TRAYNOR, C. J. This appeal is automatic from a judgment imposing the death penalty. (Pen. Code, § 1239, subd. (b).)
In a previous trial defendant had been found guilty of the first degree murders of Connie Mack and Mary Mack, and sentenced to death. The judgment was reversed on the ground that the trial court erred in refusing to instruct the jury on the issue of manslaughter. (People v. Modesto, 59 Cal.2d 722, 727-731 [31 Cal.Rptr. 225, 382 P.2d 33].) Before retrial defendant reinstated his pleas of not guilty by reason of insanity, which he had withdrawn during the first trial. Upon retrial the jury found defendant guilty of two counts of first degree murder, determined that he was sane at the time each crime was committed, and fixed the penalty on each count at death.
At the retrial on the issue of guilt the prosecution introduced substantially the same evidence it introduced at the former trial. The basic facts were summarized in our former opinion as follows.
“Shortly after midnight on October 29, 1961, defendant entered the home of Mr. and Mrs. Ardel Mack carrying a hand sledge hammer with a 4-pound head. The Macks’ daughters, Connie, age 12, and Mary, age 9, were asleep in the house. At about 10:30 p.m. the previous evening defendant had seen Mr. and Mrs. Mack at a place where Mr. Mack played the guitar with a band and knew that they would not return home until about 2 a.m. Upon returning home the Macks found Mary lying on the floor dead. Connie had disappeared. Her blankets were on the floor, and there was blood on her bed.
“Defendant was arrested at his home at about 2:30 a.m., October 29, 1961. The arresting officers found bloodstains on the right rear fender, the right rear door handle, the rear seat, and the floor mat of defendant’s automobile. The blood on the rear seat appeared to have been smeared by a body moving on the seat. Defendant’s sledge hammer was removed [441]from the trunk of his automobile. A chemist testified that the hammer had been heavily smeared with blood and had been washed.
“At the time of his arrest, defendant was asleep in his bed, wearing only a pair of shorts. His hands were bloodstained, as were his shorts and his other clothes found on the floor of his room. A police chemist testified that there were semen stains on defendant’s T-shirt, on the outside of his trousers, and on the shorts he was wearing when arrested.
“At 7 p.m. on the day of his arrest, defendant admitted to police investigators that he struck Mary and Connie with the sledge hammer. He stated that he entered the Mack home ‘with the intentions of scaring Connie Jean for the way she has been acting, snotty and smart-aleckie, and just to kind of get back at her for a lot of things she said. I went into the house through the side door. The house was dark and the door wasn’t locked. So I went to the bedroom, flicked on the light and Connie Jean turned over and mumbled something and I shut the light off again, and I went over to shake her awake, and little Mary turned on the light, and I turned around with the intention of scaring her, and my hand went too far and I hit her with the sledge hammer. She went down, moaning, and Connie Jean started screaming, so I told her to be quiet, and I went like this (indicating) to hit her too, but my hammer just went right on and I hit her too; and I don't know, after that I don’t know how many times I hit them—three or four or five times apiece—I don’t know. They were moaning and screaming and I couldn’t remember how many times I hit them. ’
“Defendant stated to the officers that he then picked up Connie and dropped her on the lawn, returning to the house for the hammer. After putting Connie’s unconscious body on the rear floor of the car, defendant stated that he intended to go back for Mary, but panicked and drove away when he saw the lights of approaching automobiles. Shortly thereafter he stopped at a drainage ditch to clean the blood from Connie’s head. ‘When I opened the door her legs hung out. And the next thing I knew she was on the ground—so I grabbed her by the hand and pulled her over to the side of that drainage ditch ... so I could get some water to clean her off, and she just tumbled into the water, moaning loudly. . . .’
“Defendant also stated to the officers that ‘Between there [the drainage ditch] and . . . the house ... I don’t know [442]where I stopped. I’m not sure in my mind, but I think—I think I had intercourse with Connie—I’m not sure.’
