What is a CONSTITUTION?





"A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate."
Thomas Jefferson: Rights of British America, 1774. ME 1:209, Papers 1:134

"Natural rights [are] the objects for the protection of which society is formed and municipal laws established." --
Thomas Jefferson to James Monroe, 1797. ME 9:422





      
"Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its
disregard of the charter of its own existence."
Mapp v.Ohio, 367 U.S. 643 (1961)

            First, it might be useful to determine and acknowledge where it came from.   People wrote them.   The documents didn’t just didn’t pop up like a mushroom.    In fact, the people of the states, wrote them.   There was no US citizen when the federal or California consttitutions were written.   Everyone was a state Citizen.

"The people are such as are born upon the soil, by whom and for whom in the first place the Government was ordained...."
Walther v. Rabolt, 30 Cal. 185, 189 (1866)

       CALIFORNIA GOVERNMENT CODE

        54950 DECLARATION OF LEGISLATIVE PURPOSE.   "In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business.   It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.
                                           
        The people of this State do not yield their sovereignty to the agencies which serve them.   The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.  The people insist on remaining informed so that they may retain control over the instruments they have created". 

[2] The people of the State of California are supreme and have the undoubted right to protect themselves and to preserve the form of government...
Steiner v. Darby, (1948) 88 Cal.App.2d 481

"Municipal authorities, as trustees for the public, ...
Pittsford v. City of Los Angeles, (1942) 50 Cal.App.2d 25

    B.  Constitution of California

        2.  [51]  Restrictive and Enabling Provisions

            (a) Restrictions on State Powers.    The California Constitution, like other state constitutions, is generally a restriction upon the powers of the state.
Summary of California Law, vol 7, Constitutional Law, p. 9

...the state Constitution, as distinguished from the federal Constitution, does not constitute a grant of power, or an enabling act, to the legislature, but rather constitutes a limitation upon the powers of that body....we do not look to the Constitution to determine whether the legislature is authorized to do an act, but only to see if it is prohibited.  In other words, unless restrained by constitutional provision, the legislature is vested with the whole of the legislative power of the state. (Macmillan Co. v. Clarke, 184 Cal. 491 [194 P. 1030, 17 A.L.R. 288]; Mitchell v. Winnek, 117 Cal. 520, 525 [49 P. 579]; Jensen v. McCullough, 94 Cal.App. 382, 394 [271 P. 568]; People v. Rinner, 52 Cal.App. 747, 749 [199 P. 1066].)
Fitts v. Superior Court, 6 Cal.2d 230
[L. A. No. 15256. In Bank. April 30, 1936.]               
       
...the fact that our Constitution is not a grant of power but rather a limitation or restriction upon the powers of the Legislature (In re Madera Irr. Dist., 92 Cal. 296 [28 P. 272, 675, 29 Am.St.Rep. 106, 14 L.R.A. 755]; Macmillan Co. v. Clarke, 184 Cal. 491 [194 P. 1030, 17 A.L.R. 288]; People ex rel. Smith v. Judge of the Twelfth District, 17 Cal. 547; Sheehan v. Scott, 145 Cal. 684 [79 P. 350]; Fitts v. Superior Court, 6 Cal.2d 230 [57 P.2d 510]; Mitchell v. Winnek, 117 Cal. 520 [49 P. 579]) and "that we do not look to the Constitution to determine whether the Legislature is authorized to do an act, but only to see if it is prohibited." (Fitts v. Superior Court, supra.)

Such restrictions and limitations are to be construed strictly, and are not to be extended to include matters not covered by the language used.
Collins v. Riley, 24 Cal.2d 912
[S. F. No. 17019. In Bank. Oct. 2, 1944.]

...unlike the federal Constitution, "[t]he Constitution of this State is not to be considered as a grant of power, but rather as a restriction upon the powers of the Legislature; and that it is competent for the Legislature to exercise all powers not forbidden by the Constitution of the State, or delegated to the [federal] government, or prohibited by the Constitution of the United States." (People v. Coleman (1854) 4 Cal. 46, 49; see, e.g., Sheehan v. Scott (1905) 145 Cal. 684, 686-687 [79 P. 350]; Collins v. Riley (1944) 24 Cal.2d 912, 915-916 [152 P.2d 169]; Dean v. Kuchel (1951) 37 Cal.2d 97, 100 [230 P.2d 811].)
City and County of San Francisco v. Workers' Comp. Appeals Bd., 22 Cal.3d 103
[S.F. No. 23338. Supreme Court of California. September 13, 1978.]

            Got it?   The document RESTRICTS what California government employee are permitted to do.   Simple!   The employees swear an oath not to act contrary to what’s written in the document.  Doing so violates their oath and what they do is void.   Acting beyond what the document permits is trespassing.   No act is “official” absent constitutional authorization.  Given the Constitution for California government is a restriction on the power of the employees, they trespass when they exercise power the document restricts.

            The document, at Article 1, Section 1, informs the people for whom government was created, what rights are protected and secured by the document and by extension the employees who wanted to work subject to the restrictions the document provides.   Again, when the employees exercise power restricted by the Constitution, they trespass.   Article 1, Section 1, is a RESTRICTION on the employees of government.   The section, in acknowledging what the People have, RESTRICTS what the employees are permitted to do in relation to those acknowledged rights.   Those rights are sacrosanct.   They can not be denied absent due process of law or voluntary forfeiture or waiver by the people.  

            There’s a distinction between power and right.   The employees of government have power, but they suspend their RIGHT to act by swearing an oath to be restricted in their conduct while on the people’s clock.   That document is the crib those babies work in.   The babies don’t get to come out of the crib as long as they remain employed.  They can only do what the does not prohibit or restrict.

            This is how IMPLIED RESTRICTION works. 

            The people who wrote the Constitution identified their unalienable or inalienable rights in that document.   By doing so they notified the reader what’s OFF LIMITS to the employees.   The employees are PROHIBITED by the document, their employment contract, and oath of office, and BOND, to not deny, disparage nor otherwise prejudice the rights specified in the document and the ones reserved (Art. 1, Sec. 21), by the people which are likewise protected from disparagement or denial by the employees.

            What’s IMPLIED by what’s SPECIFIED and ACKNOWLEDGED, is the PROHIBITION of diminishment or denial by the employees of the specified acknowledged rights.   By saying the rights, they’re also saying to the employees they can’t deny or prejudice or disparage those rights.

            The people in government work for someone.   They wanted to work for someone, so who do they work for?   Who is the Boss?   Who is responsible for managing them?  

            Let’s have a look at another section in the Constitution, Article 1, Section 2:

All political power is inherent in the people.  Government is instituted for the protection, security and benefit of the people;
and they have the right to alter or reform the same, whenever the public good may require it
.


            That should settle that.   The government, which is a company, was made for the people who made it.   They designed it to do something FOR, not TO, them.   The employee do what they do FOR the people, who are the employer, not TO the employer.  

            The employees have power to make INTERNAL rules or procedures for the efficient management of the company.   Those internal rules or procedures do not, nor could they apply, to the employer.    

            The people who created or made the government building complex and hired the employees, granted their permission for the employees to act on their behalf, or represent them.   This forms the basis of the legal principle RULE OF AGENCY, or simply, AGENCY. 

            Back in the olden days, there were these servants of castle owners who were identified by the word:  FACTOR.   A “factor” was the AGENT of the castle owner who acted in the place of the castle owner.   See the movie “Rob Roy” with Liam Neeson.   John Hurt played the role of a castle owner.   In the hierarchy scheme where there’s a daisy chain of ass sniffing dogs in line sniffing asses of the ones in front of them, he was identified by the word Marquis.   This was a term that represented his ass didn’t stink as bad as one identified by the word “vassal” or “serf” which were well behind him in the ass sniffing chain.  

            He somehow acquired a status within the custom practiced by the participants, that required someone to help him with his chores, because he couldn’t do everything that needed to be done by himself on the property he stole and the people he extorted to do what he didn’t want to do.   The various participants in that scheme were “globalists”.   They weren’t content with what they had so they set about exerting control over everyone and everything to satisfy some urge.   They murdered and stole and convinced themselves they were ordained to do so in the name of some invisible being they claimed said authorized them to act in the invisible being’s stead using murder and extortion to do it.   People fell for this shit, no doubt due to the threat of murder, the threat being extortion.   






CHARTER, n.  An instrument emanating from tbe sovereign power, in the nature of a grant, either to the whole nation, or to a class or portion of tile people, or to a colony or dependency, and assuring to them certain rights, liberties, or powers. Such was tbe "Great Charter" or "MalJ'lta Oharta, " and
such also were the charters granted to certain of the English colonies in America. See Story. Const. ~ 161.

An act of the legislative department of government, creating a corporation, is called the "charter" of the corporation.  In old English law.  The term denoted a deed or other written instrument under seal & conveyance, covenant, or contract.

CLUB
. A Voluntary, unincorporated association of persons for purposes of a social, literary, or political nature, or the like. A club is not a partnership. 2 Mees. & W.172.


The word "club" has no very definite meaning. Clubs are formed for all sorts of purposes, and there is no uniformity in their constitutions and rules.   It is well known that clubs exist which limit the number ot the members and select them with great care, which own considerable property in common, and in which the furnishing of tood and drink to the members for money is but one of many conveniences whioh the members enjoy. 137 Mass. 567.

 
CONSTITUTION.  In public law.  The organic and fundamental law of a nation or state. which may be written or unwritten, establishing the character and conception or its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating,
distributing, and limiting the functions of its diferent departmcnts, and prescribing the extent and manner of the exercise of sovereign powers.

In American law.  The written instrument agreed upon by the people of the Union or of a particular state, as the absolute rule of action and decision for aIl departments and officers of the government in respect to all the points covered by it, which must control until it shall be cbanged by the authority which established it, and in opposition to which any act or ordinance of any such department or officer is null and void. Cooley. Const. Lim. 3.


CONTRACT.  An agreement, upon sufficient consideration, to do or not to do a particular thing. 2 RI. Com Ill. 442;  2 Kent, Comm.449.

A covenant or agreement between two or more persons, with a lawful consideration or cause.  Jacob.

A deliberate engagement between com .. petent parties, upon a legal consideration, to do, or abstain from doing, some act. Wharton.


COVENANT.  In practice.  The name of a common-law form of action ex contractu, which lies for the recovery of damages for breach of a covenant, or contract under seal.

In the law of contracts. An agreement, convention, or promise of two or more parties, by deed in writing, signed, sealed, and deIivered, by which neither of the parties pledges himself to the other that something is either done or shall be done, or stipulates for the truth of certain facts

An agreement between two or more parties, reduced to writing and executed by a sealing and delivery thereof. whereby some of the parties named therein engage, or one of them engages, with the other, or others, or some of them, therein also named. that some act hath or hath not already been done, or for the performance or non-performance of some specified duty.  4 Whart. 71.
Black's Law Dictionary, 1st Edition

            There's a contract for the company, that being the charter, and there's a contract that exists between the company and the employee.  The employees are prohibited from violating, or acting contrary to their employement contract and the corporate charter.  The employment contract requires the employee to comply with the charter.   Failure to comply invalidates their conduct.





Protections Secured by the State Constitution are Superior to their federal counter parts.

Although recognizing the authority of this court to construe the California Constitution to provide protection beyond that afforded by parallel provisions of the federal document, we nevertheless find the reasoning of Crews persuasive and consistent with past California decisions; we therefore adopt Crews as defining the rights of the parties under the California Constitution.
People v. Teresinski, 30 Cal.3d 822
[Crim. No. 20497. Supreme Court of California. February 18, 1982.]
 
People v. Rivera (1981) 127 Cal.App.3d 136
People v. Pettingill, 21 Cal.3d 231
People v. Hannon, 19 Cal.3d 588
Serrano v. Priest, 18 Cal.3d 728   
People v. Disbrow, (1976) 16 Cal.3d 101
People v. Teresinski (1982) 30 Cal.3d 822
Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252
People v. Brisendine (1975) 13 Cal.3d 528
WILCHER v WILMINGTON (1998) No. 96-7276, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
People v. Bustamante (1981) 30 Cal.3d 88



People v. Rivera (1981) 127 Cal.App.3d 136
[Crim. No. 13082. Court of Appeals of California, Fourth Appellate District, Division One. December 24, 1981.]

THE PEOPLE, Plaintiff and Respondent, v. RICHARD RAUL RIVERA, Defendant and Appellant.

(Opinion by Work, J., with Brown (Gerald), P. J., and Cologne, J., concurring.) [127 Cal.App.3d 137]

COUNSEL

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Charles M. Sevilla, Chief Deputy State Public Defender, for Defendant and Appellant.

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, Steven H. Ziegen and Jesus Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent. [127 Cal.App.3d 139]

OPINION

WORK, J.

Richard Paul Rivera was convicted of first degree burglary (Pen. Code, 459) fn. 1 and assault with intent to commit murder ( 217), the latter being accompanied by three enhancing allegations. He challenges the convictions on multiple grounds including impermissibly vindictive prosecution, prejudicial denial of a continuance to conduct a lineup, prejudicially admitting his postarrest statement taken in violation of Miranda, and instructional error regarding malice. We conclude the relevant facts show the addition of the count alleging assault with the intent to commit murder after Rivera rejected the prosecutor's second plea bargain offer was not impermissibly vindictive and did not violate due process of law as guaranteed under either the United States or California Constitutions. We also find Rivera's remaining contentions to be meritless and affirm.

Factual Background

When Julie Rogers returned to her apartment on August 30, 1980, at about 11 p.m., she noticed an apartment window open with the screen missing. She then heard noises from inside as if someone hurried to a window, opened it, and jumped outside causing a crashing sound. She found no one inside, but the place had been ransacked, her jewelry, coins and a camera being taken.

Meanwhile, James Miller, walking near the apartment building, heard a loud noise and saw a man jump a fence of the apartment building and walk toward him. When approximately 20 to 30 feet from Miller the man turned and walked toward some parked cars. Simultaneously, John Nudek, Miss Rogers' neighbor, heard the loud noise; instructed his wife to call the police; and went outside where he saw Miller who directed him to where the intruder had gone. Nudek approached Rivera, asking him what he was doing and was told he was waiting for his girl friend who lived close by. Nudek asked where she lived and Rivera pointed to a nearby building, following which Rivera said "get away from me old man," and proceeded to walk toward an alley. Nudek followed him into the alley, a struggle ensued and Rivera then fled, leaving behind Nudek who had been stabbed in the chest.

As Officer Newberry arrived on the scene, he saw a man running diagonally across Utah Street past him. He watched him closely and then [127 Cal.App.3d 140] continued to Nudek's location. When he arrived the assailant was described as: 5 foot 7, about 165 pounds, of Mexican ancestry, scraggly facial hairs, white T-shirt, moustache, and as wearing dark trousers, a white tank top, black woven sandals, and a scraggly beard. Realizing the person he saw run past him matched this description, Newberry searched for him, later finding Rivera crouched beneath a bush. When apprehended Rivera was wearing no shirt; his face was red and flushed; and he was sweating profusely. The officer recognized him as the same person he had seen earlier and, after searching the bushes, he found a wet, white tank top T-shirt smelling of perspiration. He placed it over Rivera's head and transported him back to Idaho Street where both Nudek and Miller positively identified him as the assailant.

Nudek, a 63-year-old man, suffered multiple stab wounds to the chest, upper abdomen, groin, and hip. Two chest wounds penetrated the lung cavities, collapsing his lungs and later causing pneumonia. If the wounds had not been treated promptly, Nudek's life would have been endangered.

Procedural History

Rivera was originally charged only with assault with a deadly weapon and burglary ( 245, subd. (a), and 459). He was offered a plea to the assault without any special allegation. At the preliminary hearing on September 19, 1980, he unsuccessfully moved to relieve his attorney for failure to request a pretrial lineup. His counsel then moved for a continuance in order to schedule a lineup, which was denied as untimely. He was bound over on both charges and arraigned on the information to which he pleaded not guilty. Two days before the readiness conference, Rivera was told the prosecution intended to file an amended information charging more serious crimes and enhancing allegations. At the conference, he was offered a plea to section 245, subdivision (a), with a section 12022.7 allegation, shown a copy of the amended information and told that after the conference the People would require a plea to the amended information. Rivera rejected the offer. True to his word, the prosecutor then filed the amended information charging Rivera in count one with burglary committed within an inhabited building in the nighttime; with personally using a knife during the burglary ( 12022, subd. (b)) and inflicting great bodily injury upon the victim ( 12022.7 and 1203.075, subd. (a)(6)). In count two, he was charged with assault with intent to commit murder ( 217), while using a knife ( 12022.7), and inflicting great bodily injury within the meaning of [127 Cal.App.3d 141] section 1203.075, subdivision (a)(6) on a person 60 years of age or older ( 1203.09, subd. (a)). In count three, he was charged with assault with a deadly weapon ( 245, subd. (a)), while inflicting great bodily injury within the meaning of section 12022.7. Before trial, the special allegations in count one were stricken, as was the section 1203.075, subdivision (a)(6) allegation in count two. Count three was also dismissed.

Rivera's section 995 challenge to the amended information as retaliatory for persisting in requesting a lineup and punitive for insisting on his right to a jury trial, and because he was refused a prepreliminary hearing lineup, was denied.

Rivera's Due Process Rights Were Not Violated During Plea Bargaining

[1] Rivera first contends adding the count alleging assault with intent to commit murder after he refused to accept the prosecutor's second plea bargain offer was impermissibly vindicative and violated due process of law guaranteed under the United States (Fifth Amend.) and California (art. I, 7 and 15) Constitutions requiring his conviction be reduced to the offense originally charged, assault with a deadly weapon.

It is undisputed Rivera was originally charged by complaint and in the original information with one count of assault with a deadly weapon with a single enhancement and one count of burglary. Before the preliminary hearing, Rivera was first offered a plea to the assault without any special allegations. He refused. At the readiness conference, Rivera received a second, less lenient, offer of a plea to the assault, now accompanied by an enhancement for intentionally inflicting great bodily injury. He was also shown a copy of the amended information and told the offer would be withdrawn if rejected. Rivera declined the offer and the amended information was filed.

The United States Supreme Court in Bordenkircher v. Hayes (1978) 434 U.S. 357 [54 L.Ed.2d 604, 98 S.Ct. 663], addressed this precise issue. There, the prosecutor offered to recommend a five-year sentence if Hayes pleaded guilty to forgery. He further told Hayes if he did not plead guilty and "gave the court the inconvenience and necessity of a trial," then he would seek reindictment under the state's recidivist statute, subjecting him to a mandatory sentence of life imprisonment [127 Cal.App.3d 142] because of two prior felony convictions. Hayes chose to stand trial and the prosecutor carried out his threat. Hayes was convicted and sentenced accordingly. The Supreme Court first carefully defined the issue in dispute by stating: "While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do so was clearly expressed at the outset of the plea negotiations. Hayes was thus fully informed of the true terms of the offer when he made his decision to plead not guilty. This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant's insistence on pleading not guilty. [Fn. omitted.] As a practical matter, in short, this case would be no different if the grand jury had indicted Hayes as a recidivist from the outset, and the prosecutor had offered to drop the charge as part of the plea bargain." (Bordenkircher v. Hayes, supra, 434 U.S. 357, 360 [54 L.Ed.2d 604, 608].) The court found no due process violation, recognized the plea bargaining process as an important component of the criminal justice system (id at p. 362 [54 L.Ed.2d at p. 609]), and reasoned there is no element of punishment or retaliation in the "give-and-take" of plea bargaining so long as the accused is free to accept or reject the prosecutor's offer (id at p. 363 [54 L.Ed.2d at p. 610]). The court further explained: "While confronting a defendant with the risk of more severe punishment clearly may have a 'discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable'--and permissible--'attribute of any legitimate system which tolerates and encourages the negotiations of pleas.' Chaffin v. Stynchcombe, supra, [412 U.S.,] at 31. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forego his right to plead not guilty." (Bordenkircher v. Hayes, supra, 434 U.S. 357, 364 [54 L.Ed.2d 604, 611].)

Bordenkircher binds us on this issue as it relates to the federal Constitution. (Chesapeake & Ohio Ry. v. Martin (1931) 283 U.S. 209, 220-222 [75 L.Ed. 983, 990, 51 S.Ct. 453, 458; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, 673, pp. 4586-4587.) Here the threat of filing the amended complaint was made during plea negotiations, while Rivera was represented by counsel. He fully understood the amended information would be filed if he did not accept the pending offer. Rivera was as free to accept or reject the offer as if the filed information [127 Cal.App.3d 143] already contained the additional charge and allegations, and the prosecutor had offered to drop them as part of a plea bargain.

Rivera's reliance on United States v. Currie (9th Cir. 1981) 653 F.2d 1300, is misplaced. There, Currie was originally charged with a misdemeanor and notified the prosecution approximately three weeks before trial, of his intent to stand trial. The prosecutor later informed defense counsel he intended to seek an indictment charging Currie with a felony, under the same statute, thereby increasing the maximum possible sentence tenfold. Currie was given one week to plead guilty to the misdemeanor in exchange for the prosecution's abandonment of its intent to indict him. He refused and was indicted, but successfully moved to dismiss the indictment on the ground of vindictive prosecution. The Ninth Circuit affirmed, factually distinguishing Bordenkircher as follows: (1) there were no plea negotiations before Currie's interposition of his not guilty plea; (2) "no offer was made --rather the prosecutor presented a fait accompli after the fact of pleading;" (3) Currie apparently had no notice of the prosecutor's intent until after he decided to stand trial on the misdemeanor charge and had communicated that intent to the prosecutor; and (4) it was unnecessary to prove additional facts to support the superseding charge. (United States v. Currie, supra, 653 F.2d 1300, 1302.)

Currie is grossly distinguishable from Rivera's scenario. In the former, the prosecutor's retaliatory ultimatum in response to the defendant's decision to go to trial, was not within a factual setting characterized by either plea negotiations or the aura of fair bargaining. However, here the threat of filing an amended information emerged as a "bargaining chip" during plea negotiations after Rivera had rejected the prosecutor's previous offer. Unlike Currie, Rivera had adequate notice of the prosecutor's intent. Finally, although the additional charge of assault with the intent to commit murder involved only the necessity of proving additional elements and not facts, the enhancing allegations, however, required the proof of additional facts. fn. 2 [127 Cal.App.3d 144]

We independently review this matter under the California Constitution under our authority to construe provisions of the California Constitution which may provide greater protections for our citizenry than textually parallel provisions of the federal Constitution. (People v. Pettingill (1978) 21 Cal.3d 231, 247 [145 Cal.Rptr. 861, 578 P.2d 108]; People v. Hannon (1977) 19 Cal.3d 588, 606-607, fn. 8 [138 Cal.Rptr. 885, 564 P.2d 1203];Serrano v. Priest (1978) 18 Cal.3d 728, 764 [135 Cal.Rptr. 345, 557 P.2d 929]; People v. Disbrow (1976) 16 Cal.3d 101, 114-115 [127 Cal.Rptr. 360, 545 P.2d 272].) For, our Constitution "is, and always has been, a document of independent force. Any other result would contradict not only the most fundamental principles of federalism but also the historic bases of state charters." (People v. Brisendine (1975) 13 Cal.3d 528, 549-550 [119 Cal.Rptr. 315, 531 P.2d 1099].) Indeed, article I, section 24, of the California Constitution provides: "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution."

Rivera offers no California precedent construing the state Constitution which rationalizes or mandates a result different than Bordenkircher v. Hayes, supra, 434 U.S. 357, perhaps because the principles underlying state law regarding plea bargaining and vindictive prosecution derive from United States Supreme Court precedent. Nevertheless, for the reasons which follow, we conclude Rivera was not denied due process under the California Constitution.

Plea bargaining is an accepted and established practice within this state, indispensable to the efficient administration of criminal justice. (People v. West (1970) 3 Cal.3d 595, 604 [91 Cal.Rptr. 385, 477 P.2d 409]; In re Lewallen (1979) 23 Cal.3d 274, 280 [152 Cal.Rptr. 528, 590 P.2d 383, 100 A.L.R.3d 823]; 1192.1-1192.5.) Pragmatically, "[o]ur present system of criminal justice cannot realistically provide each defendant with his day in court." (Bechefsky & Katkov, Plea Bargaining: An Essential Component of Criminal Justice (1977) 52 State Bar J. 214, 217.) This realism is expressed by Justice Stewart inBordenkircher v. Hayes, supra, 434 U.S. 357, 363 [54 L.Ed.2d 604, 610] where he states "the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty." fn. 3 [127 Cal.App.3d 145]

Critics of Bordenkircher stress its apparent departure from the principles announced in North Carolina v. Pearce (1969) 395 U.S. 711 [23 L.Ed.2d 56, 89 S.Ct. 2072], andBlackledge v. Perry (1974) 417 U.S. 21 [40 L.Ed.2d 628, 94 S.Ct. 2098]. (See e.g. Comment (1979) 2 Crim. Justice J. 401.) In Pearce, after the defendant appealed his conviction, obtained a reversal, was retried and again convicted, and sentenced more severely, the Supreme Court held that due process prohibits vindictiveness in resentencing, reasoning that the apprehension of such vindictiveness may unconstitutionally deter the exercise of one's right to appeal or collaterally attack his first conviction. Thus, due process mandates a defendant not be shackled with fear of retaliation by the sentencing judge. (North Carolina v. Pearce, supra, 395 U.S. 711, 723-725 [23 L.Ed.2d 656, 668-669, 89 S.Ct. 2072, 2080].) This concept was extended in Blackledge where a defendant convicted in a state court on a misdemeanor assault charge sought his statutory right to trial de novo on appeal. The prosecutor responded by securing a felony assault indictment based upon the same conduct. The Supreme Court held the prosecutor's unexplained "upping the ante" violated due process, even in the absence of any evidence the prosecutor acted in bad faith or maliciously. (Blackledge v. Perry, supra, 417 U.S. 21, 27-29 [40 L.Ed.2d 628, 634-635, 94 S.Ct. 2098, 2102].)

This critical reliance upon Pearce and Blackledge is misplaced. Our criminal justice system is characterized by continual compromise between the efficiency of our prosecutorial and judicial resources and maximum due process. The disputed prosecutorial conduct here, as in Bordenkircher, does not offend due process because it is consistent with the governmental interest of promoting efficient administration of criminal justice by expediting resolution of pending criminal matters, lessening the burden upon our prosecutorial and judicial resources and by furthering the economic allocation of these finite resources. It emerges from a fair bargaining setting where defendant, guided by counsel, is fully aware of the facts underlying the charges and apprised of his procedural alternatives. Balancing the pertinent considerations, defendant may freely, voluntarily, and intelligently decide whether to go to trial and exercise his accompanying rights, or to waive them within the framework of a plea bargain. Conversely, the appellate, [127 Cal.App.3d 146] postconviction posture of Pearce and Blackledge lacks this negotiable setting; for, objectively, there exists no valuable consideration the prosecution can offer defendant in exchange for his appellate rights. Granted there exists a parallel state interest in lessening the burden upon our prosecutorial (Blackledge v. Perry, supra, 417 U.S. 21, 26-27 [40 L.Ed.2d 628, 633-634, 94 S.Ct. 2098, 2102]) and judicial resources; however, this latter interest, standing alone, is insufficient to preserve erroneous judgments in which the state has no cognizable interest (People v. Henderson (1963) 60 Cal.2d 482, 497 [35 Cal.Rptr. 77, 386 P.2d 677]). Moreover, the burdens upon the prosecutorial machinery and judicial system arising from the appellate process is substantially less than those generated by the trial process. Finally, the right to appeal is vital to the integrity of our criminal justice system and the foreclosure of meritorious appellate review offends our basic notions of justice and due process of law.

Bordenkircher has also been faulted for its apparent divergence with the holding ofUnited States v. Jackson (1968) 390 U.S. 570 [20 L.Ed.2d 138, 88 S.Ct. 1209]. (See e.g. Rubin, The Resurrection of the Right-Privilege Distinction? A Critical Look At Maher v. Roe and Bordenkircher v. Hayes (1979) 7 Hastings Const.L.Q. 165, 196-197.) In Jackson, the court reviewed a provision of the Federal Kidnaping Act making the crime punishable by death if the jury so recommended. However, it provided no death penalty for defendants waiving their right to jury trial or pleading guilty. The Supreme Court rejected the government's attempt to rationalize the act's inevitable effect of discouraging assertion of the Fifth Amendment right not to plead guilty and deterring the exercise of the Sixth Amendment right to a jury trial as a proper trade-off to avoid the more drastic alternative of mandatory capital punishment in every case, thus, overall, mitigating the severity of punishment. (United States v. Jackson, supra, 390 U.S. 570, 586 [20 L.Ed.2d 138, 149, 88 S.Ct. 1209, 1219].) Declaring these objectives "cannot be pursued by means that needlessly chill the exercise of basic constitutional rights" (ibid), the court stated: "The question is not whether the chilling effect is 'incidental' rather than intentional; the question is whether that effect is unnecessary and therefore excessive. In this case the answer to that question is clear. The Congress can of course mitigate the severity of capital punishment. The goal of limiting the death penalty to cases in which a jury recommends it is an entirely legitimate one. But that goal can be achieved without penalizing those defendants who plead not guilty and demand jury trial. In some States, for example, the choice between life imprisonment and capital punishment [127 Cal.App.3d 147] is left to a jury in every case--regardless of how the defendant's guilt has been determined. Given the availability of this and other alternatives, it is clear that the selective death penalty provision of the Federal Kidnaping Act cannot be justified by its ostensible purpose. Whatever the power of Congress to impose a death penalty for violation of the Federal Kidnaping Act, Congress cannot impose such a penalty in a manner that needlessly penalizes the assertion of a constitutional right. See Griffin v. California, 380 U.S. 609.

"It is no answer to urge, as does the Government, that federal trial judges may be relied upon to reject coerced pleas of guilty and involuntary waivers of jury trial. For the evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them. A procedure need not be inherently coercive in order that it be held to impose an impermissible burden upon the assertion of a constitutional right." (Id, 390 U.S. at pp. 582-583 [20 L.Ed.2d at pp. 147-148, 88 S.Ct. at pp. 1216-1217], italics added, fns. omitted.)

However, the Jackson rationale is to be distinguished from Bordenkircher in that within the latter, the constitutional chill attributable to plea bargaining is deemed minimal when weighed against the need to promote the smooth and efficient operation of our criminal justice system and thus guarantee the administration of justice. Bordenkircher is impliedly premised upon the reality that there does not exist a practical and reasonable alternative to plea bargaining.

In his dissent in Bordenkircher v. Hayes, supra, 434 U.S. 357 at page 368 [54 L.Ed.2d 604 at page 614], Justice Blackmun concludes: "It might be argued that it really makes little difference how this case, now that it is here, is decided. The Court's holding gives plea bargaining full sway despite vindictiveness. A contrary result, however, merely would prompt the aggressive prosecutor to bring the greater charge initially in every case, and only thereafter to bargain. The consequences to the accused would still be adverse, for then he would bargain against a greater charge, face the likelihood of increased bail, and run the risk that the court would be less inclined to accept a bargained plea. Nonetheless, it is far preferable to hold the prosecution to the charge it was originally content to bring and to justify in the eyes of its public. (Fn. omitted.)" However, is it? We think not. Having adopted the plea bargaining process, it is inconsistent to prevent a prosecutor from [127 Cal.App.3d 148] employing his charging power as leverage to negotiate a plea bargain. fn. 4 Indeed, if a prosecutor was required to charge or threaten to charge, what he expected to obtain after trial, then there logically would exist no plea bargaining leverage. Absent such leverage, the only way to induce a plea would be for the prosecutor to accept terms at a level below what he considers appropriate for the ultimate disposition of the case, as he must start his negotiations at a level which he considers to be appropriate for the outcome. (Pizzi, Prosecutorial Discretion, Plea Bargaining and the Supreme Court's Opinion in Bordenkircher v. Hayes (1978) 6 Hastings Const. L.Q. 269, 290.) Such a requirement or result would "place prosecutors in an intolerable position. They would remain under administrative pressure to conserve state resources and to secure a high percentage of pleas, yet be instructed to charge in the 'best interests of the state' without thought of plea bargaining leverage." (Id, at p. 291.) It would breed a prosecutorial tendency to systematically overcharge, a practice Justice Blackmun agrees would inevitably adversely affect a defendant. (Bordenkircher v. Hayes, supra, 434 U.S. 357; cf. Talamantez v. Superior Court (1981) 122 Cal.App.3d 629, 639-640 [176 Cal.Rptr. 800].) Consequently, it would hinder the attainment of justice by undermining the fairness which makes plea bargaining a (somewhat) palatable process.

The Magistrate Did Not Abuse His Discretion in Denying Rivera a Continuance to Conduct a Lineup

[2] Due process mandates an accused be afforded a pretrial lineup where appropriate and upon timely request. However, this right arises "only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve." (Evans v. Superior Court (1974) 11 Cal.3d 617, 625 [114 Cal.Rptr. 121, 522 P.2d 681].) Moreover, the determination of whether eyewitness identification constitutes a material issue and whether fundamental fairness mandates a lineup within a particular case rests solely within the broad discretion of the trial judge or magistrate. (Id, at pp. 625, 627.) Finally, "the resolution here to be made is one which must be arrived at after consideration not only of the benefits to be derived by the accused and the reasonableness of his request [127 Cal.App.3d 149] but also after considering the burden to be imposed on the prosecution, the police, the court and the witnesses." (Id, at p. 625.)

Just before the preliminary hearing examination, Rivera moved to relieve his court-appointed counsel for failing to request a lineup. Upon court inquiry, counsel responded that he made no motion because any identification then made by the victim could arguably be a product of the showup at the scene of the crime. The motion was denied. Counsel then moved to continue to schedule such a lineup based upon Rivera's request. The court denied the motion as untimely and without basis. At the preliminary hearing, Nudek and Miller identified Rivera as the assailant.

Relying on a slight discrepancy in the weight aspect of Nudek's description and discrepancies regarding sandals and a full beard in Miller's description in the light of the 20- to 30-foot distance separating Miller and the assailant, Rivera urges the denial of the continuance deprived him of a reasonable opportunity to discover potentially exculpatory evidence to prepare his defense. However, there is no abuse of discretion. Rivera was positively identified by both Miller and Nudek at the showup at the scene of the crime and identified by Officer Newberry as the person running from the crime scene. Even granting the highly suggestive nature of a showup, the accuracy of Nudek's description compounded by the cumulative effect of the weaker description by Miller and the identification by Officer Newberry, substantially supports the magistrate's exercise of discretion in concluding there did not exist reasonable likelihood of a mistaken identification. fn. 5 Moreover, although Rivera had repeatedly sought his counsel to move for a lineup before the preliminary hearing, the motion when made was untimely. A continuance of the hearing would have inconvenienced the court, the prosecution and the witnesses who had been subpoenaed and were already present in court.

Rivera wrongly claims it was ineffective assistance of counsel to delay the motion until after telling the court why it had no merit. (See People v. Pope (1979) 23 Cal.3d 412 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) Defense counsel's decision not to seek a lineup was a tactic knowingly adopted with awareness of all relevant circumstances. In short, his conduct was consistent with that expected from a reasonably [127 Cal.App.3d 150] competent attorney acting as a diligent advocate, and did not result in the withdrawal of a potentially meritorious defense. (People v. Pope, supra, 23 Cal.3d 412, 425.)
Rivera's Postarrest Statement Was Properly Admitted in Evidence

[3] Rivera next asserts he was prejudiced by evidence he spontaneously stated he did not own the white T-shirt when it was placed on him immediately after arrest, and before admonition of his Miranda rights.

The circumstances were: after taking Rivera out of the bushes, Officer Newberry patted him down and handcuffed him. Newberry then searched the bushes, discovering a T-shirt which he placed on Rivera. At trial, Rivera testified the shirt was his and that he attempted merely to protest the wearing of the shirt when he uttered the word "no." Over objection, Newberry testified in rebuttal Rivera told him the shirt was not his and he did not want it on.

"[T]he privilege against self-incrimination of article I, section 15, of the California Constitution precludes use by the prosecution of any extrajudicial statement by the defendant, whether inculpatory or exculpatory, either as affirmative evidence or for purposes of impeachment, obtained during custodial interrogation in violation of the standards declared in Miranda and its California progeny." (People v. Disbrow, supra, 16 Cal.3d 101, 113 [127 Cal.Rptr. 360, 545 P.2d 272].) Of significance here, "the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301 [64 L.Ed.2d 297, 308, 100 S.Ct. 1682, 1689], fns. omitted.) fn. 6 [127 Cal.App.3d 151]

Rivera claims placing the shirt on him while he was handcuffed constituted the functional equivalent of interrogation, conduct Officer Newberry should have known was reasonably likely to elicit an incriminating response. In light of the cited, extremely broad language employed by the majority inRhode Island v. Innis, supra, 100 S.Ct. 1682, we are sympathetic to Rivera's claim; however, even assuming the claim is valid, it is not reasonably probable a result more favorable to Rivera would have been reached had the statement been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) On this record we are satisfied to a moral certainty that admitting the statement was harmless beyond a reasonable doubt (Chapman v. State of California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Ellers (1980) 108 Cal.App.3d 943, 952 [166 Cal.Rptr. 888]), considering the positive identifications of Nudek, Miller and Newberry. In reaching this conclusion, we have considered fully the ramifications of the admission of the statement, including its effect upon Rivera's credibility, the makeup of the court's instructions so as to include CALJIC Nos. 2.03 and 2.13 permitting the jury to infer consciousness of guilt, and the prosecutor's closing argument.

The Jury Was Properly Instructed on Malice

[4] Rivera contends the trial court's instructions on malice inadequately differentiate the crime of assault with intent to commit murder from assault with intent to commit manslaughter. More specifically, he argues the trial court's definition of express malice was no different than the definition of the intent requirement for manslaughter--the unexcused and unjustified specific intent to kill. fn. 7 Consequently, the jury may well have convicted him of assault with the intent to commit murder without finding malice. [127 Cal.App.3d 152] "The mens rea of the crime of an assault with intent to commit murder requires a specific intent to kill. No element of premeditation is required and hence the crime consists of an assault with an intent to commit either first or second degree murder .... [] [Essential to a conviction for this crime is] evidence disclos[ing] the existence of that state of mind amorphously described as 'malice' which would be necessary to convict a defendant of murder in a case in which the victim dies." (People v. Otis (1980) 111 Cal.App.3d 467, 471-472 [168 Cal.Rptr. 708].) The malice required is express, not implied. (People v. Collie (1981) 30 Cal.3d 43, 61 [177 Cal.Rptr. 458, 634 P.2d 534]; People v. Murtishaw (1981) 29 Cal.3d 733, 764-765 [175 Cal.Rptr. 738, 631 P.2d 446].)

The trial court properly instructed on malice by giving defense counsel's modified version of CALJIC No. 8.11. fn. 8 Since the crime charged was assault with the intent to commit murder, the instruction correctly excised all references to express and implied malice, as well as the definition [127 Cal.App.3d 153] of implied malice, consistent withPeople v. Collie, supra, 30 Cal.3d 43, 61, andPeople v. Murtishaw, supra, 29 Cal.3d 733, 764-765. Further, the inclusion of the dictionary definition of "manifest," i.e., "[t]o show or demonstrate plainly," was entirely appropriate and helpful, translating the term into layman's language. (See the American Heritage Dict. of the English Language (new college ed. 1979) p. 794, col. 1.)

The difficulty of "formulating an inclusive or comprehensive definition of the malice aforethought which distinguishes murder from manslaughter" has been judicially recognized. (People v. Gorshen (1959) 51 Cal.2d 716, 730, fn. 11 [336 P.2d 492], disapproved on other grounds in People v. Wetmore (1978) 22 Cal.3d 318, 324 [149 Cal.Rptr. 265, 583 P.2d 1308].) However, the malice instruction here read in its entirety thoroughly states the law pertinent to malice in view of the evidence presented. Rivera's attack on the instruction by simply highlighting the statement that "[m]alice is shown when there is manifested an intent to unlawfully kill a human being" is too narrow; for, instructions must be read in their individual and contextual entirety. (People v. Rhodes (1971) 21 Cal.App.3d 10, 21 [98 Cal.Rptr. 249]; (People v. Wingo (1973) 34 Cal.App.3d 974, 979 [110 Cal.Rptr. 448], disapproved on other grounds in People v. Rist (1976) 16 Cal.3d 211, 221 [127 Cal.Rptr. 457, 545 P.2d 561].) "The crucial distinction between murder and manslaughter is that malice aforethought is an element of the former. ( 187, 192.)" (People v. Roberts (1975) 51 Cal.App.3d 125, 138 [123 Cal.Rptr. 893].) Here, the instruction properly defined both "malice" and "aforethought" (1 Witkin, Cal. Crimes (1963) 319-320, pp. 289-291), which together must be found in order to convict on the charged crime.

[5] A requested instruction by defendant must be given where evidence exists on that issue. (People v. Tidwell (1970) 3 Cal.3d 82, 86 [89 Cal.Rptr. 58, 473 P.2d 762]; People v. Stevenson (1978) 79 Cal.App.3d 976, 985 [145 Cal.Rptr. 301].) Here, the trial court properly refused the proffered instructions on voluntary manslaughter, because the evidence did not support any theory establishing voluntary manslaughter through the negation of express malice. Rivera presented no evidence relative to "heat of passion and provocation" or "imperfect self-defense." Further, such theory would have been inconsistent with his alibi defense. (People v. Sedeno (1974) 10 Cal.3d 703, 716 [112 Cal.Rptr. 1, 518 P.2d 913].) Moreover, although Rivera testified he had drunk some beer and taken two Quualudes that evening, it was apparent [127 Cal.App.3d 154] from his overall testimony that the alcohol and drugs had no effect upon his memory of the events, his judgment or mental state in order to warrant the giving of instructions pertaining to diminished capacity due to intoxication. The trial court expressly so found and we concur. Reviewing the factual record before us, we hold the trial court correctly charged the jury on malice.

The foregoing analysis disposes of Rivera's final contention the trial court erred by refusing to instruct on assault with intent to commit voluntary manslaughter as a lesser included offense of assault with intent to commit murder or whether the former crime exists. (Compare People v. Otis, supra, 111 Cal.App.3d 467, 473-476, with People v. Stevenson, supra, 79 Cal.App.3d 976, 987.) Having concluded the evidence does not support the giving of the manslaughter instructions, it necessarily follows the evidence does not support the proffered instruction.

Disposition

The judgment is affirmed.

Brown (Gerald), P. J., and Cologne, J., concurred.

―FN 1. All statutory references are to the Penal Code.

―FN 2. We note the United States Supreme Court recently granted certiorari inUnited States v. Goodwin (1981) 454 U.S. 1079 [70 L.Ed.2d 613, 102 S.Ct 632], vacating the opinion in 637 F.2d 250, after the circuit court had reversed a felony conviction for denial of due process where defendant was originally charged with various petty offenses and misdemeanors; plea negotiations were fruitless and defendant elected to proceed with a jury trial; the prosecutor never mentioned the possibility of seeking to have him indicted on a felony; and, upon transfer to district court for trial, the prosecutor sought and obtained a felony indictment.

―FN 3. A case comment onBordenkircher v. Hayes, supra, 434 U.S. 357, in volume 2 of the Criminal Justice Journal (1979) at page 406, notes "[a] prosecutor's quest for justice sometimes may be pushed aside by an enthusiasm for conviction." The comment suggests "a prosecutor must never lose sight of his responsibility" to seek justice, not merely to convict. (Ibid) However, at least under the circumstances here, as in Bordenkircher, a plea to the original charge was apparently consistent with the prosecutor's good faith, initial reaction to the punitive value of the criminal conduct in dispute and consistent with justice.

―FN 4. "The prosecutor should not bring or seek charges greater in number or degree than he can reasonably support with evidence at trial." (ABA, Standards Relating to the Prosecution Function and the Defense Function, "The Prosecution Function" (Approved Draft 1971) 3.9(e), p. 93.)

―FN 5. Unlike the defendant inEvans v. Superior Court, supra, 11 Cal.3d 617, Rivera was positively identified by Nudek and Miller at the showup.

―FN 6. The majority inRhode Island v. Innis, supra 446 U.S. 291 at pages 301-302, [64 L.Ed.2d 297 at page 308, 100 S.Ct. 1682 at pages 1689-1690], explained: "The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." (Fns. omitted.)

―FN 7. The court instructed in pertinent part: "The defendant is charged in Count 2 of the information with the commission of the crime of assault with the intent to commit murder, a violation of Penal Code Section 217. [] Every person who assaults another with the specific intent to commit murder is guilty of the crime of assault to commit murder. [] In order to prove the commission of the crime, each of the following elements must be proved: One, that a person was assaulted; [] Two, that the assault was made with the specific intent to murder such person; [] And three, that the assailant harbored malice aforethought toward the person attacked. [] An assault is an unlawful attempt coupled with the present ability to apply physical force upon the person of another. In order to prove assault, each of the following elements must be proved: That an attempt was made to apply physical force on the person of another; [] Two, that such an attempt was unlawful; [] And three that at the time of such attempt, the person who made the attempt had the present ability to apply such physical force. [] To constitute an assault, it is not necessary that any actual injury be inflicted; however, if an injury is inflicted, it may be considered in connection with other evidence in determining whether the assault was committed, and if so, the nature of that assault. [] The intent to murder is the intent to unlawfully kill a human being with malice aforethought. Malice is shown when there is manifested an intent to unlawfully kill a human being. [] To manifest means to show or demonstrate plainly. [] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person to be killed. [] Aforethought does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act." (Italics added.)

―FN 8. Rivera apparently requested the given instruction on malice. However, we decline to apply the doctrine of invited error in order to avoid review of this issue, because (1) we can find no error (infra), and (2) he further requested a series of instructions pertaining to manslaughter.

CALJIC No. 8.11 (1979 rev.) provides: "'Malice' may be either express or implied. [] [Malice is express when there is manifested an intent unlawfully to kill a human being.] [] [Malice is implied [when the killing results from an act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life by which is meant an awareness of a duty imposed by law not to commit such acts followed by the commission of the forbidden act despite that awareness] [or] [when the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life].] [] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. [] 'Aforethought' does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act."

~~~~~~~~~~~~~~~~

People v. Pettingill, 21 Cal.3d 231
[Crim. No. 20077. Supreme Court of California. May 9, 1978.]

THE PEOPLE, Plaintiff and Respondent, v. FRANK JAY PETTINGILL, Defendant and Appellant

(Opinion by Mosk, J., with Bird, C. J., Tobriner, Manuel and Newman, JJ., concurring. Separate dissenting opinions by Clark, J., and Richardson, J.)

COUNSEL

Franklyn S. Michaelson, under appointment by the Supreme Court, and Hatch & Parent for Defendant and Appellant.

Roger S. Hanson, John M. Pitkin and Cherie A. Parker as Amici Curiae on behalf of Defendant and Appellant.

Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Robert F. Katz and Kent M. Bridwell, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MOSK, J.

Defendant was charged with four counts of burglary (Pen. Code, 459) and pleaded not guilty. Pursuant to Penal Code section 1538.5 he moved to suppress a confession he had made while in jail, together with certain physical evidence found in a search to which he had consented in the course of the confession. The motion was denied. Defendant then withdrew his original pleas and pleaded guilty to two counts of the information. On the People's motion the other two counts were dismissed in the interest of justice, and defendant was sentenced to state prison for the term prescribed by law. He appeals from the [21 Cal.3d 235] judgment, attacking only the denial of his motion to suppress. (Pen. Code, 1538.5, subd. (m).) In addressing that issue we may consider defendant's primary contention that the confession was obtained in violation of his privilege against self-incrimination. (People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 735 [125 Cal.Rptr. 798, 542 P.2d 1390].) fn. 1

About 10 p.m. on Saturday, February 7, 1976, Officer Berry of the Eureka Police Department arrested defendant and three companions at the scene of a burglary in that city. He placed defendant in handcuffs and advised him of his rights under Miranda v. Arizona (1966) 384 U.S. 436, 467-473 [16 L.Ed.2d 694, 719-723, 86 S.Ct. 1602, 10 A.L.R.3d 974]. fn. 2 Berry asked defendant if he understood these rights, and defendant replied that he did. The officer then asked defendant if, "having these rights in mind," he wanted to talk to the police. Defendant refused to do so, and he was transported to the Eureka police station and booked.

The arrest of two of defendant's companions had taken place in a nearby parked car. Visible in that car were numerous items of personal property, including a pill bottle which the police promptly seized. From the label on the bottle the police learned the prescription had been issued to a person with a Santa Barbara address. The police became suspicious that much of the property in the car was stolen, and telephoned the Santa Barbara Police Department. Detective Rogers of that department undertook an investigation of the possible connection of defendant and his companions with four recent burglaries in Santa Barbara.

Meanwhile, some two hours after the arrest -- i.e., approximately midnight on February 7 -- Officer Berry renewed the interrogation of defendant at the Eureka police station. The officer readvised defendant of his Miranda rights and "asked him again if he wished to make a [21 Cal.3d 236] statement ...." Again defendant replied that he did not want to talk to the police, and he was transferred to the county jail.

On Monday, February 9, Detective Rogers of the Santa Barbara Police Department arrived in Eureka to pursue his investigation. The Eureka police turned over to Rogers the suspected stolen property, and advised him that defendant had twice refused to make a statement. Rogers then interrogated defendant's three companions in turn. Each was given the Miranda warnings, replied in the affirmative when asked to waive those rights, and confessed to participating in the Santa Barbara burglaries.

Finally, on Tuesday, February 10 -- i.e., three days after the arrest -- Detective Rogers initiated a third interrogation of defendant, despite knowledge that defendant had previously refused to discuss his criminal involvement. The questioning took place in the county jail. Rogers began by telling defendant that his three companions had confessed to committing the Santa Barbara burglaries; that one of his companions told the police that various items taken in those burglaries had been pawned by defendant in Los Angeles; that the Los Angeles Police Department investigated the lead and found that defendant had in fact pawned such items on five or six occasions; that he, Rogers, had also been informed that defendant had broken into a van and stolen some articles and then hidden them at a state beach; and that he had recovered the articles at the place described.

After reciting these facts Detective Rogers again read defendant his Miranda rights, established that he understood them, and asked if defendant wanted to talk to him. This time defendant replied, "I guess so, yeah." Taking this to be a valid waiver of defendant's privilege against self-incrimination, Rogers proceeded to question him about the four Santa Barbara burglaries. Defendant confessed to the crimes.

On cross-examination Detective Rogers conceded that defendant had previously done nothing to indicate a desire to talk to him. And when on direct examination defendant was asked why he had changed his mind about talking to the police on the occasion of the third interrogation, he explained: "I just wanted to get them off my back, and I figured the only way I could is to say something, and when the last officer talked to me, you know, for a pretty long time, I figured the only way I could was to go ahead and say something." [21 Cal.3d 237]

[1a] Defendant contends his confession was inadmissible because it was the product of custodial interrogation renewed by the police after he had twice indicated to them that he wished to remain silent. A long line of decisions of this court holds that the introduction of such a confession violates the privilege against self-incrimination of article I, section 15, of the California Constitution. fn. 3 That privilege, we have ruled, "precludes use by the prosecution of any extrajudicial statement by the defendant, whether inculpatory or exculpatory, either as affirmative evidence or for purposes of impeachment, obtained during custodial interrogation in violation of the standards declared in Miranda and its California progeny." (People v. Disbrow (1976) 16 Cal.3d 101, 113 [127 Cal.Rptr. 360, 545 P.2d 272].) We review first the relevant language of Miranda, then the holdings of its "California progeny" which have applied that language and made it an intrinsic part of the law of this state.

I

The Miranda decision was premised on the perception that interrogation of a suspect in police custody is inherently coercive. (384 U.S. at pp. 445-458 [16 L.Ed.2d at pp. 707-714].) To insure that any statement the suspect makes in that setting is a product of his free will, the United States Supreme Court held that the interrogation must be surrounded by certain essential procedural safeguards: before any questioning begins the police must give the suspect the now-familiar "Miranda warnings," advising him primarily of his right to remain silent and to have the assistance of counsel (fn. 2, ante); to be valid, any waiver thereof must be both knowing and intelligent; and the questioning must terminate if the suspect directly or indirectly invokes any of these rights. (Id., at pp. 467-479 [16 L.Ed.2d at pp. 719-727].)

On the latter point the Miranda court reasoned as follows: "Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free [21 Cal.3d 238] choice in producing a statement after the privilege has been once invoked." (Fn. omitted; id., at pp. 473-474 [16 L.Ed.2d at p. 723].)

Of course, because no warnings of any kind were given in Miranda, the decision did not actually adjudicate the precise issue now before us. That issue, which has often been presented to the courts since Miranda, typically arises from the following sequence of events: the police give the suspect the Miranda warnings and seek to question him, but he successfully invokes his right to remain silent; rather than promptly release or arraign him, however, the police continue to hold him in custody; thereafter the police again give him the Miranda warnings and renew the interrogation, and this time he confesses. There are variations on this theme: there may be more than two attempts at interrogation; the interval between interrogations may be long or short; at the start of the second or subsequent interrogation the police may or may not confront the suspect with additional evidence or statements of his accomplices; and the later questioning may be conducted by a different police officer, in a different location, and deal with a different crime. Nevertheless, in a long line of decisions this court has consistently held that a statement taken from the suspect in any of these circumstances is inadmissible because in violation of the principles of Miranda and the privilege against self-incrimination of the California Constitution.

The line began with People v. Fioritto (1968) 68 Cal.2d 714 [68 Cal.Rptr. 817, 441 P.2d 625]. There the defendant and two companions were arrested for burglary and taken to the police station. The police gave the defendant the Miranda warnings and asked him to sign a waiver of his rights. He refused. The police then confronted him with his two accomplices, who had previously confessed and implicated him. The police again gave the defendant the Miranda warnings and renewed their request that he sign the waiver. This time he did so, and confessed to the burglary.

We held that after a defendant has once demonstrated he does not wish to waive his privilege against self-incrimination, the police cannot lawfully subject him to a new round of interrogation even if they repeat the Miranda warnings: "By his refusal to waive his constitutional rights initially, defendant indicated that he intended to assert his rights -- the privilege had been once invoked -- and all further attempts at police interrogation should have ceased." (Id., at p. 719.) Because the confession was thus obtained in violation of the constitutional privilege, we held its admission in evidence to be prejudicial per se. (Id., at p. 720.) [21 Cal.3d 239]

The second case of this type was People v. Ireland (1969) 70 Cal.2d 522 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323]. There the defendant was arrested and given the Miranda warnings. He responded by saying, "Call my parents for my attorney." The arresting officers neither complied with this request nor communicated it to their superiors. At the police station the defendant was again advised of his Miranda rights. After he was booked another officer gave the Miranda warnings for the third time, and asked if the defendant was willing to talk to him. The defendant agreed, and confessed to murdering his wife.

After reversing the judgment of conviction on other grounds, we addressed the admissibility of the confession for the guidance of the court on retrial. We declared that "One of the primary 'protective devices' envisioned by Miranda is that requiring that custodial interrogation wholly cease when the suspect indicates in any manner that he wishes to exercise his Fifth Amendment privilege." (Id., at p. 535.) The defendant's request that his attorney be called, we reasoned, was such an indication. (Id., at p. 536.) And we rejected the People's argument that the confession was nevertheless "voluntary" because after making that request the defendant apparently sought to talk with the police about his family troubles: "as we also suggested in Fioritto, the teaching of Miranda does not permit us to characterize as 'voluntary' or 'spontaneous' any statements specifically obtained through custodial interrogative processes undertaken subsequent to a defendant's assertion of the privilege, for those are the very processes which must cease at that moment. As we indicated in Fioritto and have reiterated above, the cessation of custodial interrogative processes upon assertion of the privilege is one of the 'protective devices' which must be employed 'to dispel the compulsion inherent in custodial surroundings' (384 U.S. at p. 458 [16 L.Ed.2d at p. 714]), and any statement obtained without the use of that device is not admissible." (Id., at p. 537.)

In the following year we decided People v. Randall (1970) 1 Cal.3d 948 [83 Cal.Rptr. 658, 464 P.2d 114]. There the defendant was arrested, given the Miranda warnings, and taken to the police station. During the booking process the defendant was permitted to make two phone calls, and he chose to call an attorney. The police nevertheless questioned him several times that day and the next, prefacing each interrogation with a reiteration of his Miranda rights. Finally the defendant agreed to waive those rights, and confessed to the crime of grand theft. [21 Cal.3d 240]

Relying on Fioritto and Ireland, we reversed the conviction. We first reaffirmed that the "obligation on the police to entirely terminate custodial interrogation upon invocation of the Fifth Amendment privilege is one of the primary 'protective devices' fashioned by Miranda." (Fn. omitted; id., at p. 954.) We then held that the defendant's phone call to an attorney should be deemed an invocation of his privilege, as the People failed to sustain their burden of demonstrating the contrary. (Id., at pp. 955-958.) We rejected the People's claim that the confession was "voluntary" because preceded by renewed Miranda warnings and a waiver of the defendant's rights: "After the initial assertion of the privilege, the defendant is entitled to be free of police-initiated attempts to interrogate him. Any statements made by a defendant in response to such questioning cannot be characterized as voluntary. The record in this case is clear that the defendant made no efforts to communicate with the police after his conversation with the attorney and each session of questioning was resumed on the initiative of the arresting officers. It is just such police-initiated interrogation that Fioritto and Ireland hold cannot produce voluntary waivers of spontaneous statements." (Id., at p. 958.)

The fourth case of this sequence is People v. Burton (1971) 6 Cal.3d 375 [99 Cal.Rptr. 1, 491 P.2d 793]. There a juvenile was arrested and taken to the police station. He asked to see his father, who had arrived at the station during the booking process, but permission was denied. Thereafter the police carefully explained to the juvenile his Miranda rights; he waived them, and subsequently confessed to assault and murder.

The ensuing convictions were reversed. We reasoned that the juvenile's request to see his father should have been deemed an invocation of his privilege against self-incrimination and should have been respected even though made prior to the Miranda warnings. The failure of the police to terminate the interrogation at that time rendered the confession inadmissible "even though it was subsequently preceded by a knowing and intelligent waiver of the privilege, as we held under identical circumstances in Fioritto, Ireland and Randall, because: 'After the initial assertion of the privilege, the defendant is entitled to be free of police-initiated attempts to interrogate him. Any statements made by a defendant in response to such questioning cannot be characterized as voluntary.' (People v. Randall, supra, 1 Cal.3d 948, 958.)" (Id., at p. 384.)

There followed a series of four decisions in which we relied in varying contexts on Fioritto and its progeny for the proposition that once a [21 Cal.3d 241] suspect indicates he wishes to assert his privilege against self-incrimination, it is unlawful for the police to continue or renew the interrogation and any statement elicited thereafter is inadmissible. (People v. Carr (1972) 8 Cal.3d 287, 297 [104 Cal.Rptr. 705, 502 P.2d 513]; People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 412 [118 Cal.Rptr. 617, 530 P.2d 585]; People v. Superior Court (Zolnay) (1975) supra, 15 Cal.3d 729, 735-737; People v. Disbrow (1976) supra, 16 Cal.3d 101, 104-106.)

Finally, in People v. Enriquez (1977) 19 Cal.3d 221 [137 Cal.Rptr. 171, 561 P.2d 261], the defendant was arrested four hours after he was seen inflicting fatal stab wounds to the victim, and was subsequently interrogated in custody. The police gave him the Miranda warnings and asked if he wished to talk about the case. He replied in the affirmative, but immediately thereafter told each of his two interrogators that he wanted a lawyer present before discussing the matter further. Rather than honoring the request, however, the police pressed him not to assert this right. They gave him the Miranda warnings again, and this time he waived his right to counsel. The interrogation proceeded, and the defendant made inculpatory statements.

After reversing the judgment of conviction of manslaughter on other grounds, we addressed the admissibility of the statements for the guidance of the court on retrial. We cited Fioritto, Ireland, Randall, and Burton for the proposition that once a suspect indicates he wants an attorney, all interrogation must cease until an attorney is present. (Id., at p. 237.) We rejected the People's argument that even though the defendant had explicitly asked for a lawyer, his subsequent statements vere voluntary: we held rather that the statements were the product of continued police pressure to waive the right to counsel, emphasizing that "We noted in Fioritto that the Miranda prohibition was against 'continued questioning after an individual has once asserted his constitutional rights.'" (Id., at p. 238.) [2] The statements, we concluded accordingly, were inadmissible. fn. 4 [21 Cal.3d 242]

II

[1b] The People seek to distinguish the foregoing precedents on factual grounds, stressing primarily two aspects of the record before us: (1) the interrogation which produced the confession did not immediately follow defendant's assertion of his right to remain silent, but came three days later; and (2) that interrogation was conducted by an officer of a different law enforcement agency and dealt with crimes different from those for which defendant had been arrested and first questioned. The distinctions, however, are not relevant to the purposes sought to be served by Fioritto and its progeny.

As noted at the outset, the Miranda-Fioritto line of decisions is premised on the perception that "the setting of in-custody interrogation" of a suspect without counsel is inherently coercive. That setting, with its subtle pressures of unfamiliar surroundings, physical and psychological isolation, and police-dominated atmosphere, remains the same whether the suspect is in custody for three hours or three days. It is true that after refusing to talk to the police defendant herein did not undergo immediately renewed interrogation, as in Fioritto; but he was spared that form of coercion only to be subjected to another, less obvious but perhaps more insidious.

By the People's own calculations, over 61 hours elapsed between the second and third interrogations of defendant. Throughout that period he was continually in police custody, and had not been taken before a magistrate for arraignment and appointment of counsel. Contrary to the People's suggestion, such a delay is not psychologically beneficial or even neutral: the longer an individual is held incommunicado, the greater his incentive to confess so as to end his isolation from family, friends, or counsel. And if during that period -- as here -- the police not once but three times repeat the Miranda warnings and ask if the defendant wants to talk to them, the compulsion to make a statement in order to "get them off my back" may be well nigh irresistible. fn. 5

These realities are reflected in the constitutional and statutory provisions of California law which have long required that a person arrested for or charged with crime be taken before a magistrate "without unnecessary delay." If the arrest is pursuant to a warrant, "The defendant [21 Cal.3d 243] must in all cases be taken before the magistrate without unnecessary delay, and, in any event, within two days after his arrest, excluding Sundays and holidays ...." (Italics added.) (Pen. Code, 825.) If the arrest, as here, is without a warrant, "the person arrested, if not otherwise released, shall, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person shall be laid before such magistrate." (Italics added.) (Pen. Code, 849, subd. (a); see also id., 847.) And the Constitution itself declares (art. I, 14) that a person accused by felony complaint "shall be taken without unnecessary delay before a magistrate" who shall advise him of the charges against him and of his right to counsel. (See also Pen. Code, 859.) fn. 6

Over a decade ago we firmly condemned police violations of the letter and spirit of these laws in the case of People v. Powell (1967) 67 Cal.2d 32, 58-60 [59 Cal.Rptr. 817, 429 P.2d 137]. There the defendants were held in police custody for some three days prior to arraignment, during which time they were repeatedly questioned and made self-incriminating statements. We ruled the statements inadmissible because obtained in violation of the then-governing standards of custodial interrogation (Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758]; People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361]); to that extent, the cases are different. But our admonitions in Powell on the subject of unnecessary delay in arraignment remain pertinent today -- and in view of the police practices shown by the record herein, they bear repeating. That delay, we said, "'violates a fundamental right of the arrested person and is in disobedience of the law.' (People v. McDowell (1962) 204 Cal.App.2d 734, 736 [22 Cal.Rptr. 646].) We have characterized such conduct by the police as 'patently illegal,' and have rejected the argument that its illegality is somehow lessened by the fact that 'similar conduct is not unusual' or 'makes the work of the police and the district attorney easier.' (People v. Stroble (1951) 38 Cal.2d 615, 625 [226 P.2d 330], affd. 343 U.S. 181 [96 L.Ed. 872, 72 S.Ct. 599].) Indeed, we have further stressed that section 825 does not authorize even a two-day detention in all cases, 'but, instead, places a limit upon what may be considered a necessary delay, and a detention of less than two days, if unreasonable under the circumstances, is in violation of the statute.' (Dragna v. White (1955) 45 Cal.2d 469, 473 [289 P.2d 428].) [21 Cal.3d 244]

[4] "It is true that the federal rule of McNabb v. United States (1943) 318 U.S. 332 [87 L.Ed. 819, 63 S.Ct. 608], i.e., that any confession obtained during an illegal detention is ipso facto inadmissible, has not been adopted in California (Rogers v. Superior Court (1955) 46 Cal.2d 3, 10 [291 P.2d 929]), and that a violation of a defendant's right to be taken before a magistrate without unnecessary delay does not require reversal 'unless he shows that through such wrongful conduct he was deprived of a fair trial or otherwise suffered prejudice as a result thereof' (People v. Combes (1961) 56 Cal.2d 135, 142 [14 Cal.Rptr. 4, 363 P.2d 4], and cases there cited). But these holdings must not be misconstrued as acquiescence on our part in any continuation of such unlawful practices. The Constitution and the several statutes quoted above are clear and explicit on this point, and must be obeyed. [5] 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. As the United States Supreme Court observed in Mallory v. United States (1957) 354 U.S. 449, 454-455 [1 L.Ed.2d 1479, 77 S.Ct. 1356], construing rule 5(a) of the Federal Rules of Criminal Procedure which is similar in this respect to our own legislation, 'The arrested person may, of course, be "booked" by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt.'" (67 Cal.2d at pp. 59-60.)

[1c] 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.

Nor is the failure of the Eureka police to cease efforts to question defendant cured by the fact that his subsequent interrogation was at the hands of the Santa Barbara police and dealt with different offenses. The People speculate that a suspect "may be perfectly willing to speak with the authorities and thereby waive his rights as to one particular offense, and yet wish to remain silent as to another offense," and "so too might he be willing to speak with representatives of one agency while preferring [21 Cal.3d 245] not to do so with those from another agency." The argument is unconvincing.

To begin with, it is not supported by the record. The first time defendant asserted his right to remain silent was under questioning by Officer Berry of the Eureka Police Department. But it was the same officer who renewed the questioning two hours later at the police station. Thus the principles of Fioritto were violated long before the "representative from another agency" entered the scene. Nor does it appear, as the People claim, that defendant deliberately invoked his privilege against self-incrimination "on a selective basis," i.e., by choosing to talk about the Santa Barbara burglaries but not the Eureka burglary. On the contrary, after his arrest defendant observed the Eureka police looking into the car in which he had been riding; he knew it contained numerous items taken in the Santa Barbara burglaries; and he testified that when the questioning was renewed two hours later at the police station he believed Officer Berry wanted to ask him about "everything that they saw in the car," i.e., including the loot from the Santa Barbara burglaries. As noted, defendant then refused for the second time to talk with the police. fn. 7

In any event, the People's proposed limitation on the Fioritto rule is objectionable on broader grounds. It might catch the occasional sophisticated criminal who wishes to make selective statements about certain charges to specified agencies; but it would do so at the cost of sweeping into its net the large majority of suspects who see the uniform only as a symbol of police authority, who neither know nor care about the precise jurisdictional competence of their interrogators, and who do not want to talk to any of them. Little would remain of the Fioritto rule if it could be evaded simply by sending in an officer from a different police or sheriff's department every time a suspect asserts his right to remain silent, or by changing the subject of the questioning from one of the crimes under investigation to another. We cannot countenance such a drastic dilution of the effectiveness of the Fioritto rule in protecting the rights of California citizens. fn. 8 [21 Cal.3d 246]

We conclude that the defendant's confession was inadmissible under article I, section 15, of the California Constitution (fn. 3, ante) and the authorities cited herein. The trial court therefore erred in denying his motion to suppress, and the judgment must be reversed.

III

The People finally contend that despite the unquestioned inadmissibility of defendant's confession under California law, we are compelled to permit its use in our courts by the case of Michigan v. Mosley (1975) 423 U.S. 96 [46 L.Ed.2d 313, 96 S.Ct. 321]. There the defendant was arrested in connection with certain robberies, taken to the Detroit police station, and given the Miranda warnings by a detective of the robbery bureau. The defendant refused to answer any questions about the robberies, and the interrogation ceased. Some two hours later, however, a different detective took the defendant to the homicide bureau of the police department in order to question him about an unrelated holdup-murder. The defendant was again given the Miranda warnings. At first he denied any involvement in the crime; but after the detective told him that an accomplice had admitted his participation and had named him as the "shooter," the defendant made a statement implicating himself in the murder. fn. 9

Contrary to the Michigan appellate court, the United States Supreme Court held that use of the statement to convict the defendant of murder did not violate the privilege against self-incrimination of the Fifth Amendment to the federal Constitution. The court reaffirmed the principles of Miranda, but rejected the view that once a suspect has asserted his right to remain silent all further police interrogation must cease until counsel is present or the suspect is arraigned. Instead the court adopted a factual test turning on the circumstances of the renewed interrogation: "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.'" (Fn. omitted.) (Id., at p. 104 [46 L.Ed.2d at p. 321].) The court then [21 Cal.3d 247] reviewed the record and found that the defendant's right to stop the questioning had been "fully respected in this case." (Ibid.) The court identified several "circumstances" in support of its finding, and summarized them as follows: "the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation." (Id., at p. 106 [46 L.Ed.2d at p. 322].)

Because of the importance of the legal issue we shall not attempt, as defendant urges us with some justification, to distinguish Mosley on its facts: for present purposes we shall concede that the "circumstances" relied on by the high court are essentially the same as those which we hold herein are inadequate to protect defendant's privilege against self-incrimination under the California Constitution. (Part II, ante.) We therefore proceed to the question of how this conflict between California and federal law is to be resolved.

[6] We need not be detained, in reaching that question, by the People's effort to reopen the entire issue of the authority of the courts of this state to construe provisions of the California Constitution to furnish greater protections to our citizens than do textually parallel provisions of the federal Constitution. We recently addressed that issue in various contexts and in considerable depth. (See, e.g., People v. Brisendine (1975) 13 Cal.3d 528, 545-552 [119 Cal.Rptr. 315, 531 P.2d 1099] (illegal search and seizure); People v. Longwill (1975) 14 Cal.3d 943, 951 & fn. 4 [123 Cal.Rptr. 297, 538 P.2d 753] (same); People v. Disbrow (1976) supra, 16 Cal.3d 101, 114-115 (privilege against self-incrimination); People v. Hannon (1977) 19 Cal.3d 588, 606-607 & fn. 8 [138 Cal.Rptr. 885, 564 P.2d 1203] (right to speedy trial).) We have examined anew the People's arguments on the point, and find no reason to depart from our firmly established precedents.

Nor do we need to refute in detail the People's claim that we can no longer rely on Fioritto and its progeny because they in turn relied on a reading of Miranda which Mosley has now repudiated: a similar sequence of events occurred in most of the decisions just cited. (See also Serrano v. Priest (1976) 18 Cal.3d 728, 760-768 [135 Cal.Rptr. 345, 557 P.2d 929] (declining to follow San Antonio School District v. Rodriguez (1973) 411 U.S. 1 [36 L.Ed.2d 16, 935 S.Ct. 1278]).) The construction of a provision of the California Constitution remains a matter of California law regardless of the narrower manner in which decisions of the United States Supreme Court may interpret provisions of the federal Constitution. [21 Cal.3d 248] Respect for our Constitution as "a document of independent force" (Brisendine, at pp. 549-550 of 13 Cal.3d) forbids us to abandon settled applications of its terms every time changes are announced in the interpretation of the federal charter. Indeed our Constitution expressly declares that "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." (Cal. Const., art. I, 24.)

Finally, our right to decline to follow Mosley in construing state law was reaffirmed in Justice Brennan's dissenting opinion in that very case. (423 U.S. at pp. 120-121 [46 L.Ed.2d at pp. 331-332].) In language we have noted once before (Disbrow, at p. 115 of 16 Cal.3d), he said: "In light of today's erosion of Miranda standards as a matter of federal constitutional law, it is appropriate to observe that no State is precluded by the decision from adhering to higher standards under state law. Each State has power to impose higher standards governing police practices under state law than is required by the Federal Constitution. [Citations.] ... Understandably, state courts and legislatures are, as matters of state law, increasingly according protections once provided as federal rights but now increasingly depreciated by decisions of this Court. [Citations.] I note that Michigan's Constitution has its own counterpart to the privilege against self-incrimination." So too, of course, does the California Constitution.

The standard to be applied in resolving this issue is also now settled: "in the area of fundamental civil liberties -- which includes not only freedom from unlawful search and seizure but all protections of the California Declaration of Rights -- we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is California law and the full panoply of rights Californians have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental civil rights are persuasive authority to be afforded respectful consideration, but are to be followed by California courts only when they provide no less individual protection than is guaranteed by California law." (Longwill, at p. 951, fn. 4, of 14 Cal.3d; accord, Serrano, at p. 764 of 18 Cal.3d; Hannon, at p. 606 of 19 Cal.3d.) The question is not, as the People contend, whether the Mosley test "adequately protects" the rights of California citizens, but whether it provides less protection than has been guaranteed by the California Constitution since the Fioritto rule has been in effect. [21 Cal.3d 249]

[7] Upon close analysis it appears that Mosley provides less such protection than Fioritto in two principal respects. First, on the facts of the case the high court held that a suspect's right to cut off questioning will be deemed "scrupulously honored" when the second interrogation (1) occurs "only after the passage of a significant period of time" and (2) is conducted by a different police officer and deals with a different crime. But these are precisely the techniques -- lengthy incommunicado detention and the switching of interrogators and charges -- which we hold herein (part II, ante) not only fail to protect the suspect's privilege against self-incrimination under the California Constitution but substantially endanger that privilege by increasing the pressures on the suspect to confess in order to end his forced isolation and "get them off my back." fn. 10

Secondly, the Mosley test is evidently designed to apply to other circumstances than those presented in the case itself. But the opinion does not attempt a compendium of such additional circumstances, and indeed the effort would have been futile. A major element of uncertainty is thus injected into the law: when has a suspect's right to cut off questioning been "scrupulously honored?" In Mosley the suspect was interrogated twice; will the confession be admissible when he is interrogated three times, as here, or even more? In Mosley two hours intervened between the interrogations; will the confession be admissible when the period of incommunicado detention is three days, as here, or still longer?

Not only is this obviously a question of degree, but the very elements of the equation remain unidentified. For example, in Mosley the second interrogation was conducted "by another police officer at another location" (423 U.S. at p. 104 [46 L.Ed.2d at p. 322]); will the confession be admissible if the interrogation is conducted by another officer but at the same location, or by the same officer but at another location? In Mosley the second interrogation dealt with "a crime different in nature and in time and place of occurrence" (id., at p. 105 [46 L.Ed.2d at p. 322]); will the confession be admissible when, as here, the crimes are of the same nature, or, even though committed at different times and places, are part of a continuous course of conduct or share a common modus operandi? In Mosley the record was "not clear" as to what if anything the second detective knew about the first interrogation (id., at [21 Cal.3d 250] p. 105); will the confession be admissible when, as here, he is fully informed that the suspect was previously questioned and explicitly refused to waive his right to remain silent? Should it be admissible even if the second officer is ignorant of that fact? fn. 11

These are not idle inquiries. Given the high stakes involved in the admission of a confession into evidence, both trial and appellate counsel operating under the Mosley test would doubtless feel compelled to litigate every conceivable factual aspect of the issue of whether defendant's right to stop the interrogation was "scrupulously honored" in the case at hand. The consequences seem clear.

First, delays in adjudication would be inevitable. At all stages of a criminal proceeding, "The People have the burden of demonstrating that a questioned confession meets the constitutional tests of admissibility." (Randall, at p. 957 of 1 Cal.3d.) It follows, as the People concede, that in every case in which the defendant objects to the introduction of a confession obtained after he had asserted his right to remain silent, Mosley would require "the taking of evidence" to establish the facts necessary to apply its tests. As we explained in a closely related context, "It will then be necessary to interrupt the proceedings, not only at mid-trial but at mid-examination, for an evidentiary hearing, the outcome of which will be subject to later review on appeal. ... In time there will arise an impressive body of law on the [Mosley] issue, rivaling that which presently exists in the area of search and seizure, as various appellate courts grapple on a case-by-case basis with the question ...." (Disbrow, at p. 111 of 16 Cal.3d.)

Not only would this constitute an "immense tax on judicial resources" (id., at p. 112, fn. 11), but in a certain number of cases it would undoubtedly produce inconsistent results on essentially similar facts. The stability and predictability of the law on this important topic would thereby be impaired, making it more difficult for the police to conform [21 Cal.3d 251] their conduct to constitutional dictates. fn. 12 No less important, instances of individual injustice would necessarily ensue: as defendant correctly observes, "Such a fundamental right as the privilege against self-incrimination is not adequately protected where its effectiveness depends upon subtle differences in either the evidence a defendant is capable of presenting or in the predisposition of the trier of fact."

It was precisely the purpose of the Fioritto line of decisions to protect the constitutional privilege by removing such vagaries from the law. Thus in Fioritto (at p. 717 of 68 Cal.2d) we declared that "A principal objective of [Miranda] was to establish safeguards that would liberate courts insofar as possible from the difficult and troublesome necessity of adjudicating in each case whether coercive influences, psychological or physical, had been employed to secure admissions or confessions." That concern was vindicated in each of our decisions following Fioritto; in particular, in Disbrow (at p. 111 of 16 Cal.3d) we amplified on the reasoning as follows: "The precision with which the Miranda court established not simply broad procedural guidelines but a precise manual for the conducting of custodial interrogations can be interpreted only as expressing an intention to create a single, uncomplicated, universally applicable test for determining whether a particular confession was coerced."

In the same case, of course, we invoked this rationale in declining to follow a decision of the United States Supreme Court construing the Fifth Amendment (Harris v. New York (1971) 401 U.S. 222 [28 L.Ed.2d 1, 91 S.Ct. 643]) which in our view resulted in less protection to our citizens than the privilege against self-incrimination of the California Constitution under the rule of "Miranda and its California progeny." (16 Cal.3d at p. 113.) The rationale is equally applicable here, and together with the reasons given above, leads us to a similar conclusion: the Fioritto rule, rather than the Mosley test, will remain the rule of decision in all state prosecutions in California. fn. 13 [21 Cal.3d 252]

The judgment is reversed.

Bird, C. J., Tobriner, J., Manuel, J., and Newman, J., concurred.

CLARK, J.,

Dissenting.

Under this court's decision of People v. Fioritto (1968) 68 Cal.2d 714 [68 Cal.Rptr. 817, 441 P.2d 625], defendant's confession is arguably inadmissible. But under the United States Supreme Court's more recent decision of Michigan v. Mosley (1975) 423 U.S. 96 [46 L.Ed.2d 313, 96 S.Ct. 321], defendant's confession is admissible. The question presented therefore is whether in light of Mosley we shall continue to adhere to Fioritto.

The majority reaffirm Fioritto on the following ground. "The construction of a provision of the California Constitution remains a matter of California law regardless of the narrower manner in which decisions of the United States Supreme Court may interpret provisions of the federal Constitution. Respect for our Constitution as 'a document of independent force' (Brisendine, at pp. 549-550 of 13 Cal.3d) forbids us to abandon settled applications of its terms every time changes are announced in the interpretation of the federal charter. Indeed our Constitution expressly declares that 'Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.' (Cal. Const., art. I, 24.)" (Ante, pp. 247-248.)

The short answer to this argument is that Fioritto was not decided under the California Constitution; rather, it was based on this court's understanding of the principles announced in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], a United [21 Cal.3d 253] States Supreme Court decision interpreting the Fifth Amendment to the United States Constitution. fn. 1 The California Constitution was not even mentioned in Fioritto.

The United States Supreme Court is the ultimate arbiter of the limits of its own decisions. Now that the high court has declared a confession obtained under the circumstances of this case admissible under Miranda, honesty -- analytical and ordinary -- compels us to overrule Fioritto to the extent it conflicts with Mosley. To say that "[r]espect for our Constitution as 'a document of independent force'" forbids us to depart from Fioritto when our Constitution in fact had no part in that decision is less than honest. The majority's curious response to this objection is that the same might be said of most of the decisions on which they rely. (Ante, p. 247.) Indeed, the same not only might be, but has been said. (See, e.g., Allen v. Superior Court (1976) 18 Cal.3d 520, 533-537 [134 Cal.Rptr. 774, 557 P.2d 65] (Clark, J., dis.).)

But what of article I, section 24 of the California Constitution, declaring that "Rights guaranteed by this Constitution are not dependent upon those guaranteed by the United States Constitution?" The majority contend this section compels us to interpret provisions of our Constitution without regard to the United States Supreme Court's interpretations of identical provisions in the federal Constitution. For the reasons expressed in my dissenting opinion in People v. Norman (1975) 14 Cal.3d 929, 940-942 [123 Cal.Rptr. 109, 538 P.2d 237], I still maintain that unless its text or history support a broader construction, a state constitutional provision should be interpreted as affording a criminal defendant no greater right than the parallel provision of the federal Constitution. (See, e.g., People v. Maher (1976) 17 Cal.3d 196, 204 [130 Cal.Rptr. 508, 550 P.2d 1044] (Clark, J., dis.).)

On the other hand, were the majority consistent in rejecting not only those high court decisions with which they disagree but also those with which they agree, I might subscribe to their approach. Indeed, I can conceive of no more salutary exercise than examining our state Constitution [21 Cal.3d 254] afresh, without regard to the gloss put upon the federal Constitution by the United States Supreme Court. But then we would have to disregard not only Mosley, but also Miranda, and even Weeks v. United States (1914) 232 U.S. 383 [58 L.Ed. 652, 34 S.Ct. 341]. fn. 2 We would have to return to square one and decide this case by asking ourselves -- consistent with our oath of office -- not what the Warren Court would have done, but what the Founders of our Constitution would have us do. But instead the shell game continues. (See People v. Ramey (1976) 16 Cal.3d 263, 277 [127 Cal.Rptr. 629, 545 P.2d 1333] (Clark, J., dis.).)

Raoul Berger reminds us that "[a] common historicist fallacy is to import our twentieth-century conceptions into the minds of the Founders." (Government by Judiciary: The Transformation of the Fourteenth Amendment (1977) p. 306.) The majority's "new states' rights" doctrine is a clear example of this fallacy -- importing the high court's social philosophy of the 1960s into our own Constitution of a century ago.

The judgment should be affirmed.

RICHARDSON, J.

I agree with the dissent of Justice Clark that the judgment should be affirmed. As I expressed in an earlier case, which also involved an extension of the doctrines of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], "In my view, in the absence of very strong countervailing circumstances we should defer to the leadership of the nation's highest court in its interpretation of nearly identical constitutional language, rather than attempt to create a separate echelon of state constitutional interpretations to which we will advert whenever a majority of this court differ from a particular high court interpretation." (People v. Disbrow (1976) 16 Cal.3d 101, 119 [127 Cal.Rptr. 360, 545 P.2d 272] [dis. opn.].)

―FN 1. Had there been no search and seizure of physical evidence and hence no motion to suppress under section 1538.5, defendant's guilty pleas would have foreclosed appellate review of the admissibility of his confession. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896 [135 Cal.Rptr. 786, 558 P.2d 872].)

―FN 2. The officer testified at the preliminary hearing that he read defendant these rights from a card which contained the following admonitions:

"You have the right to remain silent.

"Anything you say can and will be used against you in a court of law.

"You have the right to talk to a lawyer and have him present with you while you are being questioned.

"If you cannot afford to hire a lawyer one will be appointed to represent you before any questioning, if you wish."

―FN 3. "Persons may not ... be compelled in a criminal cause to be a witness against themselves ...."

―FN 4. Even when it is the suspect who initiates the renewed conversation with the police, the court must make an independent examination of the uncontradicted facts and will hold an ensuing confession involuntary in the traditional sense if it is found to be the product of improper threats or promises of leniency made by the police during the first interrogation. (See, e.g., People v. McClary (1977) 20 Cal.3d 218 [142 Cal.Rptr. 163, 571 P.2d 620].)

―FN 5. For an example of a persistent "softening-up" technique, see People v. Honeycutt (1977) 20 Cal.3d 150, 160 [141 Cal.Rptr. 698, 570 P.2d 1050].

―FN 6. In addition, Penal Code section 145 provides that "Every public officer or other person, having arrested any person upon a criminal charge, who willfully delays to take such person before a magistrate having jurisdiction, to take his examination, is guilty of a misdemeanor."

―FN 7. It seems unlikely, moreover, that defendant would "selectively" choose to confess to the four Santa Barbara burglaries, in which he was implicated only by circumstantial evidence and unproved accusations, while refusing to say so much as a word about the Eureka burglary, in which he was caught red-handed.

―FN 8. We have previously considered a fact situation similar to the case at bar. In People v. Randall (1970) supra, 1 Cal.3d 948, the defendant was arrested in Los Angeles on a charge apparently originating in that county. Given the Miranda warnings, he called an attorney. The next morning he was again questioned about the Los Angeles charge. After that session, however, the Los Angeles police received a phone call from the Santa Barbara Sheriff's office advising them of an outstanding warrant for the defendant's arrest on a grand theft charge in Santa Barbara County. The Los Angeles police then renewed the interrogation, repeated the Miranda warnings, and questioned the defendant about the Santa Barbara charge. He waived his rights and confessed to the latter crime. As noted above, we held the confession inadmissible under Fioritto and Ireland.

―FN 9. At trial the detective admitted he had lied to the defendant in telling him that his accomplice had confessed to the murder.

―FN 10. We agree in this regard with the observation of Justice Brennan in his dissent (423 U.S. at p. 118 [46 L.Ed.2d at p. 330]) that the Mosley decision encourages law enforcement authorities "to continue the suspect's detention until the police station's coercive atmosphere does its work and the suspect responds to resumed questioning." (Fn. omitted.)

―FN 11. "To say that the ignorance of the second officer concerning the earlier interview shields the second interview from attack not only would open the door to evasions by the police but it ignores the reason for the Fioritto rule, which is to prevent the police from wearing down a prisoner's resistance by repeated pressuring until he finally makes the statement desired in order to get peace. That pressure exists whether or not the successive would-be interrogators are acting in concert for that purpose, or are acting independently -- it is the effect on the prisoner that Fioritto seeks to avoid." (People v. Milton (1969) 270 Cal.App.2d 408, 415-416 [75 Cal.Rptr. 803].)

―FN 12. Even in applying the comparatively inflexible Fioritto rule under present law, the courts have sometimes reached contrary conclusions on admissibility that are difficult to justify in terms of the factual differences between the cases. (Compare, e.g., People v. Miller (1974) 40 Cal.App.3d 228 [114 Cal.Rptr. 779] (per Thompson, J.), with People v. Parker (1975) 45 Cal.App.3d 24 [119 Cal.Rptr. 49] (same).) We have no doubt that such discrepancies would be far more frequent under Mosley.

―FN 13. Distinguished judges of all philosophical bent appear to agree on the historical underpinning and the pragmatic desirability of retaining federalism and promoting states' rights. For a sampling of thoughtful views on the subject, see the writings of Justice Brennan (Brennan, State Constitutions and the Protection of Individual Rights (1977) 90 Harv.L.Rev. 489), Justice Black (Younger v. Harris (1971) 401 U.S. 37, 44-45 [27 L.Ed.2d 669, 675-676, 91 S.Ct. 746]), Justice Brandeis (New State Ice Co. v. Liebmann (1932) 285 U.S. 262, 311 [76 L.Ed. 747, 771, 52 S.Ct. 371] (dis. opn.)), Judge Henry J. Friendly (Friendly, Federalism: A Foreword (1977) 86 Yale L.J. 1019), Justice Harlan (Griffin v. California (1965) 380 U.S. 609, 615 [14 L.Ed.2d 106, 110, 85 S.Ct. 1229] (conc. opn.); Malloy v. Hogan (1964) 378 U.S. 1, 14 [12 L.Ed.2d 653, 663, 84 S.Ct. 1489] (dis. opn.)), and Chief Justice Burger (California v. Green (1970) 399 U.S. 149, 171 [26 L.Ed.2d 489, 504, 90 S.Ct. 1930] (conc. opn.).) Justice Harlan put it succinctly in Malloy: "About all that the Court offers in explanation of this conclusion is the observation that it would be 'incongruous' if different standards governed the assertion of a privilege to remain silent in state and federal tribunals. Such 'incongruity,' however, is at the heart of our federal system. The powers and responsibilities of the state and federal governments are not congruent; under our Constitution, they are not intended to be." (378 U.S. at p. 27 [12 L.Ed.2d at p. 671].) And Chief Justice Burger added in Green, "neither the Constitution as originally drafted, nor any amendment, nor indeed any need, dictates that we must have absolute uniformity in the criminal law in all the States." (399 U.S. at pp. 171-172 [26 L.Ed.2d at p. 504].)

―FN 1. There can be no serious dispute on this point. The opening paragraph of Fioritto sets the tone for the entire opinion when, after reciting the defendant's conviction for burglary, it states "At trial the People introduced into evidence a confession signed by defendant, and defendant contends that this confession was elicited under circumstances that were violative of the standards enunciated by the United States Supreme Court in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. We conclude that under the explicit directives of Miranda defendant's confession was inadmissible, and accordingly the judgment must be reversed." (68 Cal.2d at p. 716.)

―FN 2. In People v. Cahan (1955) 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513] this court adopted the exclusionary rule, the so-called Weeks doctrine, not as a matter of state constitutional law, but as a judicially declared rule of evidence. (Id., at p. 442.)

~~~~~~~~~~~~~

People v. Hannon, 19 Cal.3d 588
[Crim. No. 19500. Supreme Court of California. June 8, 1977.]

THE PEOPLE, Plaintiff and Respondent, v. LEE ROY HANNON, Defendant and Appellant

(Opinion by Wright, J., with Tobriner, Acting C. J., Mosk, J., and Sullivan, J., concurring. Richardson, J., concurred in the judgment. Separate concurring opinion by Clark, J.)

COUNSEL

Barry Adler, under appointment by the Supreme Court, for Defendant and Appellant.

Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Derald E. Granberg and John H. Sugiyama, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

WRIGHT, J.

Lee Roy Hannon appeals from a judgment following convictions by jury of attempted robbery (Pen. Code, 211, 664) and assault with a deadly weapon (Pen. Code, 245, subd. (a)). He contends initially that he was denied his constitutional right to a speedy trial and also argues that the trial court committed prejudicial error by instructing the jurors that they could consider certain evidence as a circumstance tending to show a consciousness of guilt. Although we reject the speedy trial claim, we hold, for the reasons which follow, that the disputed jury [19 Cal.3d 593] instruction constituted prejudicial error in the circumstances prevailing at trial and accordingly we reverse the judgment.

After closing their restaurant on the night of January 27, 1974, manager Hugh Smith and his assistant, Robert Nalette, left the building through the rear-side door about 10:45. The men separated and each moved towards his vehicle in the parking lot adjoining the restaurant. As Smith reached his pickup truck and unlocked it he heard a voice which directed that he return to the restaurant. Smith saw no one but turned and began to obey the command. As he reached the building he was accosted by a stranger who demanded that he open the rear-side door. When Smith stated that the door could not be opened from the outside, he was told by the stranger to face away from him. As Smith turned, his shoulder was seized and the barrel of a gun was thrust into his back. His assailant once again demanded that the rear-side door be opened. Smith explained that only the front door, which was well lit in contrast to the area in which they stood, could be unlocked from the outside.

The assailant next ordered Smith to advise the other man in the parking lot to join them. After Nalette heard Smith's call, he turned around, observing the profiles of both Smith and the stranger. He walked towards them and, when he was about six feet away, the stranger shot Smith in the back. The assailant ordered Smith and Nalette to open the rear-side door of the building, threatening to shoot the latter also if he did not comply. When Nalette repeated that the door could not be unlocked from outside the building, the assailant said, "I'm giving you five to get out of here," and released his hold on Smith. As Smith moved away the assailant's full face was revealed to Nalette. The assailant disappeared in the darkness before either Smith or Nalette were able to obtain another view of him.

During the encounter Smith saw his assailant's full face for about two or three seconds and also viewed his profile for three to five seconds. He was, however, unable to identify him from "mug" shots exhibited by the police. After defendant's arrest Smith observed a lineup of persons including defendant. He initially identified a man other than defendant, indicating that such person bore a "close resemblance" to his assailant. Because it had been dark on the night of the assault, Smith had been unable to "get a definite reading on the person." He requested that each of the men in the lineup be asked to say, "Open up the door or I will kill you." After hearing all of the men repeat the threat, Smith changed his mind and wrote a note indicating that the man he had tentatively [19 Cal.3d 594] identified was not his assailant. At trial Smith was unable to identify defendant as his attacker.

Nalette, on the other hand, identified defendant as the assailant on four separate occasions. He testified that he saw the assailant face to face on the night of the incident for about 30 to 45 seconds and viewed his profile for about one and one-half to two minutes, thus accounting for his ability to make the identification. After viewing 200 photographs at the Oakland Police Department two days after the incident occurred, he selected a photograph of defendant. Following defendant's apprehension almost eight months later, Nalette identified him at a lineup. He later identified defendant at the courthouse and again during trial. Although defense counsel questioned Nalette concerning the inconsistencies in his description of the assailant, Nalette was "absolutely sure" of his in-court identification of defendant as that man.

In addition to the testimony of Smith, Nalette and Smith's physician, the People's only other witness was William Leach, an investigator with the district attorney's office. His testimony concerned a brief encounter which he had prior to trial with an individual named Elton Brown, the only witness subsequently called by the defense. A major issue raised on this appeal revolves around the incident with Brown.

Brown, a friend and former roommate of defendant, supplied an alibi for him. Brown testified that he was constantly in the company of defendant on the day and night on which the assault and robbery attempt took place. According to Brown he moved into defendant's apartment about a month before the date of the commission of the alleged crime and resided there about two months. He testified that he had not been asked to recall what occurred on the day of the alleged crime until almost a year later, but was nevertheless able to remember the events of the day in question because it was a Sunday several days before the birthday of his girlfriend and the planning for a birthday celebration had taken place on that particular day. In addition, it was the last Sunday in January and Brown recalled that he had had difficulty about that time concerning the receipt of his income tax withholding statement.

According to Brown, on the day in question he and defendant awoke about 11 a.m. They ate breakfast and spent the afternoon playing chess and dominoes with two friends who came by. After dinner the four watched television. They spent part of the evening in conversation and [19 Cal.3d 595] Brown testified that he was with defendant in the apartment at 10:45 p.m., the time at which the assault and attempted robbery occurred. Brown further testified that he was constantly in the company of defendant during the crucial day and did not leave defendant's presence until about 1:30 a.m. the next morning.

