I dissent because I cannot agree that defendant is entitled to reversal on account of evidence which he himself put before the court.
The record shows that when the ease was called for trial on October 17, 1960, a trial by jury was waived. Defendant, being represented by counsel, joined with the People in the following stipulation which was stated by the district attorney :
“The People offer to stipulate that the Court may consider the transcript of the preliminary hearing which resulted in the filing of Information No. 229,420, with the same force and effect as though the witnesses who were there called, sworn and testified, were here called, sworn and testified, and that People’s Exhibit 1 which was introduced into evidence at that time is re-introduced into evidence at this time, subject to any legal objection as to its admissibility; and any stipulations that have been entered into for the purpose of that trial, are entered into for this trial; and both sides reserve the right to enter any additional evidence.”
The transcript of the preliminary hearing shows that defense counsel there requested the municipal court to strike the officer’s testimony relating to defendant’s admissions, and that this motion was denied by the judge presiding at the preliminary. No objection to the admissibility of that testimony was made at the trial, no motion to strike any of it was made, and there is no suggestion that defendant did not desire the court to consider all of it.
Trial was continued to November 7. On that day the court announced that he had read the preliminary transcript.
The exhibits (i.e., the marijuana found in defendant’s apartment) were received in evidence. Defendant then testified on his own behalf. He described the conversation with *676the officers after the marijuana was found in his bedroom. He said that he at first denied knowledge of it, then the officers threatened to arrest his wife and take his children, and that he thereupon admitted ownership of the cigarettes, and that this admission was false. The tactics of the defendant at the trial were neither inadvertent nor inept. His purpose was to show that the officers’ entry into his apartment was forced, and doubtless defendant believed that proving the entire conversation, including the threats against members of his family, would add color to his other contentions. The evidence in the trial court was conflicting as to whether or not the officer was invited into the apartment, and the court’s implied finding that the entry was lawful is supported by substantial evidence. There is apparently no disagreement within this court that the evidence is sufficient to support the conviction without the use of the admission which defendant made to the arresting officer.
It is a common practice to use the transcript of the preliminary hearing at the trial by stipulation. Such use in any ease would violate the constitutional rights of the defendant but for the fact that defendant stipulates to it. It is a familiar tactic for a defendant to stipulate that the transcript be received, and then complain of it on appeal. The cases consistently hold that the People and the trial court may rely upon defendant’s stipulation, and that defendant's rights are not infringed thereby. Some of these cases are People v. Wallin, 34 Cal.2d 777, 780 [215 P.2d 1] ; People v. Dessauer, 38 Cal.2d 547, 552 [241 P.2d 238]; People v. Tanner, 77 Cal.App.2d 181,188 [175 P.2d 26]; People v. Graves, 84 Cal.App. 2d 531, 535 [191 P.2d 32]; People v. Donnelly, 95 Cal.App.2d 595, 598 [213 P.2d 502]; People v. Young, 100 Cal.App.2d 488 [224 P.2d 46]; People v. Barry, 153 Cal.App.2d 193, 204 [314 P.2d 531]; People v. Johns, 173 Cal.App.2d 38, 45 [343 P.2d 92]; People v. Jackson, 177 Cal.App.2d 181, 183 [1 Cal.Rptr. 857]; People v. Smyer, 177 Cal.App.2d 477, 478 [2 Cal.Rptr. 215]; cf. People v. Robillard, 55 Cal.2d 88, 101 [10 Cal.Rptr. 167, 358 P.2d 295],
No one can doubt that the admission of an improperly obtained confession may be a denial of due process of law even though the defendant neglects to make a timely objection, and even though there is sufficient other evidence to support the judgment. I find no authority for applying that principle to reverse a conviction where the defendant himself placed before the court the fact that at some time in the past he had *677made involuntary extrajudicial admissions. The eases relied on in the majority opinion involve situations where the defendant so far failed to defend himself at the trial that it was the duty of the trial judge to intervene on his behalf. There is nothing comparable here. Defendant was entitled to present Ms defense as he saw fit. I am unable to understand that a trial court which allowed defendant to do this has thereby deprived him of due process of law.
A petition for a rehearing was denied May 26, 1962. Piles, J., was of the opinion that the petition should be granted. Respondent’s petition for a hearing by the Supreme Court was denied June 20, 1962.