I respectfully dissent. I will attempt to demonstrate that even if a proper Miranda1 warning was given, there was insufficient proof of a knowing and intelligent waiver of the right to the assistance of a court-appointed attorney prior to and during the questioning. Following that, I will discuss why I believe that the Supreme Court’s opinion in California v. Prysock (1981) 453 U.S. 355 [69 L.Ed.2d 696, 101 S.Ct. 2806]) is an ill-considered disservice to the police, the courts and the public which is unsuitable for application to California’s Constitution, “‘a document of independent force.’”2 Then I will discuss whether there was sufficient evidence to support a finding of premeditation and, finally, will question the majority’s holding that Penal Code section 135 does not apply to the facts of this case.
Knowing Waiver of Counsel
Sergeant Byrd did not advise defendant that he had a right to a free attorney in the interrogation room. Instead the officer advised the minor defendant of his right to have an attorney there, then diverted the discussion into an irrelevant dissertation of the right to have parents present, followed by the statement that he had a right to an appointed attorney. It is our duty to examine whether a trial court could make a finding, using the beyond-a-reasonable-doubt standard, that the defendant connected the two statements together and inferred therefrom that his rights included that of having an appointed attorney present prior to and during the questioning.
Circumspection must be exercised when making this determination because of the defendant’s age. Thus, In re Gault (1967) 387 U.S. 1, 55 *1007[18 L.Ed.2d 527, 561, 87 S.Ct. 1428], when discussing the waiver of the constitutional privilege against self-incrimination by minors, stated: “If counsel was not present ... when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights.As stated in In re Anthony J. (1980) 107 Cal.App.3d 962, 971 [166 Cal.Rptr. 238]: “The burden is upon the prosecution to establish that an accused’s statements are voluntary; the burden is greater in the case of a juvenile than the case of an adult.... ”
The caution expressed in Gault has found verification in Grisso, Juveniles’ Capacities to Waive Miranda Rights: An Empirical Analysis (1980) 68 Cal.L.Rev. 1134 (hereinafter cited as Juveniles’ Capacities to Waive Miranda). The study’s results, however, should be used with some caution, since in the statement of Miranda rights, the subjects were given an admonition which incorporated the word “interrogation,” whereas Sergeant Byrd used the word “questioning,” a more commonly used word. If the study had used “questioning” instead of “interrogation,” one may expect that greater comprehension would have been obtained by the test subjects. (See the relatively low score of those who gave an adequate response to a vocabulary test of the word “interrogation” at p. 1153.)
Another factor which is impossible to weigh is the fact that the empirical research was conducted in a relatively unthreatening social situation and setting—one that differs markedly from that faced by the defendant here.
After making these allowances, however, one is struck with the fact that “The most frequently misunderstood Miranda warning ... was the statement that a suspect has the right to consult an attorney before interrogation and to have an attorney present during interrogation. Inadequate (zero-credit) descriptions of this warning were given by 44.8% of the juveniles and 14.6% of the adults.” (Juveniles’ Capacities to Waive Miranda, supra, at p. 1154.)3
*1008We may disregard the effects lack of sleep and nutrition and any alcoholic ingestion as having been found against the defendant by the court below. However, even though the majority has found that the admonition meets constitutional muster, its opacity and ambiguity should be considered in determining whether the defendant knew that he had the right to a free lawyer prior to and during questioning.
It cannot be denied that the warnings given by Sergeant Byrd did not expressly advise defendant that, if he could not afford an attorney, he had a right to have one appointed at no cost prior to and during questioning. The defendant was told at one point that he had a right to have an attorney before and during questioning. At another point, he was informed: “... You all, uh—if—you have the right to have a lawyer appointed to represent you at no cost to yourself....” Although the United States Supreme Court found this to be an adequate admonition, it nevertheless requires an inference that the discussion in reference to the appointment of a free attorney relates back to the right to have a lawyer prior to and during questioning. The two were not expressly connected together. In the face of the misunderstanding of the juveniles in Juveniles’ Capacities to Waive Miranda, supra, as to this right and the caution expressed by the court in Gault, how can it be said that there is evidence from which the trial judge could have found beyond a reasonable doubt that the statement at issue was the product of a knowing and intelligent waiver of defendant’s Miranda rights? (People v. Braeseke (1979) 25 Cal.3d 691, 701 [159 Cal.Rptr. 684, 602 P.2d 384], judgment vacated and cause remanded (1980) 446 U.S. 932 [64 L.Ed.2d 784, 100 S.Ct. 2147], reiterated (1980) 28 Cal.3d 86 [168 Cal.Rptr. 603, 618 P.2d 149], cert. den. (1981) 451 U.S. 1021 [69 L.Ed.2d 395, 101 S.Ct. 3015].)
