I dissent.
I heartily concur in the overruling of the decision (People v. Modesto, 59 Cal.2d 722 [31 Cal.Rptr. 225, 382 P.2d 33]) which holds that failure to instruct upon a lesser included- offense is necessarily reversible error, even though absence of prejudice is clear from the jury’s obvious rejection of evidence which tended to prove the lesser offense.
I cannot, however, concur in the majority’s blunting of this salutary change when it finds error in an instruction which seems to me entirely proper and which, even if erroneous, could not conceivably have affected the verdict.
The majority holds that it was error to instruct that “escape with force or violence” invokes the second degree felony-murder rule. I cannot agree. Under the facts of this case, and the language of the instruction here given, the decision relied upon by the majority (People v. Lopez, 6 Cal.3d 45 [98 Cal.Rptr. 44, 489 P.2d 1372]) is readily distinguishable and cannot apply. In Lopez, the defendant and others had escaped from a county jail without detection, and obviously without violence. Two days later, a codefendant broke into' a home to obtain food, and violently assaulted the couple who lived there, killing one of them. The jury was instructed that “The unlawful killing of a human being . . . which occurs as the direct causal result of the commission of or attempt to commit a felony inherently dangerous to human life, namely, the crime of escape, ... is murder of the second degree.” As the court pointed out, the statutory proscription of escape from a jail (Pen. Code, § 4532) is extremely broad. The court emphasized that the range of “escape,” as defined in the code section as *725a whole, is overly comprehensive. “The included modes of escape range from those involving force or violence to tardiness on the part of one engaged in a work furlough program.” (6 Cal.3d at p. 51.) “It applies to the man who is tardy in returning from a work furlough as well as to the man who obtains a contraband weapon and decides to shoot his way out of jail.” (Id.) “It applies to those who, like this defendant, fashion a rope from blankets, climb down it, and steal into the woods as well as to those who strangle a guard to obtain his key. We cannot conclude that those who commit nonviolent escapes such as those here suggested thereby perpetrate an offense which should logically serve as the basis for the imputation of malice aforethought in a murder prosecution.” (Id.)
Here, however, the evidence is clear that the escape was by force and violence in its inception within the jail. The escape continued uninterruptedly, and the degree and severity of the force and violence increased, throughout the officers’ immediáte and brief pursuit from the jail down a city street to the point at which defendant fatally shot one officer and. shot at another. The instruction on the second degree murder rule, given in the case at bench and quoted by the majority, did not in any way purport to imply malice from all escapes within the broad range of section 4532. Rather, the imputation was expressly limited to death proximately caused by defendant during his commission of “an escape with force or violence.” Thus “tardiness on the part of one engaged in a work furlough program” and a quietly successful stealing away from jail are excluded. Only escape by force or violence was permitted to be considered by the jury as implying malice. It seems indisputable that an escape by force and violence is an anti-social act and that it inherently and in the abstract is dangerous to life.
I am aware that, by footnote, Lopez declares that section 4532 “does not . . . create two separate offenses—i.e., nonviolent escape and violent escape.” (6 Cal.3d at p. 52, fn. 9.) The comment is, of course, unnecessary to the decision, which dealt only with an escape effected without force or violence. But section 4532 does clearly distinguish between those escapes effected by force or violence and those which are not. The state prison term for escape without force or violence is one year and one day, while that for escape by force or violence is “not exceeding 10 years.” Moreover, a violation of section 4532 “not by force or violence shall not be charged as a prior felony conviction in any subsequent prosecution for a public offense.” Thus, the code section itself distinguishes between the minor and the major offenses covered by its broad scope.
Here, the trial court limited application of the second degree murder-felony rule to the “commission of an escape with force or violence.” Thus *726the basic tenet of Lopez is absent here. The nonviolent escape, although made an offense within the broad scope of the section as a whole, is eliminated. Only the violent escape, recognized by section 4532 as the more serious and more severely punishable crime, is postulated as the basis for the finding of second degree murder. However abstractly the issue is considered, I find no error in instructing that an unlawful killing which occurs as a direct causal result of an escape by force and violence is second degree murder.
