We are required by the Supreme Court directive (Feb. 2, 1984) to file a modified opinion with *1019appropriate reference to People v. Dillon (1983) 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697] and Donaldson v. Superior Court (1983) 35 Cal.3d 24 [196 Cal.Rptr. 704, 672 P.2d 110]. The majority opinion has now complied and as to those portions of the majority opinion controlled by Dillon and Donaldson I concur. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 [20 Cal.Rptr. 321, 369 P.2d 937].)
I also concur with Justice Wiener’s conclusion no substantial evidence supports Munoz’ first degree—premeditated—murder conviction. But I dissent from the failure of the majority to comply with the mandate of Dillon (34 Cal.3d at pp. 477-489) and reduce the conviction to one of second degree murder. Moreover, the majority opinion, however, seeks to cover and the Supreme Court decision to not discuss that glaring void—lack of substantial evidence to support the “felony murder” conviction—with the unanalyzed conclusion that there was “uncontradicted evidence of felony murder.” (Majority opn., ante, at p. 1010.) A minute search of the record fails to disclose any substantial evidence sufficient in law to convict Munoz of that crime. I again reflect and re-emphasize the procedural and constitutional errors committed both before and during trial—areas not yet addressed by the California Supreme Court.
I
Eduardo Ramirez was the sole witness connecting Munoz to the crime; he is the lone person who testified to implicate Munoz as to “some act or fact which was an element of the crime” which implicated Munoz. He is the self-confessed accessory to the killing of John Klima. Ramirez was originally the prime suspect for this murder yet he was not charged with murder. He was arrested, placed in jail for the Klima murder. His car had been identified as the murder vehicle; he was observed in possession of the gun used immediately after the killing. He admitted the killing to several witnesses. In this web of evidence pointing to his guilt, Ramirez told police Munoz was the killer and agreed to testify against Munoz. In return he was allowed to plead to a lesser offense—accessory after the fact—with CYA recommendation if he testified in conformity with his statement to police. At the time of trial, Ramirez had entered his plea and was awaiting sentencing.
This witness was contradicted by Munoz and at least five independent unimpeached witnesses. Not only was Ramirez contradicted by a multitude *1020of independent witnesses but his own stories were admittedly a mendacious, vacillating account more self-serving with each retelling.1
Whether Ramirez was an “accomplice” or a principal, as much testimony would indicate, or only an “accessory” after the fact as he pleaded in the bargain for his testimony, his statements cry out for corroboration before any credence can be given his evidence.
The rules are clear as to accomplices: “To corroborate the testimony of an accomplice, the prosecution must present independent evidence which, without aid or direction from the testimony of the accomplice, tends reasonably to connect the defendant with the commission of the crime charged. [Citation.] Corroborating evidence is insufficient if it does no more than cast a ‘grave suspicion’ upon the accused, or merely connects him with the crime’s perpetrators. [Citation.] While the corroborating evidence need not support every fact to which the accomplice has testified, it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime. [Citations.]” (People v. Mardian (1975) 47 Cal.App.3d 16, 42 [121 Cal.Rptr. 269]; italics added.) The reasons for the rule are equally clear. An accomplice requires corroboration because of a most rational inherent distrust of a witness who bargains for his own freedom in exchange for the conviction of another. (In re Miguel L. (1982) 32 Cal.3d 100, 108 [185 Cal.Rptr. 20, 649 P.2d 703].) Whether accessory Ramirez is technically an accomplice is of no moment. He is immersed in, endowed with all the attributes of untrustworthiness that surround an accomplice.
The accomplice issue was submitted to the jury as a question of fact. The instructions include the requisite cautionary instructions as well as the corroboration requirements if Ramirez was found to be an accomplice of Munoz. Appellate review rules require the jury’s implied finding that Ramirez either was: not an accomplice, or if an accomplice, his testimony was corroborated be respected. Such concession does however not end the substantial evidence issue.
In In re Miguel L., supra, 32 Cal.3d 100, the Supreme Court confronted the no-requirement-of-corroboration-of-accomplice rule found in juvenile *1021proceedings and reversed a true finding of burglary (wardship) in face of the direct testimony of an admitted accomplice. The Supreme Court could well have been speaking of 18-year-old Ramirez when it said: “Evidence from an accomplice is regarded as untrustworthy because it is likely to have been influenced by the self-serving motives of the witness. [Citation.] Accomplice testimony is ‘often given in the hope, or expectation of leniency or immunity. ’ [Citations.] As a result, an accomplice has a strong motive to fabricate testimony which incriminates innocent persons or minimizes his participation in the offense and transfers responsibility for the crime to others. [Citation.]