“Connie’s body was found face down in the drainage ditch downstream from the point at which defendant stated she had gone into the water.
“Autopsies of the girls’ bodies showed four separate injuries to Connie’s head and five separate injuries to Mary’s head, which were probably inflicted by the sledge hammer. Although drowning was the immediate cause of Connie’s death, the injuries to her head would have been fatal. Mary’s death resulted from injuries to the brain caused by multiple skull fractures. Since Connie had been carried downstream in rapidly moving water and had been in the water nine to ten hours, the pathologist was unable to state whether or not she had been sexually molested.” (People v. Modesto, 59 Cal.2d 722, 725-727 [31 Cal.Rptr. 225, 382 P.2d 33].)
It is not disputed that defendant killed the two girls. The prosecution sought to prove that the killings were murders of the first degree on the ground that they were either wilful, deliberate, and premeditated, or occurred during the commission of burglary, rape, or an act punishable under Penal Code section 288. (Pen. Code, § 189.) Defendant did not testify. He relied on evidence of intoxication and brain damage to support the opinion of expert witnesses that he did not form a deliberate and premeditated intent to kill or an intent to commit any of the enumerated felonies. Although he presented more extensive evidence of this defense at the retrial than at the former trial, we are not persuaded to depart from our holding on the former appeal that the evidence is sufficient to support the verdicts. (59 Cal.2d at p. 727.)
Defendant contends that the trial court erred in denying his motion for a change of venue on the ground that he could not obtain a fair and impartial trial in Riverside County. (Pen. Code, § 1033.) He supported his motion with affidavits setting forth the extensive newspaper coverage of his first trial and this court's reversal of the judgment. He asserts that the prospective jurors must have been aware of his criminal record, including the fact that he was on parole from a judgment of conviction of second degree murder at the time of the present homicides; that he had confessed; and that the trial judge at the first trial had stated his agreement with the verdicts and later vigorously criticized the decision of this court reversing the judgment.
The newspaper articles attached to defendant’s affidavit [443]were published from October 31, 1961, to July 17, 1963. The case was retried before a different trial judge, who denied defendant’s motion to change venue without prejudice on September 10, 1963. The trial was commenced on October 14, 1963, and no difficulty was experienced in securing jurors who were not aware of the earlier publicity. Defendant did not exhaust his peremptory challenges, and he did not renew his motion to change venue. Under these circumstances the trial court did not abuse its discretion in denying defendant’s motion without prejudice before trial and did not err in failing to raise the question on its own motion thereafter. It could reasonably conclude that defendant could secure a fair trial in Riverside County. (See People v. Duncan, 53 Cal.2d 803, 812 [350 P.2d 103]; cf. Irvin v. Dowd, 366 U.S. 717, 720, 726-727 [81 S.Ct. 1639, 6 L.Ed.2d 751]; People v. McKay, 37 Cal.2d 792, 800 [236 P.2d 145].)
Defendant contends that the trial court erred in admitting into evidence photographs and color slides of the victims. We adhere to our holding on the former appeal that the trial court did not abuse its discretion in determining that the probative value of this evidence outweighed any probable prejudicial effect. (People v. Modesto, 59 Cal.2d 722, 733-734 [31 Cal.Rptr. 225, 382 P.2d 33].)
At the trial on the issue of sanity, defendant relied on the testimony of two psychiatrists that he was undergoing a psycho-motor epileptic seizure at the time he committed the homicides and was therefore legally insane. The prosecution relied on the testimony of four other psychiatrists to the effect that defendant was legally sane. In view of this conflict, there is no merit in defendant’s contention that the evidence does not support the verdicts finding him sane.
At the trial on the issue of guilt several statements made by defendant to the police were introduced into evidence over objection after the prosecution laid a foundation that each statement was freely and voluntarily made. Defendant contends that at least the last and most damaging of these statements was inadmissible under the 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]. We shall consider the admissibility of all of them in the light of those decisions.
