I concur in the judgment of reversal, and in those portions of the majority opinion which are unrelated to the issue raised by the California comment rule. In that connection the majority hold that *455section 13 of article I of the state Constitution as amended in 19341 is not rendered unconstitutional by the decision of Malloy v. Hogan, 378 U.S. 1 [84 S.Ct. 1489, 12 L.Ed.2d 653]. I cannot agree with this conclusion, and dissent therefrom. In my opinion the prosecutor’s arguments and the trial court’s charge to the jury, all relating to the inferences to be indulged because defendant did not take the stand, violated his constitutional rights as now guaranteed him by the federal and state Constitutions.
In my opinion the majority in reaching their conclusion not only misinterpret the United States Supreme Court cases, and their impact on the California comment rule, but fail to consider the real impact of several California cases on the subject under discussion.
The majority concede that Malloy established the rule that the Fourteenth Amendment makes the Fifth Amendment privilege against self-incrimination binding on the states, and quote the Malloy language to the effect that “The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty .. . for such silence” (378 U.S. 1, 8).
In the face of this concession, however, the majority then hold that because of the narrow scope of the permission to comment in California—i.e., because the penalty for not testifying is not very great—such “comment does not conflict with the policies of the federal privilege against self-incrimination. ’ ’
I am unable to read into Malloy any inference that a slight penalty is “no penalty” at all. I am unable to subscribe to the theory that because the inferences to be drawn and commented upon are circumscribed, they do not affect “the unfettered exercise” of defendant’s will to remain silent. As a matter of fact, there is explicit language to the contrary in Johnson v. United States, 318 U.S. 189 [63 S.Ct. 549, 87 L.Ed 704] (cited in the majority opinion). There the high court said (at pp. 196-197) that “where the claim of privilege *456is asserted and unqualifiedly granted, the requirements of fair trial may preclude any comment. That certainly is true where the claim of privilege could not properly be denied. The rule which obtains when the accused fails to take the stand (Wilson v. United States, 149 U.S. 60 [13 S.Ct. 765, 37 L.Ed. 650]) is then applicable. . . . ‘ The claim of privilege and its allowance is properly no part of the evidence submitted to the jury, and no inferences whatever can be legitimately drawn by them from the legal assertion by the witness of his constitutional right. The allowance of the privilege would be a mockery of justice, if either party is to be affected injuriously by it.’ ” (Italics added.)
The majority attempt to distinguish Johnson on the ground that there the defendant had been misled as to the consequences of his reliance on the privilege. That, of course, does not explain the explicit holding above quoted. We as a state court, on federal constitutional questions, are bound by the unqualified language of the United States Supreme Court to the effect that where, as here, the privilege against testifying could not have been denied, fair trial precludes “any comment” thereon or the invitation to draw “any” inference therefrom.
The majority conclude with the assertion that the comment allowed by the California rule does not place before the jury anything not already within its general store of knowledge— that is that the jurors as knowledgeable persons are aware that one capable of testifying in rebuttal of incriminating evidence will ordinarily do so. Therefore, it is asserted, neither harm nor injury can occur by reminding them of that fact.2 That is to assert that the 1934 amendment accomplished nothing at all. But it accomplished a great deal, because, as will be later pointed out, it was necessary to pass it to change the then existing California law which prohibited any comment at all.
The majority opinion argues at some length that Malloy did not, by implication or otherwise, overrule Adamson v. California, 332 U.S. 46 [67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223], which affirmed this court’s holding in People v. Adamson, 27 Cal.2d 478 [165 P.2d 3], on the theory that *457under then existing law the Fifth Amendment, not then being binding on the states, did not prohibit the comment permitted by the 1934 amendment.
