PEEK, J. Richard Price was charged by indictment in Count I with the murder of Charles Sorensen, in Count II with the murder of Hale Humphrey, in Count III with robbery committed against Charles Sorensen, and in Counts IV and V with auto thefts. He was found guilty by a jury of the crimes charged in Counts, I, II, IV and V and of grand theft .of a pistol, a lesser included offense, as to Count III. The murders were found to be of the first degree.
The jury further found, on defendant’s plea of not guilty by reason of insanity, that he was sane at the times of the commissions of the offenses of which he stood convicted.
On the penalty phase in connection with the first degree murder verdicts the jury fixed punishment at death as to each conviction. The appeal is automatic pursuant to section 1239, subdivision (b), of the Penal Code. On March 15, 1963, defendant, then not yet 19 years of age, accompanied by a juvenile, Jack Sikes, entered a service station in the City of Lodi, shot a customer in the leg, and drove off with a Dodge automobile belonging to the station owner. The California Highway Patrol was immediately notified, and Officer Charles Sorensen answered the call. He pursued defendant and his accomplice on Highway 12 at speeds of 85 to 90 miles per hour. During the chase defendant shot at automobiles passing in the opposite direction, apparently hoping to cause an accident and thereby halt Sorensen’s pursuit. In Rio Vista defendant crashed the Dodge, and with his accomplice fled on foot through a gate and around the side of a vacant house. Officer Sorensen followed on foot and as he passed through the gate and around the corner of the house defendant fired two shots at close range, killing the officer instantly.
[373]Defendant then procured the officer’s pistol and with his accomplice took the patrol car and continued west on Highway 12. Deputy Sheriff Hale Humphrey and others, having been alerted, set up a road block of vehicles across the highway. Defendant deliberately drove the patrol car at a speed estimated to have been in excess of 100 miles per hour into the vehicles blocking the road, causing the death of Humphrey.
The defendant does not question the sufficiency of the evidence to support the verdict as to each of the crimes of which he stands convicted. It is argued, however, that the judgment must be reversed because the court erred prejudicially: (1) in giving some and refusing to give other instructions, (2) in denying a motion for a change of venue, (3) in commenting and allowing the district attorney to comment upon defendant’s failure to testify in his own behalf, (4) in receiving into evidence certain incriminating statements made by defendant in the absence of counsel and without apprising defendant of his rights, and (5) in instructing and allowing evidence and argument on the penalty phase concerning the possibility of parole in the event defendant was sentenced to life imprisonment.
The prosecution takes issue with each of defendant’s contentions, except the charged impropriety of the testimony, instructions and argument relative to the possibility of parole. In this connection the state, with commendable forthrightness, concedes that the proceedings contravened the rules later announced by this court in People v. Morse, 60 Cal.2d 631 [36 Cal.Rptr. 201, 388 P.2d 33]. The state’s contention that the error was not prejudicial, however, fails to meet the test of People v. Hamilton, 60 Cal.2d 105 [32 Cal.Rptr. 4, 383 P.2d 412], wherein we held at page 137 that “any substantial error occurring during the penalty phase of the trial, that results in the death penalty, since it reasonably may have swayed a juror, must be deemed to have been prejudicial. ’ ’ (See also People v. Hines, 61 Cal.2d 164 [37 Cal.Rptr. 622, 390 P.2d 398].) A reversal on the penalty phase is thus indicated. However, we find further merit in defendant’s fourth contention and have concluded that the judgment must be reversed on the guilt phase as well due to the reception into evidence of incriminating statements clearly within the scope of those later denounced by this court in People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361]. Accordingly, . only brief comment need be made as to defendant’s three remaining contentions.
[374]Defendant’s initial contention is that the court erred in failing to instruct on its own motion that where the People’s case rests substantially on circumstantial evidence the circumstances must be entirely consistent with guilt and inconsistent with any other conclusion. However, where as here the People’s case rests chiefly on direct evidence, such an instruction is not necessary. (See People v. Malbrough, 55 Cal.2d 249 [10 Cal.Rptr. 632, 359 P.2d 30].) Without recounting the evidence in detail suffice to say that there is more than sufficient direct evidence as to each of the crimes of which defendant was convicted aside from the statements improperly received into evidence. Thus, the instruction on circumstantial evidence, which defendant did not request, was not required. (People v. Gould, 54 Cal.2d 621 [7 Cal.Rptr. 273, 354 P.2d 865]; People v. Zurica, 225 Cal.App.2d 25 [37 Cal.Rptr. 118].)