Officer Mabbitt questioned defendant at about 6 in the morning following the homicides. At that time Connie’s [444]body had not been found. Defendant stated that he met Connie’s father about 10 a.m. the day before and that he and Connie’s father bought beer and drove around while drinking it. About 3:30 in the afternoon they picked up Connie and took her home. She refused to ride in the front seat between defendant and her father until her father told her to do so. After taking Connie home, the two men bought and drank more beer and then took someone from the Modesto residence to a christening.
About 7:30 a.m. Officer Mabbitt was joined by Mr. Boiler, an investigator from the district attorney’s office, and the two had a second conversation with defendant. He repeated to Mr. Boiler what he had told Officer Mabbitt and at first denied having seen Connie after he took her home the afternoon before. Either Officer Mabbitt or Mr. Boiler suggested to defendant that Connie might still be alive and that if he could help them to locate her, they might be able to save her life. Defendant studied a few minutes and then said 11 water, ’ ’ studied a few more minutes and said, “Avenue 62 and the storm drain.” He then told the officers that Connie fell in the water and that he would show them where it happened.
The officers took defendant to the storm drain, and he showed them where Connie fell into it. While the officers and defendant were at the storm drain, Mr. Marsh, an attorney acting apparently at the request of defendant’s family, arrived to represent him. Mr. Marsh conferred privately with defendant in the police car and then joined in the search. Shortly thereafter the officers learned that Connie’s body had been found some distance away, and they returned with defendant to the police station.
About 1:20 in the afternoon Officer Mabbitt interrogated defendant again. Mr. Boiler and a court reporter were also present, and the interview was taken down and transcribed. Defendant repeated the same story he had told before about being with Mr. Mack, drinking beer, picking up Connie and taking her home, and going to the christening. He also stated that later in the evening he went to a cafe where Mr. Mack worked and to another cafe. He met his mother and father and they all drank beer. His father drove him home because he was too drunk to drive. The next thing he remembered was seeing Connie on the floor of the back seat of his car with blood over her. He took her to the storm drain to wash the blood off, and she slipped into the water. He looked for her along the bank, and although he could not see her, he could hear her moaning and thought she had caught on some roots [445]or something. He then drove home, and the next thing he knew the officers awakened him. He stated that he must have hit Connie but did not remember. He did not remember using any weapon or going to the Mack home that night. He was asked whether he had any difficulty with Connie in the past and stated that she treated him as if he was dirt. During the interview, after answering a question about his wife’s ear, he volunteered that “I have given that statement, and Mr. Marsh [the attorney] has told me that he didn’t care, just to repeat what I’d said here. He said ‘You can talk to them if you want to, and if you don’t, well then-’.”
About 3:30 in the afternoon, Undersheriff Presley took over the questioning of defendant. He told defendant several times that he did not believe that defendant did not remember further details of the crimes. He testified that11 There was considerable discussion back and forth on these points and finally he said that he would like to tell his attorney first. . . . Q. What did you say to that? A. Well, I tried to impress him at this time the importance of telling us at this particular time, rather than to wait and tell the attorney later. ... I pointed out to Mr. Modesto in the light of this statement regarding the attorney, the fact he could tell his attorney what had happened, I felt he did remember and he was also capable of telling us at this time.”
The officers then took defendant to dinner and made an unsuccessful attempt to reach Mr. Marsh. After dinner Undersheriff Presley took defendant back to the office where he had been interviewing him and attempted without success to call Mr. Marsh on the telephone. He then gave the telephone to defendant, who dialed Mr. Marsh’s number but was also unable to reach him. Defendant then started to tell the officers what had occurred. He made the statements set forth above in which he described the details of the commission of the crime including the fact that he thought he had had intercourse with Connie.
