I dissent.
The majority ignore the factfinding obligation of the trial court to determine when, during a police interrogation, the accusatory stage has been reached, erroneously apply the rules announced in Escobedo v. Illinois, 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758], and People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], misinterpret the rules announced in People v. Jacobson, 63 Cal.2d 319 [46 Cal.Rptr. 515, 405 P.2d 555], and People v. Cotter, 63 Cal.2d 386 [46 Cal.Rptr. 622, 405 P.2d 862] (judgment vacated by U.S. Supreme Court, 386 U.S. 274 [18 L.Ed.2d 43, 87 S.Ct. 824]), and fail to apply properly the rule that an error, harmless on the guilt trial, may be very prejudicial on the penalty trial. This last stated rule is, in fact, part of the law of this case, having been expressly applied on the prior appeal. (People v. Hines, 61 Cal.2d 164, 168-170 [37 Cal.Rptr. 622, 390 P.2d 398].) For these many reasons the judgment should be reversed.
The defendant pleaded guilty to first degree murder. On the penalty trial the jury imposed the death penalty. This is *359an automatic appeal from the judgment entered on that verdict.
At trial two confessions, over objections, were introduced. The first, taken before formal arrest, was taped and played to the jury; the second, taken after arrest, was transcribed and read to the jury. Neither of the warnings required by Escobedo, supra, and Dorado, supra, was given. There can be no doubt at all, and the majority opinion tacitly agrees, that it was error to admit the transcribed confession.
As to the taped confession the majority opinion is misleading. It states that after defendant arrived at the police station “Officer Hestand and three other officers thereupon talked with defendant for 55 minutes.” The record fails to disclose with certainty that the other officers were present during the first part of the interrogation. But the record does disclose that the first part of the interrogation, covering all essentials of the offense, was conducted by Hestand alone. This portion of the confession was clearly admissible as a volunteered statement. But after Hestand apparently became convinced that defendant was not a fraud or sensation seeker the other officers entered into the interrogation. They went back over the entire transaction obviously in an attempt to elicit incriminating statements to be used at the trial. To say the least, this portion of the questioning occurred under such circumstances that the trial court should have determined whether the accusatory stage had been reached. This the trial court refused to do, apparently because it erroneously believed that Escobedo and Dorado, supra, did not apply to penalty trials.
On the incomplete record before us the evidence indicates that the second half of the taped confession was taken after the accusatory stage had been reached. In my opinion it was error to admit this portion of the taped confession into evidence, over objection. This is important, because it was during this portion of the confession that defendant confessed to shooting the deceased to prevent identification and pursuant to an intent to kill before he entered the store, and referred to the deceased in a derogatory and profane fashion. This portion of the confession may well have influenced the jury to impose the death penalty.
The facts as shown by the record are that about midnight of July 1, 1962, Billy Cooper was found dead behind the counter of Mary’s liquor store on Lincoln Boulevard in Venice, California. The autopsy showed that death was caused by gunshot wounds from a .32 caliber gun, the two major wounds being *360in the head and heart. Officer Hestand, the investigating officer, found a .22 revolver next to the body, and two small bullet holes in the ceiling. There were several .32 automatic cartridge cases found on the floor on the customers’ side of the counter. No .32 caliber pistol was found.
Although a description of the killer had been secured, this description only vaguely resembled the defendant. The police had no idea he was involved and were not looking for him. Under these circumstances the following occurred: Officer Hestand was at the Venice police substation on July 11, 1962. He testified that the desk officer, McClelland, came into his office with defendant and said, “This man just came to the desk next door and he put the gun and a sack of ammunition on the desk, and he said, ‘Are you looking for the man that killed the clerk in the liquor store on Lincoln Boulevard a couple of weeks ago?’ then he said, ‘Here’s the gun, and I am the one that did it.’ ” Hestand then proceeded to question defendant. Their conversation was tape recorded, and the tape was admitted into evidence and played before the jury.
