SCHAUER, J.,* Dissenting.—Before we can tenably reach the result decreed by the majority a critical question appears to be: Do we have multiple causes before us or only a single “ entire cause” ? The issue is critical because it is jurisdictional. Only if we view this case as presenting multiple “causes” to be severally determined, each without bene[148]fit of the record in the other, can we find color of constitutional authority to reverse.
To begin with it is noted that the Supreme Court of California is a court of limited jurisdiction. The sole source of our relevant power is article VI of the state Constitution. That article measures the grant and defines its limits as follows : “ The Supreme Court shall have appellate jurisdiction on appeal from the superior courts . . . on questions of law alone, in all criminal cases where judgment of death has been rendered; . . . (Cal. Const., art. VI, § 4.)
“No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 4½.)
In my view of the law we have before us only one action. The state is plaintiff-respondent; Treloar is the defendant-appellant.
We are not triers of fact but, for the limited purpose of determining whether a miscarriage of justice is shown, we must consider the evidence which the jury heard and the ultimate facts which they found, together with the rulings which the trial court made. In view of the presumption of innocence at the trial, the jury must have been instructed to that effect, but on appeal after conviction the rule changes. If the record shows any substantial evidence to support the judgment the presumption is in favor of the judgment. (See People v. Daugherty (1953) 40 Cal.2d 876, 885 [5] [256 P.2d 911], and the authorities there cited, rejecting the contrary statements in People v. Lamson (1934) 1 Cal.2d 648, 661 [36 P.2d 361], and People v. Staples (1906) 149 Cal. 405, 425-426 [86 P. 886].)
In People v. Redrick (1961) 55 Cal.2d 282, 289 [10 Cal.Rptr. 823, 359 P.2d 255], a unanimous court reiterated these propositions which are fundamental to our appellate review: “[4] The credence and ultimate weight to be given the evidence of the various particular circumstances are of course for the trier of fact, and ‘It is the trier of fact, not the appellate court, that must be convinced of a defendant’s guilt beyond a reasonable doubt. [5] If the circumstances reasonably justify the trier of fact’s findings, the opinion of [149]the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’ (People v. Robillard (1960), ante, pp. 88, 93 [1, 2] [10 Cal.Rptr. 167, 358 P.2d 295].)
“ [6] The rule that ‘to justify a conviction on circumstantial evidence the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion’ (People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [3] [286 P.2d 1]; People v. Bender (1945) 27 Cal.2d 164, 174-175 [1, 2] [163 P.2d 8]) is primarily for the guidance of the trier of fact. Such rule would be applicable to appellate review of a conviction only where, giving to each circumstance in evidence all the legal effect toward guilt which it could support, it would still appear that a rational conclusion of innocence was not excluded. ...”
In view of the record before us, and of the above delineated constitutional limits of our jurisdiction, I find no tenable basis for the majority’s holding that “violation of Escobedo compels reversal of the judgment on the issue of guilt on all counts. ” As appears from the above quoted mandate of our Constitution, no judgment on the issue of guilt can be lawfully reversed by this court unless it shall have found “after an examination of the entire cause, including the evidence . . . that the error complained of has resulted in a miscarriage of justice. ”
The mere fact that in a potential death penalty case the determination of guilt and penalty are now by statute recognized as presenting in certain circumstances severable issues for some purposes (see Pen. Code, §190.1) does , not mean that the criminal action proliferates into more than one “entire‘cause.” Before the Legislature amended Penal Code section 190 and added section 190.1 in 1957 (Stats. 1957, ch. 1968, p. 3509, §§ 1, 2; see also Stats. 1959, ch. 738, p. 2727, § 1) this court, in the interests of efficiency and expedition of justice,1 had itself innovated the procedure as an incident in the “entire cause.” (People v. Green (1956) 47 Cal.2d 209, 232-234 [302 P.2d 307].)