The prosecutor attempted to impeach Brown's testimony by asking him to recount what occurred on the day preceding January 27. He asked Brown the address of the apartment but Brown was unable to recall the street number, although he indicated the nearest intersection and described the building as pink in color. Near the end of his cross-examination, the prosecutor asked Brown if he had refused to speak to William Leach, the investigator, the previous morning at the courthouse. Brown confirmed that he had so refused. Brown was asked if he had told Leach that an attorney had ordered him (Brown) not to speak to Leach. Brown denied that he had been so ordered, stating that he told Leach that he had talked to "the lawyer" and that he would remain silent until he testified in court. The prosecutor asked a number of other questions all aimed at establishing that defendant's counsel, a public defender, had attempted to suppress evidence by "ordering" Brown not to speak with anyone representing the People. On redirect examination, defendant's counsel attempted to show that Brown's refusal to speak with Leach was a personal decision and was not "ordered" by anyone. fn. 1 When Brown finished his testimony, the defense rested. [19 Cal.3d 596]

The People called William Leach as a rebuttal witness. Leach testified that he had spoken with Brown in the courtroom hallway the previous morning. After he had identified his relationship as an investigator with the district attorney's office, Leach had asked Brown if he would answer several questions. Brown had refused, stating that "a[n] attorney" or "his attorney" had ordered him not to speak to representatives of the People. Leach had tried to question Brown once more before Brown testified, this time after Brown was arrested on an outstanding traffic warrant. (See fn. 1, ante.) The prosecutor's questions pointedly brought out the fact that Leach had spoken to Brown on the second occasion shortly after Brown had finished speaking with defendant's attorney. Thereafter Brown had again refused to speak with Leach. On cross-examination, defendant's counsel elicited the concession from Leach that he had not asked Brown if he, defense counsel, had ordered Brown not to speak to Leach. fn. 2

Based on Leach's testimony, the People sought to have the jurors instructed that they could infer a consciousness of guilt on the part of defendant based on defense efforts to suppress evidence if they believed that defendant's counsel had ordered Brown not to speak to Leach. Over [19 Cal.3d 597] defendant's objection the court instructed the jury on efforts to suppress evidence as showing a consciousness of guilt in the language of a modified CALJIC No. 2.06 instruction. fn. 3 Defendant contends that the giving of such an instruction in this or in any other form on the basis of the record in the instant case constitutes prejudicial error.

Analysis of defendant's jury instruction contention involves consideration of several separate but related subissues. First, we deem it necessary to comment on the form of the instruction given to the jury. Second, we conclude that the record fails to support the giving of even a properly formulated instruction on inferring consciousness of guilt from suppression of evidence on the part of defendant. Finally, we hold that the erroneous instruction on consciousness of guilt constitutes prejudicial error.

We begin our analysis by noting that the instruction given to the jury clearly left open the possibility that no evidence of suppression may have been presented. fn. 4 This possibility was injected into the instruction by the trial court's modification of the standard instruction. While modification of the standard instructions is always within the discretion of the trial court, for indeed such instructions are themselves optional within the discretion of the trial court, any modification in those instructions must conform with the applicable law.

[1] It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference. (People v. Carmen (1951) 36 Cal.2d 768, 773 [228 P.2d 281].) [2] Whether or not any given set of facts may constitute suppression or attempted suppression of evidence from which a trier of fact can infer a consciousness of guilt on the part of a defendant is a question of law. Thus in order for a jury to be instructed that it can infer a consciousness of guilt from suppression of adverse evidence by a defendant, there must be some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference. Furthermore, [19 Cal.3d 598] the determination of whether there is such evidence in the record is a matter which must be resolved by the trial court before such an instruction can be given to a jury.

In the case before us, the court failed to make the necessary preliminary evaluation and, instead, it chose to modify the standard instruction in a manner which left that determination to the jury. In so doing, the court committed error because such a procedure forced or at the very least permitted the jury to resolve a question of law. We can easily understand that the court hoped to strike a compromise between the People's effort to secure a consciousness-of-guilt instruction and defendant's contention that giving such an instruction in any form would constitute error. Nevertheless, when confronted with such a situation a trial court may not straddle the fence. It is the court which must determine whether or not the record contains evidence which, if believed, will support the suggested inference. After making that determination of law, the court should then instruct the jury accordingly.

In summary there was testimony by Leach in the instant case that his efforts to question Brown were unsuccessful, Brown having stated that he, Brown, had spoken with an "attorney" or "his attorney" and would not discuss the case prior to testifying at the trial. Further, Leach conceded that Brown had never said that he had been told to remain silent by defendant's attorney. Based on Leach's brief testimony the People sought to have the jury instructed that it could infer a consciousness of guilt from efforts to suppress evidence adverse to defendant. As a preliminary matter it was the responsibility of the trial court to determine, as a matter of law, whether or not a jury could properly make the suggested inference if it believed Leach's testimony to be true. The modification of the standard instruction supports our conclusion that the court failed to make such a determination.

[3a] The People have failed to produce authority in support of the assertion that such a record supports a consciousness-of-guilt instruction. Nothing in Leach's testimony established that defendant's attorney instructed Brown not to speak to a representative of the People. In fact, Leach conceded on cross-examination that Brown never asserted that such an order had ever been given to him by defendant's attorney. Secondly, even if there had been sufficient evidence that defendant's attorney had instructed or "ordered" Brown to remain silent, the People have failed to produce authority in support of the conclusion that such [19 Cal.3d 599] conduct rises to the level of suppression or attempted suppression of evidence.

In contrast to the paucity of authority presented by the People, defendant cites People v. Weiss (1958) 50 Cal.2d 535 [327 P.2d 527], as a case closely on point. In Weiss a witness who had an abortion performed on her by one of the codefendants was granted immunity from prosecution and led law enforcement officers to the location where the abortion took place. The next day she received a telephone call from an individual purporting to be the attorney for one of the defendants. The caller questioned the witness and asked if she had been contacted by an investigator from the State Medical Board or if she had been asked to identify the house where the abortion had been performed. At trial the witness was permitted to recount the telephone call incident. When defense counsel moved to strike the testimony on the ground that it was hearsay and by innuendo damaged the defense case, the motion was denied. On appeal the People defended the trial court's ruling on the ground that the evidence was admissible to show that the witness had been "impliedly intimidated" by an agent of the defendants. We held that it was error to receive such testimony based on a theory of an attempted suppression of evidence.

Defendant in the instant case correctly contends that the authority we relied upon in Weiss is equally apposite in the present context. "'Efforts to suppress testimony against himself indicate a consciousness of guilt on the part of a defendant, and evidence thereof is admissible against him. [Citation.] Generally, evidence of the attempt of third persons to suppress testimony is inadmissible against a defendant where the effort did not occur in his presence. [Citation.] However, if the defendant has authorized the attempt of the third person to suppress testimony, evidence of such conduct is admissible against the defendant.'" (People v. Weiss, supra, 50 Cal.2d 535, 554, citing People v. Gilliland (1940) 39 Cal.App.2d 250, 255-257 [103 P.2d 179], and People v. Burke (1912) 18 Cal.App. 72, 91-92 [122 P. 435].) As no evidence of authorization was presented in Weiss, we held that admission of the evidence was erroneous, although not prejudicial in light of the overwhelming evidence of the defendants' guilt.

As in Weiss the record in the present case fails to supply the necessary nexus between defendant and the alleged suppression of evidence. At the very most the record merely supports the conclusion that some unidentified [19 Cal.3d 600] attorney ordered Brown not to speak with representatives of the People before testifying at trial.

Weiss holds that the admission of evidence purporting to show suppression or attempted suppression of evidence is erroneous absent the prerequisite of proof that the defendant was present at such an incident or proof of authorization of such illegal conduct. If evidence of alleged suppression is inadmissible on such a record, it is, a fortiori, error to instruct a jury that it can infer a consciousness of guilt if it believes such improperly admitted evidence to be true. The record in the present case is deficient in the same crucial regard as that in Weiss. Therefore, all of the evidence on the subject, including portions of Brown's testimony in response to the prosecutor's questions and Leach's testimony was objectionable. [4] However, the failure of defendant's attorney to object to such questions or to move to strike the resulting testimony waived any error. Lack of objection at that time did not, however, waive defendant's right to appellate review of the propriety of the court's jury instruction on the issue of suppression of evidence and consciousness of guilt because the Legislature has specifically provided that an objection is not required in order to preserve instruction issues affecting the substantial rights of a defendant. (Pen. Code, 1259.) As the record contains no evidence to support the suggested inference, the court erred in giving the instruction.

[5] We are of the further view that even if the record had contained proof that defendant's attorney had, in fact, instructed Brown to remain silent prior to trial, such conduct does not necessarily constitute the suppression or the attempted suppression of evidence. We observe preliminarily that the authority previously quoted from Weiss states in relevant part: "'Efforts to suppress testimony against himself indicate a consciousness of guilt on the part of a defendant ....'" (People v. Weiss, supra, 50 Cal.2d at p. 554, italics added.) The People have never asserted that defendant's counsel attempted to induce Brown not to testify, and indeed, such a contention would be absurd for Brown supplied defendant's alibi. Instead, the essence of the People's argument is that defense counsel attempted to suppress evidence by interfering with the People's pretrial investigation of a potential witness.

Our own research on the foregoing issue has revealed only cases dealing with the converse question, i.e., whether or not the People may order potential witnesses not to speak with a representative of the defendant prior to testifying at trial. In People v. Shaw (1896) 111 Cal. 171 [43 P. 593], the court was called upon to decide whether a witness [19 Cal.3d 601] could be impeached for refusing to speak with defense counsel prior to trial after having informed the prosecutor of her knowledge of the case. After holding that such impeachment was proper, the court noted in dictum that the witness had been improperly "ordered" not to speak with defense counsel "under the mistaken notion which some prosecuting officers have that they can order persons whom they want as witnesses not to speak to other persons about what they know." (Id., at p. 175.) Walker v. Superior Court (1957) 155 Cal.App.2d 134 [317 P.2d 130], is consistent with the Shaw dictum. In that case the court considered the defendant's pretrial request to view statements made to the sheriff by a witness who subsequently refused to speak to defense attorneys solely because he had been ordered to remain silent by the sheriff. The Court of Appeal concluded that although the trial court could not order the witness to speak to defense attorneys, a court could and should order the sheriff or a prosecutor to rescind an order that witnesses not speak to defense investigators. (Id., at pp. 139-140.)

The conclusions reached in Shaw and Walker were founded on the defendant's constitutional rights to obtain witnesses to testify in his behalf and to prepare a defense. When an agent of the state such as a police officer or a prosecutor "orders" a witness not to speak to representatives of a defendant, far more harm is likely to result than in the case of a defense attorney who purports to "order" a witness not to speak to the prosecutor for the simple reason that private citizens are more likely to believe that officials are authorized to issue such "orders." In any event, it is manifest that in either case witnesses are free to disregard any order which purports to prohibit them from speaking with representatives of the opposing party. Witnesses and potential witnesses belong to neither side to an adversary proceeding. Within constitutional limitations, access to potential witnesses should remain open to all parties in a legal controversy.

There is an appropriate remedy when a witness refuses to speak about a case with one party's investigator after having previously informed the other party about his knowledge of the case. The remedy is simply impeachment on the basis of bias as was recognized in People v. Shaw, supra, 111 Cal. 171, 174-175. (Evid. Code, 785; see, Witkin, Cal. Evidence (2d ed. 1966) Introduction of Evidence at Trial, 1234, pp. 1139-1140.) Furthermore, impeachment of the witness is an appropriate procedure not because the refusal to discuss the case may have been the result of one party "ordering" such silence but simply because the favoritism shown by the witness demonstrates the possibility of bias [19 Cal.3d 602] on his part towards the favored party. The People's contention that such an order by a defendant's attorney constitutes suppression of evidence is without foundation. The refusal of Brown to speak with the People's investigator, for whatever reason, was not an issue which called for the drastic measure sought by the People. The only significant issue raised by the refusal of Brown to discuss the case was that of the credibility of a witness. fn. 5

[3b] Having concluded that the trial court erred by instructing the jury in the language of the modified CALJIC No. 2.06 instruction, we must assess the effect of that error. The People's case ultimately rested on one key factor, Nalette's identification of defendant as the assailant and attempted robber. There was simply no other evidence which connected defendant with the two offenses. Although Nalette was unequivocal in his identification, Smith, the victim of the shooting who had longer contact with the assailant, could not identify defendant either before or at trial.

Defendant's hopes for acquittal rested on two grounds, the possibility that Nalette's identification testimony had been sufficiently weakened by cross-examination, and the strength of Brown's alibi testimony. Although we have indicated that the prosecutor could have quite properly impeached Brown based on his refusal to speak with Leach, the impeachment of Brown came to be framed in the considerably different context of suppression of evidence. It is one thing to argue that the testimony of a witness may be suspect because that person has refused to speak with a representative from the opposing party; it is quite another thing to argue that a witness has refused to speak with someone from the [19 Cal.3d 603] opposing party because the defendant, afraid that certain evidence will demonstrate his guilt, has consciously attempted to suppress that evidence. The case of a friend refusing to speak to a representative of the prosecution may be something quite understandable to a juror in his own experience. Even if it were to be viewed by a juror as a basis for giving less weight to the testimony of the witness, it might not necessarily destroy the credibility of that witness. In the latter situation, however, an allegation that the defendant has attempted to suppress adverse evidence, if not entirely refuted, may not only destroy the credibility of the witness but at the same time utterly emasculate whatever doubt the defense has been able to establish on the question of guilt.

When in the present case the jury was instructed and the prosecutor permitted to argue that the refusal of Brown to speak to Leach, if believed, could be considered as a circumstance from which a consciousness of guilt on the part of defendant could be inferred, an impermissible impact may have resulted in the minds of the jurors. This was a close case and it appears reasonably probable that a verdict more favorable to the defendant might have resulted if the error had not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Accordingly, the judgment must be reversed.

Although we reverse the judgment due to the jury instruction error, we must also address defendant's speedy trial claim, for if meritorious such a violation would entitle defendant to a dismissal of the prosecution rather than simply a reversal of the judgment. Defendant bases his contention that he was denied his constitutional right to a speedy trial on our decision in Jones v. Superior Court (1970) 3 Cal.3d 734 [91 Cal.Rptr. 578, 478 P.2d 10], and on the fact that while the criminal complaint against him was filed on February 1, 1974, and an arrest warrant was secured on that same date, the warrant was not served on him until September 3, 1974. He argues that he was prejudiced in the preparation of his defense by virtue of this seven-month delay and that the People have failed to provide an adequate justification for the delay. In order to resolve the issue we recite the relevant facts.

After the San Leandro Police Department obtained the warrant for defendant's arrest on February 1, 1974, they entered the fact of its existence into two warrant-tracking computer systems, the police information network, a countywide system, and the Federal Bureau of Investigation's nationwide system. Because defendant's last known address was in the neighboring City of Oakland, San Leandro officers [19 Cal.3d 604] requested that the Oakland Police Department attempt to serve the warrant at that address. When several Oakland police officers went to the listed address they learned that defendant's father resided there. They informed him that felony warrants had been issued for his son's arrest. In response, the father told the officers that defendant had moved out of the house and had not been seen for a number of weeks. In addition, other comments by the father corroborated information previously gathered by the officers which indicated that defendant might have gone to Chicago. In spite of that possibility, one of the officers present returned to the father's residence at least six times from February through April 1974 in an effort to serve the robbery warrant. On one occasion he knocked on the front door but received no response. The remaining times he saw no lights visible in the house and simply checked the license plate numbers of nearby vehicles in order to ascertain if one was registered to defendant.

Not one of the attempts to serve the warrant at the home of defendant's father was successful. Oakland police officers, nevertheless, retained defendant's photograph and continued to watch for him on the city's streets. Defendant was eventually apprehended on the basis of an unrelated warrant after he was seen riding on a public conveyance. Shortly after defendant was booked a warrant check revealed the existence of the robbery warrant and it was served on September 3, 1974, while defendant was held on the unrelated charge.

In order to assess defendant's speedy trial claim we must evaluate the effect which subsequent decisions of the United States Supreme Court have had on our earlier interpretation of the Sixth Amendment's speedy trial provision in Jones v. Superior Court, supra, 3 Cal.3d 734. In Jones we focused our analysis of the speedy trial issue on the key word "accused" in the relevant portions of both the United States Constitution and the California Constitution, noting that those provisions "provide only that an 'accused' shall enjoy the right to a speedy trial." (Id., at p. 739.) We observed that California courts had long followed the rule that "a person does not become an 'accused' until he has been publicly charged with a crime." (Id.) Thus, "[o]ne does not become an 'accused' until the filing of a complaint or other charge." (People v. Jordan (1955) 45 Cal.2d 697, 708 [290 P.2d 484]; People v. Aguirre (1960) 181 Cal.App.2d 577, 580 [5 Cal.Rptr. 477].)

It was suggested in Jones however that the constitutional speedy trial provisions should not apply to prearrest delays because the exclusive [19 Cal.3d 605] protection in that context was supplied by the applicable statute of limitations. In addition, we were told that application of the right to a speedy trial in the case of prearrest delay would unduly hamper effective police investigation. We firmly and unequivocally rejected both suggestions, holding that the speedy trial provisions of the United States Constitution fn. 6 and the California Constitution fn. 7 came into play no later than the time at which the complaint against Jones was filed. We proceeded to employ as the test applicable to alleged speedy trial violations a weighing of the prejudicial effect of the delay on the defendant against any justification for the delay. (Id., at p. 740.)

Shortly after we rendered our decision in Jones the United States Supreme Court addressed a similar speedy trial question in United States v. Marion (1971) 404 U.S. 307 [30 L.Ed.2d 468, 92 S.Ct. 455]. The high court focused its attention, as had we, on the use of the word "accused" in the Sixth Amendment. In contrast to the conclusion we reached in Jones, however, the language used by the Supreme Court in delineating the scope of protection afforded by the federal charter was more limited than that which we adopted in Jones: "[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment." (Id., at p. 320, italics added.) Insofar as the filing of an indictment or information is concerned the Supreme Court's holding is coextensive with our decision in Jones. In the case of a person charged in a complaint who has not yet been apprehended by law enforcement authorities, however, the requirement of arrest and holding to answer before the right to a speedy trial applies, affords less protection than that set forth in Jones. It may well be that the Supreme Court's language simply reflects a dissimilarity in labels between our state's prosecutorial procedures and those in other jurisdictions. On the other hand, our perception is that the phrase "holding to answer" is generally accepted to refer in a technical sense, as it does in California, to the decision of a magistrate to bind a defendant over for trial following a preliminary hearing. Thus we conclude that the Supreme Court intended by its use of the foregoing phrase to hold that the filing of a complaint is by itself insufficient to trigger the protection of [19 Cal.3d 606] the right to a speedy trial under the federal Constitution. To that extent a conflict exists between our interpretation of the Sixth Amendment in Jones and the high court's reading of that provision in Marion, for as previously indicated, we held in Jones that the defendant became an "accused" for Sixth Amendment purposes at the time that the complaint was filed. It is that discrepancy which we next address.

[6] It is an elemental principle of our system of federalism that ultimate responsibility for interpretation of the federal Constitution rests with the United States Supreme Court. Thus that court's pronouncement in Marion delineating the scope of protection afforded by the Sixth Amendment's guarantee of the right to a speedy trial is binding on this court as well as all other state and federal courts in our nation. At the same time, the Supreme Court's decision in Marion did not, and indeed could not, determine the constitutional requirements of the right to a speedy trial guaranteed by the analogous portion of the California Constitution. [7] As we noted in People v. Longwill (1975) 14 Cal.3d 943, 951, footnote 4 [123 Cal.Rptr. 297, 538 P.2d 753]: "[I]n the area of fundamental civil liberties -- which includes not only freedom from unlawful search and seizure but all protections of the California Declaration of Rights -- we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is California law and the full panoply of rights Californians have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental civil rights are persuasive authority to be afforded respectful consideration, but are to be followed by California courts only when they provide no less individual protection than is guaranteed by California law." We have consistently adhered to the foregoing rule of interpretation and in our nation's system of federalism it is as fundamental a principle of constitutional law as that which rests ultimate authority for interpretation of the federal Constitution in the United States Supreme Court. fn. 8 (See Serrano v. Priest (1976) 18 Cal.3d 728, 762-768 [19 Cal.3d 607] [135 Cal.Rptr. 345, 557 P.2d 929]; People v. Disbrow (1976) 16 Cal.3d 101, 114-115 [127 Cal.Rptr. 360, 545 P.2d 272]; People v. Norman (1975) 14 Cal.3d 929, 939 [123 Cal.Rptr. 109, 538 P.2d 237]; People v. Brisendine (1975) 13 Cal.3d 528, 548-552 [119 Cal.Rptr. 315, 531 P.2d 1099]; cf. People v. Olivas (1976) 17 Cal.3d 236, 246 [131 Cal.Rptr. 55, 551 P.2d 375].)

Our analysis in Jones revealed that the established rule in California governing the application of the constitutional right to a speedy trial was that such protection extended to the prearrest stage in cases in which a complaint has been filed against an individual not yet apprehended by law enforcement authorities. Fresh review of the historical basis of the California rule indicates that its development can be traced at least as far back as Harris v. Municipal Court (1930) 209 Cal. 55, 62 [285 P. 699], fully 40 years before the Supreme Court in Marion interpreted the Sixth Amendment as affording a lesser standard of protection than we adhered to in Jones. No new justifications have been presented to us which warrant rejection of the rule reaffirmed in Jones and the People concede as much, expressly stating in their brief, "The right to a speedy trial encompasses pre-arrest delays in criminal prosecutions." (Citing Jones v. Superior Court, supra, 3 Cal.3d 734.) Thus our previously quoted language from People v. Longwill, supra, 14 Cal.3d 943, 951, footnote 4, finds no more apt illustration than in the present case. Upon due [19 Cal.3d 608] consideration the United States Supreme Court has apparently concluded that the Sixth Amendment guarantee of the right to a speedy trial does not extend to the prearrest stage when the sole accusation against an individual consists of the filing of a criminal complaint. [8] Nevertheless, our independent examination of the speedy trial question, in light of California law and "the full panoply of rights Californians have come to expect as their due," has led us to conclude that the right to a speedy trial guaranteed by article I, section 15 of the California Constitution applies once a criminal complaint is filed. We continue to adhere to that higher standard of protection against the abuses of pretrial delay. fn. 9

[9a] Defendant alleges, as did the defendant in Jones, that his constitutional right to a speedy trial was violated by an unjustified delay between the filing of the complaint against him and the time the warrant for his arrest was served. We have concluded that the California Constitution's guarantee of the right to a speedy trial encompasses unjustified delay within such a period. Accordingly, we proceed to the next step of analysis -- weighing the prejudicial effect of the delay on defendant against any justification for the delay. (Jones v. Superior Court, supra, 3 Cal.3d at p. 740.)

The basis of the alleged prejudice in this case stems from defendant's inability to recall his activities or companions on the date of the robbery, January 27, 1974. At the pretrial hearing on the motion to dismiss defendant testified that after the lapse of seven months between the filing of the complaint and service of the warrant he was able to recall only the most general description of his activities on the date in question: (1) The robbery occurred on a Sunday and defendant remembered spending several Sundays -- perhaps January 27th -- playing cards and visiting with friends in Oakland; (2) The card playing sessions could have lasted until 1 o'clock on the following Monday mornings; (3) The full name of only one of the women at the gatherings and the first name of a man, "Elton," fn. 10 could be recalled. [19 Cal.3d 609]

Despite the fact that defendant chose not to testify at trial, his lack of recall did not leave him without a defense because Elton Brown's testimony supplied him with an alibi. Thus, while the seven-month delay before the warrant was served may have prejudiced defendant, that prejudice was reduced by Brown's testimony.

[10] The constitutional right to a speedy trial may be violated by prejudicial delay resulting from intentional efforts to harass or oppress a defendant or simply the neglect of the state or its officers. (Jones v. Superior Court, supra, 3 Cal.3d at p. 738.) [9b] Defendant concedes that there is no evidence of an intentional effort on the part of law enforcement authorities to prejudice him by delaying service of the arrest warrant. He argues, instead, that the police were negligent and acted unreasonably in their efforts to serve the warrant. We disagree. Although negligence in serving an arrest warrant may violate a defendant's right to a speedy trial, fn. 11 our review of the record in the present case convinces us that the police acted reasonably in attempting to serve the warrant on defendant.

First, defendant's assertion that he resided at his parents' home from February 1, 1974, until his arrest and was thus continually available for service of the warrant at a known location during that time, was implicitly contradicted by the statement of his father to the police officers who came to the home and attempted to serve the warrants several days after February 1. On that occasion, defendant's father informed the officers that he had moved away and had not been seen for several weeks. Because a conflict in the evidence existed as to where defendant resided during the seven-month period in question, the trial court was not obliged to accept defendant's uncorroborated assertion that he resided with his parents. Even assuming that defendant in fact resided with his parents during the seven-month period, other factors weigh on the side of reasonableness in assessing the efforts to serve the warrant. An officer returned to that residential location at least six times after the initial visit. While he did not knock on the door and attempt to contact the occupants on each occasion, there were no lights visible in the home on all but one attempt. On that occasion no one answered the officer's knock at the door. The same officer checked the license plate number of [19 Cal.3d 610] vehicles near the home at other times hoping to learn if one belonged to defendant. Furthermore, shortly after the arrest warrant was issued, its existence was entered into two computer warrant tracking systems, countywide and nationwide in coverage. San Leandro authorities did not simply file the warrant once it was received; they enlisted the aid of a neighboring jurisdiction in order to increase the likelihood that it would be served. Finally, although information was received which led the officers to suspect that defendant had left the state and gone to Chicago, his photograph was distributed to various patrol units. We are satisfied that the foregoing efforts to serve the warrant, in light of the meager information which was known about defendant's location, did not amount to negligence on the part of the state. The People have demonstrated sufficient justification to outweigh whatever prejudice accrued to defendant as a result of the seven-month delay in serving the warrant. fn. 12 [19 Cal.3d 611]

The judgment is reversed.

Tobriner, Acting C. J., Mosk, J., and Sullivan, J., concurred. Richardson, J., concurred in the judgment.

CLARK, J.

Again, unless its text, history or function supports a broader construction, a state constitutional provision affords no greater right than the parallel provision of the federal Constitution. (People v. Maher (1976) 17 Cal.3d 196, 204 [130 Cal.Rptr. 508, 550 P.2d 1044] (Clark, J., dis.); see Allen v. Superior Court (1976) 18 Cal.3d 520, 533-537 [134 Cal.Rptr. 774, 557 P.2d 65] (Clark, J., dis.); People v. Ramey (1976) 16 Cal.3d 263, 277-281 [127 Cal.Rptr. 629, 545 P.2d 1333] (Clark, J., dis.); People v. Disbrow (1976) 16 Cal.3d 101, 117, 118-121 [127 Cal.Rptr. 360, 545 P.2d 272] (Richardson, J., dis.); United Farm Workers of America v. Superior Court (1975) 14 Cal.3d 902, 914-915 [122 Cal.Rptr. 877, 537 P.2d 1237] (Richardson, J., conc.); People v. Norman (1975) 14 Cal.3d 929, 940-942 [123 Cal.Rptr. 109, 538 P.2d 237] (Clark, J., dis); Gee v. Brown (1975) 14 Cal.3d 571, 576-577 [122 Cal.Rptr. 231, 536 P.2d 1017] (Clark, J., dis.); People v. Brisendine (1975) 13 Cal.3d 528, 553-558 [119 Cal.Rptr. 315, 531 P.2d 1099] (Burke, J., dis.).)

The texts of the speedy trial provisions of the California and federal Constitutions are virtually identical. The Sixth Amendment to the United States Constitution provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, ..." Article I, section 15, of the California Constitution provides in pertinent part: "The defendant in a criminal cause has the right to a speedy public trial, ..." Indeed, this court has consistently held that the [19 Cal.3d 612] California speedy trial provision "reflects the letter and spirit" of the federal provision. (Jones v. Superior Court (1970) 3 Cal.3d 734, 738 [91 Cal.Rptr. 578, 478 P.2d 10]; People v. Wilson (1963) 60 Cal.2d 139, 144, fn. 2 [32 Cal.Rptr. 44, 383 P.2d 452]; Harris v. Municipal Court (1930) 209 Cal. 55, 60 [285 P. 699].) (Jones and Harris are, ironically, the cases upon which the majority principally rely. (Ante, pp. 604-608.)) Therefore, I find no reason to conclude that the California speedy trial provision sets a "higher standard of protection against the causes of pretrial delay." (Ante, p. 608.)

―FN 1. Relevant excerpts from Brown's testimony are as follows:

"[Prosecutor]: Did you refuse to talk to [Leach]?

"* * *

"[Brown]: I told him that I talked to the lawyer, and what I had to say, I would say what I had to say in court.

"* * *

"Q. The last Public Defender you talked to, prior to that refusal, was Mr. Harpham, is that correct?

"A. Yes.

"Q. Did you refuse to talk to Mr. Leach because Mr. Harpham instructed you not to?

"A. No.

"* * *

"Q. Yesterday afternoon, did you talk with the Public Defender?

"A. No, I didn't. I was in his office to talk to him.

"Q. Yesterday afternoon -- you are not answering the question. Did you talk to the Public Defender yesterday afternoon?

"A. I told you no, and I'm giving my explanation why I didn't talk to him, is because you were there. You came in with the two policemen and they arrested me, so I didn't have a chance to talk to him. [Brown was apparently arrested at the direction of the prosecutor after he refused to speak to Leach. The arrest was based on an outstanding bench warrant issued in relation to several motor vehicle violations.]

"* * *

"Mr. Harpham: Q. Did I ever tell you not to talk to this investigator from the D.A.'s office?

"A. No, and the reason why, he told me -- he said it's up to me whether I want to talk to him, or not. It's up to me. He didn't say, don't talk to him.

"* * *

"Q. And this is the reason why you refused to talk to Mr. Leach?

"A. Well, on the other hand, you know, I -- well, it was the trial and why should I discuss the trial with somebody I don't know? Then, if it's the D.A. and the lawyer is the Public Defender, whatever, that's the only person I talked to, and that's the only person I wanted to talk to, besides me testifying."

―FN 2. Relevant excerpts from Leach's testimony are as follows:

"Q. What did you say to him [Brown]?

"A. I told him that I asked if he was going to testify in the case, and he said yes.

"Q. Then what next did he say?

"A. I asked him, I told him there were a few questions I would like to ask him, concerning the testimony in the case.

"Q. Did he respond to that question?

"A. Yes, he did.

"Q. What did he say?

"A. He stated that he couldn't speak to me, on the orders of his attorney, or a attorney, either one, to not speak to anyone from the prosecution.

"* * *

"Mr. Harpham: Q. Did you ask Mr. Brown that I had told him not to talk to you?

"A. I did not.

"Q * * *

"Mr. Harpham: Q. Well, I will just ask you this: There was nothing that Mr. Brown told you about me telling him not to talk to you, right?

"A. That's correct."

―FN 3. "Now, evidence, if there was any in this case, that the defense attempted to suppress any evidence against the defendant in any manner, may be considered by you, if you find it exists here as a circumstance tending to show a consciousness of guilt. However, such evidence is not sufficient in itself to prove guilt and its weight and significance, if any, are matters for your consideration." (The italicized portion constitutes the trial court's modification of the standard CALJIC No. 2.06 instruction.)

―FN 4. The instruction began: "Now, evidence, if there was any in this case, that the defense attempted to suppress any evidence ...." (Italics added.)

―FN 5. It is apparent that the issue of suppression of evidence arose out of the prosecutor's concern that Brown might present alibi evidence which could not be impeached effectively on short notice. In actuality the claimed suppression of evidence was not of evidence which Brown might have supplied to the People but rather of clues from which the People might have been able to impeach any alibi testimony which Brown might present at the trial. Thus we see notice-of-alibi issues lurking behind the suppression of evidence/consciousness-of-guilt issues we have considered in this case. (See generally, Reynolds v. Superior Court (1974) 12 Cal.3d 834 [117 Cal.Rptr. 437, 528 P.2d 45]; Allen v. Superior Court (1976) 18 Cal.3d 520 [134 Cal.Rptr. 774, 557 P.2d 65].)

There is one further aspect of this case which merits mention. Following the initial refusal of Brown to discuss his knowledge of the case with Leach, a warrant check apparently disclosed an outstanding traffic warrant against Brown. The prosecutor, accompanied by several officers, entered the public defender's office and had Brown arrested at a time when he was attempting to discuss the case with defendant's attorney. We have already indicated that equal access to potential witnesses is a goal to be encouraged. Attempts by one side of a controversy to limit such accessibility by the other side is not conduct which brings about respect for our system of justice.

―FN 6. The Sixth Amendment to the United States Constitution provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, ..."

―FN 7. Article I, section 15 of the California Constitution (former art. I, 13) provides in relevant part: "The defendant in a criminal cause has the right to a speedy public trial, ..."

―FN 8. Indeed, during the drafting of the California Constitution of 1879, at which time the guarantee of the right to a speedy trial was first included in our state Constitution, the delegates to the constitutional convention rejected a suggestion that the following language be added to the new Constitution as section 3 of article I: "We recognize the Constitution of the United States of America as the great charter of our liberties, and the paramount law of the land." (Debates and Proceedings, Cal. Const. Convention 1878-1879, p. 179.) Although similar seemingly noncontroversial language had been added to the constitutions of at least 14 other states following (and as a result of) the Civil War, the suggested provision was rejected for two principal reasons. First, many of the delegates viewed the state constitutions and the Declaration of Independence, rather than the federal Constitution, as the "great charters of our liberties." It was their opinion that the word "charter" meant a written instrument which conveyed or granted rights and privileges. Because they saw the federal Constitution as a grant or delegation of power from the individual states to the central government and not as an instrument granting "liberties" to the people from the central government, the delegates strongly objected to the characterization of the United States Constitution as "the great charter of our liberties."

As a second ground of objection, many delegates were concerned with the implications of the phrase, "and the paramount law of the land." The objection to such language was based on the belief that the phrase failed to note that the United States Constitution was the supreme law of the land solely as to those powers and rights granted to the central government by the states, all others having been reserved to the states or the people by the Tenth Amendment.

As a consequence of the foregoing concerns, article I, section 3 of the Constitution of 1879 was eventually adopted to read: "The State of California is an inseparable part of the American Union, and the Constitution of the United States is the supreme law of the land." (Const. Debates and Proceedings, supra, at p. 1510.) Although the changes made by the delegates in the wording of article I, section 3 might seem trivial to one unfamiliar with the debates which accompanied the foregoing revision, amendment of that section was highly significant. By rejecting the originally proposed language, the delegates at the convention emphasized their belief that the California Constitution was and should continue to be a document of independent force and effect particularly in the area of individual liberties.

―FN 9. We note in passing that our citation to the holding of Marion in People v. Bradford (1976) 17 Cal.3d 8, 18 [130 Cal.Rptr. 129, 549 P.2d 1225], reflected no intent on our part to lessen the constitutional standard which we set forth in Jones as any conflict between Marion and Jones was irrelevant to our evaluation of Bradford's claim.

―FN 10. The fact that Brown subsequently testified in defendant's behalf at trial does not necessarily conflict with defendant's pretrial assertion that he could not remember "Elton's" last name. When Brown appeared at the trial shortly before he testified, he apparently did so on his own without a request by the defense.

―FN 11. Before an arrest warrant can be issued, a criminal complaint must be filed as a preliminary step. (Pen. Code, 813 et seq.) The filing of such a complaint renders the charged individual an "accused" for purposes of article I, section 15 of the California Constitution. (See ante, pp. 604-608.) Thus the existence of an arrest warrant means that the individual named in the warrant, whether served or not, enjoys the protection of the right to a speedy trial guaranteed by the California Constitution.

―FN 12. Because we have resolved the conflict between Jones and Marion through reliance on the independent ground of the California Constitution's speedy trial provision, we need not address another question which would have arisen had we instead chosen to reject the Jones approach and adopt the Marion interpretation of the right to a speedy trial. In Jones we noted that a claimed denial of due process based on prearrest delay is measured by the same test employed to evaluate alleged speedy trial violations -- balancing the effect of the delay on the defendant against any justification for the delay. (Jones v. Superior Court, supra, 3 Cal.3d at p. 741, fn. 1.) To a certain extent that statement created a conflict with the rule set forth in People v. Archerd (1970) 3 Cal.3d 615 [91 Cal.Rptr. 397, 477 P.2d 421], for in that case we observed that prearrest delay resulting in prejudice to a defendant "must be purposeful, oppressive, and even 'smack of deliberate obstruction on the part of the government,' before relief will be granted." (Id., at p. 640, citing Miller v. Rodriguez (10th Cir. 1967) 373 F.2d 26, 28; Foley v. United States (8th Cir. 1961) 290 F.2d 562, 566.) The United States Supreme Court subsequently adopted a similar viewpoint in Marion, noting the concession of the Government in its brief "that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the preindictment delay in [the] case caused substantial prejudice to [the defendants'] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." (United States v. Marion, supra, 404 U.S. at p. 324 [30 L.Ed.2d at p. 480], italics added.) The lesson to be drawn from Marion and Archerd, therefore, is that while the same test is used to measure alleged violations of due process or the right to a speedy trial based on prejudicial pretrial delay, a court presented with such a due process claim will not engage in the Jones balancing test until it is established that the delay was intentionally caused by the state.

Since Jones, Archerd and Marion were decided the question of whether preindictment delay caused by the negligence of the state can violate due process has been considered in Penney v. Superior Court (1972) 28 Cal.App.3d 941 [105 Cal.Rptr. 162]. Noting our statement in Jones that the same balancing test is used to evaluate speedy trial claims and due process claims, the court read Jones, Archerd and Marion together and concluded that negligence on the part of the state resulting in prejudice to a defendant can, if not outweighed by sufficient justification for the delay, violate due process. (Penney at pp. 951-952.) Needless to say, the Penney interpretation of the due process issue conflicts with the requirement of intentional delay set forth in Archerd and Marion. At the same time, the facts in the Penney case demonstrate that negligent delay may often result in as much prejudice to a defendant as delay intentionally caused.

