I concur in part and dissent in part.
The practical effect of the majority opinion is that the prosecution by joining charges of separate and distinct robberies can effectively compel the defendant to testify as to all charges or be subject to adverse inferences where he elects to testify as to one and there is evidence, however weak, from which it can be concluded that the robberies disclose a common plan, pattern, or modus operands. If this is the law what becomes of the constitutional right to remain silent ?
Obviously, if the offenses were separately charged and tried, defendant would have the right to decide in each trial whether to testify or to rely upon his privilege against self-incrimination. I cannot agree that the rules relating to joinder of charges or proof of similar offenses were ever intended or should be applied to deprive a defendant of that constitutional right. Furthermore the majority ignores the fact that the trial court by sustaining an objection to cross-examination effectively ruled that there was no waiver of the privilege, but the majority treats the matter as if the trial court had made a contrary ruling.
Defendant was charged in the first count with a robbery at the Viking Club, in count 2 with a robbery at the Corner Market, and in counts 3 and 4 with robbing the bartender and
*623a patron of Ralph’s Bar. He took the stand and denied commission of the Viking Club and Corner Market robberies. He did not testify on direct examination with regard to the robberies charged in counts 3 and 4. When the prosecutor asked on cross-examination a question regarding the robberies charged in counts 3 and 4, the trial court sustained an objection on the ground that the question was beyond the scope of the direct examination.
In his closing argument, the prosecutor commented on defendant’s failure to explain or deny the evidence of his guilt as to counts 3 and 4. The trial court gave an instruction permitting the jury to draw an inference adverse to defendant from his failure to explain or deny facts within his knowledge.
Griffin v. California, 380 U S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229], which was decided after the verdict was returned in the instant case, held that such comment and instruction violates the Fifth Amendment privilege against self-incrimination. In concluding that the comment and instruction did not violate the rule of the Griffin ease the majority reasons that by voluntarily taking the stand and testifying as to the offenses charged in counts 1 and 2 defendant waived his privilege not only as to those offenses but also as to the offenses charged in counts 3 and 4 because all of the robberies disclose a plan, pattern, or modus operandi similar in some respects. The majority finds itself in the anomalous position of affirming the judgment on all counts on the ground that the trial court erroneously limited the cross-examination of the defendant when it sustained the objection to questions relating to the offenses charged in counts 3 and 4.
I am of the opinion that the attempted cross-examination was clearly improper even if the common plan exception were applicable. If this is so, the waiver of defendant’s privilege against self-incrimination did not extend to the offenses charged in counts 3 and 4. It is well settled that the breadth of the waiver by an accused who takes the stand in the trial “is determined by the scope of relevant cross-examination.” (See Brown v. United States, 356 U.S. 148, 154-155 [2 L.Ed. 2d 589, 78 S.Ct 622, 72 A.L.R.2d 818]; Johnson v. United States, 318 U.S. 189, 195 [87 L.Ed. 704, 63 S.Ct. 549].) This rule permits a defendant, before taking the stand, to determine the scope of his waiver and to intelligently weigh the alternatives of testifying or asserting his privilege, and, where the prosecution seeks improper cross-examination, it should not be held to come within the waiver. In the instant case, the *624defendant was thus effectively told by the trial court that the waiver did not extend to counts 3 and 4.
Moreover, in a number of situations this court has recognized that certain evidence, although relevant and admissible for a limited purpose, should be excluded where the prejudice to a defendant from the admission of the evidence will outweigh its probative value and where it can not be reasonably expected that the jury will confine its consideration of the evidence to the limited purpose for which admission would otherwise be proper. (See, e.g, People v. Aranda, 63 Cal.2d 518, 530-531 [47 Cal.Rptr. 353, 407 P.2d 265]; People v. Henderson, 60 Cal.2d 482,494-495 [35 Cal.Rptr. 77, 386 P.2d 677]; People v. Atchley, 53 Cal.2d 160, 168 [346 P.2d 764]; People v. Foote, 48 Cal.2d 20, 23-24 [306 P.2d 803].)
In Shepard v. United States, 290 U.S. 96, 104 [78 L.Ed. 196, 54 S.Ct. 22], where the defense introduced evidence that the decedent was contemplating suicide and the prosecution offered testimony that three weeks prior to her death the decedent had said that “Dr. Shepard has poisoned me,” the court in holding that the quoted statement should not have been admitted to show state of mind of the decedent stated: “It will not do to say that the jury might accept the declarations for any light that they cast upon the existence of a vital urge, and reject them to the extent that they charged the death to someone else. Discrimination so subtle is a feat beyond the compass of ordinary minds. The reverberating clang of those accusatory words would drown all weaker sounds. It is for ordinary minds, and not for psychoanalysts, that our rules of evidence are framed. . . . When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.” (See also People v. Talle, 111 Cal.App.2d 650, 670 [245 P.2d 63].)