Although it is the defendant’s understanding, not that of his parents, which we must examine, it is relevant to note Mrs. Prysock asked to go off the record with some questions about counsel almost immediately after Sergeant Byrd’s admonition, and when they returned to the tape “their ensuing colloquy with the sergeant related to their option ‘to hire a lawyer.’” (California v. Prysock, supra, 453 U.S. 355, 365 [69 L.Ed.2d 696, 704, 101 S.Ct. 2806, 2812] (dis. opn. of Stevens, J.).)
*1009I can draw but one conclusion: The prosecutor failed to show beyond a reasonable doubt the necessary knowing and intelligent waiver of the right to a court-appointed attorney prior to and during the questioning.
California’s Privilege Against Self-incrimination
Shortly after being taken to the police station, the defendant was given a statement of rights by a Sergeant Byrd. Defendant declined to talk. The record does not reveal the exact content of the advisement, the officer merely testified that he read a recitation of Miranda rights. (The majority does not suggest that there is a presumption that the statement was adequate. Proof of the contents of the statement should be a matter of the state’s burden of proof.)
Defendant’s parents were called, and they came to the station. About 20 minutes after defendant refused to talk, his mother entered the room where her son was located. She talked with him about 20 minutes. Defendant’s mother exited and indicated defendant wished to discuss the events of earlier in the day. A few minutes after this Sergeant Byrd reentered the room where defendant was located; defendant’s parents followed. Byrd took a taped statement from defendant which was admitted into evidence.
A. The Advisement
The issue can be presented by selecting portions of the statement and pertinent testimony given by Sergeant Byrd as to an off-tape discussion. The tape reflects the following:
“Sgt. Byrd: You have the right to talk to a lawyer before you are questioned, have him present with you while you are being questioned, and all during the questioning. Do you understand this?
“Randall P.: Yes.
“Sgt. Byrd: You also, being a juvenile, you have the right to have your parents present, which they are. Do you understand this?
“Randall P.: Yes.
“Sgt. Byrd: Even if they weren’t here, you’d have this right. Do you understand this?
*1010“Randall P.: Yes.
“Sgt. Byrd: You all, uh—if—you have the right to have a lawyer appointed to represent you at no cost to yourself. Do you understand this?
“Randall P.: Yes.”
B. Conversation Off the Record
Shortly thereafter, at the request of the defendant’s mother, Mrs. Prysock, the conversation went off the record. The transcript then continues:
“Sgt. Byrd: Okay, Mrs. Prysock, you asked to get off the tape, we are going back on the tape and the time now is 22:55 hours, we, on 1/30/78, the time, uh, we were off the air, the record, record for approximately five minutes. During that time you asked, decided you wanted some time to think about getting, whether to hire a lawyer or not.
“Mrs. P.: ’Cause I didn’t understand it.
“Sgt. Byrd: And you have decided now that you want to go ahead and you do not wish a lawyer present at this time?
“Mrs. P.: That’s right.
“Sgt. Byrd: And I have not persuaded you in any way, is that correct?
“Mrs. P.: No, you have not.
“Sgt. Byrd: And, Mr. Prysock, is that correct that I have done nothing to persuade you not to, to hire a lawyer or to go on with this?
“Mr. P.: That’s right.” (Italics added.)
At trial, Sergeant Byrd was cross-examined in reference to a conversation after the statement was taken: “Q. [Defense counsel] Did you ever mention to Mr. or Mrs. Prysock or Randy how much it would cost them to hire an attorney?
*1011“A. I think Mr. Prysock made some remarks to me that he didn’t have money to hire an attorney. And I told him that the price of an attorney that Randy qualified for the Public Defender’s office.
“And that the price of the attorney that this would be the proper people to contact, and that they had some excellent attorneys, I believe is the statement I made to him.” (Italics added.)
C. Discussion
In Miranda v. Arizona, supra, 384 U.S. 436, the United States Supreme Court held: “[W]hen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” (Id., at pp. 478-479 [16 L.Ed.2d at p. 726] fn. omitted, italics added.)
In our earlier opinion, we held that defendant’s confession was procured in violation of his federal Miranda rights because “he was not given an adequate warning that he could have the services of a free attorney before and during the interrogation.”
In so holding, we relied on two appellate court decisions, People v. Bolinski (1968) 260 Cal.App.2d 705 [67 Cal.Rptr. 347] and People v. Stewart (1968) 267 Cal.App.2d 366 [73 Cal.Rptr. 484].