Our resolution of the conflict between Jones and Marion by reliance on the California Constitution's guarantee of the right to a speedy trial indicates that we need not reach the issue of whether negligently caused pretrial delay can violate the due process clause of the California Constitution, and we reserve consideration of that issue until some future time.

~~~~~~~~~~~~~~~~~~

Serrano v. Priest , 18 Cal.3d 728
[L.A. No. 30398. Supreme Court of California. December 30, 1976.]

JOHN SERRANO, JR., et al., Plaintiffs and Respondents, v. IVY BAKER PRIEST,* as State Treasurer, etc., et al., Defendants and Appellants; CALIFORNIA FEDERATION OF TEACHERS, AFL-CIO, Intervener and Respondent; BEVERLY HILLS UNIFIED SCHOOL DISTRICT et al., Interveners and Appellants

* Although neither the former state Treasurer (now deceased) nor the present holder of that office is a party to this appeal, we continue to use the title Serrano v. Priest for purposes of consistency and convenience.

(Opinion by Sullivan, J., with Wright, C. J., Tobriner and Mosk, JJ., concurring. Separate dissenting opinion by Richardson, J. Separate dissenting opinion by Clark, J., with McComb, J., concurring.) [18 Cal.3d 730]

COUNSEL

John H. Larson, County Counsel, James W. Briggs and Donovan M. Main, Deputy County Counsel, for Defendants and Appellants and for Interveners and Appellants.

Ronald A. Zumbrun, John H. Findley, H. LeRoy Cannon, Roger J. Nichols, Leonard Siegel and Nichols & Rose as Amici Curiae on behalf of Defendants and Appellants and Interveners and Appellants.

Sidney M. Wolinsky, Daniel M. Luevano, Rosalyn M. Chapman, John E. McDermott, Mary S. Burdick, Rose Ochi, Joel Edelman, David A. Binder, Harold W. Horowitz, Michael H. Shapiro, Jerome Levine and Robert F. Knox for Plaintiffs and Respondents.

Thomas M. Griffin, Stephen D. Sugarman, Robert H. Mnookin, John E. Coons, Ernest L. Aubry, John R. Phillips, Carlyle W. Hall, Jr., Brent N. Rushforth, Fredric P. Sutherland, A. Thomas Hunt and Timothy B. Flynn as Amici Curiae on behalf of Plaintiffs and Respondents.

Levy, Koszdin & Woods and Henry R. Fenton for Intervener and Respondent.

Kronick, Moskovitz, Tiedemann & Girard, Edward J. Tiedemann and Mark Paul as Amici Curiae. [18 Cal.3d 735]

OPINION

SULLIVAN, J.

The instant proceeding, which involves a constitutional challenge to the California public school financing system, is before us for the second time. In 1971, we reversed a judgment of dismissal entered upon orders sustaining general demurrers and remanded the cause with directions that it proceed to trial. (Serrano v. Priest (1971) 5 Cal.3d 584 [96 Cal.Rptr. 601, 487 P.2d 1241], hereafter cited as Serrano I.) In so doing we held that the facts alleged in plaintiffs' complaint were sufficient to constitute the three causes of action there set forth, and that if such allegations were sustained at trial, the state public school financing system must be declared invalid as in violation of state and federal constitutional provisions guaranteeing the equal protection of the laws. fn. 1

Upon remand answers to the complaint were filed by all existing defendants fn. 2 and certain school districts of the County of Los Angeles were allowed to intervene as defendants, adopting as their own the answers previously filed by the other county defendants. fn. 3 The California Federation of Teachers, AFL-CIO, was permitted to intervene as a plaintiff on condition that its complaint adopt the essential allegations of the original complaint. The trial court declined to accept defendants' [18 Cal.3d 736] suggestion that the Legislature and the Governor be joined as indispensable parties.

Trial commenced on December 26, 1972. After more than 60 days of trial proceedings the court issued its "Memorandum Opinion Re Intended Decision" on April 10, 1974, and on August 30 of the same year filed its findings of fact and conclusions of law, there being 299 of the former and 128 of the latter. Judgment was entered on September 3, 1974, and defendants' motion for a new trial was denied on October 28, 1974. This appeal followed. fn. 4

I

Our decision in Serrano I, which due to the then legal posture of the proceeding directed itself only to the sufficiency of allegations of the complaint to state a cause of action and contemplated full trial proceedings for the proof of such allegations, nevertheless attracted the immediate attention of the California Legislature. As a result the lawmakers passed two bills -- Senate Bill No. 90 (S.B. 90) and Assembly Bill No. 1267 (A.B. 1267) -- which, upon becoming law during the pendency of trial proceedings, brought about certain significant changes in the public school financing system then under judicial scrutiny. Recognizing this, all parties to the action thereupon entered into a stipulation that for purposes of trial the California system for the financing of public schools should be deemed to include all law applicable at the time of trial. This agreement was later incorporated as follows among the trial court's conclusions of law: "For purposes of this litigation, the California system of financing public schools, includes not only all pertinent provisions of the California Constitution, statutes, and [18 Cal.3d 737] administrative codes, and all pertinent provisions of federal statutes and regulations, but includes all modifications, amendments, and additions to the California statutes and administrative codes resulting from the California Legislature's enactment of those bills known as S.B. 90 and A.B. 1267." (See Stats. 1972, ch. 1406; Stats. 1973, ch. 208.)

In view of these developments we think it appropriate at this point, before undertaking a description of the particulars of the trial court's judgment, to review in some detail the specific nature of the changes in the financing system which were wrought by the Legislature following our decision. fn. 5 Because our understanding of these changes depends in large part on an understanding of the system as it existed at the time of Serrano I, we begin by reiterating the description of that system, based on the allegations of the complaint and certain matters judicially noticed, which we set forth in our earlier opinion. Clarity of exposition dictates that the following excerpt be extensive. fn. 6

A. The System Prior to S.B. 90 and A.B. 1267

In Serrano I, we described the prior financing system as follows:

"We begin our task by examining the California public school financing system which is the focal point of the complaint's allegations. At the threshold we find a fundamental statistic -- over 90 percent of our public school funds derive from two basic sources: (a) local district taxes on real property and (b) aid from the State School Fund. fn. 7

"By far the major source of school revenue is the local real property tax. Pursuant to article IX, section 6 of the California Constitution, the Legislature has authorized the governing body of each county, and city [18 Cal.3d 738] and county, to levy taxes on the real property within a school district at a rate necessary to meet the district's annual education budget. (Ed. Code, 20701 et seq.) The amount of revenue which a district can raise in this manner thus depends largely on its tax base -- i.e., the assessed valuation of real property within its borders. Tax bases vary widely throughout the state; in 1969-1970, for example, the assessed valuation per unit of average daily attendance of elementary school children fn. 8 ranged from a low of $103 to a peak of $952,156 -- a ratio of nearly 1 to 10,000. (Legislative Analyst, Public School Finance, Part V, Current Issues in Educational Finance (1971) p. 7.) fn. 9

"The other factor determining local school revenue is the rate of taxation within the district. Although the Legislature has placed ceilings on permissible district tax rates ( 20751 et seq.), these statutory maxima may be surpassed in a 'tax override' election if a majority of the district's voters approve a higher rate. ( 20803 et seq.) Nearly all districts have voted to override the statutory limits. Thus the locally raised funds which constitute the largest portion of school revenue are primarily a function of the value of the realty within a particular school district, coupled with the willingness of the district's residents to tax themselves for education.

"Most of the remaining school revenue comes from the State School Fund pursuant to the 'foundation program,' through which the state undertakes to supplement local taxes in order to provide a 'minimum amount of guaranteed support to all districts ....' ( 17300.) With certain minor exceptions, fn. 10 the foundation program ensures that each school [18 Cal.3d 739] district will receive annually, from state or local funds, $355 for each elementary school pupil ( 17656, 17660) and $488 for each high school student. ( 17665.)

"The state contribution is supplied in two principal forms. 'Basic state aid' consists of a flat grant to each district of $125 per pupil per year, regardless of the relative wealth of the district. (Cal. Const., art. IX, 6, par. 4; Ed. Code, 17751, 17801.) 'Equalization aid' is distributed in inverse proportion to the wealth of the district.

"To compute the amount of equalization aid to which a district is entitled, the State Superintendent of Public Instruction first determines how much local property tax revenue would be generated if the district were to levy a hypothetical tax at a rate of $1 on each $100 of assessed valuation in elementary school districts and $.80 per $100 in high school districts. fn. 11 ( 17702.) To that figure, he adds the $125 per pupil basic aid grant. If the sum of those two amounts is less than the foundation program minimum for that district, the state contributes the difference. ( 17901, 17902.) Thus, equalization funds guarantee to the poorer districts a basic minimum revenue, while wealthier districts are ineligible for such assistance.

"An additional state program of 'supplemental aid' is available to subsidize particularly poor school districts which are willing to make an extra local tax effort. An elementary district with an assessed valuation of $12,500 or less per pupil may obtain up to $125 more for each child if it sets its local tax rate above a certain statutory level. A high school district whose assessed valuation does not exceed $24,500 per pupil is eligible for a supplement of up to $72 per child if its local tax is sufficiently high. ( 17920-17926.) fn. 12 [18 Cal.3d 740]

"Although equalization aid and supplemental aid temper the disparities which result from the vast variations in real property assessed valuation, wide differentials remain in the revenue available to individual districts and, consequently, in the level of educational expenditures. fn. 13 For example, in Los Angeles County, where plaintiff children attend school, the Baldwin Park Unified School District expended only $577.49 to educate each of its pupils in 1968-1969; during the same year the Pasadena Unified School District spent $840.19 on every student; and the Beverly Hills Unified School District paid out $1,231.72 per child. (Cal. Dept. of Ed., Cal. Public Schools, Selected Statistics 1968-1969 (1970) Table IV-11, pp. 90-91.) The source of these disparities is unmistakable: in Baldwin Park the assessed valuation per child totaled only $3,706; in Pasadena, assessed valuation was $13,706; while in Beverly Hills, the corresponding figure was $50,885 -- a ratio of 1 to 4 to 13. (Id.) Thus, the state grants are inadequate to offset the inequalities inherent in a financing system based on widely varying local tax bases.

"Furthermore, basic aid, which constitutes about half of the state educational funds (Legislative Analyst, Public School Finance, Part II, The State School Fund: Its Derivation, Distribution and Apportionment (1970) p. 9), actually widens the gap between rich and poor districts. (See Cal. Senate Fact Finding Committee on Revenue and Taxation, State and Local Fiscal Relationships in Public Education in California (1965) p. 19.) Such aid is distributed on a uniform per pupil basis to all districts, [18 Cal.3d 741] irrespective of a district's wealth. Beverly Hills, as well as Baldwin Park, receives $125 from the state for each of its students.

"For Baldwin Park the basic grant is essentially meaningless. Under the foundation program the state must make up the difference between $355 per elementary child and $47.91, the amount of revenue per child which Baldwin Park could raise by levying a tax of $1 per $100 of assessed valuation. Although under present law, that difference is composed partly of basic aid and partly of equalization aid, if the basic aid grant did not exist, the district would still receive the same amount of state aid -- all in equalizing funds.

"For Beverly Hills, however, the $125 flat grant has real financial significance. Since a tax rate of $1 per $100 there would produce $870 per elementary student, Beverly Hills is far too rich to qualify for equalizing aid. Nevertheless, it still receives $125 per child from the state, thus enlarging the economic chasm between it and Baldwin Park. (See Coons, Clune & Sugarman, Educational Opportunity: A Workable Constitutional Test of State Financial Structures (1969) 57 Cal.L.Rev. 305, 315.)" (Serrano I, at pp. 591-595.)

It was the above-described system, then, which concerned us in Serrano I. If, we held, the allegations of the complaint upon trial were found to be true, thus establishing that the system described was the one actually existing in California, that system would be invalid as in violation of state and federal equal protection provisions. The Legislature, apparently recognizing the likelihood of such a finding, decided not to await the outcome of such proceedings but to address itself immediately to the problem. (For an early comment on the practical economics confronting the Legislature in its response to Serrano I see Post & Brandsma, The Legislature's Response to Serrano v. Priest, 4 Pacific L.J. 28.) It is to the changes resulting from these legislative efforts that we now proceed to direct our comments.

B. The New System

The changes brought about by the passage of S.B. 90 and A.B. 1267, while significant, did not purport to alter the basic concept underlying the California public school financing system. That concept, which we may refer to as the "foundation approach," undertakes in general to insure a certain guaranteed dollar amount for the education of each child in each school district, and to defer to the individual school district for [18 Cal.3d 742] the provision of whatever additional funds it deems necessary to the furtherance of its particular educational goals. As indicated in the foregoing excerpt, the mechanisms by which this concept was implemented prior to the adoption of S.B. 90 and A.B. 1267 were basically four: (1) basic aid, (2) equalization aid, (3) supplemental aid, and (4) tax rate limitations and overrides. The new law retained three of these, the element of supplemental aid (see text accompanying fn. 12, ante) being discontinued. The basic aid component remained the same, i.e., $125 per ADA. Thus it was fundamentally through adjustments and alterations in the remaining two areas -- equalization aid and tax rate limitations and overrides -- that the Legislature sought to bring the system into constitutional conformity. fn. 14

Perhaps the most dramatic aspect of the new law was a substantial increase in the foundation level. For the fiscal year 1973-1974 this figure, which constitutes the minimum amount per pupil guaranteed to each district by the state, was in general raised for elementary school districts from the previous level of $355 per ADA to the sum of $765 per ADA, and for high school districts from $488 to $950 per ADA. ( 17656, 17665.) Corresponding increases were provided for small schools (see fn. 10, ante), and areawide foundation programs (fn. 12, ante) were retained. Provision was also made to offset the so-called "slippage factor," which has been the result of yearly increases in the assessed valuation of real property within the districts (leading to an increase in the amount of local contribution through application of the "computational tax rate" (fn. 11, ante) and a corresponding decrease in state contribution). Thus, a yearly increase in the foundation level of approximately 7 percent for the first three years and 6 percent thereafter was prescribed. ( 17301, former subd. (e); see present 17669.) At the same time, however, the "computational tax rate" was raised from $1 to $2.23 at the elementary level and from $0.80 to $1.64 at the high school level. ( 17702.)

The second major aspect of the new program involved the creation of "revenue limits," or limitations on maximum expenditures per pupil in [18 Cal.3d 743] each school district exclusive of state and federal categorical support and of revenue generated by permissive override taxes. ( 20902 et seq.) These provisions, generally speaking, allowed a district without a voted override to levy taxes at a rate no higher than would increase its expenditures per pupil over 1972-1973 base revenues by a permitted yearly inflation factor. fn. 15 A district having a school tax rate which produced revenues in excess of foundation levels would receive inflation adjustments which decreased in magnitude as those revenues rose above foundation levels. On the other hand, a district having base revenues which, when added to the full inflation allowance, did not reach the foundation level, could increase its revenues by up to 16 percent of the preceding year's revenue limit per ADA.

The combination of the foregoing rate limitation structure and the ever-advancing foundation levels would, it was contemplated, produce a phenomenon known as "convergence." While poorer districts could move with comparative rapidity toward the rising foundation levels, richer districts, due to the diminished inflation adjustment permitted them, would increase their revenue bases at a much slower rate. fn. 16 This prognosis was complicated, however, by the fact that district revenue limits applied only to revenue generated by the maximum general purpose tax rate available to a district in the absence of voter approval. Such limitations might be exceeded as before (see text following fn. 9, ante) if a majority of the voters in the district voted an override ( 20906). Permissive overrides (i.e., overrides which can be imposed without voter [18 Cal.3d 744] approval) were also authorized to raise revenue for certain special purposes, such as capital outlay.

II

With this background in mind we turn to a consideration of the trial court's findings and judgment.

As indicated above, the trial court issued voluminous and comprehensive findings in support of its judgment. While we do not here undertake to present a complete summary of those findings, especially as they duplicate what has been pointed out above, it is important for present purposes to indicate their substance as they relate to the effect and validity of the system as it now stands following the legislative alterations enacted after our decision in Serrano I.

A. Findings of Fact

The court found in substance as follows:

The California public school financing system following the adoption of S.B. 90 and A.B. 1267 continues to be based upon the foundation concept. Although there have been substantial increases in foundation levels, those increases, considered alone, do not eliminate any of the unconstitutional features which existed at the time of Serrano I. The retention of the basic-aid element in the foundation program, for example, continues to have an anti-equalizing effect by benefitting only those districts not eligible for equalization aid. Moreover, basic-aid districts continue to be favored over equalization-aid districts insofar as they may reach the foundation level with a tax rate less than the computational rate or by using the comptational rate raise revenue in excess of the foundation level.

The revenue limit feature of the new law has similarly serious defects. By taking 1972-1973 revenues as its base figure, it perpetuates inequities resulting from property tax base differentials. More importantly, it will allow total "convergence" between high-spending revenue limits and rising foundation levels only after many, perhaps as many as 20, years -- even assuming no voted overrides. After five years of functioning -- again assuming that no voted overrides occur, many high-wealth, high-spending districts will still be spending two to three times more per pupil than many low-wealth districts are able to spend. Even when the [18 Cal.3d 745] "convergence" has run its course, there will continue to be a substantial inequality between basic-aid and equalization-aid districts, again assuming no voted overrides, due to the fact that the former districts will be able to achieve the foundation level at a tax rate which is less than the computational rate. Thus, to the extent that equal tax rates can produce differing expenditure levels, or that equal expenditure levels can be produced by differing tax rates, the system will continue to generate school revenue in proportion to the wealth of the individual district. fn. 17

This potential disparity is exacerbated by the continued availability of voted overrides pursuant to section 20906. The passage of such overrides by high-wealth school districts would operate to nullify the contemplated "convergence" effect sought to be achieved by increased equalization aid and the imposition of revenue limits. The operation of the latter feature, in combination with continuing inflation, will make it impossible for high-wealth, high-spending districts to maintain the present quality of their programs, and therefore such districts will have a great incentive to vote tax rate overrides because even a slight rate increase in such districts will raise substantial revenues. In the districts having a relatively low assessed valuation per pupil, on the other hand, the incentive to vote such overrides will be less, for only a substantial increase in the tax rate will be sufficient to produce substantial additional revenues. As a result, the extent of local control (i.e., "the opportunity to go above the foundation program level in pursuit of a higher quality program") will continue to be a function of district wealth under the new law. [18 Cal.3d 746]

The effect of disparities in district wealth also continues to be felt in the area of capital outlay. Permissive override taxes for this purpose, authorized by the new law for the repayment of bonded indebtedness and state aid loans, generate more revenue at a given tax rate in districts with a high assessed valuation per pupil than in districts with lower assessed valuation per pupil. Moreover, wealthier districts, being generally able to generate sufficient funds for capital outlay purposes within their bonding capacities, are often not required to levy permissive override taxes for the repayment of state aid loans, which is the only source of assistance for districts whose bonding capacity is insufficient to finance needed capital improvements.

Municipal tax overburden, which "refers to high property tax rates for other governmental services than education," is a phenomenon of low-wealth, low-spending districts as well as high-wealth, high-spending districts. The problems associated with this phenomenon -- such as vandalism, bilingualism, old buildings, disadvantaged youth, and poverty -- are present in all such districts, but the wealthier districts from the point of view of assessed valuation per pupil are better able to respond to such problems than the poorer districts.

Similarly, the presence of small districts, which require greater expenditures because of "diseconomies of scale," is not confined to wealthier districts, and wealth differences among such districts create substantial disparities in both tax rates and expenditures.

While federal revenue grants to school districts in which federal tax-exempt facilities are located must be considered in evaluating wide disparities in assessed wealth per pupil, the availability of such revenue under Public Law 81-874 has been substantially curtailed, accounts for only a negligible amount of total educational revenue in California, and affects only a small number of districts. Even among such districts wide variations in assessed wealth create inequity in tax rates and spending levels.

In view of all of the foregoing it is clear that substantial disparities in expenditures per pupil resulting from differences in local taxable wealth will continue to exist under S.B. 90 and A.B. 1267. The reason for this is that essentially local wealth is the principal determinant of revenue, that high wealth districts do not need to make the same tax effort as low wealth districts in order to reach, let alone exceed, the level of the [18 Cal.3d 747] foundation program and that in this setting, basic aid becomes antiequalizing and "convergence" of doubtful achievement. fn. 18

There exist several alternative potential methods of financing the public school system of this state which would not produce wealth-related spending disparities. These alternative methods, which are "workable, practical and feasible," include: "(1) full state funding, with the imposition of a statewide property tax; (2) consolidation of the present 1,067 school districts into about five hundred districts, with boundary realignments to equalize assessed valuations of real property among all school districts; (3) retention of the present school district boundaries but the removal of commercial and industrial property from local taxation for school purposes and taxation of such property at the state level; (4) school district power equalizing[,] which has as its essential ingredient the concept that school districts could choose to spend at different levels but for each level of expenditure chosen the tax effort would be the same for each school district choosing such level whether it be a high-wealth or a low-wealth district; (5) vouchers; and (6) some combination of two or more of the above."

Substantial disparities in expenditures per pupil among school districts cause and perpetuate substantial disparities in the quality and extent of availability of educational opportunities. For this reason the school financing system before the court fails to provide equality of treatment to all the pupils in the state. Although an equal expenditure level per pupil in every district is not educationally sound or desirable because of differing educational needs, equality of educational opportunity requires [18 Cal.3d 748] that all school districts possess an equal ability in terms of revenue to provide students with substantially equal opportunities for learning. The system before the court fails in this respect, for it gives high-wealth districts a substantial advantage in obtaining higher quality staff, program expansion and variety, beneficial teacher-pupil ratios and class sizes, modern equipment and materials, and high-quality buildings.

There is a distinct relationship between cost and the quality of educational opportunities afforded. Quality cannot be defined wholly in terms of performance on statewide achievement tests because such tests do not measure all the benefits and detriments that a child may receive from his educational experience. However, even using pupil output as a measure of the quality of a district's educational program, differences in dollars do produce differences in pupil achievement.

B. Conclusions of Law and Judgment

Although we consider it unnecessary to set out a comprehensive review of the trial court's 128 conclusions of law, the most fundamental of those conclusions were incorporated into the judgment, which we now describe.

The trial court held that the California public school financing system for elementary and secondary schools as it stood following the adoption of S.B. 90 and A.B. 1267, while not in violation of the equal protection clause of the Fourteenth Amendment to the federal Constitution, fn. 19 was invalid as in violation of former article I, sections 11 and 21, of the California Constitution (now art. IV, 16 and art. I, 7 respectively; see and compare Serrano I, supra, at p. 596, fn. 11), our state equal [18 Cal.3d 749] protection provisions. fn. 20 Indicating the respects in which the system before it was violative of our state constitutional standard, fn. 21 the court set a period of six years from the date of entry of judgment fn. 22 as a reasonable time for bringing the system into constitutional compliance; it further held and ordered that the existing system should continue to operate until such compliance had been achieved. The judgment specifically [18 Cal.3d 750] provided that it was not to be construed to require the adoption of any particular system of school finance, but only to require that the plan adopted comport with the requirements of state equal protection provisions. Finally, the trial court retained jurisdiction of the action and over the parties "so that any of such parties may apply for appropriate relief in the event that relevant circumstances develop, such as a failure by the legislative and executive branches of the state government to take the necessary steps to design, enact into law, and place into operation, within a reasonable time from the date of entry of this Judgment, a California Public School Financing System for public elementary and secondary schools that will fully comply with the said equal-protection-of-the-law provisions of the California Constitution."

III

Defendants advance three substantive contentions on appeal.

[1a] First, it is urged that the trial court employed inappropriate criteria insofar as it focussed on the notion of so-called "fiscal neutrality" to the exclusion of other factors relevant to its determination. If the trial court had employed appropriate criteria, it is suggested, the system as improved by S.B. 90 and A.B. 1267 would have been seen to be free from constitutional objection on equal protection grounds.

[2a] Second, defendants urge that an improper legal standard of equal protection review was utilized. The proper standard, it is contended, even under our state constitutional provisions, is that requiring no more than a rational relationship, critically analyzed, between the financing method chosen and some legitimate state purpose.

[3a] Third, and assuming that the financing system before the court is to some extent inconsistent with state constitutional provisions guaranteeing the equal protection of the laws, it is urged that those provisions are to that extent in conflict with other provisions of the state Constitution and, in accordance with the principle of consistency in constitutional interpretation, should be made to yield pro tanto in order to avoid such conflict.

IV

[4a] Before taking up the foregoing contentions, we first dispose of a preliminary procedural matter. Defendants urge that the trial court was [18 Cal.3d 751] without jurisdiction to proceed in this matter because two allegedly indispensable parties -- the Legislature and the Governor -- were not joined. (See Code Civ. Proc., 389.) It is pointed out that "the operative and directory provisions" of the judgment "are addressed solely to the Legislative and Governor," and that the parties defendant in the action lack all power to bring about the relief sought by plaintiffs and awarded by the trial court -- i.e., the restructuring of the state public school financing system in a manner which will comply with provisions of our state Constitution guaranteeing equal protection of the laws. Reference is made to certain legislative reapportionment cases, notably Silver v. Brown (1965) 63 Cal.2d 270 [46 Cal.Rptr. 308, 405 P.2d 132], and to the fact that the Governor and the members of the Legislature were there made parties. To do otherwise in this case, it is urged, "would deny [the] people who created this financing system through their elective representatives of their day in Court ...."

This contention is based on several misconceptions and inaccurate statements of the record. [5] First, it is clear that the trial court -- wholly cognizant of the well-established principle, rooted in the doctrine of separation of powers (Cal. Const., art. III, 3), that the courts may not order the Legislature or its members to enact or not to enact, fn. 23 or the Governor to sign or not to sign, fn. 24 specific legislation -- by no means addressed the "operative and directory provisions" of its judgment to the Legislature and Governor. [4b] On the contrary it simply declared that the public school financing system before it, which was administered by the parties defendant, was in violation of state constitutional provisions guaranteeing equal protection of the laws. The trial court also indicated that it would retain jurisdiction over the matter so that any party might apply for "appropriate relief" fn. 25 in the event that the lawmakers and the Governor had failed within a reasonable time, set by [18 Cal.3d 752] the judgment at six years, "to take the necessary steps to design, enact into law, and place into operation" a system which would comply with those provisions. However, it explicitly and properly refrained from issuing directives to the lawmakers and the chief executive, stating in its judgment: "... [T]his judgment is not intended to require, and is not to be construed as requiring, the adoption of any particular plan or system for financing the public elementary and secondary schools of the state ...."

[6] Secondly, as the reapportionment cases themselves indicate, it is the general and long-established rule that in actions for declaratory and injunctive relief challenging the constitutionality of state statutes, state officers with statewide administrative functions under the challenged statute are the proper parties defendant. (See Yorty v. Anderson (1963) 60 Cal.2d 312, 317-318 [33 Cal.Rptr. 97, 384 P.2d 417], and cases there cited; cf. D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 [112 Cal.Rptr. 786, 520 P.2d 10]; City of Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259 [85 Cal.Rptr. 1, 466 P.2d 225, 37 A.L.R.3d 1313].) The fact that in the reapportionment context the Legislature and its members may also be considered proper parties stems from the direct institutional interest of those parties in the determination. (See and cf. fn. 26 Silver v. Jordan (S.D. Cal. 1964) 241 F.Supp. 576, 579, affirmed (1965) 381 U.S. 415 [14 L.Ed.2d 689, 85 S.Ct. 1572]; Minnesota State Senate v. Beens (1972) 406 U.S. 187, 194 [32 L.Ed.2d 1, 8, 92 S.Ct. 1477].) [4c] In the instant case, on the other hand, as in the great majority of cases brought against state administrative officers to challenge the constitutionality of a statute or statutes administered by them, the Legislature and the Governor lack any similar interest. The interest they do have -- that of lawmakers concerned with the validity of statutes enacted by them -- is not of the immediacy and directness requisite to party status; it may thus be fully and adequately represented by the appropriate administrative officers of the state.

Moreover, even should the Legislature and the Governor be considered proper parties to this litigation (i.e., parties subject to permissive joinder or capable of intervention), it is clear that they could in no case be considered indispensable parties, or parties without whom the action could not fairly proceed. [7] Indispensable parties, as we said in Bank of California v. Superior Court (1940) 16 Cal.2d 516, at page 521 [106 [18 Cal.3d 753] P.2d 879], are parties "whose interests, rights, or duties will inevitably be affected by any decree which can be rendered in the action. Typical are the situations where a number of persons have undetermined interests in the same property, or in a particular trust fund, and one of them seeks, in an action, to recover the whole, to fix his share, or to recover a portion claimed by him. The other persons with similar interests are indispensable parties. The reason is that a judgment in favor of one claimant for part of the property or fund would necessarily determine the amount or extent which remains available to the others. Hence, any judgment in the action would inevitably affect their rights." [4d] Manifestly, the Legislature and the Governor have no interest in this proceeding which is remotely comparable to that contemplated by this language.

Moreover, as we also said in the Bank of California case, in dealing with the doctrine of indispensable and necessary parties "we should ... be careful to avoid converting a discretionary power or a rule of fairness in procedure fn. 27 into an arbitrary and burdensome requirement which may thwart rather than accomplish justice." (16 Cal.2d at p. 521; see also Muggill v. Reuben H. Donnelley Corp. (1965) 62 Cal.2d 239, 241 [42 Cal.Rptr. 107, 398 P.2d 147].) In the instant case it is quite clear that no governmental interest has lacked for able and willing advocates in the absence of the Legislature and Governor as parties. This case has been well-known to those entities since its inception, yet they have at no point sought intervention or indicated any interest in doing so. Even more significantly, this is a matter whose resolution has been anxiously awaited by the parties and the public at large for more than seven years. In light of these considerations we are convinced that to invoke the doctrine of indispensability, and thus require the renewal of trial proceedings on this ground, would indeed be to "thwart rather than accomplish justice."

V

[1b] Defendants' first substantive contention, as indicated above, concerns the criteria employed by the trial court in its examination of the school finance system before it. The trial court, it is urged, by confining its inquiry to the matter of wealth-related disparities among the several school districts, improperly ignored certain other factors -- for example, [18 Cal.3d 754] the "adequacy" and "equality" of educational programs fn. 28 -- and thus oversimplified the problem before it. This point of view, it is claimed, is reflected in the terms of the judgment itself. (See par. 4 of the judgment set forth ante in fn. 21.) The application of proper criteria, defendants argue, would require the trial court to look not merely to the operation of particular "mechanisms" utilized by the system but to the overall results achieved in terms of "a fair balance, statewide, between equal educational opportunities and local supplementation." To do otherwise, it is urged, is to adopt a nearsighted approach which, in its zeal to perfect one "mechanism" in the system, imposes a standard of "neutrality" upon all its other elements. "Municipal overburden," with its attendant problems, also covered by trial court findings, is cited by defendants as a particular example of an area requiring not "neutrality" but special efforts according to the circumstances. fn. 29

Defendants offer two formulations of what they consider to be adequate criteria for the assessment of the public school financing system. In their opening brief they suggest a tripartite test which is less an alternative to the "fiscal neutrality" approach of the trial court than what turns out to be defendants' description of the system at issue from the standpoint of its overall effect. fn. 30 Perhaps realizing the unwieldiness [18 Cal.3d 755] of this formulation, they proceed in their reply brief to state the apparent kernel of their position in more straightforward terms: of the three types of revenues available to school districts -- foundation funds, categorical aids, and local supplements -- only the third, it is asserted, is "unequalized," or dependent upon taxable district wealth and the capacity or willingness of the voters to pay additional school taxes. The percentage of total state school district revenues represented by these "unequalized" revenues, defendants assert, "provides an objective measure of the relative weights given by the system in a given year to equal educational opportunities and local participation in school fiscal affairs." So long as this figure is sufficiently low -- defendants suggest 10 percent as an appropriate figure -- the relevant competing interests are adequately accommodated. This, then, is the "optimum balance" criterion which defendants would suggest that we utilize in preference to the "fiscal neutrality" approach of the trial court. If we were to do so, it is asserted, we would find that the subject system, as improved by the provisions of S.B. 90 and A.B. 1267, is in approximate compliance with the suggested standards. fn. 31

The fundamental defect in this argument is that it flies in the face of our holding in Serrano I and also of the findings of the trial court, which were carefully grounded on that holding. In Serrano I we held that if the allegations of the complaint were sustained -- which allegations dealt not only with district disparities in revenue-producing capability but also with the effect of such disparities on the quality of education in the various districts (see Serrano I, supra, at p. 601, fn. 16) -- then "the financial system must fall and the statutes comprising it must be found unconstitutional" as in violation of equal protection. (Serrano I, supra, at p. 615.) We described the system in question (i.e., the system alleged to exist in the complaint) as one which "conditions the full entitlement to [the interest in education] on wealth, classifies its recipients on the basis of their collective affluence[,] and makes the quality of a child's education depend upon the resources of his school district ...." (Id. at p. 614.) It follows, therefore, that any system in which the two basic [18 Cal.3d 756] elements of this description are present -- i.e., (1) the conditioning of the availability of school revenues upon district wealth, with resultant disparities in school revenue, and (2) the dependency of the quality of education upon the level of district expenditure -- must be declared invalid unless it finds justification sufficient to satisfy the applicable equal protection test. fn. 32

The trial court, scrupulously adhering to the law as set forth in our previous opinion, concluded in essence that the new school financing system, although considerably improved over that which was before us in Serrano I, nevertheless retained the foregoing ingredients of the former system. This determination was recorded in no less than 299 findings of fact, none of which is challenged by defendants as lacking in substantial support. In these circumstances defendants cannot now be heard to maintain that different "criteria" should have been employed by the trial court. The "criteria" utilized by the trial court in assessing the discriminatory effect of the system before it were those enjoined upon the court by our opinion in Serrano I. Clearly there was no error in this respect.

Moreover, even if defendants' "optimum balance" argument were not foreclosed by our decision in Serrano I -- and if it be further assumed that the recommended 90/10 ratio might be sufficient to satisfy constitutional demands fn. 33 -- it is apparent that the factual premises on which such argument is based are open to serious question.

In the first place, the figures upon which defendants base their assertion of present compliance with the suggested standard (see fn. 31, ante, and accompanying text) are drawn from 1973-1974 fiscal data, that is, data reflecting the immediate impact of the post-Serrano I enactments. [18 Cal.3d 757] It is clear, however, that in 1973-1974 the various pressures -- notably increasing inflation and declining enrollment fn. 34 -- tending to augment the district ratio of local supplements to other revenues had not fully manifested themselves. Under the present system which, according to the trial court's findings, makes the ability of particular school districts to cope with such pressures vary according to the taxable wealth of the particular district, it can be expected that future years will see an increase statewide in the ratio of local supplements to other revenues. In such circumstances, the extent of an individual district's participation in the statewide increase will be geared to its taxable wealth. To ask, as defendants do, that we defer our notice of such probable future disparities to the time of their actual occurrence is to ask that we ignore inherent defects in the system which we are called upon to examine.

More fundamentally, however, we point out that the basic factual premise upon which defendants posit the above argument -- namely that under the subject system 90 percent of total statewide school expenditures are "equalized" or, in other words, are not "dependent upon the taxable wealth in a school district and the capacity and willingness of the voters to pay additional school taxes" -- is flatly and fully contradicted by the factual determinations of the trial court. The lion's share of those revenues asserted to be in the "equalized" category is composed of revenue represented by the foundation program (approximately 74 percent of all revenue), yet the trial court explicitly found that the tax effort required of a school district to attain the foundation level fn. 35 varied according to the taxable wealth of that district. Thus, these revenues can by no means be considered "equalized" under defendants' own definition of that term. If we include foundation program funds among those funds which are "unequalized," the ratio becomes not 10 percent to 90 percent in favor of "equalized" revenues but approximately 84 percent to 16 percent in favor of "unequalized" revenues.

Finally, we offer some comments upon the complex problems associated with "municipal overburden," which defendants and some of [18 Cal.3d 758] the amici curiae, notably the San Francisco Unified School District, see as a critical problem under any system of school financing. It is important to recognize at the outset that "municipal overburden" is a banner under which many armies march. Strictly speaking, the term relates to the phenomenon, prevalent in concentrated urban areas, of high property tax rates for governmental services other than education. Such a phenomenon, it is suggested, must be taken into account when comparing school tax rates in various districts; a lower school tax rate in an urban area, it is urged, cannot be realistically compared with higher tax rates in suburban or rural areas in terms of "equal tax effort" because the taxpayers residing in districts in the latter areas may bear a lighter overall tax burden in terms of a total rate. fn. 36 As the trial court found, however, the phenomenon in question is not limited in its occurrence to districts such as San Francisco where a relatively high assessed valuation (due to a concentration of business and industry) combined with a comparatively small ADA permits a relatively low school tax rate. On the contrary, the residents of districts in Los Angeles, San Diego, and San Jose, for example -- with a much lower assessed valuation per ADA fn. 37 -- suffer from the same typically urban problems and require similarly high nonschool tax rates to meet them. The system before us, by tying a district's ability to respond to its educational needs and desires to its taxable wealth per ADA, clearly discriminates among equally beleaguered urban districts from the point of view of their respective [18 Cal.3d 759] capacities to bring educational benefits to the students resident within their borders. fn. 38

The term "municipal overburden" is also sometimes used to designate certain problems related not to high nonschool tax rates but to additional burdens of school expenditure imposed upon urban districts by the facts of urban life. When there is widespread poverty, disadvantaged youth, and bilingualism in a district, it is argued, not only do purely educational costs rise due to the necessity for increased effort to overcome motivational and adaptive problems, but costs related to matters like vandalism rise as well. Again, however, the incidence of these problems is not [18 Cal.3d 760] limited to districts of any particular level of wealth per ADA. From the point of view of providing education, those districts which are able to meet the above problems because of a relatively high assessed valuation per ADA are clearly favored over districts which lack that advantage.

The immediately foregoing discussion reveals but one aspect of a more fundamental and pervasive problem. As defendants state the matter in their reply brief: "The weak relationship between expenditures per pupil and taxable wealth per pupil ... is explained in part by factors affecting the cost of offering substantially equivalent school programs in different school districts. For example, some school districts have old buildings which require expensive maintenance; some have a disproportionate number of older teachers entitled to higher salaries; some must spend excessive amounts for security, and for the repair of vandalized buildings. Some high schools in remote parts of the State have only a few students and must maintain costly classes for less than ten students. Some schools must insulate rooms to keep out distracting noise from airports or freeways. Some are located in parts of the State where climatic conditions require unusually high expenditures for heating or air conditioning." Under the system we here examine, however, the ability of a school district to meet those problems peculiar to it depends in large part upon the taxable wealth of that district per ADA. A fiscally neutral system, if tailored in a responsive and responsible way, would in no way resemble the specter which defendants raise. Rather, it would make the individual district's ability to meet its own particular problems connected with providing educational opportunity depend upon factors other than the wealth of the district, and thus dissipate the discrimination which characterizes the system before us.

For all of the foregoing reasons we reject in its entirety defendants' constellation of contentions dealing with the criterion of "fiscal neutrality" adopted by the trial court. We have concluded, upon a complete review of the findings and the evidence, that the discrimination in public school financing of which plaintiffs complain has been shown to exist under the system here at issue, and that the trial court, in so finding, employed proper criteria. We now proceed to address the question whether the system as shown to exist is invalid as in violation of constitutional guarantees.

VI

In Serrano I this court, in its determination of whether or not the allegations of the complaint stated a cause of action, was faced at the [18 Cal.3d 761] outset with the task of choosing the proper equal protection standard to be applied. "[T]he United States Supreme Court," we pointed out, "has employed a two-level test for measuring legislative classifications against the equal protection clause. 'In the area of economic regulation, the high court has exercised restraint, investing legislation with a presumption of constitutionality and requiring merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose. ... [] On the other hand, in cases involving "suspect classifications" or touching on "fundamental interests," ... the court has adopted an attitude of active and critical analysis, subjecting the classification to strict scrutiny. ... Under the strict standard applied in such cases, the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.'" (Serrano I at p. 597, quoting from Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784-785 [87 Cal.Rptr. 839, 471 P.2d 487], vacated on other grounds (1971) 403 U.S. 915 [29 L.Ed.2d 692, 91 S.Ct. 2224].)

Concluding on the basis of the complaint that the case before us involved both a "suspect classification" (because the discrimination in question was made on the basis of wealth) and affected a "fundamental interest" (education), we proceeded to apply the latter standard. Addressing ourselves to the state interest advanced by defendants -- local decision-making power and fiscal control -- we concluded that it was not incumbent upon us to decide whether that asserted interest was "compelling" or whether the existing financial system was "necessary" to its furtherance because under the facts as alleged the notion of local control was a "cruel illusion for the poor school districts" due to limitations placed upon them by the system itself. "In summary," we held, "so long as the assessed valuation within a district's boundaries is a major determinant of how much it can spend for its schools, only a district with a large tax base will be truly able to decide how much it really cares about education. The poor district cannot freely choose to tax itself into an excellence which its tax rolls cannot provide. Far from being necessary to promote local fiscal choice, the present financing system actually deprives the less wealthy districts of that option." (Serrano I at p. 611.)

[2b] During the progress of trial proceedings below, the United States Supreme Court rendered its decision in San Antonio School District v. Rodriguez, supra, 411 U.S. 1. There, addressing itself to an [18 Cal.3d 762] equal protection attack on the Texas public school financing system -- which like the system here in question is based on the "foundation approach" -- the high court held that that system (1) did not result in a suspect classification based upon wealth, and (2) did not affect any fundamental interest, education being less than fundamental for these purposes because it was not explicitly or implicitly guaranteed or protected by the terms of the federal Constitution. (Id., at pp. 33-34, 61-62 [36 L.Ed.2d at pp. 42-43, 59-60].) Accordingly, the court held, the so-called "strict scrutiny test" for equal protection review of state laws under the Fourteenth Amendment to the United States Constitution was inappropriate. Reinforced in this conclusion by the fact that the case before it involved peculiarly local questions of taxation, fiscal planning, and educational policy -- and thus raised serious considerations of federalism and deference to local decision (id., at pp. 40-44 [36 L.Ed.2d at pp. 47-50]) -- the high court proceeded to examine the Texas system under the less stringent "rational relationship" test, concluding that such a relationship to the state purpose of local control was shown. fn. 39 (Id., at pp. 48-55 [36 L.Ed.2d at pp. 51-56].)

We -- along with the trial court and the parties -- think it is clear that Rodriguez undercuts our decision in Serrano I to the extent that we held the California public school financing system (if proved to be as alleged) to be invalid as in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. However, as we made clear in footnote 11, our decision in Serrano I was based not only on the provisions of the federal Constitution but on the provisions of our own state Constitution as well.

Our footnote 11 read as follows: "The complaint also alleges that the financing system violates article I, sections 11 and 21 [now in substance article IV, section 16 and article I, section 7(b)] of the California Constitution. Section 11 provides: 'All laws of a general nature shall have a uniform operation.' Section 21 states: 'No special privileges or [18 Cal.3d 763] immunities shall ever be granted which may not be altered, revoked, or repealed by the Legislature; nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.' We have construed these provisions fn. 40 as 'substantially the equivalent' of the equal protection clause of the Fourteenth Amendment to the federal Constitution. (Dept. of Mental Hygiene v. Kirchner (1965) 62 Cal.2d 586, 588 [43 Cal.Rptr. 329, 400 P.2d 321].) Consequently, our analysis of plaintiffs' federal equal protection contention is also applicable to their claim under these state constitutional provisions." (Serrano I at p. 596.) The first question here facing us is that of the proper interpretation of the foregoing two sentences in light of Rodriguez.

Three possible interpretations of this language have been suggested to us. All proceed on the premise properly embraced by all parties hereto, that the footnote's citation of our second Kirchner opinion forecloses any argument that a classification which satisfies federal equal protection standards by the same token satisfies our own constitutional provisions. fn. 41 Granting this, however, defendants argue that our reliance in Serrano I on United States Supreme Court cases dealing with the proper application of the strict scrutiny standard of review must be reexamined in light of Rodriguez, and that such reexamination must result in the conclusion that neither a "suspect classification" nor a "fundamental interest" is here involved, precluding use of a strict scrutiny standard for purposes of resolving the state constitutional question. Plaintiffs, on the other hand, urge that removal of the federal ground by Rodriguez leaves our Serrano I rationale wholly intact on state grounds. Alternatively they argue that if Rodriguez is to be utilized by analogy in applying our state constitutional provisions -- so that, for example, a "fundamental interest" for state purposes would be held to exist only if the right in question is explicitly [18 Cal.3d 764] or implicitly guaranteed by the state Constitution -- the interest in education will be seen to meet this test. fn. 42 This, it will be recalled, was the theory adopted by the trial court (see fn. 19, ante, and accompanying text).

The primary position adopted by plaintiffs on this point is the correct one. [8] As Serrano I makes clear through its reference to our second Kirchner opinion (and as all parties hereto are agreed), our state equal protection provisions, while "substantially the equivalent of" the guarantees contained in the Fourteenth Amendment to the United States Constitution, are possessed of an independent vitality which, in a given case, may demand an analysis different from that which would obtain if only the federal standard were applicable. We have recently stated in a related context: "[I]n the area of fundamental civil liberties -- which includes ... all protections of the California Declaration of Rights -- we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is California law and the full panoply of rights Californians have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but are to be followed by California courts only when they provide no less individual protection than is guaranteed by California law." (People v. Longwill (1975) 14 Cal.3d 943, 951, fn. 4 [123 Cal.Rptr. 297, 538 P.2d 753]; see also People v. Disbrow (1976) 16 Cal.3d 101, 114-115 [127 Cal.Rptr. 360, 545 P.2d 272]; People v. Norman (1975) 14 Cal.3d 929, 939 [123 Cal.Rptr. 109, 538 P.2d 237]; People v. Brisendine (1975) 13 Cal.3d [18 Cal.3d 765] 528, 548-552 [119 Cal.Rptr. 315, 531 P.2d 1099]; Burrows v. Superior Court (1974) 13 Cal.3d 238, 245-246 [118 Cal.Rptr. 166, 529 P.2d 590]; Mandel v. Hodges (1976) 54 Cal.App.3d 596, 615-617 [127 Cal.Rptr. 244]; State v. Kaluna (1974) 55 Hawaii 361 [520 P.2d 51, 58-59]; Baker v. City of Fairbanks (Alaska 1970) 471 P.2d 386, 401-402; fn. 43 see generally Note, Project Report: Toward An Activist Role for State Bills of Rights (1973) 8 Harv. Civ. Rights -- Civ. Lib.L.Rev. 271; Falk, Foreword: The State Constitution: A More Than "Adequate" Nonfederal Ground (1973) 61 Cal.L.Rev. 273; Note, Rediscovering the California Declaration of Rights (1974) 26 Hastings L.J. 481.)

[2c] Thus, the fact that a majority of the United States Supreme Court have now chosen to contract the area of active and critical analysis under the strict scrutiny test for federal constitutional purposes fn. 44 can have no effect upon the existing construction and application afforded our own constitutional provisions. Nor can the additional fact -- if it be a fact -- that certain of the high court's former decisions (which may have been relied upon by us in Serrano I) may not be expected to thrive in the shadow of Rodriguez cause us to withdraw from the principles we there announced on state as well as federal grounds.

For these reasons then, we now adhere to our determinations, made in Serrano I, that for the reasons there stated and for purposes of assessing our state public school financing system in light of our state constitutional provisions guaranteeing equal protection of the laws (1) discrimination [18 Cal.3d 766] in educational opportunity on the basis of district wealth involves a suspect classification, and (2) education is a fundamental interest. Because the school financing system here in question has been shown by substantial and convincing evidence produced at trial to involve a suspect classification (insofar as this system, like the former one, draws distinctions on the basis of district wealth), and because that classification affects the fundamental interest of the students of this state in education, we have no difficulty in concluding today, as we concluded in Serrano I, that the school financing system before us must be examined under our state constitutional provisions with that strict and searching scrutiny appropriate to such a case. fn. 45

We are fortified in reaching this conclusion by language appearing in the Rodriguez decision itself. The high court, in passing upon the validity of the Texas system under the federal equal protection clause, repeatedly emphasized its lack of "expertise" and familiarity with local problems of school financing and educational policy, which lack "counsel[ed] against premature interference with informed judgments made at the state and local levels." (Rodriguez, supra, at p. 42 [36 L.Ed.2d at p.48].) These considerations, in conjunction with abiding concerns from the standpoint of federalism, fn. 46 in the high court's view "buttress[ed] [its] conclusion that Texas' system of public school finance is an inappropriate candidate for strict judicial scrutiny." (Id., at p. 44 [36 L.Ed.2d at p. 49].) This court, on the other hand, in addressing the instant case occupies a position quite different from that of the high court in Rodriguez. The constraints of [18 Cal.3d 767] federalism, so necessary to the proper functioning of our unique system of national government, are not applicable to this court in its determination of whether our own state's public school financing system runs afoul of state constitutional provisions. Moreover, while we cannot claim that we have achieved the perspective of "expertise" on the subjects of school financing and educational policy, our deliberations in this matter have had the benefit of a thoughtfully developed trial record (comprising almost 4,000 pages of testimonial transcript, replete with the opinions of experts of various accomplishments and persuasions, and a clerk's transcript of almost equal size), comprehensive if not exhaustive findings on the part of an able trial judge, and voluminous briefing by the parties and no less than nine amici curiae, among which are included the state Superintendent of Public Instruction. We believe that this background amply equips us to undertake the searching judicial scrutiny of our state's public school financing system which is required of us under our state constitutional provisions guaranteeing equal protection of the laws.

We point out in closing, however, that our application of the strict scrutiny test in this case should in no way be interpreted to imply an acceptance of the theory, adopted by the trial court and advanced as an alternative rationale by plaintiffs and some of their supporting amici, by which the Rodriguez approach to assessing "fundamentalness" in affected rights is applied by analogy in the state sphere. (See fn. 20, ante, and accompanying text.) Suffice it to say that we are constrained no more by inclination than by authority to gauge the importance of rights and interests affected by legislative classifications wholly through determining the extent to which they are "explicitly or implicitly guaranteed" (Rodriguez, supra, at p. 33 [36 L.Ed.2d at p. 43]) by the terms of our compendious, comprehensive, and distinctly mutable state Constitution. fn. 47 In applying our state constitutional provisions guaranteeing equal protection of the laws we shall continue to apply strict and searching judicial scrutiny to legislative classifications which, because of their impact on those individual rights and liberties which lie at the core of [18 Cal.3d 768] our free and representative form of government, fn. 48 are properly considered "fundamental."

VII

For the reasons above stated, we have concluded that the state public school financing system here under review, because it establishes and perpetuates a classification based upon district wealth which affects the fundamental interest of education, must be subjected to strict judicial scrutiny in determining whether it complies with our state equal protection provisions. [9] Under this standard the presumption of constitutionality normally attaching to state legislative classifications falls away, and the state must shoulder the burden of establishing that the classification in question is necessary to achieve a compelling state interest. (Serrano I at p. 597; see also Weber v. City Council (1973) 9 Cal.3d 950, 958-959 [109 Cal.Rptr. 553, 513 P.2d 601].) [10a] Basing our determination upon the amply supported factual findings of the trial court, which we have summarized in part II above, we conclude without hesitation that the trial court properly determined that the state failed to bear this burden.

Our reasons for this conclusion are essentially those stated by us on this point in Serrano I. The system in question has been found by the trial court, on the basis of substantial and convincing evidence, to suffer from the same basic shortcomings as that system which was alleged to exist in the original complaint -- to wit, it allows the availability of educational opportunity to vary as a function of the assessed valuation per ADA of taxable property within a given district. The state interest advanced in justification of this discrimination continues to be that of local control of fiscal and educational matters. However, the trial court has found that asserted interest to be chimerical from the standpoint of those districts which are less favored in terms of taxable wealth per pupil, and we ourselves, after a thorough examination of the record, are in wholehearted agreement with this assessment.

The admitted improvements to the system which were wrought by the Legislature following Serrano I have not been and will not in the foreseeable future be sufficient to negate those features of the system [18 Cal.3d 769] which operate to perpetuate this inequity. Foremost among these -- especially in a period of rising inflation and restrictive revenue limits -- is the continued availability of voted tax overrides which, while providing more affluent districts with a ready means for meeting what they conceive as legitimate and proper educational objectives, will be recognized by the poorer districts, unable to support the passage of such overrides in order to meet equally desired objectives, as but a new and more invidious aspect of that "cruel illusion" which we found to be inherent in the former system. (Serrano I at p. 611.) In short, what we said in our former opinion in this respect is equally true here. "[S]o long as the assessed valuation within a district's boundaries is a major determinant of how much it can spend for its schools, only a district with a large tax base [per ADA] will be truly able to decide how much it really cares about education. The poor district cannot freely choose to tax itself into an excellence which its tax rolls cannot provide. Far from being necessary to promote local fiscal choice, the present financing system actually deprives the less wealthy districts of that option." (Id.)

It is accordingly clear that the California public school financing system here under review, because it renders the educational opportunity available to the students of this state a function of the taxable wealth per ADA of the districts in which they live, has not been shown by the state to be necessary to achieve a compelling state interest. fn. 49 [3b] Defendants, however, have one more string to their bow: they, joined by one of the amici curiae, contend that even in the event of such a holding by this court the financing system before us cannot be held to be in violation of state equal protection provisions, because other provisions of our state Constitution specifically authorize just such a system. It is to this contention that we now turn.

VIII

[11a] Defendants' claim of specific state constitutional authorization for the public school financing system before us is primarily based upon [18 Cal.3d 770] the terms of article XIII, section 21, which provides: "Within such limits as may be provided under Section 20 of this Article [allowing the Legislature to provide maximum local property tax rates and bonding limits], the Legislature shall provide for an annual levy by county governing bodies of school district taxes sufficient to produce annual revenues for each district that the district's board determines are required for its schools and district functions." The argument, generally stated, is that a harmonious interpretation of this section along with other provisions requiring equal protection of the laws must operate to insulate distinctions based on district wealth disparities from state equal protection requirements. The argument proceeds on two distinct levels. First, it is urged, we held in Serrano I that the system there before us was "authorized" and "mandated" by the predecessor to article XIII, section 21 (former art. IX, 6, par. 6); that holding, defendants and their supporting amicus assert, is now the law of the case, and to the extent that the system here in question shares in the shortcomings of the former system related to district wealth disparities, it too is so "authorized" and "mandated." Second, it is pointed out, even if we are not compelled to this conclusion by the doctrine of the law of the case, the terms of the section compel the indicated result. We take up these contentions in order.

At pages 595 and 596 of our opinion in Serrano I, in rejecting plaintiffs' contention that the system there alleged to exist was violative of the provisions of article IX, section 5 (requiring "a system of common schools"), we observed that former article IX, section 6, paragraph 6 (now art. XIII, 21), the provision here at issue, "specifically authorizes the very element of the fiscal system of which plaintiffs complain." (Id., at p. 596.) At a later point in the opinion, rejecting a contention of defendants that only de facto discrimination was here involved, we had occasion to observe that "[t]he school funding scheme is mandated in every detail by the California Constitution and statutes." (Id., at p. 603.) It is urged that these two references, taken together, represent a holding that the system there before us was required by the terms of present article XIII, section 21. Insofar as the system now under examination shares in the features of the former system which we found objectionable in Serrano I, defendants argue, it is equally required by that section under the doctrine of the law of the case.

We reject such contentions as being utterly devoid of merit. Indeed, as we shall make clear, defendants' seizure upon such fragments of our [18 Cal.3d 771] opinion in Serrano I as a basis of argument not only results in an unreasoned distortion of such language but more unfortunately displays an attempt to circumvent the rationale of Serrano I (now the law of the case) by emphasizing isolated words out of context. It is beyond question -- and beyond cavil -- that in stating that former article IX, section 6 "specifically authorizes the very element of the fiscal system of which plaintiffs complain," we had reference to that "element" of the system permitting variations in expenditures per ADA among the several districts. This is made clear by the context of the statement and the language following it. Former section 5 of article IX (the "common schools" provision) should not, we held, be interpreted to apply to school financing and require "uniform educational expenditures" because such an interpretation would render it inconsistent with former section 6 (the provision here at issue) which allows variation in school district expenditures. This was not to say, however, that former section 6 "authorized" or "approved" a system in which such variation was the product of disparities in district wealth. Any such conclusion would clearly have been at odds with our ultimate conclusion in Serrano I that the system there alleged to exist was violative of state as well as federal equal protection provisions. (5 Cal.3d at 596, fn. 11.) (See generally Part VI, ante.)

Similarly, by saying later on in our opinion, in disposing of an entirely different contention, that the school funding scheme was "mandated in every detail by the California Constitution and statutes" (id., at p. 603; italics added), we in no way implied that the constitutional provision in question "mandated" the system there alleged to exist. The constitutional provision, as we shall point out more fully below, "mandated" only that there be a system allowing for local decision as to the level of school expenditures and that the mechanism to be utilized in providing revenues to permit such expenditures be a county levy of school district taxes. It was the statutes enacted under the aegis of that provision which tied the efficacy of local decision to district wealth.

We conclude for the foregoing reasons fn. 50 that the doctrine of the law of the case is not helpful to defendants on this point. It remains for us to [18 Cal.3d 772] undertake an interpretation of article XIII, section 21 (former art. IX, 6, par. 6) in order to determine whether that provision requires a public school financing system which, like that before us, makes local decisions affecting educational opportunity depend for their effectiveness upon the taxable wealth per ADA in the district. We conclude without hesitation that it does not.

As we have noted above, article XIII, section 21 of the state Constitution provides that the Legislature, within certain limits set by established maximum tax rates and bonding limits, "shall provide for an annual levy by county governing bodies of school district taxes sufficient to produce annual revenues for each district that the district's board determines are required for its schools and district functions." In so doing the provision both authorizes the Legislature to establish a mechanism by which the revenues "required" for each district are to be produced, and describes the character of that mechanism -- i.e., "an annual levy by county governing bodies of school district taxes." The provision does not, however, address itself to the question of the tax base to which the levy is to be applied, nor does it speak in terms of assessed valuation in any respect. Manifestly it does not authorize disparities in school district expenditures based upon the relative wealth per ADA of a particular school district. Such disparities, insofar as they have been here shown to exist, are the result of legislative action, not constitutional mandate.

Article IX, section 14 of the state Constitution clearly establishes that it is the Legislature which bears the ultimate responsibility for establishing school districts and their boundaries. fn. 51 [10b] By its exercise of this power, and by the concurrent exercise of its powers under article XIII, section 21 to provide for a school financing mechanism based upon county levies of school district taxes, it has created a system whereby disparities in assessed valuation per ADA among the various school districts result in disparities in the educational opportunity available to the students within such districts. Thus, as we said in Serrano I, [18 Cal.3d 773] "[g]overnmental action drew the school district boundary lines, thus determining how much local wealth each district would contain [citations]." (5 Cal.3d at p. 603.) It is that action, which we reiterate is the product of legislative determinations, fn. 52 that we today hold to be in violation of our state provisions guaranteeing equal protection of the laws. fn. 53

[11b] It seems to be argued, however, that because article XIII, section 21 authorizes the financing of schools by a county levy of school district taxes, the Legislature is free to structure a system based upon this mechanism in any way that it chooses. Such a notion, we hasten to point out, is manifestly absurd. [12] A constitutional provision creating the duty and power to legislate in a particular area always remains subject to general constitutional requirements governing all legislation unless the intent of the Constitution to exempt it from such requirements plainly appears.

[11c] In In re Jacobson (1936) 16 Cal.App.2d 497 [60 P.2d 1001], for example, the Legislature, acting pursuant to its power to create a system of inferior courts (former art. VI, 11a), did so in a manner which granted greater jurisdiction to city courts in populous townships than to the same class of courts of less populous townships -- regardless of the population of the particular city. This, it was held, was in violation of the fundamental constitutional requirement that laws of a general nature have a uniform application. "The legislature derives its power to create courts from the Constitution," the court stated, "but it may do so only in [18 Cal.3d 774] conformity with the provisions of the Constitution. It doubtless has the right to classify cities according to population, and having made such classification to prescribe different powers and regulations for each of the classes. The powers and regulations must, however, be uniform for each of the classes." (16 Cal.App.2d at p. 500; italics added.)

Similarly, in Mordecai v. Board of Supervisors (1920) 183 Cal. 434 [192 P. 40] the Legislature, acting pursuant to its constitutional power to create and regulate the affairs of irrigation districts (former art. XI, 13), enacted a comprehensive irrigation plan which exempted from its provisions those districts located in counties which had adopted a charter prior to a specific date. This, we concluded, it could not do. "It is argued, in effect, that this provision [former art. XI, 13] empowers the legislature to pass what laws it sees fit in regard to irrigation districts untrammeled by the general requirement that laws of a general nature shall have a uniform operation. We cannot agree with this. There is nothing to indicate that the power granted the legislature by this provision was not to be exercised by it subject to the general requirements of the constitution governing the manner in which the power of legislation when conferred or possessed shall be exercised. The legislature has the power as conferred by the provision of the constitution just quoted to legislate concerning the affairs of irrigation districts, but that power, like the power of the legislature to legislate on other subjects, must be exercised in the manner in which the constitution provides that the power of legislation when it exists must be exercised. Before any grant of power to legislate on a particular subject can be held to be free of a general requirement governing all legislation, the intent of the constitution to that effect must be plain. No such intent appears in the present instance." (183 Cal. at pp. 441-442; italics added.)

By the same token, we are here confronted with a situation in which the Legislature has been granted the power to provide for the financing of schools through the mechanism of county levies of school district taxes. Nothing in the constitutional provision establishing that power, however, indicates that its exercise is to be freed from general constitutional limitations applicable to all legislation. Accordingly the Legislature, in its exercise of the subject power in conjunction with other powers possessed by it, was obliged to act in a manner consistent with such limitations. This it has not done. Instead it has undertaken to create a school financing system which, by making the quality of educational opportunity available to a student dependent upon the wealth of the district in which he lives, is manifestly inconsistent with fundamental [18 Cal.3d 775] constitutional provisions guaranteeing the equal protection of the laws to all citizens of this state. That system, we hold today, can no longer endure.

[13] We also reject as wholly without merit the contention that the school financing system before us is somehow made necessary or permitted by the provisions of article IX, section 1, of the state Constitution. That section provides: "A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement." We declare ourselves at a loss to understand how this provision can be said to mandate or authorize the creation of a system which conditions educational opportunity on the taxable wealth of the district in which the student attends school.

[3c] For the foregoing reasons we cannot accept defendants' argument that there exists some irreconcilable conflict between the requirements of our state equal protection provisions and other state constitutional provisions of equal stature -- namely article XIII, section 21, and article IX, section 1. The latter provisions, as we interpret them, neither mandate nor approve a system such as that before us, and therefore the only conflict which here appears is that between the requirements of our state equal protection provisions and the proven realities of the present, legislatively created California public school financing system -- a conflict which the trial court, by holding that system to be invalid, properly resolved. fn. 54

IX

[10c] To recapitulate, we conclude that the trial court properly ordered and decreed that the California public school financing system [18 Cal.3d 776] for public elementary and secondary schools, including those provisions of the S.B. 90 and A.B. 1267 legislation pertaining to this system, while not in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution, is invalid as being in violation of former article I, sections 11 and 21 (now art. IV, 16 and art. I, 7, respectively) of the California Constitution, commonly known as the equal protection of the laws provisions of our state Constitution. This determination and the other related provisions of the judgment we find to be fully supported by the findings and the evidence; indeed, no attack has been made on the findings as lacking evidentiary support. For the reasons we have detailed, we discern no jurisdictional defect in the proceedings below based on the claim -- rejected by us as devoid of merit -- that the Governor and the Legislature should have been joined as indispensable parties. We conclude that the holding of the trial court is grounded solidly and soundly on our earlier decision in Serrano I wherein we determined among other things that the California public school financing system, failing to withstand "strict scrutiny," denied plaintiffs the equal protection of the laws under the relevant provisions of our state Constitution. We therefore confirm that our decision in Serrano I was based not only on the equal protection provisions of the federal Constitution but also on such provisions of our state Constitution, and we emphasize that insofar as the latter provisions are applicable here, Serrano I constitutes the law of the case.

We observe that the trial court so deemed it and properly adhered to the law set forth in our earlier opinion in assessing for state constitutional purposes the same financing system as revised by S.B. 90 and A.B. 1267. [2d] Since such system before the court was shown on substantial evidence to involve a suspect classification (based on district wealth) and to touch upon the fundamental interest of education, the trial court properly followed Serrano I in subjecting it to the "strict scrutiny" test under which the state has the burden of establishing that the classification in question is necessary to achieve a compelling state interest. [10d] Applying this test, the court properly determined on findings supported by substantial evidence that the state had failed to bear its burden and that the financing system before it was invalid as denying equal protection of the laws as guaranteed by the California Constitution. [3d] Finally we hold that, contrary to defendants' claim, there is no conflict between the requirements of our state equal protection [18 Cal.3d 777] provisions and other provisions of the California Constitution so as to compel the former to yield as the determinative law of this case.

The judgment is affirmed. We reserve jurisdiction for the purpose of considering and passing upon respondent's motion for an award of attorneys' fees on appeal, filed January 28, 1977.

Wright, C. J., Tobriner, J., and Mosk, J., concurred.

RICHARDSON, J.

I respectfully dissent. My disagreement with the majority focuses principally on part VIII of their opinion wherein they consider the application of article XIII of the California Constitution to the present school financing program, concluding that the system is invalid as violative of the equal protection provisions of that Constitution. As I develop more fully below, I have serious reservations about the constitutional analysis indulged by the majority as it affects article XIII. My principal problem with the majority's thesis is that the same Constitution expressly authorizes the essential elements of the challenged system.

The majority's learned and comprehensive review of the asserted faults and failings of the present scheme and their holding that another, more equitable, one must be devised to replace it, may well be consistent with sound public policy. Doubtless, it represents a well-intended effort to assure equal educational opportunity for California's school children. Nonetheless, it is not our function to formulate public policy. Under our time-honored, constitutionally founded system of separation of governmental powers, we are not entrusted with such difficult tasks as devising or choosing between alternative educational financing policies. That responsibility is vested in the Legislature, alone, acting within the confines expressed in our state Constitution. So long as the Legislature has performed its work in a manner consistent with overriding constitutional principles, we must uphold its efforts regardless of our personal views as to the fairness or wisdom of those legislative results. Accordingly, it becomes vital to analyze with great precision those constitutional limits on legislative action before we invalidate a system as important and accepted as the existing California school financing plan.

The majority do not now rely upon the equal protection clause of the federal Constitution. Contrary to our holding in Serrano v. Priest (1971) 5 Cal.3d 584 [96 Cal.Rptr. 601, 487 P.2d 1241] (Serrano I), it is now established by the highest authority that school district financing systems such as ours do not offend federal equal protection principles. (San [18 Cal.3d 778] Antonio School District v. Rodriguez (1973) 411 U.S. 1 [36 L.Ed.2d 16, 93 S.Ct. 1278].) Indeed, the majority herein candidly admit that the Rodriguez decision clearly "undercuts" Serrano I's reliance upon the national charter. (Ante, p. 762.) Among other things, the high court in Rodriguez held that the "strict scrutiny" standard of review was inapplicable, since no "fundamental interest" or "suspect classification" was involved; that the present traditional method of local district financing, though perhaps unfair in some respects, nevertheless operates in a rational fashion, without invidious discrimination; and that the courts should defer to the state legislatures in these matters of policy, since these bodies alone have the necessary expertise and familiarity with local problems. One may differ, as I do, with the high court's conclusion that education is not a fundamental interest. Yet, the question of whether the school financing plan here at issue violates federal equal protection has been laid to rest in Rodriguez.

The majority herein, disagreeing with Rodriguez' analysis of the equal protection issue, point to the fact that Serrano I, in a footnote, stated that its analysis of plaintiffs' federal equal protection contention "is also applicable to their claim under ... state constitutional provisions." (5 Cal.3d at p. 596, fn. 11.) The majority then hold, as we have noted, that California's school financing system is invalid under the only remaining constitutional refuge -- the state equal protection provisions. (Cal. Const., art. I, 7, art. IV, 16.)

In broad, general language the Constitution guarantees both equal protection of the laws and uniform operation of the laws, and forbids irrevocable special privileges or immunities. Since, as we have previously observed, these provisions are "substantially the equivalent" of the federal equal protection clause (Serrano I, 5 Cal.3d at p. 596, fn. 11), although not required to do so, we might defer to the Rodriguez equal protection analysis rather than create our own different interpretation of substantially identical constitutional language. (See People v. Disbrow (1976) 16 Cal.3d 101, 119, dis. opn. [ 127 Cal.Rptr. 360, 545 P.2d 272].) Indeed, a number of state courts in post-Rodriguez cases have done just that -- namely, declined to invalidate comparable school financing systems in reliance upon state constitutional provisions. (See Northshore School District No. 417 v. Kinnear (1974) 84 Wn.2d 685 [530 P.2d 178, 200-202]; Shofstall v. Hollins (1973) 110 Ariz. 88 [515 P.2d 590]; Thompson v. Engelking (1975) 96 Idaho 793 [537 P.2d 635]; cf. Hootch v. Alaska State-Operated School System (Alaska 1975) 536 P.2d 793, 804; [18 Cal.3d 779] but see Robinson v. Cahill (1973) 62 N.J. 473 [303 A.2d 273].) The present majority are, for reasons which I fully respect but do not accept, unwilling to follow the lead of Rodriguez and the foregoing cited cases.

My dissent, however, does not rely upon the foregoing principle of deference, for in my view the majority's analysis contains a serious, indeed fatal, flaw: the same California Constitution which generally extends equal protection also specifically authorizes the essential elements of California's present system of school financing. As a matter of interpretive principle, the authority which the Constitution specifically extends with one hand cannot be generally withdrawn with the other.

The majority thoroughly explain that our public schools are financed from two major sources, the state school fund and local district taxes. As to the former, state aid to education is authorized by article IX, section 6, of the state Constitution, which directs the Legislature to provide a state school fund for apportionment each year in an amount not less than $180 per pupil in average daily attendance; that the fund shall be apportioned annually as the Legislature may provide, through the school districts; and that the Legislature must apportion at least $120 per pupil in the district during the next preceding fiscal year, and at least $2,400 to each school district in each fiscal year.

As to the latter, assistance to schools from local district taxation, the subject of plaintiffs' challenge herein, is authorized by article XIII, section 21, of the Constitution which provides: "Within such limits as may be provided under Section 20 of this Article [allowing the Legislature to provide maximum local property tax rates and bonding limits], the Legislature shall provide for an annual levy by county governing bodies of school district taxes sufficient to provide annual revenues for each district that the district's board determines are required for its schools and district functions."

Paraphrased, section 21 requires the Legislature to adopt a school financing system in which each county may levy annually a school district tax in an amount sufficient to provide the revenues deemed necessary by each district board. Since under our Constitution property must be assessed in, and taxed only by, the county, city and district in which it is situated (art. XIII, 14; see San Francisco etc. Ry. Co. v. Scott (1904) 142 Cal. 222, 229 [75 P. 575]; Smith-Rice Heavy Lifts, Inc. v. County of Los Angeles (1967) 256 Cal.App.2d 190, 200 [63 Cal.Rptr. 841]; [18 Cal.3d 780] Ehrman & Flavin, Taxing Cal. Property (1967) 162, at pp. 145-146), it necessarily follows that article XIII of the Constitution, section 21 in conjunction with section 14, contemplates a school financing system in which each individual district's needs are satisfied from the taxable wealth of that district, namely, the present system which the majority find unconstitutional. The majority describe the foregoing reasoning as a "non sequitur." If, however, section 21 empowers the Legislature to provide for district tax levies to assure adequate school revenues, and if under section 14 the property subject to tax by the district to generate those revenues must repose within the district, wherein lies the "non sequitur"? Do not sections 14 and 21, in combination, authorize, constitutionally, a system whereby levy of taxes on local property within the district, supplemented by state aid, shall constitute the source of school financing?

The majority assert that the constitutional provision at issue was intended to authorize a different, more equitable, system not based upon disparities in district wealth. They concede that the state Constitution "allows variation in school district expenditures" (ante, p. 770, italics added). One would presume that expenditures are more closely related to the quality of education than generalized equality in the value of properties subject to district school taxes. However, we emphasized in Serrano I that the state Constitution did not require an equality of spending between various school districts. Our words were "... we have never interpreted the constitutional provision to require equal school spending; ..." (5 Cal.3d at p. 596.) Nonetheless, the majority insist that since the Constitution does not expressly authorize district wealth disparities as to the source of district revenues, the present system cannot be deemed protected by its shield. In the majority's view, "Such disparities ... are the result of legislative action, not constitutional mandate." (Ante, p. 772, italics in original.) (In this connection, I do not contend, of course, that the California Constitution mandates the present system of school financing, but only that it permits or authorizes that system.)

The central theme of the majority is that the Legislature has somehow abused its constitutional authority by drawing school district boundary lines in a manner permitting variations in district wealth. As the majority put it, "It is that action [drawing district boundary lines], which we reiterate is the product of legislative determinations, that we today hold to be in violation of our state provisions guaranteeing equal protection of [18 Cal.3d 781] the laws." (Ante, p. 772, italics in original.) Yet, again it is manifest that the Legislature derives its power to create and classify school districts from the same Constitution (art. IX, 14). Furthermore, we ourselves have long held that "The power of the legislature over school districts is plenary. [Citations.] It may divide, change, or abolish such districts at pleasure .... [Citation.]" (Worthington S. Dist. v. Eureka S. Dist. (1916) 173 Cal. 154, 156 [159 P. 437], italics added; see Hughes v. Ewing (1892) 93 Cal. 414, 417 [28 P. 1067].) It seems to me self-evident that if the framers of our Constitution had intended to impose substantial restrictions upon the plenary power of the Legislature over school district boundaries, they would have expressly so provided. They did not do so. I suggest that it is highly unlikely that such a drastic and dramatic restriction on plenary power as the majority now impose would have been intended to occur wholly by implication. With due deference, I suggest that, to the contrary, we must presume that those who adopted section 21 (and its predecessor sections) were fully aware of the fact that there existed for years disparities in district wealth and that the effect of the continued exercise of such plenary legislative power would result in continued disparities, which permitted wealthier districts to allocate more funds for educational purposes. (Undoubtedly, the existence of such disparities was a motivating factor in creating the state school fund to supplement local revenues. (Art. IX, 6.)) The inequitable result of district wealth disparities is forcefully and eloquently demonstrated by the majority. Nevertheless, once we determine that the action in question is constitutionally authorized, the sociologically unsatisfactory or, indeed unacceptable, consequences are matters for legislative correction.

We have often insisted that a constitutional enactment be viewed in the "light of its historical context and the conditions existing prior to its enactment." (Mulkey v. Reitman (1966) 64 Cal.2d 529, 534 [50 Cal.Rptr. 881, 413 P.2d 825], and cases cited.) Section 21 of article XIII, was adopted as recently as 1974. We have been told that its purpose was to restate "without change in meaning" the provisions of former article IX, section 6, adopted in 1946. (See Cal. Const. Revision Com., Proposed Revision of the Cal. Constitution (1971) pt. 6, p. 36.) Section 6 provided: "The Legislature shall provide for the levying annually by the governing body of each county, and city and county, of such school district taxes, .... as will produce in each fiscal year such revenue for each school district as the governing board thereof shall determine is required in such fiscal year for the support of all schools and functions of said district authorized or required by law." [18 Cal.3d 782]

Thus, as early as 1946, the California Constitution expressly authorized a system of local school district financing. Indeed, the original 1849 Constitution provided that any local school district which neglected to "keep and support" its school might lose its proportion of the interest from the public school fund. (Art. IX, 3.) Local school district financing systems in various forms, but all of them based upon individual district wealth, have been in operation from this state's inception surviving numerous amendments to the constitutional provisions authorizing local support of public schools. (See Sweet, History of the Public School System in Cal. (1876) at pp. 60-62, 66.)

The foregoing review of constitutional history is not new. A close examination of our own previous analysis of the problem demonstrates that the same conclusions I have reached were also necessarily implicit in our opinion in Serrano I. Respectfully, I find unconvincing the majority's attempt to explain away our definitive disposition in Serrano I of the state constitutional issue whether district wealth disparities can survive equal protection analysis.

First, in describing the present school financing system, Serrano I acknowledged that wealth-produced variations in district spending are a necessary by-product of the system authorized by the state Constitution. We said: "Pursuant to article IX, section 6 [the predecessor to art. XIII, 21] of the California Constitution, the Legislature has authorized the governing body of each county, and city and county, to levy taxes on the real property within a school district at a rate necessary to meet the district's annual education budget. (Ed. Code, 20701 et seq.) The amount of revenue which a district can raise in this manner thus depends largely on its tax base -- i.e., the assessed valuation of real property within its borders." (5 Cal.3d at p. 592, italics added.) The foregoing, contrary to the majority view (ante, p. 771, fn. 50), is founded upon constitutional (art. IX, 6 (the predecessor to art. XIII, 21)), not legislative, authority.

Second, in Serrano I, plaintiffs had argued that the present system was invalid under article IX, section 5, of the state Constitution, which section requires the Legislature to provide for a system of common schools. In rejecting the argument we said that, "While article IX, section 5 makes no reference to school financing, section 6 of that same article [the predecessor to art. XIII, 21] specifically authorizes the very element of the fiscal system of which plaintiffs complain." (5 Cal.3d at p. 596, italics [18 Cal.3d 783] added.) What was the "element of the fiscal system of which plaintiffs complain"? The majority insist that this phrase related to "variations in expenditures per ADA." I think it arguable, however, that this "element" in question had broader implications and included not only expenditure inequalities but district wealth disparities as well. For, on the page previous to the above quotation, we had described plaintiffs' preliminary contention as follows: "Plaintiffs' argument is that the present financing method produces separate and distinct systems, each offering an educational program which varies with the relative wealth of the district's residents." (Id., at p. 595, italics added.) I think that it is this element which section 6 of article IX authorizes, and not merely the existence of "variations in expenditures per ADA" (as suggested by the majority herein).

Third, in Serrano I, we stated that "it is clear that such [locally raised] revenue is a part of the overall educational financing system. As we pointed out, supra, article IX, section 6, of the state Constitution specifically authorizes local districts to levy school taxes." (Id., at p. 598, fn. 12.) Once again the question must be put: If under article IX local district taxes are specifically authorized for school support, and if, under article XIII, of that same Constitution, such taxes necessarily must be assessed upon local wealth, then how is the system rendered unconstitutional under article I?

Finally, in Serrano I defendants had argued that any discriminatory effects arising from the present system were "de facto" in origin and accordingly not invidious in nature. We flatly, and in my opinion wisely, rejected the argument, noting that "Indeed, we find the case unusual in the extent to which governmental action is [italics in orig.] the cause of the wealth classifications. The school funding scheme is mandated in every detail by the California Constitution and statutes." (Id., at p. 603, italics added.) The majority insist that the constitutional provision mandates "only that there be a system allowing for local decision as to the level of school expenditures," (ante, pp. 771-772). I fail, however, to see how such local decision making, necessarily based upon available local wealth as supplemented by state aid, differs in any material respect from the financing system under scrutiny herein.

In summary, we must reconcile two separate provisions of the state Constitution, first, a general expression guaranteeing our citizens "equal protection of the laws," and second, a specific constitutional provision [18 Cal.3d 784] authorizing the Legislature to adopt a school financing system whereby each district finances its own educational needs. The majority, purporting to follow the well established rule that conflicts between constitutional or statutory provisions should be avoided, construe article XIII, section 21, I respectfully suggest, in a manner which contradicts its plain meaning, ignores the "historical context" of the section, and conflicts with our own recent construction of that section in Serrano I. The irreconcilable conflict arising from the majority's rejection of the Rodriguez analysis necessarily leads to a result which is not palatable to them -- namely, in accordance with Serrano I, the conflict can be resolved in only one manner: the more specific provision of the Constitution must prevail. (5 Cal.3d at p. 596.) I am unable to accept the majority's conclusion that the present system of school financing in this state, whose essential elements are expressly authorized by specific provisions of the state Constitution, is at the same time in violation of the general equal protection clause of the same Constitution.

Few constitutional principles are more firmly established and accepted than the rule that all presumptions and intendments favor the validity of legislation. The case for invalidity of statutes must reach beyond mere doubt to the level at which we fairly can say that "'"... their unconstitutionality clearly, positively, and unmistakeably [sic] appears."'" (In re Ricky H. (1970) 2 Cal.3d 513, 519 [86 Cal.Rptr. 76, 468 P.2d 204].) Similarly, it is equally well settled that there exists a strong presumption in favor of the Legislature's interpretation of a provision of the Constitution. (Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 692 [97 Cal.Rptr. 1, 488 P.2d 161].) Thus, we must presume that the Legislature properly construed the scope of its authority under article XIII, section 21, of the Constitution, and we must further presume that the resulting school financing legislation is constitutional. The foregoing principles must be accorded great weight in determining the constitutional validity of the present school financing scheme.

I am wholly sympathetic toward the majority's efforts to achieve a more fair and equitable result in this case. I also fully acknowledge the vital role which education must play in our modern society, and the absolute necessity of assuring an adequate education for all of our citizens. There could be no more worthy goal. Yet, and I say this with the utmost deference, as I conceive our role we are not free to roam in search of administratively acceptable answers, but must work within the confines of constitutional limitations, leaving to the Legislature the selection of those particular responses which are most appropriate to a [18 Cal.3d 785] developing need. (Cal. Const., art. III, 3.) So long as the Legislature has operated under its constitutional authority we should withhold intervention. It is this principle, I believe, which prompted the wise and pertinent admonition of the United States Supreme Court in the closing sentences of its Rodriguez decision: "These matters merit the continued attention of the scholars who already have contributed much by their challenges. But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them." (San Antonio School District v. Rodriguez, supra, 411 U.S. at pp. 58-59 [36 L.Ed.2d at p. 58], italics added.)

I would reverse the judgment.

CLARK, J.

I dissent.

Our schools serve nearly 5 million students, spending over $5 billion. (1973-1974, Cal. Public Schs. Selected Stats., pp. 84-85, tables IV-1 B, IV-2 B.) fn. 1 The educational system works amazingly well, considering its huge size, the complexity of its support, and the great diversity of geography, population and commerce within our state. The system provides a high and relatively uniform level of educational opportunity.

Approximately half our schools' budget of $5 billion comes from local real property tax. Eliminating this resource would be unfair to our youth, jeopardizing the quality of their education. It is questionable whether raising an additional $2 1/2 billion through other taxes is politically feasible. The answer lies with the legislative and executive branches of state government. While neither urging abolition of local property tax nor invalidating article XIII, section 21, of our Constitution providing for local property taxes and local control of the spending level, the majority's requirement for absolute equality in the opportunity for school finances fn. 2 will have this effect.

Our present system of school financing has three abilities or goals: (a) to provide a high level of equality in access to resources; fn. 3 (b) to maintain [18 Cal.3d 786] a high level of local control over the nature and amount of expenditure; and (c) to require a substantial level of fiscal responsibility. In a system where one branch of government finances in whole or in part another branch which is given control over the expenditure, the three goals are frequently in conflict. The majority's goal of absolute equitable opportunity for school financing means sacrificing either local control or fiscal responsibility. Our legislative and executive branches, no doubt based on their experience with numerous federal-state financing programs, have established a system in which the level of equal opportunity cannot be significantly increased without major sacrifice of local fiscal or administrative control.

The present system of school finance assures that every school district shall have access to certain funds per student at a fair local tax rate regardless of district wealth. The combination of the guaranteed amount and categorical aid not challenged in this action is equal to roughly 90 percent of the school budget in California -- the equalized portion -- leaving only about 10 percent which is affected by our current source of concern -- district wealth. The potential 10 percent disparity in tax support among districts is small when viewed in light of the total educational commitment, and is fully justified by the traditional governmental interest in preserving local decision-making with local fiscal responsibility. The majority's attempt to abolish this small disparity, and [18 Cal.3d 787] in offering no substitute, will create greater inequality, frustrate local decision-making, or eliminate local fiscal responsibility.

This litigation has travelled through our courts for many years, having been before this court more than five years ago. (Serrano v. Priest (1971) 5 Cal.3d 584 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187].) If the absolute equality demanded by the majority (see, ante, fn. 2) can be achieved without sacrificing local fiscal responsibility or local control and taxation required by article XIII, section 21, the majority have a duty to tell us how. They have not because they cannot.

Secondly, by repeatedly referring to "poor" districts and "rich" districts within the 10 percent disparity, and by holding there must be absolute equalization among districts, the majority assume the popular role of Robin Hood, appearing to take from the rich to give to the poor. However, the question whether a governmental entity's assets should be adjusted is not the province of Robin Hood, of our state or federal Constitutions, or of this court. Rather, we must look beyond the governmental entity to the citizenry that government is designed to serve. When we do so, Robin Hood loses his disguise, and we find the Sheriff of Nottingham, taking from the poor to give to those more fortunate. Such reverse welfare is hardly compelled by the equal protection clause of any constitution.

Equality, Local Control, and Fiscal Responsibility

A. The Conflict in Goals

The conflict in goals can best be illustrated by looking at the outlines of various methods of school financing and their effect on the three goals.

(1) The simplest method would appear to be total state financing of the district with the district given full control of the level of expenditure. Absolute equality of financial resources is assured because each district need only ask for funds and the state will comply. Local control is assured by definition. However, fiscal responsibility fails and the result is bankruptcy. A local district, being able to transfer all but insignificant costs to the state, will be unrestricted in spending for the benefit of its citizens on any school-related activity. Conceivably, every school district will have a performing arts center rivaling Los Angeles', resulting in insolvency. [18 Cal.3d 788]

(2) Of course total state financing might avoid bankruptcy by establishing spending limits, by apportioning the entire school expenditure on a per pupil basis, or by a combination of the two. While such system might meet the goals of equality in funding resources and fiscal responsibility, it eliminates local control of spending levels. fn. 4

(3) At the other end of the spectrum would be purely local financing. This system satisfies the requirement of fiscal responsibility -- requiring the community that spends the money to tax itself for the full amount. However, the system would be less equitable than that reviewed in Serrano I. fn. 5

(4) While the majority do not specify which system should be adopted, "power equalizing" appears to be their choice because it appears to be the one the majority measure against the existing system in order to arrive at invalidity. The system "'has as its essential ingredient the concept that school districts could choose to spend at different levels but for each level of expenditure chosen the tax effort would be the same for each school district choosing such level whether it be a high-wealth or a low-wealth district.'" (Ante, p. 747.)

The latter system is easily illustrated using hypothetical figures. If the tax rate is $2 it must produce the same amount of income per pupil in every district in the state, let us assume $800. If the tax rate in any district is $3, the district must receive the same amount per pupil, let us assume $1,200. These amounts must be received regardless of the wealth of the school district. Obviously, in poor districts, those with low assessed valuation per pupil, the tax will not produce sufficient revenue, and the state will have to provide the difference. In rich districts, the given tax rates will produce excessive revenue, with the state obtaining the excess.

To illustrate the impact of the system on the districts, let us look at the effect on three kinds of districts, one having assessed valuation producing [18 Cal.3d 789] the exact amount of money set forth above, the second having half that assessed valuation (a poor district), and the third having double the assessed valuation (a rich district). In the first district fiscal responsibility is assured because school board members, considering expenditures, will have to tax their constituency for all expenditures. In the second or poor district an element of fiscal irresponsibility is introduced. For there, every dollar the school board members decide to spend, only a half dollar need be raised from the constituency, the state paying the other half. The poor district is encouraged to raise its tax rate to obtain state funding for the community, purchasing educational opportunity at the half-price sale. Because the higher the tax rate, the more state money and the greater bargain, the poor district is encouraged to adopt a high tax rate, funding programs the first district would not undertake. This, of course, is the basic spending incentive involved in partial federal support for state programs.

The third or rich district, on the other hand, will be penalized for any expenditure. For every dollar it seeks to spend for its students it must raise $2 by tax, sending one to Sacramento. Faced with punishing their constituency for each expenditure, the school board members will restrain expenditure by eliminating programs the first and second districts would undertake.

Viewed from the standpoint of dollar cost to the district, rather than tax rate, illustration number 4 presents a mirror image of illustration number 3, not equalizing but presenting an inverse relationship between district wealth and opportunity to fund schools. The rich district will become poor by its disincentive to spend, and the poor will become rich by its substantial incentive to spend. The fact that at any given tax rate, expenditure may be equal in each district does not eliminate either the troublesome disincentive or the incentive. Both render the opportunity for school funding unequal. The opportunity varies with the assessed valuation per student within districts -- inversely it is true -- but by varying with district wealth, it necessarily violates the majority's basic requirement that no such variation be permitted. fn. 6 (See, e.g., ante, p. 747.) [18 Cal.3d 790]

(5) The four school support systems illustrated above are the basic systems, given that financing depends upon property tax. Although other systems have been suggested (see, ante, fns. 5, 6), they involve either great waste of resources or lack assurance they will result in significantly greater equality than the existing system. However, before looking at the existing system, a few observations are warranted. Only the first two systems (total statewide financing) can produce the majority's requirement of absolute financial equality. The first, as we have seen, involves a substantial risk, if not a certainty, of insolvency. The second avoids bankruptcy but totally eliminates local control of expenditure levels. The third and fourth systems (local financing) necessarily involve a relationship between district wealth and the opportunity for educational funding, direct or inverse, in violation of the majority's rule prohibiting any such wealth relationship.

Further, to the extent the third and fourth systems are used significantly, some wealth relationship in the opportunity for educational funding will occur. This results because local school board members -- properly concerned with their constituency -- will always look to the local effect of their action. In a democracy we can expect no less. Considering expenditures on the fundamental issue of whether to hire more teachers, reducing class size, or to hire fewer teachers, increasing class size, local school board members must ask what burdens in dollars and tax rates are being placed on district residents. In other words, unless state funding covers substantially all costs, the marginal expenditure is going to be based on local funding considerations. Local financing systems three and four, as we have seen, necessarily involve wealth relationships -- direct or inverse -- and to any extent that they are used, school funding will be based on wealth relationships.

The rational approach to the three conflicting goals of equality, fiscal responsibility and local control, requires rejecting the majority's demand for absolute equality and accepting a combined system to accommodate each. Minor departure from the ideal of absolute equality must be allowed in order to accommodate the two other compelling interests. The existing system does no more. [18 Cal.3d 791]

I have delayed evaluating our existing school finance system because it must be viewed in the light of alternate systems. The present system is the legislative and executive response to this court's first Serrano decision within the confines of our Constitution's requirements of a mixed system of state and local financing and control. (Art. IX, 6; art. XII, 20, 21.) The system starts with system number 4, power equalizing, giving the poorer school districts an incentive to tax at the computational rate, $2.23 at the elementary level, and to receive the foundation level, $765 per student. An assessed valuation of $28,700 per student at a tax rate of $2.23 will produce $640 per student which when added to the $125 required to be paid for all students fn. 7 will produce the $765 figure. A district having an assessed valuation below $28,700 will not receive the $765 per student from its local taxes and the $125 allowance, and the state will make up the balance. More than 85 percent of the students in this state are in districts having an assessed valuation of less than $28,700 per student. (Table III-8, p. 28.) These districts are called the equalization aid districts.

The principal criticism level against this part of the financial program is the limitation to $765, which means that for financing above that level the inequities of system 3 come into play. Why shouldn't the program of state aid extend on indefinitely to levels above $765? The answer should be apparent by now. The equalization factor produces inverse wealth relationships because the poor districts are encouraged to spend to bring state money to the community. Thus, some limitation must be placed on this type of financing, and as will appear, the $765 level is eminently reasonable.

The power equalizing approach is not carried forward to those districts having assessed valuation of more than $28,700 per student. (Nearly 15 percent of the students are in those districts.) The Legislature determined not to apply the penalizing factor discussed above. This means that a district having, for example, double the $28,700 per student assessed valuation could provide $765 per student at a tax rate of little over half the computational rate of $2.23. About 2 1/2 percent of the elementary students are in school districts having double assessed valuation or more. (Table III-8, p. 28.) [18 Cal.3d 792]

The principal criticism levelled against this factor of the system is that a few rich districts may have relatively low tax rates while still providing $765 per student. Although the factor gives rise to some inequality, the alternative of penalizing the rich district by giving part of its local funds to the state will impose new inequities in the opportunity for school funding -- inequities much greater in practical effect than existing ones. fn. 8

The real question is how great is the inequality -- not in abstract legal terms -- but under the system as it really works. Our concern should not be that there may exist a district possessing $1 million assessed valuation per student, but possessing only 38 students. To use the example of this district and a few more like it to invalidate the statewide system is unfair, if not folly. Rather, to measure the existing system we must attempt to weigh inequality against the total system.

At trial, prior to the Senate Bill No. 90 and Assembly Bill No. 1267 results becoming available, attempt was made to quantify the inequalities arising under the new law in terms of total school fund revenues to be produced. The prediction was that 76 percent of the revenues would arise under the foundation program, the equalized revenues, 15 percent of the revenues would be categorical funds assumed to be equalized in this proceeding, and only 9 percent unequalized. Subsequently, records of the Los Angeles unified school districts, comprising 28 percent of the state's students, showed that only 10 percent of the budget constituted unequalized funds. In addition, the basic statewide figure showing an average current expenditure per elementary student of $985.48 (table IV-1A, p. 84) when compared with the $765 equalization aid figure, roughly indicates the correctness of the testimony. fn. 9

By setting the equalization aid figure at such a high number, resulting in aid to more than 85 percent of our students, the present system insures a high degree of equality. Ninety percent of the funding is distributed on an equitable basis with only 10 percent distributed inequitably. Further, even as to the 10 percent, poor school districts may and do obtain part by merely raising their tax rate above $2.23. [18 Cal.3d 793]

As we have seen, attempting to eliminate all inequality -- the majority's perfection requirement -- will result in insolvency, loss of local control, or in new and greater inequity. Substantial reduction in the 10 percent revenue inequality similarly appears to involve substantial risks of insolvency, loss of local control, or the new inequity.

The majority attack the 90-10 ratio on three levels. First, they say it does not meet the requirement of absolute equality. (Ante, p. 755.) However, as pointed out above, the requirement should not be imposed. Second, the majority state that the 90-10 ratio, based on the 1973-1974 year, does not take into account inflation and declining future enrollment. (Ante, pp. 755-756.) However, the Legislature has provided for increases in foundational programs based in part on increases in assessed valuation, an indicator of inflation. (Ed. Code, 17669.) The declining enrollment argument is that aid will decrease under the foundation program because there will be fewer students but that costs will decrease at a slower rate. But by looking at an historical cost relationship, the majority depart from their own equality test, introducing a new one. Third, the majority state that the ratio of 90 percent equalized to 10 percent unequalized is false, urging that foundation funds are unequalized. (Ante, p. 757.) But the basic purpose of equalization aid has been to offset inequities in the foundation. Although the punishment factor has been omitted, it would apply only to districts having less than 15 percent of all our students, and would significantly apply to a much smaller percentage. For this reason any adjustment in quantifying the inequalities would be minimal.

Rich and Poor

The impact of today's decision will require transferring school funding resources from the rich districts to the poor districts -- there being little effect on the many districts which are neither rich nor poor. In our urban-suburban complexes where most students live, a rich district does not mean a district of rich people but is ordinarily one of poor residents, while a poor district is ordinarily one of more fortunate people. The impact of today's opinion appears to be a transfer of resources from poor people to those more fortunate.

The determination whether a district is rich or poor depends upon its assessed valuation per student. Thus, the presence of large tracts of property not occupied by children attending local public schools tends to [18 Cal.3d 794] make a district rich. Absence of such property tends to make a district poor. Bearing this in mind, we can in general identify the so-called rich and poor districts.

Rich districts will include extensive commercial or industrial property or both, while the poorer ones will possess little of such property, either having zoned it out or having not attracted it. Rich districts will possess a low ratio of public school students to the total population -- poor ones a high ratio.

With these considerations, we can further identify the rich and poor districts. Although exceptions exist, fn. 10 rich districts comprise the older commercial-industrial areas. Because of the transition of relatively affluent families to the suburbs to raise families, the parents in rich districts tend to be poorer than the average. fn. 11 The poor districts on the other hand are those having substantial new housing subdivisions but lacking commercial-industrial bases. They have a high ratio of students to total population. Parents who can afford to purchase new homes to raise their families are ordinarily more affluent than those residing in the older commercial-industrial areas.

This analysis of poor and rich districts is confirmed by numerous studies (see Zelinsky, Educational Equalization and Suburban Sprawl: Subsidizing The Suburbs Through School Finance Reform (1976) 71 Nw.U.L.Rev. 161, 162, 182-184, and authorities collected) and by my study of the poor and rich districts in the 1973-1974 school year. (Table IV-11, pp. 93-123.) Further, the trial record discloses a number of illustrations where the mature industrial-commercial community has a much higher assessed valuation per pupil than the nearby new suburban area (in some cases more than double). But the latter has a much higher per capita income than the former (again sometimes a two-to-one relationship).

The rich districts being primarily poor people districts, and the poor ones composed of people more fortunate economically, I cannot believe [18 Cal.3d 795] that equal protection requires us to take from the poor to give to the more fortunate.

Conclusion

I conclude that we cannot have absolute equality of opportunity in school funding -- and perhaps not in any other sector of governmental activity. The absolute equality demanded by today's majority opinion is particularly unobtainable if fiscal responsibility and local control -- both compelling interests -- shall be preserved. While California's present system for school financing may be less than perfect and although it departs from total equality, the minor departure is justified and the system should be upheld. Furthermore, invalidation takes from the poor and gives to those more fortunate -- hardly the goal of equal protection.

I would reverse the judgment.

McComb, J., concurred.

―FN 1. The kernel of our holding was set forth as follows: "In sum, we find the allegations of plaintiffs' complaint legally sufficient and we return the cause to the trial court for further proceedings. We emphasize, that our decision is not a final judgment on the merits. We deem it appropriate to point out for the benefit of the trial court on remand (see Code Civ. Proc., 43) that if, after further proceedings, that court should enter final judgment determining that the existing system of public school financing is unconstitutional and invalidating said system in whole or in part, it may properly provide for the enforcement of the judgment in such a way as to permit an orderly transition from an unconstitutional to a constitutional system of school financing. As in the cases of school desegregation (see Brown v. Board of Education (1955) 349 U.S. 294 [99 L.Ed. 1083, 75 S.Ct. 753]) and legislative reapportionment (see Silver v. Brown (1965) 63 Cal.2d 270, 281 [46 Cal.Rptr. 308, 405 P.2d 132]), a determination that an existing plan of governmental operation denies equal protection does not necessarily require invalidation of past acts undertaken pursuant to that plan or an immediate implementation of a constitutionally valid substitute. Obviously, any judgment invalidating the existing system of public school financing should make clear that the existing system is to remain operable until an appropriate new system, which is not violative of equal protection of the laws, can be put into effect." (Serrano I, at pp. 618-619.)

―FN 2. The defendants at the time of the first appeal were the occupants of the state offices of Treasurer, Superintendent of Public Instruction, and Controller, and the Los Angeles County offices of tax collector, treasurer, and superintendent of schools.

―FN 3. The intervening school districts were Burbank Unified, El Segundo Unified, Beverly Hills Unified, Long Beach Unified, San Marino Unified, Glendale Unified, and South Bay Union High School.

―FN 4. Two notices of appeal were filed in the trial court, one by the county defendants and the defendant-in-intervention school districts (see fn. 3, ante) and one by the then state Treasurer, Ivy Baker Priest. The remaining state defendants have not appealed. The appeals of the state Treasurer and defendants-in-intervention South Bay Union High School District and Glendale Unified School District were subsequently abandoned. Thus the only parties appellant are the county defendants and the remaining five intervening school districts.

With the permission of the court, briefs amicus curiae have been filed by defendant Wilson Riles, Superintendent of Public Instruction of the State of California; the Pacific Legal Foundation; San Francisco Unified School District; The Association of Concerned Teachers (ACT); The Childhood and Government Project (Earl Warren Legal Institute, Boalt Hall, University of Cal., Berkeley); The Education Finance & Governance Reform Project (Research Institute, Nairobi College, East Palo Alto); The California Taxpayers' Association; and the California School Finance Task Force (Graduate School of Public Policy, University of Cal., Berkeley). Jesse Unruh, the present state Treasurer, has also filed a brief.

―FN 5. Following oral argument in this case the Legislature enacted and the Governor signed into law a school finance bill adding some $272 million to the state budget for these purposes. (Sen. Bill No. 1641, signed by the Governor on July 2, 1976.) This bill, of course, was not before the trial court, and we do not consider it today.

―FN 6. For purposes of convenience we have renumbered the footnotes in the following excerpt from Serrano I in order to conform with the sequence of the instant opinion. Hereafter, unless otherwise indicated, all section references (including those in excerpts from Serrano I) are to the Education Code.

―FN 7. California educational revenues for the fiscal year 1968-1969 came from the following sources: local property taxes, 55.7 percent; state aid, 35.5 percent; federal funds, 6.1 percent; miscellaneous sources, 2.7 percent. (Legislative Analyst, Public School Finance, Part I, Expenditures for Education (1970) p. 5. Hereafter referred to as Legislative Analyst.)

―FN 8. Most school aid determinations are based not on total enrollment, but on 'average daily attendance' (ADA), a figure computed by adding together the number of students actually present on each school day and dividing that total by the number of days school was taught. ( 11252, 11301, 11401.) In practice, ADA approximates 98 percent of total enrollment. (Legislative Analyst, Public School Finance, Part IV, Glossary of Terms Most Often Used in School Finance (1971) p. 2.) When we refer herein to figures on a 'per pupil' or 'per child' basis, we mean per unit of ADA.

―FN 9. Over the period November 1970 to January 1971 the legislative analyst provided to the Legislature a series of five reports which 'deal with the current system of public school finance from kindergarten through the community college and are designed to provide a working knowledge of the system of school finance.' (Legislative Analyst, Part I, supra, p. 1.) The series is as follows: Part I, Expenditures for Education; Part II, The State School Fund: Its Derivation and Distribution; Part III, The Foundation Program; Part IV, Glossary of Terms Most Often Used in School Finance; Part V, Current Issues in Educational Finance.

―FN 10. Districts which maintain 'unnecessary small schools' receive $10 per pupil less in foundation funds. ( 17655.5 et seq.)

Certain types of school districts are eligible for 'bonus' foundation funds. Elementary districts receive an additional $30 for each student in grades 1 through 3; this sum is intended to reduce class size in those grades. ( 17674.) Unified school districts get an extra $20 per child in foundation support. ( 17671-17673.)

―FN 11. This is simply a 'computational' tax rate used to measure the relative wealth of the district for equalization purposes. It bears no relation to the tax rate actually set by the district in levying local real property taxes.

―FN 12. Some further equalizing effect occurs through a special areawide foundation program in districts included in reorganization plans which were disapproved at an election. ( 17680 et seq.) Under this program, the assessed valuation of all the individual districts in an area is pooled, and an actual tax is levied at a rate of $1 per $100 for elementary districts and $.80 for high school districts. The resulting revenue is distributed among the individual districts according to the ratio of each district's foundation level to the areawide total. Thus, poor districts effectively share in the higher tax bases of their wealthier neighbors. However, any district is still free to tax itself at a rate higher than $1 or $.80; such additional revenue is retained entirely by the taxing district.

―FN 13. Statistics compiled by the legislative analyst show the following range of assessed valuations per pupil for the 1969-1970 school year:

[Tabular Material Omitted]

(Legislative Analyst, Part V, supra, p. 7.)

"Per pupil expenditures during that year also varied widely:

[Tabular Material Omitted]

(Id., at p. 8.)

"Similar spending disparities have been noted throughout the country, particularly when suburban communities and urban ghettos are compared. (See, e.g., Report of the National Advisory Commission on Civil Disorders (Bantam ed. 1968) pp. 434-436; U.S. Commission on Civil Rights, Racial Isolation in the Public Schools (1967) pp. 25-31; Conant, Slums and Suburbs (1961) pp. 2-3; Levi, The University, The Professions, and the Law (1968) 56 Cal.L.Rev. 251, 258-259.)

―FN 14. Although the following text confines itself to a description of the basic operational features of the new law from the standpoint of the ongoing foundational approach on which it is based, it is appropriate to note at this point that S.B. 90 and A.B. 1267 also introduced certain modifications of a categorical nature. The most important of these was the establishment of the Educationally Disadvantaged Youth Programs ( 6499.230 et seq.) and of the Early Childhood Education Programs ( 6445 et seq.). The former program authorized $82 million in state assistance, to be awarded on a project basis to districts with a heavy incidence of family poverty, bilingualism, and pupil transiency, while the latter authorized $25 million for 1973-1974 and $40 million for 1974-1975 also on a project basis, to restructure primary education in grades K through 3.

―FN 15. For the year 1973-1974, several alternatives were provided for determining the allowable increase in expenditures:

(a) A district may add to the 1972-1973 revenue base per pupil a flat $70 inflation allowance, or a percentage thereof, or a district below the foundation program may instead move toward the foundation program at a maximum of 116 percent; or

(b) A district may add the unused portion of a voted override tax rate to the revenue limit computational tax rates, and use a $65 inflation allowance per pupil, or a percentage thereof, or a district below the foundation program may instead move toward the foundation program at a maximum of 115 percent; or

(c) A district may add to the 1972-1973 revenue base the unrestricted balances used to balance income to expenditures in 1972-1973, but not to exceed 3 percent of the total expenditures in certain expenditures classifications of the state's general fund for 1972-1973, and use the $65 inflation allowance per pupil, or a percentage thereof, or a district below the foundation program may instead move toward the foundation program at a maximum of 115 percent.

―FN 16. The result of this process in many of the richer districts (barring tax rate overrides, to be discussed below) will be a reduction in the general purpose tax rate: To the extent that annual growth in assessed valuation in such districts increases the amount of revenue to be obtained under the existing tax rate to a sum in excess of the prior year's revenue limit plus the permitted inflation adjustment, the rate will have to be lowered.

―FN 17. To illustrate, assume for a given district a $1,000 per ADA foundation level and a $3 per $100 computational tax rate. Assume further that one district has an assessed valuation of $50,000 per ADA while another has an assessed valuation of one-third that, or $16,667. In the first district the application of the computational tax rate will produce $1,500 per ADA, while in the second it will produce only $500 per ADA. The first district would not be entitled to equalization aid but would still receive the $125 per ADA basic aid payment. The second district would be entitled to equalization aid in the amount of $375 per ADA -- i.e., the figure by which the sum of the amount available under the computational rate ($500 per ADA) and the basic aid payment ($125 per ADA) is exceeded by the foundation level ($1,000 per ADA), but in order to spend at the foundation level it would have to tax at the computational rate. If it wished to exceed the foundation level, it would be required to tax at a rate (up to the allowable limit) in excess of that rate.

The richer district, on the other hand, would be able to maintain the foundation level of expenditure by taxing at a mere $1.75 rate (i.e., that percent of $50,000 which when added to the basic aid allowance yields $1,000 per ADA). If applicable revenue limits allowed it to tax at the full computational rate (i.e., that rate at which the poorer district would be required to tax merely in order to achieve the foundation level) it would have the sum of $1,625 per ADA ($1,500 per ADA plus the basic aid payment of $125 per ADA) -- or 1 5/8 the amount available to the poorer district -- at its disposal.

[This example, although not explicitly contained in the findings of the trial court, is based upon them.]

―FN 18. The court found that: "Substantial disparities in expenditures per pupil from district to district that are the result of differences in local taxable wealth will continue to exist under S.B. 90 and A.B. 1267 in that:

"(a) High-wealth, basic-aid districts do not make the same tax effort to reach the foundation program as do low-wealth, equalization-aid districts.

"(b) Above the foundation program, local wealth is the primary determinant of the amount of revenue generated for a given tax rate.

"(c) The amount of revenue from permissive override taxes is solely determined by the amount of wealth available to a school district.

"(d) The amount of revenue from voted override taxes is solely determined by the amount of wealth within a particular school district.

"(e) Low-wealth districts are denied an equal opportunity to exceed the foundation program by utilizing voted overrides under Section 20906.

"(f) Revenue from local permissive taxes to repay local bonded indebtedness depends upon local wealth.

"(g) Basic aid is anti-equalizing, actually widening the gap between low-wealth and high-wealth districts.

"(h) Convergence of revenue limits with the foundation program occurs slowly, and may never occur as a result of the voted override provision."

―FN 19. This conclusion was based on the decision of the United States Supreme Court in San Antonio School District v. Rodriguez (1973) 411 U.S. 1 [36 L.Ed.2d 16, 93 S.Ct. 1278], wherein the high court -- in a decision subsequent to Serrano I -- held that the Texas public school financing system, which like the California system is based on the foundational concept, was not in violation of the federal equal protection provision. In so concluding, a majority of the high court held inter alia that education was not a "fundamental interest" entitled to strict scrutiny under the federal provision because the right to education was not explicitly or implicitly guaranteed by the terms of the Constitution. (Id. at pp. 33-34, 60-62 [36 L.Ed.2d at pp. 43, 44, 58-60].) Proceeding to examine the Texas system under the less stringent standard applicable to cases not demanding strict scrutiny, the majority went on to conclude that the system in question rationally furthered the legitimate state purpose or interest in local control of education. (Id. at pp. 44-55, 62 [36 L.Ed.2d at pp. 49-56, 59, 60].)

―FN 20. The trial court, using by analogy the Rodriguez majority's standard for the determination of whether the interest affected by the classification in question was "fundamental" (thus requiring strict scrutiny review), concluded that the interest of children in education was explicitly and implicitly protected and guaranteed by the terms of the California Constitution. Applying the strict scrutiny test, it concluded that the California system was not necessary to the accomplishment of any compelling state interest and was therefore invalid.

The court further held that "[t]he school financing system for the State of California violates the equal-protection provisions of the California Constitution even under the lesser constitutional standard of rational relationship."

―FN 21. The indicated portions of the judgment provided:

"3. That the following features of said California Public School Financing System, including the SB 90 and AB 1267 legislation pertaining thereto, are violative of said equal-protection-of-the-laws provisions of the California Constitution:

"(a) The basic aid payments of $125.00 per pupil to high-wealth school districts.

"(b) The right of voters of each school district to vote tax overrides and raise unlimited revenues at their discretion.

"(c) Wealth-related disparities between school districts in per-pupil expenditures, apart from the categorical aids special needs programs, that are not designed to, and will not reduce to insignificant differences, which mean amounts considerably less than $100.00 per pupil, within a maximum period of six years from the date of entry of this Judgment.

"(d) Wealth-related variations in tax rates between school districts that are not designed to, and will not reduce to nonsubstantial variations within the same maximum six-year period set forth in subparagraph (c) above for the equalization of per-pupil expenditure levels.

"4. That wealth-related, per-pupil expenditure disparities between school districts which are violative of said equal-protection-of-the-laws provisions of the California Constitution include, but are not limited to, the following:

"(a) High-wealth, basic-aid school districts do not make the same tax effort to reach the foundation-program levels as do low-wealth, equalization-aid school districts.

"(b) Above the foundation-program levels, local property wealth is the primary determinant of the amount of revenue generated for a given tax rate.

"(c) The amount of revenue derived from override taxes is determined solely by the amount of taxable property wealth within a particular school district.

"(d) Low-wealth school districts are denied an equal opportunity to exceed the foundation-program levels by utilizing voted overrides under Section 20906 of the Education Code.

"(e) The amount of revenue derived from permissive override taxes is determined solely by the amount of taxable property wealth within a particular school district.

"(f) Unused voted tax overrides are used to determine maximum school district revenue limits under the SB 90 and AB 1267 legislation."

―FN 22. The trial court had found as a fact that "Present disparities in expenditures per pupil among districts that are the result of differences in local district taxable wealth can be efficiently and effectively eliminated within six years."

―FN 23. See French v. Senate (1905) 146 Cal. 604, 606-607 [80 P. 1031]; Myers v. English (1858) 9 Cal. 341, 349; California State Employees' Assn. v. State of California (1973) 32 Cal.App.3d 103, 108-109 [108 Cal.Rptr. 60]; cf. Igna v. City of Baldwin Park (1970) 9 Cal.App.3d 909, 915 [88 Cal.Rptr. 581]; Monarch Cablevision, Inc. v. City Council (1966) 239 Cal.App.2d 206, 211 [48 Cal.Rptr. 550]; City Council v. Superior Court (1960) 179 Cal.App.2d 389, 394-395 [3 Cal.Rptr. 790].

―FN 24. See Jenkins v. Knight (1956) 46 Cal.2d 220, 223 [293 P.2d 6]; Harpending v. Haight (1870) 39 Cal. 189, 208; California State Employees' Assn. v. State of California, supra, 32 Cal.App.3d 103, 109.

―FN 25. The conclusions of law issued by the court clearly indicate that the primary relief contemplated, to be invoked only after the passage of a "reasonable time," is an injunction prohibiting the dendant state officials from operating an unconstitutional school financing system.

―FN 26. Although our California statute governing intervention (Code Civ. Proc., 387) is not in all respects identical to the parallel federal rule (Fed. Rules Civ. Proc., rule 24), the requirement of significant interest is common to both.

―FN 27. Section 389 of the Code of Civil Procedure, enacted in 1971 to conform ours to the federal practice, describes an indispensable party as one which "in equity and good conscience" the court deems essential to the determination of the action. (See Fed. Rules Civ. Proc., rule 19.)

―FN 28. Defendants single out for attack the following passage from the trial court's memorandum opinion: "What the Serrano court imposed as a California constitutional requirement is that there must be uniformity of treatment between the children of the various school districts in the State because all the children of the State in public schools are persons similarly circumscribed. The equal-protection-of-the-laws provisions of the California Constitution mandate nothing less than that all such persons shall be treated alike. If such uniformity of treatment were to result in all children being provided a low-quality educational program, or even a clearly inadequate educational program, the California Constitution would be satisfied. This court does not read the Serrano opinion as requiring that there is any constitutional mandate for the State to provide funds for each child in the State at some magic level to produce either an adequate-quality educational program or a high-quality educational program. It is only a disparity in treatment between equals which runs afoul of the California constitutional mandate of equal protection of the laws."

―FN 29. Several of the briefs amicus curiae filed herein also evince serious concern for the problem of "municipal overburden."

―FN 30. The three criteria suggested are these: "I. The system must assure that every school district in the State has access, without excessive local taxation, to sufficient general fund revenues to finance the commonly-shared needs of school districts as perceived by the State, and to such categorical aids as the State and Federal governments perceive to be required to meet special, uncommon needs of some districts. II. The system must permit revenues derived from local taxation to be used to supplement Type 1 revenues described above. III. The system as a whole must generate public school general fund revenues so as to result in Type 2 revenues constituting not more than a court-determined percentage of the State total of all school district general fund revenues."

―FN 31. Defendants concede that had this standard been applied to the financing system in 1971, at the time of Serrano I, it would necessarily have been concluded that the then system was not in compliance. At that time, it is asserted, "the relative values placed upon equal educational opportunities and local fiscal control [as reflected in the statewide ratio of 'equalized' to 'unequalized' revenues] were approximately 76.4% and 23.6%, respectively." On the other hand, it is urged, the application of the standard to the 1973-1974 system (i.e. the system as it stood following the enactment of S.B. 90 and A.B. 1267) would reveal a ratio of 89.6 percent "equalized" revenues to 10.4 percent "unequalized" revenues.

―FN 32. It is contended in this case, of course, that the equal protection standard utilized by us in Serrano I is no longer -- after the U.S. Supreme Court's Rodriguez decision -- the appropriate test. We consider this matter in due course. For the present we assert only this limited proposition: Whatever the applicable equal protection test, the findings of the trial court establish that discrimination of the character condemned in Serrano I has been shown to exist in the school financing system presently before us.

―FN 33. It was stated by defendants at oral argument that the current budget statewide is in the neighborhood of $5 billion. To allow 10 percent of this sum, or $500 million, to be distributed pursuant to a system rendering access a function of taxable wealth would be far from an insignificant matter, especially when it is considered that it is those funds over and above the assertedly "equalized" level which are critical to a school district's ability to raise its program beyond a marginal level and respond with creativity and freedom of action to peculiar district needs and desires.

―FN 34. The immediate effect of declining enrollments, of course, is a lowered ADA and a corresponding reduction in state-provided foundation program money to the affected district. The cost of education due to declining enrollment does not decline in the same proportion. Under the system here before us, the only remedy for this situation, barring dramatic increases in the amount of taxable wealth in a district, is an increased tax rate.

―FN 35. As we point out later in this opinion, the fact that disparities in district wealth result in disparities in tax effort required to reach foundation levels is not by itself determinative of the issue before us. It is only insofar as such disparities have the effect of producing disparities in educational opportunity that they here concern us.

―FN 36. The following statistics comparing San Francisco with neighboring counties, derived from the 1974 California Statistical Abstract, are provided by defendants in illustration of this point:

Tabular Material Omitted

―FN 37 Statistics published by the California State Department of Education contain the following figures relative to comparative assessed valuation per ADA (1973-1974) in the indicated areas.

Tabular Material Omitted

"Modified Assessed Valuation Per Unit Of Second Period a.d.a., 1973-1974"

(1973-1974 California Public Schools, Selected Statistics, Table IV-11.)

―FN 38. Defendants also advance several arguments relating to what they term in their brief "the search for tax equity." These arguments, generally speaking, relate to the fact that the level of assessed valuation per ADA in a particular school district tells us little about the income level of families residing within that district. Thus, in many cases a relatively high assessed valuation per ADA will accompany a relatively low median family income; this would normally occur as a result of the presence of substantial business and/or industrial properties within a district whose residents suffer from relative poverty from the point of view of average family income. At the other extreme are districts in which the assessed valuation per ADA is relatively low in spite of a relatively high median family income; this combination would typically be present in a community having no significant business or industry where the emphasis is on single-family dwellings -- i.e., a relatively "affluent" (from the standpoint of the standard of living of inhabitants) suburb. A "fiscally neutral" system, defendants fear, might result in taking from the "poor" city (which in spite of a lower median income level has a higher assessed valuation per ADA) in order to give to the "rich" suburb (which in spite of a higher median income level has a lower assessed valuation per ADA). This, it is urged, would be an intolerable anomaly -- especially in view of the fact, adverted to above (see fn. 36, ante, and accompanying text), that in many cases under the present system a property-rich city, in spite of its lower school tax rate, will impose a total tax rate comparable to or in excess of the total tax rate in an income-rich suburb.

The dispositive answer to the above arguments is simply that this court is not now engaged in -- nor is it about to undertake -- the "search for tax equity" which defendants prefigure. As defendants themselves recognize, it is the Legislature which, by virtue of institutional competency as well as constitutional function (see Haman v. County of Humboldt (1973) 8 Cal.3d 922, 925-926 [106 Cal.Rptr. 617, 506 P.2d 993], and cases there cited; cf. Community Redevelopment Agency v. Abrams (1975) 15 Cal.3d 813, 828-832 [126 Cal.Rptr. 473, 543 P.2d 905]), is assigned that difficult and perilous quest. Our task is much more narrowly defined: it is to determine whether the trial court committed prejudicial legal error in determining whether the state school financing system at issue before it was violative of our state constitutional provisions guaranteeing equal protection of the laws insofar as it denies equal educational opportunity to the public school students of this state. If we determine that no such error occurred, we must affirm the trial court's judgment, leaving the matter of achieving a constitutional system to the body equipped and designed to perform that function. Broad considerations of "tax equity," while they will certainly be a matter of immediate concern to the Legislature in carrying out such a task, are pertinent to our present determination only insofar as it is shown that the system before us, through its imposition of burdens and bestowal of benefits, results in impermissible disparity in the level of educational opportunity available to the students of the various school districts of this state.

―FN 39. Among the four dissenters, Justice White specifically grounded his disagreement with respect to this latter point on the very basis upon which we had refused to consider "local control" as a "compelling state interest" in Serrano I -- i.e., that the notion of local control for less wealthy districts was chimerical. (Id., at pp. 63-70 [36 L.Ed.2d at pp. 60-65]; see also dis. opn. by Marshall, J., pp. 127-130 [36 L.Ed.2d at pp. 97-100].) The difference, of course, was that we had looked to this consideration in our application of the so-called "strict scrutiny test," whereas Justice White -- apparently agreeing with the majority that that test was inappropriate for federal purposes in the circumstances there present -- utilized it in order to conclude that the state had failed to demonstrate any rational relationship between its system and the asserted interest.

―FN 40. The passage of Proposition 7 at the 1974 General Election added the following provision to our Constitution as article I, section 7, subdivision (a): "A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws."

―FN 41. In the indicated Kirchner opinion this court, responding to a mandate of the United States Supreme Court essentially inquiring whether our decision in Dept. of Mental Hygiene v. Kirchner (1964) 60 Cal.2d 716 [36 Cal.Rptr. 488, 388 P.2d 720, 20 A.L.R.3d 353] had an independent state ground, held that the conclusion reached, although in our view required by the equal protection clause of the Fourteenth Amendment, was in any event independently required by our state equal protection provisions. "We so conclude by our construction and application of California law," this court said, "regardless of whether there is or is not compulsion to the same end by the federal Constitution." (62 Cal.2d at p. 588; italics added. (See Karst, Serrano v. Priest: A State Court's Responsibilities and Opportunities in The Development of Federal Constitutional Law (1972) 60 Cal.L.Rev. 720, 743-748.)

―FN 42. Three sections of our state Constitution are explicitly cited in support of this proposition. They are:

(1) Article IX, section 1: "A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement."

(2) Article IX, section 5: "The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established."

(3) Article XVI, section 8 (formerly art. XIII, 15): "From all state revenues there shall first be set apart the monies to be applied by the state for support of the public school system and public institutions of higher education."

Amicus curiae Childhood and Government Project, which joins in the instant contention, does not shrink from passionate imagery in describing its position. Whereas, we are told, "the federal claim of fundamentality had to be argued in Rodriguez as a remote inference from the general language of the Bill of Rights[,] [u]nder California law the conclusion thunders from the words of the [C]onstitution itself.[!]"

―FN 43. We find the language of the Alaska Supreme Court to be particularly apposite in this respect: "While we must enforce the minimum constitutional standards imposed upon us by the United States Supreme Court's interpretation of the Fourteenth Amendment, we are free, and we are under a duty, to develop additional constitutional rights and privileges under our ... Constitution if we find such fundamental rights and privileges to be within the intention and spirit of our local constitutional language and to be necessary for the kind of civilized life and ordered liberty which is at the core of our constitutional heritage. We need not stand by idly and passively, waiting for constitutional direction from the highest court of the land. Instead we should be moving concurrently to develop and expound the principles embedded in our constitutional law." (471 P.2d at pp. 401-402, fns. omitted.)

―FN 44. We do not think it open to doubt that the Rodriguez majority had considerable difficulty accommodating its new approach to certain of its prior decisions, especially in the area of fundamental rights. Indeed, we share the curiosity of Justice Marshall, who in his dissent states that he "would like to know where the Constitution guarantees the right to procreate, Skinner v. Oklahoma [ex rel. Williamson], 316 U.S. 535, 541 (1942) [86 L.Ed. 1655, 1660, 62 S.Ct. 1110], or the right to vote in state elections, e.g., Reynolds v. Sims, 377 U.S. 533 (1964) [12 L.Ed.2d 506, 84 S.Ct. 1362], or the right to an appeal from a criminal conviction, e.g., Griffin v. Illinois, 351 U.S. 12 (1956) [100 L.Ed. 891, 76 S.Ct. 585, 55 A.L.R.2d 1055]." (Rodriguez, supra, at p. 100 [36 L.Ed.2d at p. 82].)

―FN 45. In view of this conclusion we need not address the problem, raised in pointed and lucid fashion by one of the amici curiae, whether in applying our state equal-protection provisions we should insist upon strict scrutiny review of all governmental classifications based on wealth, thus elevating such classifications to a level of "suspectedness" equivalent to those based on race. The classification here in question, which is based on district wealth, clearly affects the fundamental interest of the children of the state in education, and we hold here, as we held in Serrano I (see especially pp. 614-615), that this combination of factors warrants strict judicial scrutiny under our state equal-protection provisions.

―FN 46. The high court explained its misgivings on the federalism question as follows: "It must be remembered, also, that every claim arising under the Equal Protection Clause has implications for the relationship between national and state power under our federal system. Questions of federalism are always inherent in the process of determining whether a State's laws are to be accorded the traditional presumption of constitutionality, or are to be subjected instead to rigorous judicial scrutiny. While '[t]he maintenance of the principles of federalism is a foremost consideration in interpreting any of the pertinent constitutional provisions under which this Court examines state action,' it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every State." (Id., at p. 44; fn. omitted [ 36 L.Ed.2d at p. 49].)

―FN 47. In the 1970 report of the California Constitution Revision Commission (proposed revision 3, part 1 (introduction) p. 7) it is stated: "Between 1879 and 1964 our Constitution was amended over 300 times. Its length increased from 16,000 to more than 75,000 words, and it was 10 times longer than the United States Constitution." Largely as a result of the work of the commission, amendments made subsequent to 1964 have reduced the sheer size of the document somewhat, but it remains today, as it was aptly termed over two decades ago, "A Prolix And Formidable Charter ... hardly adapted to be a convenient rallying code or symbol for the ideologies of democracy." (Palmer & Selvin, The Development of Law in Cal., spec. feature in 1 Ann. Const., West's Ann. Cal. Codes (1954 ed.) pt. IV, at pp. 26-27.)

―FN 48. We do not suggest, of course, that the treatment afforded particular rights and interests by the provisions of our state Constitution is not to be accorded significant consideration in determinations of this kind. We do suggest that this factor is not to be given conclusive weight.

―FN 49. As has been indicated in footnote 19, ante, the trial court found that, in addition to being invalid under the strict scrutiny test, "[t]he school financing system for the State of California violates the equal-protection provisions of the California Constitution even under the lesser constitutional standard of rational relationship." While it is unnecessary for us to direct ourselves to this matter, we do observe that we perceive no rational relationship between the asserted governmental end of maximizing local initiative and a system which provides realistic options to exercise such initiative only in proportion to district wealth per ADA. (Cf. San Antonio School District v. Rodriguez, supra, 411 U.S. 1, 63-70 [36 L.Ed.2d 16, 60-65] (dis. opn. of White, J.).)

―FN 50. Two additional points in this respect raised by our esteemed colleague in dissent are equally devoid of merit. The requirements of section 20701 et seq. of the Education Code, which in the words of Serrano I "authorized the governing body ... to levy taxes on the real property within a school district at a rate necessary to meet the district's annual education budget" (5 Cal.3d at p. 592) are of course statutory rather than constitutional in stature. Moreover, as we point out below, such a requirement would in no way mandate a system, such as that before us, in which through the creation of districts of varying degrees of wealth per ADA the Legislature would foster disparities in educational opportunity. Similarly our statement in Serrano I that former article IX, section 6 (now art. XIII, 21), "specifically authorizes local districts to levy school taxes" (5 Cal.3d at p. 598, fn. 12) in no way implies that that section authorizes a system in violation of the requirements of equal protection.

―FN 51. The section in question provides as here relevant: "The Legislature shall have power, by general law, to provide for the incorporation and organization of school districts, high school districts, and community college districts, of every kind and class, and may classify such districts."

―FN 52. The dissenting opinion, in reaching the opposite conclusion, is guilty of a clear non sequitur. Starting from the proposition that section 21 "requires ... a ... system in which each county may levy annually a school district tax in an amount sufficient (when supplemented by state aid) to provide the revenues deemed necessary by each district in that county," it then proceeds to make reference to article XIII, section 14, of the Constitution which requires that all property taxed by local government be assessed in the county, city and district in which it is situated. From these premises it goes on to conclude that section 21 "necessarily ... contemplates a school financing system in which each individual district's needs are satisfied from the taxable wealth of that district ...." Assuming without conceding this to be so, however, it by no means follows that the system so contemplated is, as the dissent puts it, "the present system which the majority find unconstitutional." The present system, as we have shown, is the product of legislative judgment, not constitutional command.

―FN 53. The learned trial judge disposed of the present contention pointedly and irrefutably: "The rationale which impresses this court is that section 6 of Article IX [now 21 of Article XIII] of the California Constitution did not create the various school districts with their geographical boundaries and with their differences in property wealth. Section 6, Article IX, [i.e., 21 of Article XIII] is written to apply to whatever school districts have been created by the California Legislature."

―FN 54. We decline defendants' invitation to address ourselves to the constitutional merits of the various financing alternatives and combinations thereof which have been developed in the scholarly literature on this subject. Our concern today is with the system presently before us. We are confident that the Legislature, aided by what we have said today and the body of scholarship which has grown up about this subject, will be able to devise a public school financing system which achieves constitutional conformity from the standpoint of educational opportunity through an equitable structure of taxation.

As the dissenting opinion observes, quoting from the Rodriguez decision, "the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them." In this we most heartily agree; we differ with our brethren only as to the constitutional framework in which that task must be undertaken.

―FN 1. The Selected Statistics is an official publication and all page and table references are to it unless otherwise indicated. The 1973-1974 school year is the first analyzed under Senate Bill No. 90 and Assembly Bill No. 1267.

―FN 2. The majority state in a variety of ways that we may not allow the availability of educational opportunity to vary as a function of the assessed valuation per pupil. (E.g., ante, pp. 755-756, 768.)

―FN 3. Equal educational opportunity is an important goal of government. However, the majority do not concern themselves directly with equal educational opportunity. Rather, they are concerned with whether there is equal opportunity for school funding, a test at least one step removed from the basic goal.

Because there are such great variations in our state, there is little reason to believe that district opportunity to equal funding will produce equal educational opportunity. For instance, there is great variation in heating costs between our Sierra schools and our San Diego schools. Likewise, air conditioning is no doubt a major expense in Imperial Valley but will be relatively minor in coastside areas. School site costs in the center of San Francisco will be many times greater than the cost of an equal amount of land in Paso Robles. And, of course, the cost of living varies greatly throughout the state, indicating a need for salary differentials. There is no reason to assume that the numerous cost differentials faced by school districts offset each other and that somehow equal funding will result in equal educational opportunity.

More importantly, there is the additional question whether funding is directly related to educational opportunity or whether a more direct relationship exists between opportunity and other matters such as the ability and interests of one's classmates. Even with equal opportunity to funding, there will be disparate raising of funds because voters have vastly different ideas concerning facilities and priorities.

At trial expert testimony revealed there is no substantial correlation between the rich district-poor district assessed valuation on the one hand, and the level of student performance in statewide achievement tests on the other. Measured on a scale from one to ten, the correlation varied between positive two and negative one.

Nevertheless, for purposes of this opinion, the majority's thesis is assumed, that the equality which the courts should enforce is of funding rather than of educational opportunity.

―FN 4. For the above reasons, the first system of school support suggested by the trial court, full state funding (ante, p. 747), should be rejected. Moreover, total state funding would violate the requirements of partial local financing and control imposed by article XIII, section 21 of our Constitution.

―FN 5. Theoretically, we could achieve all three goals by redrawing the district lines to have substantial equality of assessed value per student in every district. However, because the number of students and assessed valuations change each year, the boundary lines would have to be redrawn every year or two. A single, successful wildcat oil well might require a statewide redistricting with the consequent reassignment of students and teachers. Each large new subdivision would also require redistricting. Obviously, the system would involve huge waste and the second system suggested by the trial court (ante, p. 747) must be rejected.

―FN 6. The trial court also suggests that commercial and industrial property be removed from local school tax rolls, taxing such property at the state level. (Ante, pp. 755-756, 768.) Apparently, the suggestion is based on the trial court's finding that the principal cause of inequality in the assessed valuation per student is due to the presence in some districts of industrial and commercial property. However, this would still leave inequalities due to the great differences in residential property values and in the ratio of public school students to the total population of a district. There is no indication that the resulting inequalities would be less than under the present system. Baldwin Park and Beverly Hills, the two school districts used in Serrano I to illustrate great inequality, are both primarily residential districts.

A system of vouchers was also suggested (id.) but that system is closely related to family wealth.

―FN 7. The $125 per student is not strictly speaking power equalizing. However, $120 of the $125 allotted on a per student basis is required by article IX, section 6, of our Constitution, the same Constitution imposing equal protection requirements involved here. To the extent this $120 produces inequality it is an exception to the equal protection requirement. It was improper for the trial court (ante, p. 744) to posit its determination of invalidity on this factor.

―FN 8. In addition, the existing system places spending limitations on the rich district. The trial court and the majority discuss at length whether the limitations are real or illusory. The spending limitation is a further equalizing factor if anything, and because I believe the basic factors do not deny equal protection, it is unnecessary to discuss the spending limitations and their exceptions.

―FN 9. When the approximately 15 percent of categorical aid is eliminated from the average of $985.48, the average payment becomes $837.67 which should be compared with the $765 equalization aid figure to roughly measure the inequality of opportunity.

―FN 10. The exceptions are the mature, very wealthy residential areas of Beverly Hills and Hillsborough, and the second home vacation areas of Lake Tahoe and Palm Springs.

―FN 11. San Francisco Unified School District is one of the richest in the state. Besides its large amount of commercial and industrial property, the ratio of school children to general population is smaller than the statewide average, and the percentage of students attending private schools is higher than the statewide average. Per capita income is lower than the statewide average and the surrounding counties.

~~~~~~~~~~~~~~~~

People v. Disbrow , 16 Cal.3d 101
[Crim. No. 18445. Supreme Court of California. February 6, 1976.]

THE PEOPLE, Plaintiff and Respondent, v. ROBERT MARSHALL DISBROW, Defendant and Appellant

In Bank. (Opinion by Mosk, J., with Tobriner and Sullivan, JJ., concurring. Separate concurring opinion by Wright, C. J. Separate dissenting opinion by Richardson, J., with McComb and Clark, JJ., concurring.) [16 Cal.3d 102]

COUNSEL

Albert D. Silverman, under appointment by the Supreme Court, for Defendant and Appellant.

Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, James H. Kline and Donald F. Roeschke, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MOSK, J.

Defendant was charged in count I with the murder of Kathleen Pairis, and in count II with the murder of his wife Harriet. (Pen. Code, 187.) It was further alleged that a firearm was used in the commission of both offenses. (Pen. Code, 12022.5.) Following a jury trial defendant was found guilty on count II of murder in the second degree involving the use of a firearm. The jury was unable to reach a verdict on count I, and a mistrial was declared as to that charge. Thereafter defendant waived trial by jury on count I and the matter was submitted to the court on the transcript of the prior trial. The court adjudged defendant guilty of voluntary manslaughter, a lesser included offense, and found the allegation of use of a firearm to be true. Defendant's motion for new trial was denied and he was sentenced on each count to state prison for the term prescribed by law, the sentences to run concurrently. [1a] He appeals from the judgment (Pen. Code, 1237), predicating error on the use of certain evidence to impeach his testimony at trial.

Defendant was separated from Harriet on March 21, 1973, after a marriage of only four months. On the afternoon of April 15, 1973, he drove to the home of Kathleen Pairis, one of Harriet's friends. He there confronted Kathleen, her mother Pernilla Blankenship, and other [16 Cal.3d 104] members of the family, and demanded to be told the whereabouts of his estranged wife and two stepchildren. Mrs. Blankenship testified that defendant threatened to kill his wife and "anybody else that got in his way." He then left, but returned four or five times that day and repeated the threats.

The next evening defendant once more went to the Pairis home. In the living room at this time were Mrs. Blankenship, Harriet, Kathleen, two Pairis children and two Disbrow children. Mrs. Blankenship testified she heard a loud knock at the door and when she went to answer she saw defendant through a peephole. She advised Harriet not to open the door and began collecting the children and removing them to an adjoining bedroom.

While in the other room Mrs. Blankenship heard what she described as a "loud blam" and then the voice of Kathleen demanding that defendant leave. fn. 1 She returned to the living room and saw defendant dragging Harriet by the hair with a pistol at her temple. Kathleen was also armed with a pistol. Mrs. Blankenship tried to intercede but defendant responded by pointing the gun at her. She pushed him away and defendant then directed his attention to Kathleen who was trying to call the police. There was a brief struggle over the telephone during which Mrs. Blankenship seized it and ran to the kitchen to make the call. She was unable to raise the operator and began searching for a knife. She then heard a single shot, a groan, followed by a flurry of gunshots, and ran to the bedroom to protect the children. She remained there until she heard a car drive away, then returned to the living room and discovered the bodies of Kathleen and Harriet.

On April 21, 1973, five days after the shooting, Deputy Sheriff Brown observed defendant sleeping in a bloodstained sleeping bag in his car. He inquired about the stains and defendant replied, "I'm shot in the legs. My name is Disbrow. I've been thinking about surrendering to you. I'm wanted for murder in Van Nuys." Defendant also said, "She shot me first." He had been shot five times.

Defendant was taken to a hospital for treatment. While being wheeled on a gurney from the emergency room he was interviewed by Detective Yost, who was surreptitiously taping the conversation on a concealed [16 Cal.3d 105] recorder. After being informed of his rights under the rule of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], defendant stated he wished to remain silent and consult an attorney. Yost, however, continued the interrogation, representing to defendant that any statements he made could not be used against him in court. Eventually, persuaded by these false assurances, defendant made certain inculpatory statements.

At trial defendant interposed a defense of self-defense, contradicting the testimony of Mrs. Blankenship and claiming he did not fire until after he had been shot by Kathleen. fn. 2 Over defendant's objection portions of the inculpatory statements elicited at the hospital were admitted to impeach his testimony. fn. 3 Defendant contends that the use of the illegally obtained statements as impeachment evidence constitutes reversible error. fn. 4

The People make no claim that defendant's statements to Detective Yost at the hospital were other than the product of an illegal police interrogation. Miranda made explicit the rule that a suspect's declaration of intention to remain silent and stand on his constitutional rights cannot thereafter be followed by additional questioning: "Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off [16 Cal.3d 106] questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked." (Fn. omitted; italics added.) (Miranda v. Arizona (1966) supra, 384 U.S. 436, 473-474 [16 L.Ed.2d 694, 723].) Given the tainted nature of defendant's statements to Detective Yost, it is clear they are inadmissible as part of the prosecution's case in chief. (Id., at p. 479 [16 L.Ed.2d at pp. 726-727]; People v. Fioritto (1968) 68 Cal.2d 714 [68 Cal.Rptr. 817, 441 P.2d 625].) The question is whether the statements may be used to impeach defendant's testimony.

In Harris v. New York (1971) 401 U.S. 222 [28 L.Ed.2d 1, 91 S.Ct. 643], the Supreme Court held that statements which were inadmissible as affirmative evidence because of a failure to comply with Miranda could nevertheless be used for impeachment purposes to attack the credibility of a defendant's trial testimony, as long as the statements were not "coerced" or "involuntary." The court dismissed language to the contrary in Miranda as dictum (id., at p. 224 [28 L.Ed.2d at pp. 3-4]) fn. 5 and concluded, "The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." (Id., at p. 226 [28 L.Ed.2d at p. 5].)

In People v. Nudd (1974) 12 Cal.3d 204, 208 [115 Cal.Rptr. 372, 524 P.2d 844], a bare majority of this court "adopted" the Harris rationale as the law in California. The defendant in Nudd was an inmate at a state correctional facility who was charged with possession of narcotics. A guard had surprised the defendant while the latter was holding narcotics, and after a brief scuffle some material was flushed down the cell toilet. Informed of his Miranda rights the defendant chose to remain silent. He was then invited to speak "off the record" and finally admitted that while [16 Cal.3d 107] he liked the officer a struggle was necessary in order to dispose of the contraband. At trial the defendant denied every allegation in the People's case, and the "off the record" admission was introduced to impeach his credibility. No limiting instruction was requested or given, and hence the jury were presumably free to consider the illegally obtained confession as substantive evidence. fn. 6

In the present case we reexamine Nudd and its uncritical acceptance of the Harris rationale. A useful starting point in this inquiry is the authority relied on in Harris itself, i.e., the general availability of an "impeachment exception" to exclusionary rules.

An exclusionary rule analogous to Miranda is predicated on the Fourth Amendment's proscription of unreasonable searches. (Weeks v. United States (1914) 232 U.S. 383 [58 L.Ed. 652, 34 S.Ct. 341].) The first case in which an impeachment exception to the Weeks exclusionary rule was claimed was Agnello v. United States (1925) 269 U.S. 20 [70 L.Ed. 145, 46 S.Ct. 4, 51 A.L.R. 409], and there the argument was unavailing. The defendants in Agnello were charged with conspiracy to sell cocaine in violation of the Harrison Act. Following their arrest narcotics officers had conducted a warrantless search of defendant Agnello's home and there found a can of cocaine. At trial this evidence was excluded under Weeks but the prosecution proceeded on the strength of other, legally seized evidence. On cross-examination Agnello stated he had never seen narcotics. He was then asked if he had ever seen the can of cocaine, to which he responded in the negative. In rebuttal, over defense objection, the government was permitted to introduce the can illegally seized from Agnello's bedroom.

The Supreme Court reversed, holding the can to be the product of an illegal search, admissible neither as part of the case in chief nor as rebuttal evidence: "[T]he contention that the evidence of the search and seizure was admissible in rebuttal is without merit. In his direct examination, Agnello was not asked and did not testify concerning the can of cocaine. In cross-examination, in answer to a question permitted over his objection, he said he had never seen it. He did nothing to waive his constitutional protection or to justify cross-examination in respect of [16 Cal.3d 108] the evidence claimed to have been obtained by the search. As said in Silverthorne Lumber Co. v. United States ... [251 U.S. 385 (64 L.Ed. 319, 40 S.Ct. 182, 24 A.L.R. 1426)], 392, 'The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.'" (269 U.S. at p. 35 [70 L.Ed. at p. 150].)

In Walder v. United States (1954) 347 U.S. 62 [98 L.Ed. 503, 74 S.Ct. 354], a decision relied on in Harris, a limited exception to the Agnello rule was devised. Walder was charged in 1952 with sale of narcotics. Two years earlier a separate, unrelated narcotics indictment against him had been dismissed on the ground that the evidence forming the basis of the prosecution -- a capsule of heroin -- was the product of an illegal search. In the 1952 trial Walder made the broad assertion on direct examination that "I have never sold narcotics to anyone in my life" and further had never possessed narcotics. After he reiterated these claims on cross-examination, the government was permitted to question him concerning the seizure of the heroin capsule in his home in 1950.

The Supreme Court affirmed, declaring in a now well-worn passage, "It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment." (347 U.S. at p. 65 [98 L.Ed. at p. 507].)

The court was careful, however, to reaffirm the integrity of Agnello, stating, "There the Government, after having failed in its efforts to introduce the tainted evidence in its case in chief, tried to smuggle it in on cross-examination by asking the accused the broad question, 'Did you ever see narcotics before?' ... In holding that the Government could no more work in this evidence on cross-examination than it could in its case in chief, the Court foreshadowed, perhaps unwittingly, the result we reach today ...." (Id., at p. 66 [98 L.Ed. at p. 507].) fn. 7 [16 Cal.3d 109]

As noted, Harris was based on the Walder holding, but Agnello was not cited therein. In Harris the defendant was charged with two counts of heroin sale to an undercover officer. At trial the defendant testified that no sale took place on one of the dates specified in the indictment and that on the other date he sold only baking powder under a scheme to defraud the purchaser. On cross-examination the defendant was questioned about certain statements made to police, after defective Miranda warnings, which "partially contradicted [his] direct testimony at trial." (401 U.S. at p. 223 [28 L.Ed.2d at p. 3].) Both counsel then referred to the substance of the statements during closing argument and the defendant was convicted on the second count. fn. 8

The Supreme Court affirmed, noting that "In Walder ... the Court permitted physical evidence, inadmissible in the case in chief, to be used for impeachment purposes." (Id., at p. 224 [28 L.Ed.2d at p. 4].) With regard to the contention that Walder was inapposite since it represented only a narrow exception -- not present in Harris -- to the general rule of Agnello, the court said, "It is true that Walder was impeached as to collateral matters included in his direct examination, whereas petitioner here was impeached as to testimony bearing more directly on the crimes charged. We are not persuaded that there is a difference in principle that warrants a result different from that reached by the Court in Walder. Petitioner's testimony in his own behalf concerning the events of January 7 contrasted sharply with what he told the police shortly after his arrest. The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner's credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief." (Id., at p. 225 [28 L.Ed.2d at p. 4].)

The final case in this series is People v. Taylor (1972) 8 Cal.3d 174 [104 Cal.Rptr. 350, 501 P.2d 918]. There this court considered the net effect of the Agnello-Walder-Harris line of decisions in the context of impeachment by use of the fruits of a prior, unrelated, illegal search. After a detailed analysis we concluded that evidence of the prior possession of [16 Cal.3d 110] narcotics may be used only if the defendant, on direct examination, makes the sweeping claim that he has never dealt in or possessed any narcotics. We thus read Agnello-Walder in a considerably more restrictive fashion than did the court in Harris. (Taylor, at p. 182 of 8 Cal.3d; see Comment, The Impeachment Exception to the Constitutional Exclusionary Rules (1973) 73 Colum.L.Rev. 1476, 1483-1491.)

Similarly, in the instant case we are not convinced that Walder supports the proposition that statements elicited in violation of Miranda may generally be used to impeach. Rather we read Walder as reiterating the primary rule of exclusion enunciated in Agnello, absent the peculiar and limited circumstances shown in Walder and discussed in Taylor. Accordingly, we must look elsewhere than to an analogy to search and seizure law if support is to be found for the Harris-Nudd rule. fn. 9

Miranda itself will not provide this support. Even aside from the strong dictum in that opinion demonstrating that illegally obtained confessions should not be used for any purpose (see fn. 5, ante), there are compelling reasons to disregard Nudd contained in the ratio decidendi of Miranda.

Prior to Miranda state courts were barred by the Fifth and Fourteenth Amendments from admitting into evidence confessions that were "involuntary." (Brown v. Mississippi (1936) 297 U.S. 278 [80 L.Ed. 682, 56 S.Ct. 461].) "Under this test, the constitutional inquiry is not whether the conduct of state officers in obtaining the confession was shocking, but whether the confession was 'free and voluntary: that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. ...'" (Malloy v. Hogan (1964) 378 U.S. 1, 7 [12 L.Ed.2d 653, 659, 84 S.Ct. 1489], quoting Bram v. United States (1897) 168 U.S. 532 [42 L.Ed. 568, 18 S.Ct. 183].) This test, as it developed, spawned multiple categories identifying impermissible interrogatory practices, many being more subtle than traditional notions of coercion. For example, in Haynes v. Washington (1963) 373 U.S. 503 [10 L.Ed.2d 513, 83 S.Ct. 1336], a [16 Cal.3d 111] determination of involuntariness was predicated on the refusal to allow a suspect to call his wife until he confessed, and in Spano v. New York (1959) 360 U.S. 315, 323 [3 L.Ed.2d 1265, 1271-1272, 79 S.Ct. 1202], "sympathy falsely aroused" rendered inadmissible the resultant statements. We do not reflect adversely on those decisions but merely recognize the increased sophistication of the concept as it progressed from its roots in the brutal torture practiced in Brown.

In People v. Fioritto (1968) supra, 68 Cal.2d 714, 717, we said, "A principal objective of [Miranda] was to establish safeguards that would liberate courts insofar as possible from the difficult and troublesome necessity of adjudicating in each case whether coercive influences, psychological or physical, had been employed to secure admissions or confessions." The precision with which the Miranda court established not simply broad procedural guidelines but a precise manual for the conducting of custodial interrogations can be interpreted only as expressing an intention to create a single, uncomplicated, universally applicable test for determining whether a particular confession was coerced. If proper warnings are given voluntariness is assured, at least in the absence of evidence of "traditional" coercion. fn. 10 Conversely, if an accused is inadequately informed of his rights involuntariness is assumed, and the statements are inadmissible at trial.

The Harris-Nudd rule would resurrect the remains of the earlier voluntariness test. Neither case by its terms would allow impeachment by use of statements which are "coerced or involuntary." (Harris, at p. 224 of 401 U.S. [at pp. 3-4 of 28 L.Ed.2d]; Nudd, at p. 209 of 12 Cal.3d.) Thus under Harris-Nudd the following scenario can be anticipated: a defendant will testify in a manner the prosecution considers contrary to his extrajudicial statement. The defendant will contend that the statement is involuntary under one of the myriad pre-Miranda definitions of that term. It will then be necessary to interrupt the proceedings, not only at mid-trial but at mid-examination, for an evidentiary hearing, the outcome of which will be subject to later review on appeal. Only if the statement is ruled voluntary will it be admissible to impeach. In time there will arise an impressive body of law on the voluntariness issue, rivaling that which presently exists in the area of search and seizure, as various appellate courts grapple on a case-by-case basis with the question [16 Cal.3d 112] of what is an involuntary statement. fn. 11 This, we feel, is precisely the evidentiary thicket Miranda was designed to avoid. fn. 12

[2] However, our principal objection to the Harris-Nudd rule lies in the considerable potential that a jury, even with the benefit of a limiting instruction, will view prior inculpatory statements as substantive evidence of guilt rather than as merely reflecting on the declarant's veracity. The theory of a limiting instruction loses meaning in this context. It is to be recalled that we are here dealing with extrajudicial inculpatory admissions. To instruct a jury that they are not to consider expressions of complicity in the charged crime as evidence that the speaker in fact committed the charged crime, but only for the purpose of demonstrating that he was probably lying when he denied committing the charged crime, would be to require, in the words of Learned Hand, "a mental gymnastic which is beyond, not only [the jury's] power, but anybody else's." (Nash v. United States (2d Cir. 1932) 54 F.2d 1006, 1007.) It is thus clear that a defendant faced with the prospect of the jury hearing his admittedly illegally obtained confession if he testifies in his own behalf will be under considerable pressure to forego this most basic right of an accused. Such a result is certainly not what Miranda envisaged. [16 Cal.3d 113]

Furthermore, to permit admissibility leaves little or no incentive for police to comply with Miranda's requirements. If an officer may falsify the warning concerning the admissibility of statements, as in the case at bar, other warnings may be similarly inverted or retracted. The police, for example, may inform an accused that he has no right to remain silent and no right to counsel. In a case of notoriety with little independent evidence there may be irresistible pressures on law enforcement personnel to secure a confession. If it is known that statements elicited in violation of Miranda may nevertheless be introduced at some point in the trial there would exist no sanction whatever against the use of overbearing interrogatory techniques, at least until the practices approached traditional levels of coercion.

In addition to the likelihood that police misconduct may be encouraged by Harris, we are further convinced of the impropriety of receipt of this evidence by a significant rationale of the exclusionary rule itself. In People v. Cahan (1955) 44 Cal.2d 434, 445 [282 P.2d 905, 50 A.L.R.2d 513], the landmark case in which this court adopted the rule for California two decades ago, fn. 13 we said, "the success of the lawless venture depends entirely on the court's lending its aid by allowing the evidence to be introduced. ... Out of regard for its own dignity as an agency of justice and custodian of liberty the court should not have a hand in such 'dirty business.'" In the case at bar, accordingly, exclusion of the statements illegally extracted from defendant by Detective Yost would "relieve the courts from being compelled to participate in such illegal conduct." (Kaplan v. Superior Court (1971) 6 Cal.3d 150, 156 [98 Cal.Rptr. 649, 491 P.2d 1].)