A further claim of error in instructions is made in connection with the court’s definition of “malice" in the language of section 7, subdivision 4, of the Penal Code,1 as applied to the crime of murder. The court also instructed in the language of section 188 of the Penal Code.2
Instructions in the language of both sections do not, without more, constitute prejudicial error. (People v. Gorshen, 51 Cal.2d 716 [336 P.2d 492]; People v. Chaves, 37 Cal.2d 656 [234 P.2d 632] ; People v. Harris, 169 Cal. 53 [145 P. 520] ; People v. Dice, 120 Cal. 189 [52 P. 477]; People v. Waysman, 1 Cal.App. 246 [81 P. 1087].) No specific claim of prejudice is made and none is apparent in the instant circumstances. Moreover, it appears that defendant himself requested the instruction in the language of section 7, subdivision 4, and any error which may have resulted must be deemed to have been invited.
The denial of defendant’s motion for change of venue, also urged as a ground for reversal, is predicated upon claimed undue television and other publicity throughout the county which is further claimed to have made it improbable, if not impossible to impanel an objective jury in the county. Because [375]these claimed circumstances will, in all likelihood, not continue to prevail upon retrial, no useful purpose will be served by comment at this time.
Defendant’s third contention, that comments on his failure to testify in his own behalf fall within the proscription against self-incrimination prohibited by the Fifth and Fourteenth Amendments, now appears to be well taken. Recent decisions of the United States Supreme Court, filed during the pendency of the instant appeal, are in accord (Malloy v. Hogan, 378 U.S. 1 [84 S.Ct. 1489, 12 L.Ed.2d 653]), even in those situations where the comments are confined within the limits established in section 13 of article I of the California Constitution (Griffin v. California, 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106]). The further question whether the error was prejudicial within the meaning of section 4% of article VI of our state Constitution or Fahy v. Connecticut, 375 U.S. 85 [84 S.Ct. 229, 11 L.Ed.2d 171], and for that reason requires a reversal, need not be resolved at this time (see People v. Bostick, 62 Cal.2d 820 [44 Cal.Rptr. 649, 402 P.2d 529]) as the judgment must be reversed for the independent reasons heretofore mentioned and presumably the error will not recur on any retrial.
Defendant’s remaining contention, that reversible error resulted from the admission, over objections, of certain incriminating statements made by him prior to the time he was represented by counsel or advised as to his rights in connection therewith, requires exposition of the circumstances under which the statements were made.
Following the crash into the roadblock on March 15 defendant was treated for his injuries, placed in a body cast and, while under arrest, confined to a hospital detention room. The indictment was returned on March 21 and defendant was arraigned on March 25, 1963. Counsel was appointed on that latter date.
Three statements were made by defendant and recorded prior to his arraignment and the appointment of counsel. The first, made on March 18 while defendant was confined to the hospital, was a detailed statement solicited by and given to the district attorney. This statement, which was recorded in shorthand and later transcribed and read into the record, was an unequivocal recital of acts which would compel the finding of guilt as to each of the crimes charged. Defendant was not advised of his right to counsel or of his rights generally other than by an admonition to the effect that he could [376]expect no leniency and that his statements could be used against him.
A second statement was taken by the district attorney on March 25 before the appointment of counsel on that date. This statement was made while defendant was in an ambulance waiting to be brought into the courthouse for arraignment. Again the record shows that defendant was not advised of any of his rights or otherwise admonished in any manner. The statement generally expanded upon the earlier statement concerning the events which had transpired at the service station in Lodi. As before, the statement was recorded in shorthand, transcribed and read into the record at the trial.
