I concur with my colleagues in the affirmance of Blum’s judgment of conviction. But the concurrence is reluctant and compelled by the force of Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937], holding that “decisions of [the Supreme Court] are binding upon and must be followed by all the state courts of California. . . .”
There is no disagreement- with the expressed conclusions of my esteemed colleagues. But applying long recognized high authority, their opinion impliedly follows the “any substantial evidence” rule, and determines that Blum’s conviction was, as a matter of law, supported by the evidence at his trial. This rule although repeatedly confirmed, and never disapproved, by the state’s Supreme Court is nevertheless, in my opinion, not the law of California, at least on criminal appeals.
The reason:
It is not permitted by the “due process” clauses of the Fifth and Fourteenth Amendments to the United States Constitution.
A reviewing court has the duty in a proper case to determine whether a guilty verdict is supported by evidence. It does not weigh the evidence, nor does it pass upon the credibility of witnesses; such considerations are for the trier of fact. The function of the appellate court is to determine whether, as a matter of law, the verdict is supported by the evidence. (People v. Martin, 12 Cal.2d 466, 474 [85 P.2d 880]; People v. Collins, 117 Cal.App.2d 175, 180 [255 P.2d 59] [cert, den., 346 U.S. 803 (98 L.Ed. 334, 74 S.Ct. 33); overruled on other grounds, People v. Elliot, 54 Cal.2d 498, 504 (6 Cal.Rptr. 753, 354 P.2d 225)].)
For the appellate court’s guidance there has evolved what is reasonably and appropriately called the “any substantial evidence” rule.
Perhaps the best known statement of California’s “any substantial evidence” rule is found in Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc., 66 Cal.2d 782, 784-785 [59 Cal.Rptr. 141, 427 P.2d 805], where the court said: “When a finding of fact is attacked on the ground that there is no substantial evidence to sustain it, the power of an *522appellate court begins and ends with the determination as to whether there is any substantial evidence [italics added], contradicted or uncontradicted, which will support the finding of fact. . . . When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. [Citations.]”
The rule is equally applicable in criminal cases. (See People v. Bassett, 69 Cal.2d 122, 138 [70 Cal.Rptr. 193, 443 P.2d 777]; People v. Wheeler, 30 Cal.App.3d 282, 292 [106 Cal.Rptr. 260]; People v. Henning, 18 Cal. App.3d 872, 874, fn. 1 [96 Cal.Rptr. 294]; People v. Turner, 267 Cal.App.2d 440, 442 [73 Cal.Rptr. 263, 38 A.L.R.3d 940].)
It is sometimes expressed differently and in this manner: “An appellate court will not reverse a criminal conviction unless it clearly appears that under no hypothesis whatever is the evidence sufficient to support the judgment. [Citation.]” (Italics added.) (People v. Camerano, 260 Cal. App.2d 861, 865 [67 Cal.Rptr. 446] [overruled on other grounds, People v. De Santiago, 71 Cal.2d 18, 30 (76 Cal.Rptr. 809, 453 P.2d 353)]; see also People v. Bard, 70 Cal.2d 3, 5 [73 Cal.Rptr. 547, 447 P.2d 939]; People v. Sullivan, 255 Cal.App.2d 232, 236 [62 Cal.Rptr. 887]; People v. Domingo, 210 Cal.App.2d 120, 124 [26 Cal.Rptr. 315]; People v. Powell, 187 Cal.App.2d 709, 712 [10 Cal.Rptr. 116]; People v. Milo, 89 Cal.App.2d 705, 707 [201 P.2d 556].)