“It is not unusual for an accomplice to falsely incriminate innocent persons to seek revenge or to protect friends who actually committed the crime with him. [Citation.] Further, an accomplice, especially one who is a minor, ‘may be under great parental or social pressure to testify and to lay the blame for certain conduct or a certain condition on the accused.’ [Citation.]” {Id., at pp. 108-109; italics added; fn. omitted.) The court said: “The Fourteenth Amendment of the United States Constitution guarantees due process of law and mandates that ‘no person shall . . . suffer the onus of a criminal conviction except upon sufficient proof ... to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.’ [Citation.]” {Id., at p. 105.) and on this constitutional premise concluded: “To affirm appellant’s wardship adjudication would require this court to hold that a finding of criminal conduct may be based solely on an accusation which not only lacks the traditional indicia of trustworthiness, but also comes from an unreliable source. Constitutional requirements of due process preclude this court from reaching such a holding. [Citation.]
“As a matter of law, there was insufficient evidence . . . .” {Id., at p. Ill; italics added.)
Ramirez’ testimony suffers from all traditional indicia of untrustworthiness. Our duty under the due process clause of the federal Constitution precludes a finding of substantial evidence to support the felony murder verdict. To find substantial evidence here is to accept an appellate role as a mechanistic, preset robot, where no evaluative process is authorized once a fact finding is made by the lower court. Our justice-oriented process which demands the evidence from a law-designated suspect source be analyzed, weighed for substance. This duty is especially heavy here in the light of no corroborating evidence plus multiple independent unchallenged contradictions of Ramirez’ testimony. Corroboration requirements have great significance in this mandated due process analysis. This gross deficiency in the evidence must be viewed in the context of multiple trial court errors, again not addressed by the controlling Supreme Court decision.
*1022II
On the issue of gang membership—an issue not addressed by Dillon or Donaldson, the majority seeks to distinguish People v. Cardenas (1982) 31 Cal.3d 897 [184 Cal.Rptr. 165, 647 P.2d 569], but holds the questions asked—if improper—do not require reversal. (Majority opn., ante, p. 1012.) Several condemned tape errors were committed by the trial court with which the majority opinion does not grapple.
Error No. 1
Outside the presence of the jury, the prosecutor had requested and received the court’s permission to cross-examine defense witnesses concerning membership in Mexican youth gangs, even though he admitted he could not produce direct evidence proving gang membership 2 In face of this concession the court overruled objections based on Evidence Code section 352, hearsay and lack of relevance or good faith in asking such questions but restricted the prosecutor’s vocabulary, ruling he could not use the word “gang” but the term “club” instead. The prosecutor then proceeded to ask Rodriguez, Munoz and Salas whether they were members of the “club” or “association” named the “Pee Wee Locos” or the “Océano Trece.”
Error No. 2
The three witnesses consistently denied belonging to or knowing of Munoz’ association with these groups. Rodriguez denied he was sworn to secrecy but admitted he had a tattoo saying “Ocean 13” on his hand. The prosecutor had this exchange with Munoz on cross-examination:
“[Prosecutor]: Did you hear Mr. Rodriguez talk about the existence of an association among a group of people from Océano?
“[Munoz]: Yes, I did.
“[Prosecutor]: Are you in that association?
“[Munoz]: No, I’m not.
“[Prosecutor]: Did you hear him testify that you were?
“[Munoz]: No.”
*1023As a general proposition of law, a witness may be impeached by a showing of relationship to a party that reflects the witness’ bias or prejudice. (Jefferson, Cal. Evidence Benchbook (1972) § 28.8, p. 458; 2 Wharton Criminal Evidence (13th ed. 1972) § 464, p. 405; Evid. Code, § 780, subd. (f); People v. James (1976) 56 Cal.App.3d 876, 886 [128 Cal.Rptr. 733].) And it has been held it is permissible to show a relationship, fraternal or otherwise exists between the witness and the party in whose behalf he is called as tending to affect his credibility. (People v. Pickens (1923) 61 Cal.App. 405, 408 [214 P. 1027].) However, there are foundational requirements to be met before such evidence becomes relevant and admissible.
As was said in Pickens, supra, 61 Cal.App. 405: “[T\he fact of Stone’s membership in the Ku Klux Klan without any proof that the witnesses whom it was sought to show were biased thereby had any knowledge of his being a member was clearly irrelevant to the issue. . . . The range of external circumstances from which probable bias may reasonably be inferred is too great for legal limitation, but the reason for admitting evidence of bias and interest is that the existence of such emotions renders the witness untrustworthy. It is self-evident, in order that one may be influenced by an emotion due to some circumstance such relationship, the person thus affected must have had knowledge of the fact.” {Id., at pp. 408-409; italics added.) (See also Austin v. United States (D.C. Cir. 1969) 418 F.2d 456, 459-460.)