In People v. Bolinski, supra, 260 Cal.App.2d 705, 718, 723, prior to giving a statement the defendant was told by one officer that if he was *1012charged he would be appointed counsel. Another officer told him that he had a right to a lawyer. The parties were then in Illinois and the second officer testified: “I advised him that the court would appoint one in Riverside County” and that “‘a public defender would be furnished for him by the court.’” The court held these advisements were inadequate.
People v. Stewart, supra, 267 Cal.App.2d 366 held that a warning which told the defendant “‘... that he had a right to an attorney, and he could have his attorney here; ... [¶] [that] he had a right to have the Public Defender appointed in case he couldn’t afford an attorney; and that if he didn’t want the Public Defender to be appointed, that he could pick an attorney and this attorney would be appointed by the Court for him,’” was not adequate. (Id., at p. 378, fn. 16.) The court stated at page 378: “It is argued that the statement that defendant might have his attorney ‘here’ distinguishes Bolinski and satisfies Miranda. We do not agree. The burden is on the People to show that warnings of all the constitutional rights were given, that defendant understood them, and that he thereafter voluntarily and intelligently waived those rights. Ambiguities in the warnings must be resolved against the prosecution. As recounted in the case at bench, the warning could well have been interpreted to mean no more than that the court-appointed attorney would, at some future time, visit defendant in jail. This is not the equivalent of telling him that the interrogation would suspend until the attorney arrived.”
We noted that the Bolinski warnings contained a stronger implication than the instant warnings that free counsel would be provided later. But the Bolinski warnings resembled the instant warnings in that there was no statement that free counsel would be provided prior to questioning if desired.
We also observed that the instant warnings closely paralleled the Stewart warnings. There the defendant was told that he could have his attorney “here,” and that he had the right to have the public defender appointed. (People v. Stewart, supra, 267 Cal.App.2d at p. 378.) In the instant case defendant was told that he had a right to talk to a lawyer before and during questioning and that he had a right to have a lawyer appointed to represent him at no cost. In neither case was the defendant told that the free attorney could be present in the interrogation room.
In California v. Prysock, supra, 453 U.S. 355 [69 L.Ed.2d 696, 101 S.Ct. 2806], in a per curiam opinion to which three justices dissented, *1013the United States Supreme Court held that our original opinion was error as follows: "... the police in this case fully conveyed to [defendant] his rights as required by Miranda. He was told of his right to have a lawyer present prior to and during interrogation, and his right to have a lawyer appointed at no cost if he could not afford one. These warnings conveyed to [defendant] his right to have a lawyer appointed if he could not afford one prior to and during interrogation. The Court of Appeal erred in holding that the warnings were inadequate simply because of the order in which they were given.” (453 U.S. at p. 361 [69 L.Ed.2d at p. 702, 101 S.Ct. at p. 2810], fn. omitted.)
At the outset, the Supreme Court remarked that our original opinion “essentially laid down a flat rule requiring that the content of Miranda warnings’be a virtual incantation of the precise language contained in the Miranda opinion.” (453 U.S. at p. 355 [69 L.Ed.2d at p. 699, 101 S.Ct. at p. 2807].)
After setting up this straw man, the Supreme Court knocked it down by observing that: “Quite the contrary, Miranda itself indicated that no talismanic incantation was required to satisfy its strictures. The Court in that case stated that ‘[t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admission of any statement made by a defendant.’ 384 U.S. at 476 (emphasis supplied).” (453 U.S. at pp. 359-360 [69 L.Ed.2d at p. 701, 101 S.Ct. at p. 2809].)
The Supreme Court distinguishes Bolinski as follows: “In both instances [of warnings] the reference to appointed counsel was linked to a future point in time after police interrogation, and therefore did not fully advise the suspect of his right to appointed counsel before such interrogation.
“Here, in contrast, nothing in the warnings given respondent suggested any limitation on the right to the presence of appointed counsel different from the clearly conveyed rights to a lawyer in general, including the right ‘to a lawyer before you are questioned, ... while you are being questioned, and all during the questioning.’ [Citation.]” (453 U.S. at pp. 360-361 [69 L.Ed.2d at p. 702, 101 S.Ct. at p. 2810].)
The Supreme Court noted our reliance on Stewart but made no effort to distinguish it. (453 U.S. at p. 359 [69 L.Ed.2d at p. 701, 101 S.Ct. at p. 2809].)
*1014The dissent criticized the majority for failing to come to terms with our finding that defendant was not given the information required by Miranda—the right to the presence of appointed counsel prior to and during questioning if desired. (453 U.S. at p. 362 [69 L.Ed.2d at p. 703, 101 S.Ct. at pp. 2811-2812].)
For the reasons stated below, I believe that defendant’s confession was procured in violation of his privilege against self-incrimination contained in article I, section 15, of the California Constitution, which provides that “Persons may not ... be compelled in a criminal cause to be a witness against themselves,...”