We therefore hold that the privilege against self-incrimination of article I, section 15, of the California Constitution precludes use by the prosecution of any extrajudicial statement by the defendant, whether inculpatory or exculpatory, either as affirmative evidence or for purposes of impeachment, obtained during custodial interrogation in violation of the standards declared in Miranda and its California progeny. Accordingly, we overrule Nudd and declare that Harris is not persuasive authority in any state prosecution in California. fn. 14

We are not the first court to reject Harris on state constitutional grounds. In State v. Santiago (1971) 53 Hawaii 254 [492 P.2d 657], the [16 Cal.3d 114] Supreme Court of Hawaii, relying exclusively on the self-incrimination clause of that state's Constitution, declared that statements of the defendant elicited without compliance with Miranda or "equally effective protections" cannot be used as impeachment evidence. The court recognized the competing policy considerations but concluded, "We, like the writers of the Harris majority opinion and the opinions following Harris, are reluctant to allow a defendant to take the stand and testify in contradiction to statements made during custodial interrogation .... Our system of government, however, maintains a countervailing value of protecting the accused's privilege to freely choose whether or not to incriminate himself ... To convict a person on the basis of statements procured in violation of his constitutional rights is intolerable. The prosecutor's argument that he had a right to impeach the defendant with statements made in the absence of Miranda warnings cannot, under the [state] constitution, be sustained." (Fn. omitted.) (Id., at pp. 664-665.)

Other courts, while not specifically resting on separate constitutional grounds, have continued to adhere to pre-Harris authority. In United States v. Jordan (1971) 20 U.S.C.M.A. 614 [44 C.M.R. 44], the United States Court of Military Appeals held that Harris did not operate to dispense with the requirement in the Manual for Courts-Martial that Miranda-type warnings be given as a prerequisite to the use of statements for any purpose: "Because Manual warning standards were not met, use of Jordan's incriminating pretrial statements for impeachment [purposes] was prejudicially improper." (Id., at p. 47.) Similarly, in Butler v. State (Tex.Crim. 1973) 493 S.W.2d 190, the Texas Court of Criminal Appeals concluded that Harris did not override a Texas statutory scheme which provided that oral confessions elicited from a suspect while in custody were unreliable and inadmissible except in narrowly defined circumstances: "'Harris, of course, in no way obligates [state courts] to overturn prior decisions as a matter of state criminal procedure.' ... Therefore we cannot agree with the State's contention despite the natural temptation to rush to accept the Harris rationale. The beauty is only skin deep." (Id., at p. 198, quoting from Note (1971) 49 Texas L.Rev. 1119, 1125.) fn. 15

[3] We pause finally to reaffirm the independent nature of the California Constitution and our responsibility to separately define and [16 Cal.3d 115] protect the rights of California citizens despite conflicting decisions of the United States Supreme Court interpreting the federal Constitution. Indeed, the United States Supreme Court has recently characterized this proposition as "good law" in reviewing a sister state court's application of Harris. (Oregon v. Hass (1975) 420 U.S. 714, 719, fn. 4 [43 L.Ed.2d 570, 576, 95 S.Ct. 1215].) Justice Brennan added in his dissent in Michigan v. Mosley (1975) 423 U.S. 96, 120 [46 L.Ed.2d 313, 331-332, 96 S.Ct. 321], that in light of recent "erosion of Miranda standards as a matter of federal constitutional law, it is appropriate to observe that no State is precluded by the decision from adhering to higher standards under state law. Each State has power to impose higher standards governing police practices under state law than is required by the Federal Constitution. See Oregon v. Hass, 420 U.S. 714, 719 (1975); Lego v. Twomey, 404 U.S. 477, 489 (1972); Cooper v. California, 386 U.S. 58, 62 (1967). A decision particularly bearing upon the question of the adoption of Miranda as state law is Pennsylvania v. Ware, 446 Pa. 52, 284 A.2d 700 (1971). ... Understandably, state courts and legislatures are, as matters of state law, increasingly according protections once provided as federal rights but now increasingly depreciated by decisions of this Court. See, e.g., State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971) (rejecting Harris v. New York, supra); People v. Beavers, 393 Mich. 554, 227 N.W.2d 511, cert. denied, 44 U.S.L.W. 3206 (1975) (rejecting United States v. White, 401 U.S. 745 (1971)); State v. Johnson, 44 U.S.L.W. 2196 (N.J., Nov. 4, 1975) (rejecting Schneckloth v. Bustamonte, supra); Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969 (1974) (adopting 'same transaction or occurrence' view of Double Jeopardy Clause)." (Fn. omitted.)

In People v. Brisendine (1975) 13 Cal.3d 528, 548-552 [119 Cal.Rptr. 315, 531 P.2d 1099], we conducted an extended analysis of the question and concluded that "the California Constitution is, and always has been, a document of independent force." We do not propose to repeat that discussion here except to note that we continue to adhere to the views expressed therein, and apply them in the case at bar.

[1b] Because the illegally obtained statements tended to establish that defendant went to the Pairis home in order to use the gun to obtain money, and also that defendant actually shot the victims, they amount to a virtual confession of the charged crime and negation of his trial claim of self-defense. (People v. Powell (1967) 67 Cal.2d 32, 51-52 [59 Cal.Rptr. 817, 429 P.2d 137].) "It is settled that the introduction of a confession obtained from a defendant in violation of constitutional guarantees is [16 Cal.3d 116] prejudicial per se and requires reversal regardless of other evidence of guilt." (People v. Fioritto (1968) supra, 68 Cal.2d 714, 720.)

The judgment is reversed.

Tobriner, J., and Sullivan, J., concurred.

WRIGHT, C. J.

I concur. As I joined the majority in People v. Nudd (1974) 12 Cal.3d 204 [115 Cal.Rptr. 372, 524 P.2d 844], which was filed on July 31, 1974, and I now join the majority in overruling that opinion, I believe a brief explanation of my change in position on the principal issue raised in Harris v. New York (1971) 401 U.S. 222 [28 L.Ed.2d 1, 91 S.Ct. 643] is warranted. When I signed Nudd I was motivated primarily by my abhorrence of the possibility of perjured testimony although as a long-time trial judge I well recognized that defendants in criminal actions were prone to commit a "little" perjury when their life or liberty was at stake. I, of course, did not condone such conduct. Further, I could not at that time conceive that evidence obtained in incidents such as the present flagrant violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974] and People v. Fioritto (1968) 68 Cal.2d 714 [68 Cal.Rptr. 817, 441 P.2d 625] would ever be presented to a trier of fact. Miranda articulates a sound and workable exclusionary rule which is still the law of this land. I now recognize that rule is eviscerated when police officers can ignore the duty to give the warnings or, as in the instant case, violate Miranda and Fioritto requirements knowing full well that the illegally obtained statements may be admissible for impeachment purposes if a defendant elects to testify.

Moreover, as the majority opinion so convincingly sets forth, adherence to Harris and Nudd will force revival of numerous, elusive tests of voluntariness to determine if statements obtained in violation of Miranda are admissible or inadmissible for purposes of impeachment. A host of appellate opinions on this imprecise test would soon be spawned. Miranda eliminated the need for such inquiries and I believe that salutary effect should not be thwarted.

Finally, I find that fundamental fairness to individuals accused of the commission of a public offense demands that Harris-Nudd be rejected. Regardless of the precision of instructions limiting the trier of fact to consideration of the illegally obtained statements solely for impeachment purposes, it is simply unrealistic to believe that such statements will not [16 Cal.3d 117] be considered by the trier of fact as substantive evidence of guilt. I now recognize that this manifestly prejudicial and unfair use of the illegally obtained evidence would transform Miranda into a rule of form rather than one of substance. Such a transformation should not occur in California.

RICHARDSON, J.

I respectfully dissent. I cannot join the present majority in their sudden and disquieting deviation from the clearly applicable decision of the United States Supreme Court in Harris v. New York (1971) 401 U.S. 222 [28 L.Ed.2d 1, 91 S.Ct. 643] and in their reversal of our own recent decision in People v. Nudd (1974) 12 Cal.3d 204 [115 Cal.Rptr. 372, 524 P.2d 844]. Having not participated in the court's consideration of Nudd, I owe no particular allegiance to the rule therein adopted, but am convinced that Nudd was correctly decided.

In the matter before us defendant testified on direct examination at his murder trial that he went to the Pairis home to tell his wife Harriet that he was leaving town; that he brought a gun with him to give to Ray Ward; that Kathy Pairis started shooting at him, he felt pain and ran for the door, firing as he went; and that he did not learn until later that he had shot anyone. In his prior statement to the officers, however, defendant candidly admitted that he brought his gun in order to obtain money with which to leave town, and that when the shooting started, he ran across the room and shot both Kathy and Harriet in the head.

Under the rule announced by the present majority the jury are not permitted to learn of this contradictory statement in appraising defendant's credibility since the officers failed when taking defendant's statement to comply with the requirements enunciated in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. Not only does the new rule announced by the present majority directly conflict with Harris, but also with the rationale of two earlier United States Supreme Court cases, Agnello v. United States (1925) 269 U.S. 20 [70 L.Ed. 145, 46 S.Ct. 4, 51 A.L.R. 409], and Walder v. United States (1954) 347 U.S. 62 [98 L.Ed. 503, 74 S.Ct. 354]. Thus, even had Harris never been decided, the trial court followed applicable precedent in admitting the evidence for impeachment purposes only.

The issue before us is relatively narrow. Since Harris is squarely in point are we bound by it and, if not, is it either wise or necessary to reject it? [16 Cal.3d 118]

1. Independent State Ground

The majority, while initially arguing in extended fashion that the United States Supreme Court in Harris was not following its own appropriate precedents, finally concede that pursuing this form of analysis is hardly our function, and conclude by invoking the "independent state self-incrimination clause" contained in article I, section 15, of the California Constitution. While the conclusion appears only in a footnote the independent state ground is absolutely central to the majority's thesis, and leads them to declare that, notwithstanding the near identity of language in the federal and California Constitutions, "Harris is not persuasive authority in any state prosecution in California."

It is both readily apparent and significant that the self-incrimination clauses of the Fifth Amendment to the United States Constitution and of article I, section 15, of the state Constitution contain virtually identical language. Also, the Fourth Amendment and article I, section 13, of the state Constitution employ similar language in prohibiting unreasonable searches and seizures. The very obvious and substantial identity of phrasing in the two Constitutions strongly suggests to me the wisdom, insofar as possible, of identity of interpretation of those clauses. The same considerations of policy, need for uniformity and avoidance of confusion apply with equal force to the Fourth and Fifth Amendment protections contained in article I of our state Constitution.

These important factors of deference and of policy have been recently well expressed in Justice Clark's dissenting opinion in People v. Norman (1975) 14 Cal.3d 929, 940-941 [123 Cal.Rptr. 109, 538 P.2d 237], wherein he quotes the following language from Justice Thompson's Court of Appeal opinion in Norman: "'The Fourth Amendment to the United States Constitution and article I, section 19 [now section 13] of the California Constitution are essentially identical in wording. [Fn. omitted.] Decisions of the United States Supreme Court construing constitutional phraseology are highly persuasive. [Citations.] ... The persuasion of the United States Supreme Court decisions is particularly strong in the area of search and seizure and the exclusionary rule. California courts have for years spoken of the basis of the exclusionary rule as the Fourth Amendment. A sudden switch to a California ground to avoid the impact of federal high court decision invites the successful use of the initiative process to overrule the California decision with its concomitant harm to the prestige, influence, and function of the judicial branch of state [16 Cal.3d 119] government. ... The more courts feel free to adopt ground rules unpersuaded by contrary decisions of other courts, the greater the likelihood there is of uncertainty in those ground rules. The uncertainty is mitigated if proper deference is paid United States Supreme Court holdings. [] 'Thus, something more than personal disagreement by a majority of members of a state court with the decision of the United States high tribunal on search and seizure is required if the persuasion of that court is not to be followed. ... [T]he state system should accept the interpretation of the United States Supreme Court of language in the federal Constitution as controlling of our interpretation of essentially identical language in the California Constitution unless conditions peculiar to California support a different meaning.'"

I believe the foregoing reasoning is eminently sound, equally applicable to self-incrimination language that is nearly identical in the two Constitutions, and that no special, unique, or distinctive California conditions exist which justify a departure from a general principle favoring uniformity. In my view, in the absence of very strong countervailing circumstances we should defer to the leadership of the nation's highest court in its interpretation of nearly identical constitutional language, rather than attempt to create a separate echelon of state constitutional interpretations to which we will advert whenever a majority of this court differ from a particular high court interpretation. The reason for the foregoing principle is that it promotes uniformity and harmony in an area of the law which peculiarly and uniquely requires them. The alternative required by the majority must inevitably lead to the growth of a shadow tier of dual constitutional interpretations state by state which, with temporal variances, will add complexity to an already complicated body of law.

The vagaries and uncertainties of constitutional interpretations, particularly in the Fourth and Fifth Amendment sectors of our criminal law, are the hard facts of life with which the general public, the courts, and law enforcement officials must grapple daily. This condition necessarily breeds uncertainty, confusion, and doubt. It will not be eased or allayed by a proliferation of multiple judicial interpretations of nearly identical language.

The case before us presents a classic example, in my opinion, of the fallacy of the majority approach. Here the majority propose to rely on and encourage development of a separate California self-incrimination privilege notwithstanding the near identity of language in the Fifth [16 Cal.3d 120] Amendment to the federal Constitution and article I, section 15, of the California Constitution. The inevitable result is two rules or standards of interpretation of single constitutional language. Furthermore, the majority blithely ignore what has long been recognized, namely, that the privilege against self-incrimination is a single common law privilege which existed long before its incorporation into either the United States or California Constitution. (See 8 Wigmore, Evidence (1961) 2251, p. 295.) On principle, even in situations of varying constitutional expressions of a single common law privilege uniform interpretation should normally be required and expected. As Professor Wigmore put it: "The variety of constitutional and statutory phrasing neither enlarges nor narrows the scope of the privilege as developed in the common law. ... [T]he detailed rules are to be determined by the historical and logical requirements of the principle regardless of the specific words of the particular constitution, ..." (Id., 2252, p. 326.) A fortiori, as in the matters before us when constitutional language approaches identity, the compulsion toward uniformity of interpretation should be even greater. That being so, on what basis do the majority hold that the language of our state Constitution should be construed in a different manner than the substantially identical language of the Fifth Amendment privilege as construed in Harris? What circumstance peculiar to California requires that we do so? I can think of none. The majority have suggested none.

The simple fact is that in the instant case there is in reality only one privilege long recognized by the common law, subsequently incorporated in the federal Constitution, and much later adopted in the California Constitution. Nonetheless, under the majority holding notwithstanding the fact that we have but one privilege expressed in almost identical language they insist on multiple interpretations. The logic of this approach totally escapes me. The transient exhilaration drawn from our assertion of an independent "California" rule in this area will, in my opinion, speedily pass and leave in residue an unnecessary compounding and multiplicity of constitutional rules that should, so far as possible, be simple, uniform, consistent, and cohesive. The majority's approach makes transparently clear that the vigor with which the newly discovered separate and independent state constitutional interpretations are asserted ebbs and flows depending upon the approval or rejection by the majority of the particular constitutional interpretation which, in a given case, emanates from the federal Supreme Court. This accordion-like effect, this divergence and convergence, though in a sense predictable with the shifting winds of judicial policy and personal predeliction, is not calculated to produce that kind of uniformity or harmony conducive to [16 Cal.3d 121] the logical and uniform development of constitutional law. As a device of constitutional interpretation the majority approach is dubious and suspect. As an instrument of judicial policy it is illogical and unnecessary.

2. The Harris-Nudd Rule

Before proceeding to an analysis of the merits of Harris-Nudd, I emphasize the self-evident, overriding, paramount, and fundamental purpose of a trial itself -- namely, the ascertainment of truth. As the oath binds every juror "truly" to try the matter and to render a verdict that is "true" so the testimony of every witness is given under oath or affirmation that what is said is "the truth, the whole truth and nothing but the truth." All of the procedural and substantive processes of law at every stage of litigation, civil and criminal, have an unspoken focus on this single and central inquiry -- what and where is the truth? We have, in faithful adherence to fundamental protections, circumscribed this search for truth with safeguards rooted in our Constitutions and in our concepts of fairness. This is fundamental and it is proper. We do not subject a defendant charged with crime to the rack and screw though we might thereby ascertain the truth. We do not utilize involuntary confessions. We adhere to many other important restraints in the pursuit of the truth, but we never abandon the search.

The genesis of the exclusionary rule lies very near the intersection of the twin procedural functions -- on the one hand "truth-ascertainment" and on the other, privilege protection enfolding a defendant charged with crime. The rule is a creature of the United States Supreme Court judicially declared in Weeks v. United States (1914) 232 U.S. 383 [58 L.Ed. 652, 34 S.Ct. 341]. Following Weeks in 1925, the Supreme Court in Agnello v. United States, supra, 269 U.S. 20, 35 [70 L.Ed. 145, 150], condemned an attempt by the prosecution to introduce illegally obtained evidence during improper cross-examination regarding defendant's prior knowledge of narcotics. The court strongly implied, however, that had defendant testified on direct examination regarding his lack of knowledge, that testimony could have been rebutted by reference to illegally obtained contraband.

Subsequently, in 1954, the Supreme Court held in Walder v. United States, supra, 347 U.S. 62, 66 [98 L.Ed. 503, 507-508], that a defendant's direct examination testimony opens the door to impeachment by the prosecution despite the fact that an illegal search and seizure had tainted [16 Cal.3d 122] the impeaching evidence and barred its introduction as part of the People's case in chief. The underlying principles on which the United States Supreme Court relied in Walder are made abundantly clear in its own language: "It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment." (p. 65 [98 L.Ed. p. 507].) The foregoing language may be, as the majority insist (ante, at p. 108) "well worn." It is also unanswered. Further, Walder, in amplification adds: "Take the present situation. Of his own accord, the defendant went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping claim that he had never dealt or possessed any narcotics. Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief. Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility." (Italics added, fn. omitted.)

The full import of the Warren Court's foregoing language of 21 years ago is manifest. What it clearly meant was that while, on the one hand, tainted evidence may not be utilized by the prosecution's case in chief, on the other hand, no judicially constructed screen will be permitted to shield from the fact finder the contradictory impeaching testimony or physical evidence when defendant himself takes the stand and testifies directly contrary to the impeaching testimony or evidence.

Something very fundamental is involved at this point, whether the case presents Fourth or Fifth Amendment considerations. In the matter before us defendant is entitled to face a prosecution case against him stripped of any reference whatsoever to evidence obtained in violation of Miranda. The exclusionary rule mandates this result and I fully concur both in its propriety and in its effect. Must we in our search for truth, however, go the second mile and afford a defendant during his trial, additionally, with an impenetrable sanctuary, unavailable to all other witnesses, to which he may retreat enfolded with complete and continuing immunity from any disclosure that the evidence in question may [16 Cal.3d 123] prove him a liar? What constitutional or policy consideration requires imposition of such a judicial artifice? I suggest, none. For it is at this point that the policy of procedural protection for defendant and the policy of full factual disclosure to the trier of fact must fall into a balance. Lines must be drawn, and conflicting factors carefully weighed, in affording a defendant appropriate procedural protections while at the same time assuring to the trier of fact, within limits, the fullest possible access to relevant material evidence.

The issue before us involves only a slight variant of a theme developed long ago. Agnello and Walder concerned the admissibility, for impeachment purposes of illegally obtained evidence. Here we are concerned, of course, with statements taken in violation of Miranda principles, again for the sole purpose of impeachment not for prosecutorial aid in its case in chief. Surely, the rationale of Walder is fully applicable to cases in which, as here, the defendant takes the witness stand on his own behalf and testifies to matters in conflict with his prior statements. Under these circumstances defendant should not be permitted to use a Miranda violation as "a shield against contradiction of his untruths." (Walder, p. 65 [98 L.Ed. p. 507].) In this situation as in Walder, "... there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility." (Id.) Notwithstanding the foregoing clear language of Walder, the majority profess to find difficulty in applying Walder to impeachment by use of Miranda violated statements. They insist that the Walder language is merely "reiterating the primary rule of exclusion enunciated in Agnello, absent the peculiar and limited circumstances shown in Walder ...." I find no such limitation in meaning or purpose. To the contrary, it seems to me that the Walder language, reasonably read, is plain, simple, and unambiguous. It finds no valid public or private purpose is served by permitting a defendant to erect an "off limits" sign thus blocking and concealing the fact of defendant's perjury from all view of the searchers for truth. In summary, Harris-Nudd represents, in my opinion, no dramatic or unprecedented shift in direction either of the United States Supreme Court or of this court, but rather, the unfolding of a consistent and natural sequel to earlier precedents well founded in logic and public policy.

I turn now to the reasons advanced sequentially by the majority for abandoning Harris-Nudd and with deference suggest that neither singly nor in the aggregate are they persuasive. [16 Cal.3d 124]

It is argued, first, that the rule of total and complete exclusion of the perjured evidence will eliminate or reduce the necessity of litigating the issue of voluntariness of defendant's statements. There can be no doubt that the issue is resolved, but at what price and for what purpose? Reduced to its essentials, the argument stresses judicial convenience. We are to reject the rule adopted by the United States Supreme Court and by ourselves so very recently because we will not then have to determine if the statement in question is "voluntary." The majority emphasize our expression in People v. Fioritto (1968) 68 Cal.2d 714, 717 [68 Cal.Rptr. 817, 441 P.2d 625], describing "a principal objective of Miranda" as assuring a simple "precise manual" containing "a single, uncomplicated test" for determining coercion. The majority insist that the Miranda court adopted a simple "manual" for determining the presence or absence of coercion. However, the "manual" has been revised by its author. After Miranda came Harris. The surface appeal of "simplicity," if in fact a Miranda application is "simple," has yielded to a more logical accommodation of competing interests. With due respect, I suggest that judicial convenience is a very thin reed upon which to lean as a basis for requiring the exclusion for all purposes of perjured testimony. Further, the majority's view is unrealistic for it ignores the fact that, even assuming compliance with Miranda, the question of the voluntariness of the accused's statements is not eliminated but remains in every case. More importantly, of course, is the serious question whether we are going, at this juncture, to permit, as a policy, judicial convenience to take precedence over the ascertainment of the truth. I respectfully suggest that the majority's position at this point represents an unwarranted reversal of priorities in the scale of personal and societal interests locked into a criminal trial.

The majority place principal reliance and emphasis, however, on their belief in the inability of a jury to follow proper instructions limiting the jury's consideration of the evidence to impeachment of credibility rather than as substantive evidence of the charged crime. The majority find in Harris-Nudd a "considerable potential" of risk. Such a contention leads us deeply into a "never-never-land" of purest speculation. No empirical evidence can be marshalled either for or against the argument. It may be said, however, that such an additional burden adds no discernible weight to the difficulties already facing the average jury in following many instructions. It may equally be urged that the "gymnastics" envisioned by the majority are matched by the "acrobatics" imposed on any jury in comprehending instructions on numerous definitions of crimes, defenses, criminal intent, diminished capacity or, for example, the jury's considerations [16 Cal.3d 125] of prior consistent or inconsistent statements. (See former CALJIC Nos. 2.13 and 2.14.) Indeed, this exact process, which the majority find fraught with such hazard, sometimes is statutorily mandated. For example, under Evidence Code section 355 when evidence is admitted as to one party or for one purpose, but inadmissible as to another party or purpose, if requested the court must instruct the jury as to the limited scope of the evidence. This principle has wide application in both civil and criminal trials, and has been a familiar and accepted trial procedure for years. (See, e.g., BAJI No. 2.05; Witkin, Cal. Evidence (2d ed. 1966) 316, pp. 279-280.)

We have ourselves previously confronted this precise problem, trusted the discretion of the trial court, and found the difficulty not insurmountable. In People v. Sweeney (1960) 55 Cal.2d 27, 42 [9 Cal.Rptr. 793, 357 P.2d 1049], decided before the adoption of Evidence Code section 352, we explained: "This question of the admissibility of evidence for one purpose for which it is properly admissible, where the danger exists that it may be improperly considered by the jury for another purpose to establish which it is not admissible was given careful consideration in Adkins v. Brett, 184 Cal. 252 [193 P. 251]. The court in that case said at pages 258-259: [] 'The rule, then, is that the admissibility of such evidence as that under discussion, admissible because competent as to one point, is not destroyed by its incompetency as to other points which it yet logically tends to prove. The danger, however, of the jury misusing such evidence and giving it weight in determining the points as to which it is incompetent, is manifest. In such a situation, as Professor Wigmore puts it ... "the only question can be what the proper means are for avoiding the risk of misusing the evidence." Answering this question, Professor Wigmore says: "It is uniformly conceded that the instruction [to the jury] of the court [that the evidence is competent only as proof of one point and must not be considered as proof of others] suffices for that purpose; and the better opinion is that the opponent of the evidence must ask for that instruction; otherwise he may be supposed to have waived it as unnecessary for his protection." [] 'The general correctness of this statement cannot be doubted. But we doubt if the learned author intended to say more than that the opponent of such evidence is always entitled to such an instruction for his protection, if he asks for it, and that generally it will suffice. But it is not difficult to imagine cases where it would not suffice, and the opponent could justly ask for more. The matter is largely one of discretion on the part of the trial judge.' ... This rule of Adkins applies equally to criminal prosecutions and 'it is for the trial court in the exercise of its judicial discretion to determine whether [16 Cal.3d 126] its (the evidence) probative value is outweighed by its possible prejudicial effect and to admit or exclude it accordingly ....' (People v. McCaughan, 49 Cal.2d 409, 421-422 [317 P.2d 974].)" (Id., at p. 43; see also People v. Burton (1961) 55 Cal.2d 328, 348-350 [11 Cal.Rptr. 65, 359 P.2d 433].)

We have repeatedly expressed the view that we will assume a jury has followed the court's instructions and in the absence of some showing otherwise will not presume that it has not. I do not share the majority's sudden anxiety that adherence to Harris imposes unreasonable demands beyond the jury's capacity. To speculate as to the probability that in general a jury either does not understand or alternatively will not follow an instruction limiting its consideration of evidence as impeaching and affecting credibility only, seems to me clearly insufficient ground upon which to base so sweeping a rule as that which totally insulates a defendant's possible perjury.

The majority next conclude that adoption of Harris-Nudd will remove any incentive to comply with Miranda thus creating "irresistible pressures on law enforcement personnel to secure a confession." This familiar argument was considered and flatly and, in my view, properly rejected by the Supreme Court in Harris itself when it said: "The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner's credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief. [] Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. ... [] The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." (401 U.S. 222 at pp. 225-226 [28 L.Ed.2d 1 at pp. 4-5] [citations and fn. omitted; accord, Oregon v. Hass (1975) 420 U.S. 714, 722-724 (43 L.Ed.2d 570, 578, 95 S.Ct. 1215)].)

Furthermore, I do not think it is realistic to assume that on a large scale, law enforcement officers will, as speculated by the majority, [16 Cal.3d 127] deliberately and intentionally violate Miranda, thus rendering wholly unusable the evidence thereby secured in their case in chief, in the hope that it will become available, in a more limited sense, by way of impeachment. Far more important to a criminal prosecutor is the building of the People's principal case by the gathering of proof against a defendant, rather than by the assembling of impeachment evidence which may never be used if defendant does not take the stand, or which under Evidence Code section 352 may be excluded even if defendant does take the stand.

The final argument advanced by the majority, paraphrased, is that by permitting use of the evidence to impeach we in some way impair our dignity by lending our aid to "dirty business." The validity of such an easy generalized assertion and the appropriate answer must be weighed with close attention to the specifics of the context from which the majority's claim arises. A person is charged with crime. In the investigatory phases of the case, testimonial or physical evidence is uncovered as a result of conduct violative of Miranda. The evidence must be and is excluded in its entirety from the People's case in chief. The fact finder never learns of its existence. When, however, defendant takes the stand and under oath makes statements which are subject to impeachment by available evidence obtained in violation of Miranda, may it fairly and reasonably be said that the court engages in "dirty business" by permitting, for this limited purpose, the trier of fact to learn of this evidence? I suggest that it could perhaps be argued with equal force that application of the present majority view which mandates concealment of perjured testimony from those charged under oath with the responsibility of discovering the truth may in itself constitute a form of "dirty business."

It is at this point, I believe, that we reach the crux of the issue and arrive at those honest disagreements which separate us. The difficult questions raised involve conflicting policy considerations. How are we to weigh in the balancing pans of justice the need to afford an accused defendant procedural safeguards and protections on the one hand, and the constant pursuit of "truth, the whole truth, and nothing but the truth" on the other? Where shall we draw the line? What weight, what value, shall we ascribe to each element? Are we to elevate one claim above the other, or are we to seek, if possible, an accommodation of both? My differences with the majority are relatively simple. They insist that for all purposes and in every circumstance evidence obtained in violation of Miranda v. Arizona is excluded. I would permit an [16 Cal.3d 128] accommodation excluding the evidence in its entirety in the case in chief but permitting its use for impeachment purposes. I discern no constitutional or policy consideration which should deny the fact finder, on its trail of the truth, knowledge of the impeachment evidence. In my view this neither involves us in "dirty business," nor mandates our concealment of perjury, but rather constitutes a fair, balanced, reasoned comparison and evaluation of conflicting social and personal rights and policies.

So very soon after Nudd the present majority reverse directions and now propound an all-encompassing rule extending the California privilege against self-incrimination to preclude any use whatever of the evidence in question. In doing so they disregard diametrically contrary views of the United States Supreme Court, author of Miranda itself, which in terms both ringing and repeated, has expressed itself as accepting the necessity for reasonable limitations on its Miranda rule.

The majority's treatment of the reception of Harris by our sister states is most revealing. They find comfort in the fact that in 1971 the Supreme Court of Hawaii and in 1973 the Texas Court of Criminal Appeals have also declined to follow Harris. (In fairness I must note that my research discloses one additional state, Pennsylvania, by a 4-3 vote also refused to adopt the Harris rule.) (Commonwealth v. Triplett (1975) 348 Pa. 98 [341 A.2d 62].) They have also found that in 1971 the United States Court of Military Appeals in interpreting the requirement of the Manual for Courts Martial was unaffected by Harris. While I have great respect for the Supreme Courts of Hawaii and Pennsylvania, the Texas Court of Criminal Appeals, and the Court of Military Appeals in its construction of the Courts Martial Manual, I confess to an even greater bias toward the United States Supreme Court in its interpretation of the Fourth and Fifth Amendments to the United States Constitution, and its clear majority holding in Harris, which so recently we felt was controlling.

What the majority have failed to disclose, however, is that Harris has been adopted and approved by the vast majority of states which have considered the question. The dissenting opinion of Pennsylvania Chief Justice Jones in Triplett, supra, lists cases from 30 states (other than Nudd in California) which have either adopted Harris or cited it as controlling. (Commonwealth v. Triplett, supra, 341 A.2d 62 at p. 67, fn. 2.) These include Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, [16 Cal.3d 129] New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, Tennessee, Utah, Washington, and Wisconsin. I believe that at least three other states (Alabama, New York, and South Carolina) have also adopted the Harris rule in addition to the 30 listed in Triplett. (See Roynica v. State (1974) 54 Ala.App. 436 [309 So.2d 475, 482]; People v. Fiore (1974) 34 N.Y.2d 81 [356 N.Y.S.2d 38, 312 N.E.2d 174, 179]; and State v. Mercado (1974) 263 S.C. 304 [210 S.E.2d 459, 461].) Significantly, of the 33 states which have approved Harris at least 5 (Florida, Illinois, Indiana, Massachusetts and New Jersey) addressed and flatly rejected the principal thesis of the present majority that state constitutional provisions may be used to avoid Harris. (See State v. Retherford (Fla. 1972) 270 So.2d 363; People v. Sturgis (1974) 58 Ill.2d 211 [317 N.E.2d 545, 547]; Johnson v. State (1972) 258 Ind. 683 [284 N.E.2d 517, 520]; Commonwealth v. Harris (1973) 264 Mass. 236 [303 N.E.2d 115, 117]; State v. Miller (1975) 67 N.J. 229 [337 A.2d 36, 39].) One may seriously and fairly question the strength of a juridical light that is discerned by so few and invisible to so many.

In overwhelmingly turning aside the present majority's argument some of the expressions of our sister states are significant. For example, the New Jersey Supreme Court held that "We conclude that Harris as applied herein [statements used for impeachment only] is a valuable truth-finding mechanism which does not impinge on a defendant's federal or state constitutional rights." (State v. Miller, supra, at p. 39, italics added.) As stated by the Supreme Judicial Court of Massachusetts "Like most courts which have considered the point ... we decline the invitation to adopt the reasoning of the dissenting justices in [Harris]." (Commonwealth v. Harris, supra, at p. 117.) Even in Pennsylvania, one of only three states on which the majority may rely the court was very closely divided, four justices declining to apply Harris. Justice Pomeroy while concurring in the judgment of reversal felt that Harris was factually distinguishable from Triplett and urged that it was unnecessary to reach the question whether or not to adopt the Harris rule. In doing so he used language, echoing Justice Thompson's opinion in Norman, supra, which to me is both pertinent and persuasive. "The interests of uniformity in the development of basic principles of constitutional law involving, as in this case, rights which are expressed in identical terms in state and federal constitutions, together with the deference that is due the pronouncements of the Supreme Court of the United States, indicate that we should chart a separate course only where compelling reasons for doing so are advanced. No such reasons have been presented in this case." (341 A.2d 62 at p. 66, fn. omitted, italics added.) Chief Justice Jones in dissent [16 Cal.3d 130] amplified his criticism of Triplett saying, "The majority's holding will only lead to the perpetration of obvious lies in court. The prosecution has already been penalized in its case in chief, and there is no reason that our exclusionary rules should be used as a tool to defraud the fact finder at trial. I fear that the majority opinion puts the Court's imprimatur upon perjury." (Id., at p. 67, fn. omitted.)

The present majority herein completely reverse the course so recently adopted by us. Unfortunately they pursue this new bearing when it is very apparent that the parade is marching in the other direction.

Nor do I find any more persuasive the majority's resort to academia. They point to one article and four student notes published during the period 1971-1973 as authority for the proposition that "academic reaction to Harris has in general been strongly critical." A more recent article by Professor John K. Kaplan, of the Stanford Law School, focuses on The Limits of the Exclusionary Rule ((1974) 26 Stan.L.Rev. 1027) and casts very serious doubts on the majority's conclusion. Professor Kaplan notes that neither Miranda nor the exclusionary rule itself are constitutional doctrine, but rather attempts to "protect values established in the Constitution." Accordingly, he argues, referring to the exclusionary rule, that "... its restriction is hardly a radical step. ... [] ... 'The exclusionary rule is merely one arbitrary point on a continuum between deterrence of illegal police activity and conviction of guilty persons. As a stopping point, it can be justified solely on the ground that it achieves a better balance between these twin goals than would other points. If another stopping point does the job better, it should replace the current exclusionary rule.'" As Professor Kaplan also observes, to suggest reasonable limits to the exclusionary rule is not to tamper with sacred dogma. Rather it may well constitute the necessary "pruning" which will strengthen the rule's application in a more proper and restricted area. He concludes that both the value and costs of the rule in "utilitarian" terms are singularly unpersuasive, and the price of the rule in a "political sense" is so high as to "jeopardize its existence regardless of its presumed benefits." Properly noting that "one does not have to oppose fourth amendment values, however, in order to object to the exclusion of evidence," (p. 1038) Professor Kaplan suggests the wisdom of removing the exclusionary rule altogether from aggravated cases concluding that "the fact remains that the case for eliminating serious crimes from the coverage of the rule is a strong one." It will be recalled that in the instant case Disbrow is charged with two murders -- the most serious of all offenses. Contrary to the majority, I think it not at all clear that academic [16 Cal.3d 131] literature is "strongly critical" of reasonable limitations, of the Harris type, on the exclusionary rule. While remaining vigilant in the protection of an accused from untoward police conduct neither can we disregard, in maintaining a procedural balance, the constant and fundamental purpose of the trial itself, ascertainment of the truth.

In the final analysis resolution of the case reduces itself not alone to honest differences in opposing interpretations, but to opposing philosophies as well. The majority impose a flat rule of exclusion. I would elevate the People's interest in the fact finding process. I think it wholly inappropriate and unwise, save in most unusual situations, to compound the analytical process by creating a duplicate series of constitutional rules -- federal and state. Furthermore, even were it wise to interpret the California constitutional language in a different manner the majority, while rejecting, have not answered the logic or the reasoning of the United States Supreme Court in Harris wherein it (in reliance on Walder) stated: "Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. ... The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." (401 U.S. 222 at pp. 225-226 [28 L.Ed.2d 1 at pp. 4-5].) In this situation, as in Walder "... there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility." (Id.)

Facing the problem anew courts might adopt one of three possible alternative positions. They might include the perjured testimony for all purposes whatever, whether by way of impeachment or as substantive evidence in the prosecution's case in chief. They might exclude the evidence for all purposes, as proposed by the majority. They might, as the federal Supreme Court in Harris, and as in Nudd, adopt the middle ground of excluding the challenged evidence in the prosecution's case in chief but permitting it for impeachment. It seems to me that the Harris-Nudd rule strikes a proper and reasonable balance between the pre-Weeks rule of unlimited admissibility, and the majority's proposal of total exclusion.

Finally, it is always important to bear in mind, of course, a statutory safety valve. Trial courts continue to maintain in both civil and criminal cases a broad discretion under Evidence Code section 352 to exclude evidence if the danger of prejudice substantially outweighs its probative [16 Cal.3d 132] evidentiary value, thus affording defendant an additional protection. (See People v. Pierce (1969) 269 Cal.App.2d 193, 205 [75 Cal.Rptr. 257].)

I believe the present majority seriously err in declining to follow the ruling of the United States Supreme Court in Harris, in reversing our own very recent holding in Nudd, and in departing from a position adopted by so many of our sister states. Our task is to seek fairness and an even-handed and dispassionate resolution of the conflicting considerations raised by the issues herein. In these efforts we will do well to be reminded of, and reflect deeply upon, the sage admonition of a very great legal scholar, Justice Benjamin N. Cardozo who more than 40 years ago in Snyder v. Massachusetts (1934) 291 U.S. 97, 122 [78 L.Ed. 674, 687, 54 S.Ct. 330, 90 A.L.R. 575], insisted: "But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true."

I would affirm the judgment.

McComb, J., and Clark, J., concurred.

―FN 1. Apparently Kathleen voluntarily opened the door, as the police found no signs of forcible entry.

―FN 2. Specifically, defendant denied threatening anyone on the afternoon of April 15, and said he went to the Pairis home only to tell his wife he was leaving town. He testified that he met Kathleen on the afternoon of the 16th and she told him to come to the house that evening to see his wife. He possessed the loaded gun in order to give it to one Ray Ward in return for a favor. He stated he was admitted to the Pairis home voluntarily and that the occupants appeared to be under the influence of something. Kathleen then allegedly pointed a gun at him and said, "Are you ready for this?" There followed a struggle over the gun and defendant was shot. He testified he then ran for the door, firing as he went, and did not know he had hit anyone until he heard it on the car radio.

―FN 3. On cross-examination defendant was questioned concerning three statements made to Detective Yost which conflicted with his trial testimony. The first was that he went to the Pairis home to get money to leave town, and that the only way he could get the money was with a gun. The second statement concerned the location of the principals at the time defendant was shot. The third statement concerned defendant's specific recollection of shooting his wife. These statements were then reintroduced when Detective Yost testified in rebuttal.

―FN 4. Because of our disposition herein we find it unnecessary to reach defendant's remaining contentions.

―FN 5. The Miranda language was as follows: "The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to 'admissions' of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely 'exculpatory.' If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement." (Italics added.) (384 U.S. at pp. 476-477 [16 L.Ed.2d at p. 725].)

―FN 6. The lack of a limiting instruction was held not to be error: "Granted, even though not requested to do so, the trial court must instruct the jury on the general principles of law raised by the evidence. [Citations.] But absent request by a party, there is no duty to give an instruction limiting the purpose for which evidence may be considered." (12 Cal.3d at p. 209.)

―FN 7. The Walder court also made clear that if the defendant had merely denied possession of the heroin which was the basis of the prosecution, no impeachment would have been permitted: "the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief." (Id., at p. 65 [98 L.Ed. at p. 507].)

―FN 8. It is interesting to note that in neither Harris nor Nudd was the traditional safeguard against improper use of impeachment evidence, the limiting instruction, of any effect. In Harris both sides argued the substance of the statements, and in Nudd no limiting instruction was given. (See fn. 6, ante.)

―FN 9. Of course, we do not presume to interpret the above-discussed federal decisions in a manner contrary to that established by the United States Supreme Court as a matter of federal law. We discuss these cases only in order to determine whether under state law they are persuasive authority for interpreting California cases such as Fioritto and Taylor to furnish justification for an impeachment exception to the self-incrimination clause of article I, section 15, of the California Constitution. In short, our decision herein is not based on a different reading of Agnello-Walder, but rather a different view of the parameters of the independent state self-incrimination clause.

―FN 10. For example, the giving of proper warnings would obviously not render a confession voluntary if the warnings were followed by a physical beating.

―FN 11. The immense tax on judicial resources flowing from a rule requiring questions of voluntariness to be decided on a case-by-case basis is indicated by Justice Tom Clark's dissent in Haynes: "In light of petitioner's age, intelligence and experience with the police, in light of the comparative absence of any coercive circumstances, and in light of the fact that petitioner never, from the time of his arrest, evidenced a will to deny his guilt, I must conclude that his written confession was not involuntary. I find no support in any of the 33 cases decided on the question by this Court for a contrary conclusion." (Italics added.) (Haynes v. Washington (1963) supra, 373 U.S. 503, 525 [10 L.Ed.2d 513, 527-528] (Clark, J., dissenting).)

―FN 12. Indeed, there is an unsettled question of voluntariness in the case at bar: is police deception tantamount to physical or psychological coercion? Miranda stated, "any evidence that the accused was ... tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege." (384 U.S. at p. 476 [16 L.Ed.2d at p. 725].) But Miranda was not primarily concerned with questions of traditional coercion. It is clear that deceit coupled with overbearing practices will render a confession involuntary. (Leyra v. Denno (1954) 347 U.S. 556 [98 L.Ed. 948, 74 S.Ct. 716].) However, there is also authority that deceit alone is not coercive. (People v. Atchley (1959) 53 Cal.2d 160 [346 P.2d 764]; but see Atchley v. Wilson (N.D.Cal. 1968) 300 F.Supp. 68.) In People v. Johnson (1969) 70 Cal.2d 469 [74 Cal.Rptr. 889, 450 P.2d 265], an assurance given the defendant that the statements taken were only for "investigatory" purposes was partly responsible for a finding of involuntariness, but in that case there was evidence of other threats and promises. Conversely, in Nudd the statements were held voluntarily made, but there was some question whether the defendant had realized that the officer was giving him the opportunity to speak "off the record." We note these cases to illustrate the potential morass which lurks behind a seemingly straightforward question of voluntariness. Fortunately, in view of our disposition of this case we find it unnecessary to add yet another appellate consideration of the effect of deceit under the "totality of circumstances" test.

―FN 13. This was, of course, six years prior to the United States Supreme Court decision in Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2d 1081, 81 S.Ct. 1684, 84 A.L.R.2d 933].

―FN 14. Doubtless official reliance has heretofore been placed on both Harris and Nudd. Accordingly, except as to the defendant in the case at bar the rule we now adopt will apply only to trials begun after this opinion becomes final.

―FN 15. Academic reaction to Harris has in general been strongly critical. (See, e.g., Dershowitz & Ely, Harris v. New York: Some Anxious Observations (1971) 80 Yale L.J. 1198; Note, Harris v. New York: the Retreat from Miranda (1972) 32 La.L.Rev. 650; Note (1971) 40 Fordham L.Rev. 394; Note (1972) 85 Harv.L.Rev. 44; Note (1971) 24 Vand.L.Rev. 843; Note (1971) 39 Geo.Wash.L.Rev. 1241; Note (1973) 73 Colum.L.Rev. 1476.)

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People v. Teresinski , 30 Cal.3d 822
[Crim. No. 20497. Supreme Court of California. February 18, 1982.]

THE PEOPLE, Plaintiff and Appellant, v. ROBERT JOSEPH TERESINSKI, Defendant and Respondent

(Opinion by Broussard, J., with Bird, C. J., Mosk, Newman and Kaus, JJ., and Tobriner, J., concurring. Separate concurring and dissenting opinion by Richardson, J.)

COUNSEL

George Deukmejian and Evelle J. Younger, Attorneys General, Robert H. Philibosian and Jack R. Winkler, Chief Assistant Attorneys General, Arnold O. Overoye, Assistant Attorney General, Willard F. Jones and William G. Prahl, Deputy Attorneys General, for Plaintiff and Appellant.

D. Lowell Jensen, District Attorney (Alameda), John J. Meehan, Assistant District Attorney, Ralph Countryman, Deputy District Attorney, [30 Cal.3d 826] David J. Levy, City Attorney (Concord), and Kenneth C. Scheidig, Assistant City Attorney, as Amici Curiae on behalf of Plaintiff and Appellant.

Paul Halvonik and Quin Denvir, State Public Defenders, Gary S. Goodpaster and Ezra Hendon, Chief Assistant Public Defenders, Richard E. Shapiro and Michael S. Zola, Deputy State Public Defenders, and Lewis F. Shearer for Defendant and Respondent.

Marshall W. Krause, Krause, Baskin & Shell, Krause, Timan, Baskin, Shell & Grant, Ephriam Margolin, Steven Stathatos, Margaret C. Crosby, Alan L. Schlosser and Amitai Schwartz as Amici Curiae on behalf of Defendant and Respondent.

OPINION

BROUSSARD, J.

Our prior opinion in this case (People v. Teresinski (1980) 26 Cal.3d 457 [162 Cal.Rptr. 44, 605 P.2d 874]) upheld a ruling of the Yolo County Superior Court dismissing charges against defendant on the ground that both the physical evidence linking him to the charged robbery and the identification testimony of the victim were the direct product of an illegal detention. The United States Supreme Court granted certiorari and remanded the case to us for further consideration in light of United States v. Crews (1980) 445 U.S. 463 [63 L.Ed.2d 537, 100 S.Ct. 1244]. (California v. Teresinski (1980) 449 U.S. 914 [66 L.Ed.2d 143, 101 S.Ct. 311].)

The Crews decision does not affect our prior conclusion that the arresting officer lacked an objectively reasonable basis for detaining defendant; it confirms our prior ruling that the physical evidence seized as a result of that detention and the subsequent photographic identification are inadmissible. Crews, however, casts doubt upon our holding that the identification testimony of the robbery victim must also be excluded. Although we reasoned that such testimony should be excluded if derived in direct causative flow, without intervening act, from the initial detention, the Supreme Court in Crews stated that admissibility should turn instead on whether the victim's identification testimony was the result of an independent recollection of the crime, untainted by any confrontation or identification arising from the illegal detention. [30 Cal.3d 827]

[1a] Upon reconsideration of this issue, pursuant to the mandate of the Supreme Court, we note first that Crews is virtually indistinguishable from the present case. Although recognizing the authority of this court to construe the California Constitution to provide protection beyond that afforded by parallel provisions of the federal document, we nevertheless find the reasoning of Crews persuasive and consistent with past California decisions; we therefore adopt Crews as defining the rights of the parties under the California Constitution.

Under the reasoning of Crews, a victim's identification testimony is admissible if based upon his independent recollection untainted by illegal police conduct. In the present case the trial court determined that the identification testimony was the independent product of the victim's observation of defendant during the robbery. Since that determination complies with the requirements of Crews, we conclude that the trial court erred in suppressing the testimony

1. Statement of facts.

We reproduce the factual recital from our former opinion, adding a brief discussion of the views of the trial judge concerning the independent basis of the identification testimony.

About 2 a.m., Officer Rocha of the Dixon police force saw an unfamiliar car with three occupants proceeding through the city business district. Because of windshield glare he could not see defendant, the driver, but he thought both passengers were juveniles and surmised that the driver also was a minor. Although the car was proceeding at a lawful speed without any suspicious behavior, the officer signaled the driver to stop. He subsequently explained that he detained the car because "I believed there were juveniles in the car. We have a 10:00 o'clock curfew in Dixon." fn. 1

As the car slowed to a stop Officer Rocha observed defendant and the front-seat passenger glance back and reach down. Those gestures led him to believe that the occupants might be hiding alcohol or reaching for a weapon. Defendant alighted from the car, walked toward the [30 Cal.3d 828] police vehicle, and presented his driver's license. The license verified defendant's adult status, and in fact only one occupant of the car was a juvenile.

Rocha told defendant to stay at the rear of the car, walked to the driver's window, and shined his light on the floorboard. He saw a pool of liquid and a beer can under the front seat. Ordering the two passengers out, he then observed a gun holster; and, after questioning, Rocha retrieved a loaded weapon from the floorboard. fn. 2

A subsequent search of the car produced several beer containers, a baggie of marijuana, and a paper bag filled with bills and change. The money was traced to a Seven-Eleven store that had been robbed earlier that night in nearby Woodland. Defendant and his two passengers were arrested on suspicion of robbery. Mr. Cady, the store clerk who witnessed the robbery, identified photographs of defendant and his companions. Later at the preliminary hearing Cady identified defendant in person.

Defendant moved pursuant to Penal Code section 1538.5 to suppress both the physical evidence seized and the identification testimony of Cady, basing his motion primarily on the testimony of Cady and Officer Rocha at the preliminary hearing. Following argument, the court requested briefing on the question whether "under circumstances where the victim is able to identify but is unable to name the defendant as the perpetrator of the crime, if the defendant's name becomes known to the victim as a result of an illegal arrest and mug pictures are taken and shown to the victim, then must the victim's identification of the defendant ... be suppressed?" Clarifying its request, the court further stated that "Here the Court is satisfied that Mr. Cady was able to identify the defendants. He knew their physical appearance. But he did not know their name, and their names became known to him through the mugshots which were taken as a result of ... an illegal stop ...."

After receiving briefs, the trial court granted the motion to suppress. It ruled, first, that because defendant and his companions were not loitering, Officer Rocha had no basis for detaining them; the detention was therefore illegal. The illegality of the detention compels suppression [30 Cal.3d 829] of the evidence found in the car. The trial court also directed suppression of Cady's testimony, on the ground that "[t]here was a direct, immediate and necessary causal connection between the illegal stop and the identifications." Since there remained no evidence linking defendant with the robbery, the court ordered the charges dismissed.

The People appealed. As we noted earlier, this court granted a hearing and affirmed the trial court's ruling in all respects. (26 Cal.3d 457.) The Supreme Court granted certiorari and remanded the case to us for reconsideration in light of United States v. Crews, supra, 445 U.S. 463, a decision of the high court filed subsequent to our decision in Teresinski.

2. Invalidity of the detention.

[2a] Although the Supreme Court's mandate referred only to United States v. Crews, a decision which does not relate to our earlier holding that defendant's detention was illegal, we have permitted the parties to present additional authorities and argument bearing on that issue. Upon review of the matter, however, we adhere to our prior holding, and adopt the language of the former opinion as modified to take account of additional contentions advanced and authorities cited.

As we noted in our former opinion, In re Tony C. (1978) 21 Cal.3d 888, 893 [148 Cal.Rptr. 366, 582 P.2d 957] defined the constitutional standard for measuring the validity of a detention. [3] That decision explained that: "to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation omitted], to suspect the same criminal activity and the same involvement by the person in question."

[2b] We need only apply that standard to the facts of the present case. The detention here rested upon Officer Rocha's suspicion that defendant [30 Cal.3d 830] and his comrades were violating a city curfew ordinance. fn. 3 Contrary to Officer Rocha's statement, the ordinance does not declare it a crime for minors to be found in public after 10 p.m. It provides that it is unlawful for a minor "to loiter, idle, wander, stroll, or play in or upon the public streets" and other public places between 10 p.m. and 5 a.m. fn. 4 These terms cannot reasonably be construed to encompass defendant's conduct.

[4] The word "loiter" in particular bears a sinister connotation: it generally connotes lingering for the purpose of committing a crime. (In re Cregler (1961) 56 Cal.2d 308, 312 [14 Cal.Rptr. 289, 363 P.2d 305]; but see In re Nancy C. (1972) 28 Cal.App.3d 747, 755 [105 Cal.Rptr. 113].) As the court noted in People v. Horton (1971) 14 Cal.App.3d 930, 933 [92 Cal.Rptr. 666]: "driving along city streets, even at 1:15 in the morning, is not 'loitering.'" (Cf. City of Seattle v. Pullman (1973) 82 Wn.2d 794 [514 P.2d 1059].) Whether or not the terms "idle, wander, stroll, or play," when used in a curfew ordinance, also carry a sinister connotation, those terms are equally inapplicable to the present case. Conceivably one may "idle, wander," or "play" in an automobile, but merely driving along a street in a lawful manner cannot be so described.

[2c] In sum, Officer Rocha lacked any objectively reasonable basis to suspect that defendant or his passengers were violating the prohibitory [30 Cal.3d 831] language of the ordinance. fn. 5 Accordingly, his detention of defendant was unlawful under the standards established in In re Tony C., supra, 21 Cal.3d 888, 893.

[5] Although it is clear that defendant's conduct did not violate the curfew ordinance, the People nevertheless argue that the detention should be upheld on the ground that the officer's action was based on a "reasonable mistake of law." (Cf. Hill v. California (1971) 401 U.S. 797 [28 L.Ed.2d 484, 91 S.Ct. 1106] (mistake of fact); Elder v. Bd. of Medical Examiners (1966) 241 Cal.App.2d 246 [50 Cal.Rptr. 304].) Courts on strong policy grounds have generally refused to excuse a police officer's mistake of law. (See, e.g., People v. McKelvy (1972) 23 Cal.App.3d 1027, 1036-1037 [100 Cal.Rptr. 661].) fn. 6 We need not decide, however, whether under exceptional circumstances an officer's [30 Cal.3d 832] reasonable mistake of law might validate police conduct because in this case the officer's mistake cannot be found reasonable.

The curfew ordinance did not present an obscure or unfamiliar enactment to Officer Rocha, but one that he had enforced on numerous occasions. The plain language of the ordinance clearly does not prohibit a minor from simply being present on the streets of Dixon after 10 p.m., but only prohibits such behavior as "loitering" or "idling" on the streets; the officer's belief that Dixon had enacted a blanket curfew ordinance should have been dispelled by a simple reading of the terms of the enactment. Moreover, several years before the detention in the present case, the Court of Appeal in construing a similar ordinance explicitly held that driving a car at a normal rate of speed down a public street did not violate the ordinance. (People v. Horton, supra, 14 Cal.App.3d 930.) If we were to find Officer Rocha's mistake of law reasonable under these circumstances, we would provide a strong incentive to police officers to remain ignorant of the language of the laws that they enforce and of the teachings of judicial opinions whose principal function frequently is to construe such laws and to chart the proper limits of police conduct.

3. Suppression of evidence.

[2d] Having found defendant's detention illegal, it necessarily follows that the physical evidence found in the automobile as a result of this detention is inadmissible. (See, e.g., United States v. Crews, supra, 445 U.S. 463, 472 [63 L.Ed.2d 537, 546]; In re Tony C., supra, 21 Cal.3d 888, 899; Lockridge v. Superior Court (1970) 3 Cal.3d 166 [89 Cal.Rptr. 731, 474 P.2d 683].) Since defendant was booked and photographed following that detention as part of the investigation of the Seven-Eleven robbery, the robbery victim's identification of defendant's booking photograph -- a photograph taken as a direct and immediate result of that illegality -- is also inadmissible. (See United States v. Crews, supra, 445 U.S. 463, 473, fn. 18, 477 [63 L.Ed.2d 537, 547, 549]; 3 La Fave, Search and Seizure (1978) 11.4 and cases there cited; cf. Davis v. Mississippi (1969) 394 U.S. 721 [22 L.Ed.2d 676, 89 S.Ct. 1394] (fingerprints); People v. Sesslin (1968) 68 Cal.2d 418 [67 Cal.Rptr. 409, 439 P.2d 321] (handwriting exemplar); People v. McInnis (1972) 6 Cal.3d 821, 825-826 [100 Cal.Rptr. 618, 494 P.2d 690], which admitted identification evidence based upon a routine booking photograph taken in connection with an unrelated crime, is distinguishable.) [30 Cal.3d 833]

The Attorney General offers no substantial argument to contest the trial court's ruling excluding the physical evidence seized and the photographic identification. [1b] He contends, however, that Cady's identification of defendant was admissible, despite the illegal detention, under the reasoning of the United States Supreme Court in United States v. Crews, supra, 445 U.S. 463.

In Crews, three women were robbed in the womens' restroom at the Washington Monument. A few days later a policeman saw defendant loitering near the Monument restrooms, observed that he matched the description given by the women, and attempted to photograph him. When the officer could not get a suitable picture, he took defendant into custody for truancy, photographed defendant at the police station, and released him. After two of the robbery victims identified the photograph, defendant was arrested and charged with robbery.

The trial court ruled that the detention for truancy constituted an illegal arrest, and suppressed both the photographic identification and a subsequent lineup identification. The court permitted the victims to testify at trial, however, and on the basis of that testimony defendant was found guilty of robbery of the first victim.                               

The Court of Appeals for the District of Columbia overturned the conviction, holding that the in-court identification was the inadmissible product of the illegal detention. (Crews v. United States (D.C. 1978) 389 A.2d 277.) The United States Supreme Court unanimously reversed. Justice Brennan, joined by all other participating justices, held that the pretrial identifications were inadmissible, but that the robbery victim's identification testimony at trial was admissible. He noted, first, that the victim's identity was known to the police before the illegal detention, and thus her presence at trial was not traceable to any Fourth Amendment violation (445 U.S. p. 472 [63 L.Ed.2d p. 546]). Furthermore, the trial court in Crews specifically found that the victim's courtroom identification "rested on an independent recollection of her initial encounter with the assailant, uninfluenced by the pretrial identifications." (P. 473 [63 L.Ed.2d p. 547].) Justice Brennan therefore concluded that the in-court identification testimony was not tainted by the prior illegal detention.

The defendant in Crews, although acknowledging that an illegal detention in itself is not a bar to a subsequent prosecution (see Frisbie v. [30 Cal.3d 834] Collins (1952) 342 U.S. 519 [96 L.Ed. 541, 72 S.Ct. 509]), argued that his presence in court where he could be identified by the victim was the fruit of an illegal detention. In part D of his opinion, Justice Brennan found it unnecessary to reach that issue since "in this case the record plainly discloses that prior to his illegal arrest, the police both knew [Crews'] identity and had some basis to suspect his involvement in the very crimes with which he was charged." (445 U.S. p. 475 [63 L.Ed.2d p. 548].) Five justices, however, refused to join this portion of Justice Brennan's opinion since it implied that the in-court identification might be inadmissible if the police had detained Crews without any basis whatever, or had arrested him for some crime other than those with which he was later charged. Justice Powell, joined by Justice Blackmun, announced that he would "reject explicitly ... the claim that a defendant's face can be a suppressible fruit of an illegal arrest." (P. 447 [63 L.Ed.2d p. 549].) Justice White, joined by the Chief Justice and Justice Rhenquist, asserted that any contention that a defendant's appearance in court for identification is suppressible was foreclosed by precedent. (P. 479 [63 L.Ed.2d pp. 550-551].)

We find no basis to distinguish the present case from United States v. Crews. The victim in this case, like the victim in Crews, reported the crime to the police and provided them with a description of the robber before the illegal detention occurred. Although the trial court here made no formal finding that the victim's testimony at preliminary hearing was based upon his independent, untainted recollection of the crime, fn. 7 the court's statements at the close of the hearing imply such a determination. Judge Patton stated expressly that "the court is satisfied that Mr. Cady was able to identify the defendants. He knew their physical appearance. But he did not know their name, and their names became known to him through the mugshots which were taken as a result of the ... illegal stop ...."

It is clear from United States v. Crews that if the witness, relying upon his memory of the crime, is able to identify the defendant based upon his physical appearance, the testimony of the witness rests upon an adequate independent basis; the fact that the witness learned the defendant's name as a result of illegal police action is irrelevant. Judge Patton's determination that Cady could identify defendant's appearance apart from any information he acquired as a result of the illegal detention [30 Cal.3d 835] is therefore sufficient to establish that the identification testimony rested upon an independent and untainted source. fn. 8

Defendant argues that in the present case, unlike Crews, the police had no grounds to suspect him of the robbery prior to the illegal detention. This distinction, however, rests on that portion of Justice Brennan's opinion which was not joined by a majority of the justices. The concurring opinions of Justices Powell and White make it clear that a majority of the high court believe that an in-court identification, based upon the independent recollection of a witness known to the police before an illegal detention, is admissible whether or not the police suspected the defendant before the detention. (See Thorne v. State of Arkansas (1981) 274 Ark. 102 [627 S.W.2d 178].)

We conclude that Crews is controlling with respect to any contentions based on the federal Constitution, and compels us to reject defendant's premise that the admission of Cady's courtroom identification violated the Fourth Amendment. We therefore turn to defendant's alternative claim based on article I, section 13 of the California Constitution. fn. 9

[6] In addressing this issue, we begin by reaffirming the now settled principle that the California courts, in interpreting the Constitution of this state, are not bound by federal precedent construing the parallel federal text; as we recently stated in Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252 [172 Cal.Rptr. 866, 625 P.2d 779], the "state courts, in interpreting constitutional guarantees [30 Cal.3d 836] contained in state constitutions, are 'independently responsible for safeguarding the rights of their citizens.'" (P. 261, quoting People v. Brisendine (1975) 13 Cal.3d 528, 551 [119 Cal.Rptr. 315, 531 P.2d 1099].) fn. 10 Decisions of the United States Supreme Court, nevertheless, are entitled to respectful consideration (People v. Bustamante (1981) 30 Cal.3d 88, 97 [177 Cal.Rptr. 576, 634 P.2d 927]; People v. Longwill (1975) 14 Cal.3d 943, 951, fn. 4 [123 Cal.Rptr. 297, 538 P.2d 753]) and ought to be followed unless persuasive reasons are presented for taking a different course. [1c] In the present case, no reasons arise to justify rejecting the teaching of the Supreme Court in Crews.

First, nothing in the language or history of the California provision suggests that the issue before us should be resolved differently than under the federal Constitution. (Compare City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 130 [164 Cal.Rptr. 539, 610 P.2d 436]; People v. Anderson (1972) 6 Cal.3d 628, 634-637 [100 Cal.Rptr. 152, 493 P.2d 880].)

Second, this is not a case in which the high court "hands down a decision which limits rights established by earlier precedent in a manner inconsistent with the spirit of the earlier opinion." (People v. Bustamante, supra, 30 Cal.3d 88, 97.) In such a case, we have stated, "Respect for our Constitution as 'a document of independent force' [citation omitted] forbids us to abandon settled applications of its terms every time changes are announced in the interpretation of the federal charter." (People v. Pettingill (1978) 21 Cal.3d 231, 248 [145 Cal.Rptr. 861, 578 P.2d 108].) The issue before the Supreme Court in Crews, however, was one of first impression for that court; the decision did not overrule past precedent or limit previously established rights under the federal charter.

Third, we have on occasion been influenced not to follow parallel federal decisions by the vigor of the dissenting opinions and the incisive academic criticism of those decisions. (See Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d 252, 267, fn. 17; People v. Bustamante, supra, 30 Cal.3d 88, 100-101.) The high court decision in Crews, however, was unanimous, and has not inspired extensive criticism. [30 Cal.3d 837] The principles on which it rests -- that an illegal detention does not bar prosecution, and that proof that testimony rests on an independent source will justify its admission despite prior police illegality -- are well established. Indeed once courts move beyond the earlier theory that proof of a direct line of causation from an illegal search to the testimony of a witness to the crime automatically compelled suppression of the witness' testimony -- a point which this court reached in Lockridge v. Superior Court, supra, 3 Cal.3d 166 -- the holding in Crews follows logically from those principles.

Finally, the Supreme Court decision in Crews, if followed by the courts of this state, would not overturn established California doctrine affording greater rights to the defendant. To the contrary, as we will explain, past California precedent is consistent with the principles set out in Crews.

Prior to our first Teresinski opinion, the leading California decision on the Crews issue was Lockridge v. Superior Court, supra, 3 Cal.3d 166. fn. 11 In Lockridge, police investigating a jewelry store burglary obtained a warrant and searched an apartment. The search uncovered a gun stolen two years earlier, and by tracing the serial number of the gun the police located the victims of that earlier robbery. The victims identified photographs of defendants and subsequently identified defendants at preliminary hearing. In the burglary case, however, an appellate court had already held the search warrant invalid (Lockridge v. Superior Court (1969) 275 Cal.App.2d 612 [80 Cal.Rptr. 223]); defendants therefore moved to suppress the victims' testimony as the fruit of an illegal search.

We denied the request for mandate to suppress the identification testimony. Our opinion states that "The Pesces [the witnesses] were [30 Cal.3d 838] already known to the police as the victims of an unsolved robbery. Their gun was found as the result of a search conducted ... during the course of a police investigation of totally unrelated crimes. ... [I]t was pure happenstance that during an investigation of other crimes, the police came across the gun taken in the Pesce robbery. The purpose of the exclusionary rule is to deter unlawful police conduct. [Citations.] In the present case, that purpose was adequately served by suppressing the gun and the evidence of the other crimes that the police were seeking. That purpose would not be further advanced by suppressing the testimony of the known victims of the Pesce robbery; testimony that unquestionably would have been admissible to establish petitioners' guilt of that crime, but for the chance disclosure of their connection therewith during a wholly unrelated police investigation" (3 Cal.3d at pp. 170-171.) fn. 12

Lockridge provides a close parallel to the present case. In both cases, an unlawful search during a police investigation of an unrelated matter (the jewelry burglary in Lockridge, a curfew violation in the present case) led by chance to the discovery of physical evidence linking defendants to a prior robbery. In both the victims of the robbery were not discovered as a result of the unlawful search, fn. 13 but were known to the police before that search occurred.

Thus the Crews decision does not threaten to overturn a settled line of California precedent but, to the contrary, leads to results consistent with the leading California cases. Thus, those decisions which rely upon independent state grounds in order to preserve consistency in California law and protect established state doctrine (see People v. Pettingill, supra, 21 Cal.3d 231; People v. Longwill, supra, 14 Cal.3d 943) are inapposite in the present case. [30 Cal.3d 839]

We conclude that this court should adopt the reasoning of United States v. Crews to define the rights of a defendant under article I, section 13 of the California Constitution. As we said in Lockridge v. Superior Court, supra, 3 Cal.3d 166, 171, the purpose of the exclusionary rule is adequately served by suppressing the physical evidence seized by the officer as a result of the illegal detention. That purpose would not be significantly furthered by additionally suppressing the testimony of a witness who was not discovered as a result of unlawful police conduct, and whose testimony rests upon his independent memory of the robbery. fn. 14

In accord with that conclusion, we hold that the superior court correctly suppressed both the physical evidence seized at the time of the illegal detention and the testimonial evidence that Cady, the robbery victim, identified defendant's photograph the morning after the robbery. The court erred, however, in suppressing Cady's testimony identifying defendant at the preliminary hearing. Since that testimony was sufficient to establish probable cause to believe that defendant committed the charged robbery, the court also erred in dismissing the action against defendant.

The judgment (order of dismissal) is reversed, and the matter remanded for further proceedings consistent with this opinion.

Bird, C. J., Mosk, J., Newman J., and Kaus, J., and Tobriner, J., concurred.

RICHARDSON, J.,

Concurring and Dissenting.

I concur in the judgment reversing the order of dismissal pursuant to United States v. Crews (1980) 445 U.S. 463 [63 L.Ed.2d 537, 100 S.Ct. 1244]. As explained by the majority, the identification testimony at issue here was admissible under Crews as the independent product of the victim's observation of defendant during the robbery. [30 Cal.3d 840]

I respectfully dissent, however, from that portion of the opinion which concludes that the arresting officer lacked an objectively reasonable basis for detaining defendant. For the reasons well expressed by Justice Manuel in his dissenting opinion in this case (26 Cal.3d at pp. 465-466), in which I concurred, the detention was proper. As Justice Manuel explained: "Circumstances short of probable cause to make an arrest may justify an officer stopping pedestrians or motorists for questioning. (In re Tony C. (1978) 21 Cal.3d 888, 892 [148 Cal.Rptr. 366, 582 P.2d 957]; People v. Harris (1975) 15 Cal.3d 384, 388-389 [124 Cal.Rptr. 536, 540 P.2d 632]; Cunha v. Superior Court (1970) 2 Cal.3d 352, 355 [85 Cal.Rptr. 160, 466 P.2d 704]; Irwin v. Superior Court (1969) 1 Cal.3d 423, 426-427 [82 Cal.Rptr. 484, 462 P.2d 12]; People v. Mickelson (1963) 59 Cal.2d 448, 450 [30 Cal.Rptr. 18, 380 P.2d 658]; People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 95-96 [41 Cal.Rptr. 290, 396 P.2d 706].) As stated in Tony C., the application of the rules is based on a determination of '"the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." (Terry v. Ohio [1968] 392 U.S. at p. 19 [20 L.Ed.2d at p. 904]).' (21 Cal.3d at p. 892; italics added.)

"In the present case there was an abundance of objective facts that justified Officer Rocha's honest and strong belief that the occupants of the vehicle might be in violation of the curfew and ordinance. (See In re Nancy C. (1972) 28 Cal.App.3d 747 [105 Cal.Rptr. 113].) He observed a car he did not recognize, apparently occupied by juveniles, driving between 2 and 3 a.m. in the business district of a relatively small town. Although he knew that the curfew law contained a provision exempting juveniles traveling to or from 'some lawful business or place or dance,' he had no way of determining whether the exception applied without detaining and questioning the occupants of the vehicle. In light of the strong possibility that the exception did not apply, such detention and questioning was fully justified. In my opinion, there can be no question of 'the reasonableness in all the circumstances of the particular governmental invasion.'"

―FN 1. Citing testimony from a proceeding involving defendant's juvenile companion, the Attorney General asserts that the record in this case presents an incomplete and inaccurate account of defendant's activities and Officer Rocha's reasons for detaining defendant. We are constrained, however, to decide this case on the record before us. We cannot take judicial notice of the truth of testimony presented in a different action.

―FN 2. The issues in this case concern the legality of the initial detention. The scope of the search has not been questioned. (Cf. People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807 [91 Cal.Rptr. 729, 478 P.2d 449, 45 A.L.R.3d 559].)

―FN 3. The ordinance reads:

"Sec. 16.2 Curfew -- Minors not to be in public after 10:00 P.M.; exceptions.

"It shall be unlawful for any person under the age of eighteen years to loiter, idle, wander, stroll, or play in or upon the public streets, highways, roads, alleys, parks, playgrounds, or other public grounds, public places and public buildings, places of amusement and eating places, vacant lots, or other unsupervised places, between the hours of 10:00 P.M. and 5:00 A.M. of the day immediately following; provided, however, that the provisions of this section do not apply when the person is accompanied by his parent, guardian, or other adult person having the care and custody of the person, or when the person is returning directly home from a meeting, entertainment, recreational activity or dance, or when the person is going directly to or returning directly from work.

"A person under eighteen years may obtain food in a cafe after a meeting, entertainment, recreational activity, dance or work after the hour of 10:00 P.M., but must vacate the premises immediately after consuming the food served and proceed directly home." (Ord. No. 6, 1950, 1.)

"Sec. 16.4 Curfew -- Minors under eighteen violating curfew regulations.

"Any person under the age of eighteen years violating the provisions of section 16.2 shall be guilty of a misdemeanor and shall be dealt with in accordance with juvenile court law and procedure. (Ord. No. 6, 1950, 3.)"

―FN 4. In view of our conclusion that the detention was unlawful, we need not consider defendant's arguments attacking the constitutionality of the ordinance.

―FN 5. Curfew ordinances can be classified into two groups: those which prohibit "presence" at the proscribed time and place (see, e.g., the ordinance described in In re Francis W. (1974) 42 Cal.App.3d 892 [117 Cal.Rptr. 277]) and those such as the present ordinance which prohibit "loitering" or similar conduct. (See generally Curfew Ordinances and the Control of Nocturnal Juvenile Crime (1958) 107 U.Pa.L.Rev. 66, 73; In re Nancy C., supra, 28 Cal.App.3d 747, 755.) Apparently Officer Rocha mistakenly thought the Dixon ordinance was of the type which prohibited mere presence upon the city streets after 10 p.m.

Seeking to transform the officer's misconception into reality, the People argue that we should construe the Dixon ordinance to prohibit juveniles from being present on the streets after curfew. Their argument, which is not entirely clear, appears to be that the language of the ordinance, which declares it illegal to "loiter, idle, wander, stroll or play," is so broad as to indicate the city's intention to ban all activity whatsoever, even activity which does not fall within those specific terms. Even if such was the intention of the city council -- and the People present no support for that claim -- the language of the ordinance cannot reasonably be construed to ban conduct that does not fall within its specific terms.

―FN 6. The Attorney General calls our attention to the en banc decision of the Fifth Circuit in United States v. Williams (1980) 622 F.2d 830, in which 13 of 24 judges announced in dictum their view that the exclusionary rule should not bar admission of evidence obtained by police officers acting "in good faith" even if its seizure involved a technical violation of the Fourth Amendment. The United States Supreme Court, however, has never endorsed that view, and has frequently required the suppression of evidence in cases in which the police arguably were acting in good faith. (See, e.g., Robbins v. California (1981) 453 U.S. 420 [69 L.Ed.2d 744, 101 S.Ct. 2841]; United States v. Chadwick (1977) 433 U.S. 1 [53 L.Ed.2d 538, 97 S.Ct. 2476].) Adoption by this court of a doctrine limiting the exclusionary rule to searches and seizures conducted "in bad faith," as urged by the Attorney General, would appear barred by Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2d 1081, 81 S.Ct. 1684, 84 A.L.R.2d 933] in which the Supreme Court ruled that "all evidence obtained by searches and seizures in violation of the [United States] Constitution is, by that same authority, inadmissible in a state court" (367 U.S. 643, 655 [6 L.Ed.2d 1081, 1090]), and subsequent decisions applying that rule.

―FN 7. Findings are not required in a hearing to suppress evidence under section 1538.5.

―FN 8. Substantial evidence supports the determination that Cady's trial identification rested upon his independent recollection of the robbery. Cady observed the robbers at close range for several minutes in a well-lighted store; he then identified defendant and his companion from an array of eight photographs shown him the morning after the robbery. Defendant does not claim that the photographic lineup was suggestive. (See United States v. Crews, supra, 445 U.S. 463, 473, fn. 18 [63 L.Ed.2d 537, 547].)

We recognize that at the time of the section 1538.5 hearing it was not clear that the independent source doctrine, which originated in cases involving suggestive lineups (see United States v. Wade (1967) 388 U.S. 218, 241-242 [18 L.Ed.2d 1149, 1165-1166]), would become the test of admissibility of an in-court identification following an illegal but nonsuggestive lineup. Accordingly on remand of this matter defendant should be afforded the opportunity to renew his motion to suppress. (Cf. People v. Municipal Court (1970) 10 Cal.App.3d 539 [89 Cal.Rptr. 243].)

―FN 9. Article I, section 13, in language based upon the Fourth Amendment to the United States Constitution, provides that "The right of the people to be secure in their houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized."

―FN 10. In Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d 252, 261, footnote 4, we listed numerous cases, beginning with People v. Martin (1955) 45 Cal.2d 755 [290 P.2d 855], in which this court has construed the California Constitution as providing greater protection than that afforded by parallel provisions of the federal Constitution.

―FN 11. We note one earlier case. In People v. Stoner (1967) 65 Cal.2d 595 [55 Cal.Rptr. 897, 422 P.2d 585], the defendant was compelled at a lineup to wear clothing seized in an illegal search. The witness identified defendant in the lineup and again at trial. Holding the trial testimony admissible, we stated that: "[T]he fruit-of-the-poisonous-tree doctrine has not been invoked when the alleged fruit is testimony of a witness to a crime whose identity was not learned through police misconduct. ... Even if Greeley's courtroom identification was dependent in part on his viewing defendant in illegally obtained clothing at the showup, it was '"sufficiently distinguishable to be purged of the primary taint."' (Wong Sun v. United States, supra, [371 U.S. 471] at p. 488 [9 L.Ed.2d 441, 83 S.Ct. 407], quoting J. Maguire, Evidence of Guilt (1959) p. 221.)" (65 Cal.2d at p. 602.)

―FN 12. Subsequent California cases have followed the reasoning of Lockridge. In People v. McInnis, supra, 6 Cal.3d 821, we held that robbery victims could identify a defendant in court even though the victims first identified him on the basis of a photograph taken after an illegal arrest. People v. Griffin (1976) 59 Cal.App.3d 532 [130 Cal.Rptr. 648], on similar facts, reached the same result.

―FN 13. The trial court attempted to distinguish Lockridge on the ground that defendant in the present case was arrested, booked, and photographed in connection with the investigation of the Seven-Eleven robbery, while defendants in Lockridge were arrested, booked, and photographed for the jewelry burglary. Although we endorsed that distinction in our prior opinion, its validity is open to question. The illegal police conduct in the present case, which gave rise to the suppression motion, concerns the initial detention, not the arrest or subsequent booking and photographing. That detention occurred during an investigation of a suspected curfew violation before the detaining officer was even aware of the Seven-Eleven robbery.