In Escobedo v. Illinois, 378 U.S. 478, 490-491 [84 S.Ct. 1758, 12 L.Ed.2d 977], the United States Supreme Court held that “where . . . [a criminal] investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively [446]warned Mm of Ms absolute constitutional right to remain silent, the accused has been demed ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S., at 342 [372 U.S. 335 (83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733)], and that no statement elicited by the police during the interrogation may be used against Mm at a criminal trial. ’ ’
With respect to defendant’s last and most complete and damaging statements, all of the conditions of the Escobedo holding were met. It is immaterial that defendant was allowed to consult with his attorney several hours earlier and was advised that he could talk to the police if he wished and repeat the substantially less damaging admissions he had already made at that time. Escobedo had also discussed with Ms attorney what he should do in case of interrogation, but in this case as in the Escobedo case, there is no evidence that defendant was advised as to what he should or could do in the face of the continmng interrogation that took place. (Escobedo v. Illinois, 378 U.S. 478, 485, fn. 5 [84 S.Ct. 1758, 12 L.Ed.2d 977].) Accordingly, the judgment must be reversed.
The admissibility of defendant’s other statements will arise on retrial. The statements made by defendant before Connie’s body was discovered are admissible. They were freely and voluntarily made at a time when the officers were concerned primarily with the possibility of saving Connie’s life. The paramount interest in saving her life, if possible, clearly justified the officers in not impeding their rescue efforts by informing defendant of Ms rights to remain silent and to the assistance of counsel. Since these statements were voluntarily made and lawfully obtained, there is no basis for their exclusion. (See People v. Roberts, 47 Cal.2d 374, 379 [303 P.2d 721].) It is true that in Massiah v. United States, 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246], the United States Supreme Court held that incriminating statements surreptitiously obtained from an indicted defendant who had been released on bail could not be used against Mm at his trial even though the court assumed the statements were lawfully obtained in the course of a continuing police investigation of crime. In the Massidh case, however, no compelling emergency was present, and the continuing investigation of other crimes could reasonably be segregated from the proof of the crime for which the defendant had been indicted. In the present case the officers’ investigatory and rescue [447]operations were necessarily inextricably interwoven until Connie’s body was found, and it would be needlessly restrictive to exclude any evidence lawfully obtained during the rescue operations. Under these circumstances we do not believe that the Massiah ease is controlling.
The statements made between the time Connie’s body was found and the time defendant sought to consult again with his attorney present still a different problem. Under our holding in People v. Dorado, ante, p. 338 [42 Cal.Rptr. 169, 398 P.2d 361], these statements are inadmissible unless as to them defendant waived his right to counsel and his right to remain silent. In view of his reference to his attorney’s advice with respect to making these statements, it is possible that defendant waived his rights as to them. That reference was ambiguous at best, however, and unless the prosecution can present additional evidence of waiver on retrial, these statements should be excluded.
Both the trial court and the prosecutor, as the California comment rule1 allows, commented on the failure of the defendant to take the stand. Defendant contends that these comments infringed his privilege against self-incrimination,2 now guaranteed by the Fourteenth Amendment to state criminal defendants (Malloy v. Hogan, 378 U.S. 1, 3 [84 S.Ct. 1489, 12 L.Ed.2d 653]), by permitting unfavorable references from his refusal to testify. We reject this contention. We hold that the use of the comment in defendant’s trial was constitutionally permissible.
