, and prejudicial, notwithstanding the prosecutor's theory the evidence was offered to establish possible bias of the witnesses in favor of the defendant.  (Pp. 904–905, 184 Cal.Rptr. 165, 647 P.2d 569)  “ ‘[T]he prosecution has no right to present cumulative evidence which creates a substantial danger of undue prejudice to the defendant.’ ”  (Id., at p. 905, 184 Cal.Rptr. 165, 647 P.2d 569;  italics added.)

Cardenas holds there is no per se rule for exclusion of gang membership evidence.   Rather, the Supreme Court cites People v. Perez, supra, 114 Cal.App.3d 470, 478, 170 Cal.Rptr. 619, for the application of the long-established Evidence Code section 352 duties imposed upon a trial judge to weigh and evaluate proffered evidence.   The probative value must be weighed against the potentially prejudicial effect.   Finally, Cardenas declares evidence of membership in a Chicano youth gang in Southern California in 1981 could cause the jury to improperly infer the defendant has a criminal disposition.

That such a conclusion may be drawn from gang membership alone is not challenged by the Cardenas dissenters who cite In re Wing, supra (Cardenas, at p. 915, 184 Cal.Rptr. 165, 647 P.2d 569) and People v. Perez, supra (Cardenas, at p. 941a).   The dissenters simply contend “the asserted ‘errors' were entirely harmless under the circumstances in this case.”  (Cardenas at p. 915, 184 Cal.Rptr. 165, 647 P.2d 569, dis. opn.;   italics added.)   Thus the rules of law and the observation made by the plurality are unchallenged.   The application of the “harmless error” rule is the only bone of contention between the majority and dissenters.

We confront that same issue as divided the Cardenas court.   Was the erroneous admission of the “club” membership testimony “harmless error?”   While not binding precedent the Cardenas plurality gives some guidance on the harmless error issue, for Munoz' case is factually akin to Cardenas in many aspects.

The key “disputed fact” in this prosecution (and Cardenas ) was the identity of the killer.   Here, as in Cardenas, there was no showing the crime was gang related or that “club” membership gave any hint of the killer's identity.   Evidence of gang membership from the witnesses was (if admissible) at best circumstantial evidence of bias.   Evidence of gang membership was simply not relevant to and not within the scope of Munoz' testimony.

This was a very close case factually in which the jury was required to choose between Munoz' alibi supported by several witnesses and Ramirez' past and present versions of the shooting and his multiple confessions to unimpeached third persons.   Corroboration of Ramirez' testimony connecting Munoz with an “act or fact which is an element of the crime” cannot be found in this record.   Thus, credibility was all important.

“Certainly a substantial showing of probative [italics ours] value was required to justify admission of this prejudicial ․ evidence so that the jury could dispassionately perform its function of ascertaining the truth as to the events involved in this case.”  (People v. Sam, 71 Cal.2d 194, 206, 454 P.2d 700.)

The jury deliberated some 12 hours.   In Cardenas the jury's 12 hours of deliberation was a “graphic demonstration” the case was close.  (Id., at p. 907, 184 Cal.Rptr. 165, 647 P.2d 569.)   The Cardenas court noted deliberations longer than six hours have been held to show the issue of guilt is not “open and shut.”  (Ibid.)

The conclusion is inescapable.   The trial court's rulings constituted an abuse of discretion.   The gang membership questions for at least four good and sufficient reasons should have been excluded.   The effect of these errors must next be examined in light of the “harmless error” rule.

IV

The majority opinion seeks to distinguish People v. Cardenas, saying the “record before us is devoid of any such [other] irrelevant evidence.”  (P. 413.)   Again let us look at the record.   Munoz' jail house telephone conversations with visitor Aurora Galvan were secretly recorded (May 31, 1980).   This surreptitiously recorded conversation (fn. 4, p. 408), along with a transcript, was admitted without objection.   On this tape, Munoz and Galvan discussed their activities the day and night of the murder.   At least one reasonable inference to be drawn from the conversation was that Munoz was coaching Galvan to be an alibi witness.

The majority opinion refuses to follow the rule announced in the recent Supreme Court case, De Lancie v. Superior Court (July 8, 1982) 31 Cal.3d 865, 183 Cal.Rptr. 866, 647 P.2d 142, prohibiting surreptitiously recorded jail house conversations of pretrial detainees not shown to be justified on the basis of jail house security needs.   The reason:  “Pipeline retroactivity” should be denied the De Lancie rule.

