HUFSTEDLER, Circuit Judge,
dissenting, with whom Judge ELY concurs:
At a hearing in which he was denied the assistance of counsel, Harris was found not to be a fit and proper subject for juvenile proceedings. (See Calif. Welfare & Institutions Code § 707.) The juvenile court thereupon waived its jurisdiction in order to permit an information to be filed in the Superior Court charging Harris with murder. Subsequent to Harris’s conviction and sentence to life imprisonment, the Supreme Court held, with respect to a comparable waiver of jurisdiction by the District of Columbia juvenile court, that “there is no place in our system of law for reaching a result of such tremendous consequences without ceremony — without hearing, without effective assistance of counsel, without a statement of reasons.” (Kent v. United States (1966) 383 U.S.
541, 554, 86 S.Ct. 1045, 1053, 16 L.Ed.2d 84, accord, In re Gault (1967) 387 U.S. 1, 30, 87 S.Ct. 1428, 18 L.Ed.2d 527.) Nevertheless, the majority refuses to recognize Harris’s right to counsel at the fitness hearing, holding that Kent is not to be given retroactive application. In so holding, the majority misconceives both the unique nature of the fitness hearing and the critical role that counsel can play at those hearings.
The fitness hearing has no direct counterpart in the usual adult criminal process. The purpose of the proceeding, unlike an indictment or preliminary hearing, is not to establish probable cause for the initiation of further action. The hearing is designed to determine, based on an evaluation of the youth, his background, and his criminal history, the nature of response the state should make upon a determination of guilt. Thus, to the extent that it can be analogized to a stage in the criminal prosecution, the fitness hearing most nearly resembles a sentencing proceeding by the trial judge. (Kemplen v. Maryland (4th Cir. 1970) 428 F.2d 169, 174; see Donald L. v. Superior Court (1972) 7 Cal.3d 592, 596-598, 102 Cal. Rptr. 850, 498 P.2d 1098.) By finding that a youth is not a fit subject for exercise of juvenile court jurisdiction, the court determines that the accused, if found guilty, will be sentenced as an adult rather than receive non-punitive rehabilitation pursuant to the options available to the juvenile court under the Welfare and Institutions Code. (See Kent v. United States, supra, 383 U.S. at 556-557.)
As early as 1948 the Supreme Court held that the absence of counsel during the dispositional phase of the criminal process, together with “assumptions concerning [the accused’s] criminal record which were materially untrue,” deprived the accused of his constitutional rights. “In this case, counsel might not have changed the sentence, but he could have taken steps to see that the conviction and sentence were not predicated on misinformation or misreading of court records, a requirement of fair play which absence of counsel withheld from this prisoner.” (Townsend v. Burke (1948) 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690.) In Mempa v. Rhay (1967) 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, the Court made it clear that the right to counsel applied to all dispositional proceedings, even those that were not formally part of the “sentencing” hearing before the trial judge immediately after a finding of guilt. Although the Court acknowledged that there might be “fewer opportunities for the exercise of judicial discretion” in such non-traditional dispositional hearings, it nonetheless held that “the necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case as to sentence is apparent.” (Id. at 135.)
The Supreme Court has recognized that the need for counsel to marshal facts and introduce evidence of mitigating circumstances when dispositional determinations are being made is equally great in juvenile proceedings: “[I]n all cases children need advocates to speak for them and guard their interests, particularly when disposition decisions are made. It is the disposition stage at which the opportunity arises to offer individualized treatment plans and in which the danger inheres that the court’s coercive power will be applied without adequate knowledge of the circumstances.” (In re Gault, supra at 38-39 n. 65 (quoting from Report by the President’s Comm’n on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society); see Kent v. United States, supra, at 561-563; Mordecai v. United States (1969) 137 U.S.App.D.C. 198, 421 F.2d 1133, 1135-1136: “Experience demonstrates that the youth and his parents— when they are available — cannot be counted upon to present the case for juvenile treatment incisively and intelligently. Within our judicial system, we consistently rely upon counsel to marshal facts, present arguments, and explore alternatives. . . . The waiver hearing certainly calls as loudly for the ‘guiding hand’ of counsel as does the sentencing hearing.”)
