The defendant was convicted of eight felonies. The majority affirm seven counts and reverse as to one. I concur in that reversal, but not in the reasons given for it. For reasons hereafter stated I believe all eight counts should be reversed.
The majority opinion fairly states the facts. As there appears, defendant was found in possession of various items of property that had recently (from two days to two months prior to the discovery) been taken from the owners without their consent. Defendant was then charged with two counts of unlawfully taking an automobile (Veh. Code, § 10851), five counts of burglary (Pen. Code, §§459, 460), and one count of grand theft (Pen. Code, § 487, subd. 1). He was convicted on all eight. The majority reverse the grand theft conviction, and affirm as to the seven others. As to several of these seven counts, in addition to evidence that the properties involved had been unlawfully taken by someone from the possession of the respective owners, and that the properties were found in the possession of the defendant shortly thereafter, there was other evidence tending to connect defendant to these crimes. This other evidence was either in the form of admissions or consisted of false statements by the defendant as to how he acquired possession. As to these counts, as the majority opinion correctly points out, it has long been held in California that admissions or false explanations sufficiently corroborate the inferences arising from defendant’s possession of property recently stolen so as to warrant a conviction (People v. Ransome, 180 Cal.App.2d 140, 146 [4 Cal.Rptr. 347]; People v. Russell, 120 Cal.App. 622, 625 [8 P.2d 209] ; People v. Scott, 66 Cal.App. 200, 203 [225 P. 767]). But as to several of the counts, the only evidence introduced by the prosecution in an attempt to connect defendant with the crimes was unexplained possession of recently stolen property.
It has long been the rule in California that evidence of possession of recently stolen property is not, standing alone, sufficient evidence to sustain a conviction. In other words, possession of recently stolen property must be corroborated. (People v. Citrino, 46 Cal.2d 284, 288 [294 P.2d 32], and *785cases cited.) Although not purporting to do so, the majority-opinion, in fact, reverses that sound rule of law. The majority state the new rule to be, “Where recently stolen property is found in the conscious possession of a defendant who, upon being questioned by the police . . . remains silent under circumstances indicating a consciousness of guilt, an inference of guilt is permissible. ...”
By including the phrase “circumstances indicating a consciousness of guilt” the majority imply that something is being added to proof of possession, but in fact nothing is added at all. This is so because the “circumstance” relied on to indicate guilt is silence on the part of defendant. Thus, by this pronouncement the majority are in fact stating that possession of recently stolen goods is alone sufficient to sustain a conviction of burglary unless the accused proves his innocence. To add to possession a negative factor, failure to explain, in fact adds nothing. Failure to explain is just another way of stating that unless the explanation proves innocence the defendant may be found guilty. It is obvious that when a defendant is found in possession of recently stolen goods he either explains his possession or he does not. He either talks or remains silent. If he talks and gives a false explanation he may be found guilty. Of course, if he gives a true explanation that implicates him, he has confessed guilt. If he gives a true explanation that exonerates him, he has proven his innocence. Or he may remain silent. These are the only possible alternatives. The only one that does not sustain a conviction, according to the majority, is where he proves his innocence. Thus, what the majority are really saying is that recent possession of stolen goods, standing alone, is sufficient to sustain a conviction, unless the defendant takes the initiative and proves his innocence. Thus the old well-settled rule that possession alone is not sufficient has been effectively abolished.
People v. Chambers, 18 Cal. 382, was the first case in California to hold that the possession of stolen property is insufficient, in itself, to sustain the conviction. In that ease, the trial court had instructed the jury that if “. . . the defendant was afterwards found in possession of a part of the property stolen, you may find therefrom that he is guilty . . .” of larceny. In reversing the conviction because of this erroneous instruction, the court stated, at page 383, the rationale behind the rule that possession alone is insufficient to convict: “It is well settled that the possession of the fruits of a crime is a *786circumstance to be considered in determining the guilt of the possessor, but the authorities seem to hold that this circumstance is not of itself sufficient to authorize a conviction. ‘The real criminal . . . may have artfully placed the article in the possession or on the premises of an innocent person, the better to conceal his own guilt; or it may have been thrown away by the felon in his flight, and found by the possessor, or have been taken from him in order to restore it to the true owner, or otherwise have come lawfully into his possession. ’ . . . Our sense of justice would revolt at the idea of convicting a person under such circumstances; but it is obvious that if the mere possession is sufficient to convict, the innocent are as likely to suffer as the guilty. There are many cases in which an explanation would be impossible; and in such cases to throw the burden of explanation upon the accused would be to slam the door of justice in his face. ... ‘It will be necessary . . . for the prosecutor to add the proof of other circumstances indicative of guilt in order to render the naked possession of the thing, available toward a conviction. ’ ” Not only does this case hold that possession alone is insufficient 'for a conviction, but it properly equates naked possession with unexplained possession by stating that if possession alone is sufficient, in effect, the burden is placed upon the accused to explain.