The third statement was given to a television news reporter who, prior to the interview, sought and obtained permission from the officer exercising custody over defendant while he was confined to the hospital. Other than granting the initial request for the interview the police did not participate in any manner whatever. While the statement might be said to constitute a general acknowledgment of some guilt, it did not specifically relate defendant’s actions which constitute the crimes charged. The interview was recorded on a motion picture sound film which was used by the reporter as a television news item and, over objections, was exhibited to and heard by the jury.
In addition to the foregoing three occasions on which defendant ’s statements were solicited and recorded in some form,' defendant made other statements after the appointment of counsel and before the commencement of trial on the 13th of August, 1963. Such further statements 'were made to three court-appointed alienists who interviewed the defendant in the course of their psychiatric examinations upon defendant’s plea of not guilty by reason of insanity. ' (Pen. Code, § 1027.) Although defendant’s counsel had directed a written request to the court and to the district attorney that he be notified of the time or times of the examinations, the interviews were conducted without notification or knowledge of counsel. Each of the psychiatrists, was called by the People to testify on the guilt phase, and in each case was examined extensively as to whether in his opinion the defendant had the. necessary mental capacity to premeditate the killing of another human being at the times charged in Counts I and II of the indictment. In some instances on both direct and cross-examination the expert was asked as to the basis for his opinion, and in reply thereto made references to statements of an incriminating nature which defendant had related during the psychiatric [377]examination. Specific objections were not made in these instances, but a general motion to strike the experts’ testimony was denied on the ground that the statements by defendant were merely cumulative to his earlier statements to the district attorney. The ease was tried prior to our initial opinion in People v. Dorado (Cal.) 40 Cal.Rptr. 264, 394 P.2d 952.
Defendant claims that not only the three recorded statements but also his statements testified to by the psychiatrists fall within the proscription of People v. Dorado, supra, 62 Cal.2d 338, 353-354. We held in that case: “. . . that defendant’s confession could not properly be introduced into evidence because (1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, and (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he had waived these rights.”
It is manifest in the instant case that defendant’s first two statements, which were directly solicited by the district attorney, fall squarely within that class of statement which comes within the proscription of Dorado, which was predicated upon the prior decisions of the United States Supreme Court in Massiah v. United States, 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246], and Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977]. The admission of those statements resulted in a denial of due process that compels reversal in the instant circumstances. “ [T]he view that even if the testimony as to the petitioner’s confession was erroneously admitted, the error was a harmless one ... is an impermissible doctrine. As was said in Payne v. Arkansas, [356 U.S. 560 (78 S.Ct. 844, 2 L.Ed.2d 975)] ‘this Court has uniformly held that even though there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment.’ [Citations.] ” (Lynumn v. Illinois, 372 U.S. 528, 537 [83 S.Ct. 917, 9 L.Ed.2d 922].) While in the Lynumn case the Supreme Court had before it a coerced confession, we are persuaded that the same rule applies with respect to the admission of confessions obtained in violation of Massiah and Escobedo, at least when the admissible evidence does not include an equally damaging confession.
[378]Although the improper admission of the two statements requires that we reverse the judgment without looking to the error, if any, in the admission of other statements, it nevertheless appears that comment as to the admissibility of the other statements is indicated. While it may be presumed that upon retrial the statements solicited by the district attorney will not again be offered by the People, nothing we have said will aid the court in determining the admissibility on the guilt phase of statements made by defendant to the reporter or to the court-appointed psychiatrists.
Our decision in Dorado cannot be construed as a general prohibition against the admission into evidence of incriminating statements made by one suspected or accused of a crime upon a prosecution therefor. The prohibition is directed against procedures which deny to a suspect or an accused due process of law: “ ‘So long as the methods used comply with due process standards, it is in the public interest for the police to encourage confessions and admissions during interrogation. ’ ” (People v. Dorado, supra, 62 Cal.2d at p. 354, quoting from People v. Garner, 57 Cal.2d 135, 164 [18 Cal.Rptr. 40, 367 P.2d 680].)