De Lancie was a taxpayer suit ⁵ challenging the San Mateo County Sheriff's office practice of monitoring and recording the conversations of pretrial detainees held in the county jail.   De Lancie claimed a violation of privacy rights (California Const., art. I, § 1) and a violation of the Fourth and Fourteenth Amendments to the federal Constitution.   The Supreme Court held Penal Code sections 2600 and 2601 prohibited admission of the products of jail house monitoring, including the gathering of evidence in pending cases, when jail security was not the purpose of surveillance.   The court stated:

“Section 2600, as amended by the Legislature in 1975, provides that ‘[a] person sentenced to imprisonment in a state prison may, during any such period of confinement, be deprived of such rights, and only such rights, as [are] necessary in order to provide for the reasonable security of the institution in which he is confined and for the reasonable protection of the public.’   (Italics added.)   The broad span of constitutional rights protected by section 2600 is augmented by the terms of section 2601, which specifies that state prisoners ‘shall have’ certain civil rights ․”  (De Lancie, at p. 870, 183 Cal.Rptr. 866, 647 P.2d 142;  italics added.)

The court held:

“[B]y enactment of Penal Code sections 2600 and 2601 the Legislature established a policy that prisoners retain the rights of free persons, including the right to privacy, except to the extent that restrictions are necessary to insure the security of the person and protection of the public.”   (Id., at p. 868, 183 Cal.Rptr. 866, 647 P.2d 142.)

“Although these statutes speak of persons confined in state prison, detainees in local jails ․ enjoy at least equal rights.”  (De Lancie, at p. 868, 183 Cal.Rptr. 866, 647 P.2d 142;  italics added.)

“[E]qual protection principles support the conclusion that detainees retain rights at least equivalent to those guaranteed state prisoners under sections 2600 and 2601.   Our Constitution requires that persons ‘similarly situated with respect to the legitimate purpose of the law receive like treatment.’  [Citation.]  ․ [S]ections 2600 and 2601 apply in this context not only to state prisoners but also to those merely detained pending trial.”  (Id., at p. 872, 183 Cal.Rptr. 866, 647 P.2d 142.)

The Supreme Court held further the limitations on monitoring were binding when the monitoring was of conversations between detainees (De Lancie, at p. 876, 183 Cal.Rptr. 866, 647 P.2d 142).   While consideration of institutional security or protection of the public may warrant different monitoring practices as to conversations between detainees but in either case justification must be found in meeting the jail's legitimate security needs.  (Ibid.)

De Lancie compels a factual inquiry to determine whether the Munoz-Galvan monitoring was necessary for “safeguarding institutional security and protecting the public.” ⁶  The People represent to this court the monitoring was authorized because of suspected narcotics transactions.   Such assertion has not been tested in any hearing where the burden of proof was lawfully allocated.   An incipient jail house narcotics transaction in which Munoz was involved—if this be established—would be a sufficient threat to security to justify surveillance.

The majority accepts the De Lancie rule but holds the rule should apply only to trials commenced after the date of its finality.   To support this view the majority relies upon the criteria enunciated by the Supreme Court determining whether a new rule should be made retroactive.  (See In re Johnson, 3 Cal.3d 404, 411, 475 P.2d 841;  People v. Gainer, 19 Cal.3d 835, 853, 139 Cal.Rptr. 861, 566 P.2d 997.)   The majority assumes De Lancie is a new rule.   Such assumption will not withstand critical analysis.

If the De Lancie rule is a “new rule” or a “sharp break” with established law, then a court must

“undertake the often perilous task of applying to the facts of this case the test of ‘retroactivity’ developed in a well-known series of decisions of the United States Supreme Court [beginning with Linkletter v. Walker 381 U.S. 618 [85 S.Ct. 1731, 14 L.Ed.2d 601].”  (People v. Mutch, 4 Cal.3d 389, 394, 482 P.2d 633.)

Mutch held such “perilous” task need not be undertaken (citing People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225) unless there is the “sharp break”:

“In Daniels we did not overturn a judge-made rule of common law;  rather, we recognized a statutory rule which the Legislature adopted in 1951 but to which courts had not previously given appropriate effect.”  (Ibid.;  italics added.)

And in Gallik v. Superior Court, 5 Cal.3d 855, 859, 489 P.2d 573, the Supreme Court pointed out People v. Superior Court (Kiefer), 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449, did not change the law of probable cause.   “Kiefer was not the source of this rule.”  (Gallik, at p. 859, 489 P.2d 573.)  “Kiefer simply explained the origin and scope of the rule and called a halt to its more egregious abuses ․”  (Id., at p. 860, 489 P.2d 573.)

People v. Sesslin, 68 Cal.2d 418, 422–425, 439 P.2d 321, was interpreted in People v. Groves, 71 Cal.2d 1196, 1198, 458 P.2d 985, not to “declare a new rule in California” because it was predicated on five earlier decisions of the United States Supreme Court.   It was the first California case to apply those decisions.

And in People v. Heredia, 20 Cal.App.3d 194, 199–200, 97 Cal.Rptr. 488, the appeal court summarized the rules:

“[I]n the context of applicability to a matter open on direct review, a rule of decisional law is not necessarily retroactive and need not necessarily be applied if it is enunciated as a change, departure, or overturn of previous decisional law.   Where, however, that rule is one which has been foreshadowed by prior decisions or is stated as an application of a previously existing principle, it must be applied to open cases.