Following the Chambers case, there have been numerous decisions upholding as a correct statement of the law to be included in jury instructions that possession alone is not enough to sustain a theft conviction. In addition to the cases disapproved by the majority, the following cases announce the disapproved rule: People v. Rodundo, 44 Cal. 538; People v. Beaver, 49 Cal. 57; People v. Clough, 59 Cal. 438; People v. Fagan, 66 Cal. 534 [6 P. 394] ; People v. Wilson, 135 Cal. 331 [67 P. 322]. In addition, there are numerous cases in which this rule has been indirectly recognized. (See People v. Russell, 34 Cal.App.2d 665, 669 [94 P.2d 400] [“It is true that mere possession of property stolen in a burglary recently committed is not sufficient of itself to warrant a finding that the accused committed the burglary . . .”] ; People v. Russell, supra, 120 Cal.App. 622, 625 [“It is also the law that to warrant the conclusion that the accused is guilty of a transaction involving the theft of stolen property there must be, in addition to its possession by the defendant shortly after the commission of the crime, corroborating circumstances . . .”] ; People v. McClain, 115 Cal.App. 505, 508 [1 P.2d 1085] [“It *787has long been the rule that possession of stolen property by a defendant, however soon after the crime was committed, is not in itself sufficient evidence upon which to base a verdict of guilt”]; People v. Taylor, 4 Cal.App.2d 214, 217 [40 P.2d 870] [“. . . it is true that the mere possession of stolen property is not sufficient to connect a defendant with the perpetration of the burglary in which the property was taken . . .”] ; People v. Citrino, supra, 46 Cal.2d 284, 288 [“Possession alone of property stolen in a burglary is not of itself sufficient to sustain the possessor’s conviction of that burglary”] ; People v. Wells, 187 Cal.App.2d 324, 328 [9 Cal.Rptr. 384] [“ [defendants’ possession of stolen property] constitutes some evidence that they were the burglars but would not be sufficient, standing alone, to sustain a conviction of burglary”] ; People v. Ransome, supra, 180 Cal.App.2d 140, 146. See also 1 Wharton, Criminal Evidence (12th ed. 1955) § 135, p. 256. In accord, 2 Wharton, Criminal Law and Procedure (Anderson ed. 1957) § 411, p. 31. Fricke states that under California law while evidence of possession of stolen property is admissible, “The mere possession of stolen property is not . . . sufficient of itself to justify a conviction. ...” (Fricke, California Criminal Law (8th ed. 1961) p. 253).)
