I am of the view that the majority opinion in this case does not meet the conditions essential under state law to reversal of the subject judgments.
California’s Constitution, which defines and delimits the powers of this court (see §§ 4 and 4%, art. VI) does not empower—to the contrary it forbids—us to reverse a judgment (oh any ground here relevant) “unless, after 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.” (See People v. Watson (1956) 46 Cal.2d 818, 835-838 [12,13] [299 P.2d 243].)
The majority do not cite any decision by the United States Supreme Court which holds that compliance by this court with the above cited sections of our Constitution would, in the circumstances of this ease, violate any federally guaranteed right of defendants. As pointed out by Justice Burke in his dissenting opinion in People v. Dorado (1965) ante, pp. 338, 365 [42 Cal.Rptr. 169, 398 P.2d 361], the high federal court in Escobedo1 “stresses that each ease must be weighed in relation to the totality of its own circumstances. ’ ’ So weighing the circumstances shown in the case at bench, even assuming the error declared by the majority, I find no miscarriage of justice and, hence, no tenable basis for reversal. Accordingly, I would affirm the judgment as to each defendant.
McComb, J., concurred.
Respondent’s petition for a rehearing was denied May 26, 1965. McComb, J., and Sehauer, 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.
Escobedo v. Illinois (1964) 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977].