The need for counsel at dispositional hearings has been found by the Supreme Court to be so compelling that it has held the right to counsel recognized in Mempa fully retroactive. In McConnell v. Rhay (1968) 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2, the Supreme Court held that, as in Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (right to counsel at trial) and Douglas v. California (1963) 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (right to counsel on appeal), the right to counsel at dispositional proceedings “relates to ‘the very integrity of the fact-finding process.’ ” (393 U.S. at 3.) The majority fails to distinguish the role of counsel at sentencing proceedings, held to be so vital to the integrity of the criminal process in Mempa and McConnell, from the function that an attorney can perform at the proceedings to determine amena bility to juvenile treatment at issue in Kent and the ease at bench. Accordingly, I cannot agree with the majority’s conclusion that because the juvenile fitness hearing is not a trial and its function is not to gather facts for the criminal guilt determination process — characterizations that are, of course, equally applicable to the dispositional proceedings in Mempa, and McConnell — the purpose of the constitutional rule announced in Kent and Gault does not require retroactive application. (See Mordecai v. United States, supra at 1136.)
Analyzing the fitness hearing as analogous to a sentencing proceeding in the usual criminal process, however, does not fully capture the unique nature of the decision as to the amenability of a minor to treatment by the juvenile court. In many ways, the youth of a juvenile offender is a defense to the offense charged, similar to a plea of diminished responsibility. (See Kemplen v. Maryland, supra at 175.) The hearing which determines his fitness for treatment is the only stage at which a juvenile has an opportunity to assert this “defense,” and is thus comparable to the arraignment proceeding considered in Hamilton v. Alabama (1961) 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, which provided an accused the only opportunity he had to plead the defense of insanity. The right to counsel at a proceeding at which an accused must assert a defense or lose its benefit has also been found to relate to the “very integrity of the fact-finding process” and held fully retroactive. (See Arsenault v. Massachusetts (1968) 393 U.S. 5, 6, 89 S.Ct. 35, 21 L.Ed.2d 5; Stovall v. Denno (1967) 388 U.S. 293, 297-298, 87 S.Ct. 1967, 18 L.Ed.2d 1199.)
The majority acknowledges, as it must, that the purpose served by a new constitutional ruling is the primary factor in determining the rule’s retroactivity. (Desist v. United States (1969) 394 U.S. 244, 249, 89 S.Ct. 1030, 22 L.Ed.2d 248.) Whether one focuses on the dis-positional effect of the fitness hearing (and the close analogy to Mempa v. Rhay) or on its impact on a juvenile’s “youth defense” (and the similarity to Hamilton v. Alabama), the purpose served by the right to counsel in this context argues strongly for the retroactive application of Kent and Gault. The majority opinion makes no attempt to distinguish the reasoning of the Supreme Court in Mempa and Hamilton and the decisions holding fully retroactive the right to counsel established in those cases. I do not believe that any such distinction can be made. Nor do the other two factors of the Stovall test preclude a finding of retroactivity; for, as the Supreme Court has repeatedly emphasized, when the purpose of a new constitutional right relates to the fundamental fairness of the criminal process —as it does at sentencing hearings, arraignment proceedings where unpleaded defenses are lost, and juvenile fitness hearings — “[n] either good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application . . . . ” (Ivan V. v. City of New York (1972) 407 U.S. 203, 204, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659; accord, Williams v. United States (1971) 401 U.S. 646, 653, 91 S.Ct. 1148, 28 L.Ed.2d 388 (plurality opinion by White, J.); Adams v. Illinois (1972) 405 U.S. 278, 280, 92 S.Ct. 916, 31 L.Ed.2d 202 (plurality opinion by Brennan, J.). See also Roberts v. Russell (1968) 392 U.S. 293, 295, 88 S.Ct. 1921, 20 L.Ed.2d 1100.)