The rule announced by the majority deprives the defendant of several constitutional and statutory rights. Our state Constitution (art. I, § 13) provides that a defendant cannot be compelled “in any criminal ease, to be a witness against himself” but his failure to explain “the case against him” may be commented upon. (See also Pen. Code, §§ 688, 1323, 1323.5.) The right to remain silent is fundamental. The only limitation is that silence may be commented on when the prosecution, in court, has first made out a ease against the accused that he should deny. (People v. Talle, 111 Cal.App.2d 650, 664 [245 P.2d 633]; People v. Sawaya, 46 Cal.App.2d 466, 471 [115 P.2d 1001].) The majority opinion, by the adoption of this new rule, has quite effectively shifted the burden of proof from the prosecution to the defendant. No longer is such a defendant clothed with the presumption of innocence. Now, in such a situation, the defendant may be presumed guilty unless he proves his innocence. This is so because the majority place on the defendant the positive duty to speak when arrested (long before any “case” has been proved against him). The Constitution (art. I, §13) *788provides, in part: “In criminal prosecutions, in any court whatever, the party accused” shall not be compelled “to be a witness against himself; . . . but in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.” Thus the Constitution itself fixes the extent to which failure to explain adverse testimony shall affect the defendant—it may be commented on by the prosecution and considered by the court and jury. Such failure to explain, however, is not alone sufficient to convict—it merely strengthens the credibility of the prosecution’s evidence, or weakens the credibility of the defense case. But now we find that failure to explain, even at the time of arrest, is sufficient to convict. As already pointed out, such a rule violates the constitutional and statutory safeguards of those accused of crime. There is no legal duty on anyone to explain anything to an arresting officer or to cooperate with the prosecution. As was said in People v. Talle, supra, 11 Cal.App.2d 650, 664:
“Under a proper interpretation of these quoted provisions, an accused has the right to stand mute, clothed in the presumption of innocence, until the prosecution, at the trial, has made out a prima facie case against him. Until that has been done, it is improper to even comment on his silence.” A “prima facie case” means one that contains all the elements of the offense. Thus, the duty to speak does not arise until such a prima facie case has been proved against him. The majority say that defendant must speak at the time of arrest or at the time of trial before a “prima facie case” has been established.
The majority have fallen into the error of holding that the failure to explain incriminating evidence and suspicious circumstances justifies an inference of guilt. The inference arising from silence may corroborate prosecution evidence in the record or it may serve to discredit any defense evidence that may be in the record. But the inference cannot itself supply a deficiency in the proof. This is most clearly illustrated in those cases where the prosecution has produced an accomplice of the defendant and he testifies as to all elements of the crime and implicates the defendant. The accomplice’s testimony must be corroborated (Pen. Code, § 1111), just as the fact of possession of recently stolen goods must be corroborated. It has long been settled law that even though *789the accomplice testifies to every element of the crime, the failure of the defendant to explain this testimony "before the grand or trial jury, although such failure may be commented on, cannot itself constitute sufficient corroboration. In other words, failure to explain is not sufficient corroboration.
In the frequently cited case of People v. Sawaya, supra, 46 Cal.App.2d 466, two accomplices made complete confessions before the grand jury and at the time of trial. Their stories implicated the defendant as one of the culprits. The defendant offered no testimony either before the grand or trial jury. He kept silent. Justice White, then on the District Court of Appeal, pointed out that the corroborating evidence must do more than merely create a suspicion, citing People v. Kempley, 205 Cal. 441 [271 P. 478], and People v. Davis, 210 Cal. 540 [293 P. 32]. The corroborating evidence must, independent of other evidence, he said, directly connect the defendant with the crime charged. The prosecution contended that the silence of defendant, in the face of the inculpatory evidence of the accomplices, constituted sufficient corroboration. In reply to this argument it was stated (at p. 471) :
“While conceding that ‘the corroborating evidence is slight,’ the attorney general argues that when taken in connection with the fact that at the trial appellant availed himself of his constitutional prerogative (see. 13, art. I, Const.), and did not take the witness stand to deny either the accusations of the accomplices or the slight corroborative evidence, the latter measures up to the standards prescribed by section 1111, Penal Code. The fact that the constitutional provision provides that in a criminal case, whether or not the defendant testifies, his failure to explain or deny by his testimony any evidence or facts in the case against him may be commented upon by the court or counsel and may be considered by the court or the jury, does not deprive a defendant of his right to stand mute, nor does it relieve the prosecution of the burden of establishing his guilt beyond a reasonable doubt, and by competent and legal evidence. The exercise by a defendant of his constitutional privilege to remain silent and demand that the people make the ease against him beyond a reasonable doubt, does not of itself directly and immediately tend to connect him with the commission of the crime charged against him. When a defendant chooses not to explain allegedly incriminatory circumstances of his guilt in the form of testimony offered in corroboration of testimony given by conceded accomplices, and when as a matter of law such corroborative *790evidence falls short of the quality and kind demanded by section 1111, Penal Code, this court is given no alternative but to set aside an ensuing conviction based thereon.”