Hestand told defendant to “start from the bottom.” Defendant said he “killed the guy, and that is all.” Hestand asked him who he had killed, and defendant said he did not know the victim’s name, but he was a liquor store attendant. In response to questions as to the location of the store and its name, defendant said it was on Lincoln Boulevard and was named “Mary’s.” Hestand then asked for the circumstances of the killing. Defendant said that he lived near Mary’s, so it was a “logical place to hit”; that he went into the store, asked for a pack of cigarettes, pulled out his gun, and said “this is a stickup”; that he saw the attendant step on a button which would notify the police; that after defendant told him not to push the button, the attendant pulled out a gun and fired; and that defendant thought he was hit and shot back at the clerk who fell behind the counter.
Later in the interview, in response to further questions by Hestand, defendant stated that he did not know who fired first, that he thought the attendant was still alive after falling and shot him three more times, that the first shot hit the decedent in the temple or over the right eye and another wound was in his chest (such wounds are shown by the autopsy report), and that the killing occurred either at 11:30 or 12:30 at night “a week ago last Sunday” (which was in fact the night and approximate time of the killing).
Hestand then inquired about where defendant got the gun, *361and why he selected Mary’s to rob. Defendant said he bought the gun, and robbed Mary’s because he did not have a ear and the store was near his home. Hestand asked if he had ever had an argument with decedent, and defendant said no, denied knowing decedent’s name, and that he felt sorry for the attendant. He also said, rather ambiguously, that he had intended to kill in any event, that the attendant shooting at him “threw me off,” and that he did not take any money, but only a pack of cigarettes.
At this point in the interrogation, Hestand apparently became satisfied that defendant was not a fraud because the other officers then began to question the defendant. Their questions were obviously aimed at securing incriminating evidence for use at the trial. Asked about the gun, defendant said he used a 7.65 Walther automatic, the gun he had brought to the police station. Asked what ammunition he used, he said he used “thirty-two automatic.” Asked about what he had planned, defendant stated, this time clearly, that before he entered the store he had planned to kill whoever was behind the counter.
Further questioning continued until 3:10 p.m. (the tape shows that the questioning began at 2:15 p.m.). This dealt primarily with further details of the crime and information as to defendant’s background. At one point, when asked if he felt remorseful, defendant replied “Well, I don’t know. I can’t say that I am sorry that I killed the guy, you know, because I wanted to kill him, you know, and I had planned to kill him. ’ ’ At another point, when asked about the gun battle, defendant said ‘ ‘ I thought that dirty son of a bitch, I will get him, you know. ’ ’
Defendant was then taken to the downtown police headquarters and booked. About 4:30 p.m. he gave another confession which was written down by a stenotypist and signed. This confession contained essentially the same facts contained in the earlier one. The written transcript of this confession was admitted into evidence and made “available for the jury should they desire to read it. ’ ’
At no time had defendant been advised of his constitutional rights.
At the second penalty trial, defense counsel objected both to the introduction of the tape and the introduction of the transcribed confession, invoking Escobedo v. Illinois, supra, 378 U.S. 478, and People v. Dorado, supra, 62 Cal.2d 338. Both objections were overruled.
*362Neither in response to this objection nor at any other time did the court make any effort to apply the standards laid down in Dorado and its successors to determine if all or any part of the tape should be excluded, or whether the transcribed confession was admissible. The reason for this failure was the trial court’s apparent belief that the rule of Dorado did not apply to penalty trials.
After the tape was played, defense counsel moved to strike it. The court denied this motion, saying: “It should be remembered that we are here concerned with penalty. The matter of the use of these confessions or admissions establishing guilt has already been determined. [Defendant had pleaded guilty.] They are left in for the limited purpose of the issue here involved.” In denying defendant’s motion for a new trial the court again expressed its understanding that Dorado does not apply to penalty trials. This belief was erroneous. (People v. Polk, 63 Cal.2d 443, 449-450 [47 Cal.Rptr. 1, 406 P.2d 641].)