Thus denials of due process in Massiah, Escobedo, and Dorado are not based on the fact that counsel was not present at the time the suspect made incriminating statements, but on a combination of circumstances, one of which was the absence of counsel. Foremost of such circumstances is that the police had “carried out a process of interrogations that lent itself to eliciting incriminating statements. ’ ’ (People v. Dorado, supra, 62 Cal.2d at pp. 353-354.) In Massiah the reversal by the United States Supreme Court was required because there was introduced at defendant’s trial evidence of his own incriminating words, “which federal agents had deliberately elicited from him . . .’’in the absence of admonitions or counsel. (Massiah v. United States, supra, 377 U.S. 201, 206.) And in Escobedo the Supreme Court held that “where as here . . . the police carry out a process of interrogations that lends itself to eliciting incriminating statements” together with the other circumstances constituting a denial of due process “no statement elicited by the police during the interrogation may be used against him at a criminal trial.” (Escobedo v. Illinois, supra, 378 U.S. 478, 490-491.)
It is apparent from the foregoing that the basis for the prohibition against the use of incriminating statements is police action which results in a violation of one’s constitutional rights guaranteed by due process.
[379]As we have noted the statement made by defendant to the reporter was in no way the result of police interrogation but was wholly voluntary, and hence no reason appears for excluding it.
In Massiah the statements were excluded upon a showing that police had prevailed upon the defendant’s partner in crime to engage defendant in a discussion of the accusations while they sat in an automobile containing a radio device which transmitted the conversation to police officers nearby. The record in the case before us does not permit a conclusion that the private reporter was acting in any respect on behalf of or as an agent for the prosecution. In this regard we attach no special significance to the fact urged by defendant that the reporter had obtained permission for the interview from the officer exercising custody. Absent evidence of police complicity, the admission of defendant’s statement to the reporter infringed no constitutional right nor defeated any purpose fostered by the recent decisions of the United States Supreme Court and of this court.
The statements made to the psychiatrists fall under the rules announced by this court in In re Spencer (1965) post, p. 400 [46 Cal.Rptr. 753, 406 P.2d 33]. We summarized the Spencer ruling in People v. Anderson (1965) ante, pp. 351, 367 [46 Cal.Rptr. 763, 406 P.2d 43], stating, “We held in the most recent Spencer case . . . that if the court-appointed psychiatrist may reveal defendant’s statements at the guilt trial, defendant should be entitled to the protection of counsel at the psychiatric examination. Yet, in order to avoid the disruption of psychiatric examinations by court-appointed psychiatrists, we established certain safeguards to assure that the courts’ refusal to permit the presence of defendant’s counsel during such an examination would not involve a constitutional deprivation. Thus we stated that the court-appointed psychiatrists should not be permitted to repeat the defendant’s statements at the guilt trial unless the defendant specifically placed his mental condition into issue. Moreover, the trial judge should instruct the jury that the psychiatrist’s testimony at the guilt trial which disclosed defendant’s statements should be considered only for the purpose of exposing the information upon which the psychiatrist based his opinion and not as evidence of the truth of the statements.”
In the instant case, defendant specifically raised the issue of his mental capacity to premeditate and deliberate. [380]Hence the court-appointed psychiatrists could properly testify as to defendant’s statements in order to describe their bearing upon his mental condition. In failing to instruct the jury that the psychiatrists’ disclosures of defendant’s statements may not be considered as evidence of the truth of the statements, the court, however, did not provide the safeguards necessary to justify constitutionally the admission of the psychiatrists’ testimony. Accordingly, in the absence of the limiting instruction, the testimony of the court-appointed psychiatrists as to defendant’s statements given in the absence of counsel violated defendant’s constitutional right to counsel.
We conclude that the prejudicial and incriminating statements made by the defendant to the district attorney on March 18 and March 25, 1963, were improperly admitted into evidence and that the court’s failure to give the proper limiting instruction rendered the court-appointed psychiatrists’ testimony concerning defendant’s statement inadmissible. Accordingly, the judgment is reversed as to each count.
Traynor, C. J., Peters, J., and Tobriner, J., concurred.
Seetion 7, subdivision 4, provides: "The words, ‘malice’ and ‘maliciously’ import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.’’
Seetion 188 provides: "Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. ’ ’