But perhaps the more often reiterated statement of the rule is: “On appeal that part [of the evidence] which supports the judgment must be accepted, not that part which would defeat or tend to defeat it. . . .” (Italics added.) (People v. Hrisoulas, 251 Cal.App.2d 791, 796 [60 Cal.Rptr. 80]; see also People v. Norris, 223 Cal.App.2d 5, 11 [35 Cal.Rptr. 507]; People v. Zurica, 225 Cal.App.2d 25, 31 [37 Cal.Rptr. 118] [cert, den., 379 U.S. 863 (13 L.Ed.2d 66, 85 S.Ct. 126)]; People v. Causey, 220 Cal.App.2d 641, 654 [34 Cal.Rptr. 43] [cert. den. 376 U.S. 959 (11 L.Ed.2d 976, 84 S.Ct. 981)]; People v. Rosales, 213 Cal.App.2d 531, 534 [28 Cal.Rptr. 771]; People v. Tereno, 207 Cal.App.2d 246, 251 [24 Cal.Rptr. 501]; People v. Sanders, 206 Cal.App.2d 479, 482 [23 Cal.Rptr. 725]; People v. Murray, 198 Cal.App.2d 805, 809 [18 Cal.Rptr. 280]; People v. Rodriguez, 169 Cal.App.2d 771, 777 [338 P.2d 41]; People v. Justice, 167 Cal.App.2d 616, 621 [334 P.2d 1031]; People v. Bahara, 159 Cal.App.2d 160, 161-162 [323 P.2d 453]; People v. Hamilton, 127 Cal.App.2d 533, 534 [274 P.2d 175]; People v. Hill, 126 Cal. App.2d 378, 380 [272 P.2d 113]; People v. Dragoo, 121 Cal.App.2d 322, 324 [263 P.2d 90]; People v. Adams, 119 Cal.App.2d 445, 449 [259 P.2d 56]; People v. Walton, 112 Cal.App.2d 871, 874 [247 P.2d 388]; *523People v. Whitehurst, 112 Cal.App.2d 140, 144 [245 P.2d 509]; People v. Thomas, 103 Cal.App.2d 669, 672 [229 P.2d 836].)
Occasionally, discussing “substantial evidence,” courts have said that the term implies “that such evidence must be of ponderable legal significance. ... It must be reasonable in nature, credible, and of solid value; it must actually be ‘substantial’ proof of the essentials which the law requires in a particular case. . . .” (See Estate of Teed, 112 Cal.App.2d 638, 644 [247 P.2d 54].) But this in no way qualifies the “any substantial evidence” rule; it simply sets the standard for the isolated favorable evidence which must, of itself, meet the test of Estate of Teed. It does not allow consideration of the whole record in determining whether a verdict is, as a matter of law, supported by evidence.
Another duty of California’s appellate courts on criminal appeals, corollary to their function under the “any substantial evidence” rule, is repeatedly stated as:
“The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. . . .” (Italics added.) (People v. Reilly, 3 Cal.3d 421, 425 [90 Cal.Rptr. 417, 475 P.2d 649].)
It thus appears that, although the reviewing court may not itself weigh the evidence, or pass upon the credibility of witnesses, it is in duty bound from some sort of consideration of the evidence, to determine whether, as a matter of law, a reasonable jury could have found the accused guilty beyond a reasonable doubt.
In the discharge of this high purpose the court, under the strictures of the “any substantial evidence” rule, may consider only some of the evidence, i.e., that favorable to the prosecution. This “favorable” evidence, isolated and outweighed as it might be, becomes the “any” substantial evidence of the rule and will support the guilty verdict, so long as it is not a “physical impossibility,” or on its face without consideration of other evidence or inferences, “false.” (See People v. Lyons, 47 Cal.2d 311, 320 [303 P.2d 329].) All of the remaining evidence, regardless of its convincing and impeaching force, must be rejected from consideration.
Blum was convicted on the testimony of a wholly uncorroborated eyewitness to a robbery, one Thomas Paganini. At the trial Paganini “positively” identified him as the robber. This testimony, standing by itself, meets the test of “any substantial evidence”; on its face there was indicated no “impossibility” or “falsity,” and it could reasonably be “hypothesized” as true. Under it Blum’s conviction was evidentially supported. As pointed *524out we may not consider contrary evidence, including other testimony of Paganini which throws much discredit on his courtroom “positive identification.”
The other evidence discloses the following.
