deemed harmless under any standard — and certainly it was not harmless under the constitutional error standard. That the state could have but failed to adopt a Luce-type rule is plainly irrelevant. Galindo’s conviction of murder should not stand. Accordingly, I dissent. 1 . Indeed, Luce itself explicitly distinguished otherwise controlling cases on the basis of the difference between state and federal defendants. See Luce, 469 U.S. at 42-43, 105 S.Ct. at 463-64 (distinguishing Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972), and New Jersey v, Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979)). 2 . We have expressed a similar view. See United States v. Givens, 767 F.2d 574, 578 (9th Cir.), cert, denied, 474 U.S. 953, 106 S.Ct. 321, 88 L.Ed.2d 304 (1985) (<HOLDING>). 3 . The state does not challenge Galindo’s
holding that statute would be applied retroactively when to do so would better effect the remedial intentions of the legislature in enacting it holding miranda decision does not apply retroactively holding amended rule applies retroactively unless it would work injustice holding that apprendi does not apply retroactively holding that it would be grossly unfair and would wreak a substantial inequity to apply luce retroactively