Even if the impact of retroactivity upon the administration of justice were relevant, however, the majority has failed to demonstrate that full retroactivity would have a significant adverse effect. Judicial opinion as to the number of cases that would be affected is in conflict. (Compare, e. g., Mordecai v. United States, supra, 421 F.2d at 1138 (“improbable that vast numbers of young offenders waived without a hearing or representation by counsel are still in custody”) with, e. g., In re Harris, supra, 67 Cal.2d at 879, 64 Cal.Rptr. at 321, 434 P.2d at 617 (“Judgments of conviction entered following waiver of juvenile court jurisdiction and final before Gault was decided ‘ “threaten to be of significant quantity.”’”).) The statistics submitted by the state indicate that as of December 1971 there were slightly more than 300 defendants who had been committed to the custody of the Adult Authority at age 18 or younger between 1945 and the date of Gault who were still in prison or on parole. However, this figure is much larger than the actual number of cases that would be affected by holding Kent retroactive.
The state’s figure includes youths committed at age 18, who may never have been within the jurisdiction of the juvenile court and thus not subject to a fitness hearing. (See Calif.Welfare & Institutions Code §§ 602-604 (juvenile court’s jurisdiction extends only to defendants under 18 at the time of alleged offense).) The state’s statistics also fail to exclude those prisoners and parolees who were represented by counsel at their fitness hearings. The 1961 revision of juvenile court law established a general right to counsel at juvenile hearings (see 1961 Calif.Stats., ch. 1616, § 2, art. 8, as amended Calif.Welfare & Institutions Code §§ 679, 700); hence, the number of offenders who were represented by counsel is potentially quite large. In addition, the number of cases that would be affected probably has been further reduced by termination of parole or unconditional release during the nearly 2yz years since these data were compiled. Thus, the actual number of cases that would be affected by a finding of retroactivity could be as small as % or even %o of the number suggested by the state. Even if nearly 300 cases in California could be affected by holding Kent and Gault retroactive, however, this is still a far cry from the potential for “devastating” impact on the administration of criminal justice that the Court has found in those instances in which it has relied on this factor in determining that a new standard should not be applied retroactively. (E. g., DeStafano v. Woods (1968) 392 U.S. 631, 634, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (all convictions for serious crimes in certain states; all non-capital cases in another); Tehan v. United States ex rel. Shott (1966) 382 U.S. 406, 418, 86 S.Ct. 459, 15 L.Ed.2d 453 (every single trial in which defendant took the stand in six states, including California).)
Neither is there any validity to the argument made by the majority that “there would be numerous instances where the juvenile courts would no longer have jurisdiction over the person of the defendant by reason of age.” Juvenile court jurisdiction in California is restricted only by the age of the defendant at the time of the offense: “Any person who is under the age of 18 years when he violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime ... is within the jurisdic tion of the juvenile court, which may adjudge such person to be a ward of the court.” (Calif.Welfaré & Institutions Code § 602. See also id. §§ 603, 604.) If the absence of counsel at the preGault fitness hearing were held to invalidate the subsequent conviction, proceedings could again be initiated in the juvenile court — assuming that retrial was felt to be necessary for public safety. Presumably defendants like Harris who are substantially older than 18 could now properly be found not fit and proper subjects for juvenile court treatment and a new trial in adult court would then be appropriate. Thus, the passage of time has not made an appropriate remedy any more inconvenient or impracticable than in any other retraoctivity case.