At the trial on direct examination Paganini testified that the robber, demanding money, appeared at his store’s counter with a gun in his right hand. Bis left hand covered the lower part of his face. With his hands so engaged the man came around inside the counter to the cash register at which point he lowered his left hand from his face, and with it scooped up $70 in bills; Paganini was thus able to see the entire face of the robber.
However, a police officer testified that Paganini, making no mention of seeing the robber’s “entire face,” had told him “that during the holdup the robber had the lower portion of his face covered.” He further testified that while looking at a group of six police photographs, Paganini placed a matchbook “over the lower portion of the face of one of the photographs” (that of Blum) and said it “could be” the man.
On Paganini’s cross-examination he admitted having remembered things differently at Blum’s preliminary examination. There also, as with the policeman, he had not recalled the robber, who was three or four feet away, having lowered his left hand from his face and with it “scooping up” the money; instead he had testified that the robber, holding the gun in his right hand then “put the gun in his pocket and with the same hand plucked out the money.”
At the trial Paganini testified that when he first saw Blum at a corporeal lineup he told the attending officer, “I’m positive that’s the man.” But the officer said he did not use the term “positive”; instead he said he was “almost sure” of his identification. Then on cross-examination Paganini admitted having told a public defender’s representative that he was “pretty sure” that the “person he saw in the lineup is the one [he] saw in the store.” And the public defender’s representative’s testimony at the trial— “I asked him if he was positive of the man that he had identified. He hesitated and then said, ‘I’m pretty sure. The rest of them were way out. They weren’t even close’ ”—went undented by Paganini.
Soon after the robbery Paganini told an officer that the robber’s “skin was kind of rough like pocks, pocky.” At the trial Blum’s answer, “Not that I know of” to his attorney’s question, “Do you have any marks on your face?” went unchallenged by the prosecution. And we have seen two of Blum’s pictures which were placed in evidence; no “pocks” or other such marks are apparent.
*525Of some significance, although presumably it was not directly considered by the jury on the issue of Blum’s guilt, was a police photograph which indicated some earlier police trouble of Blum. (It constituted his only police record and the charge had been dismissed, an “irrelevant” fact of which the jury were unaware.) It was admitted in evidence in support of the “extrajudicial” photographic identification we have adverted to. It may tend to explain the verdict.
Also of significance is the sad experience of our law in the area of such eyewitness identification. These impressions are epitomized in United, States v. Wade, 388 U.S. 218, 228 [18 L.Ed.2d 1149, 1158, 87 S.Ct. 1926], as follows: “[T]he confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: ‘What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent— not due to the brutalities of ancient criminal procedure.’ . . .”
Were we permitted to consider the whole record of Blum’s trial in our inquiry whether to a reasonable person and as a matter of law, “the prosecution sustained its burden of proving [Blum] guilty beyond a reasonable doubt” (see People v. Reilly, supra, 3 Cal.3d 421, 425) we, I think (certainly, I), would conclude that it had not.
As has been stated, the Fifth and Fourteenth Amendments render California’s “any substantial evidence” rule, at least in the area of criminal appeals, invalid. Instead, as will be pointed out, reviewing courts are constitutionally required to consider the whole record in determining whether, as a matter of law, substantial evidence supports a guilty verdict, or a “reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.”
The requirement that no person shall be convicted except upon proof beyond a reasonable doubt is constitutionally mandated. The United States Supreme Court has said: “Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt . . . .” (In re Winship, 397 U.S. 358, 364 [25 L.Ed.2d 368, 375, 90 S.Ct. 1068].)
*526The premise—that one convicted by a state upon less than proof beyond a reasonable doubt has been denied a fair trial—requires no elaboration.
Citing Powell v. Alabama, 287 U.S. 45 [77 L.Ed. 158, 53 S.Ct. 55, 84 A.L.R. 527], the California Supreme Court in People v. Lyons, supra, 47 Cal.2d 311, 319, asserted: “It is axiomatic that when an accused is denied that fair and impartial trial guaranteed by law, such procedure amounts to a denial of due process of law . . . .” (Italics added.)
