Sometime after dark on August 6, 1976, Laura Alfieri, age 15, was murdered. She was stabbed 5 times in front and 25 times in the back. Her body, completely clothed and partially covered by some old tires and brush, was discovered by deer hunters in the early hours of the following morning. There was no evidence of a struggle nor of sexual molestation.
On August 24, 1976, Victor Arthur Alfieri, Jr., the 17-year-old brother of Laura, was arrested for the murder of his sister. On Feburary 7, 1977, following a 32-day trial a jury found defendant guilty of murder in the second degree giving rise to this appeal.
As correctly noted in the majority opinion, “Evidence, the most damning of which consists of Alfieri’s admissions and his confession while in police custody, establishes his guilt of the crime. The detail of the admissions and confession meshes closely with the facts established by physical evidence and other testimony.”
In determining the voluntariness of defendant’s admission(s) and confession(s) the court below applied the preponderance of evidence test.
While the instant case was on appeal, the state Supreme Court in People v. Jimenez (1978) 21 Cal.3d 595 [147 Cal.Rptr. 172, 580 P.2d 672], held that the preponderance of evidence test for determining the admissibility of a defendant’s confession is no longer applicable in California. The court held that the standard of proof to be applied in determining the voluntariness of a defendant’s confession is beyond a reasonable doubt and that this new rule was to be applied to cases pending on appeal.
*549Accordingly, under the compulsion of Jimenez, I reluctantly1 concur with the majority opinion that the judgment of conviction must be reversed and the matter remanded for retrial. I would, however, add the caveat for guidance of the trial court that since the state Supreme Court, as it were, changed “the rules of the game” midstream that the issue as to the voluntariness of defendant’s admission(s) and confession is thrown at large and on a rehearing on that issue both sides should have the opportunity to introduce additional evidence and reargue the matter.
A petition for a rehearing was denied August 22, 1979, and respondent’s petition for a hearing by the Supreme Court was denied September 26, 1979. Manuel, J., was of the opinion that the petition should be granted.
My reluctance stems from the fact that but for Jimenez I would affirm the judgment of conviction and that I approve of the analysis leading the United States Supreme Court in Lego v. Twomey (1972) 404 U.S. 477 [30 L.Ed.2d 618, 92 S.Ct. 619], to conclude that the preponderating evidence should be retained (as noted by Justices Clark and Richardson in Jimenez).
In Lego, the court said at pages 488-489 [30 L.Ed.2d at p. 627]: “[W]e are unconvinced that merely emphasizing the importance of the values served by exclusionary rules is itself sufficient demonstration that the Constitution . . . requires admissibility to be proven beyond reasonable doubt. Evidence obtained in violation of the Fourth Amendment has been excluded from federal criminal trials for many years. [Citation.] The same is true of coerced confessions offered in either federal or state trials. [Citations.] But, from our experience over this period of time no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence. Petitioner offers nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard. Without good cause, we are unwilling to expand currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence before state juries and by revising the standards applicable in collateral proceedings. Sound reason for moving further in this direction has not been offered here nor do we discern any at the present time. This is particularly true since the exclusionary rules are very much aimed at deterring lawless conduct by police and prosecution and it is very doubtful that escalating the prosecution’s burden of proof in Fourth and Fifth Amendment suppression hearings would be sufficiently productive in this respect to outweigh the public interest in placing probative evidence before juries for the purpose of arriving at truthful decisions about guilt or innocence.” In a footnote the high court added: “It is no more persuasive to impose the stricter standard of proof as an exercise of supervisory power than as a constitutional rule.” (Id., at p. 488, fn. 16 [30 L.Ed.2d at p. 627].)