In In re Wing Y. (1977) 67 Cal.App.3d 69, 77 [136 Cal.Rptr. 390], the trial court admitted evidence that seven boys were members of a Chinese youth gang (Wah Ching) over irrelevancy objection on the theory a common membership with the minor showed bias of the witness. The court held: “Thus, the prosecution in the instant case properly could inquire of witnesses Sammy Lee and Kenny Tam, called by the minor Wing, regarding their friendship with Wing, including their common group membership, as a means of attacking their credibility as witnesses, by establishing a bias in favor of the minor. However, at that point the inquiry into Wah Ching should have ended.” {Id., at pp. 76-77; italics added.)
In an attempt to impeach the credibility of the defendant’s alibi witnesses by showing bias, the People in In re Wing Y., supra, 67 Cal.App.3d 69, called a police officer who testified the defendant and his alibi witnesses were reputed in the Chinatown community of Los Angeles to be members of the “Wah Ching” gang. The Court of Appeal held the trial court erred in overruling the defendant’s hearsay objection to this reputation evidence. “Officer Lou was competent to testify as to the membership in the Wah Ching gang of Lee, Tam and the minor Wing, but only from personal knowledge. Thus, Evidence Code section 702, subdivision (a), provides that, un*1024less the matter pertains to the subject of expert testimony, ‘the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.' ” (Id., at p. 78; italics added.)
The trial court erred in permitting cross-examination of the defense witnesses about membership in the Pee Wee Locos or Océano Trece without first showing the witnesses’ competence (personal knowledge) or without other proper foundation.
Error No. 3
While recognizing group membership is a valid basis for showing bias, In re Wing Y. does not address all the problems here presented. The objection is not just hearsay, irrelevancy or lack of foundation, but also Evidence Code section 352 was urged. Furthermore, not just witnesses were cross-questioned but Munoz, the defendant, was also questioned concerning “club” membership.
When a defendant/witness is cross-examined on the ever present issue of veracity, the justification for gang membership questions found in In re Wing Y., supra, 67 Cal.App.3d 69, is totally absent. Gang membership is not then relevant unless “the affairs of such an organization are ... in issue.” (2 Wharton, Criminal Evidence, supra, p. 405; italics added.)
In People v. Perez (1981) 114 Cal.App.3d 470 [170 Cal.Rptr. 619] (hg. den. Supreme Ct. Mar. 11, 1981) applied this rule to any evidence concerning gang membership of the defendant unless shown to be relevant to some issue in the case.3
In Perez, the People argued defendant’s membership in the “CV3” gang was relevant to an issue at trial. The court responded: “We agree with this basic proposition and state at the outset that evidence of gang membership is not per se inadmissible. In order to be admissible it must meet the test of relevancy.
“The asserted active membership in the ‘CV3’ gang by defendant, as testified to by Deputy Valdemar, did not have any ‘tendency in reason’ to *1025prove a disputed fact, i. e., the identity of the person who committed the charged offense. Membership in an organization does not lead reasonably to any inference as to the conduct of a member on a given occasion. Hence, the evidence was not relevant. It allowed, on the contrary, unreasonable inferences to be made by the trier of fact that the defendant was guilty of the offense charged on the theory of ‘guilt by association. ’ [Citation.]” {Perez, 114 Cal.App.3d at p. 477.)
In People v. Szeto (1981) 29 Cal.3d 20, 27-28 [171 Cal.Rptr. 652, 623 P.2d 213], this principle was applied when gang membership in the “Joe Boys” gang was used to prove a motive to gain revenge on another Chinese youth gang for the slaying of one Joe Boys gang member. {Ibid.) Thus in Szeto the affairs of the organization were in issue; therefore gang membership of defendant was relevant.4 (See also People v. Frausto (1982) 135 Cal.App.3d 129 [185 Cal.Rptr. 314].)
The People have made no showing whatsoever the “club” membership of Munoz tended to prove or disprove any issue in the case. No offer of proof or any attempt to lay a foundation showing relevancy preceded the improper questioning. No hint of relevance is presented to this court.
The admission of irrelevant evidence is not left to the sound discretion of the trial judge. “[Iff evidence is irrelevant, it must be excluded. The trial judge has no discretion to admit irrelevant evidence. ” (People v. Slone (1978) 76 Cal.App.3d 611, 631 [143 Cal.Rptr. 61]; italics added; People v. Hall (1980) 28 Cal.3d 143, 152 [167 Cal.Rptr. 844, 616 P.2d 826].) What disputed fact or issue is proved or disproved by evidence of Munoz’ gang membership? None is tendered; none is conceived. The trial court erred in permitting any questions as to Munoz’ “club” membership.