In People v. Sarazzawski, 27 Cal.2d 7, 11 [161 P.2d 934], it was said: “When a defendant has been denied any essential element of a fair trial or due process, even the broad saving provisions of section AV% [now §13] of article VI of our state Constitution cannot remedy the vice and the judgment cannot stand. . . .”
And in People v. Mahoney, 201 Cal. 618, 627 [258 P. 607], the court held that a “fair trial” was guaranteed each criminally accused “by law and by the constitution.”
We are here concerned with a rule developed by the courts of California. Concerning such state-made rules the United States Supreme Court has said: “The Fourteenth Amendment leaves California free to adopt, by statute or decision, and to enforce, such rule as she elects, . . . But the adoption of' the rule of her. choice cannot foreclose inquiry as to whether, in a given case, the application of that rule works a deprivation of the prisoner’s life or liberty without due process of law. The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false. . . .” (Lisenba v. California, 314 U.S. 219, 236 [86 L.Ed. 166, 180, 62 S.Ct. 280].)
California faithfully follows the pertinent constitutional precepts by its rule that “appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. . . .” (See People v. Reilly, supra, 3 Cal.3d 421, 425.)
But by virtue of its “any substantial evidence” rule, California prevents the very inquiry it has mandated. For it cannot be determined whether a reasonable jury could have found proof beyond a reasonable doubt, unless the reviewing court considers the whole evidence which was before the jury. A single item of “substantial evidence,” of itself “reasonable in nature, credible, and of solid value,” and neither “impossible” nor on its face, “false,” may nevertheless be heavily (as here), even conclusively, outweighed by other evidence. In such a case a reasonable person would not *527find the accused to have been proved guilty beyond a reasonable doubt, but the reviewing court is powerless to so declare; and the constitutional insistence on “due process” and “fair trials” is thwarted. This is “fundamental unfairness in the use of evidence” as deplored by the court in Lisenba v. California, supra, 314 U.S. 219, 236.
The true rule for the guidance of appellate courts was succinctly stated in Napue v. Illinois, 360 U.S. 264, 271 [3 L.Ed.2d 1217, 1222, 79 S.Ct. 1173], as the duty to make their “own independent examination of the record when federal constitutional deprivations are alleged.” (Italics added.) This rule has been repeatedly applied to Fourteenth Amendment “due process of law” contentions. (See Sheppard v. Maxwell (1966) 384 U.S. 333, 362 [16 L.Ed.2d 600, 620, 86 S.Ct. 1507]; Jacobellis v. Ohio (1964) 378 U.S. 184, 189 [12 L.Ed.2d 793, 798-799, 84 S.Ct. 1676]; Haynes v. Washington (1963) 373 U.S. 503, 515 [10 L.Ed.2d 513, 521-522, 83 S.Ct. 1336]; Ashcraft v. Tennessee (1944) 322 U.S. 143, 147 [88 L.Ed. 1192, 1195-1196, 64 S.Ct. 921]; Lisenba v. California, supra, 314 U.S. 219, 237 [86 L.Ed. 166, 180]; Chambers v. Florida (1940) 309 U.S. 227, 228-229 [84 L.Ed. 716, 717-718, 60 S.Ct. 472].)
Jacobellis v. Ohio, supra, 378 U.S. 184, at page 189 [12 L.Ed.2d 793, at page 798], states: “In . . . areas involving constitutional rights under the Due Process Clause, the Court has consistently recognized its duty to apply the applicable rules of law upon the basis of an independent review of the facts of each case. ...” (Italics added.) And where “due process” rights are at issue, Sheppard v. Maxwell, supra, 384 U.S. 333, 362 [16 L.Ed. 2d 600, 620], tells us “the trial courts must take strong measures to ensure that the balance is never weighed against the accused [and] appellate tribunals have the duty to make an independent evaluation of the circumstances. . . .” (Italics added.)