In People v. Pettingill (1978) 21 Cal.3d 231 [145 Cal.Rptr. 861, 578 P.2d 108], the California Supreme Court held that defendant’s confession was inadmissible under the California Constitution because it was the product of a custodial interrogation renewed by the police after defendant had twice indicated to them that he wished to remain silent. Pettingill arose from Miranda’s rule that “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” (Miranda v. Arizona, supra, 384 U.S. at pp. 473-474 [16 L.Ed.2d at p. 723], fn. omitted.) The court discussed a series of California holdings “which have applied that language and made it an intrinsic part of the law of this state.” (People v. Pettingill, supra, 21 Cal.3d at p. 237.)
Earlier, in People v. Disbrow, supra, 16 Cal.3d 101, 113, our Supreme Court held: “... the privilege against self-incrimination of article I, section 15, of the California Constitution precludes use by the prosecution of any extrajudicial statement by the defendant, whether inculpatory or exculpatory, either as affirmative evidence or for purposes of impeachment, obtained during custodial interrogation in violation of the standards declared in Miranda and its. California progeny. . . .”
Pettingill and Disbrow establish that the basic standards declared in Miranda have become “an intrinsic part of the law of this state.” Those standards include, of course, a warning to the effect that the interrogated defendant “has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” (Miranda v. Arizona, supra, 384 U.S. at p. 479 [16 L.Ed.2d at p. 726].) It remains for us to decide whether, under California law, defendant was adequately so warned.
*1015He was not.
Miranda itself explained the importance of this particular requirement: “The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right lo choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent without more ‘will benefit only the recidivist and the professional.’ Brief for the National District Attorneys Association as amicus curiae, p. 14. Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. Cf. Escobedo v. Illinois, 378 U.S. 478, 485, n. 5. Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning but also to have counsel present during any questioning, if the defendant so desires.” (Miranda v. Arizona, supra, 384 U.S. at pp. 469-470 [16 L.Ed.2d at p. 721].)
The need for clear advisements in this particular area is underscored by the Grisso study which showed that 55.3 percent of juveniles and 23.1 percent of adults tested did not adequately understand at least one of the four Miranda warnings. The most frequently misunderstood Miranda warning for both samples was the statement that a suspect has the right to consult an attorney before interrogation and to have an attorney present during interrogation. (Juvenil Capacities to Waive Miranda, supra, at pp. 1153-1154.)
California v. Prysock sets up a straw man, knocks him down, pays lip service to Miranda, and, in my view, proceeds to honor it in the breach. The per curiam opinion fails to explain how the instant advisements were a “fully effective equivalent” to the warning articulated in Miranda. The three dissenters were not persuaded. Neither am I.
The methodology selected by Sergeant Byrd here (first a statement of a right to have a lawyer before and during questioning, then the several *1016totally gratuitous comments relating to the right to have his parents present, followed by a general advisement of the availability of an appointed lawyer) is hardly a functional equivalent to a traditional Miranda warning.
As the dissent observed in California v. Prysock: “The ambiguity in the warning given respondent is further demonstrated by the colloquy between the police sergeant and respondent’s parents that occurred after respondent was told that he had the ‘right to have a lawyer appointed to represent you at no cost to yourself.’ Because lawyers are normally ‘appointed’ by judges, and not by law enforcement officers, the reference to appointed counsel could reasonably have been understood to refer to trial counsel. That is what respondent’s parents must have assumed, because their ensuing colloquy with the sergeant related to their option ‘to hire a lawyer.’” (California v. Prysock, supra, 453 U.S. 355, 364 [69 L.Ed.2d 696, 704, 101 S.Ct. 2806, 2812], fn. omitted, italics original (dis. opn. of Stevens, J.).)
The per curiam opinion responds that “the reference to ‘appointed’ counsel has never been considered as suggesting that the availability of counsel was postponed....” (453 U.S. at p. 361, fn. 3 [69 L.Ed.2d at p. 702, 101 S.Ct. at p. 2810].) Perhaps not, because under the traditional Miranda warnings as memorialized in thousands of department-issued Miranda cards the defendant has been told that the appointment would occur “prior to any questioning if he so desires.” When the term “appointment” is used without such equivalently clear indication as to timing, it lends itself to the very ambiguity found herein.
To reiterate, the defendant was told that he had a right to talk to a lawyer before he was questioned and to have him present during the questioning. The officer then could and should have advised the defendant that if he could not afford an attorney one would be appointed for him prior to any questioning if he desired. Instead, the officer diverted the conversation to a discussion of the minor’s right to have his parents present. This was a needless excursion, since both parents were seated in the room with their son. Then, instead of advising the minor that a free attorney would be provided prior to questioning if desired, the officer said, “You all, ... you have the right to have a lawyer appointed to represent you at no cost to yourself.”
