BIRD, C. J., Dissenting. The majority find that appellant did not assert his own Fourth Amendment right, but merely urged his mother to assert her right. (Maj. opn. at p. 909, ante.) To bolster this conclusion, they stress the fact that the house which the officers sought to search belonged to appellant’s mother. (Ibid.) The majority thereby imply that appellant had only a tangential interest in the house. In fact, appellant had been living in the house with his mother for the previous 11 months and had also lived there at various times in past years. Appellant was an occupant of the house. His right to be free from unreasonable searches of his home was equal to that of his mother.
The record also shows that appellant at one point stated directly to the officers that they could not search the house without a warrant. Thus, appellant asserted his own Fourth Amendment right. He did not merely tell his mother to assert her right as the majority find.
Appellant at one point told his mother not to permit the search. However, he spoke to his mother because the officers had addressed their questions only to her, not to him. He was not called upon to speak directly to the officers. Therefore, it is unreasonable to draw the conclusion that his remarks to his mother evidenced merely his advice that she assert her Fourth Amendment right. Rather, as a co-occupant he advised his mother to assert their joint right to be free from unreasonable searches of their home.
One occupant may validly consent to a search of premises shared by a co-occupant. (United States v. Matlock (1974) 415 U.S. 164, 171 [39 L.Ed.2d 242, 249-250, 94 S.Ct. 988].) Therefore, appellant had to convince his mother not to consent in order to protect his own Fourth Amendment right. His attempts to so convince her cannot be given the erroneous reading that appellant failed to assert his own rights.
Next, the majority conclude that appellant waived his Fourth Amendment claim on appeal because he did not object to the prosecutor’s comments that his refusal to consent to the search of his home [916]showed his consciousness of guilt. (Maj. opn. at p. 909, ante.) This conclusion is just plain wrong. First, the error which occurred at trial was not only that of the prosecutor, but that of the court since it permitted appellant’s assertion of his Fourth Amendment right to be used against him to establish guilt. Second, it is disingenuous at best for this court to ignore facts which show indisputably that the claim of error by the trial court was preserved on appeal.
The record reveals that immediately after the close of the evidence, the jury was excused and the parties met with the trial judge to discuss jury instructions. Appellant’s counsel requested an instruction that every citizen has the constitutional right to voice an objection to a warrantless search of his or her home, that such an objection is not evidence of guilt, and that it should not enter into the jury’s deliberations in any way. (See maj. opn. at p. 909, ante for text of instruction.)
Appellant’s counsel stated that the instruction was necessary since the jury might otherwise conclude that appellant’s objection to the warrantless search “was consciousness of guilt, that he had something to hide.” The judge replied, “Well, it had to be or else it couldn’t have gotten past the hearsay rule.” Counsel again stated that the exercise of a constitutional right should not be used as evidence of consciousness of guilt. The judge refused to give the requested instruction. After the judge ruled on this and other instructions, the prosecutor proceeded to repeat six times in his closing argument that appellant’s objection to the warrantless search was evidence of his consciousness of guilt.
Appellant did not waive his Fourth Amendment claim by failing to object to the prosecutor’s comments.1 He had previously preserved the claim by requesting the instruction. Moreover, the trial judge clearly stated that appellant’s refusal to consent to the warrantless search [917]“had to be” evidence of a consciousness of guilt. The court erroneously believed that appellant’s assertion of his Fourth Amendment right could be used against him. An objection would have been futile*. Appellant was not required by law to make one. (People v. Kitchens (1956) 46 Cal.2d 260, 263 [294 P.2d 17] [“an objection would have been futile, and ‘The law neither does nor requires idle acts.’ (Civ. Code, § 3532.)”].)
The trial court erred when it refused to give the proffered instruction. Appellant merely exercised his Fourth Amendment right when he objected to the warrantless search of his home. The trial court compounded its error and impermissibly burdened appellant’s assertion of his constitutional right when it allowed his assertion to be used to prove his guilt. (United States v. Prescott, supra, 581 F.2d at pp. 1350-1353.)
In Prescott, a defendant allowed a suspect in a mail fraud scheme to enter her apartment. The police knocked on her door, displayed their credentials, and said they were looking for the suspect. The defendant denied that she knew the suspect. When the police requested permission to search her apartment, she asked whether they had a warrant. They did not, and she declined on two occasions to open her door. The police broke down the door and found the suspect inside. The defendant was convicted as an accessory after the fact. (18 U.S.C. § 3.)