“․

“Since Mozzetti [Mozetti v. Superior Court, 4 Cal.3d 699, 706, 484 P.2d 84] applies an existing principle rather than new law, we determine that it is applicable to the case at bench which was pending on appeal when Mozzetti was decided.”  (Ibid.;  fn. omitted;  italics added.)

And in In re Edgerly, 131 Cal.App.3d 88, 91, 182 Cal.Rptr. 235, the People contended the holding in People v. Winson, 29 Cal.3d 711, 175 Cal.Rptr. 621, 631 P.2d 55 (live testimony required at probation revocation hearing) was a new rule to be examined for retroactivity in light of the criteria of People v. Gainer, supra.   Speaking for the appeal court, Justice Grodin wrote:

“We do not read the unanimous opinion in Winson as establishing a new rule, however, but rather as correcting what the court perceived to be an erroneous departure from established due process principles applicable to parole and probation proceedings commencing in 1972 with Morrisey v. Brewer (1972) 408 U.S. 471 [․ 92 S.Ct. 2593, 33 L.Ed.2d 484] ․  Thus, Winson represents an ‘application of a previously existing principle [citations] and, in the absence of contrary indication from the Supreme Court itself [citations], must be deemed applicable at least to cases not yet final.”   (Edgerly, supra, at pp. 91–92, 182 Cal.Rptr. 235;  italics added.)

The De Lancie rule is not a newly created judge-made rule but rather an enforcement of statutory and constitutional rights of many years standing.   Sections 2600–2601 were amended to the present language in 1975.   As early as 1970 the California Supreme Court recognized, in the predecessor to Penal Code section 2600, the Legislature abandoned the “civil death” concept and replaced it with statutory provisions to insure the civil rights of those convicted of crimes be limited only in accordance with legitimate penal objectives.  (See In re Harrell (1970) 2 Cal.3d 675, 702, 470 P.2d 640;  De Lancie v. Superior Court, supra, p. 874, fn. 9, 183 Cal.Rptr. 866, 647 P.2d 142.)   The initiative amendment raising the right to privacy to a constitutional level was enacted in 1974.   The De Lancie rule, rather than a “new rule” ⁷ or a “sharp break” with established law is a long overdue application of clearly stated statutory and constitutional provisions.   The novelty in this rule (if it be novelty) is the application of the equal protection doctrine to the statutorily declared rights.

It is urged that long-standing reliance on a different rule (North v. Superior Court, 8 Cal.3d 301, 502 P.2d 1305) supports prospective application.  De Lancie specifically answers this contention when it points out (pp. 873–874, 183 Cal.Rptr. 866, 647 P.2d 142) that the North decision did not settle, even by way of dictum, that routine monitoring of a jail house detainee-visitor conversations were essential to jail security.  “The [North ] court did not decide that such monitoring was always necessary for institutional security ․ (De Lancie, at p. 874, 183 Cal.Rptr. 866, 647 P.2d 142.)   More significantly at the time of North v. Superior Court (1972) Penal Code section 2601 had not yet been amended to its present form.

While specifically bottomed on statutes for its foundational strength, De Lancie recognizes that the Legislature has by its enactment of Penal Code sections 2600 and 2601 “[protected a] broad span of constitutional rights.”  (P. 870, 183 Cal.Rptr. 866, 647 P.2d 142.)   Perhaps the most fundamental and sweeping of those rights is the constitutionally declared right of privacy (Cal. Const., art. I, § 1).

De Lancie does not announce a new constitutional or judicial rule governing police or institutional conduct.   Rather, it interprets the statute in light of older and well recognized constitutional principles.   A close and analytical reading of De Lancie leads to but one conclusion:  No new rule was established.

Finally, where there is “a total absence” of any contrary indication from the Supreme Court itself, “[the decision] must be deemed applicable at least to cases not yet final.”  (In re Edgerly, supra, 131 Cal.App.3d 88, 92, 182 Cal.Rptr. 235.)   Fishing out Mr. De Lancie from the river of appeal cases and using his case as a means of interpreting and applying the statute in a comparable factual circumstance and then watching a stream of similar cases flow by unaffected would be an inexcusable departure from the duty of a court to enforce the law and the Constitution of this state.   Certainly as to those cases not yet final (all appeal rights exhausted and decision final), the rule should be applicable.

V

Even more egregious errors occurred in the admission of the tapes and recording of Munoz' police car conversations.  (See fn. 3, p. 408.)   Three days after being arrested for the Klima murder, Munoz, together with Ramirez and Raul Galvan were placed in the back of a police patrol car and their conversation recorded by a concealed tape recorder.   Munoz had not yet been arraigned.   He was told he was to be transported to the municipal court for arraignment.   The record of that court shows no arraignment proceedings set or held on that day.   The three were transported to the courthouse, left alone in the patrol car for three-quarters of an hour, where their conversations were surreptitiously taped, then returned to the jail.   Munoz was not arraigned until nine days after his arrest (May 22, 1980).   That Munoz knew Ramirez had already talked to the police, had pointed the finger of guilt at Munoz, and was bargaining for leniency may be inferred from the conversation.