Error No. 4
Further error was committed in the cross-examination of Munoz. It was observed in People v. James, supra, 56 Cal.App.3d 876, 887; “It is established law in California that, apart from matters affecting credibility, cross-examination of a witness is limited to the scope of the direct examination. (Evid. Code, § 773.) . . .
“A defendant in a criminal case, however, may not be examined by a cross-examiner beyond the scope of the direct examination. {Evid. Code, *1026§ 772, subd. (d).) The basis of this limitation on the cross-examination of a defendant in a criminal case is the constitutional privilege against self-incrimination. To permit the prosecutor to exceed the scope of the direct examination in examining a criminal defendant would amount to forcing such defendant to become the prosecution’s witness. [Citation.]” (See also People v. Collie, 30 Cal.3d 43, 55; People v. Bagwell, 38 Cal.App.3d 127, 140; hg. den. Apr. 17, 1979); Evid. Code, § 773, subd. (a); People v. Schader, 71 Cal.2d 761, 769.) Gang or club membership of the defendant does not, as in the case of a witness, tend to show a relationship contributing to bias in favor of the party on whose behalf the witness is called. The cross-examination here was clearly beyond the scope of direct testimony. It was aptly described by the trial judge as “probing and fishing to see what answers you get”—on an irrelevant issue.
Error No. 5
Munoz also objected on Evidence Code section 352 grounds—the evidence lacked probative force and was unduly prejudicial.
In People v. Cardenas, supra, 31 Cal.3d 897, 904, the long-recognized rule was repeated: “When a section 352 objection is raised, the trial court ‘must weigh the admission of [the challenged] evidence carefully in terms of whether the probative value of the evidence is greater than the potentially prejudicial effect its admission would have on the defense.’ [Citation.] If the prejudicial effect outweighs the probative value, the trial court should exclude the evidence. ‘[T]he fundamental rule [is] that relevant evidence whose probative value is outweighed by its prejudicial effect should not be admitted.’ [Citation.]” (Italics added.) (See also People v. Green (1980) 27 Cal.3d 1, 24 [164 Cal.Rptr. 1, 609 P.2d 468].)
By his objection Munoz “specifically invoked the discretion vested in the court by Evidence Code section 352 to exclude otherwise relevant evidence ‘if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . .’” (People v. Green, supra, 27 Cal.3d 1, 24.)
The trial court here made no such mandated evaluation. Concerning such a failure, the Supreme Court in People v. Green, supra, said (at p. 24): “As defendant correctly points out, the record does not show that the court did in fact discharge its statutory duty in these circumstances by weighing the statement’s potential for prejudice against its probative value and concluding that the latter was not ‘substantially outweighed’ by the former. Instead, the court simply ruled that it would deny defendant’s motion and would admit the statement with a limiting admonition to the jury.” Said the *1027Supreme Court (at p. 25): “The Attorney General responds that the record in the case at bar does not contain a similar affirmative showing that the trial court misunderstood its duty to weigh prejudice against probative value; here the record is simply silent on the point, and the Attorney General implies that in such event it should be assumed the court knew and performed its duty. The argument is untenable: .... Moreover, since the enactment of section 352 the Ford [People v. Ford, 60 Cal.2d 772, 801] requirement—i.e., that on a motion invoking this ground the record must affirmatively show that the trial judge did in fact weigh prejudice against probative value—has been reiterated both by the courts [citation] and by the writers [citation].” (Italics added; fn. omitted.)
The probative value of Munoz’ gang membership (if it were a fact) was zero for it did not in any way connect the defendant with the crime itself. (See In re Ricky B. (1978) 82 Cal.App.3d 106, 111 [146 Cal.Rptr. 828].) Membership in the Pee Wee Locos or Océano Trece does not have any “tendency in reason” to prove the disputed fact, i.e., the identity of the person who committed the murder. As was said in People v. Perez, supra, 114 Cal.App.3d 470, 477: “Membership in an organization does not lead reasonably to any inference as to the conduct of a member on a given occasion. Hence, the evidence was not relevant. It allowed, on the contrary, unreasonable inferences to be made by the trier of fact that the defendant was guilty of the offense charged on the theory of ‘guilt by association.’ [Citation.]” Evidence is not admissible to show a defendant’s criminal propensity or bad character as the means of raising an inference the defendant committed the charged crime. (People v. Sam (1969) 71 Cal.2d 194, 206 [77 Cal.Rptr. 804, 454 P.2d 700].)