*1017I repeat what we said in our earlier opinion: “Unfortunately, the minor was not given the crucial information that the services of the free attorney were available prior to the impending questioning.
“The matter was obfuscated, rather than clarified, by the off-the-record discussion....”
The question before us is not, as the United States Supreme Court per curiam opinion would have it framed, whether there must be a “talismanic incantation” of the Miranda language. (California v. Prysock, supra, 453 U.S. at p. 359 [69 L.Ed.2d at p. 701, 101 S.Ct. at p. 2809].) Rather, the question is whether appellant was “adequately and effectively apprised of his rights,” “in clear and unequivocal terms.” (Miranda v. Arizona, supra, 384 U.S. at pp. 467-468 [16 L.Ed.2d at p. 720].) I believe that as a matter of California law, the advisement in the instant case did not adequately inform the defendant of his key right to have a free lawyer before and during the police interrogation. The basis of this is not a requirement of an exact recitation of the traditional Miranda warning,4 nor a requirement of any particular sequencing, but simply the reality that the words chosen by the sergeant did not communicate the necessary information.
The majority herein cites the subsequent history of In re Michael C. (1978) 21 Cal.3d 471 [146 Cal.Rptr. 358, 579 P.2d 7] as authority as to how we should handle the remand. In that case, the California Supreme Court had held that when a juvenile asked to see his probation officer this was an invocation of Fifth Amendment rights. The United States Supreme Court disagreed. (Fare v. Michael C. (1979) 442 U.S. 707 [61 L.Ed.2d 197, 99 S.Ct. 2560].) It distinguished the role of a probation officer from that of an attorney, and reversed and remanded. Our Supreme Court acceded to that view.
*1018The case at bench is quite different. Whatever may be said of California v. Prysock, supra, 453 U.S. 355 [69 L.Ed.2d 696, 101 S.Ct. 2806], it cannot be gainsaid that it is a retrenchment from the requirement of a clear and unequivocal statement of Miranda rights. As such, it is a departure from California law which requires an explicit statement that a defendant may have a free lawyer before and during his interrogation. Miranda warnings are an intrinsic part of the law of this state. It is not an expansion of that law to hold that the admonition given here was insufficient. Rather, such a holding is necessary to preserve a well-established body of our jurisprudence.
Miranda, as applied in California, has stood the test of time. With this case as an exception, law enforcement practices have adjusted to its strictures. Two of its virtues are that its meaning is clear and its requirements easily met.
When interpreting the self-incrimination clause of the California Constitution (art. I, § 15), California courts treat it as “‘a document of independent force’ (People v. Disbrow (1976) 16 Cal.3d 101, 115. . .; People v. Brisendine (1975) 13 Cal.3d 528, 549-550. . .), ‘whose construction is left to this court, informed but untrammeled by the United States Supreme Court’s reading of parallel federal provisions. [Citations.]’ (Reynolds v. Superior Court, supra, 12 Cal.3d 834, 842.)” (Allen v. Superior Court (1976) 18 Cal.3d 520, 525 [134 Cal.Rptr. 774, 557 P.2d 65].)
There is little to be gained and much to be lost by creating ambiguity where certitude existed before. The rule in California v. Prysock, supra, 453 U.S. 355 [69 L.Ed.2d 696, 101 S.Ct. 2806] serves neither the public nor private interest.5 Engrafting it onto California constitutional law would be ill advised. This court should not do so.
Sufficiency of Evidence to Support Premeditation
I concede that if the defendant’s statement to Sergeant Byrd is admissible, there is sufficient evidence to show premeditation. I write this to demonstrate, however, that absent such admissibility, there is insuffi*1019cient evidence.6 In this discussion, I will disregard the statements of Prysock to Sergeant Byrd and the fruit of those statements in form of his trial testimony.
When considering defendant’s contention that substantial evidence does not support his conviction of first degree murder, the standard enunciated in People v. Johnson (1980) 26 Cal.3d 557, 576-578 [162 Cal.Rptr. 431, 606 P.2d 738], is applicable. We must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In performing this task, we do not limit our review to that evidence which is favorable to respondent. The issue is resolved in the light of the whole record—the entire story put before the jury—rather than a review of isolated bits of evidence selected by the respondent. From that review, we judge whether the evidence of the commission of each of the essential elements of the crime is substantial enough to support the conclusion of a reasonable trier of fact under the beyond-a-reasonable-doubt standard. It is not enough for the respondent simply to point to “some” evidence supporting the finding. The evidence, together with those inferences which can be reasonably deduced therefrom, must be substantial in light of the other facts.