A tape and transcript of this conversation were admitted into evidence at trial over defense objections based on violation of defendant's privacy and Fifth Amendment rights.   Munoz also claimed the tape was inaudible and the transcript inaccurate, and under Evidence Code section 352, the prejudicial effect outweighed the probative value of the evidence.   At the preliminary hearing, the tape was admitted by stipulation.

We confront here pretrial detainees not held within the jail walls, yet are in police custody.   The De Lancie —no surreptitious monitoring except for security reasons—rule was expressly declared to extend, not only to conversations between detainees and visitors but also to communications between detainees.  Section 2600 expressly grants rights to “a person sentenced to imprisonment in a state prison.”  (Italics added.)   There is no restriction limiting the exercise of these rights to any particular specie of custody or place within the prison.   In short the rights, by the plain unambiguous language of the statutes, are granted to the person not to a place.   These are the prisoner's personal rights.   These rights adhere to the individual, subject only to such limitation as may be necessary to provide for the reasonable security of the institution and the protection of the public.

This construction is supported by interpretations of the Fourth Amendment to the federal Constitution.  (See Katz v. United States, 389 U.S. 347, 353 [88 S.Ct. 507, 512, 19 L.Ed.2d 576].)   The “Fourth Amendment protects people not places” (Katz, supra, at p. 351, 88 S.Ct., at p. 511) as does article I, section 1 of the California Constitution.   The “uninvited ear” rule, resting on the Fourth Amendment, applies to persons whether in taxicabs, telephone booths or wherever.   The equal protection reasoning of De Lancie should apply to pretrial detainees while being transported in a police patrol car to the court building for arraignment just as it does to detainees held in the jail house holding tank, cells, exercise yard, jail hospital or booking area.

VI

De Lancie followed the well-established principle a court should avoid resolving an issue on constitutional grounds if the case can be decided upon statutory premises.  (See fn. 12, p. 877, 183 Cal.Rptr. 866, 647 P.2d 142, De Lancie.)   I agree with this approach.   However, the facts here compel, relative to the recorded police car conversations, a consideration of police violations of the Fourth, Sixth and Fourteenth Amendments to the federal Constitution.   Ramirez at the time of these conversations had just made a bargain with the prosecution to testify against Munoz.   Most recent United States Supreme Court decisions require a factual inquiry into whether Ramirez, at the time the patrol car tape was made, was acting on behalf of the police.   (United States v. Henry, 447 U.S. 264 [100 S.Ct. 2183, 65 L.Ed.2d 115] (1980);  Rhode Island v. Innis, 446 U.S. 291 [100 S.Ct. 1682, 1689, 64 L.Ed.2d 297] (1980);  and Massiah v. United States, 377 U.S. 201, 206 [84 S.Ct. 1199, 1203, 12 L.Ed.2d 246] (1964).)

In Henry, the government's use of a paid informant, who ostensibly was a fellow inmate, was held to render incriminating statements “deliberately elicited” from Henry by the informant inadmissible as violative of the Sixth Amendment right to counsel.   In Henry, the informant “deliberately used his position to secure incriminating information from Henry when counsel was not present ․”  (Henry, at p. 270, 100 S.Ct., at p. 2187.) ⁸

In Massiah, supra, the government outfitted an informant's automobile with radio transmitting equipment and instructed the informant to engage the defendant in conversations relating to the crime.   The statements were suppressed.   The court held that the Sixth Amendment must apply to indirect and surreptitious interrogations as well as those conducted at the jail house.  (Massiah, at p. 206, 84 S.Ct., at p. 1203.)

The police car taping here was conducted three days after Munoz' arrest and after Ramirez had agreed to cooperate with the police.   The United States Supreme Court admonished us that such arranged confrontation must be scrutinized carefully to determine whether a police “agent” was involved and whether this involvement occurred at a critical stage of the prosecution to which the Sixth Amendment right to assistance of counsel attaches.  (See United States v. Henry, supra, at p. 270, 100 S.Ct., at p. 2186.)

Munoz at the time of the police car bugging had not been arraigned;  no charges were yet lodged against him.   He had been held three days (May 13 to May 16) in violation of statute and constitutional provisions, without being taken before a magistrate.⁹  Munoz was not in fact arraigned until nine days after his arrest.

This failure to promptly arraign Munoz necessarily interfered with his fundamental right to liberty.   He was denied a meaningful opportunity to obtain counsel, post bail or be released on his own recognizance.  (Van Atta v. Scott, 27 Cal.3d 424, 431, 166 Cal.Rptr. 149, 613 P.2d 210.)   Notice of right to counsel and counsel's availability may await the arraignment process.   Violation of the prompt arraignment rule of Penal Code section 825 also constitutes an unnecessary and unreasonably prolonged detention in controvention of article 1, section 14 of the California Constitution which requires that a person accused of a felony “ ‘be taken without unnecessary delay before a magistrate.’ ”  (People v. Thompson, 27 Cal.3d 303, 329, 165 Cal.Rptr. 289, 611 P.2d 883.)