―FN 14. The Crews decision, in noting that the arrest in that case was not a sham or pretext (see 445 U.S. 464, 468, fn. 5 [63 L.Ed.2d 537, 543-544]), implied a limit to the admissibility of evidence under that decision. If an arrest were a sham or pretext, employed merely as a device to secure a defendant's person or photograph for identification, the deterrant purpose of the exclusionary rule might require the suppression of in-court identification testimony.

~~~~~~~~~~~~~~~~

Committee to Defend Reproductive Rights v. Myers , 29 Cal.3d 252
[S.F. No. 24069. Supreme Court of California. March 20, 1981.]

COMMITTEE TO DEFEND REPRODUCTIVE RIGHTS et al., Plaintiffs and Appellants, v. BEVERLEE A. MYERS, as Director, etc., et al., Defendants and Respondents.

[S.F. No. 24053. Supreme Court of California. March 20, 1981.]

COMMITTEE TO DEFEND REPRODUCTIVE RIGHTS et al., Petitioners, v. KENNETH CORY, as State Controller, et al., Respondents.

[S.F. No. 24192. Supreme Court of California. March 20, 1981.]

COMMITTEE TO DEFEND REPRODUCTIVE RIGHTS et al., Petitioners, v. JESSE M. UNRUH, as State Treasurer, et al., Respondents

(Opinion by Tobriner, J., with Mosk and Newman, JJ., concurring. Separate concurring opinion by Bird, C.J. Separate dissenting opinion by Richardson, J., with Clark, J., concurring.)

COUNSEL

Patti Roberts, Tamara Dahn, Michelle Murphy, Barbara Weiner, Abigail English, Pauline Tesler, Vilma Martinez, Carmen Estrada, Linda Hanten, Nancy L. Davis, Joan Messing Graff, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, Fred Okrand, Mark D. Rosenbaum, Terry Smerling and Ralph Santiago Abascal for Plaintiffs and Appellants and for Petitioners.

Dorothy T. Lang, Sylvia Drew Ivie, Diane Morrison, Roberta Ranstrom, Barbara Steinhardt, William G. Harris, Larson, Weiberg & Harris, James R. Abernathy II, Jan G. Levine, Alletta d'A. Belin, Timothy B. Flynn, Carlyle W. Hall, Jr., A. Thomas Hunt, John R. Phillips, David E. Willett and Hassard, Bonnington, Rogers & Huber as Amici Curiae on behalf of Plaintiffs and Appellants.

George Deukmejian and Evelle J. Younger, Attorneys General, Charlton G. Holland and Asher Rubin, Deputy Attorneys General, for Defendants and Respondents.

Burton Shamsky, Shamsky & Vreeland, George D. Crook, Richard J. Morillo, Ochoa, Holderness, Barbosa & Crook, Robert A. Destro, James Bopp, Jr., and Francis X. Driscoll as Amici Curiae on behalf of Defendants and Respondents. [29 Cal.3d 256]

OPINION

TOBRINER, J.

Plaintiffs, representing indigent women throughout the state, challenge the constitutionality under the California Constitution of provisions in the 1978, 1979, and 1980 California Budget Acts that limit Medi-Cal funding for abortions. Although the acts differ in minor respects, all afford full funding of medical expenses incurred by indigent women who decide to bear a child, but, except in a few limited circumstances, deny funding to those indigent women who choose to have an abortion. Plaintiffs contend that this selective or discriminatory public funding scheme violates a number of distinct constitutional guarantees, in particular the women's rights of privacy, due process, and equal protection of the laws.

At the outset, to dispel certain misconceptions that have appeared in this case, we must clarify the precise, narrow legal issue before this court. First, this case does not turn on the morality or immorality of abortion, and most decidedly does not concern the personal views of the individual justices as to the wisdom of the legislation itself or the ethical considerations involved in a woman's individual decision whether or not to bear a child. Indeed, although in this instance the Legislature has adopted restrictions which discriminate against women who choose to have an abortion, similar constitutional issues would arise if the Legislature -- as a population control measure, for example -- funded Medi-Cal abortions but refused to provide comparable medical care for poor women who choose childbirth. Thus, the constitutional question before us does not involve a weighing of the value of abortion as against childbirth, but instead concerns the protection of either procreative choice from discriminatory governmental treatment.

Second, contrary to the suggestion of the defendants and the dissent, the question presented is not whether the state is generally obligated to subsidize the exercise of constitutional rights for those who cannot otherwise afford to do so; plaintiffs do not contend that the state would be required to fund abortions for poor women if the state had not chosen to fund medical services for poor women who choose to bear a child. Rather, we face the much narrower question of whether the state, having enacted a general program to provide medical services to the poor, may selectively withhold such benefits from otherwise qualified persons solely because such persons seek to exercise their constitutional [29 Cal.3d 257] right of procreative choice in a manner which the state does not favor and does not wish to support.

In defending the constitutionality of the provisions in question, the Attorney General relies most prominently upon the recent decision of the United States Supreme Court in Harris v. McRae (1980) 448 U.S. 297 [65 L.Ed.2d 784, 100 S.Ct. 2671] (hereafter McRae). In McRae, the Supreme Court, by a closely divided vote (five to four), upheld restrictions on federal Medicaid funding of abortions similar to those in the state acts before us. As the Attorney General acknowledges, however, the McRae case did not present any question under the California Constitution and consequently the justices of the high court neither addressed nor resolved the question of the compatibility of such a statutory scheme with our state constitutional guarantees. It is this question of state constitutional law, not resolved by McRae, which we must decide in the present case.

In addressing this issue, we shall explain initially that the analysis utilized by the majority of the United States Supreme Court in McRae differs substantially from the analysis mandated by the controlling California authorities and thus cannot be followed here. In McRae, the five-justice majority acknowledged that the governmental program provided unequal treatment in the distribution of public benefits solely on the basis of how an individual woman exercised her basic constitutional right of procreative choice. The court concluded, however, that the federal Constitution required no special justification for such discriminatory treatment so long as the program placed no new obstacles in the path of the woman seeking to exercise her constitutional right. (448 U.S. at pp. 315-318 [65 L.Ed.2d at pp. 804-805, 100 S.Ct. at p. 2688].)

By contrast, the governing California cases, discussed at length below, have long held that a discriminatory or restricted government benefit program demands special scrutiny whether or not it erects some new or additional obstacle that impedes the exercise of constitutional rights. In a series of cases reaching back more than three decades, this court has developed and applied a three-part test for evaluating the constitutionality of statutory schemes, like the program at issue here, that condition the receipt of benefits upon a recipient's waiver of a constitutional right or upon his exercise of such right in a manner which the government approves. [29 Cal.3d 258]

In order to sustain the constitutionality of such a scheme under the California Constitution, the state must demonstrate (1) "that the imposed conditions relate to the purposes of the legislation which confers the benefit or privilege"; (2) that "the utility of imposing the conditions ... manifestly outweigh[s] any resulting impairment of constitutional rights"; and (3) that there are no "less offensive alternatives" available for achieving the state's objective. (Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 505-507 [55 Cal.Rptr. 401, 421 P.2d 409].)

As we shall see, when measured against this established standard, the statutory scheme at issue is plainly unconstitutional. First, the Budget Act restrictions are antithetical to the purpose of the Medi-Cal program -- to provide indigents with access to medical services comparable to that enjoyed by more affluent persons. Second, the benefits of the funding restrictions do not manifestly outweigh the impairment of the constitutional rights; the fiscal advantages of the restrictions are illusory, and the asserted state interest in protecting fetal life cannot constitutionally claim priority over the woman's fundamental right of procreative choice. Third, the Medi-Cal program as qualified by the Budget Act restrictions clearly does not aid poor women who choose to bear children in a manner least offensive to the rights of those who choose abortion. Accordingly, we conclude that the challenged restrictions cannot stand.

1. Background of the present litigation.

The California Medi-Cal program funds "physician, hospital or clinic outpatient, [and] surgical center" services, as well as "inpatient hospital services," for "recipients of public assistance [and] medically indigent aged and other persons." (Welf. & Inst. Code, 14000, 14132, subds. (a) & (b).) No one disputes that abortions performed by a physician, whether in a hospital, clinic, or office, are medical services which, in the absence of special funding restrictions, would be funded under the foregoing provisions. Prior to 1978, the Medi-Cal program paid for legal abortions obtained by Medi-Cal recipients.

The California Legislature, however, inserted into the 1978, 1979, and 1980 Budget Acts provisions restricting Medi-Cal funding of abortions. (Stats. 1978, ch. 359, 2, item 248, pp. 823-825; Stats. 1979, ch. 259, 2, item 261.5, pp. 644-646; Stats. 1980, ch. 510, 2, item [29 Cal.3d 259] 287.5, pp. 1146-1148.) Although the 1978 enactment differs slightly from the 1979 and 1980 restrictions, all in essence provide funding for abortions only (1) when pregnancy would endanger the mother's life; (2) when pregnancy would cause severe and long-lasting physical health damage to the mother; (3) when pregnancy is the result of illegal intercourse (rape, incest, or unlawful intercourse with a minor); or (4) when abortion is necessary to prevent the birth of severely defective infants. fn. 1

Before the 1978 restrictions could take effect, plaintiffs filed this suit against Beverlee A. Myers, Director of the State Department of Health Services, to enjoin her from enforcing the restrictions. The trial court upheld the funding restrictions and refused injunctive relief. Plaintiffs appealed from the judgment, the Court of Appeal affirmed in a two-to-one [29 Cal.3d 260] decision, and we granted a hearing to decide the important constitutional issue presented. fn. 2

While the suit attacking the 1978 Budget Act restrictions was pending before us on petition for hearing, that act expired, to be replaced by the essentially identical provisions of the 1979 Budget Act. Plaintiffs thereupon filed an original petition in this court (Committee to Defend Reproductive Rights v. Cory) seeking mandate to bar enforcement of the 1979 act. We granted an alternative writ and stayed enforcement of the restrictions pending resolution of the merits.

The 1979 Budget Act expired June 30, 1980. On July 16 the Legislature enacted the 1980 Budget Act, which imposed restrictions on abortion funding identical to those in the 1979 act. Plaintiffs promptly filed an original petition for mandate (Committee to Defend Reproductive Rights v. Unruh) to restrain enforcement of the 1980 act. We issued an alternative writ and stayed enforcement of the funding restrictions pending resolution of the controversy. fn. 3

2. Our court bears an independent obligation to resolve plaintiffs' claims under the California Constitution on the basis of the governing state constitutional principles.

In these actions, plaintiffs contend that the statutes violate a number of provisions of both the California and United States Constitutions. As already noted, in defending the challenged budget restrictions the Attorney General relies most heavily on the United States Supreme Court's recent decision in McRae, in which a five-justice majority concluded that similar funding restrictions in the federal Medicaid program did not violate the provisions of the federal Constitution. McRae, of course, did not resolve or even address the question of the validity of such a statutory scheme under the California Constitution. [29 Cal.3d 261]

[1] Under these circumstances, we think it important to reiterate the basic principles of federalism which illuminate our responsibilities in construing our state Constitution. In emphasizing, in People v. Brisendine (1975) 13 Cal.3d 528, 549-550 [119 Cal.Rptr. 315, 531 P.2d 1099], "the incontrovertible conclusion that the California Constitution is, and always has been, a document of independent force," our court explained that "[i]t is a fiction too long accepted that provisions in state constitutions textually identical to the Bill of Rights were intended to mirror their federal counterpart. The lesson of history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state constitutions, rather than the reverse .... The federal Constitution was designed to guard the states as sovereignties against potential abuses of centralized government; state charters, however, were conceived as the first and at one time the only line of protection of the individual against the excesses of local officials." Accordingly, we affirmed in Brisendine that state courts, in interpreting constitutional guarantees contained in state constitutions, are "independently responsible for safeguarding the rights of their citizens." (Italics added.) (Id. at p. 551.) fn. 4

Contrary to the Attorney General's rhetoric, such independent construction does not represent an unprincipled exercise of power, but a means of fulfilling our solemn and independent constitutional obligation to interpret the safeguards guaranteed by the California Constitution in a manner consistent with the governing principles of California law. As we explained very recently in People v. Chavez (1980) 26 Cal.3d 334, 352 [161 Cal.Rptr. 762, 605 P.2d 401]: "[J]ust as the United States Supreme Court bears the ultimate judicial responsibility for determining matters of federal law, this court bears the ultimate judicial responsibility for resolving questions of state law, including the proper [29 Cal.3d 262] interpretation of provisions of the state Constitution. [Citations.] In fulfilling this difficult and grave responsibility, we cannot properly relegate our task to the judicial guardians of the federal Constitution, but instead must recognize our personal obligation to exercise independent legal judgment in ascertaining the meaning and application of state constitutional provisions." fn. 5

It is from this perspective that we must analyze plaintiffs' claims that the statutes in question are invalid under the California Constitution.

3. Although the state has no constitutional obligation to provide medical care to the poor, a long line of California decisions establishes that once the state has decided to make such benefits available, it bears a heavy burden of justification in defending any provision which withholds such benefits from otherwise qualified individuals solely because they choose to exercise a constitutional right.

In analyzing the constitutionality of the challenged statutory scheme, we start from the premise, not challenged by the Attorney General, that under article I, section 1 of the California Constitution all women in this state -- rich and poor alike -- possess a fundamental constitutional right to choose whether or not to bear a child. Our court first recognized the existence of this constitutional right of procreative choice in People v. Belous (1969) 71 Cal.2d 954 [80 Cal.Rptr. 354, 458 P.2d 194], four years before the United States Supreme Court in Roe v. Wade (1973) 410 U.S. 113 [35 L.Ed.2d 147, 93 S.Ct. 705] acknowledged the existence of a comparable constitutional right under the federal Constitution.

In 1972, moreover, the people of this state specifically added the right of "privacy" to the other inalienable rights of individuals enumerated in article I, section 1 of the state Constitution. fn. 6 The federal constitutional right of privacy, by contrast, enjoys no such explicit constitutional [29 Cal.3d 263] status. Consequently, in City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123 [164 Cal.Rptr. 539, 610 P.2d 436], this court recently refused to rely on federal precedent to restrict the ambit of the California right of privacy. The federal right, we noted, "appears to be narrower than what the voters approved in 1972 when they added 'privacy' to the California Constitution." (27 Cal.3d at p. 130, fn. 3.)

[2] The Attorney General concedes that under article I, section 1 the state has no authority directly to prohibit rich or poor women from exercising their right of procreative choice as they see fit. He argues, however, that the state violates no constitutional precept when it does not directly prohibit the protected activity but simply declines to extend a public benefit -- in this case publicly funded medical care -- to those who choose to exercise their constitutional right in a manner the state does not approve and does not wish to subsidize.

This court faced a nearly identical legal contention in a different factual context over 30 years ago in Danskin v. San Diego Unified Sch. Dist. (1946) 28 Cal.2d 536 [171 P.2d 885]. In Danskin the state had established a general program under which private organizations were permitted to utilize public school buildings for public meetings, but had structured the program so as to exclude "subversive elements" from the use of such school property. In defending the statutory scheme, the government argued, as the Attorney General does here, that since the state was under no constitutional obligation to make school buildings available to private organizations, it was free to permit or withhold access to such facilities as it saw fit in order to avoid "subsidizing" the exercise of subversive ideas it did not wish to encourage.

In Danskin, Justice Traynor -- writing for the court -- rejected the state's argument in no uncertain terms: "The state is under no duty to make school buildings available for public meetings. [Citations.] If it elects to do so, however, it cannot arbitrarily prevent any members of the public from holding such meetings. [Citations.] Nor can it make the privilege of holding them dependent on conditions that would deprive any members of the public of their constitutional rights. A state is without power to impose an unconstitutional requirement as a condition for granting a privilege even though the privilege is use of state property. [Citations.] [] Since the state cannot compel 'subversive elements' directly to renounce their convictions and affiliations, it cannot make such a renunciation a condition of receiving the privilege of free assembly in a school building." (28 Cal.2d at pp. 545-546.) [29 Cal.3d 264]

In more than three decades that have passed since the Danskin decision, both this court and the California Courts of Appeal have applied the legal principles underlying Danskin in a wide variety of factual settings, involving a host of different "public benefit" programs which conditioned the receipt of benefits on the waiver or forfeiture of a broad range of constitutional rights. As these numerous decisions teach, the Danskin principles apply whether the public benefit program at issue is access to a public forum, fn. 7 public employment, fn. 8 welfare benefits, fn. 9 public housing, fn. 10 unemployment benefits fn. 11 or the use of public property fn. 12 and whether the constitutional right singled out for discriminatory treatment is the right of free speech, fn. 13 or, as in this case, the right of privacy. fn. 14 In these varying contexts, California courts have repeatedly rejected the argument that because the state is not obligated to provide a general benefit, it may confer such a benefit on a selective basis which excludes certain recipients solely because they seek to exercise a constitutional right. fn. 15 [29 Cal.3d 265]

Our decision in Bagley v. Washington Township Hospital Dist., supra, 65 Cal.2d 499 served as a touchstone for many of these crucial precedents. (See, e.g., Vogel, supra, 68 Cal.2d 18; Parrish, supra, 66 Cal.2d 260; City of Carmel-by-the-Sea, supra, 2 Cal.3d 259; Finot, supra, 250 Cal.App.2d 189.) In Bagley, plaintiff, a nurse's aide employed by the defendant hospital district, was discharged when she refused to discontinue her off-duty pamphletting and petition circulating activities in support of an election campaign to recall several of the hospital district's directors. The district defended the discharge by reference to a Government Code section which provided broadly that "[n]o ... employee ... of a local agency ... shall take an active part in any campaign ... for or against any ballot measure relating to the recall of any elected official of the local agency." (Former Gov. Code, 3205.) In Bagley, our court rejected the district's defense and struck down the statute on constitutional grounds.

In reaching our conclusion in Bagley, we drew upon the cited prior holdings involving conditional benefit programs and on scholarly legal commentaries fn. 16 to construct a framework for judicial analysis of restrictions, like those here at issue, which exclude from government benefit programs potential recipients solely on the basis of their exercise of constitutional rights. Stressing that the "government bears a heavy burden of demonstrating the practical necessity" for such unequal treatment (65 Cal.2d at p. 505), our court in Bagley established a three-part standard that the state must satisfy to justify such a scheme.

First, we held that "[the state] must establish that the imposed conditions relate to the purpose of the legislation which confers the benefit or privilege." (65 Cal.2d at pp. 505-506.) Second, we declared that "[n]ot only must the conditions annexed to the enjoyment of a publicly conferred benefit reasonably tend to further the purpose sought by conferment of that benefit, but also the utility of imposing the conditions must manifestly outweigh any resulting impairment of constitutional rights." (Id., at p. 506.) Third, and finally, we established that "in imposing conditions upon the enjoyment of publicly conferred [29 Cal.3d 266] benefits, as in the restriction of constitutional rights by more direct means, the state must establish the unavailability of less offensive alternatives and demonstrate that the conditions are drawn with narrow specificity, restricting the exercise of constitutional rights only to the extent necessary to maintain the integrity of the program which confers the benefits." (Id., at p. 507.)

In attempting to avoid the analytical scrutiny mandated in California by the Danskin-Bagley line of decisions, the Attorney General relies on the recent federal decision in McRae. The Attorney General is simply mistaken, however, in suggesting that the federal approach to unconstitutional conditions corresponds to the California standard established by the Danskin-Bagley line of cases. Indeed, a comparison of several recent California and United States Supreme Court decisions demonstrates quite vividly the divergence between state and federal constitutional doctrine in this realm.

In Parrish v. Civil Service Commission, supra, 66 Cal.2d 260, for example, this court applied the Bagley standard in evaluating the constitutionality of a government practice of conditioning the receipt of welfare benefits upon a recipient's waiver of his constitutional right of privacy in his home. Because the government could not satisfy the Bagley test, we held the practice unconstitutional. In Wyman v. James (1971) 400 U.S. 309 [27 L.Ed.2d 408, 91 S.Ct. 381], by contrast, the United States Supreme Court subjected a similar governmental intrusion upon the rights of welfare recipients to a lesser degree of scrutiny, and -- contrary to our Parrish decision -- upheld the government policy against constitutional challenge.

Similarly, in Wirta v. Alameda-Contra Costa Transit Dist., supra, 68 Cal.2d 51, our court, applying the principles of Danskin and Bagley, struck down a discriminatory public transit advertising policy which made advertising space on public buses available for commercial expression but denied this "public benefit" to those who wished to advertise their views upon noncommercial, political subjects. In Lehman v. City of Shaker Heights (1974) 418 U.S. 298 [41 L.Ed.2d 770, 94 S.Ct. 2714], however, the United States Supreme Court, when faced with the identical issue presented in Wirta, declined to engage in the demanding scrutiny called for by the California precedents and sustained the unequal advertising policy under the federal Constitution. [29 Cal.3d 267]

Finally, our court, in Bagley itself and in Fort v. Civil Service Commission (1964) 61 Cal.2d 331 [38 Cal.Rptr. 625, 392 P.2d 385], tested the constitutionality of limitations on the political activities of public employees by stringent standards and found broadly worded restrictions on such activities to be unconstitutional. In United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers (1973) 413 U.S. 548 [37 L.Ed.2d 796, 93 S.Ct. 2880], however, the United States Supreme Court applied a less demanding standard and upheld comparably broad restrictions on political activities of federal employees.

As these cases indicate, for at least the past decade the federal decisions in this area have not been a reliable barometer of the governing California constitutional principles. Indeed, an examination of McRae itself plainly demonstrates that the McRae majority, in refusing to closely scrutinize the discriminatory Medicaid funding scheme, relied on factors which have no bearing on our task in applying California law.

First, the McRae court conceptualized the selective funding program as placing no additional "obstacles in the path of a woman's exercise of her freedom of choice" (448 U.S. at p. 316 [65 L.Ed.2d at p. 804, 100 S.Ct. at p. 2688]) but simply leaving "an indigent woman with at least the same range of choices in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all." (Id.) This reasoning which was central to the McRae decision, cannot be reconciled with the analysis adopted in the Danskin-Bagley line of decisions. fn. 17

In Danskin itself, for example, the government, by providing a public forum for nonsubversive groups, did not place any additional obstacle in the path of subversive groups who wanted to hold meetings in private buildings, public parks, or any other previously available forum. Nonetheless, our court held that the discriminatory aspect of the government's benefit program rendered it unconstitutional. Similarly, in Parrish, the condition which was placed on the receipt of welfare benefits posed no additional threat to the privacy rights of those who did not [29 Cal.3d 268] seek such benefits; we recognized, however, that the limitation would, in fact, impair the constitutional rights of would-be recipients and accordingly tested it by the standard announced in Bagley.

Indeed, the entire Danskin-Bagley doctrine is concerned solely with the validity of conditional prerequisites for the receipt of various benefits which the government has no obligation to provide. In all of these cases, it may be said that the limitation or condition at issue creates no "additional" obstacle to the exercise of rights, for a recipient unhappy with any such condition is always free -- at least theoretically -- to go without the public benefit in question. The California courts, however, have acknowledged both the practical importance of many governmental benefits to individual recipients and the corresponding likelihood that a discriminatory benefit program will effectively nullify important constitutional rights. Thus, California holdings uniformly confirm that the absence of an "additional obstacle" to the exercise of one's constitutional rights does not eliminate the government's burden of demonstrating the propriety of the condition or limitation under the Bagley test.

The Attorney General finds dictum in McRae on which he erects two additional arguments against our reliance upon the California doctrine of unconstitutional conditions. First, he argues that we should draw a distinction between a measure which denies other governmental benefits to women who choose to have an abortion and one which simply denies funding for the abortion itself. fn. 18 The former measure, he suggests, imposes an unconstitutional penalty; the latter merely withholds funding for actions which the state does not want to subsidize.

The proffered distinction does not conform to California precedent. In Danskin itself, for example, the challenged provisions did not broadly disqualify subversive elements from a wide range of benefits, but rather withheld a single benefit -- the use of public schools as a forum -- from those who wanted to use those facilities to exercise constitutional rights the state did not desire to subsidize. Similarly, under the California cases, the state could not escape application of the Bagley standard [29 Cal.3d 269] if, instead of denying all welfare benefits to recipients who marry someone of another race, the state provided free marriages for poor intraracial couples but declined to extend that "single benefit" to poor interracial couples. (See The Supreme Court, 1976 Term (1977) 91 Harv.L.Rev. 70, 144. See also Binet-Montessori, Inc. v. San Francisco Unified School Dist., supra, 98 Cal.App.3d 991, 995.) Under Danskin-Bagley principles, whenever the state conditions the receipt of a benefit upon the waiver of a constitutional right or discriminatorily withholds such a benefit from individuals who exercise such right, the state must demonstrate the propriety of the condition in terms of the governing three-part test.

The Attorney General also draws upon McRae's analogy (see 448 U.S. at p. 318 [65 L.Ed.2d at p. 805, 100 S.Ct. at pp. 2688-2689]) between the state's decision to fund childbirth but not abortion and its decision to fund public education but not "private education." In the decisions recognizing a constitutional right to obtain a private education upon which the ostensible analogy rests, however, the principal question presented was whether the state could compel all children to attend state-run schools; these decisions concluded that the state could not. (See, e.g., Pierce v. Society of Sisters (1925) 268 U.S. 510 [69 L.Ed. 1070, 45 S.Ct. 571, 39 A.L.R. 468].) An analogous medical care case would arise if a state law requiring, for example, that all medical care be obtained from a public hospital clashed with an individual's asserted constitutional right to reject state-provided medical care in favor of medical care that he himself chooses. In the present case, of course, no such constitutional right is at issue because the statutory scheme in question does not interfere with an individual's right to go elsewhere for medical care.

Thus, the Attorney General's attempted analogy is misleading. It is obvious, of course, that the state, in providing a benefit such as public education, is not thereby compelled to pay the costs incurred by those who choose to relinquish the public benefit in favor of a comparable privately funded benefit. Danskin itself, for example, does not suggest that the state in making public schools available as a public forum, obligated itself to reimburse those who chose to exercise their First Amendment right by speaking in private meeting halls or, indeed, by refraining from speaking at all.

In short, the Danskin-Bagley line of cases is not concerned with a person's liberty to reject an offered public benefit in favor of a private [29 Cal.3d 270] counterpart -- the issue in the private school cases. Instead, Danskin and Bagley hold that when the state implements a general public benefit program, the California Constitution imposes definite limitations on the state's ability to offer such a benefit in a fashion which discriminates against the exercise of constitutional rights. The statutory program at issue here does afford medical care on just such a selective or discriminatory basis. fn. 19

Accordingly, in evaluating the constitutionality of the challenged statutory provisions under the California Constitution, we employ the test established by the California unconstitutional condition cases.

4. Under the constitutional standard established in Bagley, the statutory provisions which discriminatorily deny generally available medical benefits to poor women solely because they choose to have an abortion are unconstitutional.

[3a] As noted previously, Bagley posits a threefold inquiry: (1) whether the conditions which are imposed relate to the purposes of the legislation which provide the benefit; (2) whether the utility of the conditions imposed clearly outweighs the resulting impairment of constitutional rights; and (3) whether there are no less offensive alternatives available to achieve the state's objective. We follow these avenues of inquiry, placing particular emphasis upon the second prong of the test in which we must weigh the utility of the funding restrictions against the resulting impairment to the woman's right of procreative choice. [29 Cal.3d 271]

(a) The restrictions imposed on poor women's right of procreative choice do not relate to the purposes of the Medi-Cal program.

As noted above, Bagley provides that, as an initial matter, the state "must establish that the imposed conditions relate to the purposes of the legislation which confers the benefit or privilege." (65 Cal.2d at pp. 505-506.) Elaborating on this requirement in Bagley, we quoted with approval Justice Frankfurter's observation that "Congress may withhold all sorts of facilities for a better life, but if it affords them it cannot make them available in an obviously arbitrary way or exact surrender of freedoms unrelated to the purpose of the facilities." (Italics added.) (American Communication Assn. v. Douds (1950) 339 U.S. 382, 417 [94 L.Ed. 925, 70 S.Ct. 674] (separate opinion).)

In most of the California public benefit cases, the restrictions on constitutional rights adopted as part of the government programs have borne at least some relation to the purpose of the program. Thus, for example, in cases such as Bagley that involved restrictions on the exercise of First Amendment activities by those who obtain the "benefit" of public employment, the restrictions were apparently intended to curtail activities thought to have a potential for interfering with the effective performance of the public employee's job. Similarly, in Parrish, the restrictions imposed on welfare recipients' right of privacy related to the elimination of fraud in the welfare system and thus again could be said to further the aims of the benefit program in question.

In the instant case, by contrast, the restriction imposed on poor women who seek to exercise their constitutional right to decide whether or not to have a child bears no relation whatsoever to the fundamental purposes of the Medi-Cal program. Welfare and Institutions Code section 14000 declares that "[t]he purpose [of the Medi-Cal program] is to afford health care and related remedial or preventive services to recipients of public assistance and to medically indigent aged and other persons ..."; fn. 20 thus, the program's primary objective is to alleviate the [29 Cal.3d 272] hardship and suffering incurred by those who cannot afford needed medical care by enabling them to obtain such medical treatment. The restrictions at issue here directly impede this fundamental purpose. Even when an abortion represents the appropriate medical treatment for a poor pregnant woman, the statute virtually bars payment for that treatment and thus subjects the poor woman to significant health hazards and in some cases to death. fn. 21

In this respect, the state's denial of Medi-Cal funds to otherwise qualified women solely because they choose to have an abortion bears a marked similarity to the Los Angeles Housing Authority's policy of [29 Cal.3d 273] excluding so-called subversive persons from public-supported low-rent housing projects, a policy that was invalidated by a California decision over 25 years ago in Housing Authority v. Cordova (1955) 130 Cal.App.2d Supp. 883 [279 P.2d 215]. In finding that exclusionary policy unconstitutional, the Cordova court explained: "'The purpose of the [housing act] is to eradicate slums and provide housing for persons of low-income class. [Citation.] It is evident that the exclusion of otherwise qualified persons solely because of membership in organizations designated as subversive by the Attorney General has no tendency whatever to further such purpose.'" (130 Cal.App.2d Supp., at p. 888.)

The state can show a relationship between the Budget Act limitations and the purpose of the Medi-Cal program only by claiming that Medi-Cal seeks not only to provide necessary health care to indigents but also to protect the life and health of the fetus. Any attempt to reconcile Medi-Cal objectives with abortion limitations on the theory that the latter protect the fetus, however, impermissibly denigrates the woman's right of choice.

As we explain in discussing the second part of the Bagley test, both California and federal authorities establish that, at least prior to viability, the state may not subordinate a woman's own medical interests or her right of procreative choice to the interests of the fetus. We therefore turn to consider the second part of the Bagley test.

(b) In light of the fundamental and intimate nature of the constitutional right of procreative choice and the severe impairment of that right that will in practice result from the statutory restrictions at issue, the utility of imposing such restrictions does not "manifestly outweigh [the] resulting impairment of constitutional rights."

Under the second part of Bagley, the state must demonstrate that "the utility of imposing the conditions ... manifestly outweigh[s] any resulting impairment of constitutional rights." (65 Cal.2d at p. 506.) As numerous cases since Bagley have elaborated, a court in undertaking this "weighing" or "balancing" process must realistically assess the importance of the state interest served by the restrictions and the degree to which the restrictions actually serve such interest; further the court must carefully evaluate the importance of the constitutional right at stake and gauge the extent to which the individual's ability to exercise that right is threatened or impaired, as a practical matter, by the [29 Cal.3d 274] specific statutory restrictions or conditions at issue. (See, e.g., Parrish v. Civil Service Commission, supra, 66 Cal.2d 260, 270-274; City of Carmel-by-the-Sea v. Young, supra, 2 Cal.3d 259, 265-272; Finot v. Pasadena City Bd. of Education, supra, 250 Cal.App.2d 189, 196-202.) We must canvass the various factors on each side of the scale in order to determine whether the utility of the restrictions "manifestly outweighs" the resulting impairment of constitutional rights. (See generally O'Neil, op. cit. supra, 54 Cal.L.Rev. 443, 460-478; Comment, Another Look at Unconstitutional Conditions (1968) 117 U.Pa.L.Rev. 144.)

In undertaking this analysis, we begin by examining the nature and importance of the constitutional right at issue, and then consider the degree to which this right is actually threatened by the challenged statutory scheme. In People v. Belous, supra, 71 Cal.2d 954, the seminal California case in this area, we recognized that the constitutional rights at stake are in essence twofold: "The rights involved ... are the woman's rights to life and to choose whether to bear children." (Id., at p. 963.) The first right is implicated because the choice between childbirth and abortion in some instances involves potential risks to the life of the pregnant woman. Moreover, even when a life-threatening condition is not present, the constitutional choice directly involves the woman's fundamental interest in the preservation of her personal health. As this court stated in Ballard v. Anderson (1971) 4 Cal.3d 873, 879 [95 Cal.Rptr. 1, 484 P.2d 1345, 42 A.L.R.3d 1392]: "In California, law and medicine recognize that therapeutic abortion is a legitimate medical treatment which may be necessary for the preservation of a pregnant woman's life and health."

Closely related to this fundamental interest in life and health is the basic recognition that, for a woman, the constitutional right of choice is essential to her ability to retain personal control over her own body. As Professor Tribe has observed: "If a man is the involuntary source of a child -- if he is forbidden, for example, to practice contraception -- the violation of his personality is profound; the decision that one wants to engage in sexual intercourse but does not want to parent another human being may reflect the deepest of personal convictions. But if a woman is forced to bear a child -- not simply to provide an ovum but to carry the child to term -- the invasion is incalculably greater .... [I]t is difficult to imagine a clearer case of bodily intrusion, even if the original conception was in some sense voluntary." (Tribe, American Constitutional Law (1977) 15-10, p. 924.) [29 Cal.3d 275]

[4] Moreover, as Belous makes clear, the restriction at issue undermines the right of privacy guaranteed under our California Constitution in that it threatens not only the woman's interests in life, health, and personal bodily autonomy but also her right to decide for herself whether to parent a child: "The fundamental right of the woman to choose whether to bear children follows from the Supreme Court's and this court's repeated acknowledgment of a 'right of privacy' or 'liberty' in matters related to marriage, family, and sex." (71 Cal.2d at p. 963.)

The Supreme Court has defined the woman's right to choose as an aspect of the privacy right in even more explicit terms: "[I]f the right of privacy means anything, it is the right of the individual ... to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." (Original italics.) (Eisenstadt v. Baird (1972) 405 U.S. 438, 453 [31 L.Ed.2d 349, 362, 92 S.Ct. 1029].) This right of personal choice is central to a woman's control not only of her own body, but also to the control of her social role and personal destiny. (See Karst, The Supreme Court, 1976 Term -- Forward Equal Citizenship Under the Fourteenth Amendment (1977) 91 Harv.L.Rev. 1, 57-58.) As Professor Karst has recently observed: "The implications of an unwanted child for a woman's education, employment opportunities and associational opportunities (often including marriage opportunities) are of enormous proportion." (Karst, The Freedom of Intimate Association (1980) 89 Yale L.J. 624, 641, fn. 90.)

[3b] Thus, the constitutional rights at issue here are clearly among the most intimate and fundamental of all constitutional rights. With that understanding in mind, we must consider the extent to which the statutory limitations in controversy will actually impair the individual's exercise of these vitally important constitutional rights.

In resolving that issue, we need only consider the nature of the program in question to recognize that the actual impairment of constitutional rights will be severe indeed. The medical benefits provided by the Medi-Cal program are available only to poor persons who are unable to pay for their own health care; by definition, then, the only women affected by the restrictions at issue are those who lack the money or resources to pay for a medically supervised abortion on their own. Although it may be possible for some poor women to obtain medical abortions with the help of private charities, the existence of the [29 Cal.3d 276] Medi-Cal program itself testifies to the fact that private charitable resources do not suffice to meet the medical needs of the poor. Thus, from a realistic perspective, we cannot characterize the statutory scheme as merely providing a public benefit which the individual recipient is free to accept or refuse without any impairment of her constitutional rights. On the contrary, the state is utilizing its resources to ensure that women who are too poor to obtain medical care on their own will exercise their right of procreative choice only in the manner approved by the state.

In this respect, the impairment of constitutional rights resulting from the present statutory restrictions is significantly greater than the impairment of rights involved in almost all the past California cases in this field. In Danskin, for example, while the discriminatory benefit scheme denied disfavored persons the use of public school buildings for meetings, it did not effectively preclude them from holding meetings or disseminating their views to the public. Similarly, although the restrictive government employment policy in Bagley directly impinged upon the public employee's free speech rights in significant respects, it nonetheless left the employee free to engage in much political activity. In the instant case, by contrast, the state's discriminatory treatment will prevent the vast majority of poor women from exercising their constitutional right to choose whether or not to bear a child. As Justice Brennan has observed, "By funding all of the expenses associated with childbirth and none of the expenses incurred in terminating pregnancy, the government literally makes an offer that the indigent woman cannot afford to refuse." (McRae, 448 U.S. at pp. 333-334 [65 L.Ed.2d at p. 815, 100 S.Ct. at p. 2704] (dis. opn.).)

Having found that the statutory restrictions in question will severely impair or totally deny the actual exercise of this intimate and fundamental constitutional right, we must determine whether the benefits which the state derives from the restrictions "manifestly outweigh" such significant impairment. Obviously, in view of the foregoing discussion, only the most compelling of state interests could possibly satisfy this test. As we shall see, however, it is doubtful whether the restrictions in this case serve any constitutionally legitimate, let alone compelling state interest; furthermore, the interest that the statute does serve is furthered in an underinclusive and discriminatory manner. fn. 22 [29 Cal.3d 277]

We begin by identifying the precise state interest that is served by the statutory restrictions at issue. We note that although the restrictions take the form of curtailing state expenditures, they do not in reality serve the state's legitimate interest in conserving its limited fiscal resources; whatever money is saved by refusing to fund abortions will be spent many times over in paying maternity care and childbirth expenses and supporting the children of indigent mothers. fn. 23 In the first place, the cost of an abortion is much less than the cost of maternity care and delivery. fn. 24 Thus, the present statutory scheme, by withholding funds for abortions, requires the state to pay the more expensive childbirth expenses for every poor woman or teenager who becomes pregnant. fn. 25

Second, because the present statutes frequently deny funding of abortions to women who face special medical risks if they carry a fetus to term, such limitations -- under the current comprehensive Medi-Cal scheme -- will oblige the state to provide additional and often expensive medical care for such women before, during, and after childbirth. But for the challenged restrictions, such expenses would not have been incurred. Finally, this limitation on poor women's constitutional rights will prove enormously expensive in terms of long-range economic costs. As Justice Blackmun has observed: "[T]he cost of [a]n ... abortion ... holds no comparison whatsoever with the welfare costs that will burden [29 Cal.3d 278] the State for the new indigents and their support in the long, long years ahead." (Beal v. Doe (1977) 432 U.S. 438, 463 [53 L.Ed.2d 464, 483, 97 S.Ct. 2366] (dis. opn.).) fn. 26

The Attorney General and amici suggest, however, that the restrictions on the funding of abortions through Medi-Cal relate to a state interest alternatively defined as an interest in "encouraging childbirth" or an interest in "protecting the potential life of the fetus." As far as the interest in "encouraging childbirth" is concerned, the California Legislature has not embraced a general policy of encouraging unwanted children; under the present provisions of the Medi-Cal program, for example, funds are specifically authorized to pay for the medical expense of contraception and sterilization. Furthermore, as we explain in the following section, to the extent that the challenged provisions are defended as simply a method of aiding poor women who want to bear children, the provisions clearly do not serve that interest in a manner least offensive to the rights of women who choose not to bear children.

That brings us to the state interest in "protecting the potential life of the fetus," an objective which we think does realistically underlie the [29 Cal.3d 279] funding restrictions at issue here. There is no question, of course, that phrased in general terms the state has a legitimate interest in protecting the potential life of a fetus. Thus, the state may without doubt legitimately prosecute a person who deliberately injures a fetus, even if no corresponding harm befalls the woman who carries the fetus. In the instant case, however, the state is not merely proposing to protect a fetus from general harm, but rather is asserting an interest in protecting a fetus vis-a-vis the woman of whom the fetus is an integral part. Such a claimed interest, of course, clashes head-on with the woman's own fundamental right of procreative choice.

The argument that the state advances here essentially parallels that presented to the United States Supreme Court in Roe v. Wade, supra, 410 U.S. 113, when the State of Texas argued that its asserted interest in protecting the fetus justified criminal proscriptions on abortion. The high court carefully examined and weighed the interests implicated by this contention: the woman's interest in deciding for herself a matter which so intimately and fundamentally affects her future life and happiness; her interest in protecting her own life and health; the corresponding state interest in safeguarding the woman's life and health; and, finally, the state's interest in protecting the fetus. After an extensive review of the history of abortion laws and consideration of the medical risks of abortion and childbirth, the court held that during the first two trimesters of pregnancy, when the fetus is not viable, the state's interest in protecting the fetus is not of compelling character. Consequently, the court concluded, the state may not subordinate the woman's fundamental right of procreative choice to the state's interest in protecting a nonviable fetus.

Roe v. Wade went on to explain the extent and purpose for which state regulation of abortion is permissible. Prior to the third trimester of pregnancy, it held, the state may regulate only to protect the woman's health -- not to protect the fetus. In the third trimester the state may enact restrictions to protect the fetus, but may not proscribe abortions necessary to preserve the woman's life or health. (410 U.S. at pp. 164-165 [35 L.Ed.2d at p. 183].)

The restrictions of the California Budget Act do not conform to the careful calculation of competing rights and interests set out in Roe v. Wade. The Budget Act seeks to limit first and second trimester abortions, not for the permissible purpose of protecting the woman's health, [29 Cal.3d 280] but to protect the fetus. The act thus inverts the priority of interests established in Roe and improperly subordinates the woman's right of choice to the lesser state interest in protecting a nonviable fetus. Furthermore, although Roe v. Wade recognized a compelling interest in protecting a viable fetus, even that interest cannot be invoked to restrict abortions necessary to preserve the woman's health; the Budget Act, however, gives no consideration to danger to the woman's health unless the threatened harm is severe, long-lasting, and relates to physical health.

In short, Roe v. Wade settled that protection of a nonviable fetus is not a compelling state interest. The subsequent high court decision in McRae does not detract from that holding. McRae did not measure the restrictions at issue against a compelling interest test. Rather, the Supreme Court assumed that a discriminatory withholding of government benefits, because it imposes no new obstacle to abortion, required only minimal justification. That proposition, as we have explained, is inconsistent with California constitutional law. The assumption underlying the high court's analysis, however -- that funding restrictions would fail if required to meet a compelling interest standard -- provides further support for our decision today.

Neither do California decisions support the Attorney General's claim. We considered the state's asserted interest in protecting fetal life in People v. Belous, supra, 71 Cal.2d 954, holding unconstitutionally vague a statute which barred abortions unless necessary to preserve the mother's life. At the outset, we stressed that a woman's right to choose may be infringed only by regulations necessary to further a compelling interest. (See 71 Cal.2d at p. 964.) Although the state urged that it had "a compelling interest in the protection of the embryo and fetus and that such interest warrants the limitation on the woman's constitutional rights" (pp. 967-968), we replied that the asserted state interest derived from statutes and rules which either "require a live birth or reflect the interest of the parents." (Id.)

We have already noted that three years after People v. Belous, the people of California amended our state Constitution to provide explicit protection for the right of privacy, a protection not found in the federal text. We have noted also that the federal right of privacy, the foundation for the decision in Roe v. Wade, supra, 410 U.S. 113, is more [29 Cal.3d 281] limited than the corresponding right in the California Constitution. (See City of Santa Barbara v. Adamson, supra, 27 Cal.3d 123, 130, fn. 3.) We therefore conclude that the protection afforded the woman's right of procreative choice as an aspect of the right of privacy under the explicit provisions of our Constitution is at least as broad as that described in Roe v. Wade. Consequently, we further conclude that the asserted state's interest in protecting a nonviable fetus is subordinate to the woman's right of privacy.

Moreover, even if the state could assert a compelling interest in protecting a nonviable fetus, we would have grave doubts that the state could pursue such interest in the discriminatory fashion adopted here. Under the present statutory scheme, the state has not undertaken to protect the potential life of all fetuses by promoting their interests over the constitutional rights of all women. Instead, by implementing this state interest through restrictions on Medi-Cal funds rather than through more broadly applicable legislation, the state has singled out poor women and has subordinated only their constitutional right of procreative choice to the concern for fetal life.

In the past, this court has been particularly critical of statutory mechanisms that restrict the constitutional rights of the poor more severely than those of the rest of society. (See, e.g., Serrano v. Priest (1976) 18 Cal.3d 728, 765-767 [135 Cal.Rptr. 345, 557 P.2d 929]; Serrano v. Priest (1971) 5 Cal.3d 584, 597-604 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187]; In re Antazo (1970) 3 Cal.3d 100, 108-112 [89 Cal.Rptr. 255, 473 P.2d 999].) Thus, we have implicitly recognized that the indigent poor share many characteristics of other "insular minorities" who may not be adequately protected from discriminatory treatment by the general safeguards of the legislative process. (See generally U.S. v. Carolene Products Co. (1938) 304 U.S. 144, 152-153, fn. 4 [82 L.Ed. 1234, 1241-1242, 58 S.Ct. 778].) Although prior cases have generally considered this factor in connection with equal protection analysis, Professor O'Neil has identified its relevance to the unconstitutional condition doctrine: limitations upon governmental benefits which apply to rich and poor alike are obviously less invidious than conditions, like those at issue here, in which the state effectively tells a poor woman "that because [she] is poor ... [she] must restrict [her exercise of constitutional rights] in ways that the government does not ask self-sufficient people to do." (O'Neil, [29 Cal.3d 282] Unconstitutional Conditions: Welfare Benefits With Strings Attached, supra, 54 Cal.L.Rev. 443, 472.) fn. 27

From this review of the factors which enter into the Bagley analysis, we conclude that the alleged "benefits" which flow from the statutory restrictions on Medi-Cal funds in no sense "manifestly outweigh" the resulting impairment of constitutional rights. As we have seen, the state is hard-pressed to demonstrate that the restrictions further any constitutionally legitimate interests at all; at the same time, the restrictions effectively nullify the poor woman's fundamental constitutional right to retain personal control over her own body and her own destiny. The challenged statutory scheme, then, clearly does not pass muster under the second part of the Bagley standard.

(c) The statutory scheme does not serve the state interest in providing medical care for indigents in a manner least offensive to the woman's right of procreative choice.

The third and final component of the constitutional standard established in Bagley requires the state to "establish the unavailability of less offensive alternatives and [to] demonstrate that the conditions are drawn with narrow specificity, restricting the exercise of constitutional rights only to the extent necessary to maintain the integrity of the program which confers the benefits." (65 Cal.2d at p. 507.) In effect, this part of the Bagley test requires the state to adopt the "least offensive alternative" adequate to achieve any legitimate state interest. fn. 28 [29 Cal.3d 283]

If we view the Budget Act restrictions as intended to prevent indigent women from obtaining abortions, the doctrine of "least offensive alternative" plays no role; the restrictions fail because the state's interest in protecting the fetus cannot be pursued by subordinating the woman's right of procreative choice. In an effort to avoid the unconstitutionality of the funding restrictions, however, the Attorney General suggests an alternative interpretation: he argues that the restrictions should not be considered a legislative attempt to prevent the poor from obtaining abortions, but rather as an effort to aid poor women who have already decided to bear a child but cannot afford the expenses of childbirth. That argument, however, fails the "least restrictive alternative" test, since the state could readily meet the needs of indigent women without burdening their right of procreative choice simply by funding impartially the expenses of childbirth and abortion. fn. 29

Moreover, the legislative background of the statute in question belies the Attorney General's suggestion that the legislation was aimed solely at aiding poor women who have already chosen to bear a child. The Budget Act provisions do not increase preexisting levels of childbirth-related benefits or provide any additional aid at all to poor women who choose to bear a child. Instead, the statute simply curtails the medical benefits previously available to poor women who desire to have an abortion. Quite clearly, this legislation cannot be defended as aiding poor women who wish to have children by the means least offensive to the constitutional rights of other women. [29 Cal.3d 284]

5. Conclusion.

As noted at the outset, our opinion in this case does not rest upon this court's views as to the morality or immorality of abortion. The morality of abortion is not a legal or constitutional issue; it is a matter of philosophy, of ethics, and of theology. It is a subject upon which reasonable people can, and do, adhere to vastly divergent convictions and principles. fn. 30

By virtue of the explicit protection afforded an individual's inalienable right of privacy by article I, section 1 of the California Constitution, however, the decision whether to bear a child or to have an abortion is so private and so intimate that each woman in this state -- rich or poor -- is guaranteed the constitutional right to make that decision as an individual, uncoerced by governmental intrusion. Because a woman's right to choose whether or not to bear a child is explicitly afforded this constitutional protection, in California the question of whether an individual woman should or should not terminate her pregnancy is not a matter that may be put to a vote of the Legislature.

If the state cannot directly prohibit a woman's right to obtain an abortion, may the state by discriminatory financing indirectly nullify that constitutional right? Can the state tell an indigent person that the state will provide him with welfare benefits only upon the condition that he join a designated political party or subscribe to a particular newspaper that is favored by the government? Can the state tell a poor woman that it will pay for her needed medical care but only if she gives up her constitutional right to choose whether or not to have a child?

There is no greater power than the power of the purse. If the government can use it to nullify constitutional rights, by conditioning benefits only upon the sacrifice of such rights, the Bill of Rights could eventually become a yellowing scrap of paper. Once the state furnishes medical care to poor women in general, it cannot withdraw part of that care [29 Cal.3d 285] solely because a woman exercises her constitutional right to choose to have an abortion. fn. 31

Indeed, the statutory scheme before us is all the more invidious because its practical effect is to deny to poor women the right of choice guaranteed to the rich. fn. 32 An affluent woman who desires to terminate her pregnancy enjoys the full right to obtain a medical abortion, regardless of the opposition of any legislative majority. By contrast, when the state finances the costs of childbirth, but will not finance the termination of pregnancy, it realistically forces an indigent pregnant woman to choose childbirth even though she has the constitutional right to refuse to do so.

Thus, we conclude that the restrictions in question are invalid under the California Constitution. We note that the Supreme Judicial Court of Massachusetts has very recently reached precisely the same conclusion in adjudicating the validity of a comparable state statute against the guarantees of that state's Constitution. (Moe v. Secretary of Administration & Finance (1981) ___ Mass. ___ [417 N.E.2d 387].) As the Massachusetts high court observed, although "the Legislature need not subsidize any of the costs associated with childbearing, or with health care generally ... once it chooses to enter the constitutionally protected area of choice, it must do so with genuine indifference. It may not weight the options open to the pregnant woman by its allocation of public funds; in this area, government is not free to 'achieve with carrots what [it] is forbidden to achieve with sticks.' L. Tribe, American Constitutional Law, 15-10 at p. 933 n. 77 (1978)." (Id., at p. 402.)

In S.F. 24069, the judgment is reversed. In S.F. 24053, the alternative writ, having served its purpose, is discharged and the peremptory writ is denied. In S.F. 24192, a peremptory writ of mandate shall issue, directing respondents to refrain from enforcing the unconstitutional restrictions in the Budget Act of 1980 challenged herein. Plaintiffs shall recover their costs in these proceedings, including reasonable attorneys [29 Cal.3d 286] fees pursuant to the provisions of section 1021.5 of the Code of Civil Procedure. Because these three proceedings are inextricably interrelated, on remand of S.F. 24069 the San Francisco Superior Court shall fix an appropriate cost award, including attorneys fees, by reference to the costs and attorney services expended in all three proceedings.

Mosk, J., and Newman, J., concurred.

BIRD, C. J.,

Concurring.

If a citizen's freedom to choose how to deal with procreation -- contraception, abortion, or childbirth -- is a fundamental constitutional right protected by the right to privacy, may the state constitutionally limit that choice for poor women when their choice is not one of the methods favored by the state? I agree with the lead opinion that the answer to this question is "no." However, I would reach that conclusion by a somewhat different route.

It should be emphasized that this court is not called upon today to enter into the contemporary debate over various moral, religious, and social questions concerning abortion. Emotions on that subject have always run high. However, what we justices, as individuals, may think about these questions bears no relationship to the legal issue presented in this case.

That issue is a narrow one. Once the state undertakes funding of medical care for the poor, including all types of procreative care, may the state refuse funding for an unpopular but constitutionally protected alternative? There is no claim that poor women have an absolute right to abortion funding. Rather, petitioners argue that the state should not be able to select that choice and influence that private decision by discriminatorily denying funds for one procreative alternative which the state deems unacceptable.

It is important to note that this is not a case in which this court must decide whether abortion is the best alternative to pregnancy or whether abortion is morally justifiable. Under the California Constitution, the people of the state have decided that those value judgments must be reserved to the individual citizens whose lives are affected by such decisions. Neither legislators nor judges may constitutionally impose their system of values on a woman who must decide how to deal with procreation.

A woman who faces an unplanned pregnancy confronts a critical and uniquely important decision, the consequences of which will follow her [29 Cal.3d 287] throughout her life. Because her value system, her life, and her relationships with others are all involved in any determination she makes, a woman's right to decide for herself without the interference of the state is central in a free society. In recognition of the importance of that right, both this court in People v. Belous (1969) 71 Cal.2d 954 [80 Cal.Rptr. 354, 458 P.2d 194] and the Supreme Court in Roe v. Wade (1973) 410 U.S. 113 [35 L.Ed.2d 147, 93 S.Ct. 705] have held that such a private decision must be given constitutional protection.

It is unfortunate that the dissent focuses on an issue that is not even present here. The court is not appropriating public funds for anything. (Dis. opn. of Richardson, J., post, at p. 305.) The Legislature appropriated funds in its 1980 Budget Act to pay for abortions for Medi-Cal recipients in the event that its restrictions were held to be unconstitutional. fn. 1 In so doing, the Legislature signaled the fact that it harbored doubts about the constitutional validity of the restrictions.

A fundamental right has been defined as one which is "implicit in the concept of ordered liberty." (Palko v. Connecticut (1937) 302 U.S. 319, 325 [82 L.Ed. 288, 292, 58 S.Ct. 149].) It is the state's obligation to protect and safeguard these rights. If any action by the state burdens the exercise of any fundamental liberty, the state must justify such an act by a showing of compelling necessity. (E.g., People v. Belous, supra, 71 Cal.2d 954, 963-964; Roe v. Wade, supra, 410 U.S. 113, 155-156 [35 L.Ed.2d 147, 178-179].) As the guardian of our rights, the state is required to show a critical need for any action which curbs the exercise of these freedoms. This is true whether the incursion involves a direct attack on the exercise of the right or an indirect interference with its exercise. [29 Cal.3d 288]

An artificial distinction between so-called direct and indirect infringements begs the question as to whether the state has infringed a fundamental right. In California, there is no precedent for permitting government to burden the exercise of vital constitutional rights without establishing a compelling need. The fact that the state has not banned the exercise of the right entirely is irrelevant to the basic issue. Our courts have frequently struck down restrictions that did not completely prohibit the exercise of a fundamental right. (See, e.g., Danskin v. San Diego Unified Sch. Dist. (1946) 28 Cal.2d 536 [171 P.2d 885]; Parrish v. Civil Service Commission, supra, 66 Cal.2d 260; Salas v. Cortez, supra, 24 Cal.3d 22; White v. Davis (1975) 13 Cal.3d 757 [120 Cal.Rptr. 94, 533 P.2d 222].) If the exercise of the right is burdened, a compelling interest must be shown to avoid constitutional invalidity regardless of the manner of infringement.

The fundamental right at issue is the right to private procreative choice free from governmental interference. Petitioners assert that where an individual's decision is constitutionally protected, the government is obligated to maintain a neutral stance. As Justice Brennan has observed, "[t]he proposition for which these cases stand thus is not that the State is under an affirmative obligation to ensure access to abortions for all who may desire them; it is that the State must refrain from wielding its enormous power and influence in a manner that might burden the pregnant woman's freedom to choose whether to have an abortion. The [restriction's] denial of public funds for medically necessary abortions plainly intrudes upon this constitutionally protected decision, for both by design and in effect it serves to coerce indigent pregnant women to bear children that they would otherwise elect not to have." (Fn. omitted; italics added.) (Harris v. McRae (1980) 448 U.S. 297, 329 [65 L.Ed.2d 784, 812, 100 S.Ct. 2671], Williams v. Zbaraz (1980) 448 U.S. 358 [65 L.Ed.2d 831, 100 S.Ct. 2694, 2702 (dis. opn. of Brennan, J.); see also, id., at pp. 349, 355 [65 L.Ed.2d at pp. 825, 829, 100 S.Ct. at pp. 2712, 2715] (dis. opn. of Stevens, J.); Moe v. Secretary of Administration & Finance, supra, 417 N.E.2d at pp. 397-404.)

The practical impact of these restrictions is to burden the right of choice. Women, who are dependent on Medi-Cal for all of their health care needs because of indigency, are effectively denied the choice of abortion except under the most stringent conditions approved by the state. Justice Brennan's words are once again instructive. These restrictions are "a transparent attempt by the Legislative Branch to impose [29 Cal.3d 289] the political majority's judgment of the morally acceptable and socially desirable preference on a sensitive and intimate decision that the Constitution entrusts to the individual. Worse yet, [the restriction] does not foist that majoritarian viewpoint with equal measure upon everyone in our Nation, rich and poor alike; rather, it imposes that viewpoint only upon that segment of our society which, because of its position of political powerlessness, is least able to defend its privacy rights from the encroachments of state-mandated morality." (Harris v. McRae, supra, 448 U.S. at p. 332 [65 L.Ed.2d at p. 814, 100 S.Ct. at p. 2703].)

I agree with the result reached in the lead opinion of this court. However, I would evaluate these restrictions under the strict judicial scrutiny test used to assess any governmental action which burdens the exercise of a fundamental right. (People v. Belous, supra, 71 Cal.2d at pp. 963-964.) fn. 2 In this case, the state must show a compelling interest to justify a curtailment of the right of privacy, a right expressly protected by the California Constitution in its Declaration of Rights (Cal. Const., art. I, 1). (City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 130 [164 Cal.Rptr. 539, 610 P.2d 436]; White v. Davis, supra, 13 Cal.3d 757, 772, 775. Cf. People v. Belous, supra, 71 Cal.2d at p. 964.) [29 Cal.3d 290] This compelling interest must be proven by the state whether it directly or indirectly interferes with the exercise of a fundamental right. The facts of this case illustrate how direct or indirect governmental infringement can, with equal force, stifle the assertion of a constitutionally protected right. fn. 3 (Moe v. Secretary of Administration & Finance, supra, 417 N.E.2d at pp. 397-404; see e.g., Harris v. McRae, supra, 448 U.S. at pp. 334-336 [65 L.Ed.2d at pp. 815-817, 100 S.Ct. at pp. 2704-2705] (dis. opn. of Brennan, J.). Cf. Healy v. James (1972) 408 U.S. 169, 183 [33 L.Ed.2d 266, 280-281, 92 S.Ct. 2338]; N. A. A. C. P. v. Alabama (1958) 357 U.S. 449, 460-463 [2 L.Ed.2d 1488, 1498-1500, 78 S.Ct. 1163]; Sherbert v. Verner (1963) 374 U.S. 398, 404-406 [10 L.Ed.2d 965, 970-972, 83 S.Ct. 1790]; Danskin v. San Diego Unified Sch. Dist., supra, 28 Cal.2d 536; Perry, The Abortion Funding Cases: A Comment on the Supreme Court's Role in American Government (1978) 66 Geo.L.J. 1191, 1196, 1198 [hereinafter cited as Abortion Funding Cases].) Consequently, the funding restrictions by the Legislature must be judged by the same standard applicable to any direct burden placed by the state on the right of privacy. This is exactly what the Massachusetts Supreme Court did in Moe v. Secretary of Administration & Finance, supra, 417 N.E.2d 387, 397-404. [29 Cal.3d 291]

In California, this argument is even more compelling by virtue of this state's long history of providing substantial protection to the right of private choice in intimate affairs. Years before the federal courts adopted a similar rule nationally, the California courts recognized the right of privacy in making a decision concerning whether to carry a child to full term or to abort. (People v. Belous, supra, 71 Cal.2d at pp. 963-964.) fn. 4

Moreover, before the federal courts came to acknowledge that the freedom of choice in this intimate area of human activity involved the fundamental right of privacy, the voters of California added an express right of privacy to the state Declaration of Rights. In November 1972, article I, section 1 of the state Constitution was amended to include privacy among this state's citizens' inalienable rights. fn. 5 The election brochure given to the voters asserted that "[t]he right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose .... [] ... The right of privacy is an important American heritage and essential to the fundamental rights guaranteed by the First, Third, Fourth, Fifth, and Ninth Amendments to the U.S. Constitution. This right should be abridged only where there is compelling public need." (Italics added.) [29 Cal.3d 292]

The proponents, in arguing for the amendment's passage, stated that, "[t]he right to privacy is much more than 'unnecessary wordage.' It is fundamental in any free society. Privacy is not now guaranteed by our State Constitution. This simple amendment will extend various court decisions on privacy to insure protection of our basic rights." fn. 6 (Italics added.)

Our Constitution and our case law have placed California in the forefront of protecting privacy rights. Consistently, decisions by our state courts involving privacy have recognized these important interests before the federal courts and have more broadly defined them. For example, in Ballard v. Anderson, supra, 4 Cal.3d 873, this court prohibited the invasion of a minor's right of privacy when it refused to rewrite a statute to require parental consent for a minor's abortion. The analogous federal case, Planned Parenthood of Missouri v. Danforth (1976) 428 U.S. 52, 72-75 [49 L.Ed.2d 788, 806-808, 96 S.Ct. 2831], came to a similar conclusion some five years later. (And compare, e.g., Perez v. Sharp (1948) 32 Cal.2d 711 [198 P.2d 17] with Loving v. Virginia (1967) 388 U.S. 1 [18 L.Ed.2d 1010, 87 S.Ct. 1817] [right to marry person of one's choice irrespective of race]; In re Klor (1966) 64 Cal.2d 816 [51 Cal.Rptr. 903, 415 P.2d 791] with Stanley v. Georgia (1969) 394 U.S. 557 [22 L.Ed.2d 542, 89 S.Ct. 1243] [right to private possession of obscene material in one's home]; People v. Ramey (1976) 16 Cal.3d 263, 275-276 [127 Cal.Rptr. 629, 545 P.2d 1333], cert. den., 429 U.S. 929 [50 L.Ed.2d 299, 97 S.Ct. 335] with Payton v. New York (1980) 445 U.S. 573 [63 L.Ed.2d 639, 100 S.Ct. 1371] [protection from warrantless arrest in the home].)

In addition, the constitutional provision giving each California citizen a right of privacy has been held to be greater in scope than similar federal rights. (Compare City of Santa Barbara v. Adamson, supra, 27 Cal.3d 123, 129 with Village of Belle Terre v. Boraas (1974) 416 U.S. 1 [39 L.Ed.2d 797, 94 S.Ct. 1536] and Moore v. East Cleveland (1977) 431 U.S. 494 [52 L.Ed.2d 531, 97 S.Ct. 1932].)

Further, the California Legislature has often acknowledged the importance of privacy protections. For example, California has recognized [29 Cal.3d 293] that adults have a fundamental right to control decisions relating to their medical care. In this regard, the Legislature enacted the Natural Death Act (Health & Saf. Code, 7185 et seq.), which concerns the right of an adult to decide whether to have life-sustaining procedures withheld or withdrawn in the event of a terminal illness. Also, section 1708.5 was added to the Health and Safety Code enabling physicians to lawfully prescribe laetrile or amygdalin to any terminal cancer patient who chooses that form of cancer therapy. (See People v. Privitera (1979) 23 Cal.3d 697, 711 [153 Cal.Rptr. 431, 591 P.2d 919, 5 A.L.R. 4th 178] (dis. opn. of Bird, C. J.); id., at p. 740 (dis. opn. of Newman, J.).)

The Legislature has also acted to protect privacy in other areas of its citizens' lives. (See, e.g., Civ. Code, 34.5-34.10 [right of a minor to obtain medical care without parental consent, for, inter alia, the prevention or treatment of pregnancy, and for rape, sexual assault, and drug or alcohol related problems]; Ed. Code, 67140 et seq. [protecting the privacy of students' records]; Pen. Code, 626.11 [protecting the right of privacy of persons renting rooms in student dormitories owned or operated by a state university, state college, or community college]; Civ. Code, 1785.1 et seq. [the Consumer Credit Reporting Agencies Act]; id., 1786 et seq. [the Investigative Consumer Reporting Agencies Act]; id., 1798 et seq. [the Information Practices Act of 1977]; id., 1799 et seq. [prohibiting the unauthorized disclosure of business records]; Welf. & Inst. Code, 5325.1 [protecting privacy rights of the mentally ill]; Note, California "Consenting Adults" Law: The Sex Act in Perspective (1976) 13 San Diego L.Rev. 439 [discussing the Legislature's repeal of former Penal Code restrictions on private sexual behavior between consenting adults].)

Thus, the right of privacy in California has never been dependent upon analogous federal decisions. fn. 7 This state's special concern for individual privacy is understandable when viewed from an historical perspective. The California Constitution has traditionally embodied innovations and concerns for individual liberties. (David, Our California Constitutions: Retrospections In This Bicentennial Year (1976) 3 Hastings Const. L.Q. 697.) fn. 8 This is a reflection of California's origins, for [29 Cal.3d 294] this state developed from a pioneer society comprised of a diverse group of people. (Id., at pp. 698-699.)

As the lead opinion ably demonstrates, California's protection of individual rights has been a bulwark against an erosion of our citizens' liberties. Predictably, California has advanced beyond the federal analysis when dealing with the selective withholding of governmental benefits based solely on the recipients' exercise of their rights. (See lead opn., ante, at pp. 257, 263-267.)

Recognition of the right of privacy in California is an historical fact underscored by our decisional law. California citizens' basic right of privacy has never been dependent upon federal recognition of a similar right. Therefore, this court is not obligated to limit our citizens' rights simply because the federal courts have decided to change direction. The independent obligation to interpret this state's Constitution (see lead opn., ante, at pp. 260-262) imposes upon this court the responsibility to be consistent in giving life to the principles which that document embodies. When the federal courts radically depart from Roe and its progeny, fn. 9 it is this court's duty to examine this state's constitutional requirements in order to decide if such a change is permissible.

As a result, the federal cases are of limited use in this context. Our state Constitution mandates a stricter standard than that used by the Supreme Court when examining funding restrictions which impair the right of privacy.

However, it is instructive to consider the reasoning of the Supreme Court when it dealt with this politically sensitive issue. That court held that legislative restrictions on abortion funding do not impair a citizen's right of private choice since they merely discourage the choice of abortion by granting a benefit (maternity care) to "encourage[] [an] [29 Cal.3d 295] alternative activity." (Harris v. McRae, supra, 448 U.S. at p. 315 [65 L.Ed.2d at p. 803, 100 S.Ct. at p. 2687].) This view allows the state to avoid the requirement of establishing a compelling state interest by engaging in the sophistry that there has been no barrier erected around a woman's right of choice.

Further, such a holding encourages the state to set up devious intrusions on its citizens' fundamental rights since it can do so with impunity. It is clear that the state may not directly prohibit its citizens' right to choose abortion as a method by which to deal with procreation. (People v. Belous, supra, 71 Cal.2d 954.) That rule of constitutional law is circumvented when the state refuses to fund abortions for those dependent on the state for medical care. "[A]rticulating the purpose [of the challenged restrictions] as 'encouraging normal childbirth' does not camouflage the simple fact that the purpose, more starkly expressed, is discouraging abortion." (Abortion Funding Cases, supra, 66 Geo. L.J. at p. 1196.)

Additionally, the distinction between prohibitions and benefits arbitrarily separates the existence of a right from the realization and enjoyment of that right. (Beal v. Doe (1977) 432 U.S. 438, 462-463 [53 L.Ed.2d 464, 482-483, 97 S.Ct. 2366] (dis. opn. of Blackmun, J.); see, Tribe, supra, 15-10, p. 933, fn. 77.)

In California, traditional constitutional interpretation does not permit such spurious distinctions. fn. 10 For example, in Salas v. Cortez, supra, 24 Cal.3d 22, this court held that due process entitles an indigent defendant to appointed counsel in a state-prosecuted civil suit to determine paternity. The indigent defendant was not prohibited from appearing in propria persona or from attempting to secure the funds to retain counsel or the services of pro bono counsel. Nevertheless, this court held that the significant infringement of both due process rights to a fair trial and a person's fundamental interest in a correct adjudication of the parental relationship could not be upheld absent a compelling state interest. (Id., at p. 32.)

Another important case along these lines is Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 [153 Cal.Rptr. 854, 592 P.2d [29 Cal.3d 296] 341], affirmed, 447 U.S. 74 [64 L.Ed.2d 741, 100 S.Ct. 2035]. There, this court held that individuals must be permitted to exercise their First Amendment rights at a private shopping center notwithstanding the fact that the petitioners admittedly were not prohibited from exercising their free speech rights in other places. (See also, In re Hoffman (1967) 67 Cal.2d 845, 852, fn. 7 [64 Cal.Rptr. 97, 434 P.2d 353] [invalidating restrictions on First Amendment activities in railroad station].)

Similarly, Danskin v. San Diego Unified Sch. Dist., supra, 28 Cal.2d 536 stands for the proposition that the state may not grant benefits in a manner which discriminates against the exercise of fundamental rights. In that case, this court held unconstitutional a public school's refusal to permit use of its auditorium by "subversive" groups. The court stated, "It is true that the state need not open the doors of a school building as a forum and may at any time choose to close them. Once it opens the doors, however, it cannot demand tickets of admission in the form of convictions and affiliations that it deems acceptable." (Id., at p. 547.) Since the state could not directly compel renunciation of beliefs, it could not make such renunciation a condition of receiving a public benefit. (Id., at p. 546.) Also, in Fort v. Civil Service Commission (1964) 61 Cal.2d 331 [38 Cal.Rptr. 625, 392 P.2d 385], Kinnear v. City etc. of San Francisco (1964) 61 Cal.2d 341 [38 Cal.Rptr. 631, 392 P.2d 391], and Bagley v. Washington Township Hospital Dist., supra, 65 Cal.2d 499, this court invalidated restrictions on public employment which forced employees to choose between public employment and their First Amendment rights.

These cases graphically illustrate the principle that a compelling interest must be found to justify direct or indirect burdens on the exercise of fundamental rights. Thus, the question here is simply whether the Budget Act restrictions at issue actually impair or burden a poor woman's right to procreative choice. It is clear that they do.

The Budget Act limitations are all the more troublesome because they result in increased health hazards to the indigent woman. (Harris v. McRae, supra, 448 U.S. at pp. 353-356 [65 L. Ed.2d at pp. 827-829, 100 S.Ct. at pp. 2741-2715] (dis. opn. of Stevens, J.).) By disallowing the funding for most abortions, the state leaves the pregnant woman to carry an unwanted pregnancy to term or encourages her to abort without medical assistance. Thus, the funding restrictions inject a coercive financial incentive that forces the individual to accept the state's choice [29 Cal.3d 297] of either contraception or childbirth. It forces the indigent woman to exercise her choice in the fashion advocated by the state.

The Budget Act restrictions impermissibly limit the constitutionally protected choice of our female citizens. The state's attempt to justify these limitations as noncoercive is illusory. "When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men [and women] ...." (Ho Ah Kow v. Nunan (D.Cal. 1879) 12 F.Cas. 252, 255 (No. 6546).) As judges and as citizens, we cannot fail to see that if the state is allowed to restrict the exercise of choice for the poor alone in this intimate area, indigent women in our society are forced to become second class citizens. fn. 11

RICHARDSON, J.

I respectfully dissent. The consequences of the majority's extended legal analysis may be reduced to a simple proposition: The State of California and its taxpayers are constitutionally compelled to pay for the abortions of all Medi-Cal recipients who desire them. The highest court in the land has twice held directly to the contrary. No matter. Accepting as valid the very arguments which failed to persuade the Legislature, and disregarding all deference to a coequal branch of government, the majority reaches its conclusion relying on the now familiar "independent state grounds" and on the right of "privacy" embodied in the California Constitution in 1972. As I develop below, in my view this is very dubious reasoning. Before today I had thought that it was very well settled that it was the Legislature, not the courts, which had the ultimate authority to select those benefits and services to be included in a public welfare program.

The majority's thesis is that the Legislature's decision to give public monetary assistance to welfare mothers for their childbirth expenses thereby violates the constitutional rights of mothers who prefer to abort their child. By funding the childbirth of some women, it is contended that the state "forces" other indigent women to forego their constitutional right to abort. I suggest that such distorted logic defies constitutional analysis and makes no sense. The Legislature's decision to pay for the expenses of childbirth may make birth a more financially attractive alternative than an abortion, but such a decision no more [29 Cal.3d 298] "forces" women to give up abortion than funding the purchase of false teeth forces one to give up toothbrushes.

The majority indulges in semantic legerdemain, phrasing the issue in terms of the "right to procreative choice," thus broadening the question to permit its argument. It is essential that we remain very clear on what this case is not about. The issue is not whether a woman's constitutional right to abort may be exercised without undue governmental interference (Roe v. Wade (1973) 410 U.S. 113 [35 L.Ed.2d 147, 93 S.Ct. 705]) or whether women have a right to an abortion. They do. The essential question before us is whether they have a right to abort free of charge and at taxpayer expense. As I will develop, these two questions involve vastly different considerations.

The majority relies primarily upon a line of cases which is wholly inapposite to the issue before us. (See Parrish v. Civil Service Commission (1967) 66 Cal.2d 260 [57 Cal.Rptr. 623, 425 P.2d 223]; Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499 [55 Cal.Rptr. 401, 421 P.2d 409]; Danskin v. San Diego Unified Sch. Dist. (1946) 28 Cal.2d 536 [171 P.2d 885].) It is not surprising that, using a 13-inch ruler as a constitutional measure for the challenged legislation, the majority reaches such an erroneous result.

Thus, in Danskin the state improperly required loyalty oaths from those persons who sought permission to use school buildings for their meetings. We held that although the state had no duty to make school buildings available for public meetings, nevertheless, if it elected to do so, it could neither arbitrarily select among permitted users nor impose unconstitutional conditions upon that use. (28 Cal.2d at pp. 545-546.) Application of this Danskin principle to the case before us would result in prohibiting the state from the arbitrary extension of either childbirth or abortion benefits to some but not all recipients or, alternatively, the conditioning of the receipt of such benefits upon the waiver of some constitutional right. Nothing remotely resembling such selective or coercive conduct is involved in the case before us. Contrary to the majority's claim of "discriminatory governmental treatment" (ante, p. 256), childbirth benefits are available to everyone on a nondiscriminatory basis. Such benefits are not conditioned upon the waiver of the right to abort, for that decision remains the untrammelled and voluntary choice of each aid recipient. Similarly, the limited abortion benefits which are offered by Medi-Cal are available to everyone meeting the [29 Cal.3d 299] objective criteria prescribed in the legislation. (See id., at p. 259, fn. 1.) The majority makes no attempt to demonstrate the arbitrariness of any of these criteria. How then can Danskin support the majority's holding herein?

Bagley is wholly inapposite. In that case, a hospital district attempted to discharge an employee because of her political activities involving district board elections. In Bagley, we established strict standards for measuring the propriety of governmental restrictions upon the exercise of constitutional rights as a condition to public employment. (65 Cal.2d at pp. 505-507.) The Bagley rationale is not relevant to our consideration of the present case. Its "three-part test" so readily borrowed by the majority is plainly ill-suited for the analytical task before us. As previously noted, the legislative action in the present case imposes no conditions whatever upon the right of particular recipients of available benefits. In contrast, the Bagley employee was told to forego her political rights if she wished to remain employed. No similar demands or conditions are imposed upon the beneficiaries which the Legislature has selected for inclusion in the Medi-Cal program. In short, the Bagley tripartite test measures the validity of conditions imposed upon the receipt of public benefits. The test is wholly inappropriate to measure the constitutional adequacy of the benefits so provided, which is the only issue before us in this case.

The third principal case, Parrish, is no closer on point than either Bagley or Danskin. The Parrish welfare recipients were required to consent to predawn eligibility searches as a condition to the receipt of public aid. We there applied the Bagley standards and concluded that this conditional intrusion on constitutional rights was unjustified and improper. In contrast, the present case presents no such similar conditions upon the right to receive the kinds of aid which were funded by the Legislature. With due respect, I must suggest that the majority's attempt to find refuge in such weak precedents graphically illustrates the poverty of its argument.

The cases on which the majority relies involve the imposition of unconstitutional conditions upon the receipt of public benefits. This is entirely different from the problem herein presented. Yet, relevant precedent is not lacking. It simply will not support the result which the majority obviously struggles to achieve. [29 Cal.3d 300]

Two very recent decisions of the United States Supreme Court are directly in point. The high court decided identical issues in Harris v. McRae (1980) 448 U.S. 297 [65 L.Ed.2d 784, 100 S.Ct. 2671], and Maher v. Roe (1977) 432 U.S. 464, 471-474 [53 L.Ed.2d 484, 492-495, 97 S.Ct. 2376], with results diametrically opposite to those achieved by the majority here. In each case the Supreme Court sustained budgetary restrictions upon aid for abortions. The Maher court upheld a Connecticut welfare regulation which, as here, provided benefits for medical services incident to childbirth but denied those which related to nontherapeutic abortions. In Harris, the Supreme Court upheld the federal "Medicaid" Act and the so-called "Hyde Amendment" thereto which in combined effect denied public funding for some medically necessary abortions. In both cases the high tribunal rejected several constitutional arguments raised against these funding restrictions which are identical to those adopted by the majority, including challenges based on privacy, due process and equal protection principles. The majority herein chooses to ignore the rationale of the highest court in the land which deals specifically with the precise issues presented to us.

The primary issue in Maher was whether restrictions upon state aid for nontherapeutic abortions impermissibly infringed upon the rights of privacy or "freedom of choice" which the Supreme Court described in Roe v. Wade, supra, 410 U.S. 113. The Maher court observed that although its Roe holding "protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy" (432 U.S., at pp. 473-474 [53 L.Ed.2d at p. 494]) such a decision does not prevent the state from making "a value judgment favoring childbirth over abortion, and ... implement[ing] that judgment by the allocation of public funds." (Id., at p. 474 [53 L.Ed.2d at p. 494].) In its further amplification in Maher the United States Supreme Court spoke directly, and with compelling authority, to the precise point which is before us, explaining: "The Connecticut regulation before us is different in kind from the laws invalidated in our previous abortions decisions. The Connecticut [one may substitute California] regulation places no obstacles -- absolute or otherwise -- in the pregnant woman's path to an abortion. An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut's decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman's decision, but it has imposed no restriction on access to abortions [29 Cal.3d 301] that was not already there. The indigency that may make it difficult -- and in some cases, perhaps, impossible -- for some women to have abortions is neither created nor in any way affected by the Connecticut regulation." (Id., at p. 474 [53 L.Ed.2d at pp. 494-495], italics added.) This reasoning, in my view, is directly applicable to the present case. It is also unanswerable. The California Legislature may constitutionally make "a value judgment favoring childbirth over abortion and ... implement that judgment by the allocation of public funds." (Ibid.) Such a choice may be sociologically unwise but it is not constitutionally illegal.

Last year in Harris the high tribunal again focused its attention on the precise issue before us, and flatly rejected the constitutional analysis advanced by the majority that "a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices. The reason why was explained in Maher: although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category. The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress has chosen to subsidize no health care costs at all. We are thus not persuaded that the Hyde Amendment impinges on the constitutionally protected freedom of choice recognized in Wade." (448 U.S. at pp. 316-317 [65 L.Ed.2d at p. 804, 100 S.Ct. at p. 2688], fn. omitted.)

In similar fashion, the Supreme Court disposed of the due process argument, holding that there is no Fifth Amendment affirmative entitlement to government funds necessary to "realize all the advantages of that freedom" recognized by Roe v. Wade (pp. 317-318 [65 L.Ed.2d at p. 805, 100 S.Ct. at pp. 2688-2689]).

Finally, Harris rejected the reasoning of the majority that the funding restrictions violated equal protection principles by providing medically necessary services other than abortions. (Pp. 321-327 [65 L. [29 Cal.3d 302] Ed.2d at pp. 807-811, 100 S.Ct. at pp. 2690-2693].) The high court noted that although the impact of the federal law falls upon the indigent, prior decisions had repeatedly held that poverty, standing alone, is not a suspect classification which would invoke the strict scrutiny form of analysis. (448 U.S. at pp. 322-323 [65 L.Ed.2d at pp. 808-809, 100 S.Ct. at p. 2691].)

Applying this traditional rational basis test to determine whether the federal restrictions bore such a "relationship to its legitimate interest in protecting the potential life of the fetus" (p. 324 [65 L.Ed.2d at p. 809, 100 S.Ct. at pp. 2691-2692]), the Supreme Court found such a rational basis in the state's interest in protecting the potentiality of human life. The high tribunal observed: "By subsidizing the medical expenses of indigent women who carry their pregnancies to term while not subsidizing the comparable expenses of women who undergo abortions (except those whose lives are threatened), Congress has established incentives that make childbirth a more attractive alternative than abortion for persons eligible for Medicaid. These incentives bear a direct relationship to the legitimate congressional interest in protecting potential life. Nor is it irrational that Congress has authorized federal reimbursement for medically necessary services generally, but not for certain medically necessary abortions. Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life. [] Where, as here, the Congress has neither invaded a substantive constitutional right or freedom, nor enacted legislation that purposefully operates to the detriment of a suspect class, the only requirement of equal protection is that congressional action be rationally related to a legitimate governmental interest. The Hyde Amendment satisfies that standard." (Pp. 325-326 [65 L.Ed.2d at p. 810, 100 S.Ct. at pp. 2692-2693], fns. omitted.)

The majority questions the propriety of the California Legislature's interest in promoting childbirth and protecting potential life in the course of applying its inapposite Bagley "three-pronged test." Contrary to the high court analysis in Maher and Harris, the majority bases its holding on the faulty premise that California must somehow demonstrate not only that its foregoing interests might be fostered by the funding restriction but that they inevitably must be so fostered, and in addition, in a manner "least offensive" to the aid recipient's "right of procreative choice." (E.g., pp. 281, 282.) The majority's test is not only unduly strict in its evaluation of California's legitimate interests, but the majority's reasoning is wholly circular, entirely begging the question [29 Cal.3d 303] whether, indeed, there exists a right to choose between childbirth and a free abortion performed at state expense.

The California Legislature could reasonably believe that if free abortions "on demand" were unavailable, some women would elect to bear their children which would thereby promote the legitimate goals of encouraging childbirth and protecting fetal life. We cannot assume that the California Legislature is less protective of potential life than is the United States Congress. The Legislature also could assume that other women, no longer able to obtain abortions paid for by the taxpayers, might be encouraged before conception to discover and practice more effective birth control methods, thereby reducing to a considerable degree public welfare expenditures.

Thus, while the majority compares the cost of abortions with the cost of child bearing (ante, p. 277), it disregards a third "procreative choice" available to the indigent woman who prefers not to bear a child: use of effective contraception. Numerous birth control methods and techniques of varying degrees of effectiveness are available as alternatives to either pregnancy or abortion. Recognizing of course that no present method is infallible, I suggest that the majority errs in its assumption that "when the state finances the costs of childbirth, but will not finance the termination of pregnancy, it realistically forces the indigent woman to choose childbirth ...." (Ante, p. 285.) Instead, the Legislature may well have wished to encourage a "procreative choice" at an earlier stage by promoting the use of voluntary birth control.

The principal flaw, however, which runs throughout the entirety of the majority's theory is the erroneous assumption that if a woman has a constitutional right of "freedom of choice" in the matter of whether or not to bear her child it necessarily follows that the State of California and its taxpayers must pay for the costs of the exercise of that right. Fortunately, that sweeping generalization is not so, and never has been so in our constitutional history. A citizen clearly has a constitutional right to travel where and when he pleases. I have never heard it suggested that he is constitutionally entitled to a free trip to the Bahamas paid for from the public treasury. Every citizen has a constitutional right to vote, but he has no constitutional right to a free taxi ride to the polling place. Every citizen may run for public office, but I know of no case holding that he has a constitutional right to public funds to help him get elected. He has a constitutional right to express his views on [29 Cal.3d 304] public affairs, but he has no constitutional right to a free mailing of his views, or a free hall paid for by the taxpayers within which he may expound them. Even when, by a divided court, we recently recognized a right of representation for incarcerated indigent civil defendants we very carefully abstained from recognizing that such a right constituted any enforceable claim against the public treasury for the payment of such representation. (Payne v. Superior Court (1976) 17 Cal.3d 908, 920, fn. 6 [132 Cal.Rptr. 405, 553 P.2d 565].) In short, the recognition of constitutional rights does not carry with it any corollary constitutional obligation on the state Legislature to furnish, out of public funds, the full and unrestricted implementation of those rights. This fact is unaffected by the majority's effort to cast the issue in the form of a "protection of either procreative choice." (Ante, p. 256.)

Finally, I think it very doubtful that when the people of California in 1972 approved the Legislature's proposed constitutional amendment adding the "right of privacy" to the list of inalienable rights, they thought they were committing themselves to the payment of free abortions. There is nothing whatever in the history of the initiative to suggest such a bizarre result. Rather, when they added the "right of privacy" to their "inalienable rights" the people were told that the right of privacy "prevents government and business interests from collecting and stockpiling necessary information gathered for one purpose in order to serve other purposes or to embarrass us.

Fundamental to our privacy is the ability to control circulation of personal information .... The proliferation of government and business records over which we have no control limits our ability to control our personal lives. Often we do not know that these records even exist and we are certainly unable to determine who has access to them.

"Even more dangerous is the loss of control over the accuracy of government and business records on individuals.

"The average citizen also does not have control over what information is collected about him. Much is secretly collected. We are required to report some information, regardless of our wishes for privacy or our belief that there is no public need for the information. Each time we apply for a credit card, or a life insurance policy, file a tax return, [29 Cal.3d 305] interview for a job, or get a drivers license, a dossier is opened and an informational profile is sketched. Modern technology is capable of monitoring, centralizing and computerizing this information which eliminates any possibility of individual privacy." (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 7, 1972) p. 27.)

The foregoing extracts from the ballot arguments persuade me that when the people in 1972 adopted the constitutional "privacy" measure they thought they were approving restrictions on the dissemination of record information affecting and intruding upon their personal lives. This is the whole spirit of the ballot argument. It may have had wider constitutional implications, but there is nothing in the history of the amendment to suggest that the people intended to create a constitutionally protected right that was broader than the federal right of privacy declared in Roe v. Wade, supra. Certainly, the people did not intend to extend "privacy" to encompass a constitutional access to the public treasury for all indigents who want free abortions. Such a speculative jump in reasoning is of Olympian proportions -- from a restriction on information distribution to a constitutional obligation to pay for abortions. With due deference, I suggest that such a consequence is the pure invention of the majority and not constitutionally ordained by any California "right of privacy."

It is the exclusive legislative prerogative, and not ours, to determine how public monies shall be appropriated, and for what purposes. The United States Supreme Court in disposing of the identical arguments adopted by the majority herein has explicitly held "[n]or is it irrational that Congress has authorized federal reimbursement for medically necessary services generally, but not for certain medically necessary abortions." (448 U.S. at p. 325 [65 L.Ed.2d at p. 810, 100 S.Ct. at p. 2692].) The same constitutional considerations which moved the high court to defer to congressional judgment should similarly prompt us to accept the judgment of the California Legislature in its adoption of the Budget Act. The California Constitution prohibits us from rewriting the Budget Act, which budget, it bears repeating, is the Governor's responsibility to propose and the Legislature's to adopt. We seriously err when we continue, on misguided constitutional grounds, to usurp the lawmaking function of the California Legislature. [29 Cal.3d 306]

I would affirm the judgment in S.F. 24069, and deny the peremptory writs sought in S.F. 24053 and S.F. 24192.

Clark, J., concurred.

―FN 1. The 1979 and 1980 Budget Acts restrict Medi-Cal abortion funding by specifying that none of the funds appropriated for Medi-Cal shall be used to pay for abortions, except under any of the following circumstances:

"(a) Where the life of the mother would be endangered if the fetus were carried to full term.

"(b) Where the pregnancy is ectopic.

"(c) Where the pregnancy results from an act punishable under Section 261 of the Penal Code, and such act has been reported, within 60 days, to a law enforcement agency or a public health agency which has immediately reported it to a law enforcement agency, and the abortion occurs during the first trimester.

"(d) Where the pregnancy results from an act punishable under Section 261.5 of the Penal Code, and the female is under 18 years of age, and the abortion is performed no later than the first trimester, provided the female's parent or guardian or, if none, an adult of the female's choice is notified at least five days prior to the abortion by the physician who performs the abortion. Regulations governing the notice requirement shall be promulgated by the State Director of Health Services.

"(e) Where the pregnancy results from an act punishable under Section 285 of the Penal Code, and such act has been reported to a law enforcement agency or a public health agency which has immediately reported it to a law enforcement agency and the abortion occurs no later than during the second trimester.

"(f) Where it is determined by prenatal studies limited to amniocentesis, fetal blood sampling, fetal antiography, ultrasound, X-ray, or maternal blood examination that the mother is likely to give birth to a child with a major or severe genetic or congenital abnormality due to the presence of chromosomal abnormalities, neural tube defects, biochemical diseases, hemoglobinopathies, sex-linked diseases, and infectious processes.

"(g) Where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term, when so certified under penalty of perjury by two physicians, one of whom, where practicable, is a specialist in the affected medical discipline, and documentation thereof is provided with the claim for payment."

The primary difference between the 1978 act and the later acts is that the 1978 act provided funding for abortions to avoid severe and long-lasting physical health damage only when that damage arose from 10 enumerated medical conditions. Since the Legislature deleted that language in the 1979 and 1980 enactments, the question of the validity of the 1978 language is moot.

―FN 2. Because both the trial court and Court of Appeal issued temporary stay orders, the restrictive provisions of the 1978 act were never implemented.

―FN 3. Since the 1978 and 1979 Budget Acts have expired, the two suits seeking to restrain enforcement of these laws are technically moot. The action involving the 1980 law presently in effect is sufficient to present all issues which the parties seek to raise. The trial record and most of the briefs, however, were filed in connection with the 1978 and 1979 proceedings. Under these circumstances, we concluded that it would be appropriate to consolidate the three actions for purposes of both oral argument and opinion.

―FN 4. Following this reasoning, we have on numerous occasions construed the California Constitution as providing greater protection than that afforded by parallel provisions of the United States Constitution. A partial listing of such holdings includes: People v. Pettingill (1978) 21 Cal.3d 231 [145 Cal.Rptr. 861, 578 P.2d 108] (protection against self-incrimination); People v. Hannon (1977) 19 Cal.3d 588 [138 Cal.Rptr. 885, 564 P.2d 1203] (right to speedy trial); Serrano v. Priest (1976) 18 Cal.3d 728 [135 Cal.Rptr. 345, 557 P.2d 929] (equal protection); People v. Disbrow (1976) 16 Cal.3d 101 [127 Cal.Rptr. 360, 545 P.2d 272] (protection against self-incrimination); People v. Longwill (1975) 14 Cal.3d 943 [123 Cal.Rptr. 297, 538 P.2d 753] (search of arrestees); People v. Brisendine, supra, 13 Cal.3d 528 (same); Curry v. Superior Court (1970) 2 Cal.3d 707 [87 Cal.Rptr. 361, 470 P.2d 345] (double jeopardy); Cardenas v. Superior Court (1961) 56 Cal.2d 273 [14 Cal.Rptr. 657, 363 P.2d 889, 100 A.L.R.2d 371] (same); People v. Martin (1955) 45 Cal.2d 755 [290 P.2d 855] (vicarious exclusionary rule).

―FN 5. In 1972, the people adopted article I, section 24, of the California Constitution which provides that the rights "guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." This declaration of constitutional independence, as we stressed in People v. Brisendine, supra, 13 Cal.3d 528, 551, "did not originate at [the] election; indeed the voters were told the provision was a mere reaffirmation of existing law."

―FN 6. Article I, section 1 (as reworded by constitutional amendment in 1974) presently provides: "All people are by nature free and independent and have certain inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety, happiness and privacy."

―FN 7. See e.g., Danskin, supra, 28 Cal.2d 536; American Civil Liberties Union v. Board of Education (1961) 55 Cal.2d 167 [10 Cal.Rptr. 647, 359 P.2d 45, 94 A.L.R.2d 1259]; Wirta v. Alameda-Contra Costa Transit Dist. (1967) 68 Cal.2d 51 [64 Cal.Rptr. 430, 434 P.2d 982].

―FN 8. See, e.g., Fort v. Civil Service Commission (1964) 61 Cal.2d 331 [38 Cal.Rptr. 625, 392 P.2d 385]; Kinnear v. City etc. of San Francisco (1964) 61 Cal.2d 341 [38 Cal.Rptr. 631, 392 P.2d 391]; Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499 [55 Cal.Rptr. 401, 421 P.2d 409]; Rosenfield v. Malcolm (1967) 65 Cal.2d 559, 561 [55 Cal.Rptr. 505, 421 P.2d 697]; Vogel v. County of Los Angeles (1967) 68 Cal.2d 18 [64 Cal.Rptr. 409, 434 P.2d 961]; City of Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259 [85 Cal.Rptr. 1, 466 P.2d 225, 37 A.L.R.3d 1313]; Finot v. Pasadena City Bd. of Education (1967) 250 Cal.App.2d 189 [58 Cal.Rptr. 520].

―FN 9. See, e.g., Parrish v. Civil Service Commission (1967) 66 Cal.2d 260 [57 Cal.Rptr. 623, 425 P.2d 223].

―FN 10. See, e.g., Housing Authority v. Cordova (1955) 130 Cal.App.2d Supp. 883 [279 P.2d 215]; Atkisson v. Kern County Housing Authority (1976) 59 Cal.App.3d 89 [130 Cal.Rptr. 375].

―FN 11. See, e.g., King v. Unemployment Ins. Appeals Bd. (1972) 25 Cal.App.3d 199 [101 Cal.Rptr. 660]; Thornton v. Department of Human Resources Dev. (1973) 32 Cal.App.3d 180 [107 Cal.Rptr. 892].

―FN 12. See, e.g., Binet-Montessori, Inc. v. San Francisco Unified School Dist. (1979) 98 Cal.App.3d 991 [160 Cal.Rptr. 38].

―FN 13. See, e.g., Danskin, supra, 28 Cal.2d 536; Vogel, supra, 68 Cal.2d 18.

―FN 14. See, e.g., Parrish, supra, 66 Cal.2d 260; City of Carmel-By-the-Sea, supra, 2 Cal.3d 259; Finot, supra, 250 Cal.App.2d 189; King, supra, 25 Cal.App.3d 199; Thornton, supra, 32 Cal.App.3d 180.

―FN 15. We have not, of course, held that the government may never condition the receipt of benefits or privileges upon the nonassertion of constitutional rights. Rather, as we explained in Bagley v. Washington Township Hospital Dist., supra, 65 Cal.2d 499, 505: "Just as we have rejected the fallacious argument that the power of government to impose such conditions knows no limit, so must we acknowledge that government may, when circumstances inexorably so require, impose conditions upon the enjoyment of publicly conferred benefits despite a resulting qualification of constitutional rights."

―FN 16. See, e.g., O'Neil, Unconstitutional Conditions: Welfare Benefits With Strings Attached (1966) 54 Cal.L.Rev. 443; Linde, Constitutional Rights in the Public Sector (1965) 40 Wash.L.Rev. 10; Note, Unconstitutional Conditions (1960) 73 Harv.L.Rev. 1595; Willcox, Invasions of the First Amendment Through Conditioned Public Spending (1955) 41 Cornell L.Q. 12; Hale, Unconstitutional Conditions and Constitutional Rights (1935) 35 Colum.L.Rev. 321; Powell, The Right to Work for the State (1916) 16 Colum.L.Rev. 99.

―FN 17. Indeed, recent academic commentaries on the McRae decision have criticized the majority's conclusion on the ground that the ruling is incompatible with the prior federal unconstitutional condition precedents. (See, e.g., Note, The Supreme Court, 1979 Term (1980) 94 Harv.L.Rev. 75, 96-107. See also Perry, Why the Supreme Court Was Plainly Wrong in the Hyde Amendment Case: A Brief Comment on Harris v. McRae (1980) 32 Stan.L.Rev. 1113.)

―FN 18. Although the McRae majority upheld restrictions which denied poor women federal Medicaid funds for abortion, the majority opinion notes that "[a] substantial constitutional question would arise if Congress had attempted to withhold all Medicaid benefits from an otherwise eligible candidate simply because that candidate had exercised her constitutionally protected freedom to terminate her pregnancy by abortion." (448 U.S. at p. 317, fn. 19 [65 L.Ed.2d at p. 805, 100 S.Ct. at p. 2688].)

―FN 19. The state cannot rebut this conclusion by attempting to portray the program as one that does not provide general medical care but rather reimburses only specified medical expenses, such as those for childbirth, while withholding funds for other medical expenses, such as those for abortion. In the first place, the breadth of the Medi-Cal program belies any suggestion that the state in this case is affording only the specialized benefit of medical expense for childbirth. As we have noted, under Medi-Cal the state pays for virtually all necessary medical expenses of the poor, and does not confine its funding only to childbirth expenses.

Moreover, it is obvious that the state cannot circumvent the principles of the Danskin-Bagley doctrine by defining the benefit offered in a constitutionally discriminatory fashion. Thus, for example, the result in Danskin clearly would not have differed if the state had announced that it was making public schools available solely for patriotic meetings. (Cf. Wirta v. Alameda-Contra Costa Transit Dist., supra, 68 Cal.2d 51.) Similarly, the Bagley analysis could not be avoided by a hospital district's declaration that it has an opening for the position of "apolitical nurse's aide." Contrary to the dissent's reasoning (see p. 298, post), the foregoing examples are not rendered constitutionally palatable simply because "everyone" would be free to make patriotic speeches or because "everyone" would be permitted to apply for the apolitical nurse's aide job.

―FN 20. Section 14000 provides in full: "The purpose of this chapter is to afford health care and related remedial or preventive services to recipients of public assistance and to medically indigent aged and other persons, including related social services which are necessary for those receiving health care under this chapter.

"The intent of the Legislature is to provide, to the extent practicable, through the provisions of this chapter, for health care for those aged and other persons, including family persons who lack sufficient annual income to meet the costs of health care, and whose other assets are so limited that their application toward the costs of such care would jeopardize the person or family's future minimum self-maintenance and security. It is intended that whenever possible and feasible:

"(a) The means employed shall be such as to allow, to the extent practicable, eligible persons to secure health care in the same manner employed by the public generally, and without discrimination or segregation based purely on their economic disability.

"(b) The benefits available under this chapter shall not duplicate those provided under other federal or state laws or under other contractual or legal entitlements of the person or persons receiving them.

"(c) In the administration of this chapter and in establishing the means to be used, the department shall give due consideration both to the appropriate organization and to the ready accessibility and availability of the facilities and resources for health care to persons eligible under this chapter, and to new and innovative approaches to the delivery of health care services."

―FN 21. The trial court in McRae (McRae v. Califano (E.D.N.Y. 1980) 491 F.Supp. 630) conducted a lengthy factual hearing with extensive medical evidence and concluded that the federal funding restrictions, which are comparable to those under the California Budget Act, hazard the woman's life and health in a variety of ways. The comparable California Budget Act restrictions, we conclude, pose the same hazards to the health of indigent California women. Specifically:

(1) The act permits funding of abortions "[w]here the life of the mother would be endangered if the fetus were carried to full term." (Stats. 1979, ch. 259, item 261.5(a), p. 87.) The phrase "would be endangered," however, is vague -- so vague that we held similar language unconstitutional in People v. Belous, supra, 71 Cal.2d 954. If interpreted to require a substantial certainty or even a reasonable probability of death, it excludes funding in many cases in which the risk of death is sufficient to induce a physician to recommend abortion.

(2) The act also permits abortion "[w]here severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term." That language by necessary implication excludes cases in which the damage cannot be described as both severe and long lasting. It also excludes damage to mental health regardless of severity and duration.

(3) A denial of funding will induce some women to attempt abortion without medical assistance, a procedure which carries an extreme risk of injury or death. (See People v. Belous, supra, 71 Cal.2d at pp. 965-966.)

(4) A denial of funding will induce some women to delay abortion until they can somehow raise the money to pay for a private abortion, although abortions later in pregnancy present a greater risk to life and health.

(5) The denial of funding will induce some women to carry the child to term even though relevant medical considerations -- one of which may be the psychological impact of carrying an unwanted child -- make childbirth much more risky than abortion.

―FN 22. Our analysis at this point closely parallels the strict judicial scrutiny used to determine whether an enactment which discriminates against the exercise of a fundamental right denies equal protection of the law. Because the state cannot demonstrate that the statutory scheme is supported by a compelling state interest, we believe that the statutes in question are additionally unconstitutional under established equal protection principles. In light of the similarity of the applicable principles in this context, however, we see no need to undertake a separate analysis of the statutes' equal protection defects.

―FN 23. In Williams v. Zbaraz (1980) 448 U.S. 358 [65 L.Ed.2d 831, 100 S.Ct. 2694], a companion case to McRae, it was estimated that funding restrictions similar to those at issue here would impose upon the State of Illinois an additional cost "of about $20,000,000 per year." (See 448 U.S. at p. 355, fn. 9 [65 L.Ed.2d at p. 829, 100 S.Ct. at p. 2715] (dis. opn. by Stevens, J.).) Because the population of California is significantly greater than that of Illinois, the added costs would presumably be much higher.

―FN 24. The dissenting opinion asserts that we overlook a third procreative choice available to the indigent woman -- avoiding pregnancy. For the woman who is already pregnant, of course, that choice is unavailable, whether her pregnancy resulted from intentional act, carelessness, ignorance of contraceptive methods, or contraceptive failure. Perhaps in an ideal world no woman who does not want a child would ever become pregnant, and nothing would ever happen after conception to change matters, but that utopian vision is no comfort to the persons whose constitutional freedom of choice is affected by the restrictions on abortion funding.

―FN 25. In the Zbaraz case (see fn. 23, ante), the trial court found that the average cost to the State of Illinois of an abortion was less than $150, while the average cost of childbirth exceeded $1,350. (See 448 U.S. at p. 355, fn. 9 [65 L.Ed.2d at p. 829, 100 S.Ct. at p. 2715] (dis. opn. of Stevens, J.).)

―FN 26. Ironically, the Supreme Court decision in McRae, filed in June 1980, supplies for the 1980 California Budget Act a conceivable economic justification that did not apply to the 1978 and 1979 acts. The 1980 Budget Act abortion funding restrictions, as we have noted, will substantially increase total government outlay, because childbirth is much more expensive than abortion. As a result of the McRae decision upholding the Hyde Amendment, however, some of those increased costs will shift from the state to the federal taxpayer; under McRae, federal funds are no longer available to subsidize state abortion payments, but remain available to subsidize state maternity and childbirth payments.

The state's interest in shifting expenditures to the federal fisc, however, can hardly be described as a significant one. In the first place, the California taxpayer is also a federal taxpayer, and derives no benefit when money is taken from one pocket instead of another. Second, taking into account not only the required state contribution to maternity and childbirth expenses under Medi-Cal but also the substantial expense of providing state support for unwanted minors, the Budget Act restrictions will ultimately cost the California taxpayer more than would abortion funding. The serious impairment of a fundamental right inflicted by the abortion funding limitations cannot be justified on so flimsy a basis.

The Attorney General also suggests that the Budget Act provisions reflect the state's desire to accommodate those taxpayers who are conscientiously opposed to abortion. The antagonism of taxpayers toward the exercise of a constitutional right, of course, in no way justifies state discrimination against persons who exercise that right. If the Attorney General is suggesting that the state could accommodate objecting taxpayers by allocating their taxes to other state purposes, the short answer is that the Budget Act enacts no such allocation; it bars funding of abortions from all revenue sources whatever, including taxpayers who favor funding of abortions and those who are indifferent on the matter.

―FN 27. Indeed, the California Legislature has itself recognized the importance of avoiding such discrimination against the poor as one general purpose of the Medi-Cal program. Section 14000 of the Welfare and Institutions Code, in defining the purpose of the Medi-Cal program, emphasizes that "[i]t is intended that whenever possible and feasible ... [t]he means employed shall be such as to allow, to the extent practicable, eligible persons to secure health care in the same manner employed by the public generally, and without discrimination or segregation based purely on their economic disability." As we have seen, the elimination of funds for abortion is not related to preserving the feasibility or practicability of the Medi-Cal program.

―FN 28. Again, this requirement parallels the requirement that the state, to sustain legislation subject to strict judicial scrutiny under the equal protection clause, must demonstrate "'not only that it has a compelling interest which justifies the law, but that the distinctions drawn by the law are necessary to further its purpose.'" (Original italics.) (Serrano v. Priest (1976) 18 Cal.3d 728, 761 [135 Cal.Rptr. 345, 557 P.2d 929].)

―FN 29. The Pregnancy Freedom of Choice Act (Welf. & Inst. Code, 16145 et seq.) provides an excellent example of a program designed to aid indigent women who choose to bear children without impinging upon the rights of those who choose abortion. Section 16145 states the purpose of this act: "The Legislature finds that pregnancy among unmarried persons under 21 years of age constitutes an increasing social problem in the State of California. In order to have effective freedom of choice between an abortion and carrying pregnancy to term, the assistance of the state in addition to medical services is required. The problem can be alleviated effectively by a program of structured services, including counseling and residential treatment services, provided by licensed maternity homes." Subsequent sections provide for state reimbursement of expenses incurred by maternity homes in providing the specified services.

The act, by its title and declared purpose, signifies a legislative recognition that women are entitled to effective freedom of choice, and that effective freedom of choice may require state-assisted medical services. Because childbirth may involve care and counseling needs beyond those required for abortion, the act establishes a state program to provide those needs. It thus serves a state objective to eliminate financial considerations that make one choice more expensive than the other, thereby granting the woman effective freedom of choice; the Budget Act, by contrast, seeks to make abortion prohibitively expensive relative to childbirth and thereby to control the woman's choice.

―FN 30. In Roe v. Wade, supra, the United States Supreme Court expressly took note of "the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, ... and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experience, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion." (410 U.S. at p. 116 [35 L.Ed.2d at p. 156].)

―FN 31. The dissenting opinion incorrectly asserts that our opinion assumes that the state must fund the exercise of constitutional rights. To avoid any possible misunderstanding, we reiterate: the state need not fund abortions, childbirth, appendectomies, or any other medical procedure, but when it undertakes to fund medical treatment for indigents, it cannot withhold funds from some eligible persons because they exercise a constitutional right.

―FN 32. As described in a familiar Tin Pan Alley lyric: "The rich get richer and the poor get ... children." (Excerpted from "Ain't We Got Fun" by Richard Whitney.)

―FN 1. "Provided further, that if any of the provisions of this item or the application thereof to any person or circumstances is stayed, enjoined, otherwise delayed, or invalidated by court action, the Department of Finance shall authorize the State Controller to transfer from Item 287 to this item such sums determined by the Director of Finance which are necessary to provide for the costs of those abortions fundable as a result of such court action." (Stats. 1980, ch. 510, item 287.5.)

It is clear that the power of the judiciary to invalidate statutes found inconsistent with the Constitution is not limited to those cases in which there is no resulting fiscal burden on the state. (Moe v. Secretary of Administration & Finance (1981) ___ Mass. ___ [417 N.E.2d 387, 395]. See, e.g., Shapiro v. Thompson (1969) 394 U.S. 618 [22 L.Ed.2d 600, 89 S.Ct. 1322]; Gideon v. Wainwright (1963) 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733]; Salas v. Cortez (1979) 24 Cal.3d 22 [154 Cal.Rptr. 529, 593 P.2d 226]; Payne v. Superior Court (1976) 17 Cal.3d 908 [132 Cal.Rptr. 405, 553 P.2d 565]; Parrish v. Civil Service Commission (1967) 66 Cal.2d 260 [57 Cal.Rptr. 623, 425 P.2d 223].)

―FN 2. The majority suggests that the test of Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499 [55 Cal.Rptr. 401, 421 P.2d 409] must be used to evaluate governmental benefit programs that restrict the exercise of a fundamental right through the imposition of an indirect burden or a condition. Since I find no constitutional distinction between direct burdens and indirect burdens or conditions (see post at p. 290), I would apply the traditional strict scrutiny standard.

Bagley was one case in a line of California cases which held that conditions on the exercise of a fundamental right must be reviewed with the same close scrutiny as a direct burden on those rights. (Cf. Danskin v. San Diego Unified Sch. Dist., supra, 28 Cal.2d 536.) At the time Bagley was written, the concept of close scrutiny had not been fully developed. Bagley represents an early attempt by this court to formulate a standard for this close scrutiny. As such, it contains many of the concepts that were later incorporated into the doctrine of strict scrutiny. However, Bagley was not the final word of this court on the subject. Its precise formulation of the standard to be used has been superseded by later developments. (See Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578-586 [79 Cal.Rptr. 77, 456 P.2d 645, 38 A.L.R.3d 1194]; People v. Belous, supra.)

Bagley has generated some confusion in the Courts of Appeal precisely because its language does not match the language of strict scrutiny found in the cases which followed it. In 1971, this court cited Bagley as authority for the proposition that the state could not impair the exercise of a fundamental right without demonstrating a compelling interest. (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 778-779 [97 Cal.Rptr. 657, 489 P.2d 537].) Over the years, the three-pronged test of Bagley has not been followed. The only part of the test which has been consistently applied deals with the infringement by the state of a fundamental right and the requirement of greater scrutiny by the courts. (Bekiaris v. Board of Education (1972) 6 Cal.3d 575, 585-586 [100 Cal.Rptr. 16, 493 P.2d 480]; White v. Davis, supra, 13 Cal.3d 757, 772; Merco Constr. Engineers, Inc. v. Los Angeles Unified Sch. Dist. (1969) 274 Cal.App.2d 154, 169 [79 Cal.Rptr. 23]; Healdsburg Police Officers Assn. v. City of Healdsburg (1976) 57 Cal.App.3d 444, 450 [129 Cal.Rptr. 216]. See also, Bogacki v. Board of Supervisors, supra, 5 Cal.3d 771, 796-797, fn. 12 (dis. opn. of Tobriner, J.). But see Binet-Montessori, Inc. v. San Francisco Unified School Dist. (1979) 98 Cal.App.3d 991 [160 Cal.Rptr. 38].)

The conclusion in these cases that the Bagley standard is equivalent to a compelling state interest standard is understandable in light of its history. (Compare the language of the Belous test, post, at fn. 3.) Bagley has been applied exclusively to cases which involved restrictions on a fundamental right. When the language and result reached in Bagley are closely examined, it becomes clear that this court employed a de facto strict scrutiny test.

I disagree with any implication that in future cases an impairment of a right not currently deemed fundamental may be justifiable if the state can show a less than compelling interest. Since the facts of this case do not present this issue, I think it unwise to lay the groundwork for such a decision through dictum, particularly where the issue was neither presented nor briefed. Further, a balancing of degrees of burden and degrees of "fundamentalness" presents a task that the judiciary is no more capable of performing in the area of due process than it is in the area of equal protection. (See Hawkins v. Superior Court (1978) 22 Cal.3d 584, 607-610 [150 Cal.Rptr. 435, 586 P.2d 916] (conc. opn. of Bird, C. J.).)

Bagley does not compel such a balancing of rights and interests. The implication in Bagley that restrictions on a less than fundamental right would call for a lesser standard of review is dictum and has been superseded by later developments in the doctrine of fundamental rights.

―FN 3. The former criminal statutes prohibiting abortion provide an example of direct infringement in this area. Those statutes were declared unconstitutional. Their impact fell most heavily on women who could not afford costly illegal abortions locally or legal abortions in other countries. (See Callahan, Abortion: Law, Choice and Morality (1970) pp. 136-137; Rosen, Psychiatric Implications of Abortion: A Case Study in Social Hypocrisy, in Abortion and the Law (Smith edit. 1967) pp. 90-92; Charles & Alexander, Abortions for Poor and Nonwhite Women: A Denial of Equal Protection (1971) 23 Hastings L.J. 147, 150-156.) This case presents an indirect infringement the results of which are the same. Thus, it is a distinction without a difference to assert that because the governmental action is indirect rather than direct, the infringements which result are of less significance constitutionally.

―FN 4. This court in Belous recognized "[t]he fundamental right of the woman to choose whether to bear children follows from the Supreme Court's and this court's repeated acknowledgment of a 'right of privacy' or 'liberty' in matters related to marriage, family, and sex. [Citations.] ... [] The critical issue is not whether such rights exist, but whether the state has a compelling interest in the regulation of a subject which is within the police powers of the state [citations], whether the regulation is 'necessary ... to the accomplishment of a permissible state policy' [citations], and whether legislation impinging on constitutionally protected areas is narrowly drawn and not of 'unlimited and indiscriminate sweep' [citations]." (71 Cal.2d at pp. 963-964.)

―FN 5. Article I, section 1 now reads: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." (Italics added.)

―FN 6. This extension of court decisions obviously included the extant decisions of this court in the area of freedom of choice and a citizen's right to privacy in areas dealing with procreation. (See Ballard v. Anderson (1971) 4 Cal.3d 873 [95 Cal.Rptr. 1, 484 P.2d 1345, 42 A.L.R.3d 1392]; People v. Belous, supra, 71 Cal.2d 954.)

―FN 7. Our Constitution provides: "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." (Cal. Const., art. I, 24.)

―FN 8. Judge David notes, for example, the prohibitions against slavery and the grant of women's suffrage long before such tenets were nationally adopted. (Id., at pp. 713, 727-728.)

―FN 9. The abortion funding cases of the United States Supreme Court have been criticized as inconsistent with Roe v. Wade, supra, and other federal cases. (Moe v. Secretary of Administration & Finance, supra, 417 N.Ed.2d at pp. 397-404; Harris v. McRae, supra, 448 U.S. at p. 329 [65 L.Ed.2d at p. 812, 100 S.Ct. at p. 2702] (dis. opn. of Brennan, J.); id. at p. 337 [65 L.Ed.2d at p. 817, 100 S.Ct. at p. 2706] (dis. opn. of Marshall, J.); Abortion Funding Cases, supra, 66 Geo. L.J. at pp. 1197-1201; Perry, Why the Supreme Court Was Plainly Wrong in the Hyde Amendment Case: A Brief Comment on Harris v. McRae (1980) 32 Stan. L.Rev. 1113; Tribe, American Constitutional Law (1978) 15-10, pp. 933-934, fn. 77 [hereinafter cited as Tribe]; Note, The Supreme Court, 1979 Term (1980) 94 Harv. L.Rev. 1, 96, 99-102; Note, Committee to Defend Reproductive Rights v. Myers: Medi-Cal Funding of Abortion (1979) 9 Golden Gate L. Rev. 361, 384-387.)

―FN 10. Some writers have noted that federal cases do not permit such a distinction either. (Harris v. McRae, supra, 448 U.S. at pp. 334-335 [65 L.Ed.2d at pp. 815-816, 100 S.Ct. at pp. 2704-2705] (dis. opn. of Brennan, J.); Note, The Supreme Court, 1979 Term, supra, 94 Harv. L.Rev. at pp. 96-107.)

―FN 11. The lead opinion's thorough analysis of the state's interest correctly concludes that the justifications advanced by the state are not compelling. (See lead opn., ante, at pp. 273-274.)