The finding of deliberation and premeditation may have been the basis of the verdict of murder of the first degree. (Pen. Code, § 189.)
The California Supreme Court has made clear that when circumstantial evidence arguably forms the basis for proving premeditation and deliberation, special caution must occur. “[W]e must determine in any *1020case of circumstantial evidence whether the proof is such as will furnish a reasonable foundation for an inference of premeditation and deliberation [citations], or whether it ‘leaves only to conjecture and surmise the conclusion that defendant either arrived at or carried out the intention to kill as the result of a concurrence of deliberation and premeditation.’. ..” (People v. Anderson (1968) 70 Cal.2d 15, 25 [73 Cal.Rptr. 550, 447 P.2d 942], italics original.) The high court then went on to describe how the sufficiency of the evidence for premeditation and deliberation should be assessed: “The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2).
“Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (l)or(3)....” (Id., at pp. 26-27, italics original.)
As to Anderson’s first category (planning), the two boys, defendant and Danley, drove aimlessly around the Tulare County countryside from the time of the escape from the Robert K. Meyers Youth Center, sometime before 8 p.m. January 28, 1978, until the midmorning of January 30. They needed food and clothes and went to Danley’s house to obtain the same on January 30, but were frustrated by his mother’s presence at the house. Danley then drove to the Erickson house, remarking that he knew a house where they could get some food and clothes. The evidence of what they did at that house is indicative of *1021planning a burglary of an empty house, not a homicide. They drove by several times; Danley checked the garage, presumably looking for the victim’s car which, was not there because it was being repaired. Danley made several calls from a local convenience store, probably to see if anyone was home. He did not converse with anybody, presumably because the calls went unanswered. They did not arm themselves; they attempted entry by breaking out a rear window.
On the other hand, the boys did not flee when confronted by the victim, but instead entered the house. Defendant may have known the identity of the victim, and was present when, a few weeks before, Danley told another juvenile that he was going to “take care of” Brad Erickson’s mother.
On balance, it is apparent that a reasonable trier of fact would find that the boys had attempted to avoid Mrs. Erickson up to the time that she discovered Danley breaking the glass, and that the death was not the result of premeditation and deliberation but rather was the result of Danley’s explosion of violence after they had entered the residence and after defendant struck the first two (or three) blows with a wooden dowel. As stated in People v. Anderson, supra, 70 Cal.2d at page 26: “... we find no indication that the Legislature intended to give the words ‘deliberate’ and ‘premeditated’ other than their ordinary dictionary meanings. Moreover, we have repeatedly pointed out that the legislative classification of murder into two degrees would be meaningless if ‘deliberation’ and ‘premeditation’ were construed as requiring no more reflection than may be involved in the mere formation of a specific intent to kill. [Citations.]”
With regard to the second category (motive), defendant, as previously stated, was with Danley when Danley was arrested for auto theft as a result of a report made by the victim’s son, Brad Erickson. On the other hand, defendant knew neither Mrs. Erickson nor her son Brad; had never been slighted by the Erickson family; was not arrested in connection with the auto theft reported by Brad Erickson; and as a casual friend of Danley for two years, was never shown to have known or shared Danley’s desire for revenge as a result of the arrest discussed above. Defendant repeatedly testified that he never desired or intended to have Mrs. Erickson die.
In reference to the third category (manner), the evidence fails entirely. Respondent points to the fact that Danley stabbed the victim eight *1022times with an ice pick in the back. The wounds were shallow, approximately one inch to one and one-quarter inch in depth. Respondent argues that this denotes “careful, calculated stabbing.” The pathologist testified that the wounds “did not penetrate the body cavity. They stopped at the bony structures, ...” Rather than showing the precision of a surgeon with his scalpel, the shallow wounds demonstrate only that the blows were strong enough to go through subcutaneous fat and muscle but not strong enough to penetrate the rib cage. Nor does the fact that death was caused by strangulation by a telephone cord demonstrate deliberation and premeditation. The cord was not carried to the premises by Danley—he cut it from the telephone receiver during the attack. In short, the record is devoid of any evidence tending to prove that the killing was done in such a particular and exacting fashion that premeditation and deliberation could be inferred.
The evidence adduced at trial showed no strong evidence of planning. It also demonstrated that any knowledge of or prior relationship with the victim on defendant’s part is pure speculation in light of the fact none of the Ericksons who testified knew him. Finally, the manner of execution of the crime showed lack of sophistication and any demonstrated forethought.
I would conclude that there is no substantial evidence by which a reasonable trier of fact could find deliberation and premeditation beyond a reasonable doubt. This conclusion does not mean that upon a retrial the defendant could not be found guilty of first degree murder on grounds other than on a finding of deliberation and premeditation.
