I concur in the judgment.
This conviction must be reversed because the trial court erroneously admitted certain of defendant’s extrajudicial statements given without advice of his right to counsel and his right to remain silent. (Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758] ; People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361].) I do not agree with the dictum in the majority opinion indicating *23that upon retrial, if the prosecution should seek to use these statements, the trial court must determine their admissibility consistent with the rules set forth in Miranda v. Arizona, (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974].
In this ease we have an apparent Dorado violation. A fortiori, an extrajudicial statement taken in the absence of Dorado admonitions will run afoul of the more embracive Miranda requirements. Thus, while the instant problem is relatively uncomplicated, dictum that purports to establish an unvarying rule regarding application of Miranda to all retrials hereafter, including cases reversed on nonconstitutional grounds (see, e.g., People v. Pennington (1967) 66 Cal.2d 508 [58 Cal.Rptr. 374, 426 P.2d 942]), is likely to constitute “an unjustifiable burden on the administration of justice” (Johnson v. New Jersey (1966) 384 U.S. 719, 733 [16 L.Ed.2d 882, 892, 86 S.Ct. 1772]).
In Johnson the Supreme Court held that “Escobedo and Miranda should apply only to cases commenced after those decisions were announced.” (Italics added.) (384 U.S. at p. 733 [16 L.Ed.2d at p. 892].) It also stated elsewhere in the opinion that application was limited to “trials begun” after the decisions were announced. “Future defendants will benefit fully from our new standards,” said the court (at p. 732 [16 L.Ed.2d at p. 892]).
Over and above any exercise in lexicology, it would seem that the phrase, “eases commenced after those decisions” means that if proceedings against a defendant had reached the trial stage, prior to the Miranda decision, only pre-Miranda rules would apply to his case notwithstanding the date of any subsequent retrial. Certainly Doherty cannot be characterized as a “ future defendant. ’ ’
The court in Johnson further emphasized that it did “not find any persuasive reason to extend Escobedo and Miranda to eases tried before those decisions were announced, even though the cases may still be on direct appeal.” In the instant case, the appeal was pending when Miranda emerged. Thus the doctrine was not then applicable to defendant. It seems incongruous to make the new judicially adopted rule gratuitously available to the defendant at this late date in the proceedings merely because the appeal was successful on grounds other than Miranda. (People v. La Belle (1967) 53 Misc.2d 111 [277 N.Y.S.2d 847, 850] ; also see Jenkins v. State (1967) - Del. - [230 A.2d 262], in which the court *24held a " new trial is not a new case; it is a continuation of the original ease until the judgment is final. ”)
Giving a defendant whose original statements met Escobedo and Dorado tests the added protection of Miranda would bestow upon him the benefit of a species of retroactivity. There is no justification for this court to apply the retro-activity which J ohnson scrupulously eschewed.
As a reason for denying retroactive application and for adopting the date the ease commenced as controlling in deciding which defendants would receive the benefit of Miranda, the Supreme Court in J ohnson emphasized the element of fair reliance by law enforcement agencies in their attempt to adopt devices which “although below the constitutional minimum, were not intentional evasions of the requirements of the privilege” (384 U.S. at pp. 732-733 [16 L.Ed.2d at p. 892]), and which were based on then existing law. The result was the court’s observation that in these circumstances to upset all the convictions obtained in trials preceding Escobedo and Miranda would impose an unjustifiable burden on the administration of justice (id. at p. 733 [16 L.Ed.2d at p. 892]). It had previously “expressly declined to condemn an entire process of in-custody interrogation.” (Id. at p. 731 [16 L.Ed.2d at p.891].)
Subsequent to Dorado, California police agencies and courts fit the description of “Authorities attempting to protect the privilege” (384 U.S. at p. 732 [16 L.Ed.2d at p. 892]) but which before Miranda had not been “apprised heretofore of the specific safeguards which are now obligatory.” (Ibid.) Certainly the Dorado rule of this court cannot be characterized as an intentional evasion of the requirements of the privilege against self-incrimination as interpreted in Miranda, and we should not now attribute base motives to law enforcement agencies and courts which relied on Dorado and failed to divine Miranda. Nevertheless such a melancholy conclusion is inspired by the majority’s requirement that peace officers and prosecutors be prescient or, in the alternative, that admittedly guilty offenders benefit by the officers’ lack of a crystal ball.