There is no authoritative holding whether state comment rules violate the privilege against self-incrimination. The United States Supreme Court has heard two eases challenging state comment rules, but refused to decide the issue in both of them. (Malloy v. Hogan, 378 U.S. 1, 2-3, fn. 1 [84 S.Ct. 1489, 12 L.Ed.2d 653].) In the first case, Twining v. New Jersey, 211 U.S. 78, 90-91 [29 S.Ct. 14, 53 L.Ed. 97], the court assumed that the comment infringed the federal privilege against self-incrimination but held that the Fourteenth Amendment did not require the states to grant that privilege. [448]The court emphasized that “We have assumed only for the purpose of discussion that what was done in the case at bar was an infringement of the privilege against self-incrimination. We do not intend, however, to lend any countenance to the truth of that assumption.’’ (211 U.S. 78, 114.) In Adamson v. California, 332 U.S. 46, 50 [67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223], the court again assumed that the comment would violate the privilege “without any intention thereby of ruling upon the issue,’’ and followed its holding in Twining that the Fifth Amendment was not binding upon the states.3 The state courts have divided on the question whether the comment rule violates state constitutional protections of the privilege against self-incrimination. (Compare In re Opinion of the Justices, 300 Mass. 620, 625 [15 N.E.2d 662] (1 dissent); State v. Wolfe, 64 S.D. 178, 184-188 [266 N.W. 116, 104 A.L.R. 464] (2 dissents) (holding the comment unconstitutional) with State v. Baker, 115 Vt. 94, 98-111 [53 A.2d 53] (2 dissents); State v. Sandoval, 59 N.M. 85, 88-90 [279 P.2d 850] (finding the comment constitutional).)4
The rule against comment in the federal courts does not necessitate our holding the California comment rule unconstitutional. The federal rule is founded not on constitutional command but on statutory interpretation. The congressional provision that a defendant’s failure to request to be a witness in the case “shall not create any presumption against him’’ (18 U.S.C. § 3481) has been interpreted to exclude any comment. (Wilson v. United States, 149 U.S. 60, 65 [13 S.Ct. 765, 37 L.Ed. 650]; Bruno v. United States, 308 U.S. 287, 292-293 [60 S.Ct. 198, 84 L.Ed. 257] ; Adamson v. California, 332 U.S. 46, 50, fn. 6 [67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223].) Although it is the federal privilege that is now protected by the Fourteenth Amendment (Malloy v. Hogan, 378 U.S. 1, 10 [84 S.Ct. 1489, 12 L.Ed.2d 653]), the state must follow only the constitutional and not [449]the statutory aspects of the privilege. (Ker v. California,, 374 U.S. 23, 31-34 [83 S.Ct. 1623, 10 L.Ed.2d 726].) Defendant contends that the statement in Johnson v. United States, 318 U.S. 189, 196 [63 S.Ct. 549, 87 L.Ed. 704], that “ ‘no inferences whatever can be legitimately drawn’ ” from invoking the privilege, establishes that no comment can constitutionally be made on the accused’s failure to testify in the federal courts. In that ease, however, the trial court had assured the defendant that he could refuse to answer certain questions while on the stand, and yet allowed adverse comment on that refusal. The Supreme Court condemned this misleading of the defendant on the consequences of his assertion of the privilege against self-incrimination. Indeed in Adamson the court distinguished Johnson on this ground. It stated that under the California rule “The choice between giving evidence and remaining silent was an open choice. There was no such possible misleading of the defendant as we condemned in Johnson v. United States, 318 U.S. 189, 195-199 [63 S.Ct. 549, 87 L.Ed. 704].” (Adamson v. California, 332 U.S. 46, 58, fn. 17 [67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223].) Thus, by expressly refraining from deciding whether comment would be permissible under the Fifth Amendment and by distinguishing Johnson on the ground that the accused had been misled, the court in Adamson made clear that the broad language in Johnson was dictum. Moreover, defendant’s refusal to testify can sometimes be used against him in a federal trial. Thus, once the defendant has taken the stand, the federal rule allows comment on his failure to testify on all aspects of the case. (Caminetti v. United States, 242 U.S. 470, 492-495 [37 S.Ct. 192, 61 L.Ed. 442].) Furthermore, defendant’s assertion of the privilege in an earlier trial can be used to impeach specific testimony when he takes the stand in a later trial (Raffel v. United States, 271 U.S. 494, 497-499 [46 S.Ct. 566, 70 L.Ed. 1054]), unless the silence is not inconsistent with his testimony and is used only to impeach his general credibility. (Grunewald v. United States, 353 U.S. 391, 418-424 [77 S.Ct. 963, 1 L.Ed.2d 931, 62 A.L.R.2d 1344]; see Stewart v. United States, 366 U.S. 1, 6 [81 S.Ct. 941, 6 L.Ed.2d 84].)