The more critical question is what sanctions are to be imposed for this breach of official duty.

As was stated in People v. Thompson, supra (at pp. 329–330, 165 Cal.Rptr. 289, 611 P.2d 883):

“[E]ven if a confession occurs during a period of illegal detention under section 825, that fact alone does not render it inadmissible.   A delay in arraignment is treated ‘as only one of the factors to be considered in determining whether the statement was voluntarily made.’  [Citations.]  To exclude the statement, the defendant must show that ‘the illegal detention produced the admissions' or that there was an ‘essential connection between the illegal detention and the confession.’  [Citations.]”

The Supreme Court in People v. Pettingill, 21 Cal.3d 231, 244, 145 Cal.Rptr. 861, 578 P.2d 108, held:

“The principal purposes of the requirement of prompt arraignment are to prevent secret police interrogation, to place the issue of probable cause for the arrest before a judicial officer, to provide the defendant with full advice as to his rights and an opportunity to have counsel appointed, and to enable him to apply for bail or for habeas corpus when necessary.

“It follows that the failure of the police to cease all attempts at interrogation of defendant herein after he refused to waive his right to remain silent was not cured by their subsequent failure to comply with the laws requiring his prompt arraignment.   Two such wrongs do not make a right;  they remain separate abuses, compounding the infringement of defendant's privilege against self-incrimination.”

Thus the failure to comply with Penal Code section 825 and article I, section 14 of the California constitution may have prevented Munoz' exercise of his Sixth Amendment right to counsel.   Thus the one statutory and state constitutional wrong—delayed arraignment—produced a greater, more profound federal constitutional wrong—if Ramirez' activities and purpose falls within the Henry-Innes-Massiah prohibition.

These tapes—from the jail house and the police car—were admitted with the foregoing unresolved factual, statutory, and constitutional issues.   Even assuming substantial evidence supports the conviction, a retrial is required under De Lancie.   The jail house tape, to be admissible, must be shown to have been recorded for security purposes.   Retrial would be required by Henry for this reason also and additionally for inquiry into whether Ramirez was a police agent as he sat in the patrol car and deliberately elicited statements from Munoz in violation of the rule of Massiah v. United States, supra, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.

VII

The erroneously admitted “gang” member evidence should be assessed for reversible error under the Watson rule.  (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243.)   However, the erroneous admission of the tape recordings of a pretrial detainee held in violation of prompt arraignment rules presses upon statutory, as well as state and federal constitutional nerves.   Federal constitutional error requires reversal if this court is unable to declare its belief that the errors were harmless beyond a reasonable doubt.   (Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)

Whether the test is “harmless” error under Watson or Chapman rules, the result is the same.   The case against Munoz rests entirely on the believability of Ramirez—a witness who is patently vulnerable to charges of mendacity, bias, prejudice, self interest and multiple contradictions by several witnesses.   The corroboration of Ramirez' story, if admissible, is weak to nonexistent.

In a remarkably similar case, the Supreme Court in People v. Green, supra, 27 Cal.3d 1, 71–73, 164 Cal.Rptr. 1, 609 P.2d 468, was influenced by the fact the conviction rested on the dubious testimony of a co-suspect.

“Our doubt in the matter is enhanced by the particular facts of the case at bar․

“․

․ “[A]ll that evidence came from a single source—the testimony of David Khan—

cannot have inspired much confidence.   Not only did Kahn's testimony on these points remain wholly uncorroborated, but on both direct and cross-examination his credibility was thrown into serious question.   Thus on direct examination he admitted that he repeatedly lied to the authorities in the days following his arrest.   On cross-examination Khan conceded that he changed his story and began accusing defendant of the crime when the authorities told him that he would be charged with the murder himself.   He acknowledged that during the trial he was in custody for his own protection and had been promised by the authorities that as soon as the trial was over he would be ‘placed,’ i.e., he would be provided with a place to live of his own choosing.”  (People v. Green, supra, 71–72, 164 Cal.Rptr. 1, 609 P.2d 468;  fn. omitted.)

VIII

Finally, there is not one but multiple errors in the admission of critical evidence.   There is no litmus test to indicate whether the jury convicted on the basis of admissible or inadmissible evidence.   Therefore the judgment must be reversed.   In People v. Robinson, 61 Cal.2d 373, 406, 38 Cal.Rptr. 890, 392 P.2d 970, the Supreme Court said:

“When, as in this instance, a reviewing court is unable to determine from the record whether a jury convicted on admissible evidence or rejected that evidence and convicted on inadmissible evidence improperly received, it must find the error to have been prejudicial.   Under a different factual situation, but where the principle was equally applicable, this court said:  ‘However reprehensible the conduct of an accused, he is entitled to have its legal consequences determined from competent evidence by a jury properly instructed.   Here, we cannot fairly say that, had the improper evidence improperly used not been before the jury, unadvised of its impropriety, the verdict and sentence would have been the same.’  [Citation.]”

