I dissent.
I cannot agree that, under state law, it should be held that the right to counsel at a lineup, announced in United States v. Wade, 388 U.S. 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926], and Gilbert v. California, 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951], should not apply to cases pending when these decisions were announced. The rule of Stovall v. Denno, 388 U.S. 293 [18 L.Ed.2d 1199, 87 S.Ct. 1967], holding such decisions are purely prospective is not binding on state courts, and should not, in my opinion, be followed here.
I have already expressed my disagreement with the majority of this court over their determinations on the issue of retroactivity of criminal eases. (See my dissents in People v. Rollins, 65 Cal.2d 681, 693 [56 Cal.Rptr. 293, 423 P.2d 221] and People v. Rivers, 66 Cal.2d 1000, 1005 [59 Cal.Rptr. 851, 429 P.2d 171].)
This is another in a whole series of cases dealing with the troublesome problem of the effective date of criminal decisions relating to constitutional rights. For many years the high court had held that its decisions in this field were wholly retroactive. (Gideon v. Wainwright, 372 U.S. 335 [9 L.Ed.2d 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 [In re Lopez, 62 Cal.2d 368 [42 Cal.Rptr. 188, 398 P.2d *450380]) and the United States Supreme Court (Linldetter 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]) discovered the device of making its decisions in criminal cases partially prospective, by holding that they applied only to pending appeals. Then the United States Supreme Court approached pure prospective operation when it held in Johnson v. New Jersey, 384 U.S. 719 [16 L.Ed.2d 882, 86 S.Ct. 1772], that the rules announced the week before in Miranda v. Arizona, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.B.Sd 974], should apply only to cases tried after the date Miranda was decided, although the constitutional evasion took place before Miranda was decided. In the Johnson case the high court also announced that its rulings in Escobedo v. Illinois. 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758], were prospective in that they applied only to cases tried after Escobedo was decided. Then in Stovall v. Denno, supra, 388 U.S. 293. the court reached pure prospective operation by holding that the lineup rules announced in United States v. Wade, supra, 388 U.S. 218, and Gilbert v. California, supra, 388 U.S. 263, should apply only to cases where the lineup was held after June 12, 1967, the date on which these eases were decided.
So far as federal law is concerned those cases are, of course, binding upon us. But in adopting its various rules of partially or wholly prospective operation the high court was careful to announce that the states were free to adopt more stringent rules of retroactivity if they so desired. (Johnson v. New Jersey, supra, 384 U.S. 719.) The California Supreme Court quickly accepted this invitation when it held in People v. Rollins, supra, 65 Cal.2d 681, that we would not follow the high court as to the effective date of Escobedo v. Illinois, supra, 378 U.S. 478, holding, contrary to the United States Supreme Court, that it applied to pending appeals as a matter of state law, but would follow it as to the effective date of Miranda v. Arizona, supra, 384 U.S. 436.
The attitude of this court, as a matter of state law, toward retroactivity was clearly demonstrated when it was faced with the question whether the rules announced in People v. Aranda, 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265], applied to cases tried before Aranda but pending on appeal when that case was decided. In People v. Charles, 66 Cal.2d 330 [57 Cal.Rptr. 745, 425 P.2d 545], we held that the newly *451discovered rules, not involving federal constitutional rights, applied to all eases not yet final when Aranda was decided.
Thus, we have been reluctant in the past to follow the Supreme Court of the United States on the issue of retro-activity. We should be reluctant to follow it on the lineup problem. We should not blindly follow it on that issue. In my opinion, to be consistent, the very least we should hold is that Wade and Gilbert apply to pending appeals. These cases deal with the fundamental and constitutional right of counsel. If Escobedo (which involves the right to counsel at interrogation), under state law, is to apply to pending cases, then the right of counsel involved in the lineup cases should also apply to pending appeals. If, under state law, the rules announced in Aranda, are to apply to pending cases, then the more important right here involved should also apply to pending cases.
There is no consistency in what this court is doing on this issue. Certainly no general principle has been announced that will settle whether criminal law decisions are to be retroactive or prospective. What the court is doing is to leave that determination to be made case by case. That, in my opinion, is not an intelligent way for the law to develop. ■
I would hold that the lineup rule, under state law, is retroactive at least to the extent that it applies to pending cases.