Recent California cases recognize and apply this principle in other areas. “[I]t is the duty of the reviewing court to make an independent evaluation of the record and to satisfy itself de novo that the defendant can obtain a fair and impartial trial in the county of original venue.” (Italics added.) (Frazier v. Superior Court (1971) 5 Cal.3d 287, 293 [95 Cal.Rptr. 798, 486 P.2d 694], and see Maine v. Superior Court (1968) 68 Cal.2d 375, 382 [66 Cal.Rptr. 724, 438 P.2d 372].) And appellate courts will themselves scrutinize “the record with respect to [a police] showup to determine whether defendant was denied due process by the part the showup played in his conviction. . . .” (Italics added.) (People v. Feggans (1967) 67 Cal.2d 444, 449 [62 Cal.Rptr. 419, 432 P.2d 21]; and see People v. Bisogni (1971) 4 Cal.3d 582, 585 [94 Cal.Rptr. 164, 483 P.2d 780].)
*528Under these compelling authorities there would seem to be little doubt that California’s appellate courts in determining whether a criminal conviction is, as a matter of law, supported by the evidence, must look to the whole record.
There are other reasons why this should be the rule of California.
The “any substantial evidence” rule, at least as applied to criminal appeals, seems peculiar to this state.
The scope of inquiry of appellate courts in other jurisdictions, when inquiring into the sufficiency of evidence as a matter of law, to support a verdict of guilt is illustrated by the following selection. The Texas Court of Criminal Appeals states: “[I]t is proper to consider the entire record with each and every fact which throws light on the subject . . . .” (Villareal v. State, 140 Tex.Crim. 675 [146 S.W.2d 406, 409].) Indiana’s Supreme Court, in a questionable identification case, says: “[W]e consider the inherent inconsistency and improbability, particularly as to the essential element of identity .... [S]ome of the most tragic errors of courts of law have been chiefly due to honest but imperfect and over-zealous attempts of witnesses in making identifications.” (Thomas v. State, 238 Ind. 658 [154 N.E.2d 503, 506].) Minnesota’s courts hold: “ ‘[T]he question of the sufficiency of the evidence to sustain the verdict ... is then to be determined on appeal by a consideration of all the evidence presented in the case.’ . . .” (State v. Golden, 216 Minn. 97 [12 N.W.2d 617, 619].) Illinois’, Ohio’s, and New Jersey’s appellate courts will also consider the “entire record.” (People v. Kincy, 72 Ill.App.2d 419 [219 N.E.2d 662, 665-666]; State v. Urbaytis, 156 Ohio St. 271 [46 Ohio Ops. 139, 102 N.E.2d 248, 252]; State v. Fischer, 97 N.J.L. 34 [117 A. 519] [affd. 98 N.J.L. 293 (118 A. 927)].) Virginia’s courts will review “all the evidence” (Spangler v. Commonwealth, 188 Va. 436 [50 S.E.2d 265, 266]), and South Carofina’s, “the entire testimony, including that offered by appellants” (State v. Thompkins, 220 S.C. 523 [68 S.E.2d 465, 466]). And in such an inquiry, the United States Court of Appeals (10th Cir.) asserted: “We must consider the case as a whole and not piecemeal. The fines of proof must be considered together, not separately. . . .” (Corbin v. United States, 253 F.2d 646, 649.)
It is observed that elsewhere it is sometimes said that a verdict will be upheld on appeal if supported by “any” or “any credible,” or “any substantial” evidence. (See 5 Am.Jur.2d, Appeal and Error, § 835, and cases there referred to.) But an examination of those authorities discloses that existence of such evidence is determined from a consideration of the whole record. None asserts the rule that only that part of the evidence which *529supports the judgment may be considered and not that which would tend to defeat it. (See People v. Hrisoulas, supra, 251 Cal.App.2d 791, 796.)
It may fairly be said that the “any substantial evidence” rule is lacking in logic. As has been indicated, an appellate court must determine whether a reasonable person “could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. . . .” (People v. Reilly, supra, 3 Cal.3d 421, 425.) This burden (described as a “heavy one”; People v. Bassett, supra, 69 Cal.2d 122, 139) is obviously not met by pointing to an isolated bit of testimony from one of the prosecution’s witnesses, when the testimony of those same witnesses, taken as a whole, substantially undermines its probative value.