The failure of the court to examine the evidence involving the tape and the transcribed confession in light of the principles announced in Dorado and the cases following it was reversible error. It was held in People v. Schader, 62 Cal.2d 716, 727 [44 Cal.Rptr. 193, 401 P.2d 665] : “Just as the trial judge should find that a confession is voluntary before it may be admitted (Jackson v. Denno (1964) 378 U.S. 368 [12 L.Ed.2d 908, 84 S.Ct. 1774, 1 A.L.R.3d 1205]; . . . ), he should find, before admitting the confession, that it was not obtained in violation of defendant’s right to counsel.” The Supreme Court in Jackson v. Denno, 378 U.S. 368, 380 [12 L.Ed.2d 908, 918, 84 S.Ct. 1774, 1 A.L.R.3d 1205], emphasized that “A defendant objecting to the admission of a confession is entitled to a fair hearing in which both the underlying factual issues and the voluntariness of his confession are actually and reliably determined. ’ ’ Here it is clear that the trial court did not “actually and reliably determine” that the confessions were not obtained in violation of defendant’s right to counsel.
Had such an inquiry been made, it is clear that part of the tape and all of the transcribed confession should have been excluded. Defendant’s first statements contained in the taped confession, were, of course, admissible, having been made at the investigatory stage.1 But at some point during this 55-*363minute period of questioning, and certainly after the officers other than Hestand took part in the interrogation, the stage ceased to be “investigatory” and became “accusatory.” The police were then under a duty to advise defendant of his rights to counsel and to remain silent, before the interrogation proceeded. As this warning was never given, the portion of the tape which was recorded after this point was reached is inadmissible.
It was held in Dorado that the accusatory stage is reached when “ (1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements. ...” (People v. Dorado, supra, 62 Cal.2d 338, 353.) At some point in this interrogation, the police knew a crime had been committed and that it had been committed by defendant. Thereafter the investigation had “begun to focus” on him. Since it is obvious that the police would not have allowed defendant to walk away when that point was reached, he was then under restraint and “in custody,” even though he had not formally been placed under arrest. (Cf. People v. Furnish, 63 Cal.2d 511, 516 [47 Cal.Rptr. 387, 407 P.2d 299].)
As for the third requirement, at some point the process of interrogations ceased to be directed at discovering whether defendant was a crank or a fraud seeking punishment or publicity for a crime he had not committed and began to be directed primarily at obtaining incriminating statements for use at trial. At that point, the process of interrogations shifted to one which “lent itself to eliciting incriminating statements. ’ ’
When this last point was reached is a question that should have been determined in the first instance by the trial court. As pointed out in People v. Stockman, 63 Cal.2d 494, 498-499 [47 Cal.Rptr. 365, 407 P.2d 277], the burden is on the prosecution to prove that incriminating statements were the result of something other than a process of interrogations that lends itself to eliciting incriminating statements. In determining the point at which the primary interest of the police was no longer to discover whether defendant was a fraud, the court *364should have considered the fact that Officer Hestand had been at the scene of the crime and knew many of the details, and that as the interrogation progressed, it became obvious that defendant knew more and more of these details. During the interrogation, defendant correctly stated the name and location of the store, the fact that the attendant had a gun and had fired it, roughly the number of times he was shot, the location of the wounds, the date of the killing and the approximate time. Subsequently defendant stated that he used .32 caliber bullets. At some point during this recounting of the details, Hestand must have heard enough to become sure that defendant was in fact involved in the crime. When this point was reached is primarily an issue of fact which should have been determined by the trial court judge, who acts as the fact finder where the admissibility of evidence is the issue.
Obviously, had the trial court under the rules announced in Dorado considered the admissibility of the transcribed confession taken at downtown police headquarters, it should have excluded that confession. There is no evidence showing that this confession was obtained by something other than a process of interrogations that lent itself to eliciting incriminating statements, so the prosecution did not sustain its burden. (People v. Stockman, supra, 63 Cal.2d 494, 498-499.)