The entire cause is now before us and it is upon the complete record that defendant must seek reversal and that we must rest our decision.
[150]In demanding reversal defendant necessarily presents to us that which is unfavorable as well as that which may tend to support his claim. Mere basic fairness to the People of California requires that we consider the plaintiff’s claims for affirmance as solicitously as those of defendant for reversal.
Examination of the record, including the retrial of the penalty phase, discloses that no “miscarriage of justice” can properly be found if we abide by the constitutional and decisional law above quoted. The record shows (and the majority state) : “Defendant was arrested . . . on March 27, 1962. As the arresting officer reached to disarm him, defendant exclaimed, ‘You have the right man’ and ‘This is the gun I had.’ . . . In the police car, he initiated a conversation with one of the officers. He volunteered that had the police been a few minutes late in arresting him he would not have been caught, as he was planning to leave for South America. He asked how long Rivard, the murder victim, had lived. . . . The officer replied and then 'asked, ‘What happened to the guy [the victim] in Farah’s bar?’ Defendant responded that ‘he tried to be a hero,’ and, when requested to explain, continued, ‘the guy wouldn’t do what he was told.’ ” The majority properly hold “These three statements are admissible.” The majority should further hold that these quoted statements, in the context of independent evidence and the related physical facts establishing defendant’s guilt of some 16 felonies including the murder during a robbery, are so overwhelming in demonstration of guilt that any question as to the voluntary character of further statements made by defendant is immaterial.
In Escobedo v. Illinois (1964) 378 U.S. 478, 491-492 [84 S.Ct. 1758, 12 L.Ed.2d 977], the majority opinion by Mr. Justice Goldberg makes clear that the court did not overrule Crooker v. California (1958) 357 U.S. 433 [78 S.Ct. 1287, 2 L.Ed.2d 1448]. The opinion points out that in Crooker the court rejected the absolute rule that every state denial of a request to contact counsel is an infringement of the constitutional right without regard to the circumstances of the case. In its place the following rule was announced: “[S]tate refusal of a request to engage counsel violates due process not only if the accused is deprived of counsel at trial on the merits, [citation], but also if he is deprived of counsel for any part of the pretrial proceedings, provided that he is so prejudiced thereby as to infect his subsequent trial with an absence of ‘that fundamental fairness essential to the very [151]concept of justice.’ Lisenba v. California (1941) 314 U.S. 219, 236 [62 S.Ct. 280, 86 L.Ed. 166]. Cf. Moore v. Michigan (1957) 355 U.S. 155, 160 [78 S.Ct. 191, 2 L.Ed.2d 167], The latter determination necessarily depends upon all the circumstances of the case.” (Italics added.)
This court in recent months has repeatedly followed the constitutional avenue of reason left open in Escobedo2 rather than a penal theory of automatic reversal which appeared to have been a trend in earlier cases in this state. Thus, in the late case of People v. Jacobson (1965) 63 Cal.2d 319 at page 329 [46 Cal.Rptr. 515, 405 P.2d 555], speaking through Mr. Justice Mosk, the court clearly stated the issue (“We turn, therefore, to the question whether the introduction of the statements obtained in violation of defendant’s right to the assistance of counsel was reversible error”) and at page 333 concluded by applying our constitutional rule of reason (“After an examination of the entire cause, including the evidence, we are of the opinion that there is no reasonable possibility that the errors complained of might have contributed to the conviction. (Cal. Const., art. VI, § 4½; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]; Fahy v. Connecticut (1963) 375 U.S. 85, 91 [84 S.Ct. 229, 11 L.Ed.2d 171].) ”)
Likewise in People v. Cotter (1965) 63 Cal.2d 386, 396 [46 Cal.Rptr. 622, 405 P.2d 862], Mr. Justice Burke for the court wrote: “It is noteworthy that in Escobedo, Dorado and Stewart[3] the defendants were denying complicity and the police were openly accusing them and urging them to tell the truth. By contrast, here the defendant was merely asked to state what had happened. He was not being accused of a crime which he had previously denied committing, which was the case in Escobedo, Dorado and Stewart, but in fact was asked concerning a crime which he had already freely admitted having committed.
