I dissent.
It is my opinion that the statements given to the police by the defendant at the time of and after his arrest were secured in violation of defendant’s constitutional rights as defined in Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977], and People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], Their admission was therefore error. Although statements and not confessions, and therefore subject to the harmless error rule (People v. Hillery, 62 Cal.2d 692 [44 Cal.Rptr. 30, 401 P.2d 382]), their admission was clearly prejudicial. This is so because they were used to impeach defendant and his defense witness on vital matters. They indicate that he had lied to the police during the interrogation, and was, therefore, not to be believed. In view of the fact that the jury could not agree as to two of the charges as to which there was claimed eyewitness identification, and in view of the fact that the impeachment related to the two offenses of October 23, *3061962, of which defendant was convicted, it seems clear that the impeachment testimony was the bombshell that completely undermined defendant’s defense as to these two charges.
The record shows that the statements were secured under the following circumstances. Officer Van Over, before the arrest, knew the robberies in question had taken place on October 23, knew that the robber had taken rolled coins, knew that the waitress at the drive-in after 2 a.m. on October 23 had exchanged currency for rolled coins for some man, this man had written the name of defendant on one of the wrappers and had also given the address of the defendant. Van Over, at 4 a.m. in the morning, went to the given address, found defendant, questioned him, conducted a search, and arrested him.
At the trial defendant denied all the robberies, and produced an alibi as to the two robberies committed on the early morning of October 23. Joseph Faber, the owner of a bar situated across the street from Clark’s Liquor Store (the site of one of the robberies of which defendant was convicted) testified that during the early morning hours of October 23, the date of that robbery, and during the time the second robbery charged to have been committed that night occurred, he saw the defendant in the company of a woman in his bar. The witness further testified that, although he did not watch the defendant at all times, he did know that when his porter came in and said “Joe, the place across the street was just held up,” the defendant and his girl friend were still drinking at that time in his bar and remained there for some time thereafter.
Defendant corroborated this alibi testified to by Faber. He admitted going to the drive-in restaurant and asking the attendant to exchange dollar bills for rolled coins but he contended that he obtained the money from gambling, and that he frequently secured coin wrappers at various places, including one of the liquor stores he was alleged to have robbed. He was asked on cross-examination if he had ever told the police a story other than that he had been in Faber’s bar on October 23. He denied having told any different story. Then one of the statements secured in violation of Escobedo, supra, was introduced by way of impeachment. Officer Van Over was recalled and he testified that when defendant was arrested at 4 a.m. on October 25 defendant had stated that he had worked on October 22 and had then come home and remained there until noon the following day. This was directly contrary to Faber’s testimony and to that of defendant. This *307erroneously admitted statement undermined defendant’s main defense as to the two robberies alleged to have been committed in the early morning hours of October 23, and demonstrated that he was a liar, not to be believed.
Also by way of impeachment, Officer Hernandez testified that defendant, upon being questioned in jail on October 25, denied writing his name on the coin wrappers. This was directly contrary to defendant’s testimony. It again demonstrated that defendant had lied to the police. To say that the admission of these statements was not prejudicial, as do the majority, is to close one’s eyes to the realities of the situation. As to the two robberies committed on October 23, the prejudice is obvious.
The majority assume the two statements were secured in violation of the rights discussed in Escobedo, supra, and then hold that their admission was not prejudicial. The “assumption ’ ’ that the admission of these statements violated Escobedo is in accordance with the facts.
People v. Dorado, supra, 62 Cal.2d 338, sets forth the following requirements for the exclusion of these statements (at pp. 353-354); “ (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, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he had waived these rights.”
The first two criteria enumerated above were discussed in People v. Stewart, 62 Cal.2d 571 [43 Cal.Rptr. 201, 400 P.2d 97]. It was there held that normally they are fulfilled when the suspect is placed under arrest. Defendant’s statement to Officer Hernandez, which was made in jail, was obviously made after arrest. Although it appears that the arrest occurred during the 4 a.m. visit to defendant’s home, the record does not show whether the arrest occurred before or after defendant made the statement testified to by Officer Van Over. Other than the evidence of the rolled coins, the record does not show what evidence the officers had connecting defendant with the robberies at the time they entered his apartment, and so far as appears the only evidence obtained at the apartment was the exculpatory statement of defendant and some clothes which matched the description of those worn during one of the robberies. Defendant was arrested before he and the officers *308left tbe apartment, and under the circumstances it would seem that it must be presumed that the investigation had focused on defendant and that for all practical purposes he was in custody from the commencement of the interview at his apartment.