(To the same effect see People v. Green, supra, 27 Cal.3d 1, 69, 164 Cal.Rptr. 1, 609 P.2d 468.)   The Robinson-Green rule requires reversal if any one of the several areas of evidence complained of is found to be inadmissible and it cannot be determined whether the jury convicted on admissible evidence or on inadmissible evidence improperly received.   The cumulative prejudice resulting from the erroneous evidentiary rulings may require reversal.   (Cardenas, supra, at p. 907, 184 Cal.Rptr. 165, 647 P.2d 569.)   Reversal is also necessary when it cannot be said the combined errors were harmless beyond reasonable doubt.  (In re Rodriguez, 119 Cal.App.3d 457, 470, 174 Cal.Rptr. 67.)

IX

In his habeas corpus petition, Munoz charges trial counsel with ineffectiveness.   The majority resolution of this issue cannot be faulted.

I would reverse the judgment.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise specified.

2.   The criminal complaint charged Munoz and Galvan with murder and firearm use (count 1) and Galvan and Ramirez with being accessories after the fact (§ 32;  count 2).   Before the preliminary hearing Ramirez made a deal with the district attorney.   In exchange for Ramirez' testimony consistent with his earlier statements to the police that Munoz was the killer, the district attorney agreed not to file a murder charge against him and to recommend a commitment to the California Youth Authority.   Before Munoz' trial, Ramirez pleaded guilty to being an accessory and when he testified was awaiting sentence on that charge.

3.   The transcript states:“MUNOZ:  Hey, we got to get in touch with Bear.   He said that my jefita and my carnala ․“GALVAN:  I know that's what I heard.“MUNOZ:  put rata (snitched) on him that he had a gun.   I go back to him, I go ‘I do not think that my jefita would do that.’   They just want information on him.   He fucked up, man.   I told him like that.“GALVAN:  And they got it.“MUNOZ:  They got what?“GALVAN:  They seen the gun.“MUNOZ:  They seen the cuete?“RAMIREZ:  You know what he told me?   You know what he told me?“GALVAN:  What?   That he threw the cuete away?“MUNOZ:  That he doesn't know where it's at.   Right there.   He fucked up.   You know what else he's doing?“GALVAN:  What?“MUNOZ:  He's going to take a lie detector's test.“GALVAN:  He's going to fuck up.“MUNOZ:  Don't take that either.“RAMIREZ:  They can't use it in court.“MUNOZ:  I know, but still don't take it.“GALVAN:  They'll fuck you around if they catch you in a lie once.“MUNOZ:  Bear.“GALVAN:  It's stupid.“MUNOZ:  Bear's fucking up.“MUNOZ:  Jud, I thought you were fucking up.   You haven't talked to them?“RAMIREZ:  Fuck no!“MUNOZ:  Because you know what's going to happen if you do (inaudible).“RAMIREZ:  Oh, I know, I know.“MUNOZ:  You're not going to make it through nowhere.“RAMIREZ:  I know, I know all that shit.“MUNOZ:  You're going to get stuck wherever you go.“RAMIREZ:  I know all that shit already.“MUNOZ:  They just want to make it look like I'm the one that done it.“RAMIREZ:  If there's anything left out (inaudible)”

4.   The transcript states:“MUNOZ:  No.   And when—that when you told the police that they picked—you picked me up at 2:30, shouldn't have said that because then that fucked me up.   When you go to court testify and tell them that we were at the beach in the daytime and then we went to Faye's and we had a dinner down there at 8 o'clock and around 8 o'clock we had dinner for Mother's Day.   You know, that we were all there.   Me, you, Rachael, Ruben—“GIRL:  Uh-huh.“MUNOZ:  —that girl 'Phelia.   I told them we spend the night there.“GIRL:  Uh-huh.“MUNOZ:  From 8 o'clock on.“GIRL:  But I didn't tell them that I seen you at 2:30.   I told them—they asked me where I was and it was during that day and I said I was—‘cause I was in Santa Maria the day before and I came home at 2:30 and that's when I got to bed.“MUNOZ:  I know.   But I didn't want to you say—you shouldn't have said that.   We wanted to be together all during the day and then the night too, because 2:30 you picked me up.“GIRL:  Yeah.“MUNOZ:  The murder happened at 10:30 that night.   I wanted to say that—together that night, you know.“GIRL:  Yeah.“MUNOZ:  From 8 o'clock on.   I mean all day and at 8 o'clock we went and had dinner at 'Phelia's house and spent the night there and that was it.   Just remember to say that!“GIRL:  Yeah.”