~~~~~~~~~~~~~~~~

People v. Brisendine , 13 Cal.3d 528
[Crim. No. 16520. Supreme Court of California. February 20, 1975.]

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL CLAYTON BRISENDINE, Defendant and Appellant

(In Bank. Opinion by Mosk, J., with Wright, C. J., Tobriner and Sullivan, JJ., concurring. Separate dissenting opinion by Burke, J., with McComb and Clark, JJ., concurring.)

COUNSEL

Garza, Kassel, Jordan & Welebir and Donald W. Jordan, Jr., for Defendant and Appellant.

Evelle J. Younger, Attorney General, Herbert L. Ashby, Chief Assistant Attorney General, William E. James, Assistant Attorney General, Derald E. Granberg and Conrad D. Petermann, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MOSK, J.

Defendant was charged with possession of marijuana (former Health & Saf. Code, 11530, now 11357) and possession of a restricted dangerous drug (former Health & Saf. Code, 11910, now 11377). His motion to suppress the evidence on the ground of illegal search and seizure (Pen. Code, 1538.5) was denied. Following an unsuccessful petition for mandamus the matter was submitted to the trial court on the transcript of the preliminary hearing. Defendant was found guilty on both counts and placed on probation. He appeals from the order granting probation (Pen. Code, 1237), contending that the contraband was obtained by means of an unlawful search and seizure.

I

On the night of June 3, 1970, two deputy sheriffs, Rodney Denney and Michael Norman, were inspecting for county fire code violations in the Deep Creek area of the San Bernardino National Forest. The locale had been designated a "high fire hazard area" in which both open campfires and overnight camping were prohibited.

Upon finding two vehicles parked on the road the deputies proceeded into the forest on foot, where they came upon one Marlow Bartels, a lone [13 Cal.3d 533] camper whom they arrested for possession of marijuana. fn. 1 Bartels informed the officers there were other campers further downstream who were also in possession of marijuana. The officers secured Bartels' wallet for identification, instructed him to remain at his campsite pending their return, and continued in the direction indicated.

The trail from Bartels' campsite was primitive. Large rock formations and deep canyon walls necessitated the use of hands in many places; at some points the narrowness of the route allowed only one person to pass at a time. Approximately half a mile from the place where they left Bartels the officers observed another campfire. Nearby were four young men in sleeping bags, one of whom was this defendant. Officer Norman placed the four under arrest for having an open campfire in violation of section 13 of appendix E of the Uniform Fire Code of San Bernardino County.

The intent of the officers at the time was to escort the youths out of the area and back to the patrol car, where they would be cited for the fire ordinance violation and ordered to appear before a magistrate at some future date. There was no intent to place the four in custody preparatory to any booking. The deputies justified the need to escort the campers out of the forest on the dual rationale that (1) camping was prohibited in the area and (2) they had left their citation books in their patrol car. fn. 2

Prior to starting back, the officers conducted a thorough search of the persons and effects of all four youths. Denney picked up defendant's knapsack, squeezed it, determined that the outer layer was too solid to ascertain whether it contained weapons, and began a search of its compartments. The contraband was found in a side pocket of the pack: the marijuana was contained in a frosted plastic bottle with a cap on it, and the tablets of restricted dangerous drugs were wrapped in tinfoil and enclosed in envelopes. [13 Cal.3d 534]

Following the search and confiscation of the contraband the four suspects were removed from the area and escorted back to the patrol car. Defendant was taken into custody; his three companions were given citations, made to sign promises to appear, and released.

Defendant attacks the legality of the search of his knapsack and the seizure of the contraband on the following grounds: (1) the evidence indicates that the police were conducting an exploratory search for narcotics, not weapons; (2) there were no specific, articulable facts or circumstances which reasonably warranted a search for weapons; and (3) even if the officers had a limited right to search for weapons, the extent of the search undertaken exceeded its legitimate scope.

For the reasons discussed infra we conclude there was substantial evidence to support the trial court's finding that the search was legitimately concerned with weapons and not contraband. Similarly, since it was necessary for the officers to be in close proximity with defendant and his companions for a prolonged period of time, we are of the view that the circumstances reasonably warranted such a weapons search; that being the case, the officers were justified in investigating further when a pat-down of defendant's knapsack proved inadequate to disclose if it contained weapons. However, we hold that the officers' subsequent intrusion into the opaque bottle and envelopes inside the knapsack cannot be justified by the limited purpose which validated the search in its inception. Accordingly, we hold these items were obtained by means of an unreasonable search and seizure in violation of article I, section 13, of the California Constitution. fn. 3 We shall discuss these points in the sequence indicated. fn. 4

II

[1] It is true there was evidence presented which could have led the trial court to conclude that the ostensible weapons search was merely a facade designed to provide justification for an exploratory search for narcotics. If such were the case, of course, the search would have been [13 Cal.3d 535] illegal. (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 830-831 [91 Cal.Rptr. 729, 478 P.2d 449, 45 A.L.R.3d 559]; Cunha v. Superior Court (1970) 2 Cal.3d 352, 358 [85 Cal.Rptr. 160, 466 P.2d 704]; People v. Cruz (1968) 264 Cal.App.2d 437, 441 [70 Cal.Rptr. 249].) The search process was lengthy and exhaustive. fn. 5 In view of the fact that Bartels had told the officers that the campers were in possession of marijuana, the evidence might have supported an inference that the investigation was made in the hope of discovering such contraband. In addition, objects at the campsite which could have been readily utilized as weapons were largely ignored by the officers, and the arrestees were allowed to retain control of them during the long trek back. fn. 6 Finally, the deputies seemed to exhibit little fear of the suspects, frequently turning their backs to them during the course of the search fn. 7 and taking no steps to secure them either during the search, on the trip back, or at the patrol car.

[2] On the other hand, the testimony of the officers suggests that under the circumstances they had cause to fear for their safety. Officer Denney explained, "Primarily because of the terrain, we could not secure them. We had at that time arrested them, taken their freedom away from them. I had never seen any -- either [sic] four of the suspects before. I did not know their background, their past, or if they were wanted personnel. I didn't know if they had weapons or what type of attitude they would have when we escorted them out of the Deep Creek area. I would have been in dereliction of my duty if I didn't search for weapons."

Thus the terrain, the lateness of the hour, and the unfamiliarity of the suspects might well have led a prudent officer to take reasonable precautions. The trial court impliedly found this was the deputies' purpose, stating, "I think it was ... proper to search for weapons." As an appellate court we are bound to "'view the evidence in the light most [13 Cal.3d 536] favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (Guidi v. Superior Court (1973) 10 Cal.3d 1, 10, fn. 7 [109 Cal.Rptr. 684, 513 P.2d 908].) Our responsibility is simply "to measure the facts, as found by the trier, against the constitutional standard of reasonableness." (People v. Lawler (1973) 9 Cal.3d 156, 160 [107 Cal.Rptr. 13, 507 P.2d 621].) We conclude that the court's determination that the object of the search was weapons is supported by substantial evidence and cannot be disturbed on appeal. (People v. Reilly (1970) 3 Cal.3d 421, 425 [90 Cal.Rptr. 417, 475 P.2d 649], and cases cited.)

III

Defendant next contends that, assuming the search was for weapons, it was illegal because the officers could not point to specific, articulable facts justifying such a search. He principally relies on People v. Superior Court (1972) 7 Cal.3d 186, 202-206 [101 Cal.Rptr. 837, 496 P.2d 1205] (hereinafter called Simon), for the proposition that if an arrestee is cited for an offense which typically has neither "instrumentalities" nor "fruits," no search is allowable unless there are particular facts present which would reasonably lead the officer to believe the subject was armed.

In analyzing the present case in light of Simon we encounter first a difficulty in classification. There, in reviewing the permissible scope of a search incident to an ordinary traffic arrest, we were able to divide offenders into three discernible groups (7 Cal.3d at pp. 199-201): (1) those who are merely cited and immediately released (Veh. Code, 40500, 40504), (2) those who may or must be taken before a magistrate and given the option to post bond (Veh. Code, 40302, 40303), and (3) those who are arrested for felonies and booked according to the general Penal Code provisions on felony arrests (Veh. Code, 40301; Pen. Code, 7, subd. 21).

[3] Classification into one of the foregoing categories is essential to analysis, since both the justification and the scope of a weapons search incident to an arrest are dependent on the relative danger to the officer presented by each type. Here, while it is clear that defendant's arrest could not be placed in the third category, it is arguably similar to either of the remaining two. The officers' intention prior to the discovery of the contraband was simply to cite defendant for his fire code violation and allow him to continue on his way. The analogy to procedures followed [13 Cal.3d 537] under Vehicle Code sections 40500 and 40504 is apparent. Yet to accomplish this result in the case at bar it was necessary for the officers to travel in close proximity with defendant for a considerable period of time, substantially increasing the risk to the officers if in fact defendant were armed. The situation thus appears more akin to that in which an officer transports a suspect before a magistrate, even if bond can then be posted and a prebooking search avoided.

In the latter instance a "pat-down" or limited search for weapons is permissible; in the former it is not. As Chief Justice Wright explained in his concurring opinion in Simon (7 Cal.3d at p. 214): "When it becomes necessary that an officer confine a traffic law violator within his police vehicle, the officer risks the danger that the violator may be armed with and draw a weapon. This danger is not necessarily eliminated by handcuffing the traffic law violator as he may still be able to reach a weapon secreted on his person. And, incident to the entire process of transportation, it may be impossible for the officer to keep the violator under constant surveillance by reason of the requirements of driving the vehicle and other responsibilities. fn. 8 In my opinion, the specifically articulable fact of the increased danger to the officer reasonably warrants the limited or relatively minor intrusion of the pat-down search in those instances when traffic law violators are transported to a magistrate pursuant to the provisions of Vehicle Code sections 40302 or 40303."

We agree with this reasoning. fn. 9 [4] We conclude that where, as here, the exigencies of the situation require that officers travel in close proximity with arrestees, a limited weapons search is permissible even though the charge will ultimately be disposed of by a mere citation. In so holding we are mindful of "the dangers daily faced by the men who bear the burden of policing our streets and highways, and of the fact that even a minor ... citation incident can occasionally erupt into violence." [13 Cal.3d 538] (People v. Superior Court (1970) supra, 3 Cal.3d 807, 829.) Each case must be decided on its own facts (id., at p. 827; People v. Ingle (1960) 53 Cal.2d 407, 412 [2 Cal.Rptr. 14, 348 P.2d 577]), and there is "no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails." (Terry v. Ohio (1968) 392 U.S. 1, 20-21 [20 L.Ed.2d 889, 905, 88 S.Ct. 1868].) Here the officers' interest in protecting themselves while escorting unknown arrestees in a primitive location in the nighttime outweighed defendant's interest in protecting his person and effects from search. Under the circumstances, a pat-down search for weapons was authorized.

IV

[5] But this conclusion does not end our inquiry, for it is well settled that "a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope." (Terry v. Ohio (1968) supra, 392 U.S. 1, 17-18 [20 L.Ed.2d 889, 903-904].) The issue is thus dual: "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." (Id., at p. 20 [20 L.Ed.2d at p. 905].)

Defendant contends that the search of his knapsack exceeded the legitimate purpose for which a search was authorized. Yet rather than presenting a single "scope" issue the search of the pack poses three such problems, a fact only cursorily alluded to by either party. The first is the question of the validity of any search of defendant's effects, including the pack; second, the search of the interior of the pack; and third, the search of the bottle and envelopes containing the contraband. As each involves different considerations we will discuss them seriatim.

A

The People cite Chimel v. California (1969) 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034], for the proposition that "it is reasonable for the arresting officer to search the person arrested or an area within which he might reach for weapons in order to remove any weapons the latter might seek to use in order to resist arrest or effect escape." The People recognize that in traffic violation cases such a search must be predicated on specific facts or circumstances giving the officer reasonable grounds to believe that weapons are present. (People v. Superior Court (1970) supra, 3 Cal.3d 807, 829; Simon, at p. 206 of 7 Cal.3d.) Since the knapsack was [13 Cal.3d 539] within defendant's area of control at the time of the arrest, fn. 10 and since the arrest was for a nontraffic offense, it is urged that the search of the pack was per se justified by the fact of the arrest.

Defendant contends that Chimel is inapposite, and that even assuming the right to search his person for weapons, the pat-down of the pack was not authorized because (1) there was no evidence the pack contained weapons and (2) if the officers feared the possibility that a weapon was contained therein they should have simply removed the pack from his area of control.

Preliminarily, it should be noted that the traditional rationale of warrantless searches incident to arrests is the two-fold need to uncover evidence of the crime and weapons which might be used to injure the arresting officer or effect an escape. (Preston v. United States (1964) 376 U.S. 364, 367 [11 L.Ed.2d 777, 780, 84 S.Ct. 881]; United States v. Rabinowitz (1950) 339 U.S. 56, 72-75 [94 L.Ed. 653, 663-665, 70 S.Ct. 430]; Agnello v. United States (1925) 269 U.S. 20, 30 [70 L.Ed. 145, 148, 46 S.Ct. 4, 51 A.L.R. 409].) According to one writer, "a thorough search of the case law reveals no other justifications for warrantless searches incident to arrest which do not collapse upon careful inspection into one of the two bases." (Note, Scope Limitations for Searches Incident to Arrest (1969) 78 Yale L.J. 433, 434, fn. 12.) This basic limitation was reaffirmed in Chimel: "When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape .... In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule." (Chimel v. California (1969) supra, 395 U.S. 752, 762-763 [23 L.Ed.2d 685, 694].)

In the present case there could, of course, be no basis for a belief that the search of the pack would disclose evidence of the crime. The charge was maintaining an illegal campfire, and as with traffic violations, there can be neither "instrumentalities" nor "fruits" of that offense. Thus the only possible rationale for a search of defendant's knapsack was to uncover weapons. [13 Cal.3d 540]

Similarly, we see no difference between traffic cases and the instant matter in terms of requiring the officer to point to the specific reasons why he believes weapons may be present. [6] Defendant was arrested for one of the most minor of nontraffic violations -- a mere citation offense.  In such a case the fact of the arrest does not justify a search of the belongings of the person cited: there can be no instrumentalities and there can be no fruits, and absent some showing on the part of the officer that he has good cause to fear for his safety, there can be no weapons search.

In the case at bar, however, the specific, articulable facts required to justify the latter search were shown. As discussed above, the nature of the terrain, the lateness of the hour, and the unknown capabilities of the campers could well have given a prudent officer cause to take reasonable precautions. For this reason we concluded that a pat-down of the persons of the arrestees was authorized. These considerations also validate a limited search of any effects (1) which must necessarily have accompanied this caravan out of the wilderness, and (2) which there was no ready means of withholding from the arrestees during the journey. It would indeed be unwise to forbid an officer to ascertain by the least intrusive means possible whether containers such as the knapsack in the present case harbored a deadly weapon. Were the container a paper or plastic bag, a simple squeeze would be adequate for this purpose. But to allow the arrestee to carry the bag, and at the same time to deny the officer an opportunity to determine if its contents are dangerous, would be a patently unwarranted exposure of the officer to potential harm. On balance we see no reason to exalt the interest of the arrestee in remaining free of the relatively minor intrusion of a pat-down of his belongings over that of the officer who must travel with those belongings under the physically difficult circumstances presented here.

But defendant suggests there was no necessity for the deputies to be concerned about the contents of the knapsack: if they feared for their safety during the search of defendant's person, it is argued, they need only have removed the pack from his area of control; and if they experienced a like fear concerning the trip back they should simply have given defendant the option of leaving the pack at the site, unsearched.

The counterargument that it was necessary to carry the pack out in order to protect it from theft is unsound. In People v. Miller (1972) 7 Cal.3d 219, 223-224 [101 Cal.Rptr. 860, 496 P.2d 1228], we rejected that contention in the context of personal property of considerably more value and in an area of considerably higher risk of theft than the instant [13 Cal.3d 541] case. fn. 11 It is true that in Miller the defendant expressly forbade the police to remove his property for "safekeeping," while here it is uncertain from the record whether the campers were ever given the option of objecting. However, we do not regard this as a valid distinction. In Mozzetti v. Superior Court (1971) 4 Cal.3d 699 [94 Cal.Rptr. 412, 484 P.2d 84], the automobile in question was searched following the defendant driver's emergency hospitalization after a traffic accident, and it is clear there was also no opportunity for objection. Accordingly, a search of the knapsack in the present case cannot be justified on the theory that it was necessary to remove it from the area in order to secure it from theft.

But a far more persuasive justification is available in the very illegality of the campsite itself. If defendant had been camped legally and it was necessary to temporarily remove him from the area for a citation unrelated to his presence in the forest, we might well be persuaded that he could demand his effects remain at the camp, unsearched, pending his return. Yet it is clear that the very existence of a campsite at this location was a violation of a county ordinance. Thus the officers were well within their authority in insuring that the violation cease. This included the breaking of camp, the extinguishing of the fire, and the removal of sleeping bags and other camping equipment from the area. Defendant's knapsack was just one of the many items at the site which could be cursorily examined by means of pat-down under the peculiar circumstances presented.

Once again we emphasize that in reviewing a warrantless search to determine the reasonableness of its breadth a court is ill-advised to apply hard and fast rules. Rather we must be concerned, in a case-by-case analysis, with whether the extent of the search exceeded the attainment of the objectives which justified its inception. [7] Here we have found that under the circumstances (1) the officers had a legitimate apprehension for their safety; (2) there was a necessity to escort the arrestees a considerable distance over primitive terrain in the nighttime; (3) it was also necessary that the effects of the arrestees accompany them; and (4) there was no practical way the officers could have negotiated the difficult trek back and at the same time assure that the arrestees would not be able to gain access to a weapon secreted in their gear. Under these facts, a pat-down search of defendant's pack was authorized. [13 Cal.3d 542]

B

[8] Assuming the pat-down of the knapsack was allowable, however, the next query is directed to the search of its interior. The People contend that "where there will be continued accessibility to a large knapsack by an arrested party and the resilience of the knapsack frustrates the effectability of its pat-down, then the officer is warranted in searching the inside of the knapsack for weapons." Officer Denney testified that when he touched the knapsack it felt "substantially solid," that he was unable to determine its contents by squeezing, and that the pocket of the pack was at least large enough to have contained a .22 caliber pistol.

The sole justification for such a search is "the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." (Terry v. Ohio (1968) supra, 392 U.S. 1, 29-30 [20 L.Ed.2d 889, 910-911].) In the ordinary Terry-type pat-down, occurring as it does in the context of a street frisk, an intrusion further than the outer clothing of the suspect is allowable only if the initial limited exploration discloses potential instruments of assault. (Sibron v. New York (1968) 392 U.S. 40, 44-45 [20 L.Ed.2d 917, 924-925, 88 S.Ct. 1889].) To properly exceed the scope of a pat-down the officer must be able to point to "specific and articulable facts reasonably supporting his suspicion" that the suspect is armed. (People v. Collins (1970) 1 Cal.3d 658, 662 [83 Cal.Rptr. 179, 463 P.2d 403].) The burden of establishing these facts rests with the People. (Ibid., citing People v. Johnson (1968) 68 Cal.2d 629, 632 [68 Cal.Rptr. 441, 440 P.2d 921].)

There seems to be no reported case in this state dealing with the precise issue of the permissible scope of a search of belongings of an arrestee which in its inception was limited to a pat-down. Thus it is incumbent upon us once again to examine the parameters in light of the rationale which originally justified the search.

In the ordinary pat-down circumstances the clothing of the person is seldom, if ever, so resistant or resilient as to prevent the police from determining whether there are weapons present. But if in some unique fact pattern such were the case, we would likely be persuaded that a limited further intrusion was necessary. To do otherwise would be to make the unreasonable demand that an officer allow a potentially armed suspect to enter his patrol car. We noted above that even in the [13 Cal.3d 543] ordinarily innocuous confrontation between an officer and a traffic arrestee who is to be transported before a magistrate, there is the possibility of violence. As said in Simon, "The critical factor in these or similar situations is not the greater likelihood that a person taken into custody is armed, but rather the increased likelihood of danger to the officer if in fact the person is armed." (7 Cal.3d at p. 214; Wright, C. J., concurring.)

Here, as we have noted, it was necessary that the knapsack accompany the officers out of the area. Yet a simple pat-down of its exterior proved insufficient to allay the fear that the interior might contain a weapon. None of the campers had identification, and as Officer Denney testified, there was no way of ascertaining whether they were "wanted personnel." If the suspects were indeed wanted and fearful of the warrant check by radio that would likely occur upon reaching the patrol car, then the journey back might well provide their last opportunity for escape. Under these circumstances, therefore, the deputies were justified in protecting themselves by looking into the interior of the knapsack for weapons.

C

When Officer Denney opened the side pocket of the knapsack he found a frosted, opaque plastic bottle and a pair of envelopes. Because of the translucent but nontransparent nature of the bottle, the People could not rely on the exception to the warrant requirement for objects or contraband found in plain view. (Compare People v. Block (1971) 6 Cal.3d 239 [103 Cal.Rptr. 281, 499 P.2d 961] [contraband found in clear plastic vial during valid search of premises for additional suspects].)

Nor can the People's burden be discharged by the assertion that the bottle and envelopes might possibly contain unusual or atypical weapons. In People v. Collins (1970) supra, 1 Cal.3d 658, we rejected that contention as applied to a "little lump" felt during the course of a pat-down. We there expressly disapproved of the approach taken in People v. Armenta (1968) 268 Cal.App.2d 248, 251 [73 Cal.Rptr. 819], in which it was fancifully theorized that such a soft object might have been a "'rubber water pistol loaded with carbolic acid.'" Collins made explicit the rule that "an officer who exceeds a pat-down without first discovering an object which feels reasonably like a knife, gun, or club must be able to point to specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical [13 Cal.3d 544] weapon which would feel like the object felt during the pat-down." (1 Cal.3d at p. 663.)

Conversely, of course, if the pat-down discloses an object which reasonably feels like a weapon, further intrusion may be necessary and permissible. Thus in People v. Mosher (1969) 1 Cal.3d 379 [82 Cal.Rptr. 379, 461 P.2d 659], a Terry-type pat-down of a burglary suspect revealed a "sharp object like a knife blade." On further investigation the object was found to be a watch band belonging to a murder victim. Yet while upholding the search in that instance we were careful to distinguish the "knife blade" there from "A box of matches, a plastic pouch, a pack of cigarettes, a wrapped sandwich, a container of pills, a wallet, coins, folded papers and many other small items ... [which] do not ordinarily feel like weapons." (Id., at p. 394.)

If such ordinary objects are not to be intruded upon when felt, then a fortiori such intrusion is unjustified when the commonplace is seen. Here Officer Denney found a bottle approximately the size of a pill container, together with a manila envelope and an airmail envelope. Perhaps if the envelopes had been large enough and bulky enough to have contained weapons we would be persuaded that it would not have been unreasonable to feel their contents by squeezing them. However, that is not what occurred. Officer Denney unscrewed the bottle and found marijuana; he opened the envelopes and found tablets of restricted drugs. No one can rationally maintain that such actions were necessary for his protection. fn. 12

To briefly summarize our holding: Typically in cases of warrantless weapons searches the police must be able to point to specific and articulable facts which reasonably justify a belief that the suspect is [13 Cal.3d 545] armed. In the ordinary citation situation the fact of the arrest alone will not supply this justification and additional facts must be shown. In the case of transportation in the police vehicle, however, or in the analogous circumstance here, the necessity of close proximity will itself provide the needed basis for a protective pat-down of the person. To intrude further than a pat-down, the officer must provide additional specific and articulable facts necessitating the additional intrusion.

Here these additional facts were present by reason of the necessity that the campers' effects accompany the officers and the impossibility of securing them in a place where access was precluded. Thus the officers could go beyond a pat-down of the outer clothing and conduct a similarly limited search of the relevant items. Indeed, even an inquiry into the interior of the pack was permissible when the pat-down of the exterior proved impractical. But once confronted with a purely innocent interior it was again incumbent upon the officers to explain why still further intrusion was required. As to such explanation, the record is silent.

[9] Accordingly, since the contraband was illegally seized in violation of article I, section 13, of the California Constitution, we hold that it was erroneously received in evidence. (People v. Cahan (1955) 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513].) Inasmuch as it constituted the sole evidence against defendant, its admission was prejudicial error and the judgment (order granting probation) must be reversed.

V

The People finally contend that notwithstanding the invalidity of the search under California law, the recent United States Supreme Court cases of United States v. Robinson (1973) 414 U.S. 218 [38 L.Ed.2d 427, 94 S.Ct. 467], and Gustafson v. Florida (1973) 414 U.S. 260 [38 L.Ed.2d 456, 94 S.Ct. 488], "should be dispositive of any question regarding the permissible scope of the search herein." [10] We disagree. Whether or not the instant case is distinguishable from Robinson-Gustafson, as defendant claims, we note that those cases were decided under the Supreme Court's view of the minimum standards required in order to satisfy the Fourth Amendment's proscription of unreasonable searches. Our holding today is based exclusively on article I, section 13, of the California Constitution, which requires a more exacting standard for cases arising within this state. [13 Cal.3d 546]

A

In Robinson the defendant was arrested for driving a motor vehicle after his license had been revoked. A full field search was made and contraband was found in a crumpled cigarette package in his pocket. fn. 13 Although Robinson's right to post bond at the station cannot be determined from the Supreme Court opinion, the Court of Appeals had noted that "he was clearly entitled to post either cash or bail bond and, upon doing so, to be released immediately, without any stationhouse confinement or incident search of his person." (United States v. Robinson (1972) 471 F.2d 1082, 1102-1103 [153 App.D.C. 114].) fn. 14

If such an arrest had occurred in California the officer would have been limited to a pat-down prior to transporting the defendant in the patrol vehicle. (Veh. Code, 40303, subd. (h).) As discussed exhaustively in Simon and hereinabove, the only possible rationale for any search in such circumstances would be the self-protective need of the officer to determine if the arrestee were armed. There can be neither "instrumentalities" nor "fruits" of the offense of driving after revocation of an operator's license. Similarly, a search of the cigarette package could not be justified on the theory that it might possibly contain an atypical weapon, unless the officer were able to articulate facts supporting such a belief.

However, the court in Robinson remained unmoved by these considerations [13 Cal.3d 547] and held that "The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment." (414 U.S. at p. 235 [38 L.Ed.2d at pp. 440-441].)

In the present case we have analogized the need to search Brisendine's knapsack to the search of a traffic arrestee who is to be transported before a magistrate and given the opportunity to post bond. In both circumstances we have recognized the legitimate concern of the officer in insuring that the suspect is unarmed. In neither instance would we allow intrusion into effects which could not possibly contain weapons, absent a showing of reasonable suspicion of the presence of an atypical weapon. The Supreme Court has taken like facts and reached a contrary result. In choosing between these irreconcilable rules we cannot accept the Robinson implication that "an individual lawfully subjected to a custodial arrest retains no significant Fourth Amendment interest in the privacy of his person." (414 U.S. at p. 237 [38 L.Ed.2d at p. 441]; Powell, J. concurring.) Whatever may be the merit of that view when an individual is ultimately to be booked and incarcerated -- a question not presented here -- we find it inappropriate in the context of an arrestee who will never be subjected to that process. fn. 15 [13 Cal.3d 548]

B

There remains for consideration whether we should adhere to our precedential decisions on this point even though they impose a higher standard than is now required by Robinson. Our right to do so cannot be seriously questioned. In Cooper v. California (1967) 386 U.S. 58, 62 [17 L.Ed.2d 730, 734, 87 S.Ct. 788], the Supreme Court recognized this well-known principle: "Our holding, of course, does not affect the State's power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so." Moreover, "[e]ven though a state court's opinion relies on similar provisions in both the State and Federal Constitutions, the state constitutional provision has been held to provide an independent and adequate ground of decision depriving this Court of jurisdiction to review the state judgment." (Jankovich v. Indiana Toll Road Comm'n (1965) 379 U.S. 487, 491-492 [13 L.Ed.2d 439, 443, 85 S.Ct. 493].) fn. 16 [11] In short, the Supreme Court has clearly recognized that state courts are the ultimate arbiters of state law, even textually parallel provisions of state constitutions, unless such interpretations purport to restrict the liberties guaranteed the entire citizenry under the federal charter.

This court has always assumed the independent vitality of our state Constitution. In the search and seizure area our decisions have often comported with federal law, yet there has never been any question that this similarity was a matter of choice and not compulsion. As Chief Justice Wright stated in People v. Triggs (1973) 8 Cal.3d 884, 892, footnote 5 [106 Cal.Rptr. 408, 506 P.2d 232]: "At least since the advent of Wolf v. Colorado (1949) 338 U.S. 25 [93 L.Ed. 1782, 69 S.Ct. 1359], we have treated the law under article I, section 19 [now 13], of our state Constitution as 'substantially equivalent' to the Supreme Court's construction [13 Cal.3d 549] of the Fourth Amendment. (See Blair v. Pitchess (1971) 5 Cal.3d 258, 270-271, fn. 6 [96 Cal.Rptr. 42, 486 P.2d 1242, 47 A.L.R.3d 1206].) On at least one occasion, however, we have expressly departed from the federal rule to afford defendants a broader security against unreasonable searches and seizures than that required by the Supreme Court. (See People v. Martin (1955) 45 Cal.2d 755, 759-761 [290 P.2d 855] [vicarious exclusionary rule].) [12] In interpreting our state Constitution, we of course retain the 'power to impose higher standards on searches and seizures than required by the Federal Constitution.' (Cooper v. California (1967) 386 U.S. 58, 62 [17 L.Ed.2d 730, 734, 87 S.Ct. 788].)" (See generally Falk, The State Constitution: A More Than "Adequate" Nonfederal Ground (1973) 61 Cal.L.Rev. 273.)

In Martin, this court interpreted the exclusionary rule adopted in People v. Cahan (1955) supra, 44 Cal.2d 434, to apply vicariously. Cahan itself was decided six years before the exclusionary rule was made binding on the states in Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2d 1081, 81 S.Ct. 1684, 84 A.L.R.2d 933]. Our vicarious exclusionary rule has never been required under the Fourth Amendment (see Alderman v. United States (1969) 394 U.S. 165, 171-176 [22 L.Ed.2d 176, 185-188, 89 S.Ct. 961]) but has been a continuing feature of California law under our ability to impose higher standards for searches and seizures than compelled by the federal Constitution. (Kaplan v. Superior Court (1971) 6 Cal.3d 150, 155 [98 Cal.Rptr. 649, 491 P.2d 1].) fn. 17

[13] The foregoing cases illustrate the incontrovertible conclusion that the California Constitution is, and always has been, a document of [13 Cal.3d 550] independent force. Any other result would contradict not only the most fundamental principles of federalism, but also the historic bases of state charters. It is a fiction too long accepted that provisions in state constitutions textually identical to the Bill of Rights were intended to mirror their federal counterpart. The lesson of history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state constitutions, rather than the reverse. "By the end of the Revolutionary period, the concept of a Bill of Rights had been fully developed in the American system. Eleven of the 13 states (and Vermont as well) had enacted Constitutions to fill in the political gap caused by the overthrow of British authority. ... [] ... Eight of the Revolutionary Constitutions were prefaced by Bills of Rights, while four contained guarantees of many of the most important individual rights in the body of their texts. Included in these Revolutionary constitutional provisions were all of the rights that were to be protected in the federal Bill of Rights. By the time of the Treaty of Paris (1783) then, the American inventory of individual rights had been virtually completed and included in the different state Constitutions whether in separate Bills of Rights or the organic texts themselves." (Italics added.) (1 Schwartz, The Bill of Rights: A Documentary History (1971) p. 383; see generally 2 id., p. 1204.) In particular, the Rights of the Colonists (Boston, 1772) declared for the first time "the right against unreasonable searches and seizures that was to ripen into the Fourth Amendment" (1 id., at pp. 199, 206), and that protection was embodied in every one of the eight state constitutions adopted prior to 1789 which contained a separate bill of rights (1 id., at pp. 235, 265, 278, 282, 287, 323, 342, 377). fn. 18

We need not further extend this opinion to trace to their remote origins the historical roots of state constitutional provisions. Yet we have no doubt that such inquiry would confirm our view of the matter. The federal Constitution was designed to guard the states as sovereignties against potential abuses of centralized government; state charters, however, were conceived as the first and at one time the only line of protection of the individual against the excesses of local officials. Thus in [13 Cal.3d 551] determining that California citizens are entitled to greater protection under the California Constitution against unreasonable searches and seizures than that required by the United States Constitution, we are embarking on no revolutionary course. Rather we are simply reaffirming a basic principle of federalism -- that the nation as a whole is composed of distinct geographical and political entities bound together by a fundamental federal law but nonetheless independently responsible for safeguarding the rights of their citizens.

The ultimate confirmation of our conclusion occurred, finally, when the people adopted article I, section 24, of the California Constitution at the November 1974 election, declaring that "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." Of course this declaration of constitutional independence did not originate at that recent election; indeed the voters were told the provision was a mere reaffirmation of existing law. fn. 19

Principles comparable to the foregoing were recently invoked by the Hawaii Supreme Court to invalidate under the Hawaii Constitution a search which would have been permissible under Robinson. (State v. Kaluna (1974) 55 Hawaii 361 [520 P.2d 51]; cf. also People v. Copeland (1974) 77 Misc.2d 649 [354 N.Y.S.2d 399], and People v. Kelly (1974) 77 Misc.2d 264 [353 N.Y.S.2d 111] [holding that a state may impose higher standards under the Fourth Amendment than required by Robinson].) The defendant in Kaluna, a woman, was arrested on suspicion of attempted robbery. At the police station she was searched by a matron preparatory to being placed in custody. The matron opened a small piece of folded tissue paper secreted in the defendant's brassiere and discovered four Seconal capsules.

For reasons similar to those we articulated in Simon, the court held that the search violated a provision of the Hawaii Constitution (art. I, 5) essentially identical to the Fourth Amendment and article I, section 13, of our state charter. (520 P.2d at pp. 55-57.) The court then considered the impact of Robinson and Gustafson, but declined to adopt their rule on the ground that the state Constitution afforded a higher degree of protection to persons within its jurisdiction: "In our interpretation of the United States Constitution, of course, we are bound to follow applicable pronouncements by the United States Supreme Court. There is no doubt that the search conducted in this case was reasonable under [13 Cal.3d 552] the fourth amendment as construed in Robinson and Gustafson. We have already indicated that the defendant's search at the police station was incident to her custodial arrest; assuming that arrest to be lawful, the search of her body and all personal effects in her possession did not violate her federal constitutional rights since 'the fact of [her] lawful arrest' [Robinson, at p. 235 of 414 U.S. (38 L.Ed.2d P. 440)] alone gave the police plenary authority to subject her to a detailed search.

"However, as the ultimate judicial tribunal in this state, this court has final, unreviewable authority to interpret and enforce the Hawaii Constitution. We have not hesitated in the past to extend the protections of the Hawaii Bill of Rights beyond those of textually parallel provisions in the Federal Bill of Rights when logic and a sound regard for the purposes of those protections have so warranted. See State v. Santiago, 53 Haw. 254, 265, 492 P.2d 657, 664 (1971). In our view, the right to be free of 'unreasonable' searches and seizures under article I, section 5 of the Hawaii Constitution is enforceable by a rule of reason which requires that governmental intrusions into the personal privacy of citizens of this State be no greater in intensity than absolutely necessary under the circumstances." (Fns. omitted.) (Id., at pp. 58-59.) The court further explained that although its holding "results in a divergence of meaning between words which are the same in both the federal and state constitutions, the system of federalism envisaged by the United States Constitution tolerates such divergence where the result is greater protection of individual rights under state law than under federal law. [Citation.] In this respect, the opinion of the United States Supreme Court on the meaning of the phrase 'unreasonable searches and seizures' is merely another source of authority, admittedly to be afforded respectful consideration, but which we are free to accept or reject in establishing the outer limits of protection afforded by article I, section 5 of the Hawaii Constitution." (Id., at p. 58, fn. 6.)

For all the foregoing reasons Robinson is not controlling here. Rather, we reaffirm and follow the decisions, exemplified by Simon, which impose a higher standard of reasonableness under article I, section 13, of the California Constitution.

The judgment (order granting probation) is reversed.

Wright, C. J., Tobriner, J., and Sullivan, J., concurred. [13 Cal.3d 553]

BURKE, J.

The majority holds that the contraband was obtained by an unreasonable search and seizure in violation of article I, section 13, of our state Constitution -- that the foregoing constitutional provision imposes a different standard of reasonableness than that enunciated by the United States Supreme Court under the Fourth Amendment of the federal Constitution (United States v. Robinson, 414 U.S. 218 [38 L.Ed.2d 427, 94 S.Ct. 467]; Gustafson v. Florida, 414 U.S. 260 [38 L.Ed.2d 456, 94 S.Ct. 488]), which amendment is essentially identical in language to article I, section 13, of our state Constitution. In my opinion those decisions by the United States Supreme Court are highly persuasive as to the standard of reasonableness imposed by article I, section 13, and should be followed. Under the reasoning of those cases, as we shall see, the instant search and seizure were reasonable.

United States v. Robinson, supra, 414 U.S. 218, concluded that the Fourth Amendment did not bar admission in evidence of heroin found in a crumpled cigarette package removed from the defendant's pocket by an officer during a field search following defendant's "lawful custodial arrest" for driving after his license was revoked. The United States Supreme Court stated that it was not "inclined, on the basis of what seems to us to be a rather speculative judgment, to qualify the breadth of the general authority to search incident to a lawful custodial arrest on an assumption that persons arrested for the offense of driving while their licenses have been revoked are less likely to possess dangerous weapons than are those arrested for other crimes." (Id., at p. 234 [38 L.Ed.2d at p. 440].) The court pointed out that "The danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress and uncertainty, and not from the grounds for arrest" (id., at p. 234, fn. 5 [38 L.Ed.2d at p. 440]) and that "It is scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry-type stop. This is an adequate basis for treating all custodial arrests alike for purposes of search justification." (Id., at pp. 234-235 [38 L.Ed.2d at p. 440].) It is clear from Robinson that the limitations placed by Terry v. Ohio, 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868], on protective searches conducted in an investigatory stop situation based on less than probable cause are not to be carried over to searches made incident to lawful custodial arrests. [13 Cal.3d 554]

Robinson further declared, "The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment." (414 U.S. at p. 235 [38 L.Ed.2d at pp. 440-441].)

Gustafson v. Florida, supra, 414 U.S. 260, followed the principles enunciated in Robinson and concluded that certain factual differences between the two cases were not determinative of the constitutional issue.

The United States Supreme Court did not define the term "custodial arrest" in either Robinson or Gustafson. fn. 1 In Robinson it was conceded that the officer effected a "full custody arrest," and Robinson stated that, since the officer made such an arrest, it was unnecessary to reach the question of the law where the officer makes a "'routine traffic stop,' i.e., where the officer would simply issue a notice of violation and allow the offender to proceed." (414 U.S. at p. 236, fn. 6 [38 L.Ed.2d at p. 441].) The foregoing statement indicates that something more than stopping a traffic violator and issuing him a citation is required in order to have a "custodial arrest." In Gustafson the officer placed the defendant "under arrest for failure to have his vehicle operator's license in his possession" and "took [him] into custody in order to transport him to the stationhouse for further inquiry" (414 U.S. at p. 262 [38 L.Ed.2d at p. 459]). In neither Robinson nor Gustafson does it appear that the arrest was for a type of offense that would necessarily lead to the arrestee's incarceration. fn. 2 [13 Cal.3d 555]

Before Robinson and Gustafson this court held in People v. Superior Court (Simon) 7 Cal.3d 186, 208-211 [101 Cal.Rptr. 837, 496 P.2d 1205], that a full body search of a person arrested for an ordinary traffic violation could not be justified as an incident to the officer's decision to take him into custody for transportation before a magistrate. Robinson and Gustafson are contrary to Simon, as the majority recognizes. The majority seeks to avoid the impact of those United States Supreme Court decisions by now declaring that Simon, which mentions only the Fourth Amendment of the federal Constitution, was in fact based on our state constitutional provision against unreasonable searches and seizures. Even if it be assumed that Simon was so based, it does not follow that we should continue to interpret that state constitutional provision, which is essentially identical in language to the Fourth Amendment, fn. 3 in a manner different from the United States Supreme Court's interpretation of the Fourth Amendment.

Decisions of the United States Supreme Court as to the meaning of language in a federal constitutional provision are strongly persuasive as to what interpretation should be placed upon similar language in a state Constitution (see, e.g., Cohen v. Superior Court, 173 Cal.App.2d 61, 67 [343 P.2d 286]; Pickett v. Matthews, 238 Ala. 542 [192 So. 261, 265-266]; City of Portland v. Thornton, 174 Ore. 508 [149 P.2d 972, 973]), and are generally followed (see, e.g., People v. Jackson, 22 Ill.2d 382 [176 N.E.2d 803, 805]; Sperry & Hutchinson Co. v. State, 188 Ind. 173 [122 N.E. 584, 587]; City of Tacoma v. Heator, 67 Wn.2d 733 [409 P.2d 867, 869]; 21 C.J.S., Courts, 205, p. 363). To have two sets of rules under essentially identical constitutional provisions would create confusion. (See Blubaugh, A Philosophical Struggle Within The Supreme Court, (Nov. 1974) Cal.J. 382, 383-384 [view of Wright, C. J.].)

Robinson and Gustafson manifestly afford greater protection to law enforcement officers than do Simon and the instant majority opinion. fn. 4 [13 Cal.3d 556] But, states the majority, "we cannot accept the Robinson implication that 'an individual lawfully subjected to a custodial arrest retains no significant Fourth Amendment interest in the privacy of his person.' (414 U.S. at p. 237 [38 L.Ed.2d at p. 441]; Powell, J. concurring.)" That implication, however, appears to have been expressly or impliedly accepted by six justices of the highest court in this land. The majority herein points to no condition peculiar to California warranting a different view in this state.

The majority notes that our state Constitution declares that "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." (Cal. Const., art. I, 24.) That declaration, however, does not mean that provisions of our state Constitution should be given a different interpretation than that given by the United States Supreme Court to essentially identical provisions of the federal Constitution.

Two states, the majority notes, have declined to follow Robinson and Gustafson. A number of other states, however, have followed those decisions. (Sizemore v. State (Ind.App.) 308 N.E.2d 400, 406; State v. Cromwell (Mo.App.) 509 S.W.2d 144, 146; Hughes v. State (Okla.Crim.) 522 P.2d 1331, 1333; see State v. Mabra, 61 Wis.2d 613 [213 N.W.2d 545, 550-551].) Hughes stated that the provisions of the Oklahoma Constitution relating to search and seizure and the Fourth Amendment are identical, that therefore in determining the legality of the search and seizure there in question the court must look to decisions of the United States Supreme Court interpreting the Fourth Amendment, and that under the reasoning of Robinson and Gustafson the search and seizure did not violate the state Constitution. [13 Cal.3d 557]

Although in interpreting our state Constitution we may not be bound by Robinson and Gustafson, those decisions are highly indicative that the above stated holding in Simon was not required by the considerations underlying the exclusionary rule. I would follow Robinson and Gustafson and overrule Simon and other California cases in accord with Simon insofar as they are contrary to Robinson and Gustafson. fn. 5

I turn next to whether this case differs in any significant respect from Robinson and Gustafson. Defendant seeks to distinguish this case from those decisions on the ground that, assertedly, there was no "lawful custody arrest" here. I do not agree that there was not such a custodial arrest in this case. The record shows that defendant and his three companions were arrested for camping in a prohibited area and having an open campfire in violation of a county ordinance and that they were to be escorted by the two officers three-quarters of a mile over rough terrain to the patrol car since camping was prohibited in the area and the officers' citation books were in the patrol car. In my opinion the arrests constituted custodial arrests. Here, as in Gustafson and Robinson, there was extended exposure of the officers to danger rather than the "relatively fleeting contact resulting from the typical Terry-type stop" (see United States v. Robinson, supra, 414 U.S. 218, 235 [38 L.Ed.2d 427, 440]). And the arrests were lawful. Although defendant asserts that the officers lacked "probable cause to arrest," he does not elaborate on that assertion, and, since he concedes in his brief that the campfire was "illegal" and since the officers observed him and his companions in sleeping bags by the campfire, it is apparent that they had probable cause for the arrests for an illegal campfire. Probable cause exists "when the facts and circumstances within the knowledge of the officers at the moment of the arrest are sufficient to warrant a prudent man in believing that the defendant has committed an offense." (Beck v. Ohio, 379 U.S. 89, 96 [13 L.Ed.2d 142, 147-148, 85 S.Ct. 223]; People v. Talley, 65 Cal.2d 830, 835 [56 Cal.Rptr. 492, 423 P.2d 564].) Moreover, there was also probable cause for the arrests for illegal camping. [13 Cal.3d 558]

Defendant next points to the fact that both Robinson and Gustafson involved a search of a person whereas here we are concerned with a search of a knapsack. However, the two officers could not reasonably be expected to act as porters for the knapsack and other camping gear of the four arrestees, and, as the majority recognizes, the officers were well within their authority in insuring that the arrestees' violations cease and this included, inter alia, the removal of the knapsack and other camping gear. Under the circumstances the knapsack amounted to "an extension of [the] person[s]" of the arrestees and was subject to a search. (People v. Belvin, 275 Cal.App.2d 955, 958-959 [80 Cal.Rptr. 382].) It is immaterial that the knapsack was not on the immediate person of any arrestee at the moment of the arrests. (People v. Belvin, supra.)

Having in the course of a lawful search of the knapsack come across the bottle and envelopes, the officer was entitled to inspect them (cf. United States v. Robinson, supra, 414 U.S. 218, 236 [38 L.Ed.2d 427, 441]; Gustafson v. Florida, supra, 414 U.S. 260, 266 [38 L.Ed.2d 456, 461]), and when that inspection revealed contraband he was entitled to seize it (United States v. Robinson, supra; Gustafson v. Florida, supra). In my opinion under the reasoning of Robinson and Gustafson the search and seizure were reasonable fn. 6 and the superior court properly denied the motion to suppress. I would affirm the order granting probation.

McComb, J., and Clark, J., concurred.

―FN 1. The record does not disclose the circumstances of Bartels' arrest.

―FN 2. These facts are clear from the testimony of the officers:

"Q: And was it your intention initially upon approaching to issue notices to appear to all the four subjects for the illegal open fire? A. [Officer Norman] Yes, sir. It would have been necessary to bring them back to our patrol vehicle. We didn't bring cite books with us.

"* * *

"Q. Well, my question is why did you decide to take them out of the Deep Creek area at all? A. [Officer Denney] Well, there is no overnight camping down there. There is a sign posted at the entrance into Deep Creek, 'No overnight camping.'

"Q. So even if you had cited them, you would have removed them from the vicinity of the Deep Creek, am I correct? A. Yes, sir. We have done this many times."

―FN 3. Article I, section 13 (former art. I, 19), provides: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized."

―FN 4. As a threshold matter we observe that the burden of justifying the warrantless search in the case at bar was on the prosecution. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272 [294 P.2d 23].)

―FN 5. The search included all the clothing, sleeping bags, and gear of the campers. The area was also searched for additional suspects. One of defendant's companions testified that the officers looked under the rocks of the campfire and shone lights in the water of the nearby stream.

―FN 6. These potential weapons were a hunting knife and a camping hatchet which were stuck in a log within arm's reach of one of defendant's companions. The items remained in the log throughout the search, and were carried back by the campers.

―FN 7. This fact alone has been cause in other cases to bring into question the legitimacy of an ostensible weapons search: "'To say that the officer who turns his back on the driver whom he has arrested, while he first searches the driver's automobile is conducting a reasonable search incident to the arrest and not conducting an exploratory search staggers the credulity of anyone who pauses to examine the reasoning.'" (People v. Superior Court (1970) supra, 3 Cal.3d 807, 830, quoting Grundstrom v. Beto (N.D.Tex. 1967) 273 F.Supp. 912, 918.)

―FN 8. These problems were exacerbated in the case at bar. Here the journey back took nearly two hours, much of it in darkness after the batteries in the officers' flashlights failed. The strenuousness of the journey required the cooperation of all six hikers in aiding one another in climbing, portaging, etc. For most of the trip the officers had no idea where each of the arrestees were, and they arrived back at the patrol car not as a unit but in staggered groups, with the earliest arrivals forced to wait for a time until the others caught up.

―FN 9. The few post-Simon cases dealing with this issue have so held. For example, in People v. Ramos (1972) 26 Cal.App.3d 108 [102 Cal.Rptr. 502], a pat-down of a hit-and-run suspect was conducted prior to placing him in a police vehicle for transportation back to the scene of the accident. The search uncovered a switchblade knife, and the defendant was arrested for its possession. The defendant was not under arrest at the time of the search, but the fact of transportation in the police vehicle was held sufficient to justify the pat-down.

―FN 10. There was a minor conflict in the testimony regarding the distance of the pack from defendant, the officers stating two to three feet, the arrestees claiming it was six feet or more away. The conflict is irrelevant, however, since Chimel is not dispositive of this case.

―FN 11. In Miller the arrest took place at 3 a.m. in an abandoned private parking lot in South San Francisco. The back seat of the defendant's vehicle contained electronic and musical equipment of apparently considerable value. The area in question had a high incidence of burglary. Here the remoteness of the locale would render the possibility of theft unlikely, but if additional security were desired, the use of a standard wilderness cache would be sufficient to allay any concern in this regard.

―FN 12. Even prior to Simon there was authority in California supporting this view. In Amacher v. Superior Court (1969) 1 Cal.App.3d 150 [81 Cal.Rptr. 558], the police conducted a pat-down search of an individual who was present at the time a third person was being arrested. The officers categorized the pat-down as self-protective. During the search they came upon a "hard object" in defendant's front jacket pocket, which upon further investigation was found to be a closed flip-top Marlboro cigarette box. The package was opened and marijuana discovered. In granting a writ suppressing the evidence the court stated that "Although the self protective frisk was justified, the opening of the cigarette package does not meet the second prong of the Terry test. ... The officer admitted that his concern ended when he saw that the hard object in petitioner's pocket was a cigarette package rather than a weapon. He testified that he opened the package not in search of a weapon, but in search of marijuana. At that point the scope of the search was no longer reasonably related to the circumstances which justified the frisk." (Id., at p. 154.) Contrary authority typified by Morel v. Superior Court (1970) 10 Cal.App.3d 913 [89 Cal.Rptr. 297] [allowing full body searches of traffic offenders], and relied on by the prosecution in the court below, was expressly disapproved in Simon. (7 Cal.3d at p. 211.)

―FN 13. In Gustafson the facts were similar in that the defendant was arrested for failure to have his operator's license in his possession. A full field search of the person was made and marijuana cigarettes were found inside an ordinary cigarette box located in the defendant's pocket. The Supreme Court upheld the search on the same basis as Robinson. For the purposes of our discussion there do not appear to be significant distinctions between the two cases, and accordingly references to Robinson should be taken to apply to Gustafson also.

―FN 14. The factual uncertainty in the Supreme Court opinion makes it extremely difficult to ascertain the parameters of the key phrase "custodial arrest." Although the court repeatedly utilizes this term, it nowhere defines it. In a footnote (fn. 2, p. 221 of 414 U.S. [38 L.Ed.2d p. 433]) the court quotes the testimony of a patrolman who defined "full custody arrest" as one in which an officer "would arrest a subject and subsequently transport him to a police facility for booking," but the opinion fails to indicate whether the latter requirement is a necessary concomitant of the term. Similarly, there is no mention of whether Robinson himself was to be booked. The offense is described as carrying a "mandatory minimum jail term, a mandatory minimum fine, or both." (Id., at p. 220 [38 L.Ed.2d at p. 432].) As noted above, the only reference to Robinson's ability to post bond and avoid the process of booking and incarceration appears in the opinion of the Court of Appeals. Thus we assume that what is meant is that Robinson could ultimately have been either jailed or fined or both, but in any event the option to avoid the booking process by posting bond remained open to him.

―FN 15. An extended analysis of the reasons underlying our belief that a traffic arrestee retains a significant interest in the integrity of his person and vehicle appears in Simon and Kiefer. We see no need to repeat that discussion here except to note where it differs from the approach of Robinson. That opinion proceeds from the premise that "It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment." (414 U.S. at p. 224 [38 L.Ed.2d at p. 434].) It then recites that "The justification or reason for the authority to search ... rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence ...." (Id., at p. 234 [38 L.Ed.2d at pp. 439-440].) While based upon this need, however, "The authority to search ... does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect." Thus "[H]aving in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it ...." (Id., at p. 236 [38 L.E.2d at p. 441].)

We have no quarrel with the proposition that a search incident to an arrest is a traditional exception to the necessity to obtain a warrant, nor with the concept that a portion of its justification is the need to uncover weapons. We also accept the view that transportation in a police vehicle per se justifies a limited weapons search, regardless of the likelihood that a particular arrestee is armed. However, we have examined the Robinson opinion at length and remain unable to determine how the final conclusion flows from these premises. Rather, the converse would seem to be true: having in the course of a lawful weapons search come upon a crumpled cigarette package, the officer would have no reasonable ground to inspect it. Our decisions have invariably required articulable grounds to inspect, and we decline the invitation of the People to abrogate that long-established principle today.

―FN 16. For examples of the operation of this rule in California, see Rios v. Cozens (1973) 9 Cal.3d 454 [107 Cal.Rptr. 784, 509 P.2d 696] (due process); People v. Krivda (1973) 8 Cal.3d 623 [105 Cal.Rptr. 521, 504 P.2d 457] (search and seizure); Dept. of Mental Hygiene v. Kirchner (1965) 62 Cal.2d 586 [43 Cal.Rptr. 329, 400 P.2d 321, 20 A.L.R.3d 361] (equal protection).

―FN 17. A similar development has taken place in the law of double jeopardy. In Gori v. United States (1961) 367 U.S. 364, 369 [6 L.Ed.2d 901, 905, 81 S.Ct. 1523], the United States Supreme Court held that a defendant may be retried without violating the double jeopardy clause of the Fifth Amendment to the United States Constitution if the court grants a mistrial without the defendant's consent but in his "interest." In Cardenas v. Superior Court (1961) 56 Cal.2d 273, 275-276 [14 Cal.Rptr. 657, 363 P.2d 889, 100 A.L.R.2d 371], we declined to apply that rule in a California prosecution because it "does not accord with the uniform construction placed by this court upon the jeopardy provision of the California Constitution ... [now art. I, 15]." In Benton v. Maryland (1969) 395 U.S. 784, 794 [23 L.Ed.2d 707, 715, 89 S.Ct. 2056], the United States Supreme Court held that the Fifth Amendment to the federal Constitution was applicable to the states through the Fourteenth Amendment. Nevertheless, when the issue was again presented to us we adhered "to our decision in Cardenas not to adopt the Gori rule in applying the double jeopardy provision of the California Constitution. Benton requires only that the states accord their citizens at least as much protection against double jeopardy as is provided under the Fifth Amendment of the United States Constitution; it does not forbid a state from according a greater degree of such protection." (Fn. omitted.) (Curry v. Superior Court (1970) 2 Cal.3d 707, 716 [87 Cal.Rptr. 361, 470 P.2d 345].)

―FN 18. It even appears that a number of these were more specific than the language of the future Fourth Amendment. Thus article XIV of the Massachusetts Declaration of Rights (1780) declared that "Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws." (1 id., at p. 342.)

―FN 19. Analysis by Legislative Analyst, Ballot Pamphlet, General Election (Nov. 5, 1974) page 26.

―FN 1. Robinson quoted the testimony of a patrolman who defined the term "full custody arrest" as "one where an officer 'would arrest a subject and subsequently transport him to a police facility for booking'" (414 U.S. at p. 221, fn. 2 [38 L.Ed.2d at p. 433]), but Robinson did not indicate that it adopted the foregoing definition or that the term "custodial arrest" had only the foregoing meaning.

―FN 2. In Robinson police regulations provided that in the case of certain offenses including the offense there in question the officer "shall make a summary arrest of the violator and take the violator, in custody, to the station house for booking." (414 U.S. at p. 223, fn. 2 [38 L.Ed.2d at p. 433].) The Robinson majority did not dispute statements in the dissent indicating that a person transported to the station house for booking quite possibly may never be placed in jail -- that in the jurisdiction there involved the offense in question was bailable and "the normal procedure is for offenders to be advised of the opportunity to post collateral at the station house and to avoid an inventory search unless they are unable or refuse to do so" (id., at p. 258, fn. 7 [38 L.Ed.2d at p. 454]).

―FN 3. Article 1, section 13 (formerly art. 1, 19) of our state Constitution was based on a substantially identical provision in the 1849 California Constitution (art. 1, 19). One of the delegates to the 1849 constitutional convention commented that article 1, section 19 "was word for word from the Constitution of the United States, 4th article." (See Browne, Report of the Debates in the Convention of California (1849).)

―FN 4. For example, under Robinson and Gustafson an officer may make a full search of a person who is placed under custodial arrest, whereas under neither Simon nor the instant majority opinion can an officer investigate the contents of a cigarette box or bottle that is in the pocket of such a person unless the officer is able to point to specific facts that support a belief that the arrestee is armed with an atypical weapon (e.g., razor blades or acid), and officers undoubtedly often will have no knowledge of facts indicating one way or the other on that subject. Also, according to the majority, if a full custody arrest had been made in California for the offense involved in Robinson the "Officer would have been limited to a pat-down prior to transporting the defendant in the patrol vehicle." A pat-down, however, might not reveal a carefully concealed weapon (e.g., a knife blade secreted in a belt or under the arch preserver in a shoe). (See generally, LaFave, "Street Encounters and the Constitution" 67 Mich.L.Rev. 40, 91 [noting that the search of a person who is arrested and is to be transported to the station (often unwatched in the rear of a police vehicle) must be more extensive than in the Terry v. Ohio, supra, 392 U.S. 1, situation because the arrestee may well have an opportunity to get his hands on a carefully concealed weapon, whereas in the Terry situation the need is only to find implements that could readily be grasped by the suspect during brief face-to-face encounter].)

―FN 5. Since both Robinson and Gustafson indicate that it has been "established Fourth Amendment law" since the decision in Weeks v. United States, 232 U.S. 383 [58 L.Ed. 652, 34 S.Ct. 341], that the arresting officer may conduct "a full search" of the person of the arrestee incident to "a lawful custodial arrest" (414 U.S. 218, 224 et seq. [38 L.Ed.2d 427, 434 et seq.]; 414 U.S. 260, 264 [38 L.Ed.2d 456, 460]), those decisions did not change the law but merely clarified and restated pre-existing constitutional rules. It follows that Robinson and Gustafson are not solely prospective. (Cf. People v. Miller, 7 Cal.3d 219, 223 [101 Cal.Rptr. 860, 496 P.2d 1228]; Gallik v. Superior Court, 5 Cal.3d 855, 859-860 [97 Cal.Rptr. 693, 489 P.2d 573]; Roumbanis v. Superior Court, 29 Cal.App.3d 542, 546-547 [105 Cal.Rptr. 702].)