In determining the constitutionality of the California comment rule, the narrow scope of the permission to comment is crucial. 5 The comment rule does not relieve the prose-[450]cation of its burden of proving every essential element of the crime and the defendant’s guilt beyond a reasonable doubt. No presumption of guilt or of the truth of any fact arises. No inference can be drawn if defendant does not have the knowledge necessary to explain or deny the evidence against him. (People v. Adamson, 27 Cal.2d 478, 489-490 [165 P.2d 3]; Adamson v. California, 332 U.S. 46, 55-56 [67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R 1223].) The comment serves merely to advise the jury how to treat the evidence the prosecution has introduced. (People v. Ashley, 42 Cal.2d 246, 268-269 [267 P.2d 271], cert. den. 348 U.S. 900 [75 S.Ct. 222, 99 L.Ed. 707].) “ [I]f it appears from the evidence that defendant could reasonably be expected to explain or deny evidence presented against him, the jury may consider his failure to do so as tending to indicate the truth of such evidence and as indicating that among the inferences that may reasonably be drawn therefrom, those unfavorable to the defendant are the more probable.” (People v. Adamson, 27 Cal.2d 478, 490-491 [165 P.2d 3].)
Such carefully circumscribed comment does not conflict with the policies of the federal privilege against self-incrimination. The United States Supreme Court restated those policies in Murphy v. Waterfront Com., 378 U.S. 52, 55 [84 S.Ct. 1594, 12 L.Ed.2d 678], on the same day it held the Fifth Amendment binding on the states. It stated that the privilege was based on “our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incrimination statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates ‘a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load, ’ . . . ; our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life, ’ . . . ; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes ‘a shelter to the guilty’ is often a ‘protection to the innocent.’ ” The California com-[451]merit rule does not subject the defendant to the trilemma of self-accusation, perjury, or contempt, for he remains free not to testify. It does not substitute an inquisitorial system for an accusatorial system, for the state must introduce evidence of every element of the defendant’s guilt before any inference can be drawn from his silence. (People v. Talle, 111 Cal.App.2d 650, 664, 676 [245 P.2d 633].) It affords no opportunity for eliciting statements by inhumane treatment or abuses. It does not permit the government to disturb the individual without good cause or deprecate the inviolability of the human personality and the right of each individual “ ‘to a private enclave where he may lead a private life.’ ” It does not compel reliance on self-deprecatory statements. Thus it does not significantly impair any protection the privilege affords the innocent.
Defendant contends, however, that Malloy v. Hogan, 378 U.S. 1, 8 [84 S.Ct. 1489, 12 L.Ed.2d 653], establishes that the comment rule violates the privilege against self-incrimination. In that ease, the petitioner refused to answer any questions, relying on his privilege against self-incrimination. The state court found, however, that the privilege was not properly invoked. Petitioner was therefore committed to prison until he was willing to answer the questions. The United States Supreme Court reversed, holding that the Fourteenth Amendment guaranteed petitioner the Fifth Amendment’s privilege against self-incrimination and that under the applicable federal standard, petitioner properly asserted the privilege. In discussing the rule that the Fourteenth Amendment forbids the state from coercing a confession, the court stated that “it follows a fortiori that it also forbids the States to resort to imprisonment, as here, to compel him to answer questions that might incriminate him. The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty, as held in Twining, for such silence. ” (378 U.S. 1, 8; see Grunewald v. United States, 353 U.S. 391, 425 [77 S.Ct. 963, 1 L.Ed.2d 931, 62 A.L.R.2d 1344] (dissent) ; Adamson v. California, 332 U.S. 46, 124 [67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223] (dissent).)