5.   On this issue the district attorney's entire argument is as follows:“In this case, the People's evidence establishes a willful, deliberate and premeditated murder.   If you believe that from the time defendant Munoz contacted the victim the first time, hassled him, asked him directions—and I use the word hassle, not in a normal tone.   I mean, ask him directions that Munoz did not really need.   Ask him directions, kind of in a nonsense way.   If you believe that between that contact—excuse me, and the contact down the street on Vista, if you believe that that contact—between those two contacts you had an intent on Mr. Munoz's part to kill Mr. Klima for some reason, either because of his statement, ‘For the hell of it,’ that that's when he decided to kill him for the hell of it, or he was just in the mood to kill someone that night.“That is the only portion of the act that you could find to be willful, deliberate and premeditated if you believe that happened.   And, of course, since Mr. Munoz denied that he was there, you don't get anything along the lines of his intents from his testimony, other than that he wasn't there.”

6.   Even if the court erred in instructing the jury on first degree premeditated murder, we are satisfied that the error was harmless beyond a reasonable doubt.  (People v. Walker (1973) 32 Cal.App.3d 897, 906, 108 Cal.Rptr. 548.)

7.   The pertinent dialogue between defense counsel and the court on this issue is as follows:“MR. DORSI:  Well, I don't deny that he has some right to do some probing.   What I'm saying, if he's going to ask him regarding gangs, if he would say clubs or club, that's fine.   He has already explored that, and Mr. Rodriguez has denied the clubs.“And as long as it relates to some type of club or other type of association, I think that those questions are appropriate and I haven't objected to them.   I just think Mr. La Barbera [deputy district attorney] is going to try and ask questions that infer an association for purposes of criminal activity, that those questions in themselves would be inappropriate.“That would be my only objection.“THE COURT:  All right.   I'm going to overrule the objection.   I'm going to allow him to ask the questions, but I'm going to restrict the use of the word gang.“Your motion under section 352 to exclude the evidence as being unduly prejudicial is going to be denied on the condition that the questions do not involve the use of the word gang, but involve the word club.   I feel under those circumstances their probative value will outweigh any prejudice that may result.”

8.   The following are all references in the record to which Munoz has directed us on this issue.“Q [to Rodriguez]:  Well, you indicated you had a group of people that were in an association that is not a very good association, isn't that true?“A Yeah, but they're just friends.“Q Okay.   Do you have a name of the association or a club name?“A No.“Q You've never heard of the term Pee Wee Locos?“A I've heard of it.“Q Aren't you a member of that?“A No, I ain't.“Q Is Mr. Munoz a member of that club?“A I don't know.“․“Q And you're not aware of whether he's a member of a club called Pee Wee Locos?“A No, I'm not.“Q Have you ever heard of that club?“A Yes, I have.“Q Have you ever been in that club?“A No, I haven't.“Q Is that club, to your knowledge, in existence today?“A I can't say.“Q Are you sworn to secrecy or something?“A No, I ain't.“Q Why can't you say?“A 'Cause I don't know.“Q Have you ever tried to get in that club?“A No, I haven't.“Q Have you ever heard of the term Oceano Trece?“A Yes, I have.“Q What does that mean?“A That means Oceano.“Q Oceano what?“A Thirteen.“Q Thirteen.   Are you one of those thirteen?“A No, I'm not.“Q Is Mr. Munoz?“A I don't know.“Q Have you ever been one of that thirteen?“A No.“Q And you don't know if Mr. Munoz is or is not?“A No, I don't.“․“Q He's [Ramirez] testifying against one of your brothers;  isn't he?“A That's right.“Q One of your club members—I'm sorry, that's wrong?“A That's wrong.”

9.   In our opinion we rely on the constitutional standard for retroactivity even though we are aware the De Lancie court meticulously restricted its decision to sections 2600 and 2601.  (31 Cal.3d at p. 877, 183 Cal.Rptr. 866, 647 P.2d 142.)   The factors to consider in deciding whether to apply a new judicial standard retroactively may be identical for both statutory and constitutional decisions.  (See People v. Gainer (1977) 19 Cal.3d 835, 853, fn. 18, 139 Cal.Rptr. 861, 566 P.2d 997.)Munoz objected to the tapes on the ground that their introduction violated his right to privacy.   We may review this issue even if his objection was not sufficiently specific to preserve it on appeal.  (See Evid.Code, § 353.)   His trial ended in August 1980 almost two years before the Supreme Court filed De Lancie.   Although a party's failure to object at trial normally precludes an appeal on that point (People v. Rogers (1978) 21 Cal.3d 542, 548, 146 Cal.Rptr. 732, 579 P.2d 1048), a supervening change in the law permits the appellate court to consider the issue.  (People v. De Santiago (1969) 71 Cal.2d 18, 22–23, 453 P.2d 353.)   Because we conclude De Lancie substantially altered the law regarding inmate monitoring (see pp. 414–415, post ), we address Munoz' contentions.

10.   In Stovall v. Denno, supra, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, the Court explained the determination whether a case should be applied retroactively involves consideration of “․ (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.”  (Id., at p. 297, 87 S.Ct., at p. 1970.)