Defense counsel had sought to argue to the jury that the defendant was not required to consent to the warrantless search and that her refusal to consent could not be used as evidence of her guilt. The trial court refused to permit this argument and declined to give such an instruction. The Ninth Circuit Court of Appeals held that the instruction was correct and that it was prejudicial error to permit the prosecution to use the defendant’s refusal to consent to the warrantless search as evidence of guilt.
Prescott is directly on point—a defendant refused to consent to a warrantless search; defense counsel proposed, and the court refused to give, an instruction that objection to a search could not be used as evidence of guilt. As the Prescott court explained, there is a presumption that an officer has no right to enter a home without a search warrant. (581 F.2d at p. 1350, citing Camara v. Municipal Court (1967) 387 U.S. 523, 528-529 [18 L.Ed.2d 930, 935, 87 S.Ct. 1727].) “An occupant can act on that presumption and refuse admission. He need not try [918]to ascertain whether, in a particular case, the absence of a warrant is excused. He is not required to surrender his Fourth Amendment protection on the say so of the officer. The Amendment gives him a constitutional right to refuse to consent to entry and search.” (Prescott, supra, 581 F.2d at pp. 1350-1351.)
The holding of Prescott is supported by decisions of the federal courts and this court. A person cannot be convicted of interfering with a health officer’s warrantless inspection of her home merely because she refused to allow the officer to enter and stated that his entry would violate her constitutional rights. (District of Columbia v. Little (1950) 339 U.S. 1 [94 L.Ed. 599, 70 S.Ct. 468].) A person has a constitutuional right to refuse to consent to a warrantless administrative search (Camara v. Municipal Court, supra, 387 U.S. 523, 540 [18 L.Ed.2d 930, 941-942]; See v. City of Seattle (1967) 387 U.S. 541, 546 [18 L.Ed.2d 943, 947-948, 87 S.Ct. 1737]), and to refuse to permit a United States Marshal to make a warrantless entry into her home to serve a subpoena on another (Miller v. United States (5th Cir. 1956) 230 F.2d 486, 489-490). Neither act of refusing consent can constitute a crime. (Camara, supra, 387 U.S. at p. 540 [18 L.Ed.2d at pp. 941-942]; See, supra, 387 U.S. at pp. 545-546 [18 L.Ed.2d at pp. 947-948]; Miller, supra, 230 F.2d at p. 490.)
Similarly, this court has held that a person has the right to refuse to consent to a warrantless entry into her home. (People v. Wetzel (1974) 11 Cal.3d 104, 108, 110 [113 Cal.Rptr. 32, 520 P.2d 416].) The mere refusal of permission to enter one’s home cannot provide probable cause to arrest or search. (Tompkins v. Superior Court (1963) 59 Cal.2d 65, 68 [27 Cal.Rptr. 889, 378 P.2d 113].) Such a refusal cannot constitute the crime of obstructing an officer in the performance of his duties (Pen. Code, § 148). (Wetzel, supra, 11 Cal.3d at p. 110.)
Appellant had the right to withhold his consent to the warrantless search of his home. His exercise of that right cannot constitute a crime or provide probable cause to arrest or search. It certainly could not constitute evidence of his guilt. The use of appellant’s refusal of consent as evidence of his guilt improperly penalized him for the assertion of a valid constitutional right.
Prescott drew a persuasive analogy to the prohibition on using a defendant’s assertion of his privilege against self-incrimination as evidence of his guilt (Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, [91985] S.Ct. 1229]). (Prescott, supra, 581 F.2d at pp. 1351-1353.) A defendant’s silence is generally “so ambiguous that it is of little probative force.” (United States v. Hale (1975) 422 U.S. 171, 176 [45 L.Ed.2d 99, 104, 95 S.Ct. 2133].) Because the innocent as well as the guilty may assert the right to remain silent, guilt cannot be inferred from that silence. (Id., at p. 177 [45 L.Ed.2d at p. 105].) Thus, to use a defendant’s silence against him is to “cut[] down on the privilege by making its assertion costly.” (Griffin, supra, 380 U.S. at p. 614 [14 L.Ed.2d at p. 110].)