Thus not only does the evidence lack any probative value, the danger of undue prejudice was great. In less violent times, an appellate court could observe that evidence a youthful Hispanic was a member of a youth gang was not prejudicial. (See People v. Zammora, 66 Cal.App.2d 166, 214.) But as pointed out in People v. Perez, supra, 114 Cal.App.3d at page 479: “Zammora was decided in 1944. In the decision on page 215 it states ‘it seems only reasonable to assume that the use of the word “gang” referred only to the usual and ordinary crowd of young people living in any particular neighborhood, who associate themselves together, and from time immemorial has been referred to as a “gang.” ’ Thirty-six years have passed since Zammora. It is fair to say that when the word ‘gang’ is used in Los Angeles County, one does not have visions of the characters from the ‘Our Little Gang’ series. The word gang as used in the case at bench connotes opprobrious implications.”
The Supreme Court in People v. Cardenas, supra, 31 Cal.3d 897, 905, accepted the Perez reasoning, saying: “[T]he jury would improperly infer *1028that appellant had a criminal disposition because (1) the El Monte Flores was a youth gang, (2) such gangs commit criminal acts; and (3) appellant was a member of the Flores gang.”
The conclusion is inevitable. The gang membership questioning constituted not just an abuse of discretion; it was in direct contravention of multiple statutory and judicially decided rules of evidence.
Ill
The majority opinion avoids the reasoning and rule of People v. Cardenas, supra, 31 Cal.3d 897. In Cardenas, as here, the prosecutor did not specifically refer to the group as a “gang,” but the Supreme Court observed the jury “undoubtedly identified the group as [a gang] either from their personal knowledge or from their in-court observations of the witnesses’ age, ethnicity, and tattoos.” {Id., at p. 905.) Other testimony already established Cardenas and defense witnesses were friends and lived in the same neighborhood. The Supreme Court held the inquiries into group (gang) affiliations were unnecessary, cumulative, and prejudicial, notwithstanding the prosecutor’s theory the evidence was offered to establish possible bias of the witnesses in favor of the defendant. {Id., at pp. 904-905.) “‘[T]he prosecution has no right to present cumulative evidence which creates a substantial danger of undue prejudice to the defendant.’” {Id., at p. 905; italics added.)
Cardenas holds there is no per se rule for exclusion of gang membership evidence. Rather, the Supreme Court cites People v. Perez, supra, 114 Cal.App.3d 470, 478, for the application of the long-established Evidence Code section 352 duties imposed upon a trial judge to weigh and evaluate proffered evidence. The probative value must be weighed against the potentially prejudicial effect. Finally, Cardenas declares evidence of membership in a Chicano youth gang in Southern California in 1981 could cause the jury to improperly infer the defendant has a criminal disposition.
We confront that same issue as divided the Cardenas court. Was the erroneous admission of the “club” membership testimony “harmless error”? While not binding precedent the Cardenas plurality gives some guidance on the harmless error issue, for Munoz’ case is factually akin to Cardenas in many aspects.
The key “disputed fact” in this prosecution (and Cardenas) was the identity of the killer. Here, as in Cardenas, there was no showing the crime was gang related or that “club” membership gave any hint of the killer’s identity. Evidence of gang membership from the witnesses was (if admis*1029sible) at best circumstantial evidence of bias. Evidence of gang membership was simply not relevant to and not within the scope of Munoz’ testimony.
This was a very close case factually in which the jury was required to choose between Munoz’ alibi supported by several witnesses and Ramirez’ varied past and present versions of the shooting and his multiple confessions to unimpeached third persons. Corroboration of Ramirez’ testimony connecting Munoz with an “act or fact which is an element of the crime” cannot be found in this record. Thus, credibility was all important. “Certainly a substantial showing of probative [italics ours] value was required to justify admission of this prejudicial . . . evidence so that the jury could dispassionately perform its function of ascertaining the truth as to the events involved in this case.” (People v. Sam, 71 Cal.2d 194, 206.) The jury deliberated some 12 hours. In Cardenas the jury’s 12 hours of deliberation was a “graphic demonstration” the case was close. (Id., at p. 907.) The Cardenas court noted deliberations longer than six hours have been held to show the issue of guilt is not “open and shut.” (Ibid.)
The conclusion is inescapable. The trial court’s rulings constituted an abuse of discretion. The gang membership questions for at least five good and sufficient reasons should have been excluded. The effect of these errors must next be examined in light of the “harmless error” rule.
IV
Under the rule of Donaldson v. Superior Court, supra, 35 Cal.3d 24, 28-34, Munoz’ secretly recorded jail house telephone conversations with visitor Aurora Galvan were admissible. (This surreptitiously recorded conversation, along with a transcript, was in fact admitted without objection.) On this tape, Munoz and Galvan discussed their activities the day and night of the murder. At least one reasonable inference to be drawn from the conversation was that Munoz was coaching Galvan to be an alibi witness on his behalf. This is one of the two weak reeds that gives rise to an inference of guilt that supports the Ramirez evidence.