11.   The Court expressly limited its decision to the Fourth Amendment (United States v. Johnson, supra, 102 S.Ct. at p. 2594) but observed “[t]he logic of our ruling, however, is not inconsistent with our precedents giving complete retroactive effect to constitutional rules whose purpose is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function.  [Citations.]  Depending on the constitutional provision involved, additional factors may warrant giving a particular ruling retroactive effect beyond those cases pending on direct review.  [Citation.]”  (Id., at p. 2594, fn. 21.)

12.   Johnson noted other criteria for determining whether a new rule clearly breaks with precedent.   A decision does not work a sharp break “․ unless that ruling caused ‘such an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one,’ [citations].   Such a break has been recognized only when a decision explicitly overrules a past precedent of this Court, [citations], or disapproves a practice this Court arguably has sanctioned in prior cases, [citations] ․”  (Id., at p. 2588.)

13.   North held statements made by an arrested husband to his wife could not be used against him after the police had indicated to the couple they could converse in private.   The court relied on both the marital relationship as evidenced by Evidence Code section 980, et seq. (marital privilege) and the officer's conduct to grant North's writ of mandate.

14.   The few federal courts addressing this issue almost unanimously reach the same conclusion.  (See Christman v. Skinner (2d Cir.1972) 468 F.2d 723, 726;  Williams v. Nelson (9th Cir.1972) 457 F.2d 376, 377;  Rodriguez v. Blaedow (E.D.Wis.1980) 497 F.Supp. 558, 559–560;  United States v. Paul (6th Cir.1980) 614 F.2d 115, 116, cert. den., 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796.)   Only one court has questioned the practice even though it affirmed a conviction based in part on statements obtained through inmate monitoring.  (United States v. Hearst (9th Cir.1977) 563 F.2d 1331, 1344–1346, cert. den., 435 U.S. 1000, 98 S.Ct. 1657, 56 L.Ed.2d 91.)

1.   Ramirez first lied to the police, claiming an alibi, then he blamed the murder on Munoz.   He did not tell the police or the preliminary hearing magistrate about a Munoz demand for Klima's wallet or of his, Ramirez', possession of the gun the day after the shooting until after the preliminary examination—two weeks before trial.   He explained he was afraid he or a friend would be implicated.   How this story would implicate a stranger is not made clear.   At the preliminary hearing Ramirez denied seeing the gun after the shooting.   At trial he said he did not find a gun in his car that night but the next day he found a .22 caliber pistol under a rug in the back seat.   He put the gun in the glove compartment.

2.   The district attorney made no offer of proof to overcome the court's initial and sound concern “Are you prepared to have any back-up evidence ․?”  Mr. La Barbera (Dist. Atty.):  “I don't think we would get anybody to come in and testify [to gang membership].”

3.   People v. Perez is cited with approval in the dissent of People v. Cardenas, supra.

4.   The difficult problem in Szeto was the mode of proof of gang membership.   A divided Supreme Court held admissible opinion (hearsay) testimony absent a timely objection.   The plurality opinion 3–1–2 leaves this issue unresolved.

5.   If De Lancie is not controlling by reason of it being a taxpayer's action dealing with visitor surveillance, then Munoz as a defendant whose rights are being adjudicated first is entitled to the benefit our decision without determining the retroactivity issue.   (People v. Bustamante, 30 Cal.3d 88, 102, 177 Cal.Rptr. 576, 634 P.2d 927.)   This retroactivity issue is before the California Supreme Court in Donaldson v. Superior Court, L.A. 31424.

6.   Defense counsel made no appropriate objection to the introduction of this recording nor was there any factual hearing sought or held to determine whether there was a legitimate institutional security basis for the monitoring.

7.   (See 3 La Fave, Treatise on the Fourth Amendment, § 11.5, pp. 692–696.)

8.   The United States Supreme Court distinguished prearrest investigation:  “It is quite a different matter when the Government uses undercover agents to obtain incriminating statements from persons not in custody but suspected of criminal activity prior the time charges are filed.”  (Henry, at p. 272, 100 S.Ct., at p. 2188.)   The Fourth Amendment does not protect a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.  (See Hoffa v. United States, 385 U.S. 293, 302 [87 S.Ct. 408, 413, 17 L.Ed.2d 374.].)   The Fifth Amendment is not implicated by the use of undercover agents before charges are filed.   As the Henry court noted:  “[T]he Fourth and Fifth Amendment claims made in those cases are not relevant to the inquiry under the Sixth Amendment here—whether the Government has interfered with the right to counsel of the accused by ‘deliberately eliciting’ incriminating statements.”  (Henry, at p. 272, 100 S.Ct., at p. 2188.)

9.   In People v. Powell, 67 Cal.2d 32, 59, 429 P.2d 137, the Supreme Court interpreted Penal Code section 825:  “ ‘The defendant must in all cases be taken before the magistrate without unnecessary delay, and in any event, within two days after his arrest ․’ ”  Said the Supreme Court:  “[S]ection 825 does not authorize even a two-day detention in all cases ․”  (Ibid.).

WIENER, Associate Justice.