The majority opinion concedes that Malloy overruled Adam-son insofar as it held that the Fifth Amendment was not binding on the states. It is now the law, since Malloy, that the states are bound, via the Fourteenth Amendment, by the provisions of the Fifth Amendment. When Adamson was decided by the Supreme Court this was not the law. Thus Adamson could not, and did not, discuss the question with which we are concerned. Adamson did not hold the California comment rule was consistent with the provisions of the Fifth Amendment, but held simply that the validity of the rule was not to be tested by the provisions of that amendment. Thus, it is obvious that the portions of Adamson not overruled by Malloy are not and cannot be determinative of the issue before us now. What is now left of Adamson is merely the holding that this court did not err in holding that the California comment rule did not violate the California Constitution. But that is not the problem here involved. The question now before us, not decided in Adamson, is whether our state constitutional provision may stand in view of the federal mandate. To determine that question we need only refer to the unchallenged rule in California prior to the adoption of the 1934 amendment.
As already pointed out, long before 1934 the California Constitution provided, and now provides, in the identical language of the Fifth Amendment, that no defendant in a criminal case shall be compelled to be a witness against himself (see fn. 1). Before the 1934 amendment to that section, in a long line of cases, this court interpreted the state-conferred constitutional immunity (which is identical to the Fifth Amendment) to prohibit any comment whatever on the defendant’s failure to take the stand. This long line of eases is in fact being overruled by the majority opinion.
The first case to interpret the original constitutional provision similar to the Fifth Amendment was People v. Tyler, 36 Cal. 522, 530. Prior to Tyler, a defendant in a criminal action was incompetent as a witness. California then adopted a statute (now Pen. Code, § 1323.5) making a defendant competent at his own request. In Tyler, the prosecution successfully claimed in the trial court that failure to take the stand and deny testimony presumably within his knowledge gave rise to inferences adverse to the defendant. This court *458reversed and held that the policy of the recently adopted statute making defendant, at his request, competent was simply to allow the defendant to rebut evidence against him if he so desired, but not to compel him to take the stand, or to suffer adverse inferences. It was further held that any such policy would be violative of the privilege against self-incrimination contained in the California Constitution if his failure to testify were used to support “an inference unfavorable to him” (36 Cal. at p. 528).
Thereafter, Tyler was followed without exception until, 65 years later, in 1934, the California Constitution was amended to authorize comment on defendant’s failure to testify. These cases establish without question that under the old law (now binding on California via the Fifth Amendment) defendant’s failure to testify could not be used in any manner to prejudice him.3 ****8
People v. Albertson, supra, 23 Cal.2d 550, referred to in the footnote, is of particular interest because there Chief Justice Traynor (then Justice Traynor) in his concurring opinion said (at p. 584) : “Before the constitutional amendment it was error to comment on the defendant’s failure to take the stand or to advise the jury that it could draw inferences unfavorable to him on that account. (People v. Tyler, 36 Cal. 522.) The constitutional amendment changes the rule of the Tyler case and permits such comment but does not do more.” He then went on to hold that the comment of the prosecutor in Albertson went beyond that allowable under the constitutional amendment.
Under these cases, it is perfectly clear that prior to the 1934 amendment the then existing constitutional privilege against self-incrimination prohibited any comment about de*459fendant’s failure to take the stand. No inference of any kind unfavorable to him could be predicated on such failure. Now, since Malloy, the state is bound by the provisions of the Fifth Amendment which is framed in language identical to that used in the California Constitution prior to its amendment. A fortiori, therefore, the present rule in California is now the same as the rule that existed in California before 1934. It is that rule that the majority opinion so cavalierly disregards and necessarily overrules.4
Some reference should be made to this court’s decision in People v. Adamson, supra, 27 Cal.2d 478, written by Justice Traynor, which upheld the constitutionality of the 1934 amendment under the California Constitution. In that case this court did not then hold, as it attempts to do today, that there was no conflict between the privilege against self-incrimination and the right to comment on the exercise of that privilege. Quite to the contrary it carefully and correctly held that such a conflict existed but that the state, by the 1934 amendment, had qualified that right. At page 487 this court then stated: “The practical effect of the 1934 amendment may be that many defendants who otherwise would not take the stand will feel compelled to do so to avoid the adverse effects of the comments and consideration authorized by the amendment. . . . Such a coercive effect, however, is sanctioned by the amendment, which, being later in time, controls provisions adopted earlier.” It will be noted that there this court characterized the comment rule as constituting a “compelling” waiver of the privilege and as having a “coercive effect” upon a defendant who desired to avail himself of the privilege. Today the court characterizes the comment rule as imposing but an inconsequential penalty.