As to whether the police had undertaken a process of interrogations designed to elicit incriminating statements, the record is ambiguous. In effect, this court is again being asked to perform a factfinding function. Although there is some testimony by both the arresting officer and the defendant as to what occurred, there has been no determination by the trier of fact.
Nor has there been any opportunity given to both sides -to develop the facts. There is testimony in the record that some questions were asked of the defendant and that some accusations were made. Effective questioning and cross-examination of the witnesses would be necessary to remove the ambiguities now present. In determining whether there was a process of interrogations that lends itself to eliciting incriminating statements, Stewart requires that we “analyze the total situation which envelops the questioning by considering such factors as the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances.” (People v. Stewart, supra, 62 Cal.2d 571, 579.) As was stated in People v. North, 233 Cal.App.2d 884 (at p. 888 [44 Cal.Rptr. 123]):
“Manifestly, the ‘total situation’ cannot be ‘analyzed,’ and a ‘determination based upon objective evidence’ cannot be made, by an appellate court when confronted with a record that is totally devoid of ‘objective evidence’ relating to any of the ‘ factors ’ required by the Stewart test. ’ ’
The failure to provide such a complete record must be placed on the prosecution for it is they who carry the burden of proof on this issue. (People v. Stockman, 63 Cal.2d 494, 498-499 [47 Cal.Rptr. 365, 407 P.2d 277].)
Furthermore, from the record that is before this court, and applying the criteria announced in People v. Stewart, supra, 62 Cal.2d 571, it appears that the seemingly exculpatory statements elicited from the defendant by the police were obtained as a result of a process of interrogations which tended to elicit incriminating statements. This conclusion is based on the fact that, at the time of the defendant’s arrest, the police, upon awakening the defendant during the early morning hours, leveled charges against him and asked him questions *309concerning the robberies and his possible participation therein. The statements they obtained were given in response to those questions. The statement obtained by Officer Hernandez was given in response to a question by the officer at a time when the defendant had been in jail overnight and had previously undergone the above-mentioned process of interrogation.
In the face of a silent record it must be further presumed that the defendant was not advised of his right to remain silent and his right to counsel. (People v. Stewart, supra, 62 Cal.2d 571, 580.) It follows that the statements were obtained in violation of the standards set forth in People v. Dorado, supra, 62 Cal.2d 338.
Thus the assumption in the majority opinion that such statements were erroneously admitted is compelled by the testimony.
The only question left for determination is whether such questions and answers were prejudicial. It must be remembered that although the statements under discussion were exculpatory in form they were evidence favorable to the prosecution to the extent that they were inconsistent with the version of events as testified to by the defendant and his witness. As such, their admission before the jury must have east grave doubts upon the defendant’s testimony and could have been considered as showing a consciousness of guilt. To a very grave extent, the admission of the statements weakened the defendant ’s case, at least as to the two offenses alleged to have been committed on October 23, 1962. Except as to the evidence of the rolled coins and the admissions, both of which related to the two offenses of October 23, the prosecution’s case in chief as to each of the robberies was substantially the same, and the jury’s indecision, as reflected by their inability to reach a guilty verdict on two of the counts, indicates that without the admission of the statements the jury was not completely persuaded by the strength of the prosecution’s case. The statements here under discussion must have had a devastating effect upon the credibility of defendant. The defendant’s testimony, as bolstered by his corroborating witness, is tenable and believable. From a reading of the entire record, it must be concluded that if the admission into evidence of these statements was error that error is prejudicial as “there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” (Fahy v. Connecticut, 375 U.S. 85, 86 [84 S.Ct. 229, 11 L.Ed.2d 171].) It might also be added that the admission *310of such evidence was also prejudicial under the rule announced in People v. Watson, 46 Cal.2d 818, 836 [299 P.2d 243], in that it is reasonably probable that without the error a result more favorable to the defendant would have resulted.
I would reverse the judgment at least as to the two robberies alleged to have been committed on October 23, 1962.
Appellant’s petition for a rehearing was denied May 11, 1966, and the opinion and judgment were modified to read as printed above. Most, J., did not participate therein.