―FN 6. In this case, as in Robinson and Gustafson, it does not appear that the arrests were a mere pretext to search (see People v. Haven, 59 Cal.2d 713, 719 [31 Cal.Rptr. 47, 381 P.2d 927]), and the search partook of none of the extreme or patently abusive characteristics that were held to violate due process in Rochin v. California, 342 U.S. 165 [96 L.Ed. 183, 72 S.Ct. 205, 25 A.L.R.2d 1396].

~~~~~~~~~~~~~~~~

U.S. 3rd Circuit Court of Appeals
WILCHER v WILMINGTON

Filed March 17, 1998

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 96-7276

BEVERLY WILCHER; SHARON SMITH; MICHAEL DANYLO; CORNELIUS SKINNER, on behalf of themselves and all others similarly situated; THE WILMINGTON FIRE FIGHTERS ASSOCIATION, LOCAL 1590,

Appellants,

v.

CITY OF WILMINGTON; JAMES A. SILLS, in his official capacity as Mayor of the City of Wilmington; JAMES T. WILMORE, SR., individually and in his official capacity as Chief of Fire for the City of Wilmington; CLIFTON E. ARMSTEAD, individually and in his official capacity as Deputy Chief of Fire for the City of Wilmington; S.A. WAYNE CROSSE, in his official capacity as Dir ector of Personnel for the City of Wilmington; WILLIAM J. YANONIS, individually and in his official capacity as Deputy Director of Personnel for the City of Wilmington SODAT-DELAWARE, INC.,


Third-Party Defendant

    On Appeal from the United States District Court for the District of Delaware (D.C. Civil Action No. 94-cv-00137)

Argued January 28, 1997

Before: BECKER, Chief Judge , and ROTH, Circuit Judges , and ORLOFSKY,1 District Judge (Opinion Filed March 17, 1998)

Teresa C. Fariss, Esq. (Argued) Young, Conaway, Stargatt & Taylor P.O. Box 391 Rodney Square North, 11th Floor Wilmington, DE 19899-0391

Attorney for Appellants

John W. Morgan, Esq. (Argued) City of Wilmington Law Department 800 French Street, 9th Floor Wilmington, DE 19801

Attorney for Appellees

Bruce C. Herron, Esq. (Argued) Sawyer, Akin & Herron 1220 North Market Street P.O. Box 25047, Suite 606 Wilmington, DE 19899

Attorney for Third-Party Defendant

OPINION OF THE COURT

ROTH, Circuit Judge:

In this appeal, we are asked to determine whether the City of Wilmington's method of testing firefighters for drug use violates their rights under the Fourth Amendment. We will affirm the district court's conclusion that it does not.

Nevertheless, we will remand the case for reconsideration of the state law invasion of privacy claim.

Beverly Wilcher, Sharon Smith, Michael Danylo and Cornelius Skinner are Wilmington firefighters. Along with the Wilmington Fire Fighters Association (WFFA), they brought this class action on behalf of all firefighters in the city. The defendants are the City of Wilmington, Mayor Sills (in his official capacity), James T. Wilmore (individually and in his capacity as Fire Chief), Clifton Armstead (individually and in his official capacity as Deputy Fire Chief), Wayne Crosse (in his official capacity as Director of Personnel for Wilmington), and William Yanonis (individually and in his official capacity as Deputy Director of Personnel). In addition, the firefighters sued SODAT-Delaware, Inc., the drug testing company that performs the tests for the City of Wilmington. The firefighters sought injunctive relief and damages under 42 U.S.C. 1983 and damages for"invasion of privacy" under the state's tort law.

The district court granted summary judgment in favor of the individual defendants on the ground that they were entitled to qualified immunity and in favor of the SODAT defendants on the ground that SODAT was not a state actor. The district court then held a three-day trial. Two days into the trial, the plaintiffs apprised the district court of this Court's statement in Bolden v. SEPTA , 953 F.2d 807, 822-23 n.23 (3d Cir. 1991), that reasonableness under the Fourth Amendment was an issue of law. Concluding that there were no remaining factual issues for the jury to decide, the district court, with the plaintiffs' acquiescence, dismissed the jury. The court then decided against the plaintiffs on the merits of their Fourth Amendment claim. See Wilcher v. City of Wilmington , No. 94-137, slip. op. (D.Del. June 30, 1995). The district court also concluded that plaintiffs could not prevail on their state law invasion of privacy claim. The district court eventually elaborated on its findings in a memorandum opinion rejecting the plaintiffs' motion for reargument and for a new trial. See Wilcher v. City of Wilmington , 924 F.Supp. 613 (D.Del. 1996).

The firefighters have appealed on several grounds. First, they cite as error the district court's failure to enter an injunction permanently prohibiting the City from using the direct observation method in its urine collecting, despite the fact that during a pre-trial teleconference the City had tentatively agreed to such an arrangement. Second, they dispute the district court's conclusion that direct observation of urine collection is reasonable under the Fourth Amendment. Third, they appeal the district court's determinations regarding qualified immunity and state action. Fourth, they urge that, in denying the plaintiffs a jury trial, the district court misapplied our decision in Bolden . Finally, the plaintiffs contend that the district court committed error when it presumed that the reasonableness standard under the Fourth Amendment of the Constitution was equivalent to the reasonable person standard under Delaware tort law.2

We will reject all the plaintiffs' grounds for appeal except for the fifth one. The district court did not abuse its discretion when it denied plaintiffs' motion for injunctive relief, following the City's rejection of the tentative agreement. In addition, we agree with the district court that a drug testing monitor's presence in the same room with the firefighter during the collection of thatfirefighter's urine does not, by itself, constitute an unreasonable search under the Fourth Amendment. As for the plaintiffs' jury trial right, we agree that the district court misread our decision in Bolden when it concluded that no factual

determinations remained for the jury. Nevertheless, we will not reverse the district court's dismissal of the jury because the plaintiffs clearly acquiesced in this action and thereby waived their jury right under Rule 39(a) of the Federal Rules of Civil Procedure.

However, despite our affirmance of the district court's constitutional analysis, we will remand this case for further proceedings because we believe the court erred in presuming the equivalence of the "reasonableness" inquiry under the Fourth Amendment and the "reasonable person" standard under the common law in an invasion of privacy claim.

I. FACTS

In July 1990, the City and the Wilmington Fire Fighters Association (the firefighters' union) agreed in a Collective Bargaining Agreement that firefighters would be subject to random drug testing through urinalysis in order to ensure that members of the Fire Department were drug free. Prior to January 1994, the City had employed a procedure whereby a randomly selected firefighter was notified he would be tested when he arrived at the station to begin his shift. A battalion chief would then stay with the firefighter and take him to Occupational Health Services at the Medical Center of Delaware ("Occupational Health") where the test was performed. There, the battalion leader would conduct the firefighter to a "dry room" to produce the urine specimen. The sink in the dry room did not contain water and the toilet bowl contained blue dye to prevent cheating by dilution. The firefighters provided their urine specimens in private; no observer was present in the dry room. Occupational Health's method of collecting urine in this manner followed the guidelines of the National Institute of Drug Abuse.

In November 1993, in an attempt to reduce the cost of random drug testing, the City solicited bids from drug testing facilities. The City did not specifically request a procedure which included visual observation of urine collection. SODAT, a private drug-testing company in Delaware with a primary focus on outpatient drug- counseling, submitted a proposal under which fire-fighters would produce the urine sample "under the direct supervision of counselor/authorized personnel." The City accepted SODAT's bid.

In January 1994, SODAT began drug testing the City's firefighters. The parties have given substantially different descriptions of how the SODAT employees carried out this procedure. The male firefighters, for example, claim that the SODAT monitor looked over the firefighter's shoulder at his genitals while he urinated. SODAT, on the other hand, claims that the monitors stood to the back or the right of the firefighters but did not directly observe their genitalia.

Although SODAT employees are directed to observe the urine collection process by looking in the firefighter's general direction as he or she commences urination, the monitors are neither directed nor expected to focus on the firefighter's genitals. At trial, the SODAT monitors maintained that they had acted within the company's guidelines.

After hearing this testimony, the district court accepted SODAT's portrayal of the monitoring process as accurate. "An examination of the SODAT testing program, both in terms of its design and intent, and more specifically in its execution, demonstrates that no element of the program was intended to invade the privacy of a firefighter in an overly intrusive manner." Wilcher , 924 F.Supp. at 617. The district court further stated, "Although [the collection process] may have involved some observation of the genitalia area generally, this observation was only a by- product of the general observation of the donor." Id . at 618. In its earlier memorandum, the district court had also stated:

On the evidence submitted by the parties, the Court finds that the direct supervision procedure employed by SODAT did not in principal or in fact involve the direct observation of the genital area of the person providing the urine sample. . . . [SODAT's procedure] does not direct that the SODAT employee undertake to observe the genital area of the individual providing the sample. It only requires supervision during the collection process. Wilcher , slip. op. at 11. The district court further concluded, "The Court is convinced that the testimony concerning the position of the SODAT employee during the specimen collection is corroborated and demonstrates that genital observation was not the purpose nor the practice of the SODAT policy." Id.

Soon after SODAT began testing firefighters, the Deputy Fire Chief was informed of the firefighters' complaints about SODAT's testing method. The City did not, however, request that SODAT stop using the direct observation procedure. The firefighters' union, the Wilmington Fire Fighters Association, filed a first step grievance with the City of Wilmington protesting the direct observation procedure. The Deputy Chief denied this grievance. The WFFA filed a second step grievance, which was denied on February 17, 1994. The WFFA then filed a Notice of Arbitration. The plaintiffs filed suit on March 18, 1994, against the City and the individual defendants. The City impleaded SODAT, and the plaintiffs amended their complaint to include SODAT as a defendant. In an Order and Stipulation filed on April 15, 1994, the parties agreed that the City should direct SODAT to refrain from using direct observation of urination while this case was pending.

The district court had jurisdiction over this case pursuant to 28 U.S.C. 1331 and 1343. We now have jurisdiction under 28 U.S.C. 1291.

II. THE "TENTATIVE AGREEMENT"

Before we proceed with our analysis of the constitutional issue, we will address the plaintiffs' contention that the district court erred in not permanently enjoining the City from using SODAT's direct observation method of drug testing. We find no such error.

On April 15, 1994, the parties filed a Stipulation and Order temporarily enjoining the City from further use of the direct observation method during the pendency of this case. On June 16, the parties participated with the district court in a teleconference, during which the City expressed its willingness to refrain permanently from using the direct observation method. At the end of the teleconference, SODAT's counsel stated that she would draft a stipulation and order to that effect and send it around to the other parties for their signature.

Despite this tentative agreement, the plaintiffs and the City of Wilmington were unable to arrive at an accord on the terms of the stipulation. The City therefore refused to sign it. The plaintiffs then filed a motion with the district court for an order permanently enjoining the City and SODAT from further use of the direct observation method of urine collection. The district court denied this motion without opinion on March 31, 1995. The plaintiffs argue that this denial was error, as the City defendants had reneged on their agreement in bad faith. The defendants reply that the oral agreement was only tentative.

As a general rule, we encourage attempts to settle disagreements outside the litigative context. A settlement agreement is a contract and is interpreted according to local law. See Pennwalt Corp. v. Plough, Inc. , 676 F.2d 77, 79 (3d Cir. 1982). A district court may enter injunctive relief on a party's behalf to enforce a settlement agreement when it determines that one of the parties has failed to perform its obligations. See Read v. Baker , 438 F.Supp. 732, 735 (D. Del. 1977), citing Petty v. General Accident Fire & Life Assurance Co. , 365 F.2d 419, 421 (3d Cir. 1966). The power to grant or deny an injunction, however, is firmly within the discretion of the district court. See Castrol, Inc. v. Pennzoil Co. , 987 F.2d 939, 943 (3d Cir. 1993).

According to the City, the district court did not abuse its discretion by denying the injunction because the parties had produced no more than a tentative agreement, unenforceable by law. We agree. Under Delaware law, the criteria for deciding whether a contract exists is the intention of the parties, evidenced by their objective conduct and manifestations. See Industrial America, Inc. v. Fulton Indus., Inc. , 285 A.2d 412, 415 (Del. 1971). The parties' subjective intent is irrelevant. Id. Rather, the court's inquiry is "whether a reasonable man would, based upon the `objective manifestation of assent' and all of the surrounding circumstances, conclude that the parties intended to be bound by contract." Leeds v. First Allied Connecticut Corp. , 521 A.2d 1095, 1101 (Del.Ch. 1986). As Chancellor Allen has noted,

This is not a simple or mechanical test to apply. Negotiations typically proceed over time with agreements on some points being reached along the way towards a completed negotiation. It is when all of the terms that the parties themselves regard as important have been negotiated that a contract is formed .

Leeds , 521 A.2d at 1101 (emphasis added). The Chancellor further stated, "Until it is reasonable to conclude . . . that all of the points that the parties themselves regard as essential have been expressly or . . . implicitly resolved, the parties have not finished their negotiations and have not formed a contract." Id. , at 1102.

These basic principles of contract law lead us to conclude that the district court committed no abuse of discretion in denying injunctive relief. Although the parties agreed in principle at the pre-trial teleconference to a stipulation permanently halting the direct observation procedure, they did not discuss the details of the agreement. Thus, we cannot say that all the essential terms were resolved before or during the teleconference. The teleconference represented but one step of a complex negotiation between three parties (the firefighters, the City, and SODAT). The record indicates that the City made a good faith effort to work with the plaintiffs to draft a stipulation acceptable to everyone. Unfortunately, the parties never reached that stage. This failure, however, does not represent a breach of contract. Accordingly, we will affirm the district court's denial of the permanent injunction.

III. THE CONSTITUTIONALITY OF DIRECT OBSERVATION

The gravamen of the plaintiffs' complaint is that the direct observation method of urine collection violates the firefighters' right under the Fourth Amendment, as incorporated by the Fourteenth Amendment, to be free from unreasonable searches and seizures. The district court held that the direct observation method, as executed by SODAT, did not constitute an "unreasonable" search. Because the reasonableness of a search under the Fourth Amendment is an issue of law, we exercise plenary review. See Bolden , 953 F.2d at 822-23 n.23; Dykes v. SEPTA , 68 F.3d 1564, 1568 (3d Cir. 1995).

The Fourth Amendment guarantees the "right of the people to be secure in their persons . . . against unreasonable searches and seizures." U.S. Const. Amend. IV. It is well established that the government's collection and testing of an employee's urine constitutes a "search" under the Fourth Amendment. Skinner v. Railway Labor Executives' Assn. , 489 U.S. 602 , 617; Treasury Employees v. Von Raab , 489 U.S. 656, 665 (1989). Ordinarily, the Constitution requires the government to obtain a warrant supported by probable cause to search a person or his property. There are, however, several well-established exceptions to the warrant and probable cause requirements. The Supreme Court has explained:

    [O]ur cases establish that where a Fourth Amendment intrusion serves special government needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.

Von Rabb , 489 U.S. at 665 -66. See also Griffin v. Wisconsin , 483 U.S. 868, 873 (1987); New Jersey v. T.L.O. , 469 U.S. 325, 340 (1985). Under the "special needs" analysis, the government need not show probable cause or even individualized suspicion for its search. Instead, it must prove that its search meets a general test of "reasonableness." Under this standard, the constitutionality of a particular search " `is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.' " Skinner , 489 U.S. at 619 ( quoting Delaware v. Prouse , 440 U.S. 648, 654 (1979)). In particular, the Supreme Court's jurisprudence directs us to consider three factors when judging the constitutionality of employee drug tests: (1) the nature of the privacy interest upon which the search intrudes; (2) the extent to which the search intrudes on the employee's privacy; and (3) the nature and immediacy of the governmental concern at issue, and the efficacy of the means employed by the government for meeting that concern. Vernonia School Dist. 47J v. Acton , 115 S.Ct. 2386 (1995).

The firefighters do not dispute the reasonableness of compulsory drug testing per se . To the contrary, the firefighters have agreed to drug testing in their Collective Bargaining Agreement with the City. Rather, the plaintiffs challenge the City's method of testing, which entails visual observation of the firefighters as they provide their urine samples. This issue has been described as "distinct and clearly severable from those that govern reasonable suspicion testing generally". National Treasury Employees Union v. Yeutter , 918 F.2d 968, 975 (D.C. Cir. 1990). For this reason, we apply the Fourth Amendment's reasonableness test solely to the direct observation method utilized by SODAT and not to the broader issue of compulsory drug testing. See id. 3

A. The Nature of the Firefighters' Privacy Interest "Reasonableness" entails a three pronged inquiry.

First, a court examines the individual's privacy interest upon which the search at issue allegedly intrudes. See Vernonia , 115 S.Ct. at 2391 (1995). This expectation of privacy must be legitimate as measured by objective standards. "The Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as `legitimate.' " Id.

The district court properly concluded that firefighters enjoy only a diminished expectation of privacy. "Because they are in a highly regulated industry, and because they had consented to random testing in their collective bargaining agreement, the firefighters had a reduced privacy interest." Wilcher , 924 F.Supp. at 618. Plaintiffs now argue on appeal that the firefighting industry is not "highly regulated" and that the firefighters therefore did not have a diminished expectation of privacy.

Plaintiffs' argument lacks merit. Even though extensive regulation of an industry may diminish an employee's expectation of privacy, see Policemen's Benevolent Ass'n, Local 318 v. Township of Washington , 850 F.2d 133 (3d Cir. 1988) (police department described as "highly regulated"); Shoemaker v. Handel , 795 F.2d 1136 (3d Cir. 1986) (upholding law requiring jockeys to submit to breathalyser and random urinalysis testing), we have never held that regulation alone is the sole factor that determines the scope of an employee's expectation of privacy. It is also the safety concerns associated with a particular type of employment -- especially those concerns that are well-known to prospective employees -- which diminish an employee's expectation of privacy. Supreme Court precedent demonstrates this principle. In National Treasury Employees v. Von Raab , the Court held that a government employee's expectation of privacy depended in part on the nature of his employment and whether it posed an attendant threat to public safety. See 489 U.S. at 672 . Upholding the drug testing of customs officials, the Court explained:

We think Customs employees who are directly involved in the interdiction of illegal drugs or who are required to carry firearms in the line of duty likewise have a diminished expectation of privacy in respect to the intrusions occasioned by a urine test. Unlike most private citizens or government employees in general, employees involved in drug interdiction reasonably should expect effective inquiry into their fitness and probity . . . . Because successful performance of their duties depends uniquely on their judgment and dexterity, these employees cannot reasonably expect to keep . . . personal information that bears directly on their fitness. Id. (emphasis added). Customs officials enjoyed a reduced expectation of privacy because of the sensitive nature of their duties and of the information they received. We have held that railway employees also enjoy a diminished expectation of privacy because of the safety concerns associated with those who operate trains. See e.g. Transport Workers' Union, Local 234 v. SEPTA , 884 F.2d 709, 712 (3d Cir. 1988) (random testing of rail operators upheld because of "great human loss" they can cause prior to detection of drug problem).

Certainly, a firefighter with a drug problem poses as great a threat to public safety as does a customs official or a rail operator. A firefighter whose drug use is undetected is a source of danger both to his colleagues and to the community at large. In addition, the firefighter puts himself at great risk of harm. Since the perils associated with firefighting are well known, we have no trouble concluding that firefighters enjoy a diminished expectation of privacy. Our inquiry, however, does not end here, as we must balance the firefighters' diminished interest with the character of the search at issue and with the concerns that have propelled that search.

B. The Character of the Search

The second factor we must consider is the character of the government's search and the extent to which it intrudes on the employee's privacy. The Supreme Court has held that the degree of intrusion "depends upon the manner in which production of the urine sample is monitored." Vernonia , 115 S.Ct. at 2393. Before we judge the intrusiveness of SODAT's drug testing method, however, we must first determine what that method actually entails.

At trial and on appeal, both the plaintiffs and the SODAT employees have presented highly divergent pictures of the urine collection process. The firefighters claim that monitors looked at their genitalia as they urinated. SODAT and its employees, on the other hand, steadfastly maintain that they did not focus on the firefighters' genitalia during the urine collection process. Instead, they claim that they looked in the firefighters' general direction to ensure that no tampering was taking place during the production of the urine specimen.

Based on the evidence before it, the trial court concluded that SODAT's drug testing procedure involved only the monitors' direct observation of the urine collection process in general and not the intentional observation of the firefighters' genitalia. Wilcher , 924 F. Supp. at 617-18. We accept as accurate the district court's finding of fact concerning the nature of the urine collection process employed by SODAT. Although the reasonableness of a search is a legal question, the particular character of that search is a factual matter. Cf. O'Connor v. Ortega , 480 U.S. 709, 726-729 (factual dispute regarding character of search precluded lower court's grant of summary judgment on Fourth Amendment issue). As such, the trial judge's factual finding regarding the character of SODAT's drug testing procedure is reversible only if it is clearly erroneous. See Marco v. Accent Pub. Co., Inc. , 969 F.2d 1547, 1548 (3d Cir. 1992). In light of the nature of the testimony from the SODAT employees, which the trial judge chose to credit, we cannot say that the district court's finding was clearly erroneous.4 Consequently, we will adopt the district court's description of the SODAT procedure as one which entails only incidental observation of a firefighters' genitals.

Having adopted the district court's description of the SODAT drug-testing procedure, we must concede that the direct observation method represents a significant intrusion on the privacy of any government employee. Urination has been regarded traditionally by our society as a matter "shielded by great privacy." Skinner , 489 U.S. at 626 ; 109 S.Ct. at 1418. Few cases have dealt with the issue of the specific method used by the government to test its employees for drugs. In Vernonia School District 47J v. Acton , the Supreme Court upheld the constitutionality of a mandatory random drug testing program that a school district employed to reduce drug use among its student athletes. The Court described the Vernonia drug testing procedure in the following manner:

The student to be tested completes a specimen control form which bears an assigned number. . . . The student then enters an empty locker room accompanied by an adult monitor of the same sex. Each boy selected produces a sample at a urinal, remaining fully clothed with his back to the monitor, who stands approximately 12 to 15 feet behind the student. Monitors may (though do not always) watch the student while he produces the sample, and they listen for normal sounds of urination. Girls produce samples in an enclosed bathroom stall, so that they can be heard but not observed.

Vernonia , 115 S.Ct. at 2389. The Supreme Court concluded that this method of testing was not unreasonable under the Fourth Amendment. "Under such conditions, the privacy interests compromised by the process of obtaining the urine sample are in our view negligible." Vernonia , 115 S.Ct. at 2393.

Relying on Vernonia , the district court stated, "The Court finds the SODAT collection method no more intrusive on the firefighters' privacy than was the high school's drug testing program found to be constitutional in [ Vernonia ]" Wilcher , 924 F. Supp. at 618. The district court further concluded, "The presence of monitors in the bathrooms with firefighters is similar to the presence of the monitors in Vernonia , and even though the monitors may have stood closer than those in Vernonia , this close proximity was a result of the collection facilities, in this case a bathroom as opposed to a locker room, and not a more intrusive method." Wilcher , 984 F.Supp. at 619.

We agree with the district court insofar as its analogy to Vernonia applies to male firefighters. In a world where men frequently urinate at exposed urinals in public restrooms, it is difficult to characterize SODAT's procedure as a significant intrusion on the male firefighters' privacy.5 Plaintiffs fail to demonstrate how the presence of a monitor in a boys locker room while a student athlete urinates differs significantly from the presence of a monitor in a bathroom while an adult firefighter urinates. Both monitors stand behind the individual providing the urine specimen. Similarly, as the district court found, both monitors observe only the collection process generally and not the particular  individual's genitalia. The only difference is the distance between the monitor and the person producing the specimen. We cannot conclude that this difference by itself justifies a determination that SODAT procedure is unreasonable.6

We must admit that we are more cautious about the reasonableness of the direct observation method as it applies to female firefighters. We simply cannot characterize the presence of a monitor in a bathroom while a female urinates as an ordinary aspect of daily life. Indeed, Vernonia noted with approval the fact that female student athletes provided urine behind a stall as monitors stood outside listening. Vernonia , 115 S.Ct. at 2393. Nevertheless, nothing in Vernonia suggests that the presence of a female monitor in a bathroom when an adult female firefighter provides a urine specimen is per se unconstitutional under the Fourth Amendment. Moreover, the facts of this case suggest that SODAT took substantial measures to minimize the intrusion of privacy to female firefighters caused by the direct observation procedure. The district court found that the female monitors stood to the side of the female firefighters and that the monitors did not look at the firefighters' genitalia as they urinated, but rather in their general direction. Wilcher , 924 F.Supp. at 617-18. Finally, SODAT provided a nurse-practitioner as a monitor for plaintiff Wilcher when she expressed discomfort with her first female monitor. Thus, although wefind SODAT's intrusion of the female firefighters' privacy to be significant, we nevertheless agree with the defendants that SODAT has carried out its testing procedure in an appropriate and professional manner.

C. The Governmental Concern

The third and final component of the "reasonableness" test under the Fourth Amendment is the government's interest, which must be compelling. With regard to this prong, the Supreme Court has observed:

    It is a mistake . . . to think that the phrase `compelling state interest,' in the Fourth Amendment context, describes a fixed, minimum quantum of governmental concern, so that one can dispose of a case by answering in isolation the question: Is there a compelling state interest here? Rather, the phrase describes an interest which appears important enough to justify the particular search at hand, in light of other factors which show the search to be relatively intrusive upon a genuine expectation of privacy.

Vernonia , 115 S.Ct. at 2394-95. Thus, "compelling interest" does not have the same meaning in this context as it does in other areas of constitutional law. Moreover, the fact that there exists a less intrusive method of achieving the government's goal is not relevant to the Court's reasonableness analysis under the Fourth Amendment. Vernonia , 115 S.Ct. at 2396. See also Skinner , 489 U.S. at 629 n.9; Illinois v. Lafayette , 462 U.S. 640, 647 (1983).

In this case, we do not review the constitutionality of drug-testing per se , but rather, the procedure by which firefighters are tested. According to the City and to SODAT, visual observation is necessary to prevent cheating. At trial, the defendants' expert, Dr. Closson, testified that visual monitoring is necessary to catch employees who attempt to fool the test by substituting someone else's urine or adding a chemical adulterant to their own urine.

On appeal, the plaintiffs argue that cheating can be detected by testing the urine's temperature since substitutes make the specimen colder than it should be. According to Dr. Closson, a forensic toxicologist, cheaters still can avoid detection by warming substitute urine through a heating pack hidden on their body, or by keeping the urine close to their body so that it takes on the body's temperature. Closson further maintained that direct observation was the most accurate collection method for ensuring the integrity of a urine sample. Finally, Closson testified that direct observation procedures are used by the New York City Police Department, the New York City Department of Corrections, and several other New York agencies.

Like the district court, we find the defendants' expert testimony persuasive. Cheating is a significant concern. The City understandably wishes to take as many steps as possible to eliminate potential violations of the drug testing program. The plaintiffs argue that the cheating described by Dr. Closson is unlikely, as Wilmington firefighters do not receive notice that they are to be tested until the day of the test, and they remain in the company of a superior officer from the moment they are notified of the test until the time that they actually provide their urine specimen. Although this argument is strong, it does not prove that the incidences of cheating, described by Dr. Closson, are impossible or even implausible. Although such cheating calls for fairly sophisticated equipment, it is possible for a firefighter with a drug problem to carry a catheter or an artificial bladder taped to his body on the days following drug use, just in case he is tested on that day. Indeed, Dr. Closson stated that cheating has been known to take place within the New York agencies, which use the direct observation method.

Under Supreme Court jurisprudence, the City of Wilmington need not wait for a cheating problem to develop in order to justify its use of direct observation. In Von Raab , for example, Justice Scalia noted that the Supreme Court upheld random mandatory drug testing of customs officials, even though there existed no evidence of a history of drug abuse among those government employees. See Von Raab , 489 U.S. at 679 (Scalia, dissenting). Moreover, the fact that there exists a less intrusive method of achieving the government's goal is not relevant to the Court's Fourth Amendment analysis. Skinner , 489 U.S. at 629 n.9; Illinois v. Lafayette , 462 U.S. 640, 647 (1983).

Finally, we do not agree with the plaintiffs' argument that SODAT renders its direct observation procedure ineffective (and thereby unnecessary) by directing monitors not to look at the firefighters' genitals. Certainly, the mere presence of a monitor in the room where the firefighter is urinating deters a would-be-cheater from substituting or adulterating his own urine sample. Thus, we must agree with the district court that the direct observation procedure serves the government's interest of preventing cheating on drug tests.

Because we find that SODAT's direct observation method, as described in the district court's findings of fact, meets the three elements of the Fourth Amendment reasonableness test, we hold that the plaintiffs' Fourth Amendment rights have not been violated.7 The City's significant interest in preserving the integrity of its firefighters' drug tests outweighs their expectations of privacy. With regard to the male firefighters, the conditions created by SODAT do not differ significantly from the conditions present in an ordinary public restroom. As for the female firefighters, we note the district court's finding that SODAT has taken several steps to minimize the potentially intrusive effects of having a person present in the same room during the collection of a femalefirefighter's urine. So long as SODAT's monitors refrain from looking at the firefighters' genitalia, its direct observation procedure remains within the boundaries of a constitutional search. Accordingly, the district court did not err when it ruled in the defendants' favor on the issue of constitutionality under the Fourth Amendment.8
IV. WAIVER OF JURY TRIAL

Two days into the trial, the plaintiffs brought to the district court's attention our statement in Bolden v. SEPTA that reasonableness under the Fourth Amendment was an issue to be decided by the judge. See Bolden , 953 F.2d at 822. Based on its reading of Bolden , the district court, with

plaintiffs' agreement, dismissed the jury. Plaintiffs now claim that this was error and that the district court violated their right to a jury trial. We reject this argument as lacking merit. Although plaintiffs had a right to a jury trial, they waived that right when they acquiesced in the district court's dismissal of the jury.

Rule 39(a) of the Federal Rules of Civil Procedure states: When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury unless (1) the parties or their attorneys of record, by written stipulationfiled with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court upon motion or its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the United States.

Fed. R. Civ. P. 39(a) (emphasis added). This Court has stated that once a party makes a timely demand for a jury trial, that party subsequently waives that right when it participates in a bench trial without objection. See Cooper v. Loper , 923 F.2d 1045, 1049 (3d Cir. 1991). Numerous courts have adopted this position. See generally 5 James Wm. Moore et al., Moore's Federal Practice, *39.03 n.5-6 (2d ed. 1988) (consent can be inferred from conduct of parties or counsel). See also Royal American Managers, Inc. v. IRC Holding Corp. , 885 F.2d 1011 (2d Cir. 1989) (plaintiff waived right to jury trial in securities action by participating in bench trial without objection); Pope v. Savings Bank of Puget Sound , 850 F.2d 1345, 1355 (9th Cir. 1988) (counsel's agreement with court's announced intent to dismiss jury, as well as actual knowledge that jury was being discharged, constituted waiver of jury trial right under Rule 39(a)).

Based on these principles, we find that the plaintiffs waived their jury trial right under Rule 39(a). On the third day of trial, the plaintiffs' attorneys submitted a letter to the district court notifying it that under Bolden the issue of reasonableness under the Fourth Amendment was a legal issue for the court. In response to this letter, the trial judge stated his intention to dismiss the jurors because there remained no liability questions for them to decide. The plaintiffs' counsel objected to this course of action only insofar as damages were concerned. The court agreed that, should the plaintiffs prevail on any of the liability questions, he would either recall the jury or assemble a new one to hear evidence relating to damages.

Based on the dialogue between the district judge and the plaintiffs' attorney, we conclude the plaintiffs waived their jury trial right under Rule 39(a). The sole concern of the plaintiffs' attorney was that the trial court preserve the damages issue for a jury trial in the future. She did not argue that the plaintiffs were entitled to a jury on the invasion of privacy claims. Nor did she argue that the plaintiffs were entitled to a jury verdict on the factual aspects of their Fourth Amendment claim (such as whether the SODAT employees actually looked at the firefighters' genitals while they urinated). Hence, whatever rights the plaintiffs had, their counsel waived when she explicitly agreed with the district court's decision to dismiss the jury.9

V. FOURTH AMENDMENT "REASONABLENESS" VS. THE STATE LAW "REASONABLE PERSON" STANDARD

Finally, we will reverse the district court's ruling insofar as it equated the Fourth Amendment "reasonableness" standard with the much different common law "reasonable person" standard. Invasion of privacy is a tort claim under state law. Delaware adopted the Restatement of Tort's definition of this claim in Barbieri v. News-Journal Co. , 189 A.2d 773, 774 (Del. 1963). Under the Restatement, plaintiffs can prove a common law invasion of privacy if they show that defendants intentionally intruded on the firefighters' physical solitude or private affairs or concerns in such a manner that a reasonable person would find "highly offensive." (Restatement (Second) of Torts , 652B (1977)). See also Barker v. Huang , 610 A.2d 1341, 1350 (Del. 1992).

The district court concluded that since it had ruled against plaintiffs on their constitutional claim, it could not possibly find in their favor on their state law invasion of privacy claim. "Even assuming that the monitors intruded upon the firefighters' solitude, the Court has determined that the collection procedures used by SODAT were reasonable under constitutional principles." Wilcher , 924 F.Supp. at 619.

The district court's assumption that "reasonableness" under the Fourth Amendment is analogous to a "reasonable person" standard under state common law is erroneous. A state may provide its citizens with greater protection of their individual rights than does the federal constitution. For example, in Kelley v. Schlumberger Technology Corp. , 849 F.2d 41 (1st Cir. 1988), the court struck down a drug testing procedure because it violated the state constitution. Moreover, it is beyond argument that a district court cannot, a fortiori, apply a federal standard of law to a cause of action grounded in the common law of the state in which it sits. See Erie R.R. Co. v. Tompkins , 304 U.S. 64, 78 (1938). Hence, the trial court incorrectly concluded, as a matter of law, that a reasonable Delawarean could not find the drug testing procedure "highly offensive," simply because the test might have passed muster under the Fourth Amendment.10 We will therefore remand this issue to the district court to determine whether the "reasonable person" standard under Delaware common law would find the practices employed by SODAT "highly offensive."11

VI. CONCLUSION

Based on the foregoing discussion, we will affirm the district court's ruling on the plaintiffs' constitutional claim. So long, at least, as the SODAT employees continue to employ the safeguards discussed in Part III, their direct observation method does not violate the Fourth Amendment.

In addition, we will affirm the district court's dismissal of the jury because the plaintiffs waived their jury trial right when they acquiesced on the record to the dismissal. Moreover, as we note in footnote 1, we will vacate the district court's holding that SODAT's drug testing procedure was permissible under the Collective Bargaining Agreement. Finally, we will vacate the dismissal of the state law invasion of privacy claim and remand this case to the district court for reconsideration of the state law issues.

A True Copy: Teste:

Clerk of the United States Court of Appeals for the Third Circuit 24

FOOTNOTES

1. Honorable Stephen M. Orlofsky, United States District Court Judge for the District of New Jersey, sitting by designation.

2. The plaintiffs also contend that the district court should not have determined that SODAT's drug testing method was not in violation of the firefighters' Collective Bargaining Agreement with the City. See Wilcher , at 17-19 (June 30, 1996 Memorandum). According to the plaintiffs, this issue was moot by the close of the trial because the City had agreed at least temporarily to discontinue using the method. Because the City has explicitly reserved its right to use this procedure in the future, we do not agree that this issue is "moot." Moreover, the City has never conceded the impermissibility of SODAT's drug testing procedure under the Collective Bargaining Agreement with the firefighters. Nevertheless, we agree that this issue should not have been decided by the district court. The plaintiffs never raised the Collective Bargaining Agreement in the pleadings. Moreover, when the case was tried, plaintiffs had not yet exhausted their administrative remedies, such as arbitration. Therefore, the issue was not properly before the district court, and we will vacate the district court's ruling on it.

3. Because it is the method of testing, rather than the fact of testing, which is at issue, we do not find that appellants' post-argument citation to Chandler v. Miller , 117 S.Ct. 1295 (1997), is helpful to our considerations here.

4. In addition, we note the concession of plaintiffs' attorney at oral argument that she was not seeking reversal of the trial court's factual findings.

5. See also Dimeo v. Griffin , 943 F.2d 679, 682 (7th Cir. 1991) (noting that "[u]rination is generally a private activity in our culture, though, for most men, not highly private.")

6. We note that our conclusion might differ had the district court accepted the firefighters' testimony that SODAT's monitors looked over firefighters' shoulders as they provided their urine specimens. Similarly, we would be much more concerned with a procedure's intrusion on privacy if it required the monitor to stand in front of the firefighter, or if it demanded the direct observation of the firefighter's genitalia.

7. We note that the D.C. Circuit has come to the opposite conclusion with regard to this issue. See Piroglu v. T.R. Coleman , 25 F.3d 1098 (D.C. Cir. 1994); National Treas. Employees v. Yeutter , 918 F.2d 968, 976 (D.C. Cir. 1990). These cases, however, were decided prior to the Supreme Court's decision in Vernonia .

8. Because we affirm the district court's disposition of plaintiffs' Fourth Amendment claim, we need not review either the district court's determination that SODAT was not a state actor, or its conclusion that the City defendants, as sued in their individual capacities, were entitled to qualified immunity.

9. Although the plaintiffs waived their jury trial rights, we nevertheless note that the district court misapplied our statement in Bolden when it concluded that there were no factual issues for the jury to decide. The fact that reasonableness under the Fourth Amendment is a legal issue does not make all issues under the Fourth Amendment legal in nature.

For example, in Dykes v. SEPTA , 68 F.3d 1564, 1568 (3d Cir. 1995), we addressed a claim that SEPTA had violated its own drug-testing policy by testing the plaintiff without reasonable suspicion. Reiterating our statement in Bolden , we held that the specific question of whether SEPTA had reasonable suspicion to test the plaintiff (i.e. evidence that he might be using drugs) was factual. See 68 F.3d at 1567. Thus, our statement in Bolden applied only to the ultimate determination of whether SODAT's drug testing procedure qualified as "reasonable" under the Fourth Amendment, not to any determination of the factual elements of that procedure.

10. The district court also dismissed the plaintiffs' invasion of privacy claims because, "the `intrusion into physical solitude' claimed by thePlaintiffs resulting from the direct observation method was consented to by written contract." Wilcher , 924 F.Supp. at 619. We find the court's statement on this matter puzzling, as the court has cited no portion of the Collective Bargaining Agreement in which the firefighters actually consented to such a method of drug testing.

11. We know of no Delaware case that has discussed or been presented with this issue. We do not predict at this juncture what the Delaware Supreme Court would do if presented with this issue. Cf. Epstein Family Partnership v. Kmart Corp. , 13 F.3d 762, 765 (3d Cir. 1994) (if state court has not ruled on issue, federal district court must predict how it would decide issue). Moreover, the fact that direct observation method passes muster under the Fourth Amendment certainly may be raised by the City and SODAT in defense of the invasion of privacy claim. We simply hold that a federal district court cannot presume that a state's common law tort standard and a constitutional balancing test would reach the same result when applied to the same set of facts. The reasonableness of a procedure under the Fourth Amendment may be relevant to the inquiry under state law, but it is not necessarily dispositive of the state law claim.

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People v. Bustamante, 30 Cal.3d 88
[Crim. No. 21740. Supreme Court of California. October 22, 1981.]

THE PEOPLE, Plaintiff and Respondent, v. RUDOLFO BUSTAMANTE, Defendant and Appellant

(Opinion by Tobriner, J., with Mosk and Newman, JJ., and Wiener, J., concurring. Separate concurring opinion by Bird, C. J. with Staniforth, J., concurring. Separate dissenting opinion by Richardson, J.)

COUNSEL

Paul T. Suzuki, under appointment by the Supreme Court, for Defendant and Appellant.

James R. Jenner, Public Defender (Alameda), Jay B. Gaskill, Assistant Public Defender, Michael Samuel Ogul, Quin Denvir, State Public Defender, Jean R. Sternberg and Gail R. Weinheimer, Deputy State Public Defenders, as Amici Curiae on behalf of Defendant and Appellant.

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Carol Wendelin Pollack, Marc E. Turchin and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

Herb Jackson, District Attorney (Sacramento), and George M. Hendrickson, Deputy District Attorney, as Amici Curiae on behalf of Plaintiff and Respondent.

OPINION

TOBRINER, J.

United States v. Wade (1967) 388 U.S. 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926], established the right of a defendant under the federal Constitution to the assistance of counsel at a pretrial lineup. In People v. Fowler (1969) 1 Cal.3d 335 [82 Cal.Rptr. 363, 461 P.2d 643], we followed the reasoning of Wade to hold that defendant is entitled to counsel at a preindictment lineup; in Kirby v. Illinois (1972) 406 U.S. 682 [34 L.Ed.2d 411, 92 S.Ct. 1877], however, the United States Supreme Court limited the right to counsel to postindictment [30 Cal.3d 92] lineups. fn. 1 We therefore face, as a matter of first impression before this court, the question whether under the California Constitution a California defendant has a right to counsel which extends to preindictment lineups.

We have concluded that we should adhere to the position we took in Fowler -- that the right to counsel encompasses preindictment lineups -- and we rest that position on the California Constitution. As we shall explain, judicial recognition of the right to counsel at a lineup arose from appreciation of the proverbial unreliability of eyewitness identification of strangers, and of the dangers that improper, inadvertent or deliberate suggestion at a lineup will irradicably influence identification testimony. Defense counsel, if present at the lineup, could observe irregularities, detect suggestion, and prepare for cross-examination of the identifying witnesses. Because the danger of invalid suggestion and misidentification equally characterizes and applies both to preindictment and postindictment lineups, we conclude that defendant's right to counsel should not be limited to postindictment lineups.

In the present case, defendant Bustamante appeals from a conviction for robbery and various other crimes. He asserts that he was denied the right to counsel at a preindictment lineup at which a witness to the robbery identified him. Applying the principles established in Fowler and reaffirmed in this opinion, we reverse the robbery conviction and remand the matter to the trial court to determine if the witness' testimony rests upon an independent ground untainted by the lineup identification. Since that identification affects only the robbery count, we affirm the conviction on all other counts.

I. Statement of Facts

Charles Grosskopf testified that on March 13, 1979, he returned to his apartment to find two men, a black and a hispanic, inside the apartment. The black man held him while the hispanic took his wallet. The hispanic demanded more money; when Grosskopf said that he had none, the hispanic stabbed Grosskopf. At the preliminary hearing, Grosskopf identified defendant as the person who stabbed him. He repeated that identification at trial. [30 Cal.3d 93]

Joseph Zimmerman also testified at trial that he observed a black and a hispanic enter the apartment building and go upstairs. Five to eight minutes later he encountered Grosskopf bleeding from a knife wound. After defendant was arrested but before charges were filed, Zimmerman identified him at a lineup. Although defendant had requested counsel, none was provided at the lineup. The admissibility of Zimmerman's trial testimony identifying defendant is the principal issue on this appeal.

Matthew Ozaki testified that on March 21, 1979, someone broke into his apartment and took a jacket, two guns, a wallet, and other items. Later that day defendant was arrested for being under the influence of narcotics. A subsequent search of defendant's person and lodging turned up a gun, knives, personal property belonging to Grosskopf and Ozaki, and quantities of cocaine and concentrated cannabis.

Prior to trial, defendant moved to challenge Zimmerman's identification on the ground that defendant had been refused his right to counsel. The trial court denied the motion. Defendant renewed his efforts to exclude the identification testimony at trial. In addition, he called as witnesses two women who had seen the black and hispanic enter and leave the building; both identified defendant at the lineup but said they were not certain of their identification.

The jury convicted defendant of count I, robbery of Grosskopf, and found as aggravating factors that he inflicted great bodily injury (see Pen. Code, 12022.7), that the victim was 60 years of age or over (see Pen. Code, 1203.09), and that defendant personally used a deadly weapon (see Pen. Code, 12022, subd. (b)). In connection with the Ozaki matter, defendant was acquitted of burglary (count II) and theft of a gun (count III), but convicted of receiving stolen property (count IV). Defendant was also convicted of being an ex-felon in possession of a firearm (count V), possession of cocaine (count VI), and possession of concentrated cannabis (count VII).

The trial court sentenced defendant to the upper term of five years for robbery, with a three-year enhancement for the infliction of great bodily injury and a one-year enhancement for the use of a deadly weapon. It further imposed consecutive sentences of one-third of the middle term on counts IV, V, and VI, and a concurrent term for count VII. [30 Cal.3d 94]

Defendant appeals from the judgment. His principal contention relates only to the robbery conviction. He urges that the court erred in admitting the identification testimony of Zimmerman because that witness first identified him at a lineup in which he was denied the right to counsel.

II.

[1a] Under article I, section 15 of the California Constitution, a defendant has the right to assistance of counsel at a preindictment lineup.

We first examine this case from the perspective of the history of judicial rulings from the date of the rendition of United States v. Wade, supra, 388 U.S. 218, to the present. In Wade, the United States Supreme Court developed constitutional limits as to the admissibility of identification testimony. The witnesses in that case had first identified the defendant at an FBI lineup staged 15 days after counsel had been appointed for defendant; counsel was not notified of, or present at, the lineup. The court ruled that defendant was entitled to counsel at a postindictment lineup, and consequently that the identification testimony should not have been admitted unless the prosecution could show that the testimony originated from an independent source, untainted by the improper lineup. fn. 2

Relying upon cases defining the defendant's right to counsel under the Sixth Amendment (Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758] and Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]), the court pronounced a general principle: that a defendant enjoys a right to counsel at every "critical stage" in the prosecution. (P. 227 [18 L.Ed.2d, p. 1157].) It then focused on two problems in particular: the danger that suggestion, intentional or unconscious, will influence the witness' identification; and the difficulty in reconstructing the manner and mode of lineup identification at trial, so that defense counsel would be unable to cross-examine the witness on that subject. These problems led the court to conclude that "there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which [30 Cal.3d 95] he was 'as much entitled to such aid [of counsel] ... as at the trial itself.' (Powell v. Alabama, 287 U.S. 45, 57.)" (Pp. 236-237 [18 L.Ed.2d, pp. 1162-1163].)

In People v. Fowler (1969) 1 Cal.3d 335 [82 Cal.Rptr. 363, 461 P.2d 643], we concluded that the rules established in Wade and Gilbert governed preindictment lineups. Justice Sullivan, writing for the majority, noted that "[t]he presence or absence of those conditions attendant upon lineups which induced the high court to term such proceedings 'a critical stage of the prosecution' at which the right to counsel attaches ... is certainly not dependent upon the occurrence or nonoccurrence of proceedings formally binding a defendant over for trial. A lineup which occurs prior to the point in question may be fraught with the same risks of suggestion as one occurring after that point, and may result in the same far-reaching consequences for the defendant." (P. 342.) (Fns. omitted.) fn. 3

Although lower federal courts also interpreted Wade and Gilbert to apply to preindictment lineups (see Wilson v. Gaffney (10th Cir. 1972) 454 F.2d 142, 144; United States v. Greene (D.C. Cir. 1970) 429 F.2d 193, 196; United States v. Phillips (9th Cir. 1970) 427 F.2d 1035, 1037), when the issue reached the United States Supreme Court, that court disagreed. In Kirby v. Illinois (1972) 406 U.S. 682 [32 L.Ed.2d 411, 92 S.Ct. 1877], the plurality opinion of Justice Stewart, noting that Wade and Gilbert required counsel only at a "critical stage of the criminal prosecution" (p. 683 32 L.Ed.2d, p. 414], citing Gilbert v. California, supra, 388 U.S. 263, 272 [18 L.Ed.2d 1178, 1186]), held that for this purpose the "prosecution" does not commence until "the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."

Two California Court of Appeal decisions assumed that Kirby overturned Fowler and consequently that defendants were no longer entitled [30 Cal.3d 96] to counsel at a preindictment lineup. (People v. Faulkner (1972) 28 Cal.App.3d 384, 390 [104 Cal.Rptr. 625]; People v. O'Roy (1972) 29 Cal.App.3d 656, 662 [105 Cal.Rptr. 717].) When that issue reached this court, however, we failed to reach a majority consensus. In People v. Chojnacky (1973) 8 Cal.3d 759 [106 Cal.Rptr. 106, 505 P.2d 530], the opinion of Justice Burke, joined by Chief Justice Wright and Justice McComb, asserted that Fowler was no longer controlling after the decision of the United States Supreme Court in Kirby. (P. 764.) Justice Mosk, concurring, maintained that because the lineup in Chojnacky took place before the filing of the decision in Kirby, its validity must still be judged under the Wade-Gilbert rules as applied in Fowler. He concluded, however, that the presence of counsel at the lineup satisfied the Wade-Gilbert rules even though counsel was not informed which man in the lineup was his client. (P. 768.) I joined the dissenting opinion of Justice Sullivan, which stated not only that Fowler did control but also that the police refusal to disclose to counsel the identity of his client rendered the identification testimony inadmissible. (Pp. 769-770.)

Since Chojnacky failed to settle the issue, the Courts of Appeal in subsequent cases continued to assume that a defendant had no right to counsel at a preindictment lineup. (People v. Kilpatrick (1980) 105 Cal.App.3d 401, 411 [164 Cal.Rptr. 349]; People v. Williams (1977) 68 Cal.App.3d 36, 42 [137 Cal.Rptr. 70]; fn. 4 People v. Strawder (1973) 34 Cal.App.3d 370, 378 [108 Cal.Rptr. 901]; but see People v. Johnson (1978) 85 Cal.App.3d 684 [149 Cal.Rptr. 661], which assumed arguendo that defendant was erroneously denied counsel at a preindictment lineup, but held the error nonprejudicial.) Presiding Justice Roth, dissenting in Johnson, argued that a defendant enjoyed a more extensive right to counsel under the California Constitution than the limited federal right circumscribed by Kirby (see 85 Cal.App.3d at p. 699), but no majority opinion considered that proposition. Thus today we approach the question of a defendant's right to counsel at a lineup under the California Constitution as a question of first impression. fn. 5 [30 Cal.3d 97]

[2] In construing the Bill of Rights in the California Constitution, we give respectful consideration to decisions of the United States Supreme Court construing federal constitutional guarantees, but we are not bound to follow those decisions. (People v. Longwill (1975) 14 Cal.3d 943, 951, fn. 4 [123 Cal.Rptr. 297, 538 P.2d 753].) As we stated in People v. Chavez (1980) 26 Cal.3d 334, 352 [161 Cal.Rptr. 762, 605 P.2d 401]: "[J]ust as the United States Supreme Court bears the ultimate judicial responsibility for determining matters of federal law, this court bears the ultimate judicial responsibility for resolving questions of state law, including the proper interpretation of provisions of the state Constitution. [Citations.] In fulfilling this difficult and grave responsibility, we cannot properly relegate our task to the judicial guardians of the federal Constitution, but instead must recognize our personal obligation to exercise independent legal judgment in ascertaining the meaning and application of state constitutional provisions."

A blind following of Supreme Court precedent would frustrate our ability to protect rights enjoyed by Californians and to maintain consistency in California law. (See Mosk, The State Courts, in American Law: The Third Century (Schwartz edit. 1976) 213, 217-220.) If the United States Supreme Court hands down a decision which limits rights established by earlier precedent in a manner inconsistent with the spirit of the earlier opinion, it may become incumbent upon this court to employ the California Constitution to maintain consistent principles protecting those rights. (See People v. Disbrow (1976) 16 Cal.3d 101, 115 [127 Cal.Rptr. 360, 545 P.2d 272].) "Respect for our Constitution as 'a document of independent force' [citation omitted] forbids us to abandon settled applications of its terms every time changes are announced in the interpretation of the federal charter." (People v. Pettingill (1978) 21 Cal.3d 231, 248 [145 Cal.Rptr. 861, 578 P.2d 108].)

Consequently, even though United States v. Wade, supra, 388 U.S. 218 held that the federal Constitution grants defendants a right to counsel at lineups, we are free to determine as an issue of first impression whether the California Constitution grants a similar right. [1b] If we determine that defendants have a right to counsel at lineups under [30 Cal.3d 98] the state Constitution, we must determine whether that right is limited to postindictment lineups as indicated in Kirby, or extends to all lineups in accord with the California practice following Fowler.

We first consider whether article I, section 15 of the California Constitution, which guarantees a defendant "the assistance of counsel," imports a right to have counsel present at a lineup. Concluding that the constitutional provision includes such a right, we must consider the question whether that right should be limited, as suggested by Kirby, to postindictment lineups.

Judicial recognition of the right to counsel at a lineup originated as a response to the recognized unreliability of eyewitness identification. As a leading scholar then stated, "The identification of strangers is proverbially untrustworthy." (Frankfurter, The Case of Sacco and Vanzetti (1927) p. 30.) Another commentator, Judge Jerome Frank, concluded that "Perhaps erroneous identification of the accused constitutes the major cause of the known wrongful convictions." (Frank & Frank, Not Guilty (1957) p. 61.) fn. 6

In light of these dangers, a properly conducted lineup, staged as soon as feasible after the crime, and containing a number of persons whose general appearance resembles the defendant, becomes an invaluable police technique to enhance the reliability of identification. That procedure, however, clearly makes the lineup a "critical stage of the prosecution" within the language of United States v. Wade, supra, 368 U.S. 218, 237 [18 L.Ed.2d 1149, 1162-1163], for when a witness has made a positive identification at a lineup, he is unlikely to change his mind. "[O]nce any identification decision is made it may well be 'irreparable.'" (People v. Anderson, supra, 205 N.W.2d 461, 485, italics omitted; see United States v. Wade, supra, 388 U.S. 218, 228 [18 L.Ed.2d 1149, 1158]; cf. Simmons v. United States (1968) 390 U.S. 377, 383-384 [19 L.Ed.2d 1247, 1253, 88 S.Ct. 967] (photographic lineup).) Identification testimony at trial, when defendant has counsel who may cross-examine the witness, may be unshakable if an earlier lineup identification has removed the witnesses' doubts and committed him to the proposition that defendant is the criminal in question. [30 Cal.3d 99]

As Justice Brennan stated in Wade, "A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that '[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor -- perhaps it is responsible for more such errors than all other factors combined.' Wall, Eye-Witness Identification in Criminal Cases 26." (Pp. 228-229 [18 L.Ed.2d, p. 1158]; see Sobel, Eyewitness Identification (1972) 3.01.) Moreover, as Wade and other cases pointed out, it is extremely difficult to reproduce the identification procedure at trial with sufficient precision to detect improper suggestion.

We therefore conclude that a pretrial lineup is a critical stage in the prosecution of a criminal case, and that ensuring the fairness of that lineup is crucial to the protection of innocent persons accused of crime. The more difficult question is whether the requirement of the presence of counsel will significantly alleviate the danger of mistaken identification.

Although counsel plays only a limited role at the lineup itself fn. 7 his presence may still serve to protect the rights of the defendant. A requirement for counsel at lineups encourages the police to adopt regulations to ensure the fairness of the lineups (see Pulaski, Neil v. Biggers: The Supreme Court Dismantles the Wade Trilogy's Due Process Protection (1974) 26 Stan.L.Rev. 1097, 1101) and to follow those regulations (see People v. Fowler, supra, 1 Cal.3d 335, 348). The attorney may detect inadvertent suggestive actions not within the scope of protective regulations. Finally, counsel's observations will help him to prepare for cross-examination of the identifying witness and for argument at trial. (See Blue v. State, supra, 558 P.2d 636, 641; Read, Lawyers at Lineups: Constitutional Necessity or Avoidable Extravagance? (1969) 17 UCLA L.Rev. 339, 376.) [30 Cal.3d 100]

We recognize that some jurists and commentators have urged that the presence of counsel is not necessarily the only way, or even the best way, to protect a defendant from mistaken identification. (See United States v. Wade, supra, 388 U.S. 218, 239 [18 L.Ed.2d 1149, 1164] (opn. of Brennan, J.); id., at p. 262, fn. "*" (opn. of Fortas, J.); People v. Fowler, supra, 1 Cal.3d 335, 348-349; see generally Sobel, Eye-Witness Identification (1972) 56, proposing standards for conducting a fair lineup; Pulaski, op. cit., supra, 26 Stan.L.Rev. 1097, 1101-1102; Read, op. cit. supra, 17 UCLA L.Rev. 339, 379-393 (suggesting a form regulation).)

We need not, however, decide today whether regulations can be promulgated which are so effective in protecting the defendant's rights that presence of counsel is no longer constitutionally compelled. fn. 8 We have previously indicated that the pretrial lineup is a critical stage in California criminal prosecutions. Since the presence of counsel can contribute significantly to the protection of his client from misidentification, defendant is entitled to have counsel present to assist him at that critical juncture. We therefore hold that, a California defendant's right to assistance of counsel includes the right to counsel at a pretrial lineup.

We turn to the question whether defendant's right to counsel should be limited, as in Kirby, to postindictment lineups. As we noted earlier, the plurality opinion in Kirby did not deny that a preindictment lineup may be critical to the defense of a criminal case and may result in intractable misidentification of an innocent accused; it held, instead, that defendant has no right to counsel until the "prosecution" commences with the filing of formal charges.

We think this a wholly unrealistic view, and note that the commentators have generally condemned Kirby's limitation of the right to counsel. (See Pulaski, op. cit., supra, 26 Stan.L.Rev. 1097, 1102 and fn. 39.) At least from the rendition of People v. Dorado (1965) 62 Cal.2d [30 Cal.3d 101] 338, 346 [42 Cal.Rptr. 169, 398 P.2d 361], we have recognized that a defendant may require the assistance of counsel before formal charges have been filed. Indeed, to limit the right to counsel at a lineup to postindictment lineups would as a practical matter nullify that right. "The defendant who most needs protection from erroneous identification is one who is implicated primarily or solely by eyewitness testimony. Yet, because of this lack of noneyewitness evidence, an identification of the defendant in a lineup or showup would be necessary to justify formal charges or arraignment. Consequently, the crucial confrontation necessarily will be held before the initiation of formal judicial proceedings when the defendant can be deprived of counsel. Thus Kirby removes the protective effects of counsel's presence precisely when the danger of convicting an innocent defendant upon a mistaken identification is greatest. Furthermore, after Kirby, the policy may defeat the aims of Wade and Gilbert in any case simply by delaying formal charges and holding the lineup in the absence of defense counsel." (Note (1977) 29 Stan.L.Rev. 969, 996, fns. omitted.)

The Attorney General argues that requiring counsel at lineups, without the Kirby limitation, will hamper legitimate police investigation. The officers, he points out, would be required to advise defendant of his right to counsel, determine whether he wants counsel, and arrange for counsel if defendant is indigent. Further delay may ensue if counsel, retained by the defendant or secured by the police, cannot come promptly to the site of the lineup. If the right to counsel at a lineup is limited to postindictment lineups, defendant will generally be represented by counsel of record, which may make arranging for the presence of counsel at the lineup an easier task.

Although extending the right to counsel to preindictment lineups will thus impose an additional burden upon the police, and may delay the staging of the lineup, these consequences do not appear substantial enough to justify denying defendant this protective right. The burden of securing counsel is exactly the same as that which police departments must assume if they wish to question a defendant who invokes his right to counsel under Miranda v. Arizona, supra, 384 U.S. 436; it is a requirement which governed all California lineups during the five years between Wade and Kirby -- without, so far as we are aware, significantly impeding police investigation. The delay involved in securing counsel will generally be a matter of hours at most. If conditions require immediate identification without even minimal delay, or if counsel cannot be [30 Cal.3d 102] present within a reasonable time, such exigent circumstances will justify proceeding without counsel. fn. 9

We conclude that we should adhere to the views stated in People v. Fowler (1969) 1 Cal.3d 335 [82 Cal.Rptr. 363, 461 P.2d 643]. We hold that article I, section 15 of the California Constitution, affords to a defendant the right to the presence of counsel at a preindictment lineup. Any implication to the contrary in the Court of Appeal decisions cited earlier (People v. Kilpatrick, supra, 105 Cal.App.3d 401; People v. Williams, supra, 68 Cal.App.3d 36; People v. Strawder, supra, 34 Cal.App.3d 370; People v. Faulkner, supra, 28 Cal.App.3d 384; People v. O'Roy, supra, 29 Cal.App.3d 656) are disapproved.

[3] We turn now to two subsidiary issues: the retroactive effect, if any, to be given our holding, and the impact of that holding upon the disposition of the present appeal.

In recent years, when we have overruled decisions on criminal procedure upon which prosecutors and lower courts have relied, we have often declared that our holding is prospective except as to the individual defendant whose appeal is being adjudicated by the court (see People v. Cook (1978) 22 Cal.3d 67, 99, fn. 18 [148 Cal.Rptr. 605, 583 P.2d 130] and cases there cited). As the public defender points out, we have hitherto applied that doctrine only when we have overruled an earlier decision of this court. In the present case, our decision upholding a right to counsel at preindictment lineups does not conflict with any prior precedent of this court. Nevertheless, because the Chojnacky court failed to reach a majority, the Courts of Appeal were compelled to decide that issue without guidance from this court; they decided against extending the right to counsel to preindictment lineups; police, prosecutors, and courts have placed extensive reliance upon these decisions. We believe that the rationale underlying prospectivity in Cook and similar cases applies in the present situation. Accordingly, with the exception of the present appeal, the holding in this opinion should apply only to lineups held after the date of finality of this opinion.

[4a] In the present appeal, our holding would require the exclusion of the identification testimony of Zimmerman unless that testimony [30 Cal.3d 103] rests on a basis independent from and untainted by the improper lineup. (See United States v. Wade, supra, 388 U.S. 218, 240-242 [18 L.Ed.2d 1149, 1164-1166].) The trial court rendered no finding sufficient to permit admission of the testimony on this basis. The Attorney General argues, however, that even if Zimmerman's testimony is excluded the robbery conviction should be upheld on the basis of the other evidence against defendant. fn. 10

The robbery conviction finds support in the identification testimony of Grosskopf, the tentative identifications by the two women called as defense witnesses, and the discovery of Grosskopf's wallet in defendant's room. The testimony of Zimmerman, however, was the strongest single item of prosecution evidence, since Zimmerman picked defendant out of a lineup immediately after the defendant's arrest, while Grosskopf did not identify defendant until the preliminary hearing when defendant was not arrayed with persons of similar appearance. fn. 11 In the absence of Zimmerman's testimony we think it reasonably probable that the jury would not have convicted defendant on count I of the information.

[5] When the admissibility of evidence turns on an issue of fact -- an issue unresolved by the trial court because its significance was established by a subsequent appellate opinion -- the appellate court need not reverse the conviction outright, but can remand the cause for resolution of the factual issue. (See People v. Vanbuskirk (1976) 61 Cal.App.3d 395, 405 [132 Cal.Rptr. 30]; People v. Ingram (1978) 87 Cal.App.3d 832, 840-841 [151 Cal.Rptr. 239] and cases there cited.) [4b] In the present setting, the admissibility of Zimmerman's testimony depends on whether it derives from an independent source, untainted by the counselless lineup -- a factual issue which the lower court, relying on Kirby, failed to resolve. Accordingly, the judgment against defendant on count I of the information should be reversed and remanded for the trial court to determine that issue. If it decides in favor of defendant and excludes the testimony, defendant would be entitled to a new trial; if it decides in favor of the People, the court should reinstate the judgment previously rendered. [30 Cal.3d 104]

Defendant's other contentions were fully addressed by the Court of Appeal. We agree with that court's resolution of the issues there presented, and therefore reject those contentions as without merit. (See People v. James (1977) 19 Cal.3d 99, 118 [137 Cal.Rptr. 447, 561 P.2d 1135].)

The judgment with respect to count I (robbery) is reversed, and the cause remanded for further proceedings in accord with the views expressed in this opinion. The judgment as to count IV (receiving stolen property), count V (possession of a gun by ex-felon), count VI (possession of cocaine), and count VII (possession of concentrated cannabis) is affirmed. fn. 12

Mosk, J., Newman, J., and Wiener, J., concurred.

BIRD, C. J.

I concur in the judgment of the court but I must dissent from two assertions in the majority opinion. It is suggested in dictum that counsel's role at lineups should be a passive one. From this conclusion, the majority go on to suggest that counsel might be constitutionally replaced by proper regulations governing lineups. (Maj. opn., ante, at pp. 99-100.)

The presence of counsel at a lineup is vital to counsel's preparation for the cross-examination of witnesses at trial. (Maj. opn., ante, at p. 99; People v. Fowler (1969) 1 Cal.3d 328, 348-349 [82 Cal.Rptr. 363, 461 P.2d 643]; United States v. Wade (1967) 388 U.S. 218, 227 [18 L.Ed.2d 1149, 1157, 87 S.Ct. 1926].) This court has recognized that regulations for lineups are not an adequate substitute for the presence of counsel. Regulations cannot protect the constitutional rights of an accused to meaningful cross-examination and the effective assistance of counsel. fn. 1 Studies have also indicated that the presence of an observer [30 Cal.3d 105] at an identification procedure can reduce unintentional bias. (Levine & Tapp, The Psychology of Criminal Identification: The Gap from Wade to Kirby (1973) 121 U.Pa.L.Rev. 1079, 1114, 1125, and studies cited at fn. 183.)

The majority opinion contains the unfortunate implication that the need for counsel might be obviated if regulations for lineups are adopted. (Maj. opn., ante, at p. 99.) In my view, the requirement that counsel be present and the need to set down regulations are not mutually exclusive.

Legal scholars have repeatedly recognized the crucial value of regulations governing lineups and the importance of the presence of counsel. "[E]ven a strictly applied [standard against suggestive procedures] would not be an adequate substitute for counsel in confrontations held before the initiation of 'adversary judicial proceedings.' Due process cannot accomplish the same goals that counsel can." (Comment, The Right to Counsel: Attachment Before Criminal Judicial Proceedings? (1979) 47 Fordham L.Rev. 810, 831; see also Levine & Tapp, op. cit. supra, 121 U.Pa.L.Rev. 1079, 1125: "It is not that the right to counsel should be abandoned .... It would, however, be most unfortunate if the presence of counsel produced a false sense of security which inhibited additional procedural reform.")

The right to the presence of counsel at a lineup is not an ill-considered measure which may be dispensed with if regulations are adopted. The requirement that counsel be present serves constitutional interests. The right to the effective assistance of counsel is involved. Videotapes and regulations cannot be substituted for such a basic constitutional right.

The suggestion that counsel may be replaced by rule and camera grows out of the majority's ill-conceived notion that counsel is merely a passive observer at lineups. This court has never enunciated such a role. (People v. Fowler, supra, 1 Cal.3d at p. 349, fn. 19.) Counsel cannot unreasonably be denied access to his own client, and, therefore, should in most cases be permitted to see his client prior to a lineup. (Cf. People v. Chojnacky (1973) 8 Cal.3d 759, 769 [106 Cal.Rptr. 106, 505 P.2d 530] [dis. opn. of Sullivan, J.].) Further, counsel can give valuable [30 Cal.3d 106] advice to an anxious client on how to conduct himself during the lineup so as to ensure its fairness. (Katz & Carter, Cal. Criminal Law Practice Series, Eyewitnesses Identification (1978) at p. 9; Levine & Tapp, op. cit. supra, 121 U.Pa.L.Rev. at p. 1125.)

Further, counsel should be free to suggest changes so that a lineup is fair. The presence of counsel at the lineup also provides an opportunity to meet and interview eyewitnesses before a great deal of time has elapsed between their pretrial identifications and their in-court identifications.

Printed rules and a videotape camera do not a counsel make. A passive counsel is not necessarily an effective counsel at a lineup. If this court wants to ensure that identifications by eyewitnesses are fair and just, it should not discourage the participation of counsel who may be able to ensure that proper procedures are used.

Staniforth, J., concurred.

RICHARDSON, J.

I respectfully dissent. Relying upon the California Constitution, the majority holds that suspects facing preindictment or prearraignment identification lineups are entitled to the selection or appointment, presence and assistance of counsel. The majority thereby unnecessarily extends the right of counsel beyond the requirements of the federal Constitution as interpreted by the United States Supreme Court. (See Kirby v. Illinois (1972) 406 U.S. 682 [34 L.Ed.2d 411, 92 S.Ct. 1877].) In my view, Kirby affords a sound basis for confining the right to counsel to lineups which occur after the defendant has been formally charged with a crime.

The majority ignores the forceful reasoning of Justice Stewart's plurality opinion in Kirby which carefully explains the significance of the filing of formal charges in the context of right to counsel: "The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. [] It is this point, [30 Cal.3d 107] therefore, that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable. [Citations.] [] In this case we are asked to import into a routine police investigation an absolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings. We decline to do so. Less than a year after Wade and Gilbert were decided, the Court explained the rule of those decisions as follows: 'The rationale of those cases was that an accused is entitled to counsel at any "critical stage of the prosecution," and that a postindictment lineup is such a "critical stage."' (Italics supplied.) [Citation.] We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever." (Pp. 689-690 [34 L.Ed.2d, pp. 417-418], fn. omitted.)

The People represent, and defendant does not contest, that the Kirby rule has been adopted by the following 37 states: Alabama, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, West Virginia, and Wisconsin. Of those states examining the question, only four apparently have not accepted the rule. Thus, the statement in the majority opinion that "A majority of state court decisions follow Kirby ..." (ante, p. 96, fn. 5) is a considerable understatement.

A criminal investigation is not a criminal prosecution. Nonetheless, rejecting the decision in Kirby, the majority holds that a preindictment lineup is a "critical stage" of criminal proceedings, by reason of the "unreliability of eyewitness identification of strangers" and the "dangers that improper, inadvertent or deliberate suggestion at a lineup will irradicably influence identification testimony." (Ante, p. 92.) Such factors, however, do not warrant our departure from Kirby. Unreliable identifications can occur whether or not counsel is present. Moreover, any abuse of identification procedures, including improperly suggestive lineups, may be fully reviewed under applicable due process standards. (Kirby, 406 U.S. at pp. 690-691 [34 L.Ed.2d at p. 418]; Stovall v. Denno (1967) 388 U.S. 293 [18 L.Ed.2d 1199, 87 S.Ct. 1967].) As stressed by the high court in Kirby, "Stovall strikes the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt [30 Cal.3d 108] and purposeful investigation of an unsolved crime." (P. 691 [34 L.Ed.2d, pp. 418-419].) We err in again deliberately tilting this balance against the People.

In the present case, complete photographs of the lineup and its participants (both front and side views) were taken and were made available to defense counsel at trial. The victims had told police officers that the suspects were a black and an Hispanic. Accordingly, the officers displayed at the lineup six blacks and six Hispanics to the witnesses, who marked their identifications upon cards supplied for that purpose. The procedures employed here certainly help to reduce the danger of suggestion at the lineup.

The presence of counsel at a lineup affords no absolute protection against unreliable or suggestive identifications. In the words of one commentator, "A review of the role of counsel at lineups indicates the limited nature of the services he can perform. In fact, there are some indications that a lawyer's presence may hinder the effective use of the lineup as an investigatory technique." (Read, Lawyers at Lineups: Constitutional Necessity or Avoidable Extravagence? (1969) 17 UCLA L.Rev. 339, 394, italics added.) Indeed, considerable doubt exists as to the proper function of the suspect's counsel at a lineup, and "it would appear that defense counsel has no affirmative right to be active during the course of the lineup." (People v. Williams (1971) 3 Cal.3d 853, 860 [92 Cal.Rptr. 6, 478 P.2d 942] [dis. opn., by Mosk, J.]; see also Read, supra, at pp. 362-367.)

Given the passive role played by counsel at a lineup, it is not surprising that the vast majority of state courts have followed Kirby. There is a manifest need for the prompt and efficient identification of suspects following commission of a crime. Investigative leads may open and close very fast. The majority's new rule necessarily will cause needless and perhaps critical delays in this identification process. The suspect may not have counsel or he may be slow in selecting counsel. Once chosen, there may be financial or other complications in retaining counsel. Counsel may be on vacation or for varied reasons otherwise engaged. The majority's rejection of Kirby cannot but delay criminal investigations, and the delay may well be very appreciable. Meanwhile, this phase of the investigation grinds to a halt. Although the majority purports to recognize that "exigent circumstances will justify proceeding without counsel," (ante, p. 102), harried police personnel busily engaged [30 Cal.3d 109] in an ongoing investigation are further shackled because they may well be unable accurately to determine whether or not a true "exigency" exists. This can further complicate and prolong law enforcement procedures without a reciprocal compensating benefit.

I have previously expressed my views concerning the propriety of selective reliance upon provisions of the California Constitution to avoid otherwise applicable decisions of the United States Supreme Court interpreting identical, or substantially similar provisions of the federal Constitution. (E.g., People v. Disbrow (1976) 16 Cal.3d 101, 118-121 [127 Cal.Rptr. 360, 545 P.2d 272] [dis. opn.].) I do not repeat those views here.

The court's Kirby rule is supported not only by the great weight of authority, but by common sense as well. The majority's departure from Kirby is unnecessary and unwise. I would affirm the judgment of conviction.

―FN 1. For convenience -- because it corresponds to the language of Wade and Kirby -- we shall generally describe Kirby as distinguishing between "preindictment" and "postindictment" lineups. Although we describe our decision in terms of the right of a defendant to counsel at a "preindictment" lineup, our holding applies equally to felony prosecutions initiated by information and to misdemeanor prosecutions.

―FN 2. In a companion case, Gilbert v. California (1967) 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951], the court ruled that testimony at trial to the effect that witnesses identified the defendant at a postindictment lineup, which was held in violation of defendant's right to counsel, was inadmissible. Since such testimony derives directly from the improper lineup, it cannot be saved by proving that it came from an independent, untainted source. (See 388 U.S. at pp. 272-274 [18 L.Ed.2d at pp. 1186-1187].)

―FN 3. The Wade court had suggested that regulations which eliminated the risks of abuse and unintentional suggestion at lineups would remove the basis for regarding such confrontations as a "critical" stage of the prosecution (388 U.S. at p. 239 [18 L.Ed.2d at p. 1164]); thus the Attorney General in Fowler argued that the police regulations in effect at the Fowler lineup accomplished that purpose. We rejected that contention, noting that counsel could observe whether such protective regulations were followed and could aid in reconstructing the lineup procedure to detect unintentional suggestiveness or inadvertent use of unfair techniques. (P. 349 of 1 Cal.3d.) Accordingly, we held that the identification testimony against Fowler could not be admitted unless the prosecution could prove that it derived from an independent and untainted source.

―FN 4. Williams stated that under Kirby a defendant ordinarily had no right to counsel at a preindictment lineup, but established an exception when the arraignment was unreasonably delayed.

―FN 5. A majority of state court decisions follow Kirby in limiting a defendant's right to counsel at a lineup. Most decisions do not consider the alternative of independent state constitutional rights; among the few which do, and nevertheless resolve to follow Kirby, are State v. Boyd (Me. 1972) 294 A.2d 459, 463; State v. Delahunt (1979) ___ R.I. ___ [401 A.2d 1261, 1265]; State v. Taylor (1973) 60 Wis.2d 506 [210 N.W.2d 873, 882].

Two state courts have relied on state constitutional grounds to grant a right to counsel at preindictment lineups. (Blue v. State (Alaska 1977) 558 P.2d 636, 641; People v. Jackson (1974) 391 Mich. 323 [217 N.W.2d 22, 27].) The Pennsylvania Supreme Court reached nearly the same result by holding that, under Pennsylvania law, the initiation of criminal proceedings -- under Kirby, the point at which the right to counsel arises -- commences with the arrest. (Commonwealth v. Richman (1974) 458 Pa. 167 [320 A.2d 351, 353].)

―FN 6. The Michigan Supreme Court, in an appendix to People v. Anderson (1973) 389 Mich. 155 [205 N.W.2d 461, 479-494], reviewed at length the psychological factors which render eyewitness identification unreliable, and cited the leading studies and articles on the subject. The court also reviewed the facts in three Michigan cases in which mistaken identification led to the conviction of innocent defendants.

―FN 7. As Justice Mosk explained in People v. Williams (1971) 3 Cal.3d 853, 860 [92 Cal.Rptr. 6, 478 P.2d 942] (dis. opn.), counsel "cannot rearrange the personnel, cross-examine, ask those in the lineup to say anything or to don any particular clothing or to make any specific gestures. Counsel may not insist law enforcement officials hear his objection to procedures employed, nor may he compel them to adjust their lineup to his views of what is appropriate. [Citation omitted.] [] At most, defense counsel is merely present at the lineup to silently observe and to later recall his observations for purposes of cross-examination or to act in the capacity of a witness. But the latter raises the complex trial circumstances, frowned upon by ethics of the profession, of the lawyer serving in the additional role of a testimonial witness."

―FN 8. The record on appeal does not indicate the police regulations, if any, which governed the lineup in the present case, but does provide a description of the procedures employed. The police displayed six hispanics, including defendant, and six blacks to the witnesses, who marked their identifications on cards supplied for the purpose. The record of the lineup consists of color photographs, front and side view, of the participants. (Presumably the cards marked by the witnesses were also available, but were not offered into evidence.) We have no record, other than the testimony of the persons at the lineup, whether anything was said at the lineup by the suspects, the police, or the witnesses.

―FN 9. As stated in Blue v. State, supra, 558 P.2d 636, 642 a suspect in custody "is entitled to have counsel present at a pre-indictment lineup unless exigent circumstances exist so that providing counsel would unduly interfere with a prompt and purposeful investigation."

―FN 10. It is clear that the admission of Zimmerman's testimony is not prejudicial as to counts IV, V, VI, and VII of the information.

―FN 11. The record indicates that Zimmerman may have told Grosskopf of Zimmerman's identification of defendant before Grosskopf identified defendant; if so, that fact would undercut Grosskopf's identification testimony as an independent support for the conviction.

―FN 12. Under the Determinate Sentencing Act, a consecutive sentence imposed for a subordinate term is fixed at one-third of the middle term of imprisonment. (Pen. Code, 1170.1.) If the conviction underlying the principal term is reversed, it then becomes necessary for the trial court to select the next most serious conviction to compute a new principal term. Thus, whenever an appellate court reverses a conviction for the principal term, the trial court retains jurisdiction over the entire cause as needed to make the necessary modifications in the sentence. In the present case, the trial court retains jurisdiction over counts IV, V, VI, and VII, as well as over count I, and can modify the sentence as to these counts if the ultimate disposition of count I requires such action.

―FN 1. In People v. Fowler, supra, 1 Cal.3d at pages 348-349, this court discussed the constitutional infirmity of a highly regulated lineup that included still photographs of the lineup: "[Counsel's] opportunity for cross-examination on the basis of the cold regulations provided to him could amount to little more than shooting in the dark ...." (Id., at p. 349.)
rming in the area of due process than it is in the area of equal protection. (See Hawkins v. Superior Court (1978) 22 Cal.3d 584, 607-610 [150 Cal.Rptr. 435, 586 P.2d 916] (conc. opn. of Bird, C. J.).)

Bagley does not compel such a balancing of rights and interests. The implication in Bagley that restrictions on a less than fundamental right would call for a lesser standard of review is dictum and has been superseded by later developments in the doctrine of fundamental rights.

―FN 3. The former criminal statutes prohibiting abortion provide an example of direct infringement in this area. Those statutes were declared unconstitutional. Their impact fell most heavily on women who could not afford costly illegal abortions locally or legal abortions in other countries. (See Callahan, Abortion: Law, Choice and Morality (1970) pp. 136-137; Rosen, Psychiatric Implications of Abortion: A Case Study in Social Hypocrisy, in Abortion and the Law (Smith edit. 1967) pp. 90-92; Charles & Alexander, Abortions for Poor and Nonwhite Women: A Denial of Equal Protection (1971) 23 Hastings L.J. 147, 150-156.) This case presents an indirect infringement the results of which are the same. Thus, it is a distinction without a difference to assert that because the governmental action is indirect rather than direct, the infringements which result are of less significance constitutionally.

―FN 4. This court in Belous recognized "[t]he fundamental right of the woman to choose whether to bear children follows from the Supreme Court's and this court's repeated acknowledgment of a 'right of privacy' or 'liberty' in matters related to marriage, family, and sex. [Citations.] ... [] The critical issue is not whether such rights exist, but whether the state has a compelling interest in the regulation of a subject which is within the police powers of the state [citations], whether the regulation is 'necessary ... to the accomplishment of a permissible state policy' [citations], and whether legislation impinging on constitutionally protected areas is narrowly drawn and not of 'unlimited and indiscriminate sweep' [citations]." (71 Cal.2d at pp. 963-964.)

―FN 5. Article I, section 1 now reads: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." (Italics added.)

―FN 6. This extension of court decisions obviously included the extant decisions of this court in the area of freedom of choice and a citizen's right to privacy in areas dealing with procreation. (See Ballard v. Anderson (1971) 4 Cal.3d 873 [95 Cal.Rptr. 1, 484 P.2d 1345, 42 A.L.R.3d 1392]; People v. Belous, supra, 71 Cal.2d 954.)

―FN 7. Our Constitution provides: "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." (Cal. Const., art. I, 24.)

―FN 8. Judge David notes, for example, the prohibitions against slavery and the grant of women's suffrage long before such tenets were nationally adopted. (Id., at pp. 713, 727-728.)

―FN 9. The abortion funding cases of the United States Supreme Court have been criticized as inconsistent with Roe v. Wade, supra, and other federal cases. (Moe v. Secretary of Administration & Finance, supra, 417 N.Ed.2d at pp. 397-404; Harris v. McRae, supra, 448 U.S. at p. 329 [65 L.Ed.2d at p. 812, 100 S.Ct. at p. 2702] (dis. opn. of Brennan, J.); id. at p. 337 [65 L.Ed.2d at p. 817, 100 S.Ct. at p. 2706] (dis. opn. of Marshall, J.); Abortion Funding Cases, supra, 66 Geo. L.J. at pp. 1197-1201; Perry, Why the Supreme Court Was Plainly Wrong in the Hyde Amendment Case: A Brief Comment on Harris v. McRae (1980) 32 Stan. L.Rev. 1113; Tribe, American Constitutional Law (1978) 15-10, pp. 933-934, fn. 77 [hereinafter cited as Tribe]; Note, The Supreme Court, 1979 Term (1980) 94 Harv. L.Rev. 1, 96, 99-102; Note, Committee to Defend Reproductive Rights v. Myers: Medi-Cal Funding of Abortion (1979) 9 Golden Gate L. Rev. 361, 384-387.)

―FN 10. Some writers have noted that federal cases do not permit such a distinction either. (Harris v. McRae, supra, 448 U.S. at pp. 334-335 [65 L.Ed.2d at pp. 815-816, 100 S.Ct. at pp. 2704-2705] (dis. opn. of Brennan, J.); Note, The Supreme Court, 1979 Term, supra, 94 Harv. L.Rev. at pp. 96-107.)

―FN 11. The lead opinion's thorough analysis of the state's interest correctly concludes that the justifications advanced by the state are not compelling. (See lead opn., ante, at pp. 273-274.)
~~~~~~~~~~~~


People v. Brisendine , 13 Cal.3d 528
[Crim. No. 16520. Supreme Court of California. February 20, 1975.]

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL CLAYTON BRISENDINE, Defendant and Appellant

(In Bank. Opinion by Mosk, J., with Wright, C. J., Tobriner and Sullivan, JJ., concurring. Separate dissenting opinion by Burke, J., with McComb and Clark, JJ., concurring.)

COUNSEL

Garza, Kassel, Jordan & Welebir and Donald W. Jordan, Jr., for Defendant and Appellant.

Evelle J. Younger, Attorney General, Herbert L. Ashby, Chief Assistant Attorney General, William E. James, Assistant Attorney General, Derald E. Granberg and Conrad D. Petermann, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MOSK, J.

Defendant was charged with possession of marijuana (former Health & Saf. Code, 11530, now 11357) and possession of a restricted dangerous drug (former Health & Saf. Code, 11910, now 11377). His motion to suppress the evidence on the ground of illegal search and seizure (Pen. Code, 1538.5) was denied. Following an unsuccessful petition for mandamus the matter was submitted to the trial court on the transcript of the preliminary hearing. Defendant was found guilty on both counts and placed on probation. He appeals from the order granting probation (Pen. Code, 1237), contending that the contraband was obtained by means of an unlawful search and seizure.

I

On the night of June 3, 1970, two deputy sheriffs, Rodney Denney and Michael Norman, were inspecting for county fire code violations in the Deep Creek area of the San Bernardino National Forest. The locale had been designated a "high fire hazard area" in which both open campfires and overnight camping were prohibited.

Upon finding two vehicles parked on the road the deputies proceeded into the forest on foot, where they came upon one Marlow Bartels, a lone [13 Cal.3d 533] camper whom they arrested for possession of marijuana. fn. 1 Bartels informed the officers there were other campers further downstream who were also in possession of marijuana. The officers secured Bartels' wallet for identification, instructed him to remain at his campsite pending their return, and continued in the direction indicated.

The trail from Bartels' campsite was primitive. Large rock formations and deep canyon walls necessitated the use of hands in many places; at some points the narrowness of the route allowed only one person to pass at a time. Approximately half a mile from the place where they left Bartels the officers observed another campfire. Nearby were four young men in sleeping bags, one of whom was this defendant. Officer Norman placed the four under arrest for having an open campfire in violation of section 13 of appendix E of the Uniform Fire Code of San Bernardino County.

The intent of the officers at the time was to escort the youths out of the area and back to the patrol car, where they would be cited for the fire ordinance violation and ordered to appear before a magistrate at some future date. There was no intent to place the four in custody preparatory to any booking. The deputies justified the need to escort the campers out of the forest on the dual rationale that (1) camping was prohibited in the area and (2) they had left their citation books in their patrol car. fn. 2

Prior to starting back, the officers conducted a thorough search of the persons and effects of all four youths. Denney picked up defendant's knapsack, squeezed it, determined that the outer layer was too solid to ascertain whether it contained weapons, and began a search of its compartments. The contraband was found in a side pocket of the pack: the marijuana was contained in a frosted plastic bottle with a cap on it, and the tablets of restricted dangerous drugs were wrapped in tinfoil and enclosed in envelopes. [13 Cal.3d 534]

Following the search and confiscation of the contraband the four suspects were removed from the area and escorted back to the patrol car. Defendant was taken into custody; his three companions were given citations, made to sign promises to appear, and released.

Defendant attacks the legality of the search of his knapsack and the seizure of the contraband on the following grounds: (1) the evidence indicates that the police were conducting an exploratory search for narcotics, not weapons; (2) there were no specific, articulable facts or circumstances which reasonably warranted a search for weapons; and (3) even if the officers had a limited right to search for weapons, the extent of the search undertaken exceeded its legitimate scope.

For the reasons discussed infra we conclude there was substantial evidence to support the trial court's finding that the search was legitimately concerned with weapons and not contraband. Similarly, since it was necessary for the officers to be in close proximity with defendant and his companions for a prolonged period of time, we are of the view that the circumstances reasonably warranted such a weapons search; that being the case, the officers were justified in investigating further when a pat-down of defendant's knapsack proved inadequate to disclose if it contained weapons. However, we hold that the officers' subsequent intrusion into the opaque bottle and envelopes inside the knapsack cannot be justified by the limited purpose which validated the search in its inception. Accordingly, we hold these items were obtained by means of an unreasonable search and seizure in violation of article I, section 13, of the California Constitution. fn. 3 We shall discuss these points in the sequence indicated. fn. 4

II

[1] It is true there was evidence presented which could have led the trial court to conclude that the ostensible weapons search was merely a facade designed to provide justification for an exploratory search for narcotics. If such were the case, of course, the search would have been [13 Cal.3d 535] illegal. (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 830-831 [91 Cal.Rptr. 729, 478 P.2d 449, 45 A.L.R.3d 559]; Cunha v. Superior Court (1970) 2 Cal.3d 352, 358 [85 Cal.Rptr. 160, 466 P.2d 704]; People v. Cruz (1968) 264 Cal.App.2d 437, 441 [70 Cal.Rptr. 249].) The search process was lengthy and exhaustive. fn. 5 In view of the fact that Bartels had told the officers that the campers were in possession of marijuana, the evidence might have supported an inference that the investigation was made in the hope of discovering such contraband. In addition, objects at the campsite which could have been readily utilized as weapons were largely ignored by the officers, and the arrestees were allowed to retain control of them during the long trek back. fn. 6 Finally, the deputies seemed to exhibit little fear of the suspects, frequently turning their backs to them during the course of the search fn. 7 and taking no steps to secure them either during the search, on the trip back, or at the patrol car.

[2] On the other hand, the testimony of the officers suggests that under the circumstances they had cause to fear for their safety. Officer Denney explained, "Primarily because of the terrain, we could not secure them. We had at that time arrested them, taken their freedom away from them. I had never seen any -- either [sic] four of the suspects before. I did not know their background, their past, or if they were wanted personnel. I didn't know if they had weapons or what type of attitude they would have when we escorted them out of the Deep Creek area. I would have been in dereliction of my duty if I didn't search for weapons."

Thus the terrain, the lateness of the hour, and the unfamiliarity of the suspects might well have led a prudent officer to take reasonable precautions. The trial court impliedly found this was the deputies' purpose, stating, "I think it was ... proper to search for weapons." As an appellate court we are bound to "'view the evidence in the light most [13 Cal.3d 536] favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (Guidi v. Superior Court (1973) 10 Cal.3d 1, 10, fn. 7 [109 Cal.Rptr. 684, 513 P.2d 908].) Our responsibility is simply "to measure the facts, as found by the trier, against the constitutional standard of reasonableness." (People v. Lawler (1973) 9 Cal.3d 156, 160 [107 Cal.Rptr. 13, 507 P.2d 621].) We conclude that the court's determination that the object of the search was weapons is supported by substantial evidence and cannot be disturbed on appeal. (People v. Reilly (1970) 3 Cal.3d 421, 425 [90 Cal.Rptr. 417, 475 P.2d 649], and cases cited.)

III

Defendant next contends that, assuming the search was for weapons, it was illegal because the officers could not point to specific, articulable facts justifying such a search. He principally relies on People v. Superior Court (1972) 7 Cal.3d 186, 202-206 [101 Cal.Rptr. 837, 496 P.2d 1205] (hereinafter called Simon), for the proposition that if an arrestee is cited for an offense which typically has neither "instrumentalities" nor "fruits," no search is allowable unless there are particular facts present which would reasonably lead the officer to believe the subject was armed.

In analyzing the present case in light of Simon we encounter first a difficulty in classification. There, in reviewing the permissible scope of a search incident to an ordinary traffic arrest, we were able to divide offenders into three discernible groups (7 Cal.3d at pp. 199-201): (1) those who are merely cited and immediately released (Veh. Code, 40500, 40504), (2) those who may or must be taken before a magistrate and given the option to post bond (Veh. Code, 40302, 40303), and (3) those who are arrested for felonies and booked according to the general Penal Code provisions on felony arrests (Veh. Code, 40301; Pen. Code, 7, subd. 21).

[3] Classification into one of the foregoing categories is essential to analysis, since both the justification and the scope of a weapons search incident to an arrest are dependent on the relative danger to the officer presented by each type. Here, while it is clear that defendant's arrest could not be placed in the third category, it is arguably similar to either of the remaining two. The officers' intention prior to the discovery of the contraband was simply to cite defendant for his fire code violation and allow him to continue on his way. The analogy to procedures followed [13 Cal.3d 537] under Vehicle Code sections 40500 and 40504 is apparent. Yet to accomplish this result in the case at bar it was necessary for the officers to travel in close proximity with defendant for a considerable period of time, substantially increasing the risk to the officers if in fact defendant were armed. The situation thus appears more akin to that in which an officer transports a suspect before a magistrate, even if bond can then be posted and a prebooking search avoided.

In the latter instance a "pat-down" or limited search for weapons is permissible; in the former it is not. As Chief Justice Wright explained in his concurring opinion in Simon (7 Cal.3d at p. 214): "When it becomes necessary that an officer confine a traffic law violator within his police vehicle, the officer risks the danger that the violator may be armed with and draw a weapon. This danger is not necessarily eliminated by handcuffing the traffic law violator as he may still be able to reach a weapon secreted on his person. And, incident to the entire process of transportation, it may be impossible for the officer to keep the violator under constant surveillance by reason of the requirements of driving the vehicle and other responsibilities. fn. 8 In my opinion, the specifically articulable fact of the increased danger to the officer reasonably warrants the limited or relatively minor intrusion of the pat-down search in those instances when traffic law violators are transported to a magistrate pursuant to the provisions of Vehicle Code sections 40302 or 40303."

We agree with this reasoning. fn. 9 [4] We conclude that where, as here, the exigencies of the situation require that officers travel in close proximity with arrestees, a limited weapons search is permissible even though the charge will ultimately be disposed of by a mere citation. In so holding we are mindful of "the dangers daily faced by the men who bear the burden of policing our streets and highways, and of the fact that even a minor ... citation incident can occasionally erupt into violence." [13 Cal.3d 538] (People v. Superior Court (1970) supra, 3 Cal.3d 807, 829.) Each case must be decided on its own facts (id., at p. 827; People v. Ingle (1960) 53 Cal.2d 407, 412 [2 Cal.Rptr. 14, 348 P.2d 577]), and there is "no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails." (Terry v. Ohio (1968) 392 U.S. 1, 20-21 [20 L.Ed.2d 889, 905, 88 S.Ct. 1868].) Here the officers' interest in protecting themselves while escorting unknown arrestees in a primitive location in the nighttime outweighed defendant's interest in protecting his person and effects from search. Under the circumstances, a pat-down search for weapons was authorized.

IV

[5] But this conclusion does not end our inquiry, for it is well settled that "a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope." (Terry v. Ohio (1968) supra, 392 U.S. 1, 17-18 [20 L.Ed.2d 889, 903-904].) The issue is thus dual: "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." (Id., at p. 20 [20 L.Ed.2d at p. 905].)

Defendant contends that the search of his knapsack exceeded the legitimate purpose for which a search was authorized. Yet rather than presenting a single "scope" issue the search of the pack poses three such problems, a fact only cursorily alluded to by either party. The first is the question of the validity of any search of defendant's effects, including the pack; second, the search of the interior of the pack; and third, the search of the bottle and envelopes containing the contraband. As each involves different considerations we will discuss them seriatim.

A

The People cite Chimel v. California (1969) 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034], for the proposition that "it is reasonable for the arresting officer to search the person arrested or an area within which he might reach for weapons in order to remove any weapons the latter might seek to use in order to resist arrest or effect escape." The People recognize that in traffic violation cases such a search must be predicated on specific facts or circumstances giving the officer reasonable grounds to believe that weapons are present. (People v. Superior Court (1970) supra, 3 Cal.3d 807, 829; Simon, at p. 206 of 7 Cal.3d.) Since the knapsack was [13 Cal.3d 539] within defendant's area of control at the time of the arrest, fn. 10 and since the arrest was for a nontraffic offense, it is urged that the search of the pack was per se justified by the fact of the arrest.

Defendant contends that Chimel is inapposite, and that even assuming the right to search his person for weapons, the pat-down of the pack was not authorized because (1) there was no evidence the pack contained weapons and (2) if the officers feared the possibility that a weapon was contained therein they should have simply removed the pack from his area of control.

Preliminarily, it should be noted that the traditional rationale of warrantless searches incident to arrests is the two-fold need to uncover evidence of the crime and weapons which might be used to injure the arresting officer or effect an escape. (Preston v. United States (1964) 376 U.S. 364, 367 [11 L.Ed.2d 777, 780, 84 S.Ct. 881]; United States v. Rabinowitz (1950) 339 U.S. 56, 72-75 [94 L.Ed. 653, 663-665, 70 S.Ct. 430]; Agnello v. United States (1925) 269 U.S. 20, 30 [70 L.Ed. 145, 148, 46 S.Ct. 4, 51 A.L.R. 409].) According to one writer, "a thorough search of the case law reveals no other justifications for warrantless searches incident to arrest which do not collapse upon careful inspection into one of the two bases." (Note, Scope Limitations for Searches Incident to Arrest (1969) 78 Yale L.J. 433, 434, fn. 12.) This basic limitation was reaffirmed in Chimel: "When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape .... In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule." (Chimel v. California (1969) supra, 395 U.S. 752, 762-763 [23 L.Ed.2d 685, 694].)

In the present case there could, of course, be no basis for a belief that the search of the pack would disclose evidence of the crime. The charge was maintaining an illegal campfire, and as with traffic violations, there can be neither "instrumentalities" nor "fruits" of that offense. Thus the only possible rationale for a search of defendant's knapsack was to uncover weapons. [13 Cal.3d 540]

Similarly, we see no difference between traffic cases and the instant matter in terms of requiring the officer to point to the specific reasons why he believes weapons may be present. [6] Defendant was arrested for one of the most minor of nontraffic violations -- a mere citation offense.   In such a case the fact of the arrest does not justify a search of the belongings of the person cited:  there can be no instrumentalities and there can be no fruits, and absent some showing on the part of the officer that he has good cause to fear for his safety, there can be no weapons search.

In the case at bar, however, the specific, articulable facts required to justify the latter search were shown. As discussed above, the nature of the terrain, the lateness of the hour, and the unknown capabilities of the campers could well have given a prudent officer cause to take reasonable precautions. For this reason we concluded that a pat-down of the persons of the arrestees was authorized. These considerations also validate a limited search of any effects (1) which must necessarily have accompanied this caravan out of the wilderness, and (2) which there was no ready means of withholding from the arrestees during the journey. It would indeed be unwise to forbid an officer to ascertain by the least intrusive means possible whether containers such as the knapsack in the present case harbored a deadly weapon. Were the container a paper or plastic bag, a simple squeeze would be adequate for this purpose. But to allow the arrestee to carry the bag, and at the same time to deny the officer an opportunity to determine if its contents are dangerous, would be a patently unwarranted exposure of the officer to potential harm. On balance we see no reason to exalt the interest of the arrestee in remaining free of the relatively minor intrusion of a pat-down of his belongings over that of the officer who must travel with those belongings under the physically difficult circumstances presented here.

But defendant suggests there was no necessity for the deputies to be concerned about the contents of the knapsack: if they feared for their safety during the search of defendant's person, it is argued, they need only have removed the pack from his area of control; and if they experienced a like fear concerning the trip back they should simply have given defendant the option of leaving the pack at the site, unsearched.

The counterargument that it was necessary to carry the pack out in order to protect it from theft is unsound. In People v. Miller (1972) 7 Cal.3d 219, 223-224 [101 Cal.Rptr. 860, 496 P.2d 1228], we rejected that contention in the context of personal property of considerably more value and in an area of considerably higher risk of theft than the instant [13 Cal.3d 541] case. fn. 11 It is true that in Miller the defendant expressly forbade the police to remove his property for "safekeeping," while here it is uncertain from the record whether the campers were ever given the option of objecting. However, we do not regard this as a valid distinction. In Mozzetti v. Superior Court (1971) 4 Cal.3d 699 [94 Cal.Rptr. 412, 484 P.2d 84], the automobile in question was searched following the defendant driver's emergency hospitalization after a traffic accident, and it is clear there was also no opportunity for objection. Accordingly, a search of the knapsack in the present case cannot be justified on the theory that it was necessary to remove it from the area in order to secure it from theft.

But a far more persuasive justification is available in the very illegality of the campsite itself. If defendant had been camped legally and it was necessary to temporarily remove him from the area for a citation unrelated to his presence in the forest, we might well be persuaded that he could demand his effects remain at the camp, unsearched, pending his return. Yet it is clear that the very existence of a campsite at this location was a violation of a county ordinance. Thus the officers were well within their authority in insuring that the violation cease. This included the breaking of camp, the extinguishing of the fire, and the removal of sleeping bags and other camping equipment from the area. Defendant's knapsack was just one of the many items at the site which could be cursorily examined by means of pat-down under the peculiar circumstances presented.

Once again we emphasize that in reviewing a warrantless search to determine the reasonableness of its breadth a court is ill-advised to apply hard and fast rules. Rather we must be concerned, in a case-by-case analysis, with whether the extent of the search exceeded the attainment of the objectives which justified its inception. [7] Here we have found that under the circumstances (1) the officers had a legitimate apprehension for their safety; (2) there was a necessity to escort the arrestees a considerable distance over primitive terrain in the nighttime; (3) it was also necessary that the effects of the arrestees accompany them; and (4) there was no practical way the officers could have negotiated the difficult trek back and at the same time assure that the arrestees would not be able to gain access to a weapon secreted in their gear. Under these facts, a pat-down search of defendant's pack was authorized. [13 Cal.3d 542]

B

[8] Assuming the pat-down of the knapsack was allowable, however, the next query is directed to the search of its interior. The People contend that "where there will be continued accessibility to a large knapsack by an arrested party and the resilience of the knapsack frustrates the effectability of its pat-down, then the officer is warranted in searching the inside of the knapsack for weapons." Officer Denney testified that when he touched the knapsack it felt "substantially solid," that he was unable to determine its contents by squeezing, and that the pocket of the pack was at least large enough to have contained a .22 caliber pistol.

The sole justification for such a search is "the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." (Terry v. Ohio (1968) supra, 392 U.S. 1, 29-30 [20 L.Ed.2d 889, 910-911].) In the ordinary Terry-type pat-down, occurring as it does in the context of a street frisk, an intrusion further than the outer clothing of the suspect is allowable only if the initial limited exploration discloses potential instruments of assault. (Sibron v. New York (1968) 392 U.S. 40, 44-45 [20 L.Ed.2d 917, 924-925, 88 S.Ct. 1889].) To properly exceed the scope of a pat-down the officer must be able to point to "specific and articulable facts reasonably supporting his suspicion" that the suspect is armed. (People v. Collins (1970) 1 Cal.3d 658, 662 [83 Cal.Rptr. 179, 463 P.2d 403].) The burden of establishing these facts rests with the People. (Ibid., citing People v. Johnson (1968) 68 Cal.2d 629, 632 [68 Cal.Rptr. 441, 440 P.2d 921].)

There seems to be no reported case in this state dealing with the precise issue of the permissible scope of a search of belongings of an arrestee which in its inception was limited to a pat-down. Thus it is incumbent upon us once again to examine the parameters in light of the rationale which originally justified the search.

In the ordinary pat-down circumstances the clothing of the person is seldom, if ever, so resistant or resilient as to prevent the police from determining whether there are weapons present. But if in some unique fact pattern such were the case, we would likely be persuaded that a limited further intrusion was necessary. To do otherwise would be to make the unreasonable demand that an officer allow a potentially armed suspect to enter his patrol car. We noted above that even in the [13 Cal.3d 543] ordinarily innocuous confrontation between an officer and a traffic arrestee who is to be transported before a magistrate, there is the possibility of violence. As said in Simon, "The critical factor in these or similar situations is not the greater likelihood that a person taken into custody is armed, but rather the increased likelihood of danger to the officer if in fact the person is armed." (7 Cal.3d at p. 214; Wright, C. J., concurring.)

Here, as we have noted, it was necessary that the knapsack accompany the officers out of the area. Yet a simple pat-down of its exterior proved insufficient to allay the fear that the interior might contain a weapon. None of the campers had identification, and as Officer Denney testified, there was no way of ascertaining whether they were "wanted personnel." If the suspects were indeed wanted and fearful of the warrant check by radio that would likely occur upon reaching the patrol car, then the journey back might well provide their last opportunity for escape. Under these circumstances, therefore, the deputies were justified in protecting themselves by looking into the interior of the knapsack for weapons.

C

When Officer Denney opened the side pocket of the knapsack he found a frosted, opaque plastic bottle and a pair of envelopes. Because of the translucent but nontransparent nature of the bottle, the People could not rely on the exception to the warrant requirement for objects or contraband found in plain view. (Compare People v. Block (1971) 6 Cal.3d 239 [103 Cal.Rptr. 281, 499 P.2d 961] [contraband found in clear plastic vial during valid search of premises for additional suspects].)

Nor can the People's burden be discharged by the assertion that the bottle and envelopes might possibly contain unusual or atypical weapons. In People v. Collins (1970) supra, 1 Cal.3d 658, we rejected that contention as applied to a "little lump" felt during the course of a pat-down. We there expressly disapproved of the approach taken in People v. Armenta (1968) 268 Cal.App.2d 248, 251 [73 Cal.Rptr. 819], in which it was fancifully theorized that such a soft object might have been a "'rubber water pistol loaded with carbolic acid.'" Collins made explicit the rule that "an officer who exceeds a pat-down without first discovering an object which feels reasonably like a knife, gun, or club must be able to point to specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical [13 Cal.3d 544] weapon which would feel like the object felt during the pat-down." (1 Cal.3d at p. 663.)

Conversely, of course, if the pat-down discloses an object which reasonably feels like a weapon, further intrusion may be necessary and permissible. Thus in People v. Mosher (1969) 1 Cal.3d 379 [82 Cal.Rptr. 379, 461 P.2d 659], a Terry-type pat-down of a burglary suspect revealed a "sharp object like a knife blade." On further investigation the object was found to be a watch band belonging to a murder victim. Yet while upholding the search in that instance we were careful to distinguish the "knife blade" there from "A box of matches, a plastic pouch, a pack of cigarettes, a wrapped sandwich, a container of pills, a wallet, coins, folded papers and many other small items ... [which] do not ordinarily feel like weapons." (Id., at p. 394.)

If such ordinary objects are not to be intruded upon when felt, then a fortiori such intrusion is unjustified when the commonplace is seen. Here Officer Denney found a bottle approximately the size of a pill container, together with a manila envelope and an airmail envelope. Perhaps if the envelopes had been large enough and bulky enough to have contained weapons we would be persuaded that it would not have been unreasonable to feel their contents by squeezing them. However, that is not what occurred. Officer Denney unscrewed the bottle and found marijuana; he opened the envelopes and found tablets of restricted drugs. No one can rationally maintain that such actions were necessary for his protection. fn. 12

To briefly summarize our holding: Typically in cases of warrantless weapons searches the police must be able to point to specific and articulable facts which reasonably justify a belief that the suspect is [13 Cal.3d 545] armed. In the ordinary citation situation the fact of the arrest alone will not supply this justification and additional facts must be shown. In the case of transportation in the police vehicle, however, or in the analogous circumstance here, the necessity of close proximity will itself provide the needed basis for a protective pat-down of the person. To intrude further than a pat-down, the officer must provide additional specific and articulable facts necessitating the additional intrusion.

Here these additional facts were present by reason of the necessity that the campers' effects accompany the officers and the impossibility of securing them in a place where access was precluded. Thus the officers could go beyond a pat-down of the outer clothing and conduct a similarly limited search of the relevant items. Indeed, even an inquiry into the interior of the pack was permissible when the pat-down of the exterior proved impractical. But once confronted with a purely innocent interior it was again incumbent upon the officers to explain why still further intrusion was required. As to such explanation, the record is silent.

[9] Accordingly, since the contraband was illegally seized in violation of article I, section 13, of the California Constitution, we hold that it was erroneously received in evidence. (People v. Cahan (1955) 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513].) Inasmuch as it constituted the sole evidence against defendant, its admission was prejudicial error and the judgment (order granting probation) must be reversed.

V

The People finally contend that notwithstanding the invalidity of the search under California law, the recent United States Supreme Court cases of United States v. Robinson (1973) 414 U.S. 218 [38 L.Ed.2d 427, 94 S.Ct. 467], and Gustafson v. Florida (1973) 414 U.S. 260 [38 L.Ed.2d 456, 94 S.Ct. 488], "should be dispositive of any question regarding the permissible scope of the search herein." [10] We disagree. Whether or not the instant case is distinguishable from Robinson-Gustafson, as defendant claims, we note that those cases were decided under the Supreme Court's view of the minimum standards required in order to satisfy the Fourth Amendment's proscription of unreasonable searches. Our holding today is based exclusively on article I, section 13, of the California Constitution, which requires a more exacting standard for cases arising within this state. [13 Cal.3d 546]

A

In Robinson the defendant was arrested for driving a motor vehicle after his license had been revoked. A full field search was made and contraband was found in a crumpled cigarette package in his pocket. fn. 13 Although Robinson's right to post bond at the station cannot be determined from the Supreme Court opinion, the Court of Appeals had noted that "he was clearly entitled to post either cash or bail bond and, upon doing so, to be released immediately, without any stationhouse confinement or incident search of his person." (United States v. Robinson (1972) 471 F.2d 1082, 1102-1103 [153 App.D.C. 114].) fn. 14

If such an arrest had occurred in California the officer would have been limited to a pat-down prior to transporting the defendant in the patrol vehicle. (Veh. Code, 40303, subd. (h).) As discussed exhaustively in Simon and hereinabove, the only possible rationale for any search in such circumstances would be the self-protective need of the officer to determine if the arrestee were armed. There can be neither "instrumentalities" nor "fruits" of the offense of driving after revocation of an operator's license. Similarly, a search of the cigarette package could not be justified on the theory that it might possibly contain an atypical weapon, unless the officer were able to articulate facts supporting such a belief.

However, the court in Robinson remained unmoved by these considerations [13 Cal.3d 547] and held that "The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment." (414 U.S. at p. 235 [38 L.Ed.2d at pp. 440-441].)

In the present case we have analogized the need to search Brisendine's knapsack to the search of a traffic arrestee who is to be transported before a magistrate and given the opportunity to post bond. In both circumstances we have recognized the legitimate concern of the officer in insuring that the suspect is unarmed. In neither instance would we allow intrusion into effects which could not possibly contain weapons, absent a showing of reasonable suspicion of the presence of an atypical weapon. The Supreme Court has taken like facts and reached a contrary result. In choosing between these irreconcilable rules we cannot accept the Robinson implication that "an individual lawfully subjected to a custodial arrest retains no significant Fourth Amendment interest in the privacy of his person." (414 U.S. at p. 237 [38 L.Ed.2d at p. 441]; Powell, J. concurring.) Whatever may be the merit of that view when an individual is ultimately to be booked and incarcerated -- a question not presented here -- we find it inappropriate in the context of an arrestee who will never be subjected to that process. fn. 15 [13 Cal.3d 548]
B

There remains for consideration whether we should adhere to our precedential decisions on this point even though they impose a higher standard than is now required by Robinson. Our right to do so cannot be seriously questioned. In Cooper v. California (1967) 386 U.S. 58, 62 [17 L.Ed.2d 730, 734, 87 S.Ct. 788], the Supreme Court recognized this well-known principle: "Our holding, of course, does not affect the State's power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so." Moreover, "[e]ven though a state court's opinion relies on similar provisions in both the State and Federal Constitutions, the state constitutional provision has been held to provide an independent and adequate ground of decision depriving this Court of jurisdiction to review the state judgment." (Jankovich v. Indiana Toll Road Comm'n (1965) 379 U.S. 487, 491-492 [13 L.Ed.2d 439, 443, 85 S.Ct. 493].) fn. 16 [11] In short, the Supreme Court has clearly recognized that state courts are the ultimate arbiters of state law, even textually parallel provisions of state constitutions, unless such interpretations purport to restrict the liberties guaranteed the entire citizenry under the federal charter.

This court has always assumed the independent vitality of our state Constitution. In the search and seizure area our decisions have often comported with federal law, yet there has never been any question that this similarity was a matter of choice and not compulsion. As Chief Justice Wright stated in People v. Triggs (1973) 8 Cal.3d 884, 892, footnote 5 [106 Cal.Rptr. 408, 506 P.2d 232]: "At least since the advent of Wolf v. Colorado (1949) 338 U.S. 25 [93 L.Ed. 1782, 69 S.Ct. 1359], we have treated the law under article I, section 19 [now 13], of our state Constitution as 'substantially equivalent' to the Supreme Court's construction [13 Cal.3d 549] of the Fourth Amendment. (See Blair v. Pitchess (1971) 5 Cal.3d 258, 270-271, fn. 6 [96 Cal.Rptr. 42, 486 P.2d 1242, 47 A.L.R.3d 1206].) On at least one occasion, however, we have expressly departed from the federal rule to afford defendants a broader security against unreasonable searches and seizures than that required by the Supreme Court. (See People v. Martin (1955) 45 Cal.2d 755, 759-761 [290 P.2d 855] [vicarious exclusionary rule].) [12] In interpreting our state Constitution, we of course retain the 'power to impose higher standards on searches and seizures than required by the Federal Constitution.' (Cooper v. California (1967) 386 U.S. 58, 62 [17 L.Ed.2d 730, 734, 87 S.Ct. 788].)" (See generally Falk, The State Constitution: A More Than "Adequate" Nonfederal Ground (1973) 61 Cal.L.Rev. 273.)

In Martin, this court interpreted the exclusionary rule adopted in People v. Cahan (1955) supra, 44 Cal.2d 434, to apply vicariously. Cahan itself was decided six years before the exclusionary rule was made binding on the states in Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2d 1081, 81 S.Ct. 1684, 84 A.L.R.2d 933]. Our vicarious exclusionary rule has never been required under the Fourth Amendment (see Alderman v. United States (1969) 394 U.S. 165, 171-176 [22 L.Ed.2d 176, 185-188, 89 S.Ct. 961]) but has been a continuing feature of California law under our ability to impose higher standards for searches and seizures than compelled by the federal Constitution. (Kaplan v. Superior Court (1971) 6 Cal.3d 150, 155 [98 Cal.Rptr. 649, 491 P.2d 1].) fn. 17

[13] The foregoing cases illustrate the incontrovertible conclusion that the California Constitution is, and always has been, a document of [13 Cal.3d 550] independent force. Any other result would contradict not only the most fundamental principles of federalism, but also the historic bases of state charters. It is a fiction too long accepted that provisions in state constitutions textually identical to the Bill of Rights were intended to mirror their federal counterpart. The lesson of history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state constitutions, rather than the reverse. "By the end of the Revolutionary period, the concept of a Bill of Rights had been fully developed in the American system. Eleven of the 13 states (and Vermont as well) had enacted Constitutions to fill in the political gap caused by the overthrow of British authority. ... [] ... Eight of the Revolutionary Constitutions were prefaced by Bills of Rights, while four contained guarantees of many of the most important individual rights in the body of their texts. Included in these Revolutionary constitutional provisions were all of the rights that were to be protected in the federal Bill of Rights. By the time of the Treaty of Paris (1783) then, the American inventory of individual rights had been virtually completed and included in the different state Constitutions whether in separate Bills of Rights or the organic texts themselves." (Italics added.) (1 Schwartz, The Bill of Rights: A Documentary History (1971) p. 383; see generally 2 id., p. 1204.) In particular, the Rights of the Colonists (Boston, 1772) declared for the first time "the right against unreasonable searches and seizures that was to ripen into the Fourth Amendment" (1 id., at pp. 199, 206), and that protection was embodied in every one of the eight state constitutions adopted prior to 1789 which contained a separate bill of rights (1 id., at pp. 235, 265, 278, 282, 287, 323, 342, 377). fn. 18

We need not further extend this opinion to trace to their remote origins the historical roots of state constitutional provisions. Yet we have no doubt that such inquiry would confirm our view of the matter. The federal Constitution was designed to guard the states as sovereignties against potential abuses of centralized government; state charters, however, were conceived as the first and at one time the only line of protection of the individual against the excesses of local officials. Thus in [13 Cal.3d 551] determining that California citizens are entitled to greater protection under the California Constitution against unreasonable searches and seizures than that required by the United States Constitution, we are embarking on no revolutionary course. Rather we are simply reaffirming a basic principle of federalism -- that the nation as a whole is composed of distinct geographical and political entities bound together by a fundamental federal law but nonetheless independently responsible for safeguarding the rights of their citizens.

The ultimate confirmation of our conclusion occurred, finally, when the people adopted article I, section 24, of the California Constitution at the November 1974 election, declaring that "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." Of course this declaration of constitutional independence did not originate at that recent election; indeed the voters were told the provision was a mere reaffirmation of existing law. fn. 19

Principles comparable to the foregoing were recently invoked by the Hawaii Supreme Court to invalidate under the Hawaii Constitution a search which would have been permissible under Robinson. (State v. Kaluna (1974) 55 Hawaii 361 [520 P.2d 51]; cf. also People v. Copeland (1974) 77 Misc.2d 649 [354 N.Y.S.2d 399], and People v. Kelly (1974) 77 Misc.2d 264 [353 N.Y.S.2d 111] [holding that a state may impose higher standards under the Fourth Amendment than required by Robinson].) The defendant in Kaluna, a woman, was arrested on suspicion of attempted robbery. At the police station she was searched by a matron preparatory to being placed in custody. The matron opened a small piece of folded tissue paper secreted in the defendant's brassiere and discovered four Seconal capsules.

For reasons similar to those we articulated in Simon, the court held that the search violated a provision of the Hawaii Constitution (art. I, 5) essentially identical to the Fourth Amendment and article I, section 13, of our state charter. (520 P.2d at pp. 55-57.) The court then considered the impact of Robinson and Gustafson, but declined to adopt their rule on the ground that the state Constitution afforded a higher degree of protection to persons within its jurisdiction: "In our interpretation of the United States Constitution, of course, we are bound to follow applicable pronouncements by the United States Supreme Court. There is no doubt that the search conducted in this case was reasonable under [13 Cal.3d 552] the fourth amendment as construed in Robinson and Gustafson. We have already indicated that the defendant's search at the police station was incident to her custodial arrest; assuming that arrest to be lawful, the search of her body and all personal effects in her possession did not violate her federal constitutional rights since 'the fact of [her] lawful arrest' [Robinson, at p. 235 of 414 U.S. (38 L.Ed.2d P. 440)] alone gave the police plenary authority to subject her to a detailed search.

"However, as the ultimate judicial tribunal in this state, this court has final, unreviewable authority to interpret and enforce the Hawaii Constitution. We have not hesitated in the past to extend the protections of the Hawaii Bill of Rights beyond those of textually parallel provisions in the Federal Bill of Rights when logic and a sound regard for the purposes of those protections have so warranted. See State v. Santiago, 53 Haw. 254, 265, 492 P.2d 657, 664 (1971). In our view, the right to be free of 'unreasonable' searches and seizures under article I, section 5 of the Hawaii Constitution is enforceable by a rule of reason which requires that governmental intrusions into the personal privacy of citizens of this State be no greater in intensity than absolutely necessary under the circumstances." (Fns. omitted.) (Id., at pp. 58-59.) The court further explained that although its holding "results in a divergence of meaning between words which are the same in both the federal and state constitutions, the system of federalism envisaged by the United States Constitution tolerates such divergence where the result is greater protection of individual rights under state law than under federal law. [Citation.] In this respect, the opinion of the United States Supreme Court on the meaning of the phrase 'unreasonable searches and seizures' is merely another source of authority, admittedly to be afforded respectful consideration, but which we are free to accept or reject in establishing the outer limits of protection afforded by article I, section 5 of the Hawaii Constitution." (Id., at p. 58, fn. 6.)

For all the foregoing reasons Robinson is not controlling here. Rather, we reaffirm and follow the decisions, exemplified by Simon, which impose a higher standard of reasonableness under article I, section 13, of the California Constitution.

The judgment (order granting probation) is reversed.

Wright, C. J., Tobriner, J., and Sullivan, J., concurred. [13 Cal.3d 553]

BURKE, J.

The majority holds that the contraband was obtained by an unreasonable search and seizure in violation of article I, section 13, of our state Constitution -- that the foregoing constitutional provision imposes a different standard of reasonableness than that enunciated by the United States Supreme Court under the Fourth Amendment of the federal Constitution (United States v. Robinson, 414 U.S. 218 [38 L.Ed.2d 427, 94 S.Ct. 467]; Gustafson v. Florida, 414 U.S. 260 [38 L.Ed.2d 456, 94 S.Ct. 488]), which amendment is essentially identical in language to article I, section 13, of our state Constitution. In my opinion those decisions by the United States Supreme Court are highly persuasive as to the standard of reasonableness imposed by article I, section 13, and should be followed. Under the reasoning of those cases, as we shall see, the instant search and seizure were reasonable.

United States v. Robinson, supra, 414 U.S. 218, concluded that the Fourth Amendment did not bar admission in evidence of heroin found in a crumpled cigarette package removed from the defendant's pocket by an officer during a field search following defendant's "lawful custodial arrest" for driving after his license was revoked. The United States Supreme Court stated that it was not "inclined, on the basis of what seems to us to be a rather speculative judgment, to qualify the breadth of the general authority to search incident to a lawful custodial arrest on an assumption that persons arrested for the offense of driving while their licenses have been revoked are less likely to possess dangerous weapons than are those arrested for other crimes." (Id., at p. 234 [38 L.Ed.2d at p. 440].) The court pointed out that "The danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress and uncertainty, and not from the grounds for arrest" (id., at p. 234, fn. 5 [38 L.Ed.2d at p. 440]) and that "It is scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry-type stop. This is an adequate basis for treating all custodial arrests alike for purposes of search justification." (Id., at pp. 234-235 [38 L.Ed.2d at p. 440].) It is clear from Robinson that the limitations placed by Terry v. Ohio, 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868], on protective searches conducted in an investigatory stop situation based on less than probable cause are not to be carried over to searches made incident to lawful custodial arrests. [13 Cal.3d 554]

Robinson further declared, "The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment." (414 U.S. at p. 235 [38 L.Ed.2d at pp. 440-441].)

Gustafson v. Florida, supra, 414 U.S. 260, followed the principles enunciated in Robinson and concluded that certain factual differences between the two cases were not determinative of the constitutional issue.

The United States Supreme Court did not define the term "custodial arrest" in either Robinson or Gustafson. fn. 1 In Robinson it was conceded that the officer effected a "full custody arrest," and Robinson stated that, since the officer made such an arrest, it was unnecessary to reach the question of the law where the officer makes a "'routine traffic stop,' i.e., where the officer would simply issue a notice of violation and allow the offender to proceed." (414 U.S. at p. 236, fn. 6 [38 L.Ed.2d at p. 441].) The foregoing statement indicates that something more than stopping a traffic violator and issuing him a citation is required in order to have a "custodial arrest." In Gustafson the officer placed the defendant "under arrest for failure to have his vehicle operator's license in his possession" and "took [him] into custody in order to transport him to the stationhouse for further inquiry" (414 U.S. at p. 262 [38 L.Ed.2d at p. 459]). In neither Robinson nor Gustafson does it appear that the arrest was for a type of offense that would necessarily lead to the arrestee's incarceration. fn. 2 [13 Cal.3d 555]

Before Robinson and Gustafson this court held in People v. Superior Court (Simon) 7 Cal.3d 186, 208-211 [101 Cal.Rptr. 837, 496 P.2d 1205], that a full body search of a person arrested for an ordinary traffic violation could not be justified as an incident to the officer's decision to take him into custody for transportation before a magistrate. Robinson and Gustafson are contrary to Simon, as the majority recognizes. The majority seeks to avoid the impact of those United States Supreme Court decisions by now declaring that Simon, which mentions only the Fourth Amendment of the federal Constitution, was in fact based on our state constitutional provision against unreasonable searches and seizures. Even if it be assumed that Simon was so based, it does not follow that we should continue to interpret that state constitutional provision, which is essentially identical in language to the Fourth Amendment, fn. 3 in a manner different from the United States Supreme Court's interpretation of the Fourth Amendment.

Decisions of the United States Supreme Court as to the meaning of language in a federal constitutional provision are strongly persuasive as to what interpretation should be placed upon similar language in a state Constitution (see, e.g., Cohen v. Superior Court, 173 Cal.App.2d 61, 67 [343 P.2d 286]; Pickett v. Matthews, 238 Ala. 542 [192 So. 261, 265-266]; City of Portland v. Thornton, 174 Ore. 508 [149 P.2d 972, 973]), and are generally followed (see, e.g., People v. Jackson, 22 Ill.2d 382 [176 N.E.2d 803, 805]; Sperry & Hutchinson Co. v. State, 188 Ind. 173 [122 N.E. 584, 587]; City of Tacoma v. Heator, 67 Wn.2d 733 [409 P.2d 867, 869]; 21 C.J.S., Courts, 205, p. 363). To have two sets of rules under essentially identical constitutional provisions would create confusion. (See Blubaugh, A Philosophical Struggle Within The Supreme Court, (Nov. 1974) Cal.J. 382, 383-384 [view of Wright, C. J.].)

Robinson and Gustafson manifestly afford greater protection to law enforcement officers than do Simon and the instant majority opinion. fn. 4 [13 Cal.3d 556] But, states the majority, "we cannot accept the Robinson implication that 'an individual lawfully subjected to a custodial arrest retains no significant Fourth Amendment interest in the privacy of his person.' (414 U.S. at p. 237 [38 L.Ed.2d at p. 441]; Powell, J. concurring.)" That implication, however, appears to have been expressly or impliedly accepted by six justices of the highest court in this land. The majority herein points to no condition peculiar to California warranting a different view in this state.

The majority notes that our state Constitution declares that "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." (Cal. Const., art. I, 24.) That declaration, however, does not mean that provisions of our state Constitution should be given a different interpretation than that given by the United States Supreme Court to essentially identical provisions of the federal Constitution.

