I dissent.
When appellate courts fix different dates for the operative effect of their decisions in criminal cases involving the same constitutional rights, confusion is bound to result. The instant case adds to that confusion by creating another unnecessary exception to an established rule.
Until relatively recently it was an established doctrine that *1006decisions recognizing the existence of constitutional rights were retroactive in the full sense of that word. (Gideon v. Wainwright, 372 U.S. 335 [9 L.Ed.Ed 799, 83 S.Ct. 792, 93 A.L.R.2d 733]; Hamilton v. Alabama, 368 U.S. 52 [7 L.Ed.2d 114, 82 S.Ct. 157]; Douglas v. California, 372 U.S. 353 [9 L.Ed.2d 811, 83 S.Ct. 814].) Then this court and the Supreme Court of the United States discovered the device of making such decisions partially retroactive so as to apply only to eases not reduced to final judgment when the rules were announced. (In re Lopez, 62 Cal.2d 368 [42 Cal.Rptr. 188, 398 P.2d 380]; Linkletter v. Walker, 381 U.S. 618 [14 L.Ed.2d 601, 85 S.Ct. 1731]; Tehan v. Shott, 382 U.S. 406 [15 L.Ed.2d 453, 86 S.Ct. 459].) Then, apparently impressed with this newly discovered power, the United States Supreme Court in Johnson v. New Jersey, 384 U.S. 719 [16 L.Ed.2d 882, 86 S.Ct. 1772], held that the rules announced in Miranda v. Arizona, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], should apply only to cases tried after the date of Miranda. We followed this decision (People v. Rollins, 65 Cal.2d 681 [56 Cal.Rptr. 293, 423 P.2d 221]). Then, just a few weeks ago, the high court went all out and held that the lineup rule, based on the Sixth and Fourteenth Amendment rights, should apply only where the illegal lineup was held after June 12, 1967, the date of its decision. (Stovall v. Denno, 35 U.S.L. Week 4610.)
In the instant case, the majority opinion adds a new rule to this already overcrowded field of confusion. It first reaffirms the rule announced in Lopez, that the rules of Escobedo and Dorado apply to all cases not yet final when those cases were decided, but then holds that the “finality” there referred to does not apply where the lack of finality is caused by recalling the remittitur. In other words, the majority hold that when a remittitur is recalled, and the judgment set aside because the appellant never had the appeal guaranteed him, and is afforded for the first time a proper appeal, the law in effect when the abortive appeal was decided governs. In other words, we must treat the appeal as if a final judgment had been rendered before the date of Escobedo even though we know no such final judgment exists because the remittitur has been recalled!
To accomplish this result the majority find it necessary to disapprove four recent cases. (People v. Jaquish, 244 Cal.App.2d 444 [53 Cal.Rptr. 123]; People v. Boyden, 237 Cal.App.2d 695 [47 Cal.Rptr. 136]; People v. Garner, 234 *1007Cal.App.2d 212 [44 Cal.Rptr. 217]; People v. Benavidez, 233 Cal.App.2d 303 [43 Cal.Rptr. 577].) In these four cases, this court, in denying hearings after decision by the Court of Appeal, had established the rule that where a remittitur was recalled and the second appeal was heard after Escobedo, Escobedo applied.
In each of these four eases this court passed upon the precise legal point involved here, and then determined, for apparently convincing reasons, that Escobedo applied after the remittiturs were recalled. Such a well settled rule should not be disturbed except for the most compelling reasons. No convincing reasons are offered by the majority.
The majority opinion is also contrary to the fundamental theory announced by this court in In re Estrada, 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948]. That case held that the law in effect when the appeal is decided, even where the new rule is statutory, governs, and not the law when the act was committed or the case tried. The majority in the instant case by some undisclosed nunc pro tunc process apply the law in effect when the abortive appeal was considered. This is inconsistent and contrary to In re Estrada, supra.
But of even greater importance the majority completely disregard, in fact do not even mention, the law applicable to the recall of a remittitur. It must be remembered that the remittitur was recalled here because appellant never had a valid appeal—he never had the appeal guaranteed to him, that is an appeal with counsel. The appeal without counsel was abortive and was set aside. The first legal appeal that Rivers has had is the instant one.
The very effect of recalling the remittitur is to set aside the “final” judgment. The so-called “final” judgment disappears from tlie case, and the appeal is in the same position as if no appeal had been decided. The theory is that when an appellate court recalls its remittitur it does not “resume” a jurisdiction it has lost, but, because of the facts requiring the recall, it has never lost jurisdiction—that the judgment recalled is a nullity and should be disregarded. (Isenberg v. Sherman, 214 Cal. 722, 725 [7 P.2d 1006]; Trumpler v. Trumpler, 123 Cal. 248, 252 [55 P. 1008].) These principles are disregarded in the majority opinion.
There are other factors to be considered. Had Rivers had counsel on his first appeal it is conceivable counsel could have raised the very point later decided in Escobedo. The majority deny him that right. Moreover, had the appeal of Rivers been *1008delayed until after Escobedo was decided, he would, of course, have been entitled to the benefits of that decision under In re Lopez, supra, 62 Cal.2d 368. These possibilities suggest a denial of equal protection in the instant case.
Once it is conceded that Rivers is entitled to raise the Escobedo point, there can be no doubt that he was interrogated in violation of the rules of that case, and that such violation was prejudicial. At the very least, during his improper interrogation he made damaging admissions. One statement amounted to a confession. This interrogation clearly violated the prejudicial error rule established by Fahy v. Connecticut, 378 U.S. 85 [11 L.Ed.2d 171, 84 S.Ct. 229], and Chapman v. California, 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824],
In Fahy v. Connecticut, supra, at page 86, the rule is stated to be that an error is prejudicial unless it can be said that there is no “reasonable possibility that the evidence complained of might have contributed to the conviction.” In Chapman v. California, supra, 386 U.S. 18, 24, the Fahy case is specifically reaffirmed and the rule restated as “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. ’ ’
Once error is established, these rules require a reversal unless the appellate court affirmatively finds that there is no "reasonable possibility that the evidence complained of might have contributed to the conviction. ” In the present case there is more than “reasonable possibility” that the error may have “contributed to the conviction.” Certainly it cannot be said that “beyond a reasonable doubt” the error was harmless. That being so the error must be held prejudicial and therefore reversible.
The fact that Rivers took the stand at his trial and repeated some but not all of the admissions did not immunize the error. Obviously, there is at least a “reasonable possibility” that he took the stand because he had already made the admissions which had been erroneously admitted. (People v. Spencer, ante, p. 158 [57 Cal.Rptr. 163, 424 P.2d 715].)
I would reverse the judgment for the reasons stated.