Defendant contends that the inference permitted by the comment rule and comment thereon restricts “the unfettered exercise of his own will” and constitutes a “penalty” within [452]the meaning of the quoted language. In the Malloy case, however, the court refrained from expressing any opinion on the constitutionality of the comment rule. We do not believe that the court intended by the quoted language to condemn the comment rule by implication. Since the court was dealing with a case in which the defendant had been held in contempt for invoking the privilege, we believe it was referring to more direct penalties or interferences with the unfettered exercise of the defendant’s free will than the drawing of the reasonable inferences that may flow from silence and comment thereon. In this respect it cannot be overemphasized that whether or not the court or prosecutor comments on the defendant’s failure to testify, the jury will draw adverse inferences therefrom. It will expect the defendant to present all the evidence he can to escape conviction, and it will naturally infer that his failure to explain or deny evidence against him when the facts are peculiarly within his knowledge arises from his inability to do so. 11 Such an inference is natural and irresistible. It will be drawn by honest jurymen, and no instruction will prevent it.”6 (Parker v. State, 61 N.J.Law 308, 314 [39 A. 651], affd., 62 N.J.Law 801 [45 A. 1092]; see Adamson v. California, 332 U.S. 46, 60 [67 S.Ct. 1672, 91 L.Ed 1903, 171 A.L.R. 1223] (concurring opinion); State v. Grebe, 17 Kan. 458, 459; State v. Cleaves, 59 Me. 298, 300-301 [8 Am.Rep. 422].) The Constitution is not at war with common sense. (See Mapp v. Ohio, 367 U.S. 643, 657 [81 S. Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933].) It does not compel the court to instruct the jurors to ignore inferences their reason dictates. The prevailing view is that such an instruction would be futile and confusing.7 (8 Wigmore on Evidence (McNaughton Rev. 1961) p. 436.) The defendant, then, is normally faced with the choice of testifying to avoid adverse inferences or of remaining silent and suffering their consequences. The comments do not magnify [453]these normal negative consequences to the extent that they become a “penalty” prohibited by the Fourteenth Amendment. Although the comments might encourage some defendants to testify to avoid the inferences that may reasonably be drawn from their failure to do so (People v. Adamson, 27 Cal.2d 478, 487 [165 P.2d 3]), we are of the opinion that this encouragement does not amount to the compulsion to testify condemned by the Fifth Amendment. The comments merely guide the jury in doing what it would normally do in any case. In some cases, comments might aid the defendant by preventing the jury from giving too much weight to his refusal to take the stand. (See Bruce, The Right to Comment on the Failure of the Defendant to Testify, 31 Mich.L.Rev. 226, 231.)
Defendant contends that People v. Tyler, 36 Cal. 522, 530, and People v. Adamson, 27 Cal.2d 478, 487 [165 P.2d 3], establish that the California comment rule violates the privilege against self-incrimination as defined in the Fifth Amendment. In the Tyler case, however, the court was concerned only with the state privilege against self-incrimination, and in the Adamson case it held, following Twining v. New Jersey, 211 U.S. 78 [29 S.Ct. 14, 53 L.Ed. 97], that the federal privilege was not binding on the states. Accordingly, any statements or implications in those opinions on the scope of the federal privilege were necessarily dicta. Whatever the court may have believed at the times it decided those cases, we are now for the first time required to face the federal constitutional issue. We are bound by the California Constitution’s provision for comment unless it clearly violates the United States Constitution. Since we do not believe that it does so, we are precluded from giving effect to any contrary implications in Tyler or Adamson.