From the foregoing it follows that, unless the majority are willing to overrule People v. Tyler, supra, 36 Cal. 522, and the many cases following it, and People v. Adamson, supra, 27 Cal.2d 478, there is no alternative but to hold that the California comment rule creates a compulsion upon a defendant “who otherwise would not take the stand” and has a “coercive effect.” The contrary rule adopted by the majority does not permit a defendant “to remain silent unless he *460chooses to speak in the unfettered exercise of his own will.” Malloy informs us that such a defendant is “to suffer no penalty . . . for such silence.” The majority rule authorizes the court and prosecutor to invite the jury to indulge in those inferences which Johnson holds would constitute a “mockery of justice.” Thus, in my opinion, the comment rule is unconstitutional. That being so it was error to permit such comment.
Were it not for the other errors pointed out in the majority opinion which require a reversal, the error under discussion, however, might not necessarily require a reversal. In my opinion the beneficent provisions of section 4% of article VI of our state Constitution are applicable to such error.
It is urged that that section is not applicable to errors involving due process under the Fourteenth Amendment. In this connection reliance is had upon some very strong language to that effect in such cases as People v. Kiihoa, 53 Cal.2d 748, 752 [3 Cal.Rptr. 1, 349 P.2d 673]; People v. Modesto, 59 Cal.2d 722 [31 Cal.Rptr. 225, 382 P.2d 33]; People v. Muza, 178 Cal.App.2d 901 [3 Cal.Rptr. 395]; and in Witkin, California Criminal Procedure (1963) 733-734. Comfort is also found in the language of such federal decisions as Rogers v. Richmond, 365 U.S. 534 [81 S.Ct. 735, 5 L.Ed.2d 760]; Jackson v. Denno, 378 U.S. 368 [84 S.Ct. 1774, 12 L.Ed.2d 908], and similar cases dealing with the admission of involuntary confessions. The language of these and other authorities, when separated from the problem there under discussion, appears to support the proposition that whenever the error is predicated upon constitutional grounds and results in the denial of a fair trial (due process under the Fourteenth Amendment) it is reversible per se, and the resulting judgment is not saved by the fact that the error was not prejudicial. However, when such authorities are viewed together with those which have failed to reverse in the presence of acknowledged constitutional error, it becomes apparent that those requiring reversal per se comprise a specific class, dealing with the admission of coerced confessions or evidence obtained by brutality or other conduct shocking to the sensibilities. Other authorities (both federal and state) indicate that in many other situations the courts have held error which constituted a denial of due process to have been nonprejudicial and hence nonreversible.
Looking first to the federal rule, the authorities relied upon dealt either with the use of a coerced confession or evidence *461obtained by similar coercion, force or brutality. They are the cases that adopted the so-called “exclusionary rule.” That rule requires the absolute exclusion of evidence obtained in the manner indicated, as well as all evidence which is the product thereof (“fruit of the poisoned tree”), and likewise requires reversal if such confession or evidence has not been excluded. On the other hand, Malloy (which is the cause of our present reexamination of the rule) gives no hint that the highest federal court considers every violation of due process to be prejudicial per se. Many prior decisions of the United States Supreme Court indicate that it will not reverse for every acknowledged constitutional error, some of which dealt with error of the type alleged herein. In Snyder v. Massachusetts, 291 U.S. 97 [54 S.Ct. 330, 78 L.Ed. 674, 90 A.L.R. 575], it was held that the absence of defendant during the proceedings against him would constitute a denial of due process. However, the court refused to reverse because the defendant was absent from such a minor portion of the proceeding that no prejudice resulted. Justice Cardozo, speaking for the court, said (at pp. 106-108) : “Nowhere in the decisions of this court is there a dictum, and still less a ruling, that the Fourteenth Amendment assures the privilege of presence when presence would be useless, or the benefit but a shadow. ... So far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” It appears that in Snyder the high court applied to acknowledged constitutional error the same test required by our state constitutional provision prohibiting reversal in the absence of a miscarriage of justice.
