I concur with the majority’s conclusions that proof of the prior crimes was properly admitted and that, although under People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], it was error to admit evidence of defendant’s confession to the prior crimes, the error was not prejudicial.
However, I disagree with the majority as to both the scope of the Griffin v. California, 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229] error and whether it was prejudicial.
The trial court instructed the jury in the language of former CALJIC No. 30 to the effect that it could be inferred from defendant’s silence or evasive replies in the face of accusations that he admitted the truth of such accusations.1
The majority state, "The only evidence in the record to which the instruction could have related was that concerning conversations with police officers which occurred after defendant had been identified as one of the robbers at a showup.”. Police Officer Savage testified: During a conversation with defendant concerning the robberies charged, after defendant had been advised of his rights to counsel and to remain silent pursuant to People v. Dorado, supra, 62 Cal.2d 338, defendant stated “that he would like to tell us all about it, but he wanted to see the evidence that we had against him at the preliminary hearing, first.” (Italics added.) Defendant also stated during the same conversation he felt his chances for eventual release would be improved if he ivithheld informa*259tion regarding “all the offenses that he had committed recently’’ (italics added) from the police and instead related it to the Adult Authority parole hoard. Defendant further stated that he wished to talk to McDowell before making any statement because he had pleaded guilty the last time he had been arrested “and [had] been used against his crime partner, McDowell, at that time, and ... he didn’t think that that was a proper way of doing things and he didn’t want to be involved in this manner again.” Defendant refused to respond to questions concerning the location of the getaway car in the May Company robbery, and he never denied taking part in the robberies charged nor did he expressly admit committing any of those robberies.
The italicized statements contain admissions by defendant that were not inadmissible under Griffin v. California, supra, 380 U.S. 609. Prom the former italicized statement, in light of its context, it might be inferred that defendant had knowledge of the robberies charged and the latter italicized statement, in light of its context, might be understood as an admission by defendant that he had committed some or all of the robberies.
Griffin v. California, supra, “held that the California constitutional provision permitting comment on the failure of the defendant to testify (Cal. Const., art. I, § 13) was unconstitutional because it violated the Fifth Amendment privilege against self-incrimination made applicable to the states in Malloy by the Fourteenth Amendment. Griffin declared (at p. 614 [14 L.Ed.2d at p. 109]) that such comment ‘is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. ’ The rationale of Griffin implicitly proscribes drawing an inference adverse to the defendant from his failure to reply to an accusatory statement if the defendant was asserting his constitutional privilege against self-incrimination. ’ ’ (People v. Cockrell, 63 Cal.2d 659, 669-670 [47 Cal.Rptr. 788, 408 P.2d 116].)
However, where the defendant, instead of exercising his privilege against self-incrimination, makes statements containing admissions nothing in Griffin bars those statements. As previously pointed out, some of the statements held by the majority to be inadmissible under Griffin contain such admissions.
I agree with the majority that apart from such admissions the evidence in question was inadmissible and the giving of *260the instruction and connnent by the prosecutor were improper.
However, in my opinion the prosecution has met its burden of proving beyond a reasonable doubt that the error was harmless. (Chapman v. California, 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824].) Although the improperly admitted evidence, in light of the instruction, permitted an inference that defendant admitted his guilt and also tended to impeach his credibility, other properly admitted evidence constituted clear and convincing proof of his guilt and impeached his credibility.
Three eyewitnesses (one to each of the robberies charged) positively identified defendant as one of the robbers,2 and other eyewitnesses gave supporting testimony. Also, defendant admittedly committed 10 to 15 prior robberies with McDowell in 1962. He and McDowell admittedly escaped from prison together about a month before the November 28, 1964, robbery and thereafter lived together until about a week before that robbery. In addition there was evidence that defendant made the admissions recited above to Police OfScer Savage, and Deputy Sheriff Varner testified that, after Savage’s conversation with defendant, Varner told defendant, “It is our understanding that you neither acknowledge or deny your implication in the May Company robbery” and that defendant replied, “If I see they have enough at the preliminary, I will probably go for it.” The prosecution also introduced proof that defendant, although unemployed, had spent sums of money aggregating over $15,000 during the period between the charged robberies and his apprehension.
Although defendant claimed that the $15,000 was the result of the 1962 robberies, he was unable to specify the exact location or name of many of the places robbed and admitted that he had previously accounted to his wife for his ability to spend large sums of money by stating that he had inherited it. He sought to establish an alibi and denied or attempted to *261explain away the admissions testified to by Police Officer Savage and Deputy Sheriff Varner but his testimony was impeached by, among other things, proof of a prior felony conviction. Evidence of other defense witnesses was similarly impeached by proof of their relationship to defendant. Also, Officer Harris testified that, a few days before McDowell testified that one Edwards rather than defendant was his partner in the robberies charged, McDowell sent for Harris and said that since the officers had been "square” with him he would give them some information, that he was "going to have to say that [defendant] is innocent” because McDowell was going to prison and if he told the truth he would be known as a "fink” or "stoolie,” would have to be placed in a security area in prison for his own protection, and did not want to serve his time under these conditions. McDowell denied having made the statements attributed to him by Harris, but McDowell’s testimony was impeached by proof that he had been convicted of five felonies.
Prom my examination of the record I believe that the Griffin error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18.) Accordingly, I would affirm the judgment.
McComb, J., and Mosk, J., concurred.
Former CALJIC No. 30 read: “If you should find from the evidence that there was an occasion when' the defendant, under conditions which fairly afforded him an opportunity to reply, failed to make denial [, or made false, evasive or contradictory statements,] in the face of an accusation, expressed directly to him or in his presence, charging him with the crime for which ho now is on trial or tending to connect him with its commission, and if you should find that he heard the accusation and understood its nature, the circumstances of his silence [and conduct] may be considered against him as indicating an admission that the accusation thus made was true. Evidence of such an accusatory statement is not received for the purpose of proving its truth, but only to explain the conduct of the accused in the face of it; and unless you should find that his conduct at the time indicated an admission that the accusatory statement was true, you should entirely disregard the statement. ’ ’
Various observations of these witnesses lead to their identification of defendant. For example, a department store manager at J. G. Penney Co., testified that he got a “good look” at defendant during the November 28, 1964, robbery when he grabbed defendant’s arm and looked “right up into his face’’ for several seconds after defendant’s bandana fell down when he came toward the witness, • that thereafter during the robbery he saw defendant from a distance of about six feet for maybe a minute or two, that the robbery lasted about 20 minutes, and that, in addition to his having observed the robber’s face, a number of matters such as the robber’s voice, which had a ‘‘ theatrical roll, ’ ’ his manner of walking ‘ ‘ leaning forward a little, with the shoulders bent forward, ’ ’ and his smooth hands enabled the witness at a lineup to identify defend- ' pnt as the robber.