Mr. Justice Traynor reviewed this very problem in several cases. In People v. Adamson, 27 Cal.2d 478 [165 P.2d 3], in discussing the failure of defendant to explain inculpatory evidence, and the effect of the constitutional provision giving the prosecution the right to comment on such failure, it was pointed out that silence in such a situation may support an inference that the testimony before the court is credible, but that the inference can add nothing to that evidence. The inference does not raise a presumption of guilt. At page 489 it was stated:
“It was never intended, of course, that the 1934 constitutional amendment should relieve the prosecution of the burden of establishing guilt beyond a reasonable doubt by admissible evidence supporting each element of the crime. (People v. Sawaya, 46 Cal.App.2d 466, 471 [115 P.2d 1001]; State v. Callahan, supra-, see Bruce, (One of the draftsmen of the American Bar Association resolution that preceded the adoption of the California provisions), The Bight to Comment on the Failure of the Defendant to Testify, 31 Mich.L.Rev. 226, 229, 231; 2 Wigmore, supra, 179; 4 Cleveland Bar Journal 12; 3 Jour, of Crim. Law and Criminology 770, 774.) Nor can the defendant’s silence be regarded as a confession,” and a case so holding was disapproved.
Again at page 490 it was stated, “The jury, however, is concerned with the scope and nature of the consideration that it may give defendant’s failure to explain or deny incriminating evidence, and in the present case should have been instructed that the defendant’s failure to deny or explain evidence presented against him does not create a presumption or warrant an inference of guilt, but should be considered only in relation to evidence that he fails to explain or deny . . . . ”
In his concurring opinion in People v. Albertson, 23 Cal.2d 550, 581 [145 P.2d 7], Justice Traynor pointed out that the prosecution must prove guilt beyond a reasonable doubt, and that the jury may not infer guilt from the failure of defendant to explain damaging testimony. In a Note in 32 California Law Review 317, at pages 318-319, referring to the Albertson case, it is stated: “The basic rule of the Anglo-American system of criminal procedure is that a man is assumed to be innocent until proven guilty. This ‘presumption of innocence’ means that guilt must be proved beyond a *791reasonable doubt, and the fact that the accused chooses to remain silent does not reverse this fundamental policy nor lessen the burden of proof necessary for a conviction . . . . [I]t is necessary before an inference of any kind arising from a failure to testify on the part of the defendant may be considered by the jury, that the evidence must be sufficient to take the case to the jury.”
In People v. Ashley, 42 Cal.2d 246 [267 P.2d 271], at page 268, after citing the Sawaya and Adamson cases with approval, Justice Traynor sums up the entire argument with the statement :“But the failure to testify will not supply a lacuna in the prosecution's proof” and again on the next page: “. . . the failure ... to testify is not affirmative evidence of any fact, and any inference that can, in the circumstance, be justly drawn therefrom is persuasive rather than probative, lending weight to the evidence presented by the prosecution. ’ ’
These cases establish beyond doubt that while failure to explain adverse evidence may raise an inference of credibility of the competent evidence already in the record, such inference cannot supply of itself evidence of guilt. In the accomplice situation, silence alone is not sufficient corroboration even though the accomplice has testified as to every element of the charged offense. But the majority here permit the inference from silence to supply missing evidence. Here, the only evidence before the jury was that certain property had been stolen by a person or persons unknown; that within two days and up to two months after the thefts defendant was found in possession of the stolen property. The missing link is the failure to prove that defendant broke into and entered a building and committed a theft therein. Those missing links are supplied, say the majority, by defendant’s failure to explain his possession, i.e., by his silence. As the above cases conclusively establish, the inference arising from failure to explain may, at most, reinforce the credibility of evidence already in the record, but it cannot itself supply any missing elements of the offense charged. (See People v. Simmons, 28 Cal.2d 699 [172 P.2d 18] ; 35 Cal.L.Rev. 128 where the effect of silence at time of arrest is discussed at length.)