These principles have been recognized by this court with regard to evidence of collateral offenses, and we have pointed out that evidence of such offenses carries with it the risk that its probative value may be outweighed by its possible prejudicial effect. (People v. Henderson, supra, 60 Cal.2d 482, 495.)
Although ordinarily the question whether possible prejudice warrants exclusion is addressed to the trial court (People v. Henderson, supra), permitting the cross-examination in the instant ease would have been an abuse of discretion as a matter of law. Of necessity cross-examination of defendant as to the robberies charged in counts 3 and 4 bears directly on the issue of guilt of the robberies charged in *625counts 3 and 4, and it is obvious that a jury, whether or not given a limiting instruction, will consider such evidence as bearing on the issue of guilt as to those robberies and not merely as bearing on the offenses charged in counts 1 and 2 to which such cross-examination relates merely collaterally. In other words, the advantage, if any, that the prosecution may gain with respect to counts 1 and 2 in eliciting admissions by cross-examination of defendant as to the robberies charged in counts 3 and 4 is clearly outweighed by the risk of prejudice to defendant due to the possibility that the jury will consider such admissions in determining guilt of the charges in counts 3 and 4.
Moreover, even without regard to prejudice to defendant, the trial court’s determination that the questioning of defendant as to the robberies charged in counts 3 and 4 was not proper cross-examination must be upheld because of the weakness of the showing that those robberies disclosed a plan, pattern, or modus operandi similar to the robberies charged in counts 1 and 2.
The majority summarizes such showing with regard to the four offenses charged and a prior offense as follows: “In the prior offense, as in each of the offenses charged, the place robbed was a business establishment in Sacramento, the robbery was committed during the evening or early morning hours, two or three men participated in the robbery, one or more of the robbers wore a mask, a gun was used in commit ting the robbery, and no victim was physically injured. It further appears that in the prior robbery and all the robberies charged, except those at Ralph’s Bar, property in addition to money was taken, that the Bankamericard taken in the Viking Club robbery was later used by defendant, and that the money orders taken at the prior robbery were likewise later used apparently by one of the robbers. ’ ’
Counts 3 and 4, as pointed out above, relate to the robberies of Ralph’s Bar, and those robberies occurred early in the morning, involved three robbers, and resulted in the theft of money only ■ whereas the other robberies occurred in the evening, involved two robbers, and resulted in the taking of property in addition to money.
I am satisfied that the ordinary principles of appellate review require us to uphold the trial court’s determination that the questioning of defendant as to the offenses charged in counts 3 and 4 was not proper cross-examination. Since the questioning did not come within the scope of proper cross-*626examination, such questioning did not come within the waiver of the privilege, and it was improper for the prosecutor to comment on the fact that defendant did not deny commission of the offenses charged in counts 3 and 4, and it was error for the court to instruct the jury that it could draw an inference unfavorable to the defendant from his failure to explain or deny facts within his knowledge.
People v. Ing, ante, page 603 [55 Cal.Rptr. 902, 422 P.2d 590], is distinguishable. In that ease evidence of collateral crimes of which defendant was not charged was used to show a common scheme or plan. Since defendant was not charged with the collateral crimes, there was, of course, no danger that the jury would misuse the evidence to convict defendant of such crimes For this reason I have signed the Ing opinion.
The misconduct and the erroneous instruction in the instant case require reversal if there is a reasonable possibility that the errors complained of contributed to the conviction. (Cal. Const., art. VI, § 13 ; Fahy v. Connecticut, 375 U.S. 85, 86-91 [11 L.Ed.2d 171, 84 S.Ct. 229]; see People v. Bostick, 62 Cal.2d 820, 823-827 [44 Cal.Rptr. 649, 402 P.2d 529].) The evidence to connect defendant with the robberies charged in counts 3 and 4 as set forth in the majority opinion is weak. Defendant did not testify with respect to those offenses, and I am of the view that there is a substantial likelihood that the misconduct and the erroneous instruction contributed to defendant’s conviction of these offenses. A different situation appears, however, as to the offenses charged in counts 1 and 2. There was strong evidence to connect defendant with each of those robberies. Defendant denied commission of those robberies, and neither the misconduct nor the erroneous instruction was directed towards these offenses. Under the circumstances, there is no reasonable possibility that the matters complained of contributed to defendant’s conviction of the offenses charged in counts 1 and 2.
I would reverse the judgments of conviction of the offenses charged in counts 3 and 4 and affirm the judgments of conviction of the offenses charged in counts 1 and 2.
Peek, J.,t concurred.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.