It is abhorrent to any sense of justice that persons be convicted of crimes they did not commit. Perfection of course is not attainable in this world, but that furnishes no reason why the law should not, within reason, continually strive to prevent such miscarriages of justice. Yet nothing would seem better calculated to perpetuate such injustice, than an “any substantial evidence” rule which limits the evidence which, may be considered in determining whether, as a matter of law, there is sufficient evidence to convict.
The origin of California’s aberrant rule is uncertain. Seeger v. Odell, 64 Cal.App.2d 397 [148 P.2d 901], suggests that it was somehow mandated by the Constitution of the state. That case states (pp. 402-403): “When a judgment is assailed as being unsupported by the evidence, the power of an appellate tribunal in passing upon that question begins and ends with the determination whether there is in the record any substantial evidence, contradicted or uncontradicted, to support the ultimate issue involved. Reviewing judges obviously being in no position to determine the credit which should be given to witnesses or to weigh their testimony, the Legislature, in accordance with the constitutional mandate (Cal. Const., art. VI, §19) has provided that the triers of fact shall be the exclusive judges of the credibility of witnesses (Code Civ. Proc., § 1847), and except in those instances where it is declared by law that evidence shall be conclusive proof of the fact to which it relates (Code Civ. Proc., § 2061) the triers of fact are the judges of the effect and value of evidence addressed to them.” (Italics added.) (See also People v. Boyce, 99 Cal.App.2d 439, 443-444 [221 P.2d 1011]; People v. Ohman, 67 Cal.App.2d 467, 475 [154 P.2d 463].)
This rationale seems to explain the appellate court’s inability to further examine the record when it has found “any substantial evidence.” For other*530wise, the court suggested, the reviewing court would be trespassing upon the . exclusive constitutional province of the jury to determine the weight of evidence and credibility of witnesses. This, it is submitted, is logically erroneous when applied to the reviewing court’s admittedly proper function of determining whether, as a matter of law, a judgment is supported by evidence.
But giving full credit to Seeger v. Odell, supra, 64 Cal.App.2d 397, its reasoning and authority are no longer valid. The constitutional provision relied upon, article VI, section 19, which provided, “The court shall inform the jury in all cases that the jurors are the exclusive judges of all questions of fact submitted to them and of the credibility of the witnesses,” was repealed, by vote of the people, in 1966.
It may not be said that the rule upon which Blum’s conviction must be affirmed is demanded by considerations of public policy. There is an obvious, and deliberate, judicial trend away from the rule.
In 1972 the Supreme Court in LeVesque v. Workmen’s Comp. App. Bd., 1 Cal.3d 627 [83 Cal.Rptr. 208, 463 P.2d 432], abolished the long applied “any substantial evidence” rule of appellate review in workmen’s compensation cases. It was held (p. 637) that reviewing courts must thereafter “review the entire record to determine whether the board’s conclusion was supported by substantial evidence. ...”
Similarly, in Bixby v. Pierno, 4 Cal.3d 130, 149 [93 Cal.Rptr. 234, 481 P.2d 242], it was made clear that where upon judicial review of administrative decisions, the question whether supportive substantial evidence exists, the court will look to the whole record of the administrative proceedings.
This reconsidered rule has been applied in at least one area of criminal appeals. In determining whether substantial evidence supported a jury finding of the higher degree of a crime, the court in People v. Bassett, supra, 69 Cal.2d 122, 138, stated: “[W]e must resolve the issue in the light of the whole record—i.e., the entire picture of the defendant put before the jury —and may not limit our appraisal to isolated bits of evidence selected by the respondent. ...” (Italics added.) This must be deemed a repudiation of the “any substantial evidence” rule as applied to the context of that case.
It is recognized that Blum’s court-appointed counsel has placed little emphasis on the legal insufficiency of the evidence to support his conviction. But most likely, and understandably, he considered such an appellate point as idle because of the “any substantial evidence” rule.
Appellant’s petition for a hearing by the Supreme Court was denied January 16, 1974.