Thus errors occurred in the admission of these confessions. This is undoubtedly true as to the transcribed confession, and I believe it to be true as to the second part of the taped confession. The per se prejudicial error rule is probably applicable to these errors. (Payne v. Arkansas, 356 U.S. 560 [2 L.Ed.2d 975, 78 S.Ct. 844]; Gideon v. Wainwright, 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733]; Turney v. Ohio, 273 U.S. 510 [71 L.Ed. 749, 47 S.Ct. 437, 50 A.L.R. 1243] ; Lynumn v. Illinois, 372 U.S. 528 [9 L.Ed.2d 922, 83 S.Ct. 917]; Malinski v. New York, 324 U.S. 401 [89 L.Ed. 1029, 65 S.Ct. 781]; Spano v. New York, 360 U.S. 315 [3 L.Ed.2d 1265, 79 S.Ct. 1202] ; Haynes v. Washington, 373 U.S. 503 [10 L.Ed.2d 513, 83 S.Ct. 1336]; Jackson v. Denno, supra, 378 U.S. 368; see discussion in Chapman v. California, 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824].) But even if the per se prejudicial error rule were not applicable there can be no doubt at all that the admission of these confessions, particularly the second part of the taped confession, was prejudicial. As already pointed out this is an appeal solely from the penalty judgment. On a penalty trial, unlike a guilt trial, the jury has absolute and unguided discretion in fixing the penalty. It must determine that issue without the benefit *365of guideposts, standards, and other applicable criteria. For that reason it has been held that in determining the question of prejudice when the death penalty has been imposed any substantial error may have affected the result and require a reversal, even if it would have been nonprejudieial in the guilt trial. (People v. Price, 63 Cal.2d 370, 373 [46 Cal.Rptr. 775, 406 P.2d 55]; People v. Treloar, 61 Cal.2d 544, 550 [39 Cal.Rptr. 386, 393 P.2d 698]; People v. Varnum, 61 Cal.2d 425, 429 [38 Cal.Rptr. 881, 392 P.2d 961]; People v. Kroeger, 61 Cal.2d 236, 248 [37 Cal.Rptr. 593, 390 P.2d 369]; People v. Hamilton, 60 Cal.2d 105, 135-138 [32 Cal.Rptr. 4, 383 P.2d 412]; People v. Hines, supra, 61 Cal.2d 164, 168-170.) The test as to reversible error, generally, for a federal constitutional error, which this was, is stated as follows in Fahy v. Connecticut, 375 U.S. 85, 86 [11 L.Ed.2d 171, 173, 84 S.Ct. 229] : “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. ’’ This rule was approved in Chapman, supra, pages 710-711 where it was said “We, therefore, do no more than adhere to the meaning of our Pahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”
It must be remembered that the statement given by defendant at the outset of the questioning by Officer Hestand differs greatly from the statements subsequently made which, had there been no error, might have been excluded. Defendant’s statements at the outset indicated that the attendant of the liquor store fired first and that defendant returned the shots. As the interrogation continued defendant admitted that he did not know who shot first, and then he made ambiguous remarks which could be interpreted as meaning that he intended to kill the attendant in any event to prevent identification. After the other officers started to participate in the interrogation, defendant clearly stated that before entering the store he had intended to kill whoever was behind the counter. Thereafter he made statements which indicated that he felt no remorse and stated that during the gun battle he considered the attendant a "dirty son of a bitch. ’ ’
His testimonial confession also differed significantly from the last part of the taped confession. In his testimony he stated that he wanted to die but did not have the courage to kill himself, so he planned to kill so that the state would execute him; that after he entered the store he realized that *366he “couldn’t shoot him just like that”; that he did not shoot the attendant until the attendant pulled out a gun and fired. This, of course, differs from the taped confession where he had stated he killed to prevent identification. Contrary to the last part of the taped confession, in his testimony at trial he expressed remorse for the killing.