Two states, the majority notes, have declined to follow Robinson and Gustafson. A number of other states, however, have followed those decisions. (Sizemore v. State (Ind.App.) 308 N.E.2d 400, 406; State v. Cromwell (Mo.App.) 509 S.W.2d 144, 146; Hughes v. State (Okla.Crim.) 522 P.2d 1331, 1333; see State v. Mabra, 61 Wis.2d 613 [213 N.W.2d 545, 550-551].) Hughes stated that the provisions of the Oklahoma Constitution relating to search and seizure and the Fourth Amendment are identical, that therefore in determining the legality of the search and seizure there in question the court must look to decisions of the United States Supreme Court interpreting the Fourth Amendment, and that under the reasoning of Robinson and Gustafson the search and seizure did not violate the state Constitution. [13 Cal.3d 557]

Although in interpreting our state Constitution we may not be bound by Robinson and Gustafson, those decisions are highly indicative that the above stated holding in Simon was not required by the considerations underlying the exclusionary rule. I would follow Robinson and Gustafson and overrule Simon and other California cases in accord with Simon insofar as they are contrary to Robinson and Gustafson. fn. 5

I turn next to whether this case differs in any significant respect from Robinson and Gustafson. Defendant seeks to distinguish this case from those decisions on the ground that, assertedly, there was no "lawful custody arrest" here. I do not agree that there was not such a custodial arrest in this case. The record shows that defendant and his three companions were arrested for camping in a prohibited area and having an open campfire in violation of a county ordinance and that they were to be escorted by the two officers three-quarters of a mile over rough terrain to the patrol car since camping was prohibited in the area and the officers' citation books were in the patrol car. In my opinion the arrests constituted custodial arrests. Here, as in Gustafson and Robinson, there was extended exposure of the officers to danger rather than the "relatively fleeting contact resulting from the typical Terry-type stop" (see United States v. Robinson, supra, 414 U.S. 218, 235 [38 L.Ed.2d 427, 440]). And the arrests were lawful. Although defendant asserts that the officers lacked "probable cause to arrest," he does not elaborate on that assertion, and, since he concedes in his brief that the campfire was "illegal" and since the officers observed him and his companions in sleeping bags by the campfire, it is apparent that they had probable cause for the arrests for an illegal campfire. Probable cause exists "when the facts and circumstances within the knowledge of the officers at the moment of the arrest are sufficient to warrant a prudent man in believing that the defendant has committed an offense." (Beck v. Ohio, 379 U.S. 89, 96 [13 L.Ed.2d 142, 147-148, 85 S.Ct. 223]; People v. Talley, 65 Cal.2d 830, 835 [56 Cal.Rptr. 492, 423 P.2d 564].) Moreover, there was also probable cause for the arrests for illegal camping. [13 Cal.3d 558]

Defendant next points to the fact that both Robinson and Gustafson involved a search of a person whereas here we are concerned with a search of a knapsack. However, the two officers could not reasonably be expected to act as porters for the knapsack and other camping gear of the four arrestees, and, as the majority recognizes, the officers were well within their authority in insuring that the arrestees' violations cease and this included, inter alia, the removal of the knapsack and other camping gear. Under the circumstances the knapsack amounted to "an extension of [the] person[s]" of the arrestees and was subject to a search. (People v. Belvin, 275 Cal.App.2d 955, 958-959 [80 Cal.Rptr. 382].) It is immaterial that the knapsack was not on the immediate person of any arrestee at the moment of the arrests. (People v. Belvin, supra.)

Having in the course of a lawful search of the knapsack come across the bottle and envelopes, the officer was entitled to inspect them (cf. United States v. Robinson, supra, 414 U.S. 218, 236 [38 L.Ed.2d 427, 441]; Gustafson v. Florida, supra, 414 U.S. 260, 266 [38 L.Ed.2d 456, 461]), and when that inspection revealed contraband he was entitled to seize it (United States v. Robinson, supra; Gustafson v. Florida, supra). In my opinion under the reasoning of Robinson and Gustafson the search and seizure were reasonable fn. 6 and the superior court properly denied the motion to suppress. I would affirm the order granting probation.

McComb, J., and Clark, J., concurred.

―FN 1. The record does not disclose the circumstances of Bartels' arrest.

―FN 2. These facts are clear from the testimony of the officers:

"Q: And was it your intention initially upon approaching to issue notices to appear to all the four subjects for the illegal open fire? A. [Officer Norman] Yes, sir. It would have been necessary to bring them back to our patrol vehicle. We didn't bring cite books with us.

"* * *

"Q. Well, my question is why did you decide to take them out of the Deep Creek area at all? A. [Officer Denney] Well, there is no overnight camping down there. There is a sign posted at the entrance into Deep Creek, 'No overnight camping.'

"Q. So even if you had cited them, you would have removed them from the vicinity of the Deep Creek, am I correct? A. Yes, sir. We have done this many times."

―FN 3. Article I, section 13 (former art. I, 19), provides: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized."

―FN 4. As a threshold matter we observe that the burden of justifying the warrantless search in the case at bar was on the prosecution. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272 [294 P.2d 23].)

―FN 5. The search included all the clothing, sleeping bags, and gear of the campers. The area was also searched for additional suspects. One of defendant's companions testified that the officers looked under the rocks of the campfire and shone lights in the water of the nearby stream.

―FN 6. These potential weapons were a hunting knife and a camping hatchet which were stuck in a log within arm's reach of one of defendant's companions. The items remained in the log throughout the search, and were carried back by the campers.

―FN 7. This fact alone has been cause in other cases to bring into question the legitimacy of an ostensible weapons search: "'To say that the officer who turns his back on the driver whom he has arrested, while he first searches the driver's automobile is conducting a reasonable search incident to the arrest and not conducting an exploratory search staggers the credulity of anyone who pauses to examine the reasoning.'" (People v. Superior Court (1970) supra, 3 Cal.3d 807, 830, quoting Grundstrom v. Beto (N.D.Tex. 1967) 273 F.Supp. 912, 918.)

―FN 8. These problems were exacerbated in the case at bar. Here the journey back took nearly two hours, much of it in darkness after the batteries in the officers' flashlights failed. The strenuousness of the journey required the cooperation of all six hikers in aiding one another in climbing, portaging, etc. For most of the trip the officers had no idea where each of the arrestees were, and they arrived back at the patrol car not as a unit but in staggered groups, with the earliest arrivals forced to wait for a time until the others caught up.

―FN 9. The few post-Simon cases dealing with this issue have so held. For example, in People v. Ramos (1972) 26 Cal.App.3d 108 [102 Cal.Rptr. 502], a pat-down of a hit-and-run suspect was conducted prior to placing him in a police vehicle for transportation back to the scene of the accident. The search uncovered a switchblade knife, and the defendant was arrested for its possession. The defendant was not under arrest at the time of the search, but the fact of transportation in the police vehicle was held sufficient to justify the pat-down.

―FN 10. There was a minor conflict in the testimony regarding the distance of the pack from defendant, the officers stating two to three feet, the arrestees claiming it was six feet or more away. The conflict is irrelevant, however, since Chimel is not dispositive of this case.

―FN 11. In Miller the arrest took place at 3 a.m. in an abandoned private parking lot in South San Francisco. The back seat of the defendant's vehicle contained electronic and musical equipment of apparently considerable value. The area in question had a high incidence of burglary. Here the remoteness of the locale would render the possibility of theft unlikely, but if additional security were desired, the use of a standard wilderness cache would be sufficient to allay any concern in this regard.

―FN 12. Even prior to Simon there was authority in California supporting this view. In Amacher v. Superior Court (1969) 1 Cal.App.3d 150 [81 Cal.Rptr. 558], the police conducted a pat-down search of an individual who was present at the time a third person was being arrested. The officers categorized the pat-down as self-protective. During the search they came upon a "hard object" in defendant's front jacket pocket, which upon further investigation was found to be a closed flip-top Marlboro cigarette box. The package was opened and marijuana discovered. In granting a writ suppressing the evidence the court stated that "Although the self protective frisk was justified, the opening of the cigarette package does not meet the second prong of the Terry test. ... The officer admitted that his concern ended when he saw that the hard object in petitioner's pocket was a cigarette package rather than a weapon. He testified that he opened the package not in search of a weapon, but in search of marijuana. At that point the scope of the search was no longer reasonably related to the circumstances which justified the frisk." (Id., at p. 154.) Contrary authority typified by Morel v. Superior Court (1970) 10 Cal.App.3d 913 [89 Cal.Rptr. 297] [allowing full body searches of traffic offenders], and relied on by the prosecution in the court below, was expressly disapproved in Simon. (7 Cal.3d at p. 211.)

―FN 13. In Gustafson the facts were similar in that the defendant was arrested for failure to have his operator's license in his possession. A full field search of the person was made and marijuana cigarettes were found inside an ordinary cigarette box located in the defendant's pocket. The Supreme Court upheld the search on the same basis as Robinson. For the purposes of our discussion there do not appear to be significant distinctions between the two cases, and accordingly references to Robinson should be taken to apply to Gustafson also.

―FN 14. The factual uncertainty in the Supreme Court opinion makes it extremely difficult to ascertain the parameters of the key phrase "custodial arrest." Although the court repeatedly utilizes this term, it nowhere defines it. In a footnote (fn. 2, p. 221 of 414 U.S. [38 L.Ed.2d p. 433]) the court quotes the testimony of a patrolman who defined "full custody arrest" as one in which an officer "would arrest a subject and subsequently transport him to a police facility for booking," but the opinion fails to indicate whether the latter requirement is a necessary concomitant of the term. Similarly, there is no mention of whether Robinson himself was to be booked. The offense is described as carrying a "mandatory minimum jail term, a mandatory minimum fine, or both." (Id., at p. 220 [38 L.Ed.2d at p. 432].) As noted above, the only reference to Robinson's ability to post bond and avoid the process of booking and incarceration appears in the opinion of the Court of Appeals. Thus we assume that what is meant is that Robinson could ultimately have been either jailed or fined or both, but in any event the option to avoid the booking process by posting bond remained open to him.

―FN 15. An extended analysis of the reasons underlying our belief that a traffic arrestee retains a significant interest in the integrity of his person and vehicle appears in Simon and Kiefer. We see no need to repeat that discussion here except to note where it differs from the approach of Robinson. That opinion proceeds from the premise that "It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment." (414 U.S. at p. 224 [38 L.Ed.2d at p. 434].) It then recites that "The justification or reason for the authority to search ... rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence ...." (Id., at p. 234 [38 L.Ed.2d at pp. 439-440].) While based upon this need, however, "The authority to search ... does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect." Thus "[H]aving in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it ...." (Id., at p. 236 [38 L.E.2d at p. 441].)

We have no quarrel with the proposition that a search incident to an arrest is a traditional exception to the necessity to obtain a warrant, nor with the concept that a portion of its justification is the need to uncover weapons. We also accept the view that transportation in a police vehicle per se justifies a limited weapons search, regardless of the likelihood that a particular arrestee is armed. However, we have examined the Robinson opinion at length and remain unable to determine how the final conclusion flows from these premises. Rather, the converse would seem to be true: having in the course of a lawful weapons search come upon a crumpled cigarette package, the officer would have no reasonable ground to inspect it. Our decisions have invariably required articulable grounds to inspect, and we decline the invitation of the People to abrogate that long-established principle today.

―FN 16. For examples of the operation of this rule in California, see Rios v. Cozens (1973) 9 Cal.3d 454 [107 Cal.Rptr. 784, 509 P.2d 696] (due process); People v. Krivda (1973) 8 Cal.3d 623 [105 Cal.Rptr. 521, 504 P.2d 457] (search and seizure); Dept. of Mental Hygiene v. Kirchner (1965) 62 Cal.2d 586 [43 Cal.Rptr. 329, 400 P.2d 321, 20 A.L.R.3d 361] (equal protection).

―FN 17. A similar development has taken place in the law of double jeopardy. In Gori v. United States (1961) 367 U.S. 364, 369 [6 L.Ed.2d 901, 905, 81 S.Ct. 1523], the United States Supreme Court held that a defendant may be retried without violating the double jeopardy clause of the Fifth Amendment to the United States Constitution if the court grants a mistrial without the defendant's consent but in his "interest." In Cardenas v. Superior Court (1961) 56 Cal.2d 273, 275-276 [14 Cal.Rptr. 657, 363 P.2d 889, 100 A.L.R.2d 371], we declined to apply that rule in a California prosecution because it "does not accord with the uniform construction placed by this court upon the jeopardy provision of the California Constitution ... [now art. I, 15]." In Benton v. Maryland (1969) 395 U.S. 784, 794 [23 L.Ed.2d 707, 715, 89 S.Ct. 2056], the United States Supreme Court held that the Fifth Amendment to the federal Constitution was applicable to the states through the Fourteenth Amendment. Nevertheless, when the issue was again presented to us we adhered "to our decision in Cardenas not to adopt the Gori rule in applying the double jeopardy provision of the California Constitution. Benton requires only that the states accord their citizens at least as much protection against double jeopardy as is provided under the Fifth Amendment of the United States Constitution; it does not forbid a state from according a greater degree of such protection." (Fn. omitted.) (Curry v. Superior Court (1970) 2 Cal.3d 707, 716 [87 Cal.Rptr. 361, 470 P.2d 345].)

―FN 18. It even appears that a number of these were more specific than the language of the future Fourth Amendment. Thus article XIV of the Massachusetts Declaration of Rights (1780) declared that "Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws." (1 id., at p. 342.)

―FN 19. Analysis by Legislative Analyst, Ballot Pamphlet, General Election (Nov. 5, 1974) page 26.

―FN 1. Robinson quoted the testimony of a patrolman who defined the term "full custody arrest" as "one where an officer 'would arrest a subject and subsequently transport him to a police facility for booking'" (414 U.S. at p. 221, fn. 2 [38 L.Ed.2d at p. 433]), but Robinson did not indicate that it adopted the foregoing definition or that the term "custodial arrest" had only the foregoing meaning.

―FN 2. In Robinson police regulations provided that in the case of certain offenses including the offense there in question the officer "shall make a summary arrest of the violator and take the violator, in custody, to the station house for booking." (414 U.S. at p. 223, fn. 2 [38 L.Ed.2d at p. 433].) The Robinson majority did not dispute statements in the dissent indicating that a person transported to the station house for booking quite possibly may never be placed in jail -- that in the jurisdiction there involved the offense in question was bailable and "the normal procedure is for offenders to be advised of the opportunity to post collateral at the station house and to avoid an inventory search unless they are unable or refuse to do so" (id., at p. 258, fn. 7 [38 L.Ed.2d at p. 454]).

―FN 3. Article 1, section 13 (formerly art. 1, 19) of our state Constitution was based on a substantially identical provision in the 1849 California Constitution (art. 1, 19). One of the delegates to the 1849 constitutional convention commented that article 1, section 19 "was word for word from the Constitution of the United States, 4th article." (See Browne, Report of the Debates in the Convention of California (1849).)

―FN 4. For example, under Robinson and Gustafson an officer may make a full search of a person who is placed under custodial arrest, whereas under neither Simon nor the instant majority opinion can an officer investigate the contents of a cigarette box or bottle that is in the pocket of such a person unless the officer is able to point to specific facts that support a belief that the arrestee is armed with an atypical weapon (e.g., razor blades or acid), and officers undoubtedly often will have no knowledge of facts indicating one way or the other on that subject. Also, according to the majority, if a full custody arrest had been made in California for the offense involved in Robinson the "Officer would have been limited to a pat-down prior to transporting the defendant in the patrol vehicle." A pat-down, however, might not reveal a carefully concealed weapon (e.g., a knife blade secreted in a belt or under the arch preserver in a shoe). (See generally, LaFave, "Street Encounters and the Constitution" 67 Mich.L.Rev. 40, 91 [noting that the search of a person who is arrested and is to be transported to the station (often unwatched in the rear of a police vehicle) must be more extensive than in the Terry v. Ohio, supra, 392 U.S. 1, situation because the arrestee may well have an opportunity to get his hands on a carefully concealed weapon, whereas in the Terry situation the need is only to find implements that could readily be grasped by the suspect during brief face-to-face encounter].)

―FN 5. Since both Robinson and Gustafson indicate that it has been "established Fourth Amendment law" since the decision in Weeks v. United States, 232 U.S. 383 [58 L.Ed. 652, 34 S.Ct. 341], that the arresting officer may conduct "a full search" of the person of the arrestee incident to "a lawful custodial arrest" (414 U.S. 218, 224 et seq. [38 L.Ed.2d 427, 434 et seq.]; 414 U.S. 260, 264 [38 L.Ed.2d 456, 460]), those decisions did not change the law but merely clarified and restated pre-existing constitutional rules. It follows that Robinson and Gustafson are not solely prospective. (Cf. People v. Miller, 7 Cal.3d 219, 223 [101 Cal.Rptr. 860, 496 P.2d 1228]; Gallik v. Superior Court, 5 Cal.3d 855, 859-860 [97 Cal.Rptr. 693, 489 P.2d 573]; Roumbanis v. Superior Court, 29 Cal.App.3d 542, 546-547 [105 Cal.Rptr. 702].)

―FN 6. In this case, as in Robinson and Gustafson, it does not appear that the arrests were a mere pretext to search (see People v. Haven, 59 Cal.2d 713, 719 [31 Cal.Rptr. 47, 381 P.2d 927]), and the search partook of none of the extreme or patently abusive characteristics that were held to violate due process in Rochin v. California, 342 U.S. 165 [96 L.Ed. 183, 72 S.Ct. 205, 25 A.L.R.2d 1396].

~~~~~~~~~~~~~~~

U.S. 3rd Circuit Court of Appeals
WILCHER v WILMINGTON

Filed March 17, 1998

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 96-7276

BEVERLY WILCHER; SHARON SMITH; MICHAEL DANYLO; CORNELIUS SKINNER, on behalf of themselves and all others similarly situated; THE WILMINGTON FIRE FIGHTERS ASSOCIATION, LOCAL 1590,

Appellants,

v.

CITY OF WILMINGTON; JAMES A. SILLS, in his official capacity as Mayor of the City of Wilmington; JAMES T. WILMORE, SR., individually and in his official capacity as Chief of Fire for the City of Wilmington; CLIFTON E. ARMSTEAD, individually and in his official capacity as Deputy Chief of Fire for the City of Wilmington; S.A. WAYNE CROSSE, in his official capacity as Dir ector of Personnel for the City of Wilmington; WILLIAM J. YANONIS, individually and in his official capacity as Deputy Director of Personnel for the City of Wilmington SODAT-DELAWARE, INC.,

Third-Party Defendant


On Appeal from the United States District Court for the District of Delaware (D.C. Civil Action No. 94-cv-00137)

Argued January 28, 1997

Before: BECKER, Chief Judge , and ROTH, Circuit Judges , and ORLOFSKY,1 District Judge (Opinion Filed March 17, 1998)

Teresa C. Fariss, Esq. (Argued) Young, Conaway, Stargatt & Taylor P.O. Box 391 Rodney Square North, 11th Floor Wilmington, DE 19899-0391

Attorney for Appellants

John W. Morgan, Esq. (Argued) City of Wilmington Law Department 800 French Street, 9th Floor Wilmington, DE 19801

Attorney for Appellees

Bruce C. Herron, Esq. (Argued) Sawyer, Akin & Herron 1220 North Market Street P.O. Box 25047, Suite 606 Wilmington, DE 19899

Attorney for Third-Party Defendant

OPINION OF THE COURT

ROTH, Circuit Judge:

In this appeal, we are asked to determine whether the City of Wilmington's method of testing firefighters for drug use violates their rights under the Fourth Amendment. We will affirm the district court's conclusion that it does not.

Nevertheless, we will remand the case for reconsideration of the state law invasion of privacy claim.

Beverly Wilcher, Sharon Smith, Michael Danylo and Cornelius Skinner are Wilmington firefighters. Along with the Wilmington Fire Fighters Association (WFFA), they brought this class action on behalf of all firefighters in the city. The defendants are the City of Wilmington, Mayor Sills (in his official capacity), James T. Wilmore (individually and in his capacity as Fire Chief), Clifton Armstead (individually and in his official capacity as Deputy Fire Chief), Wayne Crosse (in his official capacity as Director of Personnel for Wilmington), and William Yanonis (individually and in his official capacity as Deputy Director of Personnel). In addition, the firefighters sued SODAT-Delaware, Inc., the drug testing company that performs the tests for the City of Wilmington. The firefighters sought injunctive relief and damages under 42 U.S.C. 1983 and damages for"invasion of privacy" under the state's tort law.

The district court granted summary judgment in favor of the individual defendants on the ground that they were entitled to qualified immunity and in favor of the SODAT defendants on the ground that SODAT was not a state actor. The district court then held a three-day trial. Two days into the trial, the plaintiffs apprised the district court of this Court's statement in Bolden v. SEPTA , 953 F.2d 807, 822-23 n.23 (3d Cir. 1991), that reasonableness under the Fourth Amendment was an issue of law. Concluding that there were no remaining factual issues for the jury to decide, the district court, with the plaintiffs' acquiescence, dismissed the jury. The court then decided against the plaintiffs on the merits of their Fourth Amendment claim. See Wilcher v. City of Wilmington , No. 94-137, slip. op. (D.Del. June 30, 1995). The district court also concluded that plaintiffs could not prevail on their state law invasion of privacy claim. The district court eventually elaborated on its findings in a memorandum opinion rejecting the plaintiffs' motion for reargument and for a new trial. See Wilcher v. City of Wilmington , 924 F.Supp. 613 (D.Del. 1996).

The firefighters have appealed on several grounds. First, they cite as error the district court's failure to enter an injunction permanently prohibiting the City from using the direct observation method in its urine collecting, despite the fact that during a pre-trial teleconference the City had tentatively agreed to such an arrangement. Second, they dispute the district court's conclusion that direct observation of urine collection is reasonable under the Fourth Amendment. Third, they appeal the district court's determinations regarding qualified immunity and state action. Fourth, they urge that, in denying the plaintiffs a jury trial, the district court misapplied our decision in Bolden . Finally, the plaintiffs contend that the district court committed error when it presumed that the reasonableness standard under the Fourth Amendment of the Constitution was equivalent to the reasonable person standard under Delaware tort law.2

We will reject all the plaintiffs' grounds for appeal except for the fifth one. The district court did not abuse its discretion when it denied plaintiffs' motion for injunctive relief, following the City's rejection of the tentative agreement. In addition, we agree with the district court that a drug testing monitor's presence in the same room with the firefighter during the collection of thatfirefighter's urine does not, by itself, constitute an unreasonable search under the Fourth Amendment. As for the plaintiffs' jury trial right, we agree that the district court misread our decision in Bolden when it concluded that no factual

determinations remained for the jury. Nevertheless, we will not reverse the district court's dismissal of the jury because the plaintiffs clearly acquiesced in this action and thereby waived their jury right under Rule 39(a) of the Federal Rules of Civil Procedure.

However, despite our affirmance of the district court's constitutional analysis, we will remand this case for further proceedings because we believe the court erred in presuming the equivalence of the "reasonableness" inquiry under the Fourth Amendment and the "reasonable person" standard under the common law in an invasion of privacy claim.

I. FACTS

In July 1990, the City and the Wilmington Fire Fighters Association (the firefighters' union) agreed in a Collective Bargaining Agreement that firefighters would be subject to random drug testing through urinalysis in order to ensure that members of the Fire Department were drug free. Prior to January 1994, the City had employed a procedure whereby a randomly selected firefighter was notified he would be tested when he arrived at the station to begin his shift. A battalion chief would then stay with the firefighter and take him to Occupational Health Services at the Medical Center of Delaware ("Occupational Health") where the test was performed. There, the battalion leader would conduct the firefighter to a "dry room" to produce the urine specimen. The sink in the dry room did not contain water and the toilet bowl contained blue dye to prevent cheating by dilution. The firefighters provided their urine specimens in private; no observer was present in the dry room. Occupational Health's method of collecting urine in this manner followed the guidelines of the National Institute of Drug Abuse.

In November 1993, in an attempt to reduce the cost of random drug testing, the City solicited bids from drug testing facilities. The City did not specifically request a procedure which included visual observation of urine collection. SODAT, a private drug-testing company in Delaware with a primary focus on outpatient drug- counseling, submitted a proposal under which fire-fighters would produce the urine sample "under the direct supervision of counselor/authorized personnel." The City accepted SODAT's bid.

In January 1994, SODAT began drug testing the City's firefighters. The parties have given substantially different descriptions of how the SODAT employees carried out this procedure. The male firefighters, for example, claim that the SODAT monitor looked over the firefighter's shoulder at his genitals while he urinated. SODAT, on the other hand, claims that the monitors stood to the back or the right of the firefighters but did not directly observe their genitalia.

Although SODAT employees are directed to observe the urine collection process by looking in the firefighter's general direction as he or she commences urination, the monitors are neither directed nor expected to focus on the firefighter's genitals. At trial, the SODAT monitors maintained that they had acted within the company's guidelines.

After hearing this testimony, the district court accepted SODAT's portrayal of the monitoring process as accurate. "An examination of the SODAT testing program, both in terms of its design and intent, and more specifically in its execution, demonstrates that no element of the program was intended to invade the privacy of a firefighter in an overly intrusive manner." Wilcher , 924 F.Supp. at 617. The district court further stated, "Although [the collection process] may have involved some observation of the genitalia area generally, this observation was only a by- product of the general observation of the donor." Id . at 618. In its earlier memorandum, the district court had also stated:

On the evidence submitted by the parties, the Court finds that the direct supervision procedure employed by SODAT did not in principal or in fact involve the direct observation of the genital area of the person providing the urine sample. . . . [SODAT's procedure] does not direct that the SODAT employee undertake to observe the genital area of the individual providing the sample. It only requires supervision during the collection process. Wilcher , slip. op. at 11. The district court further concluded, "The Court is convinced that the testimony concerning the position of the SODAT employee during the specimen collection is corroborated and demonstrates that genital observation was not the purpose nor the practice of the SODAT policy." Id.

Soon after SODAT began testing firefighters, the Deputy Fire Chief was informed of the firefighters' complaints about SODAT's testing method. The City did not, however, request that SODAT stop using the direct observation procedure. The firefighters' union, the Wilmington Fire Fighters Association, filed a first step grievance with the City of Wilmington protesting the direct observation procedure. The Deputy Chief denied this grievance. The WFFA filed a second step grievance, which was denied on February 17, 1994. The WFFA then filed a Notice of Arbitration. The plaintiffs filed suit on March 18, 1994, against the City and the individual defendants. The City impleaded SODAT, and the plaintiffs amended their complaint to include SODAT as a defendant. In an Order and Stipulation filed on April 15, 1994, the parties agreed that the City should direct SODAT to refrain from using direct observation of urination while this case was pending.

The district court had jurisdiction over this case pursuant to 28 U.S.C. 1331 and 1343. We now have jurisdiction under 28 U.S.C. 1291.

II. THE "TENTATIVE AGREEMENT"

Before we proceed with our analysis of the constitutional issue, we will address the plaintiffs' contention that the district court erred in not permanently enjoining the City from using SODAT's direct observation method of drug testing. We find no such error.

On April 15, 1994, the parties filed a Stipulation and Order temporarily enjoining the City from further use of the direct observation method during the pendency of this case. On June 16, the parties participated with the district court in a teleconference, during which the City expressed its willingness to refrain permanently from using the direct observation method. At the end of the teleconference, SODAT's counsel stated that she would draft a stipulation and order to that effect and send it around to the other parties for their signature.

Despite this tentative agreement, the plaintiffs and the City of Wilmington were unable to arrive at an accord on the terms of the stipulation. The City therefore refused to sign it. The plaintiffs then filed a motion with the district court for an order permanently enjoining the City and SODAT from further use of the direct observation method of urine collection. The district court denied this motion without opinion on March 31, 1995. The plaintiffs argue that this denial was error, as the City defendants had reneged on their agreement in bad faith. The defendants reply that the oral agreement was only tentative.

As a general rule, we encourage attempts to settle disagreements outside the litigative context. A settlement agreement is a contract and is interpreted according to local law. See Pennwalt Corp. v. Plough, Inc. , 676 F.2d 77, 79 (3d Cir. 1982). A district court may enter injunctive relief on a party's behalf to enforce a settlement agreement when it determines that one of the parties has failed to perform its obligations. See Read v. Baker , 438 F.Supp. 732, 735 (D. Del. 1977), citing Petty v. General Accident Fire & Life Assurance Co. , 365 F.2d 419, 421 (3d Cir. 1966). The power to grant or deny an injunction, however, is firmly within the discretion of the district court. See Castrol, Inc. v. Pennzoil Co. , 987 F.2d 939, 943 (3d Cir. 1993).

According to the City, the district court did not abuse its discretion by denying the injunction because the parties had produced no more than a tentative agreement, unenforceable by law. We agree. Under Delaware law, the criteria for deciding whether a contract exists is the intention of the parties, evidenced by their objective conduct and manifestations. See Industrial America, Inc. v. Fulton Indus., Inc. , 285 A.2d 412, 415 (Del. 1971). The parties' subjective intent is irrelevant. Id. Rather, the court's inquiry is "whether a reasonable man would, based upon the `objective manifestation of assent' and all of the surrounding circumstances, conclude that the parties intended to be bound by contract." Leeds v. First Allied Connecticut Corp. , 521 A.2d 1095, 1101 (Del.Ch. 1986). As Chancellor Allen has noted,

This is not a simple or mechanical test to apply. Negotiations typically proceed over time with agreements on some points being reached along the way towards a completed negotiation. It is when all of the terms that the parties themselves regard as important have been negotiated that a contract is formed .

Leeds , 521 A.2d at 1101 (emphasis added). The Chancellor further stated, "Until it is reasonable to conclude . . . that all of the points that the parties themselves regard as essential have been expressly or . . . implicitly resolved, the parties have not finished their negotiations and have not formed a contract." Id. , at 1102.

These basic principles of contract law lead us to conclude that the district court committed no abuse of discretion in denying injunctive relief. Although the parties agreed in principle at the pre-trial teleconference to a stipulation permanently halting the direct observation procedure, they did not discuss the details of the agreement. Thus, we cannot say that all the essential terms were resolved before or during the teleconference. The teleconference represented but one step of a complex negotiation between three parties (the firefighters, the City, and SODAT). The record indicates that the City made a good faith effort to work with the plaintiffs to draft a stipulation acceptable to everyone. Unfortunately, the parties never reached that stage. This failure, however, does not represent a breach of contract. Accordingly, we will affirm the district court's denial of the permanent injunction.

III. THE CONSTITUTIONALITY OF DIRECT OBSERVATION

The gravamen of the plaintiffs' complaint is that the direct observation method of urine collection violates the firefighters' right under the Fourth Amendment, as incorporated by the Fourteenth Amendment, to be free from unreasonable searches and seizures. The district court held that the direct observation method, as executed by SODAT, did not constitute an "unreasonable" search. Because the reasonableness of a search under the Fourth Amendment is an issue of law, we exercise plenary review. See Bolden , 953 F.2d at 822-23 n.23; Dykes v. SEPTA , 68 F.3d 1564, 1568 (3d Cir. 1995).

The Fourth Amendment guarantees the "right of the people to be secure in their persons . . . against unreasonable searches and seizures." U.S. Const. Amend. IV. It is well established that the government's collection and testing of an employee's urine constitutes a "search" under the Fourth Amendment. Skinner v. Railway Labor Executives' Assn. , 489 U.S. 602 , 617; Treasury Employees v. Von Raab , 489 U.S. 656, 665 (1989). Ordinarily, the Constitution requires the government to obtain a warrant supported by probable cause to search a person or his property. There are, however, several well-established exceptions to the warrant and probable cause requirements. The Supreme Court has explained:

    [O]ur cases establish that where a Fourth Amendment intrusion serves special government needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.

Von Rabb , 489 U.S. at 665 -66. See also Griffin v. Wisconsin , 483 U.S. 868, 873 (1987); New Jersey v. T.L.O. , 469 U.S. 325, 340 (1985). Under the "special needs" analysis, the government need not show probable cause or even individualized suspicion for its search. Instead, it must prove that its search meets a general test of "reasonableness." Under this standard, the constitutionality of a particular search " `is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.' " Skinner , 489 U.S. at 619 ( quoting Delaware v. Prouse , 440 U.S. 648, 654 (1979)). In particular, the Supreme Court's jurisprudence directs us to consider three factors when judging the constitutionality of employee drug tests: (1) the nature of the privacy interest upon which the search intrudes; (2) the extent to which the search intrudes on the employee's privacy; and (3) the nature and immediacy of the governmental concern at issue, and the efficacy of the means employed by the government for meeting that concern. Vernonia School Dist. 47J v. Acton , 115 S.Ct. 2386 (1995).

The firefighters do not dispute the reasonableness of compulsory drug testing per se . To the contrary, the firefighters have agreed to drug testing in their Collective Bargaining Agreement with the City. Rather, the plaintiffs challenge the City's method of testing, which entails visual observation of the firefighters as they provide their urine samples. This issue has been described as "distinct and clearly severable from those that govern reasonable suspicion testing generally". National Treasury Employees Union v. Yeutter , 918 F.2d 968, 975 (D.C. Cir. 1990). For this reason, we apply the Fourth Amendment's reasonableness test solely to the direct observation method utilized by SODAT and not to the broader issue of compulsory drug testing. See id. 3

A. The Nature of the Firefighters' Privacy Interest "Reasonableness" entails a three pronged inquiry.

First, a court examines the individual's privacy interest upon which the search at issue allegedly intrudes. See Vernonia , 115 S.Ct. at 2391 (1995). This expectation of privacy must be legitimate as measured by objective standards. "The Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as `legitimate.' " Id.

The district court properly concluded that firefighters enjoy only a diminished expectation of privacy. "Because they are in a highly regulated industry, and because they had consented to random testing in their collective bargaining agreement, the firefighters had a reduced privacy interest." Wilcher , 924 F.Supp. at 618. Plaintiffs now argue on appeal that the firefighting industry is not "highly regulated" and that the firefighters therefore did not have a diminished expectation of privacy.

Plaintiffs' argument lacks merit. Even though extensive regulation of an industry may diminish an employee's expectation of privacy, see Policemen's Benevolent Ass'n, Local 318 v. Township of Washington , 850 F.2d 133 (3d Cir. 1988) (police department described as "highly regulated"); Shoemaker v. Handel , 795 F.2d 1136 (3d Cir. 1986) (upholding law requiring jockeys to submit to breathalyser and random urinalysis testing), we have never held that regulation alone is the sole factor that determines the scope of an employee's expectation of privacy. It is also the safety concerns associated with a particular type of employment -- especially those concerns that are well-known to prospective employees -- which diminish an employee's expectation of privacy. Supreme Court precedent demonstrates this principle. In National Treasury Employees v. Von Raab , the Court held that a government employee's expectation of privacy depended in part on the nature of his employment and whether it posed an attendant threat to public safety. See 489 U.S. at 672 . Upholding the drug testing of customs officials, the Court explained:

We think Customs employees who are directly involved in the interdiction of illegal drugs or who are required to carry firearms in the line of duty likewise have a diminished expectation of privacy in respect to the intrusions occasioned by a urine test. Unlike most private citizens or government employees in general, employees involved in drug interdiction reasonably should expect effective inquiry into their fitness and probity . . . . Because successful performance of their duties depends uniquely on their judgment and dexterity, these employees cannot reasonably expect to keep . . . personal information that bears directly on their fitness. Id. (emphasis added). Customs officials enjoyed a reduced expectation of privacy because of the sensitive nature of their duties and of the information they received. We have held that railway employees also enjoy a diminished expectation of privacy because of the safety concerns associated with those who operate trains. See e.g. Transport Workers' Union, Local 234 v. SEPTA , 884 F.2d 709, 712 (3d Cir. 1988) (random testing of rail operators upheld because of "great human loss" they can cause prior to detection of drug problem).

Certainly, a firefighter with a drug problem poses as great a threat to public safety as does a customs official or a rail operator. A firefighter whose drug use is undetected is a source of danger both to his colleagues and to the community at large. In addition, the firefighter puts himself at great risk of harm. Since the perils associated with firefighting are well known, we have no trouble concluding that firefighters enjoy a diminished expectation of privacy. Our inquiry, however, does not end here, as we must balance the firefighters' diminished interest with the character of the search at issue and with the concerns that have propelled that search.

B. The Character of the Search

The second factor we must consider is the character of the government's search and the extent to which it intrudes on the employee's privacy. The Supreme Court has held that the degree of intrusion "depends upon the manner in which production of the urine sample is monitored." Vernonia , 115 S.Ct. at 2393. Before we judge the intrusiveness of SODAT's drug testing method, however, we must first determine what that method actually entails.

At trial and on appeal, both the plaintiffs and the SODAT employees have presented highly divergent pictures of the urine collection process. The firefighters claim that monitors looked at their genitalia as they urinated. SODAT and its employees, on the other hand, steadfastly maintain that they did not focus on the firefighters' genitalia during the urine collection process. Instead, they claim that they looked in the firefighters' general direction to ensure that no tampering was taking place during the production of the urine specimen.

Based on the evidence before it, the trial court concluded that SODAT's drug testing procedure involved only the monitors' direct observation of the urine collection process in general and not the intentional observation of the firefighters' genitalia. Wilcher , 924 F. Supp. at 617-18. We accept as accurate the district court's finding of fact concerning the nature of the urine collection process employed by SODAT. Although the reasonableness of a search is a legal question, the particular character of that search is a factual matter. Cf. O'Connor v. Ortega , 480 U.S. 709, 726-729 (factual dispute regarding character of search precluded lower court's grant of summary judgment on Fourth Amendment issue). As such, the trial judge's factual finding regarding the character of SODAT's drug testing procedure is reversible only if it is clearly erroneous. See Marco v. Accent Pub. Co., Inc. , 969 F.2d 1547, 1548 (3d Cir. 1992). In light of the nature of the testimony from the SODAT employees, which the trial judge chose to credit, we cannot say that the district court's finding was clearly erroneous.4 Consequently, we will adopt the district court's description of the SODAT procedure as one which entails only incidental observation of a firefighters' genitals.

Having adopted the district court's description of the SODAT drug-testing procedure, we must concede that the direct observation method represents a significant intrusion on the privacy of any government employee. Urination has been regarded traditionally by our society as a matter "shielded by great privacy." Skinner , 489 U.S. at 626 ; 109 S.Ct. at 1418. Few cases have dealt with the issue of the specific method used by the government to test its employees for drugs. In Vernonia School District 47J v. Acton , the Supreme Court upheld the constitutionality of a mandatory random drug testing program that a school district employed to reduce drug use among its student athletes. The Court described the Vernonia drug testing procedure in the following manner:

The student to be tested completes a specimen control form which bears an assigned number. . . . The student then enters an empty locker room accompanied by an adult monitor of the same sex. Each boy selected produces a sample at a urinal, remaining fully clothed with his back to the monitor, who stands approximately 12 to 15 feet behind the student. Monitors may (though do not always) watch the student while he produces the sample, and they listen for normal sounds of urination. Girls produce samples in an enclosed bathroom stall, so that they can be heard but not observed.

Vernonia , 115 S.Ct. at 2389. The Supreme Court concluded that this method of testing was not unreasonable under the Fourth Amendment. "Under such conditions, the privacy interests compromised by the process of obtaining the urine sample are in our view negligible." Vernonia , 115 S.Ct. at 2393.

Relying on Vernonia , the district court stated, "The Court finds the SODAT collection method no more intrusive on the firefighters' privacy than was the high school's drug testing program found to be constitutional in [ Vernonia ]" Wilcher , 924 F. Supp. at 618. The district court further concluded, "The presence of monitors in the bathrooms with firefighters is similar to the presence of the monitors in Vernonia , and even though the monitors may have stood closer than those in Vernonia , this close proximity was a result of the collection facilities, in this case a bathroom as opposed to a locker room, and not a more intrusive method." Wilcher , 984 F.Supp. at 619.

We agree with the district court insofar as its analogy to Vernonia applies to male firefighters. In a world where men frequently urinate at exposed urinals in public restrooms, it is difficult to characterize SODAT's procedure as a significant intrusion on the male firefighters' privacy.5 Plaintiffs fail to demonstrate how the presence of a monitor in a boys locker room while a student athlete urinates differs significantly from the presence of a monitor in a bathroom while an adult firefighter urinates. Both monitors stand behind the individual providing the urine specimen. Similarly, as the district court found, both monitors observe only the collection process generally and not the particular  individual's genitalia. The only difference is the distance between the monitor and the person producing the specimen. We cannot conclude that this difference by itself justifies a determination that SODAT procedure is unreasonable.6

We must admit that we are more cautious about the reasonableness of the direct observation method as it applies to female firefighters. We simply cannot characterize the presence of a monitor in a bathroom while a female urinates as an ordinary aspect of daily life. Indeed, Vernonia noted with approval the fact that female student athletes provided urine behind a stall as monitors stood outside listening. Vernonia , 115 S.Ct. at 2393. Nevertheless, nothing in Vernonia suggests that the presence of a female monitor in a bathroom when an adult female firefighter provides a urine specimen is per se unconstitutional under the Fourth Amendment. Moreover, the facts of this case suggest that SODAT took substantial measures to minimize the intrusion of privacy to female firefighters caused by the direct observation procedure. The district court found that the female monitors stood to the side of the female firefighters and that the monitors did not look at the firefighters' genitalia as they urinated, but rather in their general direction. Wilcher , 924 F.Supp. at 617-18. Finally, SODAT provided a nurse-practitioner as a monitor for plaintiff Wilcher when she expressed discomfort with her first female monitor. Thus, although wefind SODAT's intrusion of the female firefighters' privacy to be significant, we nevertheless agree with the defendants that SODAT has carried out its testing procedure in an appropriate and professional manner.
C. The Governmental Concern

The third and final component of the "reasonableness" test under the Fourth Amendment is the government's interest, which must be compelling. With regard to this prong, the Supreme Court has observed:

    It is a mistake . . . to think that the phrase `compelling state interest,' in the Fourth Amendment context, describes a fixed, minimum quantum of governmental concern, so that one can dispose of a case by answering in isolation the question: Is there a compelling state interest here? Rather, the phrase describes an interest which appears important enough to justify the particular search at hand, in light of other factors which show the search to be relatively intrusive upon a genuine expectation of privacy.

Vernonia , 115 S.Ct. at 2394-95. Thus, "compelling interest" does not have the same meaning in this context as it does in other areas of constitutional law. Moreover, the fact that there exists a less intrusive method of achieving the government's goal is not relevant to the Court's reasonableness analysis under the Fourth Amendment. Vernonia , 115 S.Ct. at 2396. See also Skinner , 489 U.S. at 629 n.9; Illinois v. Lafayette , 462 U.S. 640, 647 (1983).

In this case, we do not review the constitutionality of drug-testing per se , but rather, the procedure by which firefighters are tested. According to the City and to SODAT, visual observation is necessary to prevent cheating. At trial, the defendants' expert, Dr. Closson, testified that visual monitoring is necessary to catch employees who attempt to fool the test by substituting someone else's urine or adding a chemical adulterant to their own urine.

On appeal, the plaintiffs argue that cheating can be detected by testing the urine's temperature since substitutes make the specimen colder than it should be. According to Dr. Closson, a forensic toxicologist, cheaters still can avoid detection by warming substitute urine through a heating pack hidden on their body, or by keeping the urine close to their body so that it takes on the body's temperature. Closson further maintained that direct observation was the most accurate collection method for ensuring the integrity of a urine sample. Finally, Closson testified that direct observation procedures are used by the New York City Police Department, the New York City Department of Corrections, and several other New York agencies.

Like the district court, we find the defendants' expert testimony persuasive. Cheating is a significant concern. The City understandably wishes to take as many steps as possible to eliminate potential violations of the drug testing program. The plaintiffs argue that the cheating described by Dr. Closson is unlikely, as Wilmington firefighters do not receive notice that they are to be tested until the day of the test, and they remain in the company of a superior officer from the moment they are notified of the test until the time that they actually provide their urine specimen. Although this argument is strong, it does not prove that the incidences of cheating, described by Dr. Closson, are impossible or even implausible. Although such cheating calls for fairly sophisticated equipment, it is possible for a firefighter with a drug problem to carry a catheter or an artificial bladder taped to his body on the days following drug use, just in case he is tested on that day. Indeed, Dr. Closson stated that cheating has been known to take place within the New York agencies, which use the direct observation method.

Under Supreme Court jurisprudence, the City of Wilmington need not wait for a cheating problem to develop in order to justify its use of direct observation. In Von Raab , for example, Justice Scalia noted that the Supreme Court upheld random mandatory drug testing of customs officials, even though there existed no evidence of a history of drug abuse among those government employees. See Von Raab , 489 U.S. at 679 (Scalia, dissenting). Moreover, the fact that there exists a less intrusive method of achieving the government's goal is not relevant to the Court's Fourth Amendment analysis. Skinner , 489 U.S. at 629 n.9; Illinois v. Lafayette , 462 U.S. 640, 647 (1983).

Finally, we do not agree with the plaintiffs' argument that SODAT renders its direct observation procedure ineffective (and thereby unnecessary) by directing monitors not to look at the firefighters' genitals. Certainly, the mere presence of a monitor in the room where the firefighter is urinating deters a would-be-cheater from substituting or adulterating his own urine sample. Thus, we must agree with the district court that the direct observation procedure serves the government's interest of preventing cheating on drug tests.

Because we find that SODAT's direct observation method, as described in the district court's findings of fact, meets the three elements of the Fourth Amendment reasonableness test, we hold that the plaintiffs' Fourth Amendment rights have not been violated.7 The City's significant interest in preserving the integrity of its firefighters' drug tests outweighs their expectations of privacy. With regard to the male firefighters, the conditions created by SODAT do not differ significantly from the conditions present in an ordinary public restroom. As for the female firefighters, we note the district court's finding that SODAT has taken several steps to minimize the potentially intrusive effects of having a person present in the same room during the collection of a femalefirefighter's urine. So long as SODAT's monitors refrain from looking at the firefighters' genitalia, its direct observation procedure remains within the boundaries of a constitutional search. Accordingly, the district court did not err when it ruled in the defendants' favor on the issue of constitutionality under the Fourth Amendment.8

IV. WAIVER OF JURY TRIAL

Two days into the trial, the plaintiffs brought to the district court's attention our statement in Bolden v. SEPTA that reasonableness under the Fourth Amendment was an issue to be decided by the judge. See Bolden , 953 F.2d at 822. Based on its reading of Bolden , the district court, with

plaintiffs' agreement, dismissed the jury. Plaintiffs now claim that this was error and that the district court violated their right to a jury trial. We reject this argument as lacking merit. Although plaintiffs had a right to a jury trial, they waived that right when they acquiesced in the district court's dismissal of the jury.

Rule 39(a) of the Federal Rules of Civil Procedure states: When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury unless (1) the parties or their attorneys of record, by written stipulationfiled with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court upon motion or its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the United States.

Fed. R. Civ. P. 39(a) (emphasis added). This Court has stated that once a party makes a timely demand for a jury trial, that party subsequently waives that right when it participates in a bench trial without objection. See Cooper v. Loper , 923 F.2d 1045, 1049 (3d Cir. 1991). Numerous courts have adopted this position. See generally 5 James Wm. Moore et al., Moore's Federal Practice, *39.03 n.5-6 (2d ed. 1988) (consent can be inferred from conduct of parties or counsel). See also Royal American Managers, Inc. v. IRC Holding Corp. , 885 F.2d 1011 (2d Cir. 1989) (plaintiff waived right to jury trial in securities action by participating in bench trial without objection); Pope v. Savings Bank of Puget Sound , 850 F.2d 1345, 1355 (9th Cir. 1988) (counsel's agreement with court's announced intent to dismiss jury, as well as actual knowledge that jury was being discharged, constituted waiver of jury trial right under Rule 39(a)).

Based on these principles, we find that the plaintiffs waived their jury trial right under Rule 39(a). On the third day of trial, the plaintiffs' attorneys submitted a letter to the district court notifying it that under Bolden the issue of reasonableness under the Fourth Amendment was a legal issue for the court. In response to this letter, the trial judge stated his intention to dismiss the jurors because there remained no liability questions for them to decide. The plaintiffs' counsel objected to this course of action only insofar as damages were concerned. The court agreed that, should the plaintiffs prevail on any of the liability questions, he would either recall the jury or assemble a new one to hear evidence relating to damages.

Based on the dialogue between the district judge and the plaintiffs' attorney, we conclude the plaintiffs waived their jury trial right under Rule 39(a). The sole concern of the plaintiffs' attorney was that the trial court preserve the damages issue for a jury trial in the future. She did not argue that the plaintiffs were entitled to a jury on the invasion of privacy claims. Nor did she argue that the plaintiffs were entitled to a jury verdict on the factual aspects of their Fourth Amendment claim (such as whether the SODAT employees actually looked at the firefighters' genitals while they urinated). Hence, whatever rights the plaintiffs had, their counsel waived when she explicitly agreed with the district court's decision to dismiss the jury.9

V. FOURTH AMENDMENT "REASONABLENESS" VS. THE STATE LAW "REASONABLE PERSON" STANDARD

Finally, we will reverse the district court's ruling insofar as it equated the Fourth Amendment "reasonableness" standard with the much different common law "reasonable person" standard. Invasion of privacy is a tort claim under state law. Delaware adopted the Restatement of Tort's definition of this claim in Barbieri v. News-Journal Co. , 189 A.2d 773, 774 (Del. 1963). Under the Restatement, plaintiffs can prove a common law invasion of privacy if they show that defendants intentionally intruded on the firefighters' physical solitude or private affairs or concerns in such a manner that a reasonable person would find "highly offensive." (Restatement (Second) of Torts , 652B (1977)). See also Barker v. Huang , 610 A.2d 1341, 1350 (Del. 1992).

The district court concluded that since it had ruled against plaintiffs on their constitutional claim, it could not possibly find in their favor on their state law invasion of privacy claim. "Even assuming that the monitors intruded upon the firefighters' solitude, the Court has determined that the collection procedures used by SODAT were reasonable under constitutional principles." Wilcher , 924 F.Supp. at 619.

The district court's assumption that "reasonableness" under the Fourth Amendment is analogous to a "reasonable person" standard under state common law is erroneous. A state may provide its citizens with greater protection of their individual rights than does the federal constitution. For example, in Kelley v. Schlumberger Technology Corp. , 849 F.2d 41 (1st Cir. 1988), the court struck down a drug testing procedure because it violated the state constitution. Moreover, it is beyond argument that a district court cannot, a fortiori, apply a federal standard of law to a cause of action grounded in the common law of the state in which it sits. See Erie R.R. Co. v. Tompkins , 304 U.S. 64, 78 (1938). Hence, the trial court incorrectly concluded, as a matter of law, that a reasonable Delawarean could not find the drug testing procedure "highly offensive," simply because the test might have passed muster under the Fourth Amendment.10 We will therefore remand this issue to the district court to determine whether the "reasonable person" standard under Delaware common law would find the practices employed by SODAT "highly offensive."11

VI. CONCLUSION

Based on the foregoing discussion, we will affirm the district court's ruling on the plaintiffs' constitutional claim. So long, at least, as the SODAT employees continue to employ the safeguards discussed in Part III, their direct observation method does not violate the Fourth Amendment.

In addition, we will affirm the district court's dismissal of the jury because the plaintiffs waived their jury trial right when they acquiesced on the record to the dismissal. Moreover, as we note in footnote 1, we will vacate the district court's holding that SODAT's drug testing procedure was permissible under the Collective Bargaining Agreement. Finally, we will vacate the dismissal of the state law invasion of privacy claim and remand this case to the district court for reconsideration of the state law issues.

A True Copy: Teste:

Clerk of the United States Court of Appeals for the Third Circuit 24

FOOTNOTES

1. Honorable Stephen M. Orlofsky, United States District Court Judge for the District of New Jersey, sitting by designation.

2. The plaintiffs also contend that the district court should not have determined that SODAT's drug testing method was not in violation of the firefighters' Collective Bargaining Agreement with the City. See Wilcher , at 17-19 (June 30, 1996 Memorandum). According to the plaintiffs, this issue was moot by the close of the trial because the City had agreed at least temporarily to discontinue using the method. Because the City has explicitly reserved its right to use this procedure in the future, we do not agree that this issue is "moot." Moreover, the City has never conceded the impermissibility of SODAT's drug testing procedure under the Collective Bargaining Agreement with the firefighters. Nevertheless, we agree that this issue should not have been decided by the district court. The plaintiffs never raised the Collective Bargaining Agreement in the pleadings. Moreover, when the case was tried, plaintiffs had not yet exhausted their administrative remedies, such as arbitration. Therefore, the issue was not properly before the district court, and we will vacate the district court's ruling on it.

3. Because it is the method of testing, rather than the fact of testing, which is at issue, we do not find that appellants' post-argument citation to Chandler v. Miller , 117 S.Ct. 1295 (1997), is helpful to our considerations here.

4. In addition, we note the concession of plaintiffs' attorney at oral argument that she was not seeking reversal of the trial court's factual findings.

5. See also Dimeo v. Griffin , 943 F.2d 679, 682 (7th Cir. 1991) (noting that "[u]rination is generally a private activity in our culture, though, for most men, not highly private.")

6. We note that our conclusion might differ had the district court accepted the firefighters' testimony that SODAT's monitors looked over firefighters' shoulders as they provided their urine specimens. Similarly, we would be much more concerned with a procedure's intrusion on privacy if it required the monitor to stand in front of the firefighter, or if it demanded the direct observation of the firefighter's genitalia.

7. We note that the D.C. Circuit has come to the opposite conclusion with regard to this issue. See Piroglu v. T.R. Coleman , 25 F.3d 1098 (D.C. Cir. 1994); National Treas. Employees v. Yeutter , 918 F.2d 968, 976 (D.C. Cir. 1990). These cases, however, were decided prior to the Supreme Court's decision in Vernonia .

8. Because we affirm the district court's disposition of plaintiffs' Fourth Amendment claim, we need not review either the district court's determination that SODAT was not a state actor, or its conclusion that the City defendants, as sued in their individual capacities, were entitled to qualified immunity.

9. Although the plaintiffs waived their jury trial rights, we nevertheless note that the district court misapplied our statement in Bolden when it concluded that there were no factual issues for the jury to decide. The fact that reasonableness under the Fourth Amendment is a legal issue does not make all issues under the Fourth Amendment legal in nature.

For example, in Dykes v. SEPTA , 68 F.3d 1564, 1568 (3d Cir. 1995), we addressed a claim that SEPTA had violated its own drug-testing policy by testing the plaintiff without reasonable suspicion. Reiterating our statement in Bolden , we held that the specific question of whether SEPTA had reasonable suspicion to test the plaintiff (i.e. evidence that he might be using drugs) was factual. See 68 F.3d at 1567. Thus, our statement in Bolden applied only to the ultimate determination of whether SODAT's drug testing procedure qualified as "reasonable" under the Fourth Amendment, not to any determination of the factual elements of that procedure.

10. The district court also dismissed the plaintiffs' invasion of privacy claims because, "the `intrusion into physical solitude' claimed by thePlaintiffs resulting from the direct observation method was consented to by written contract." Wilcher , 924 F.Supp. at 619. We find the court's statement on this matter puzzling, as the court has cited no portion of the Collective Bargaining Agreement in which the firefighters actually consented to such a method of drug testing.

11. We know of no Delaware case that has discussed or been presented with this issue. We do not predict at this juncture what the Delaware Supreme Court would do if presented with this issue. Cf. Epstein Family Partnership v. Kmart Corp. , 13 F.3d 762, 765 (3d Cir. 1994) (if state court has not ruled on issue, federal district court must predict how it would decide issue). Moreover, the fact that direct observation method passes muster under the Fourth Amendment certainly may be raised by the City and SODAT in defense of the invasion of privacy claim. We simply hold that a federal district court cannot presume that a state's common law tort standard and a constitutional balancing test would reach the same result when applied to the same set of facts. The reasonableness of a procedure under the Fourth Amendment may be relevant to the inquiry under state law, but it is not necessarily dispositive of the state law claim.

~~~~~~~~~~~

People v. Bustamante, 30 Cal.3d 88
[Crim. No. 21740. Supreme Court of California. October 22, 1981.]

THE PEOPLE, Plaintiff and Respondent, v. RUDOLFO BUSTAMANTE, Defendant and Appellant

(Opinion by Tobriner, J., with Mosk and Newman, JJ., and Wiener, J., concurring. Separate concurring opinion by Bird, C. J. with Staniforth, J., concurring. Separate dissenting opinion by Richardson, J.)

COUNSEL

Paul T. Suzuki, under appointment by the Supreme Court, for Defendant and Appellant.

James R. Jenner, Public Defender (Alameda), Jay B. Gaskill, Assistant Public Defender, Michael Samuel Ogul, Quin Denvir, State Public Defender, Jean R. Sternberg and Gail R. Weinheimer, Deputy State Public Defenders, as Amici Curiae on behalf of Defendant and Appellant.

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Carol Wendelin Pollack, Marc E. Turchin and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

Herb Jackson, District Attorney (Sacramento), and George M. Hendrickson, Deputy District Attorney, as Amici Curiae on behalf of Plaintiff and Respondent.

OPINION

TOBRINER, J.

United States v. Wade (1967) 388 U.S. 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926], established the right of a defendant under the federal Constitution to the assistance of counsel at a pretrial lineup. In People v. Fowler (1969) 1 Cal.3d 335 [82 Cal.Rptr. 363, 461 P.2d 643], we followed the reasoning of Wade to hold that defendant is entitled to counsel at a preindictment lineup; in Kirby v. Illinois (1972) 406 U.S. 682 [34 L.Ed.2d 411, 92 S.Ct. 1877], however, the United States Supreme Court limited the right to counsel to postindictment [30 Cal.3d 92] lineups. fn. 1 We therefore face, as a matter of first impression before this court, the question whether under the California Constitution a California defendant has a right to counsel which extends to preindictment lineups.

We have concluded that we should adhere to the position we took in Fowler -- that the right to counsel encompasses preindictment lineups -- and we rest that position on the California Constitution. As we shall explain, judicial recognition of the right to counsel at a lineup arose from appreciation of the proverbial unreliability of eyewitness identification of strangers, and of the dangers that improper, inadvertent or deliberate suggestion at a lineup will irradicably influence identification testimony. Defense counsel, if present at the lineup, could observe irregularities, detect suggestion, and prepare for cross-examination of the identifying witnesses. Because the danger of invalid suggestion and misidentification equally characterizes and applies both to preindictment and postindictment lineups, we conclude that defendant's right to counsel should not be limited to postindictment lineups.

In the present case, defendant Bustamante appeals from a conviction for robbery and various other crimes. He asserts that he was denied the right to counsel at a preindictment lineup at which a witness to the robbery identified him. Applying the principles established in Fowler and reaffirmed in this opinion, we reverse the robbery conviction and remand the matter to the trial court to determine if the witness' testimony rests upon an independent ground untainted by the lineup identification. Since that identification affects only the robbery count, we affirm the conviction on all other counts.

I. Statement of Facts

Charles Grosskopf testified that on March 13, 1979, he returned to his apartment to find two men, a black and a hispanic, inside the apartment. The black man held him while the hispanic took his wallet. The hispanic demanded more money; when Grosskopf said that he had none, the hispanic stabbed Grosskopf. At the preliminary hearing, Grosskopf identified defendant as the person who stabbed him. He repeated that identification at trial. [30 Cal.3d 93]

Joseph Zimmerman also testified at trial that he observed a black and a hispanic enter the apartment building and go upstairs. Five to eight minutes later he encountered Grosskopf bleeding from a knife wound. After defendant was arrested but before charges were filed, Zimmerman identified him at a lineup. Although defendant had requested counsel, none was provided at the lineup. The admissibility of Zimmerman's trial testimony identifying defendant is the principal issue on this appeal.

Matthew Ozaki testified that on March 21, 1979, someone broke into his apartment and took a jacket, two guns, a wallet, and other items. Later that day defendant was arrested for being under the influence of narcotics. A subsequent search of defendant's person and lodging turned up a gun, knives, personal property belonging to Grosskopf and Ozaki, and quantities of cocaine and concentrated cannabis.

Prior to trial, defendant moved to challenge Zimmerman's identification on the ground that defendant had been refused his right to counsel. The trial court denied the motion. Defendant renewed his efforts to exclude the identification testimony at trial. In addition, he called as witnesses two women who had seen the black and hispanic enter and leave the building; both identified defendant at the lineup but said they were not certain of their identification.

The jury convicted defendant of count I, robbery of Grosskopf, and found as aggravating factors that he inflicted great bodily injury (see Pen. Code, 12022.7), that the victim was 60 years of age or over (see Pen. Code, 1203.09), and that defendant personally used a deadly weapon (see Pen. Code, 12022, subd. (b)). In connection with the Ozaki matter, defendant was acquitted of burglary (count II) and theft of a gun (count III), but convicted of receiving stolen property (count IV). Defendant was also convicted of being an ex-felon in possession of a firearm (count V), possession of cocaine (count VI), and possession of concentrated cannabis (count VII).

The trial court sentenced defendant to the upper term of five years for robbery, with a three-year enhancement for the infliction of great bodily injury and a one-year enhancement for the use of a deadly weapon. It further imposed consecutive sentences of one-third of the middle term on counts IV, V, and VI, and a concurrent term for count VII. [30 Cal.3d 94]

Defendant appeals from the judgment. His principal contention relates only to the robbery conviction. He urges that the court erred in admitting the identification testimony of Zimmerman because that witness first identified him at a lineup in which he was denied the right to counsel.

II.

[1a] Under article I, section 15 of the California Constitution, a defendant has the right to assistance of counsel at a preindictment lineup.

We first examine this case from the perspective of the history of judicial rulings from the date of the rendition of United States v. Wade, supra, 388 U.S. 218, to the present. In Wade, the United States Supreme Court developed constitutional limits as to the admissibility of identification testimony. The witnesses in that case had first identified the defendant at an FBI lineup staged 15 days after counsel had been appointed for defendant; counsel was not notified of, or present at, the lineup. The court ruled that defendant was entitled to counsel at a postindictment lineup, and consequently that the identification testimony should not have been admitted unless the prosecution could show that the testimony originated from an independent source, untainted by the improper lineup. fn. 2

Relying upon cases defining the defendant's right to counsel under the Sixth Amendment (Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758] and Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]), the court pronounced a general principle: that a defendant enjoys a right to counsel at every "critical stage" in the prosecution. (P. 227 [18 L.Ed.2d, p. 1157].) It then focused on two problems in particular: the danger that suggestion, intentional or unconscious, will influence the witness' identification; and the difficulty in reconstructing the manner and mode of lineup identification at trial, so that defense counsel would be unable to cross-examine the witness on that subject. These problems led the court to conclude that "there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which [30 Cal.3d 95] he was 'as much entitled to such aid [of counsel] ... as at the trial itself.' (Powell v. Alabama, 287 U.S. 45, 57.)" (Pp. 236-237 [18 L.Ed.2d, pp. 1162-1163].)

In People v. Fowler (1969) 1 Cal.3d 335 [82 Cal.Rptr. 363, 461 P.2d 643], we concluded that the rules established in Wade and Gilbert governed preindictment lineups. Justice Sullivan, writing for the majority, noted that "[t]he presence or absence of those conditions attendant upon lineups which induced the high court to term such proceedings 'a critical stage of the prosecution' at which the right to counsel attaches ... is certainly not dependent upon the occurrence or nonoccurrence of proceedings formally binding a defendant over for trial. A lineup which occurs prior to the point in question may be fraught with the same risks of suggestion as one occurring after that point, and may result in the same far-reaching consequences for the defendant." (P. 342.) (Fns. omitted.) fn. 3

Although lower federal courts also interpreted Wade and Gilbert to apply to preindictment lineups (see Wilson v. Gaffney (10th Cir. 1972) 454 F.2d 142, 144; United States v. Greene (D.C. Cir. 1970) 429 F.2d 193, 196; United States v. Phillips (9th Cir. 1970) 427 F.2d 1035, 1037), when the issue reached the United States Supreme Court, that court disagreed. In Kirby v. Illinois (1972) 406 U.S. 682 [32 L.Ed.2d 411, 92 S.Ct. 1877], the plurality opinion of Justice Stewart, noting that Wade and Gilbert required counsel only at a "critical stage of the criminal prosecution" (p. 683 32 L.Ed.2d, p. 414], citing Gilbert v. California, supra, 388 U.S. 263, 272 [18 L.Ed.2d 1178, 1186]), held that for this purpose the "prosecution" does not commence until "the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."

Two California Court of Appeal decisions assumed that Kirby overturned Fowler and consequently that defendants were no longer entitled [30 Cal.3d 96] to counsel at a preindictment lineup. (People v. Faulkner (1972) 28 Cal.App.3d 384, 390 [104 Cal.Rptr. 625]; People v. O'Roy (1972) 29 Cal.App.3d 656, 662 [105 Cal.Rptr. 717].) When that issue reached this court, however, we failed to reach a majority consensus. In People v. Chojnacky (1973) 8 Cal.3d 759 [106 Cal.Rptr. 106, 505 P.2d 530], the opinion of Justice Burke, joined by Chief Justice Wright and Justice McComb, asserted that Fowler was no longer controlling after the decision of the United States Supreme Court in Kirby. (P. 764.) Justice Mosk, concurring, maintained that because the lineup in Chojnacky took place before the filing of the decision in Kirby, its validity must still be judged under the Wade-Gilbert rules as applied in Fowler. He concluded, however, that the presence of counsel at the lineup satisfied the Wade-Gilbert rules even though counsel was not informed which man in the lineup was his client. (P. 768.) I joined the dissenting opinion of Justice Sullivan, which stated not only that Fowler did control but also that the police refusal to disclose to counsel the identity of his client rendered the identification testimony inadmissible. (Pp. 769-770.)

Since Chojnacky failed to settle the issue, the Courts of Appeal in subsequent cases continued to assume that a defendant had no right to counsel at a preindictment lineup. (People v. Kilpatrick (1980) 105 Cal.App.3d 401, 411 [164 Cal.Rptr. 349]; People v. Williams (1977) 68 Cal.App.3d 36, 42 [137 Cal.Rptr. 70]; fn. 4 People v. Strawder (1973) 34 Cal.App.3d 370, 378 [108 Cal.Rptr. 901]; but see People v. Johnson (1978) 85 Cal.App.3d 684 [149 Cal.Rptr. 661], which assumed arguendo that defendant was erroneously denied counsel at a preindictment lineup, but held the error nonprejudicial.) Presiding Justice Roth, dissenting in Johnson, argued that a defendant enjoyed a more extensive right to counsel under the California Constitution than the limited federal right circumscribed by Kirby (see 85 Cal.App.3d at p. 699), but no majority opinion considered that proposition. Thus today we approach the question of a defendant's right to counsel at a lineup under the California Constitution as a question of first impression. fn. 5 [30 Cal.3d 97]

[2] In construing the Bill of Rights in the California Constitution, we give respectful consideration to decisions of the United States Supreme Court construing federal constitutional guarantees, but we are not bound to follow those decisions. (People v. Longwill (1975) 14 Cal.3d 943, 951, fn. 4 [123 Cal.Rptr. 297, 538 P.2d 753].) As we stated in People v. Chavez (1980) 26 Cal.3d 334, 352 [161 Cal.Rptr. 762, 605 P.2d 401]: "[J]ust as the United States Supreme Court bears the ultimate judicial responsibility for determining matters of federal law, this court bears the ultimate judicial responsibility for resolving questions of state law, including the proper interpretation of provisions of the state Constitution. [Citations.] In fulfilling this difficult and grave responsibility, we cannot properly relegate our task to the judicial guardians of the federal Constitution, but instead must recognize our personal obligation to exercise independent legal judgment in ascertaining the meaning and application of state constitutional provisions."

A blind following of Supreme Court precedent would frustrate our ability to protect rights enjoyed by Californians and to maintain consistency in California law. (See Mosk, The State Courts, in American Law: The Third Century (Schwartz edit. 1976) 213, 217-220.) If the United States Supreme Court hands down a decision which limits rights established by earlier precedent in a manner inconsistent with the spirit of the earlier opinion, it may become incumbent upon this court to employ the California Constitution to maintain consistent principles protecting those rights. (See People v. Disbrow (1976) 16 Cal.3d 101, 115 [127 Cal.Rptr. 360, 545 P.2d 272].) "Respect for our Constitution as 'a document of independent force' [citation omitted] forbids us to abandon settled applications of its terms every time changes are announced in the interpretation of the federal charter." (People v. Pettingill (1978) 21 Cal.3d 231, 248 [145 Cal.Rptr. 861, 578 P.2d 108].)

Consequently, even though United States v. Wade, supra, 388 U.S. 218 held that the federal Constitution grants defendants a right to counsel at lineups, we are free to determine as an issue of first impression whether the California Constitution grants a similar right. [1b] If we determine that defendants have a right to counsel at lineups under [30 Cal.3d 98] the state Constitution, we must determine whether that right is limited to postindictment lineups as indicated in Kirby, or extends to all lineups in accord with the California practice following Fowler.

We first consider whether article I, section 15 of the California Constitution, which guarantees a defendant "the assistance of counsel," imports a right to have counsel present at a lineup. Concluding that the constitutional provision includes such a right, we must consider the question whether that right should be limited, as suggested by Kirby, to postindictment lineups.

Judicial recognition of the right to counsel at a lineup originated as a response to the recognized unreliability of eyewitness identification. As a leading scholar then stated, "The identification of strangers is proverbially untrustworthy." (Frankfurter, The Case of Sacco and Vanzetti (1927) p. 30.) Another commentator, Judge Jerome Frank, concluded that "Perhaps erroneous identification of the accused constitutes the major cause of the known wrongful convictions." (Frank & Frank, Not Guilty (1957) p. 61.) fn. 6

In light of these dangers, a properly conducted lineup, staged as soon as feasible after the crime, and containing a number of persons whose general appearance resembles the defendant, becomes an invaluable police technique to enhance the reliability of identification. That procedure, however, clearly makes the lineup a "critical stage of the prosecution" within the language of United States v. Wade, supra, 368 U.S. 218, 237 [18 L.Ed.2d 1149, 1162-1163], for when a witness has made a positive identification at a lineup, he is unlikely to change his mind. "[O]nce any identification decision is made it may well be 'irreparable.'" (People v. Anderson, supra, 205 N.W.2d 461, 485, italics omitted; see United States v. Wade, supra, 388 U.S. 218, 228 [18 L.Ed.2d 1149, 1158]; cf. Simmons v. United States (1968) 390 U.S. 377, 383-384 [19 L.Ed.2d 1247, 1253, 88 S.Ct. 967] (photographic lineup).) Identification testimony at trial, when defendant has counsel who may cross-examine the witness, may be unshakable if an earlier lineup identification has removed the witnesses' doubts and committed him to the proposition that defendant is the criminal in question. [30 Cal.3d 99]

As Justice Brennan stated in Wade, "A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that '[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor -- perhaps it is responsible for more such errors than all other factors combined.' Wall, Eye-Witness Identification in Criminal Cases 26." (Pp. 228-229 [18 L.Ed.2d, p. 1158]; see Sobel, Eyewitness Identification (1972) 3.01.) Moreover, as Wade and other cases pointed out, it is extremely difficult to reproduce the identification procedure at trial with sufficient precision to detect improper suggestion.

We therefore conclude that a pretrial lineup is a critical stage in the prosecution of a criminal case, and that ensuring the fairness of that lineup is crucial to the protection of innocent persons accused of crime. The more difficult question is whether the requirement of the presence of counsel will significantly alleviate the danger of mistaken identification.

Although counsel plays only a limited role at the lineup itself fn. 7 his presence may still serve to protect the rights of the defendant. A requirement for counsel at lineups encourages the police to adopt regulations to ensure the fairness of the lineups (see Pulaski, Neil v. Biggers: The Supreme Court Dismantles the Wade Trilogy's Due Process Protection (1974) 26 Stan.L.Rev. 1097, 1101) and to follow those regulations (see People v. Fowler, supra, 1 Cal.3d 335, 348). The attorney may detect inadvertent suggestive actions not within the scope of protective regulations. Finally, counsel's observations will help him to prepare for cross-examination of the identifying witness and for argument at trial. (See Blue v. State, supra, 558 P.2d 636, 641; Read, Lawyers at Lineups: Constitutional Necessity or Avoidable Extravagance? (1969) 17 UCLA L.Rev. 339, 376.) [30 Cal.3d 100]

We recognize that some jurists and commentators have urged that the presence of counsel is not necessarily the only way, or even the best way, to protect a defendant from mistaken identification. (See United States v. Wade, supra, 388 U.S. 218, 239 [18 L.Ed.2d 1149, 1164] (opn. of Brennan, J.); id., at p. 262, fn. "*" (opn. of Fortas, J.); People v. Fowler, supra, 1 Cal.3d 335, 348-349; see generally Sobel, Eye-Witness Identification (1972) 56, proposing standards for conducting a fair lineup; Pulaski, op. cit., supra, 26 Stan.L.Rev. 1097, 1101-1102; Read, op. cit. supra, 17 UCLA L.Rev. 339, 379-393 (suggesting a form regulation).)

We need not, however, decide today whether regulations can be promulgated which are so effective in protecting the defendant's rights that presence of counsel is no longer constitutionally compelled. fn. 8 We have previously indicated that the pretrial lineup is a critical stage in California criminal prosecutions. Since the presence of counsel can contribute significantly to the protection of his client from misidentification, defendant is entitled to have counsel present to assist him at that critical juncture. We therefore hold that, a California defendant's right to assistance of counsel includes the right to counsel at a pretrial lineup.

We turn to the question whether defendant's right to counsel should be limited, as in Kirby, to postindictment lineups. As we noted earlier, the plurality opinion in Kirby did not deny that a preindictment lineup may be critical to the defense of a criminal case and may result in intractable misidentification of an innocent accused; it held, instead, that defendant has no right to counsel until the "prosecution" commences with the filing of formal charges.

We think this a wholly unrealistic view, and note that the commentators have generally condemned Kirby's limitation of the right to counsel. (See Pulaski, op. cit., supra, 26 Stan.L.Rev. 1097, 1102 and fn. 39.) At least from the rendition of People v. Dorado (1965) 62 Cal.2d [30 Cal.3d 101] 338, 346 [42 Cal.Rptr. 169, 398 P.2d 361], we have recognized that a defendant may require the assistance of counsel before formal charges have been filed. Indeed, to limit the right to counsel at a lineup to postindictment lineups would as a practical matter nullify that right. "The defendant who most needs protection from erroneous identification is one who is implicated primarily or solely by eyewitness testimony. Yet, because of this lack of noneyewitness evidence, an identification of the defendant in a lineup or showup would be necessary to justify formal charges or arraignment. Consequently, the crucial confrontation necessarily will be held before the initiation of formal judicial proceedings when the defendant can be deprived of counsel. Thus Kirby removes the protective effects of counsel's presence precisely when the danger of convicting an innocent defendant upon a mistaken identification is greatest. Furthermore, after Kirby, the policy may defeat the aims of Wade and Gilbert in any case simply by delaying formal charges and holding the lineup in the absence of defense counsel." (Note (1977) 29 Stan.L.Rev. 969, 996, fns. omitted.)

The Attorney General argues that requiring counsel at lineups, without the Kirby limitation, will hamper legitimate police investigation. The officers, he points out, would be required to advise defendant of his right to counsel, determine whether he wants counsel, and arrange for counsel if defendant is indigent. Further delay may ensue if counsel, retained by the defendant or secured by the police, cannot come promptly to the site of the lineup. If the right to counsel at a lineup is limited to postindictment lineups, defendant will generally be represented by counsel of record, which may make arranging for the presence of counsel at the lineup an easier task.

Although extending the right to counsel to preindictment lineups will thus impose an additional burden upon the police, and may delay the staging of the lineup, these consequences do not appear substantial enough to justify denying defendant this protective right. The burden of securing counsel is exactly the same as that which police departments must assume if they wish to question a defendant who invokes his right to counsel under Miranda v. Arizona, supra, 384 U.S. 436; it is a requirement which governed all California lineups during the five years between Wade and Kirby -- without, so far as we are aware, significantly impeding police investigation. The delay involved in securing counsel will generally be a matter of hours at most. If conditions require immediate identification without even minimal delay, or if counsel cannot be [30 Cal.3d 102] present within a reasonable time, such exigent circumstances will justify proceeding without counsel. fn. 9

We conclude that we should adhere to the views stated in People v. Fowler (1969) 1 Cal.3d 335 [82 Cal.Rptr. 363, 461 P.2d 643]. We hold that article I, section 15 of the California Constitution, affords to a defendant the right to the presence of counsel at a preindictment lineup. Any implication to the contrary in the Court of Appeal decisions cited earlier (People v. Kilpatrick, supra, 105 Cal.App.3d 401; People v. Williams, supra, 68 Cal.App.3d 36; People v. Strawder, supra, 34 Cal.App.3d 370; People v. Faulkner, supra, 28 Cal.App.3d 384; People v. O'Roy, supra, 29 Cal.App.3d 656) are disapproved.

[3] We turn now to two subsidiary issues: the retroactive effect, if any, to be given our holding, and the impact of that holding upon the disposition of the present appeal.

In recent years, when we have overruled decisions on criminal procedure upon which prosecutors and lower courts have relied, we have often declared that our holding is prospective except as to the individual defendant whose appeal is being adjudicated by the court (see People v. Cook (1978) 22 Cal.3d 67, 99, fn. 18 [148 Cal.Rptr. 605, 583 P.2d 130] and cases there cited). As the public defender points out, we have hitherto applied that doctrine only when we have overruled an earlier decision of this court. In the present case, our decision upholding a right to counsel at preindictment lineups does not conflict with any prior precedent of this court. Nevertheless, because the Chojnacky court failed to reach a majority, the Courts of Appeal were compelled to decide that issue without guidance from this court; they decided against extending the right to counsel to preindictment lineups; police, prosecutors, and courts have placed extensive reliance upon these decisions. We believe that the rationale underlying prospectivity in Cook and similar cases applies in the present situation. Accordingly, with the exception of the present appeal, the holding in this opinion should apply only to lineups held after the date of finality of this opinion.

[4a] In the present appeal, our holding would require the exclusion of the identification testimony of Zimmerman unless that testimony [30 Cal.3d 103] rests on a basis independent from and untainted by the improper lineup. (See United States v. Wade, supra, 388 U.S. 218, 240-242 [18 L.Ed.2d 1149, 1164-1166].) The trial court rendered no finding sufficient to permit admission of the testimony on this basis. The Attorney General argues, however, that even if Zimmerman's testimony is excluded the robbery conviction should be upheld on the basis of the other evidence against defendant. fn. 10

The robbery conviction finds support in the identification testimony of Grosskopf, the tentative identifications by the two women called as defense witnesses, and the discovery of Grosskopf's wallet in defendant's room. The testimony of Zimmerman, however, was the strongest single item of prosecution evidence, since Zimmerman picked defendant out of a lineup immediately after the defendant's arrest, while Grosskopf did not identify defendant until the preliminary hearing when defendant was not arrayed with persons of similar appearance. fn. 11 In the absence of Zimmerman's testimony we think it reasonably probable that the jury would not have convicted defendant on count I of the information.

[5] When the admissibility of evidence turns on an issue of fact -- an issue unresolved by the trial court because its significance was established by a subsequent appellate opinion -- the appellate court need not reverse the conviction outright, but can remand the cause for resolution of the factual issue. (See People v. Vanbuskirk (1976) 61 Cal.App.3d 395, 405 [132 Cal.Rptr. 30]; People v. Ingram (1978) 87 Cal.App.3d 832, 840-841 [151 Cal.Rptr. 239] and cases there cited.) [4b] In the present setting, the admissibility of Zimmerman's testimony depends on whether it derives from an independent source, untainted by the counselless lineup -- a factual issue which the lower court, relying on Kirby, failed to resolve. Accordingly, the judgment against defendant on count I of the information should be reversed and remanded for the trial court to determine that issue. If it decides in favor of defendant and excludes the testimony, defendant would be entitled to a new trial; if it decides in favor of the People, the court should reinstate the judgment previously rendered. [30 Cal.3d 104]

Defendant's other contentions were fully addressed by the Court of Appeal. We agree with that court's resolution of the issues there presented, and therefore reject those contentions as without merit. (See People v. James (1977) 19 Cal.3d 99, 118 [137 Cal.Rptr. 447, 561 P.2d 1135].)

The judgment with respect to count I (robbery) is reversed, and the cause remanded for further proceedings in accord with the views expressed in this opinion. The judgment as to count IV (receiving stolen property), count V (possession of a gun by ex-felon), count VI (possession of cocaine), and count VII (possession of concentrated cannabis) is affirmed. fn. 12

Mosk, J., Newman, J., and Wiener, J., concurred.

BIRD, C. J.

I concur in the judgment of the court but I must dissent from two assertions in the majority opinion. It is suggested in dictum that counsel's role at lineups should be a passive one. From this conclusion, the majority go on to suggest that counsel might be constitutionally replaced by proper regulations governing lineups. (Maj. opn., ante, at pp. 99-100.)

The presence of counsel at a lineup is vital to counsel's preparation for the cross-examination of witnesses at trial. (Maj. opn., ante, at p. 99; People v. Fowler (1969) 1 Cal.3d 328, 348-349 [82 Cal.Rptr. 363, 461 P.2d 643]; United States v. Wade (1967) 388 U.S. 218, 227 [18 L.Ed.2d 1149, 1157, 87 S.Ct. 1926].) This court has recognized that regulations for lineups are not an adequate substitute for the presence of counsel. Regulations cannot protect the constitutional rights of an accused to meaningful cross-examination and the effective assistance of counsel. fn. 1 Studies have also indicated that the presence of an observer [30 Cal.3d 105] at an identification procedure can reduce unintentional bias. (Levine & Tapp, The Psychology of Criminal Identification: The Gap from Wade to Kirby (1973) 121 U.Pa.L.Rev. 1079, 1114, 1125, and studies cited at fn. 183.)

The majority opinion contains the unfortunate implication that the need for counsel might be obviated if regulations for lineups are adopted. (Maj. opn., ante, at p. 99.) In my view, the requirement that counsel be present and the need to set down regulations are not mutually exclusive.

Legal scholars have repeatedly recognized the crucial value of regulations governing lineups and the importance of the presence of counsel. "[E]ven a strictly applied [standard against suggestive procedures] would not be an adequate substitute for counsel in confrontations held before the initiation of 'adversary judicial proceedings.' Due process cannot accomplish the same goals that counsel can." (Comment, The Right to Counsel: Attachment Before Criminal Judicial Proceedings? (1979) 47 Fordham L.Rev. 810, 831; see also Levine & Tapp, op. cit. supra, 121 U.Pa.L.Rev. 1079, 1125: "It is not that the right to counsel should be abandoned .... It would, however, be most unfortunate if the presence of counsel produced a false sense of security which inhibited additional procedural reform.")

The right to the presence of counsel at a lineup is not an ill-considered measure which may be dispensed with if regulations are adopted. The requirement that counsel be present serves constitutional interests. The right to the effective assistance of counsel is involved. Videotapes and regulations cannot be substituted for such a basic constitutional right.

The suggestion that counsel may be replaced by rule and camera grows out of the majority's ill-conceived notion that counsel is merely a passive observer at lineups. This court has never enunciated such a role. (People v. Fowler, supra, 1 Cal.3d at p. 349, fn. 19.) Counsel cannot unreasonably be denied access to his own client, and, therefore, should in most cases be permitted to see his client prior to a lineup. (Cf. People v. Chojnacky (1973) 8 Cal.3d 759, 769 [106 Cal.Rptr. 106, 505 P.2d 530] [dis. opn. of Sullivan, J.].) Further, counsel can give valuable [30 Cal.3d 106] advice to an anxious client on how to conduct himself during the lineup so as to ensure its fairness. (Katz & Carter, Cal. Criminal Law Practice Series, Eyewitnesses Identification (1978) at p. 9; Levine & Tapp, op. cit. supra, 121 U.Pa.L.Rev. at p. 1125.)

Further, counsel should be free to suggest changes so that a lineup is fair. The presence of counsel at the lineup also provides an opportunity to meet and interview eyewitnesses before a great deal of time has elapsed between their pretrial identifications and their in-court identifications.

Printed rules and a videotape camera do not a counsel make. A passive counsel is not necessarily an effective counsel at a lineup. If this court wants to ensure that identifications by eyewitnesses are fair and just, it should not discourage the participation of counsel who may be able to ensure that proper procedures are used.

Staniforth, J., concurred.

RICHARDSON, J.

I respectfully dissent. Relying upon the California Constitution, the majority holds that suspects facing preindictment or prearraignment identification lineups are entitled to the selection or appointment, presence and assistance of counsel. The majority thereby unnecessarily extends the right of counsel beyond the requirements of the federal Constitution as interpreted by the United States Supreme Court. (See Kirby v. Illinois (1972) 406 U.S. 682 [34 L.Ed.2d 411, 92 S.Ct. 1877].) In my view, Kirby affords a sound basis for confining the right to counsel to lineups which occur after the defendant has been formally charged with a crime.

The majority ignores the forceful reasoning of Justice Stewart's plurality opinion in Kirby which carefully explains the significance of the filing of formal charges in the context of right to counsel: "The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. [] It is this point, [30 Cal.3d 107] therefore, that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable. [Citations.] [] In this case we are asked to import into a routine police investigation an absolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings. We decline to do so. Less than a year after Wade and Gilbert were decided, the Court explained the rule of those decisions as follows: 'The rationale of those cases was that an accused is entitled to counsel at any "critical stage of the prosecution," and that a postindictment lineup is such a "critical stage."' (Italics supplied.) [Citation.] We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever." (Pp. 689-690 [34 L.Ed.2d, pp. 417-418], fn. omitted.)

The People represent, and defendant does not contest, that the Kirby rule has been adopted by the following 37 states: Alabama, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, West Virginia, and Wisconsin. Of those states examining the question, only four apparently have not accepted the rule. Thus, the statement in the majority opinion that "A majority of state court decisions follow Kirby ..." (ante, p. 96, fn. 5) is a considerable understatement.

A criminal investigation is not a criminal prosecution. Nonetheless, rejecting the decision in Kirby, the majority holds that a preindictment lineup is a "critical stage" of criminal proceedings, by reason of the "unreliability of eyewitness identification of strangers" and the "dangers that improper, inadvertent or deliberate suggestion at a lineup will irradicably influence identification testimony." (Ante, p. 92.) Such factors, however, do not warrant our departure from Kirby. Unreliable identifications can occur whether or not counsel is present. Moreover, any abuse of identification procedures, including improperly suggestive lineups, may be fully reviewed under applicable due process standards. (Kirby, 406 U.S. at pp. 690-691 [34 L.Ed.2d at p. 418]; Stovall v. Denno (1967) 388 U.S. 293 [18 L.Ed.2d 1199, 87 S.Ct. 1967].) As stressed by the high court in Kirby, "Stovall strikes the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt [30 Cal.3d 108] and purposeful investigation of an unsolved crime." (P. 691 [34 L.Ed.2d, pp. 418-419].) We err in again deliberately tilting this balance against the People.

In the present case, complete photographs of the lineup and its participants (both front and side views) were taken and were made available to defense counsel at trial. The victims had told police officers that the suspects were a black and an Hispanic. Accordingly, the officers displayed at the lineup six blacks and six Hispanics to the witnesses, who marked their identifications upon cards supplied for that purpose. The procedures employed here certainly help to reduce the danger of suggestion at the lineup.

The presence of counsel at a lineup affords no absolute protection against unreliable or suggestive identifications. In the words of one commentator, "A review of the role of counsel at lineups indicates the limited nature of the services he can perform. In fact, there are some indications that a lawyer's presence may hinder the effective use of the lineup as an investigatory technique." (Read, Lawyers at Lineups: Constitutional Necessity or Avoidable Extravagence? (1969) 17 UCLA L.Rev. 339, 394, italics added.) Indeed, considerable doubt exists as to the proper function of the suspect's counsel at a lineup, and "it would appear that defense counsel has no affirmative right to be active during the course of the lineup." (People v. Williams (1971) 3 Cal.3d 853, 860 [92 Cal.Rptr. 6, 478 P.2d 942] [dis. opn., by Mosk, J.]; see also Read, supra, at pp. 362-367.)

Given the passive role played by counsel at a lineup, it is not surprising that the vast majority of state courts have followed Kirby. There is a manifest need for the prompt and efficient identification of suspects following commission of a crime. Investigative leads may open and close very fast. The majority's new rule necessarily will cause needless and perhaps critical delays in this identification process. The suspect may not have counsel or he may be slow in selecting counsel. Once chosen, there may be financial or other complications in retaining counsel. Counsel may be on vacation or for varied reasons otherwise engaged. The majority's rejection of Kirby cannot but delay criminal investigations, and the delay may well be very appreciable. Meanwhile, this phase of the investigation grinds to a halt. Although the majority purports to recognize that "exigent circumstances will justify proceeding without counsel," (ante, p. 102), harried police personnel busily engaged [30 Cal.3d 109] in an ongoing investigation are further shackled because they may well be unable accurately to determine whether or not a true "exigency" exists. This can further complicate and prolong law enforcement procedures without a reciprocal compensating benefit.

I have previously expressed my views concerning the propriety of selective reliance upon provisions of the California Constitution to avoid otherwise applicable decisions of the United States Supreme Court interpreting identical, or substantially similar provisions of the federal Constitution. (E.g., People v. Disbrow (1976) 16 Cal.3d 101, 118-121 [127 Cal.Rptr. 360, 545 P.2d 272] [dis. opn.].) I do not repeat those views here.

The court's Kirby rule is supported not only by the great weight of authority, but by common sense as well. The majority's departure from Kirby is unnecessary and unwise. I would affirm the judgment of conviction.

―FN 1. For convenience -- because it corresponds to the language of Wade and Kirby -- we shall generally describe Kirby as distinguishing between "preindictment" and "postindictment" lineups. Although we describe our decision in terms of the right of a defendant to counsel at a "preindictment" lineup, our holding applies equally to felony prosecutions initiated by information and to misdemeanor prosecutions.

―FN 2. In a companion case, Gilbert v. California (1967) 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951], the court ruled that testimony at trial to the effect that witnesses identified the defendant at a postindictment lineup, which was held in violation of defendant's right to counsel, was inadmissible. Since such testimony derives directly from the improper lineup, it cannot be saved by proving that it came from an independent, untainted source. (See 388 U.S. at pp. 272-274 [18 L.Ed.2d at pp. 1186-1187].)

―FN 3. The Wade court had suggested that regulations which eliminated the risks of abuse and unintentional suggestion at lineups would remove the basis for regarding such confrontations as a "critical" stage of the prosecution (388 U.S. at p. 239 [18 L.Ed.2d at p. 1164]); thus the Attorney General in Fowler argued that the police regulations in effect at the Fowler lineup accomplished that purpose. We rejected that contention, noting that counsel could observe whether such protective regulations were followed and could aid in reconstructing the lineup procedure to detect unintentional suggestiveness or inadvertent use of unfair techniques. (P. 349 of 1 Cal.3d.) Accordingly, we held that the identification testimony against Fowler could not be admitted unless the prosecution could prove that it derived from an independent and untainted source.

―FN 4. Williams stated that under Kirby a defendant ordinarily had no right to counsel at a preindictment lineup, but established an exception when the arraignment was unreasonably delayed.

―FN 5. A majority of state court decisions follow Kirby in limiting a defendant's right to counsel at a lineup. Most decisions do not consider the alternative of independent state constitutional rights; among the few which do, and nevertheless resolve to follow Kirby, are State v. Boyd (Me. 1972) 294 A.2d 459, 463; State v. Delahunt (1979) ___ R.I. ___ [401 A.2d 1261, 1265]; State v. Taylor (1973) 60 Wis.2d 506 [210 N.W.2d 873, 882].

Two state courts have relied on state constitutional grounds to grant a right to counsel at preindictment lineups. (Blue v. State (Alaska 1977) 558 P.2d 636, 641; People v. Jackson (1974) 391 Mich. 323 [217 N.W.2d 22, 27].) The Pennsylvania Supreme Court reached nearly the same result by holding that, under Pennsylvania law, the initiation of criminal proceedings -- under Kirby, the point at which the right to counsel arises -- commences with the arrest. (Commonwealth v. Richman (1974) 458 Pa. 167 [320 A.2d 351, 353].)

―FN 6. The Michigan Supreme Court, in an appendix to People v. Anderson (1973) 389 Mich. 155 [205 N.W.2d 461, 479-494], reviewed at length the psychological factors which render eyewitness identification unreliable, and cited the leading studies and articles on the subject. The court also reviewed the facts in three Michigan cases in which mistaken identification led to the conviction of innocent defendants.

―FN 7. As Justice Mosk explained in People v. Williams (1971) 3 Cal.3d 853, 860 [92 Cal.Rptr. 6, 478 P.2d 942] (dis. opn.), counsel "cannot rearrange the personnel, cross-examine, ask those in the lineup to say anything or to don any particular clothing or to make any specific gestures. Counsel may not insist law enforcement officials hear his objection to procedures employed, nor may he compel them to adjust their lineup to his views of what is appropriate. [Citation omitted.] [] At most, defense counsel is merely present at the lineup to silently observe and to later recall his observations for purposes of cross-examination or to act in the capacity of a witness. But the latter raises the complex trial circumstances, frowned upon by ethics of the profession, of the lawyer serving in the additional role of a testimonial witness."

―FN 8. The record on appeal does not indicate the police regulations, if any, which governed the lineup in the present case, but does provide a description of the procedures employed. The police displayed six hispanics, including defendant, and six blacks to the witnesses, who marked their identifications on cards supplied for the purpose. The record of the lineup consists of color photographs, front and side view, of the participants. (Presumably the cards marked by the witnesses were also available, but were not offered into evidence.) We have no record, other than the testimony of the persons at the lineup, whether anything was said at the lineup by the suspects, the police, or the witnesses.

―FN 9. As stated in Blue v. State, supra, 558 P.2d 636, 642 a suspect in custody "is entitled to have counsel present at a pre-indictment lineup unless exigent circumstances exist so that providing counsel would unduly interfere with a prompt and purposeful investigation."

―FN 10. It is clear that the admission of Zimmerman's testimony is not prejudicial as to counts IV, V, VI, and VII of the information.

―FN 11. The record indicates that Zimmerman may have told Grosskopf of Zimmerman's identification of defendant before Grosskopf identified defendant; if so, that fact would undercut Grosskopf's identification testimony as an independent support for the conviction.

―FN 12. Under the Determinate Sentencing Act, a consecutive sentence imposed for a subordinate term is fixed at one-third of the middle term of imprisonment. (Pen. Code, 1170.1.) If the conviction underlying the principal term is reversed, it then becomes necessary for the trial court to select the next most serious conviction to compute a new principal term. Thus, whenever an appellate court reverses a conviction for the principal term, the trial court retains jurisdiction over the entire cause as needed to make the necessary modifications in the sentence. In the present case, the trial court retains jurisdiction over counts IV, V, VI, and VII, as well as over count I, and can modify the sentence as to these counts if the ultimate disposition of count I requires such action.

―FN 1. In People v. Fowler, supra, 1 Cal.3d at pages 348-349, this court discussed the constitutional infirmity of a highly regulated lineup that included still photographs of the lineup: "[Counsel's] opportunity for cross-examination on the basis of the cold regulations provided to him could amount to little more than shooting in the dark ...." (Id., at p. 349.)