The same rationale is applicable to a refusal to consent to a warrant-less search. Such refusal is also ambiguous and therefore of little probative value. It may evidence completely innocent behavior. “There are many reasons other than guilt of a felony why an occupant of an apartment may not wish himself or others present exposed to the immediate view of a stranger, even if the stranger is a police officer.” (Tompkins v. Superior Court, supra, 59 Cal.2d at p. 68.)
Since the trial court committed federal constitutional error, the state must show that the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065].) The impact of appellant’s objection to the warrantless search was emphasized when the prosecutor repeatedly argued that the objection showed appellant’s consciousness of guilt. The prosecutor’s comments cannot be characterized as “moderate in tone and import.” (Maj. opn. at p. 909, ante.) They were inflammatory in tone and powerful in impact.2
[920]The significance of the evidence and the prosecutorial comments was not mitigated by the fact that appellant admitted he held the knife which injured the victim. (Maj. opn. at p. 909, ante.) That admission in no way ensured his conviction, because the crucial issue at trial was not whether appellant held the knife. Rather, the issue was whether he stabbed the victim accidentally or intentionally. The evidence that he objected to the search of his home, and the prosecutor’s argument that his objection showed he had a guilty conscience, refuted his contention that he had done nothing wrong. This devastating attack on appellant’s basic theory of the case was prejudicial.
There is another serious flaw in the majority opinion. The trial court erred in excluding appellant’s testimony concerning why he did not make further efforts to find the victim after the stabbing. This evidence was not merely marginally relevant. (Maj. opn. at p. 912, ante.) It was highly relevant to the central issue in the case. This denial prevented appellant from presenting evidence in his defense. (People v. Reeder (1978) 82 Cal.App.3d 543, 552 [147 Cal.Rptr. 275]; People v. Mizer (1961) 195 Cal.App.2d 261, 269 [15 Cal.Rptr. 272].)
Appellant contended that the stabbing was an accident. The court permitted limited testimony. After the stabbing occurred, appellant testified that he went into the bedroom to get his keys. He told his mother that he was going to take the victim to the hospital. Upon returning, he could not find the victim. At this point, the court sustained a relevancy objection to defense counsel’s question about why appellant had not made further efforts to find the victim.
Clearly, the question was relevant to show appellant’s innocent state of mind. If he had been permitted to answer the question, he could have [921]testified about why he did not try to find the victim and carry out his intention to take him to the hospital. His explanation was relevant to show that his state of mind immediately after the stabbing occurred was consistent with his contention that the stabbing was an accident. (See People v. Ogg (1958) 159 Cal.App.2d 38, 51 [323 P.2d 117]; People v. Brown (1921) 53 Cal.App. 664, 666 [200 P. 727].) The court sustained an objection to appellant’s testimony at a critical point. The testimony was not “remote, confusing or misleading.” (Maj. opn. at p. 912, ante.) Nor was it cumulative. (Ibid.) Appellant had not previously been permitted to testify about why he did not make further attempts to find the victim.
Contrary to the majority’s conclusion (maj. opn. at p. 912, ante), the relevance of this evidence was apparent from the question itself. On its face, the question concerned appellant’s state of mind just after the stabbing occurred. That state of mind was relevant because it would have shed light on appellant’s state of mind at the time of the stabbing. Therefore, no offer of proof or other explanation of appellant’s proposed testimony was required. (Evid. Code, § 354, subd. (a).)
The error in excluding appellant’s testimony was prejudicial. Appellant’s state of mind was the central issue at trial. The prosecutor, by arguing repeatedly that appellant had not called an ambulance or helped the victim after the stabbing, relied heavily on evidence that appellant’s excluded testimony could have rebutted or explained. The prejudicial impact of the exclusion was further emphasized by the giving of CALJIC No. 2.62, which states that inferences unfavorable to the defendant may be drawn from his failure to explain or deny evidence if facts within his knowledge permit him to do so.
The giving of CALJIC No. 2.62 was in itself improperly based on appellant’s failure to explain why he did not call an ambulance for the victim or drive him to the hospital. The majority ignore the fact that the trial court denied appellant the opportunity to explain, and find that CALJIC No. 2.62 was supported by his failure to explain!3 (Maj. opn. at p. 911, ante.) The reason appellant failed to explain why he did not find or aid the victim was that he had been prevented from doing so [922]when the court sustained the prosecutor’s objection to the evidence. How can this court uphold the drawing of an adverse inference from a failure to explain something a defendant was specifically precluded from explaining? (See People v. Randolph (1957) 147 Cal.App.2d Supp. 836, 845 [306 P.2d 98] [improper for prosecutor to argue that defendant should have produced evidence of police officers’ brutality, where trial court had excluded records which might have shown such brutality].)