V
Under direction of the Supreme Court in Donaldson, the Galvan discourse are admissible, yet even more egregious errors occurred in the admission of the tapes and recording of Munoz’ police car conversations. (See Majority opn., ante, fn. 3, pp. 1016, 1017.) Three days after being arrested for the Klima murder, Munoz, together with Ramirez and Raul Galvan were placed in the back of a police patrol car and their conversation recorded by a concealed tape recorder. Munoz had not yet been arraigned. He was told *1030he was to be transported to the municipal court for arraignment. The record of that court shows no arraignment proceedings set or held on that day. The three were transported to the courthouse, left alone in the patrol car for three-quarters of an hour, where their conversations were surreptitiously taped, then returned to the jail. Munoz was not arraigned until nine days after his arrest (May 22, 1980). That Munoz knew Ramirez had already talked to the police, had pointed the finger of guilt at Munoz, and was bargaining for leniency may be inferred from the conversation.
A tape and transcript of this conversation were admitted into evidence at trial over defense objections based on violation of defendant’s privacy and Fifth Amendment rights. Munoz also claimed the tape was inaudible and the transcript inaccurate, and under Evidence Code section 352, the prejudicial effect outweighed the probative value of the evidence. At the preliminary hearing, the tape was admitted by stipulation.
We confront here pretrial detainees not held within the jail walls, yet are in police custody. The De Lancie (De Lancie v. Superior Court (1980) 31 Cal.3d 865 [183 Cal.Rptr. 866, 647 P.2d 142])—no surreptitious monitoring except for security reasons—rule was expressly declared to extend, not only to conversations between detainees and visitors but also to communications between detainees. Section 2600 expressly grants rights to “aperson sentenced to imprisonment in a state prison.” (Italics added.) There is no restriction limiting the exercise of these rights to any particular specie of custody or place within the prison. In short the rights, by the plain unambiguous language of the statutes, are granted to the person not to a place. These are the prisoner’s personal rights. These rights adhere to the individual, subject only to such limitation as may be necessary to provide for the reasonable security of the institution and the protection of the public.
This construction is supported by interpretations of the Fourth Amendment to the federal Constitution. (See Katz v. United States (1967) 389 U.S. 347, 353 [19 L.Ed.2d 576, 583, 88 S.Ct. 507].) The “Fourth Amendment protects people not places” (Katz, supra, at p. 351 [19 L.Ed.2d at p. 582]) as does article I, section 1 of the California Constitution. The “uninvited ear” rule, resting on the Fourth Amendment, applies to persons whether in taxicabs, telephone booths or wherever. The equal protection reasoning of De Lancie should apply to pretrial detainees while being transported in a police patrol car to the court building for arraignment just as it does to detainees held in the jail house holding tank, cells, exercise yard, jail hospital or booking area.
VI
De Lancie followed the well-established principle a court should avoid resolving an issue on constitutional grounds if the case can be decided upon *1031statutory premises. (See fn. 12, 31 Cal.3d at p. 877, De Lancie.) I agree with this approach. However, the facts here compel, relative to the recorded police car conversations, a consideration of police violations of the Fourth, Sixth and Fourteenth Amendments to the federal Constitution. Ramirez at the time of these conversations had just made a bargain with the prosecution to testify against Munoz. Most recent United States Supreme Court decisions require a factual inquiry into whether Ramirez, at the time the patrol car tape was made, was acting on behalf of the police. (United States v. Henry (1980) 447 U.S. 264 [65 L.Ed.2d 115 100 S.Ct. 2183]; Rhode Island v. Innis (1980) 446 U.S. 291 [64 L.Ed.2d 297, 100 S.Ct. 1682, 1689]; and Massiah v. United States (1964) 377 U.S. 201, 206 [12 L.Ed.2d 246, 250, 84 S.Ct. 1199].)
In Henry, the government’s use of a paid informant, who ostensibly was a fellow inmate, was held to render incriminating statements “deliberately elicited” from Henry by the informant inadmissible as violative of the Sixth Amendment right to counsel. In Henry, the informant “deliberately used his position to secure incriminating information from Henry when counsel was not present . . . .” (Henry, 447 U.S. at p. 270 [65 L.Ed.2d at p. 122].)5
In Massiah, supra, 377 U.S. 201, the government outfitted an informant’s automobile with radio transmitting equipment and instructed the informant to engage the defendant in conversations relating to the crime. The statements were suppressed. The court held that the Sixth Amendment must apply to indirect and surreptitious interrogations as well as those conducted at the jail house. (Massiah, at p. 206 [12 L.Ed.2d at p. 250].)