If Miranda must govern on retrial, the inevitable result will be release of defendants who were apprehended in the postDorado period and who confessed to authorities faithfully complying with the letter and spirit of Dorado. If the reliance rationale used in Johnson is applicable to any situation, it would seem to apply to avoid the potentially catastrophic *25circumstance of confessed felons going scot-free. Indeed, the court itself expressed fear of such results when it noted that retroactive application of Miranda would require the “release of numerous prisoners found guilty by trustworthy evidence in conformity with previously announced constitutional standards.” (384 U.S. at p. 731 [16 L.Ed.2d at p. 891].) This court employed similar rhetoric in refusing to apply Escobedo retroactively. (In re Lopez (1965) 62 Cal.2d 368, 381 [42 Cal.Rptr. 188, 398 P.2d 380].)
The majority are fearful of “a truncated version of the Constitution ’ ’ in forbidding the use of statements violative of Miranda for defendants first tried after June 13, 1966, but sanctioned for those retried at that time after a reversal of a previous conviction. Yet the majority opinion may well lead to comparable arbitrary results. Assume the ease of defendants A and B, arrested in March 1966 and both tried in May 1966, both of whom gave inculpatory statements, without which conviction could not have been assured, to authorities who scrupulously complied with Dorado but whose admonitions fell short of Miranda directives. Assume there is no error in the trial of defendant A but that B’s conviction is reversed because of errors wholly unrelated to constitutional provisions. When B’s retrial takes place after June 13, 1966, the majority would require his statement to be excluded, and as a result B would go free whereas A suffers a penalty for the identical crime detected under identical circumstances. Certainly such a fortuitous result would he arbitrary and discriminatory.
The principal justification for the majority dictum in the instant case is the inconclusiveness of some of the language in Johnson. The Illinois Supreme Court resolved that dilemma in People v. Worley (1967) 37 Ill.2d 439 [227 N.E.2d 746]), in this persuasive manner:
“Since the language employed in the statement of the Johnson rule is inconclusive, in our opinion the intention of the Court may best be found by examining the reasons for the rule. The Court listed three factors which entered into its decision: The purpose for announcing new standards in Miranda, the reliance placed upon the pre-Miranda rules, and the seriously disruptive effect on the administration of justice of a decision that Miranda apply retroactively. Finding that the integrity of the fact-finding process is not as substantially improved by Miranda as it has been by others of its decisions, that the pre-Miranda rules had been relied on by law enforce*26ment officers to obtain confessions which are inadmissible in post-MIiranda cases, and that making Miranda retroactive would seriously disrupt administration of our criminal laws, the Court decided against applying Miranda, retroactively. While the disruptive effect of our criminal laws would not be as great if we follow Gibson [Gibson v. United States (5th Cir. 1966) 363 F.2d 146] as it would have been if the Supreme Court had held that Miranda applied retroactively, because retrials are not required in all pve-Miranda decisions in which confessions are involved, the presence of a disrupting effect similar to that with which the Court was concerned in Johnson, as well as a consistent thrust from each of the other two criteria, leads us to conclude that the Supreme Court did not intend that Miranda apply to retrials in eases such as the instant one. The pre-Miranda and pre-Escobedo rules making inadmissible coerced confession, as well as Escobedo, were available to protect the integrity of the fact-finding process in defendant’s case, so that holding Miranda applicable to his retrial would effect no significant improvement therein. Law enforcement officers placed identical reliance on the preMiranda rules to obtain confessions in all eases which commenced prior to June 13, 1966, and the fact that a retrial is ordered in some of these cases in no way alters this reliance.
“Our interpretation of the Supreme Court’s intent in Johnson is reinforced by the fact that the court there made Miranda, applicable only to eases commencing subsequent to June 33, 1966, expressly excluding those in which direct appeals were pending at the time Miranda was announced. This was in direct contrast to its action in Linkletter v. Walker, 381 U.S. 618 [14 L.Ed.2d 601, 65 S.Ct. 1781], in which the court, while declining to apply Mapp v. Ohio, 367 U.S. 643 [6 L.Ed.2d 1081, 81 S.Ct. 1684, 84 A.L.R.2d 933], retroactively, held it applicable to all eases in which the state court decision had not become final prior to announcement of Mapp. Also of some significance is the statement in Johnson that ‘ Future defendants will benefit fully from our new standards governing in-custody interrogation, while past defendants may still avail themselves of the voluntariness test. ’ ’ ’
While I would reverse this judgment under compulsion of Dorado, I would advise the trial court to apply the evidentiary rules prevailing when the original trial proceedings commenced.
Burke, J., concurred.