Defendant contends that the reason a defendant refuses to testify is that his prior convictions will be introduced in evidence to impeach him (Code Civ. Proc., § 2051) and not that he is unable to deny the accusations. It is true that the defendant might fear that his prior convictions will prejudice the jury, and therefore another possible inference can be drawn from his refusal to take the stand. The inference that the jury is authorized to draw from the failure to take the stand, however, need not be the only plausible one to be rational under the due process clause. (People v. Adamson, 27 Cal.2d 478, 493 [165 P.2d 3].) Moreover, without the comment rule, the defendant still faces the dilemma of choos[454]ing to testify and having his prior convictions introduced or of remaining silent and not giving this evidence to the jury. The defendant must weigh the danger of impeachment by the introduction of prior convictions for every witness he calls for the defense. “The fact that the witness may also be the defendant makes the choice more difficult but a denial of due process does not emerge from the circumstances.” (Adamson v. California, 332 U.S. 46, 57-58 [67 S.Ct. 1672, 91 L.Ed 1903, 171 A.L.R. 1223].)
The privilege against self-incrimination protects the defendant from assisting the prosecution in building its ease against him. It cannot protect him from the inferences that may reasonably be drawn from his failure to rebut the prosecution’s ease to the best of his apparent ability. For the court and counsel studiously to ignore those inferences or for the court to instruct that no inference is- to be drawn from the defendant’s failure to testify can only result in confusing the jury. The existence of the privilege is a matter of common knowledge, and whatever use the defendant makes of it at his trial is also a fact known to the jury. The objective of the court’s instructions and counsel’s arguments is to assist the jury in reaching the correct decision on the basis of all of the evidence before it. The Fifth Amendment imposes no pointless taboo on the pursuit of that objective.
Defendant contends finally that the trial court erred at the trial on the issue of penalty in admitting into evidence inflammatory details of other crimes committed by him. It does not appear, however, that the trial court abused its discretion in determining that the probative value of the challenged evidence outweighed any probable prejudicial effect. (See People v. Terry, 61 Cal.2d 137, 142-145 [37 Cal.Rptr. 605, 390 P.2d 381].)
The judgment is reversed.
Tobriner, J., Peek, J., and Dooling, J.,* concurred.
“No person shall ... be compelled, in any criminal case, to be a witness against himself . . . but in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the ease against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.” (Cal. Const., art. I, § 13; see Pen. Code, § 1323.)
“No person . . . shall be compelled in any criminal case to be a witness against himself, ...” (U.S. Const., Amend. V.)
Mr. Justice Black, in dissent, felt that the court’s opinion “strongly implies that the Fifth Amendment does not, of itself, bar comment upon failure to testify in federal courts. ...” (332 U.S. 46, 69.)
In 1869, in People v. Tyler, 36 Cal. 522, 530, before the California Constitution was amended to permit comment, this court held that the comment made in that case violated the state privilege against self-incrimination. The district attorney had argued that silence was a circumstance “tending strongly to prove [defendant’s] guilt.” (People v. Tyler, 36 Cal. 522, 527.) The amendment to the California Constitution allows a much more limited comment. (People v. Adamson, 27 Cal.2d 478, 489-490 [165 P.2d 3].)
Allowing some types of comment might he a denial of due process. “For example, a statute might declare that a permitted refusal to [450]testify would compel an acceptance of the truth of the prosecution’s evidence.” (Adamson v. California, 332 U.S. 46, 55 [67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223].)
The comment merely applies here tlxe established rule on failure to produce evidence—“That evidence is to be estimated not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict.” (Code Civ. Proc., § 2061, subd. 6.)
One state requires such an instruction to be given (Ind.Ann.Stat., § 9-1603 (1956)) and others require that it be given if requested. (State v. Pavelich, 150 Wash. 411, 420 [273 P. 182]; State v. Walker, 94 W.Va. 691, 697-698 [120 S.E. 171].) Two states require the jury not to consider the inference in making its decision. (Kan.Gen.Stat., § 62-1420 (1949) ; Canales v. State, 152 Tex.Crim.Rep. 198 [211 S.W.2d 950]. See generally 8 Wigmore on Evidence (McNaughton Rev. 1961) pp. 436-437.)
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.