In Johnson v. United States, supra, 318 U.S. 189, the court held that comment on the defendant’s reliance on his privilege against self-incrimination was error, but failed to reverse because the error had been waived. That was not tantamount to affirmance because the error was nonprejudicial, but indicates that denial of due process is not always reversible per se.
In Wilson v. United States, 149 U.S. 60 [13 S.Ct. 765, 37 L.Ed. 650], the court reversed because of the prosecutor’s comment on defendant’s failure to take the stand as a witness. There the court held the comment to be error because of a federal statute requiring that no presumption shall be created against defendant by reason of his decision not to testify, and *462therefore was not required to rely on the constitutional provisions. However, the following language (at p. 70) is persuasive herein: 11 ‘We do not see how this statute can be completely enforced, unless it be adopted as a rule of practice that such improper and forbidden reference by counsel for the prosecution shall be regarded good ground for a new trial in all cases where the proofs of guilt are not so clear and conclusive that the court can say affirmatively the accused could not have been harmed from that cause.’ ” (Italics added.) While the closing clauses of the foregoing quotation may be less liberal than our Watson rule (People v. Watson, 46 Cal.2d 818, 836 [299 P.2d 243]), it conclusively demonstrates that, in the field of illegal comment, the United States Supreme Court has in the past been mindful of the fact that error may be nonreversible when the circumstances show it to be nonprejudicial. For similar reasoning by the lower federal courts, see Coleman v. Denno (D.C.S.D.N.Y. 1963) 223 F.Supp. 938, affirmed in United States v. Denno (2d Cir. 1964) 330 F.2d 441; United States v. Di Carlo (2d Cir. 1933) 64 F.2d 15.
Turning now to the California authorities, even more cause exists to adhere to the dictates of section 4% of article VI of our state Constitution. Prior to the 1934 amendment authorizing comment on a defendant’s failure to testify as a witness, as already pointed out, such comment was violative of the defendant’s constitutional privilege against self-incrimination. But, during that period, it was the uniform rule that such comment, although erroneous, did not require reversal if, under the circumstances of the case, it was not prejudicial (People v. Mayen, supra, 188 Cal. 237, 259.)5 A similar, although not identical issue was presented in People v. O’Bryan, 165 Cal. 55 [130 P. 1042], wherein the court held that defendant’s previous testimony before the grand jury had not been voluntary, and for that reason it was error to allow evidence of that previous testimony to be produced at trial. However, conviction was affirmed on the ground .that the error was not prejudicial.
Subsequent to the 1934 amendment authorizing comment on the defendant’s failure to testify there was no cause for the courts to pass upon the prejudicial or nonprejudicial *463nature of a procedure which was no longer erroneous. However, the introduction of, or comment upon, defendant’s previous testimony before the grand jury was presented on several occasions. In People v. Kynette, 15 Cal.2d 731, 749-751 [104 P.2d 794], it had been held that a defendant who had voluntarily testified before the grand jury as to some matters, but who had refused to answer other questions on the ground of self-incrimination, and who voluntarily testified at his trial, might be impeached by cross-examination as to the inconsistency between his exculpatory testimony at trial and his alleged basis for claiming privilege before the grand jury.6 The opinion pointed out the limited purpose for which such evidence might be introduced. Shortly thereafter, a similar problem was presented in People v. Montgomery, 47 Cal.App.2d 1 [117 P.2d 437], There the court was bound by Kynette to hold the introduction of the matters which transpired before the grand jury to have been admissible for the limited purpose of impeachment. However, the court found error in the fact that the prosecutor was allowed to comment on the evidence for the purpose of drawing the inferences beyond that specific limitation. That error, however, was held to have heen nonprejudicial, the court stating (at p. 21) that “it does not follow that every invasion of even a constitutional right necessarily requires a reversal, ...” (Citing People v. O’Bryan, supra, 165 Cal. 55, 60.)