Penal Code Section 135
Defendant levels a three-part attack on his conviction of violating Penal Code section 135, which provides: “Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor.”
Defendant argues that the evidence of his guilt is insufficient, that the trial court erred in failing to instruct sua sponte, on the meaning of the phrase “about to be produced in evidence,” and that the statute is unconstitutionally vague.
*1023A. Evidentiary Sufficiency
Defendant contends that the evidence is insufficient to establish that the clothing and shoes burned by himself and Danley after the crime were about to be produced in evidence and/or that he so knew.
Respondent asserts that the evidence sufficed because the clothing was burned after crimes as to which the clothing would be evidence and because appellant knew that an investigation was imminent or in progress.
Although the point appears to be one of first impression, other statutes dealing with the same general topic as Penal Code section 135 are instructive.
In People v. McAllister (1929) 99 Cal.App. 37 [277 P. 1082] the trial court entered a dismissal following the sustaining of a demurrer in an action which charged defendant with offenses of offering and giving bribes to persons about to be called as witnesses in a civil case not yet filed. Penal Code section 137 proscribed bribing a person “about to be called as a witness.” The defendant in that case, as the one here, contended that the section had no application where it does not appear that there was any action or proceeding pending which might be affected by any misconduct of the defendant.
The appellate court reversed and ordered the trial court to overrule the demurrer. The court stated at pages 40-41: “At the outset it must be remembered that this is a law primarily to prevent the corrupt interference with the administration of justice. Its purpose is to go back as far as necessary and say in effect that any attempt to so influence prospective witnesses that the truth will not be presented in anticipated litigation is felonious. In State v. Holt, 84 Me. 509 [24 Atl. 951], it was said in effect, although perhaps the statement is obiter dictum, that in a prosecution similar to the one before us the indictment need not aver that the witness had been summoned, or even that a cause was pending requiring the attendance of witnesses. Surely, it is not the imminence of the person being called as a witness nor the fact that his being called may be postponed for a time that is determinative of the act coming within the purview of this section. It is the intent of the person interested and his purpose and design that is decisive of that question. True, a person cannot be a witness unless there is an action pending, but a per*1024son may be about to be called as a witness even though no action is pending....”
To the same effect, see People v. Martin (1931) 114 Cal.App. 392, 394-395 [300 P. 130], where an offer of a bribe shortly after an automobile accident and before any suit had been filed was a bribery of a person “about to be called as a witness.”
People v. Broce (1977) 76 Cal.App.3d 71 [142 Cal.Rptr. 628] involved an attempt to induce a witness to give false testimony by threats of force regarding facts establishing probable cause to arrest. The attempt to influence testimony occurred two days after an arrest and before any action was filed. This was sufficient to sustain a conviction of violation of section 137 of the Penal Code of attempting to induce a person “about to be called as a witness” to give false testimony. The court stated at page 75: “Defendant contends that he did not violate Penal Code section 137. He points out that Weinald was neither a witness nor a possible witness with respect to the weapons possession charge pending against defendant. This is true, but irrelevant. Weinald’s observations were material to the legality of defendant’s arrest—whether he planned to raise its illegality as a defense to the criminal charges or, affirmatively, in an action for false arrest. Nor does it matter that no such action was pending at the time of the threat. Section 137 contains no such requirement.”
I acknowledge that this court has opined in dicta in People v. Fields (1980) 105 Cal.App.3d 341 [164 Cal.Rptr. 336] that a fact situation as it existed in People v. Mijares (1971) 6 Cal.3d 415 [99 Cal.Rptr. 139, 491 P.2d 1115] would not sustain a conviction for violation of Penal Code section 135. In Mijares it was the defense contention that the defendant picked up a friend at a street .corner in a drowsy condition which progressed into unconsciousness. Unable to revive him, the defendant decided to secure medical help at a fire station. He looked inside his friend’s pockets and found some heroin which he threw into a field before he sought assistance. The Supreme Court reversed a conviction for possession of narcotics holding that the jury should have been instructed that if it believed the defendant had no contact with the heroin other than to remove it from his friend’s pocket for disposal, such handling is insufficient for conviction of the crime of possession as defined by former section 11500 of the Health and Safety Code.
*1025Nine years after Mijares, this court, in a footnote to People v. Fields, supra, 105 Cal.App.3d at page 346, footnote 4, said: “We question the applicability of Penal Code section 135 to the Mijares fact situation since it would appear that the defendant’s act of disposing of the drugs occurred prior to the commencement of any police investigation. .. . ” The statement was not necessary to the opinion and there was no recognition of McAllister, supra, 99 Cal.App. 37, or its progeny. The goal of preventing interference with the administration of justice will not be met if evidence may be destroyed with impunity merely because the police have not commenced their investigation.