Even if Lopez were applicable, however, it only establishes that the second degree murder-felony instruction was erroneous. It does not, under the particular facts of this case, determine the question of prejudice. The majority holds that the instruction was prejudicial because under it “jury consideration of the application of defendant’s diminished capacity defense to the existence of malice, the element which distinguishes murder and either voluntary or involuntary manslaughter, was precluded.” I cannot agree. It is quite true that implied malice cannot be found if the defendant’s capacity were so diminished as to preclude “awareness of the obligation to act within the general body of laws regulating society.” (People v. Conley, 64 Cal.2d 310, 322 [49 Cal.Rptr. 815, 411 P.2d 911].) Here, however, defendant’s own testimony negates an absence of such awareness. As the majority notes, defendant testified that he took the gun in a “reflex action,” “realized as soon as he took the gun that it was wrong to have done so and therefore fired into the air.” He testified that the second officer grabbed defendant’s gun hand, forcing the gun to discharge a second time, and that this second bullet struck Officer Klass. This testimony evinces a clear and present awareness of his obligation to act within the general body of the law regulating society. His testimony that he therefore fired the first shot into the air establishes his recognition that firing at Officer Klass would endanger human life. The only fact issue remaining was whether he had voluntarily pulled the trigger for the shot that killed Officer Klass, or whether Officer Van Pelt’s grasping of his hand caused the gun to discharge the fatal bullet. The jury obviously resolved that issue against him. Thus his own testimony contradicted the present claim of diminished capacity as negating implied malice. It follows, as the majority holds as to the claimed defenses of unconsciousness, heat of passion, and self-defense, that defendant’s own testimony left no factual basis for a Conley instruction and precluded reliance on the theory that he was unable to comprehend either the “prohibition of acts dangerous to human life,” or “the obligation to conform to the law.” The conclusion of the defense psychiatrist as to defendant’s mental capacity at the moment of the shooting obviously was based upon his out-of-court interview with defendant, and *727the latter’s statements to him at that interview. But defendant’s own testimony before the jury completely removed the basis for the expert’s conclusion.
The majority adheres to that portion of the Modesto rule that “defendant’s right to a manslaughter instruction when there is evidence thereof precludes not only our weighing that evidence to determine the likelihood that a properly instructed jury would have found manslaughter, but also our attempting to determine how the failure to present the issue of manslaughter to the jury may or may not have influenced its choice between first and second degree murder.” (59 Cal.2d at p. 731). It is apparently upon a somewhat extended application of that rule that the majority finds prejudice in the claimed removal from jury consideration of the issue of malice. Since defendant’s own testimony left no factual basis for the finding which would warrant a manslaughter verdict, no issue of importance to defendant was removed from the jury by the instruction upon escape with force or violence as invoking the second degree murder-felony rule.
The majority now overrules Modesto insofar as it holds that failure to instruct upon a lesser included offense is prejudicial per se. The majority opinion makes clear that it does look to the evidence, which it summarized at some length, to conclude that there was no prejudice in the court’s failure to instruct upon unconsciousness, heat of passion, and self-defense. I am entirely unable to distinguish in this respect between looking to the evidence to find whether omission of an instruction (which necessarily “precludes” jury consideration) was prejudicial,, and looking to' it to find whether prejudice inhered in an affirmative instruction which “precludes” jury consideration. The effect, in either case, is the same, and if the evidence is to be looked to in the one case, it is equally logical to do so in the other.
The constitutional provision (Cal. Const., art. VI, § 13, formerly § 4½), proscribes the reversal of a judgment “in any cause, on the ground of misdirection of the jury . . . unless, after an 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.” It is arguable that this language does not authorize a reweighing by the court of many types of conflicting evidence. Here, however, the defendant (unlike the Modesto defendant) did testify. His testimony completely eliminated all factual support for the conclusion of the psychiatrist. In this unusual situation, conflict, if any, is so minimal and the determination of the jury so apparent from review of the evidence and from its unanimous verdict, that it seems to me a clear flouting of section 13 to refuse to look to the *728evidence given by defendant in deciding whether he was prejudiced by the instruction.
I would affirm the judgment.
McComb, J., and Burke, J., concurred.
Assigned by the Chairman of the Judicial Council.