The majority also rely on the accusatory statement rule. The validity of that rule has been questioned, and certainly the courts will not permit abuses of it. (See People v. Briggs, ante, pp. 385, 409 [24 Cal.Rptr. 417, 374 P.2d 257].) *792But there are exceptions to even that rule. One is stated by the majority as follows: “His silence cannot be used against him if it is based on a claim of right to which he is legally entitled.” In other words, if the defendant, in the face of accusatory statements, claims his legal right to remain silent no inference is permitted to be drawn from his silence. That is exactly what happened in the instant case. When questioned by the police, in addition to the admissions and false statements already mentioned, the defendant did not remain entirely silent as to the other items of property involved. The facts are correctly stated by the majority as follows: “The police questioned defendant about the property involved in the various counts, telling him it was stolen. He said that he did not want, to discuss the situation, that he was in ‘enough trouble already,’ and that the police could not help him.” (Italics added.) Certainly, defendant’s further silence was based on a “claim of right to which” he was legally entitled. Certainly, this informed the police that he was relying on his fundamental rights. This being so, even if the rule were as stated by the majority, which it is not, it would not be applicable to this case.
There is another important matter that should be discussed. The charges under discussion are charges of burglary. Burglary, of course, requires proof of an unlawful entry into a building with intent to commit larceny, or any felony (Pen. Code, § 459). There is no proof of these important elements of the crimes charged. The only facts proved, at most, are possession of recently stolen goods, and “silence” when questioned by the police. Assuming that some adverse inference can be indulged in from such silence, can that adverse inference be that defendant broke into and entered a building with intent to commit a prohibited crime therein ? Can the so-called inference arising from silence supply proof of the basic issue involved? Why does silence, even if defendant were under a duty to speak, which he was not, supply this fundamental defect in the proof ? If, when the property was stolen, an assault or murder had been committed, could defendant’s silence prove the specific intents required of those offenses ? Of course not. No rational basis exists for such an inference, and none exists as to burglary. There is, of course, at least one other crime that could be involved—knowing possession of stolen goods (Pen. Code, § 496 et seq.). According to the majority, the identical facts here proved could support-an inference of the commission of that crime. Thus, *793the same facts could support an inference of theft, burglary and knowing possession of stolen goods—each of which crimes requires proof of a specific intent, and in each of which the specific intent is quite different. How far can mere surmise and conjecture go? Apparently, the district attorney can now, under such circumstances, charge any one of these offenses at his mere whim or caprice, and may get a conviction without any proof whatsoever of the specific intent involved!
The majority in quoting from People v. Wells, supra, 187 Cal.App.2d 324, rationalize that there is a duty to speak because “it would have been so easy for him to speak if innocent.” The fundamental right to remain mute cannot be treated so cavalierly. Certainly, the new rule will make convictions easier. But the mere fact that a defendant could “easily” prove or disprove a fact, does not create a duty to do so. The presumption of innocence, and the right to remain silent, are not that fragile.
It should also be mentioned that the instructions were hopelessly confused. The jury was first instructed that: ‘‘The mere possession of stolen property, however soon after the taking, unexplained by the person having possession, is not sufficient to justify conviction.” This is the rule disapproved by the majority. The court then instructed that one found in possession of recently stolen property is “bound to explain such possession,” and if he does not, “such conduct is a circumstance that tends to show his guilt.” The majority hold that this last instruction embodies the new rule that unexplained possession is sufficient corroboration to justify a finding of guilt. Obviously, the two instructions are contradictory and inconsistent. If unexplained possession must be corroborated, it cannot be corroborated by the lack of an explanation. This error, however, if the majority are correct, favored the defendant. But if the first instruction is correct and the second wrong, as I believe, then defendant was prejudicially injured.
From what has been said, it is my opinion that as to those counts where the only corroboration offered by the prosecution was defendant’s failure to explain, the evidence is insufficient as a matter of law. As to those counts corroborated by false explanations or admissions the evidence is sufficient, but they too should be reversed, because, if I am correct, the instructions were hopelessly contradictory and prejudicially erroneous. There is no way of knowing whether the jury’s *794verdict was predicated on the corroboration, or on the failure to explain. This requires a reversal on all counts.
I would reverse the judgment in its entirety.
Appellant’s petition for a rehearing was denied December 19, 1962. Peters, J., was of the opinion that the petition should be granted.