Although the matter is not clear, I would hold that the evidence was sufficient to sustain a conviction of section 135.
B. Instructional Error
Appellant argues that ambiguity of the phrase “about to be produced in evidence” necessitated a sua sponte instruction.
The jury was instructed regarding the violation of Penal Code section 135 in the language of the statute. Appellant did not request a cautionary instruction as to the meaning of “about to be produced in evidence.” Absent a specific request, the court need only instruct on general principles of law and need not give a cautionary instruction. (People v. Baker (1974) 39 Cal.App.3d 550, 557 [113 Cal.Rptr. 248].)
C. Vagueness
Defendant contends that section 135 is void for vagueness under state and federal guaranties of due process.
“‘[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning ... violates the first essential of due process of law.’” (People v. McCaughan (1957) 49 Cal.2d 409, 414 [317 P.2d 974], quoting Connally v. General Const. Co. (1926) 269 U.S. 385, 391 [70 L.Ed. 322, 328, 46 S.Ct. 126].) “A statute must be definite enough to provide a standard of conduct for those whose activities are proscribed as well as a standard for the ascertainment of guilt by the courts called upon to apply it.” (People v. McCaughan, supra, 49 Cal.2d at p. 414.)
*1026Section 135 comports with all requirements of due process. It adequately notifies those potential violators that evidence which is or will imminently be sought for trial, inquiry or investigation shall not be destroyed. It gives ample guidance to the courts in enforcing the law. The contention that the statute is void for vagueness is meritless.
Conclusion
I would reverse because of the Miranda error and because there was not an adequate showing of an intelligent waiver of the presence of a court-appointed attorney during the interrogation.
A petition for a rehearing was denied February 17, 1982. Andreen, J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied April 15, 1982. Bird, C. J., Mosk, J., and Reynoso, J., was of the opinion that the petition should be granted.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974],
People v. Disbrow (1976) 16 Cal.3d 101, 115 [127 Cal.Rptr. 360, 545 P.2d 272], quoting People v. Brisendine (1975) 13 Cal.3d 528, 549-550 [119 Cal.Rptr. 315, 531 P.2d 1099],
The majority’s emphasis on that part of the study that concluded that most juvenile suspects understood the warning that the court would appoint an attorney if the suspect could not afford one is misplaced. The issue before us is whether the defendant knew that the appointment could precede interrogation. Likewise, the majority’s reference to prior court experience as creating increased understanding must be read in the context of the entire report. The youths who had significantly higher scores in comprehension *1008were those who had two or more prior felony referrals. The defendant was not in that category.
Although the precise words normally recited in a Miranda wording are not the exclusive way of adequately imparting rights to a suspect, I would hope that, since the Miranda requirements can be met so easily by reading from a card, that the traditional liturgy will continue to be used. Otherwise, courts will be forced back to the pre-Miranda task of individually examining the nuances of the advisement in order to determine basis whether
In incorporating Miranda into state law, the California Supreme Court has repeatedly recognized that the cardinal virtue of Miranda is that it creates “a single, uncomplicated, universally applicable test” (People v. Disbrow, supra, 16 Cal.3d at p. 111) and that this promoted “stability and predictability of the law on this important topic.” (People v. Pettingill, supra, 21 Cal.3d at p. 250.)
Many areas of the law do not lend themselves to clear-cut, workable rules. The content of Miranda warnings, however, does, and it is a disservice to the police and to the courts, as well as suspects, not to provide them “bright-line” rules in this regard.
See footnote 4, ante, and the discussion in Fare v. Michael C., supra, 442 U.S. 707, 718 [61 L.Ed.2d 197, 208, 99 S.Ct. 2560, 2568] which discusses the specific nature of the Miranda rules benefiting the accused and the state alike.
If there were to be a retrial, it would be necessary to discuss the issue of sufficiency of evidence to support the finding that defendant killed his victim with deliberation and premeditation because of the holding in People v. Bonner (1979) 97 Cal.App.3d 573 [158 Cal.Rptr. 821]. In Bonner, the trial court found the defendant guilty of possessing for sale one-half ounce or more of heroin. The appellate court affirmed the conviction of guilt but found that the record did not contain substantial evidence that the substance in question weighed one-half ounce or more, and remanded for trial on the sole issue of weight. On a petition for rehearing, the appellate court, relying on Burks v. United States (1978) 437 U.S. 1 [57 L.Ed.2d 1, 98 S.Ct. 2141], ruled that the double jeopardy clause forbade a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. The matter was thus remanded for the purpose of sentencing defendant as a person convicted of possessing for sale less than one-half ounce of a substance containing heroin.