Even if California were not a jurisdiction in which retrial within juvenile court jurisdiction was possible, the argument premised on the lack of such jurisdiction would not be persuasive on the issue of retroactivity. The same jurisdictional difficulty inheres in applying retroactively any constitutional ruling that relates to juvenile court procedures. Yet in Ivan V. v. City of New York, supra, the only juvenile procedure retroactivity case it has considered, the Supreme Court did not hesitate to make fully retroactive its decision in In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, concerning the standard of proof in juvenile proceedings. Moreover, in Kent itself the Supreme Court was faced with the identical problem. The Court recognized that “[i]f on remand the decision were against waiver [of juvenile court jurisdiction], the indictment in the District Court would be dismissed. However, petitioner has now passed the age of 21 and the Juvenile Court can no longer exercise jurisdiction over him.” (383 U.S. at 564; citation omitted.) Nevertheless, the Court accepted the fact that this might be the result of application of the new right to counsel to a fitness hearing held before Kent and remanded the case to the district court for a hearing de novo on waiver with directions to dismiss the indictment if waiver was found to be improper. (Id. at 565.) In light of the Supreme Court’s acceptance in Kent and Ivan V. of the possibility that juvenile defendants benefiting from a new constitutional standard might not be retriable, we cannot hold that the potential impact of the identical consequences would be so great as to outweigh the purpose served by the counsel requirement and thus preclude retroactive application of that requirement.
In sum, because of the similarity to the right to counsel at sentencing proceedings and certain types of arraignment hearings, the constitutional requirement of counsel at juvenile fitness hearings established by Kent and Gault relates to the “very integrity of the fact-finding process.” When that is the purpose of a new constitutional rule, the rule is applied retroactively regardless of governmental reliance on the prior standard or impact of the new rule. Even if the effect of the new ruling were relevant, there has been no demonstration that retroactivity would have a significant effect on the administration of criminal justice. In accordance with the standards announced by the Supreme Court in Stovall v. Denno, supra, the counsel requirement of Kent and Gault should be held to be fully retroactive.
Apparently as an alternative basis for its decision, the majority also holds that even if Kent was retroactive, because of his guilty plea in Superior Court, Harris is not entitled to challenge the propriety of his juvenile fitness hearing. This holding is not supported by the Supreme Court’s recent decisions on the effect of entry of a guilty plea on appellate review of antecedent constitutional violations.
In Tollett v. Henderson (1973) 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235, the Supreme Court said “When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” But it is clear that the Court in Tollett (and in Brady v. United States (1970) 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, Parker v. North Carolina (1970) 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785, and McMann v. Richardson (1970) 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763) was concerned with alleged constitutional defects in the process by which a defendant is apprehended and his guilt or innocence determined — that is, constitutional challenges to arrest, indictment, the admissibility of evidence, or the voluntariness of a confession. Once an effectively counseled defendant voluntarily and intelligently admits he violated the law, he can no longer object to anything done by the Government in bringing him through the guilt determination process. It is in this sense that “a guilty plea represents a break in the claim of events which has preceded it in the criminal process.” (411 U.S. at 267.) The juvenile fitness hearing, as I have already indicated, is primarily a dispositional proceeding. Although in this case it occurred chronologically prior to the entry of the guilty plea, the fitness hearing logically involves a post-guilty-plea determination of the appropriateness of various forms of treatment. Thus, the determination of Harris’s amenability to juvenile court process functionally succeeds the “break in the chain of events” to which Tollett refers.
This distinction between an alleged defect in the fitness hearing and the constitutional errors at issue in Tollett and the Brady trilogy is consistent with the rationale of the Supreme Court’s decisions. The danger of a trial based on an improper indictment, as alleged in Tollett, or on unconstitutionally obtained evidence, as in McMann, is that an innocent defendant will be convicted. Once the defendant waives his right to a trial and admits his guilt, that danger is obviated and there is no need to permit the defendant to attack antecedent constitutional violations. The error that Harris asserts, on the other hand, does not involve any element of the guilt determination process. The question is not whether Harris was guilty of an offense, but what disposition can be made. Whether or not the state was required to prove its case against Harris is completely irrelevant to his challenge to this dispositional determination. The danger that absence of counsel at the fitness hearing may have led the juvenile court to conclude erroneously that Harris should be treated as an adult offender is not cured by entry of a guilty plea. Indeed, entry of a plea highlights the importance of a correct determination of Harris’s amenability to treatment by juvenile process. Nothing in the reasoning of Tollett or the Brady trilogy suggests that this type of constitutional challenge is foreclosed by a guilty plea.