The police car taping here was conducted three days after Munoz’ arrest and after Ramirez had agreed to cooperate with the police. The United States Supreme Court admonished us that such arranged confrontation must be scrutinized carefully to determine whether a police “agent” was involved and whether this involvement occurred at a critical stage of the prosecution to which the Sixth Amendment right to assistance of counsel attaches. (See United States v. Henry, supra, 447 U.S. at p. 270 [65 L.Ed.2d at p. 122].)
*1032Munoz at the time of the police car bugging had not been arraigned; no charges were yet lodged against him. He had been held three days (May 13 to May 16) in violation of statute and constitutional provisions, without being taken before a magistrate.6 Munoz was not in fact arraigned until nine days after his arrest.
This failure to promptly arraign Munoz necessarily interfered with his fundamental right to liberty. He was denied a meaningful opportunity to obtain counsel, post bail or be released on his own recognizance. (Van Atta v. Scott (1980) 27 Cal.3d 424, 431 [166 Cal.Rptr. 149, 613 P.2d 210].) Notice of right to counsel and counsel’s availability may await the arraignment process. Violation of the prompt arraignment rule of Penal Code section 825 also constitutes an unnecessary and unreasonably prolonged detention in contravention of article I, section 14 of the California Constitution which requires that a person accused of a felony “ ‘be taken without unnecessary delay before a magistrate.’” (People v. Thompson (1980) 27 Cal.3d 303, 329 [165 Cal.Rptr. 289, 611 P.2d 883].)
The more critical question is what sanctions are to be imposed for this breach of official duty.
As was stated in People v. Thompson, supra, (27 Cal.3d at pp. 329-330): “[E]ven if a confession occurs during a period of illegal detention under section 825, that fact alone does not render it' inadmissible. A delay in arraignment is treated ‘as only one of the factors to be considered in determining whether the statement was voluntarily made.’ [Citations.] To exclude the statement, the defendant must show that ‘the illegal detention produced the admissions’ or that there was an ‘essential connection between the illegal detention and the confession.’ [Citations.]”
The Supreme Court in People v. Pettingill (1978) 21 Cal.3d 231, 244 [145 Cal.Rptr. 861, 578 P.2d 108], held: "The principal purposes of the requirement of prompt arraignment are to prevent secret police interrogation, to place the issue of probable cause for the arrest before a judicial officer, to provide the defendant with full advice as to his rights and an opportunity to have counsel appointed, and to enable him to apply for bail or for habeas corpus when necessary.
“It follows that the failure of the police to cease all attempts at interrogation of defendant herein after he refused to waive his right to remain *1033silent was not cured by their subsequent failure to comply with the laws requiring his prompt arraignment. Two such wrongs do not make a right; they remain separate abuses, compounding the infringement of defendant’s privilege against self-incrimination. ” (Italics added.)
Thus the failure to comply with Penal Code section 825 and article I, section 14 of the California Constitution may have prevented Munoz’ exercise of his Sixth Amendment right to counsel. Thus the one statutory and state constitutional wrong—delayed arraignment—produced a greater, more profound federal constitutional wrong—if Ramirez’ activities and purpose falls within the Henry-Innis-Massiah prohibition.
These tapes—from the jail house and the police car—were admitted with the foregoing unresolved factual, statutory, and constitutional issues. Even assuming substantial evidence supports the conviction, a retrial is required under De Lancie. The jail house tape, to be admissible, must be shown to have been recorded for security purposes. Retrial would be required by Henry for this reason also and additionally for inquiry into whether Ramirez was a police agent as he sat in the patrol car and deliberately elicited statements from Munoz in violation of the rule of Massiah v. United States, supra, 377 U.S. 201.
VII
The erroneously admitted “gang” member evidence should be assessed for reversible error under the Watson rule. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) However, the erroneous admission of the tape recordings of a pretrial detainee held in violation of prompt arraignment rules presses upon statutory, as well as state and federal constitutional nerves. Federal constitutional error requires reversal if this court is unable to declare its belief that the errors were harmless beyond a reasonable doubt. {Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824].)
Whether the test is “harmless” error under Watson or Chapman rules, the result is the same. The case against Munoz rests entirely on the believability of Ramirez—a witness who is patently vulnerable to charges of mendacity, bias, prejudice, self-interest and multiple contradictions by several witnesses. The corroboration of Ramirez’ story, if admissible, is weak to nonexistent.
In a remarkably similar case, the Supreme Court in People v. Green, supra, 27 Cal.3d 1, 71-73, was influenced by the fact the conviction rested *1034on the dubious testimony of a cosuspect. “Our doubt in the matter is enhanced by the particular facts of the case at bar. . . .