Here, appellant’s Fourth Amendment right and his right to present evidence in his own defense were violated. By casually dismissing these errors, the majority dishonor the Constitution. They construct a trap in which persons who assert their Fourth Amendment rights can have that assertion used against them. Then,- the accused are prevented by the court from explaining their conduct, or establishing a relevant state of mind. The subsequent failure to explain is then used against them! The Mad Hatter could not have created a more absurd set of rules.
Clearly, the errors that occurred at this trial were of constitutional dimension and obvious as well as prejudicial.
Kingsley, J.,* concurred.
Appellant’s petition for a rehearing was denied October 28, 1981. Bird, C. J., was of the opinion that the petition should be granted.
Nor did appellant waive his claim by failing to request exclusion of the testimony that he objected to the warrantless search of his home. He may thus have waived his right to exclude the evidence, but he did not thereby waive his right to later obtain an instruction limiting the use of the evidence. (United States v. Prescott (9th Cir. 1978) 581 F.2d 1343, 1352, fn. 3; see also Pen. Code, § 1259 and People v. Hannon (1977) 19 Cal.3d 588, 600 [138 Cal.Rptr. 885, 564 P.2d 1203].)
As this court stated in Hannon, the failure to object to testimony at the time it was given “did not ... waive defendant’s right to appellate review of the propriety of the court’s jury instruction [based on that testimony] because the Legislature has specifically provided that an objection is not required in order to reserve instruction issues affecting the substantial rights of a defendant. (Pen. Code, § 1259.)” (19 Cal.3d at p. 600.)
The prosecutor’s comments were as follows: “Mrs. Redmond gave [the police officers] permission to come in, search the house for other people and then later gave them permission to search the garbage. Mr. Redmond is sitting there saying, 'Don’t let them search the house without a warrant.' Now that particular statement is essentially saying that Mr. Redmond knew that there was incriminating evidence within that house....
“Essentially what that shows is again the defendant's state of mind, what he was thinking about, how he could hide and conceal, that should be taken in light of the defendant’s statement, ‘Don’t let them search the house without a warrant.’...
“Now again he testified that Mr. Redmond says, ‘Don’t let them search the house without a warrant.’ Now ask yourselves, if you were in Mr. Redmond’s shoes and that Mr. Shubert had just simply fallen for some unknown reason into a knife and severed his liver and that it was an accident and you were completely innocent of any type of conduct, would you say to a police officer, 'Don’t let them search the house?’ Is that consistent with an innocent state of mind or is that consistent with someone who is in fact trying to convince the mother not to let them search the house because there is in[920]criminating evidence all over the place? I submit to you that it is the latter....
“Now ask yourselves a question: If you were innocent, if you had nothing to hide, would you say, ‘Don’t let them search the house unless they have a search warrant’?
"Now circumstantial evidence is important in this case because it shows you—it is the only way l can show you someone's state of mind.... Essentially what evidence do we have to show state of mind.... [H] The second is, 'Don’t let them search the house unless they have a search warrant.’ He is saying he is concealing the evidence involved, the knife ....
“Now Mrs. Redmond from the testimony of all of the witnesses appeared to me to be acting just like you and 1 would act, that she has nothing to hide, so she let them search. Again, 1 am emphasizing that that particular statement is not Mr. Redmond’s true and accurate and honest exercising of a constitutional right, that is, in fact, him trying to hide the fact that there is a lot of incriminating evidence in that house and essentially he did not have enough time to clean it all up.” (Italics added.)
The majority also improperly find support for CALJIC No. 2.62 in the difference between prosecution evidence and appellant’s testimony regarding the direction of the victim’s stab wound. (Maj. opn. at p. 911.) This difference was merely a contradiction in the evidence. “[A] contradiction is not a failure to explain or deny.” (People v. Saddler (1979) 24 Cal.3d 671, 682 [156 Cal.Rptr. 871, 597 P.2d 130].) It does not support the giving of CALJIC No. 2.62. (Id., at p. 683.)
Assigned by the Chairperson of the Judicial Council.