I dissent. I would affirm the judgment finding defendant guilty of violating section 4500 of the Penal Code,* for these reasons:
*362First. Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977], relied on by the majority opinion, is not applicable to the facts of the present case.
In that ease, the court said: “We hold only that when the process shifts from investigatory to accusatory—when its focus is on the accused and its purpose is to elicit a confession—our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.” (P. 492.)
Referring to the “circumstances here” (that is, in Escobedo v. Illinois, supra), the court said: “We hold, therefore, that where, as here, (1) the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect,. (2) the suspect has been taken into police custody, (3) the police carry out a process of interrogations that lends itself to eliciting incriminating statements, (4) the suspect has requested and been denied an opportunity to consult with his lawyer, and (5) the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment, ’ Gideon v. Wainwright, 372 U.S., at 342, [83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733] and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” (378 U.S. 490 et seq.) (Numbers and italics added.)
It is conceded in the instant ease that element No. 4 was not present, that is, defendant did not request, and was not denied, an opportunity to consult with his lawyer.
Under the precise and limiting language used by the Supreme Court in the Escobedo ease, it is clear that the facts in the instant case are different and that the Escobedo case is not applicable.
We should not extend the rule of the Escobedo case. This court should take a realistic view of the holding in Escobedo v. Illinois, supra, so as to support law enforcement officers when their activities are not clearly unlawful, and not to increase their difficulties in preventing future murders and other crimes.
We should support them in their lawful efforts, however zealous, to protect citizens and to eliminate crime and enforce the laws of this state. We should not take an unrealistic view of the rules of law and make it more difficult to apprehend *363criminals and to prevent and reduce the increase of crime which has taken place at an alarming rate in the past year.
In People v. Hartgraves, 31 Ill.2d 375 [202 N.E.2d 33], the Supreme Court of Illinois, in discussing Escobedo v. Illinois, at page 36 [202 N.E.2d] said: “We do not, however, read the Escobedo case as requiring the rejection of a voluntary confession because the State did not affirmatively caution the accused of his right to have an attorney and his right to remain silent before his admissions of guilt. ’ ’
Second. Article VI, section 4%, of the California Constitution, in my opinion, requires an affirmance of the judgment in this ease. That section provides: “No judgment shall be set aside ... in any ease, on the ground of . . . the improper admission ... of evidence ... or for any error as to any matter of procedure, 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.” (Italics added.) (See People v. Hines, 61 Cal.2d 164, 175 et seq., 181-182 et seq. [37 Cal.Rptr. 622, 390 P.2d 398].)
An examination of the record in the present case leads me to the “opinion” that there is no doubt of the guilt of defendant and that he was not prejudiced by not being advised of his right to counsel. He had been convicted of previous criminal offenses, and there is a presumption that on such occasions he was informed of his right to counsel. (Code Civ. Proe., § 1963, subd. 15.) In addition, he had been in the state penitentiary, and it is a matter of common knowledge that the inmates discuss their rights and are informed, among other things, of their right to counsel.
I am thoroughly in accord with Mr. Justice Schauer’s statement in his dissenting opinion in People v. Hines, supra, 61 Cal.2d 164, 181: ‘1 The mandate of section 4%, article VI, is clear and is unequivocally recognized by this court in People v. Watson (1956) supra, 46 Cal.2d 818, 836-837 [12] [299 P.2d 243] ; likewise clear is the limitation of section 4 on our powers of review to 1 questions of law alone, in all criminal cases where judgment of death has been rendered. ’ These are not just statutes; these are constitutional bulwarks. By these sections the People, properly concerned for their own (and loved ones’) safety, have demonstrated that a judgment of death, once rendered, is not lightly to be set aside. Mere speculation that judicially declared procedural error may *364have contributed to the verdict is not a basis upon which we can lawfully disturb a judgment of death. The verdict is not ours; it is that of the jury. And the judgment is that of the trial court duly rendered pursuant to the verdict. We have neither right nor power to reverse that judgment unless the evidence before us (the totality of the record) establishes not only error but the probability—i.e., preponderates in showing—that a result more favorable to defendant would have been reached in the absence of the error.
“It bears repeating that in Watson we said ‘[T]he test, as stated in any of the several ways, must necessarily be based upon reasonable probabilities rather than upon mere possibilities; otherwise the entire purpose of the constitutional provision would be defeated.’ (People v. Watson (1956) 46 Cal.2d 818, 837 [12] [299 P.2d 243].) Today, in the case at bench, it appears to me that by the majority’s ruling ‘the entire purpose of the constitutional provision [is] defeated.’ ”
Again, it is my opinion that the judiciary should consider the protection of innocent people in this state and endeavor to support law enforcement officers in their efforts to prevent the increase of crimes now taking place at an alarming rate in this and other states of the United States.
We should recognize that the prevention of crime may be best enforced by the prompt conviction and punishment of criminals and should endeavor in every legitimate manner to protect our innocent citizens and to avoid unnecessary reversals of conviction of manifestly guilty criminals, thereby better protecting the law-abiding public.
Section 4500 of the Penal Code provides, in part: “Every person undergoing a life sentence in a state prison of this State, who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury is punishable with death ....’’