“[A]ll that evidence came from a single source—the testimony of David Khan—cannot have inspired much confidence. Not only did Kahn’s testimony on these points remain wholly uncorroborated, but on both direct and cross-examination his credibility was thrown into serious question. Thus on direct examination he admitted that he repeatedly lied to the authorities in the days following his arrest. On cross-examination Khan conceded that he changed his story and began accusing defendant of the crime when the authorities told him that he would be charged with the murder himself. He acknowledged that during the trial he was in custody for his own protection and had been promised by the authorities that as soon as the trial was over he would be ‘placed,’ i.e., he would be provided with a place to live of his own choosing.” (People v. Green, supra, 71-72; fn. omitted.)
VIII
Finally, there is not one but multiple errors in the admission of critical evidence. There is no litmus test to indicate whether the jury convicted on the basis of admissible or inadmissible evidence. Therefore the judgment must be reversed. In People v. Robinson (1964) 61 Cal.2d 373, 406 [38 Cal.Rptr. 890, 392 P.2d 970], the Supreme Court said: “When, as in this instance, a reviewing court is unable to determine from the record whether a jury convicted on admissible evidence or rejected that evidence and convicted on inadmissible evidence improperly received, it must find the error to have been prejudicial. Under a different factual situation, but where the principle was equally applicable, this court said: ‘However reprehensible the conduct of an accused, he is entitled to have its legal consequences determined from competent evidence by a jury properly instructed. Here, we cannot fairly say that, had the improper evidence improperly used not been before the jury, unadvised of its impropriety, the verdict and sentence would have been the same.’ [Citation.]” (To the same effect see People v. Green, supra, 27 Cal.3d 1, 69.) The Robinson-Green rule requires reversal if any one of the several areas of evidence complained of is found to be inadmissible and it cannot be determined whether the jury convicted on admissible evidence or on inadmissible evidence improperly received. The cumulative prejudice resulting from the erroneous evidentiary rulings may require reversal. (Cardenas, supra, 31 Cal.3d at p. 907.) Reversal is also necessary when it cannot be said the combined errors were harmless beyond reasonable doubt. {In re Rodriguez (1981) 119 Cal.App.3d 457, 470 [174 Cal.Rptr. 67].)
*1035IX
In his habeas corpus petition, Munoz charges trial counsel with ineffectiveness. The majority resolution of this issue cannot be faulted.
I would reverse the judgment.
Appellant’s petition for a hearing by the Supreme Court was denied September 26, 1984.
Ramirez first lied to the police, claiming an alibi, then he blamed the murder on Munoz. He did not tell the police or the preliminary hearing magistrate about a Munoz demand for Klima’s wallet or of his, Ramirez’, possession of the gun the day after the shooting until after the preliminary examination—two weeks before trial. He explained he was afraid he or a friend would be implicated. How this story would implicate a stranger is not made clear. At the preliminary hearing Ramirez denied seeing the gun after the shooting. At trial he said he did not find a gun in his car that night but the next day he found a .22 caliber pistol under a rug in the back seat. He put the gun in the glove compartment.
The district attorney made no offer of proof to overcome the court’s initial and sound concern “Are you prepared to have any back-up evidence . . .?” Mr. La Barbera (Dist. Atty.): “I don’t think we would get anybody to come in and testify [to gang membership].’’
People v. Perez is also cited with approval in the dissent of People v. Cardenas, supra, 31 Cal.3d 897.
The difficult problem in Szeto was the mode of proof of gang membership. A divided Supreme Court held admissible opinion (hearsay) testimony absent a timely objection. The plurality opinion three to one to two leaves this issue unresolved.
The United States Supreme Court distinguished prearrest investigation: “It is quite a different matter when the Government uses undercover agents to obtain incriminating statements from persons not in custody but suspected of criminal activity prior to the time charges are filed.” (Henry, at p. 272 [65 L.Ed.2d at p. 123].) The Fourth Amendment does not protect a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. (See Hoffa v. United States (1966) 385 U.S. 293, 302 [17 L.Ed.2d 374, 382, 87 S.Ct. 408, 413.].) The Fifth Amendment is not implicated by the use of undercover agents before charges are filed. As the Henry court noted: “[T]he Fourth and Fifth Amendment claims made in those cases are not relevant to the inquiry under the Sixth Amendment here—whether the Government has interfered with the right to counsel of the accused by ‘deliberately eliciting’ incriminating statements.” (Henry, 447 U.S. at p. 272 [65 L.Ed.2d at p. 123].)
In People v. Powell (1967) 67 Cal.2d 32, 59 [59 Cal.Rptr. 817, 429 P.2d 137], the Supreme Court interpreted Penal Code section 825: “‘The defendant must in all cases be taken before the magistrate without unnecessary delay, and in any event, within two days after his arrest....’” Said the Supreme Court: “[Sjection 825 does not authorize even a two-day detention in all cases . . . .” {Ibid.)