“Neither this court, nor the United States Supreme Court, has ever taken the position that the desire of a guilty man to confess his crime should be stifled, impeded, discouraged, or hindered in any way. The contrary is true.”
[152]“ [P. 397-398] Escobedo, Dorado and Stewart4 are also to be distinguished from the ease at bench in that in none of them was the court confronted with the problem here presented of determining the legal effect of receiving in evidence a series of confessions and statements, some of which were made during the investigatory phase and were properly received and others of which were given during the accusatory stage and were improperly considered.
“ Such a problem was before the court in the recent case of People v. Jacobson, ante, [63 Cal.2d] p. 319 [46 Cal.Rptr. 515, 405 P.2d 555], There, the improperly obtained statements were held to be merely cumulative, and since they occurred last in sequence it was held that they could not give rise to an implication that the legally obtained confessions were ‘induced’ by any subsequently improperly obtained. (People v. Jacobson, supra, at pp. 330-331.) Under such circumstances this court held that there is no reasonable possibility that the illegally obtained confessions contributed to the conviction. (See also Fahy v. Connecticut (1963) 375 U.S. 85, 91 [84 S.Ct. 229, 11 L.Ed.2d 171].)
“Similarly, applying the test prescribed in People v. Watson, 46 Cal.2d 818, 835 [299 P.2d 243], we find that there is no reasonable probability that a result more favorable to the defendant would have been reached here had the illegally admitted confessions not been received in evidence. (Cal. Const., art. VI, § 4½.)” See also People v. Mitchell (1966) 63 Cal.2d 805 [48 Cal.Rptr. 371, 409 P.2d 211], wherein Mr. Justice McComb for a unanimous court, reviewed the defendant’s several claims of error, and applied the cited rule of article VI, section 4½.
When this case was first before us we considered the evidence on the issue of guilt and held (People v. Treloar (1964) 61 Cal.2d 544, 546 [39 Cal.Rptr. 386, 393 P.2d 698]): “Treloar does not question the sufficiency of the evidence to support the jury’s determination of guilt nor does he otherwise question that phase of the case. It is likewise our conclusion, based upon our independent search of the record (see People v. Ives, 17 Cal.2d 459, 462 [110 P.2d 408]), that the issue of guilt was properly determined by the jury.”
Nothing whatsoever is shown in the record now before us which would support a conclusion on the guilt phase con[153]trary to that which we formally declared when we filed the cited decision on July 14, 1964. Furthermore, the additional record now here makes still more certain the guilt of this defendant and the implicit integrity and justice of the jury’s verdict as to penalty.
Complying with the duty imposed upon us by the same Constitution which grants our power, I have examined “the entire cause, including the evidence” and I am not “of the opinion that [any] error complained of has resulted in a miscarriage of justice.”
Accordingly, I would affirm the judgment in its entirety.
McComb, J., and Burke, J., concurred. Respondent’s petition for a rehearing was denied March 9, 1966. Mosk, J., did not participate therein. McComb, J., Burke, J., and Schauer, J.,* were of the opinion that the petition should be granted.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
To avoid needless delay and aggravation of burden upon both an accused and the state which would flow from reopening the entire cause as to all issues because of error affecting only one.
Escobedo v. Illinois (1964) supra, 378 U.S. 478.
Escobedo v. Illinois (1964) supra, 378 U.S. 478, People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361]; People v. Stewart (1965) 62 Cal.2d 571 [43 Cal.Rptr. 201, 400 P.2d 97].
Escobedo v. Illinois (1964) supra, 378 U.S. 478; People v. Dorado (1965) supra, 62 Cal.2d 338; People v. Stewart (1965) supra, 62 Cal.2d 571.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.