Such matters as the nature and facts and circumstances of the crime, whether defendant is arrogant about the killing or expresses remorse, and other such factors are likely to affect the penalty. (People v. Hines, supra, 61 Cal.2d 164, 169.) Tested by applicable standards the error must be held to have been prejudicial.
People v. Jacobson, supra, 63 Cal.2d 319, and People v. Cotter, supra, 63 Cal.2d 386, do not establish a contrary rule. They merely establish that on the guilt trial a good confession followed by a bad one, under the circumstances of those cases and where the good and bad ones are not significantly different, may minimize the error in admitting the bad one. Those cases do not deal with a situation where there is a good confession, followed by a bad one adding significant and meaningful details, followed by a testimonial confession, significantly different from the bad confession. More importantly, in both these cases certain confessions were held admissible but others were held inadmissible, and it was held that it was error to admit them. The error was held nonprejudicial under the facts. In People v. Gilbert, supra, 63 Cal.2d 690, 700 [47 Cal.Rptr. 909, 408 P.2d 365], it was held in both the cited cases “that the fact that a defendant is willing to confess and has already volunteered incriminatory statements and confessions does not absolve the police of the duty to advise him of his constitutional rights before eliciting further confessions at stationhouse interrogations. ’ ’
In the present ease as well as in Jacobson, Cotter, and Gilbert a spontaneous statement by the defendant, which is admissible, was followed by the elicitation of further statements by a process of interrogation after suspicion had focused on him. Such further statements are not admissible and the cited cases so held. They “were not spontaneous, unsolicited declarations but detailed statements obtained through a period of prolonged interrogation.” (People v. Gilbert, supra, 63 Cal.2d at p. 700.)
It must be remembered that the fact that a defendant spontaneously volunteers a confession does not mean that he is without the need for the guiding hand of counsel when the *367police thereafter commence a process of interrogation. To the contrary, having admitted the killing, a defendant will not ordinarily dispute the details of the crime with interrogating officers. The defendant who has confessed to the killing may not see the importance of matters relating to the degree of the crime or the penalty and may accept intentional or unintentional suggestions of the officers as to those matters even where they are contrary to the facts. In short, such a defendant is in a vulnerable position and needs the aid of counsel. However, no sound purpose is served by dwelling upon this question because it must be deemed settled by Jacobson, Cotter, and Gilbert, that Dorado is applicable when officers embark on a process of interrogations designed to elicit incriminating statements after the defendant has spontaneously volunteered a confession.
Jacobson, Cotter, and Gilbert may not be distinguished from the instant case on the ground that in those eases there were short intervals between the spontaneous, admissible statements and the elicited, inadmissible statements. Such a distinction would mean that officers could avoid the Escobedo-Dorado rule whenever a suspect makes an unsolicited statement by immediately questioning him, without letup, even for hours, and thereby with impunity engage in the very conduct Escobedo and Dorado were designed to prevent. Application of that rule should not turn on the purely formal question whether there was a short interruption in the questioning.
There can be no doubt that Officer Hestand had the legal right to interrogate defendant to determine that he was not a publicity seeker or a fraud, or was not mentally deranged. But when defendant demonstrated his knowledge of the details of the crime the right to further interrogation without giving the required warning ceased. As soon as suspicion reasonably focused on defendant the right to question him further without the warnings was lost.
Thus there were errors, such errors were certainly substantial, and they require a reversal.
Appellant’s petition for a rehearing was denied May 4, 1967. Both, J. pro tem.,* sat in place of Mosk, J., who deemed himself disqualified. Peters, J., was of the opinion that the petition should be granted.
See People v. Dorado, supra, 62 Cal.2d 338, 354, footnote 8: “ The confession given in the following hypothetical situation put by the Attorney General is obviously admissible: ‘What about the person who is not *363known as a suspect but wants to confess an unsolved crime? . . . Shall the police stop him when he rushes into a police station and cries in distress that he wants to confess to a crime and tell him to be quiet until an attorney is obtained to represent him?’ ”
Assigned by the Chairman of the Judicial Council.