Erroneous denials of constitutional guarantees other than those arising out of the Fifth Amendment (but many which were held to have constituted a denial of due process) have consistently been held not to require reversal when not prejudicial. A few examples are set forth:
(a) Error arising out of the absence of defendant from a portion of the proceedings—People v. Isby, 30 Cal.2d 879, 894 [186 P.2d 405]; People v. Daniels, 85 Cal.App.2d 182, 195 [192 P.2d 788]; People v. Miller, 33 Cal. 99; People v. Erwin, 4 Cal.App. 394, 396 [88 P. 371]. (The last two were decided prior to the adoption of section 4% of article VI.)
(b) Failure to instruct defendant as to certain of his rights —People v. O’Brien, 88 Cal. 483, 489-490 [26 P. 362].
(c) Illegal search and seizure—People v. Parham, 60 Cal.2d 378 [33 Cal.Rptr. 497, 384 P.2d 1001], wherein it is said (at p. 386) : “To require automatic reversal for such harmless error could not help but generate pressure to find that *464the unreasonable police conduct was lawful after all and thereby to undermine constitutional standards of police conduct to avoid needless retrial. . . . An exclusionary rule so rigidly administered could thereby defeat itself.”
If the word “prosecution” is substituted for the word “police” where the latter twice appears in the quotation from Parham, the reasoning applies equally to improper comment on defendant’s failure to take the stand.
In this opinion there is no necessity to determine whether the claimed error was prejudicial, first because the majority has ruled that it was not error, and second because the judgment must be reversed for reasons other than the violation of the comment rule.
I agree with everything said in the majority opinion, including the reversal, except that portion discussing the comment rule. Prom that portion of the opinion, I dissent.
The section contains a guarantee that the accused in a criminal case shall not be compelled to be a witness against himself. This is couched in the exact language of the Fifth Amendment to the United States Constitution, and obviously has the same meaning and effect. The 1934 amendment added that “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. ’ ’
This reasoning might support a holding that the error was not prejudicial, or a charge or comment to the effect that the jury may draw the usual inferences from the failure of the defense, as distinct from the defendant personally, to offer evidence in rebuttal of incriminating testimony. Such instruction or comment would serve all the purposes advocated in the majority opinion without raising the constitutional issue.
A partial list of these cases follows: People v. McGungill, 41 Cal. 429, 431; People v. Brown, 53 Cal. 66, 67; People v. Sanders, 114 Cal. 216 [46 P. 153] (citing McGungill, rather than Tyler) ; People v. Kromphold, 172 Cal. 512, 523 [157 P. 599] (affirming the rule, but holding the error to have been cured, and hence not prejudicial) ; People v. Mayen, 188 Cal. 237, 259 [205 P. 435, 24 A.L.R. 1383] (also affirming judgment because of lack of prejudice); Fross v. Wotton, 3 Cal.2d 384, 393 [44 P.2d 350] (civil case applying the Tyler rule to a comparable situation, and including a history of the privilege indicating the necessity of disallowing comment) ; People v. Albertson, 23 Cal.2d 550, 584 [145 P.2d 7] (concurring opinion by Traynor, J., adding the comment as an additional ground for reversal); People v. Morris, 3 Cal.App. 1, 6 [84 P. 463] (holding comment to be prejudicial per se, even when instruction to disregard it was given after objection); People v. Keko, 27 Cal.App. 351, 353 [149 P. 1003] (citing Morris only); People v. Wademan, 38 Cal.App. 116, 133 [175 P. 791] (acknowledging rule, but distinguishing the ease on the facts) ; and People v. Brown, 81 Cal.App. 226, 242 [253 P. 735].
It should also be mentioned that New Jersey (a state which had a comment rule comparable to that permitted by the 1934 amendment to our Constitution) has held that in light of Malloy the old New Jersey rule violates the privileges granted by the Fifth Amendment (State v. Murphy (1964) 85 N.J. Super. 391 [204 A.2d 888]).
Certaia language contained in the Mayen opinion, going to an entirely different point, has recently been disapproved in People v. Matteson, 61 Cal.2d 466, 470 [39 Cal.Rptr. 1, 393 P.2d 161]. Such disapproval does not affect the matters here involved.
This holding of Kynette may now he open to question in view of Malloy.