The impropriety of the majority’s rigid reading of Tollett is suggested by the Supreme Court’s decision to hear argument in Blackledge v. Perry, cert. granted Oct. 16, 1973, 414 U.S. 908, 94 S.Ct. 218, 38 L.Ed.2d 145. (Argument was heard on Feb. 19, 1974. See - U.S.-, 94 S.Ct. 2098, 40 L.Ed.2d 628, 42 U.S.L.W. 3482.) The Court must decide in Perry whether a guilty plea waives a defendant’s right to contest double jeopardy — a defect which obviously arises prior to entry of the guilty plea. If the Majority’s apparent assumption that Tollett precludes review of every alleged constitutional violation which occurred prior to entry of the guilty plea (except competency of counsel) were correct, plenary consideration of Perry would not be necessary. Instead, because the lower court decision to grant a writ of habeas corpus based on the double jeopardy argument was made before the Supreme Court’s decision in Tollett, the decision of the Fourth Circuit would have been vacated and the Court would have remanded for reconsideration in light of Tollett.
I would hold the right to counsel at juvenile fitness. hearings established by Kent v. United States retroactive and affirm the district court’s conditional grant of a writ of habeas corpus.
. The dispositional-sentencing nature of the fitness hearing is underscored by the fact that not until 1972 did the California Supreme Court hold that the hearing on the issue of amenability to juvenile treatment could precede decision of the “jurisdictional” issue of whether the minor had violated a criminal statute. (Donald L. v. Superior Court, supra.)
. Because the juvenile court’s determination as to fitness is subject to review in subsequent proceedings (see People v. Yeager (1961) 55 Cal.2d 374, 389, 10 Cal.Rptr. 829, 359 P.2d 261; In re Harris (1967) 67 Cal.2d 876, 880, 64 Cal.Rptr. 319, 434 P.2d 615), the fitness hearing is not literally the only opportunity a defendant has to raise the youth “defense.” However, this possible “second chance” does not distinguish the fitness hearing from the arraignment proceeding considered in Hamilton; for in that case the defendant also had a second, limited opportunity to plead the insanity defense. (See 368 U.S. at 53.)
. It should be noted that if the majority is correct in holding that entry of a guilty plea in Superior Court precludes a challenge to the denial of counsel at the juvenile fitness hearing, there would be a further significant reduction in the number of cases affected by holding Kent retroactive.
. In any event, this consideration is obviously only relevant to those cases remanded for a new fitness determination in which it is concluded that the juvenile court should have retained jurisdiction.
. If the defendant should now be determined to be amenable to treatment by juvenile process, the juvenile court would have jurisdiction to handle the case, regardless of the defendant’s present age. (Calif. Welfare & Institutions Code § 602.)
. In Mordecai v. United States, supra, the court recognized that the purpose of the Kent rule would normally require its full retroactive application. The Mordecai court denied retroactivity, however, based on the possibility that an appropriate remedy — that is, retrial — would no longer be possible in individual cases. This balancing of the factors of purpose and impact on the criminal process is in conflict with the Supreme Court’s resolution of the issue in Kent. Accordingly, this aspect of Mordecai has little persuasive value.
. It is possible that in Perry the Court will decide that double jeopardy is a jurisdictional defense and as such is not waived by entry of a guilty plea. (See, e. g. Briley v. Wilson (9th Cir. 1967) 376 F.2d 802, 803.) That decision would also control the case at bench; for, in the words of the majority, “ [i] f the hearing is held invalid, the Superi- or Court did not have jurisdiction to entertain Harris’s plea of guilty.” In other words, Harris is also raising a jurisdictional defect in his conviction.
