I dissent.
The question is not one of double punishment.
In my opinion, the crucial error at bench is the failure of the trial court to instruct the jury that it could bring in only one verdict of guilty.
Respondent concedes the trial court properly should have instructed the jury that only one verdict could be returned if they found appellant guilty, but argues that appellant was not prejudiced by the court’s failure so to instruct. I think that on the facts of this case failure to instruct the jury that it could bring in but one verdict, was prejudicial error. (People v. Ross, 67 Cal.2d 64, 73-74 [60 Cal.Rptr. 254, 429 P.2d 606]; People v. Watson, 46 Cal.2d 818, 836 [299 P.2d 243]; Cal. Const., art. VI, § 13; People v. Failla, 64 Cal.2d 560, 567 [51 Cal.Rptr. 103, 414 P.2d 39]; People v. Bostick, 62 Cal.2d 820, 826 [44 Cal.Rptr. 649, 402 P.2d 529].)
The trial court properly instructed the jury at appellant’s request that Penal Code, section 647a, subd. (1), is an offense necessarily included in the charge made under Penal Code, section 288. (Within, Cal. Criminal Procedure (1963) pp. 486-487.) Penal Code, section 288 could not possibly have been violated, unless Penal Code, section 647a were concurrently violated. “The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.” (People v. Greer, 30 Cal.2d 589, 596 [184 P.2d 512]: People v. Marshall, 48 Cal.2d 394, 398 [309 P.2d 456]; Witkin, Cal. Crimes, pp. 200-201.)
Appellant, however, did not request and the court did not give an instruction to the jury that it could return a verdict finding defendant guilty of a violation of only one of the two crimes. The jury returned two verdicts finding appellant guilty of a violation of both. Within, California Criminal Procedure says at page 487, speaking in respect of the obligation of the court to give an instruction on an included lesser offense: “This is not, . . . one of the instructions which the judge must give on his own motion, without request . . . [citing authorities]. ’ ’
At bench, however, appellant requested and the court did give the instruction on section 647a, subdivision (1), the ■lesser included offense.
*528In the recent case of People v. Jenkins, 232 Cal.App.2d 323, at 326 [42 Cal.Rptr. 654], the court said: “The rule is now well established that the trial court, whether requested or not, should instruct the jury on all general principles of law pertinent and necessary to rendering a verdict. ’ ’
In People v. Lewis, 186 Cal.App.2d 585, at page 599 [9 Cal.Rptr. 263], the court says: “Under Penal Code, section 1127 the trial court must state to the jury all matters of law necessary for their information. (People v. Wright, 167 Cal. 1, 4 [138 P. 349] . . .).”
In People v. Greer, 30 Cal.2d 589, 603 [184 P.2d 512], a defendant was charged with and convicted of violations of Penal Code, sections 288 and 261, subdivision (1). The court held the same act cannot be punished twice, as statutory rape and as lewd and lascivious conduct under the prohibitions of Penal Code, section 654. The court stated that the prosecution may charge both crimes in the same information, but the jury must be instructed there can be only one verdict of guilty. The judgment was therefore reversed and a new trial ordered.
At bench, only one crime was charged, to wit: violation of Penal Code, section 288. However, Penal Code, section 647a is a necessarily included offense and the jury was so instructed, but the jury was not instructed as required by Greer “. . . there can be only one verdict of guilty. ’ ’
In People v. Billingsley, 161 Cal.App.2d 247 [326 P.2d 642], a similar situation confronted the court. In Billingsley, the jury returned two verdicts finding each defendant involved guilty of both grand theft and robbery. The trial court then instructed the jury they could not find defendants guilty of both offenses and sent them back to the jury room with instructions to return only one verdict as to each. The jury thereafter found each defendant guilty of robbery.
On appeal, the court held the trial court’s action was correct, and noted that “. . . this action was in defendants’ favor as it gave the jury a chance to consider returning the lesser verdict.” (Billingsley, supra, at page 252.)
Billingsley relies on Greer. The court said in Greer at pp. 603-604: “[Statutory rape committed upon the body of a child under 14 years of age can be punished as a lewd and lascivious act. It cannot, however, be punished twice, as statutory rape and as lewd and lascivious conduct.” It further stated: 11 The prosecution may charge both crimes in the same information. The jury must be instructed, however, that, as in the case of necessarily included offenses, there can be only one verdict of guilty.” (Italics added.)
*529In the recent case of People v. Ross, supra, the majority interpreting the harmless error rule with respect to a constitutional question, said at pages 73, 74: “In this connection, the meaning of the court’s reference to errors which ‘ “might have contributed to the conviction’’ ’ (id. at p. 23 [17 L.Ed.2d at p. 710]) becomes clear in the context of the entire opinion, since the court expressly stated that it sought ‘a rule that will save the good in harmless-error practices while avoiding the bad.’ (Ibid,.) The court explained the ‘good’ which it wished to preserve by its formulation: Harmless error rules, the court said, ‘serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. ’ (Id. at p. 22 [17 L.Ed.2d at p. 709] ; italics added.) ”
The record before us in respect of an actual violation of Penal Code, section 288, is not compelling. The jury did not have before it appellant’s prior conviction so eloquently referred to by the majority. All the jury had were the statements of a girl, fully clothed, concerning molestation taking place, in complete daylight, and in the almost immediate presence of others, supported only by inferences which could be properly drawn from the surrounding circumstances and the complaints made by the girl to others.
A long line of cases in this state hold that procedural unfairness can result in a miscarriage of justice. The dissent to Boss, supra, points out at page 80: “In our own cases we have stated that ‘ [t]he fact that a record shows a defendant to be guilty of a crime does not necessarily determine that there has not been a miscarriage of justice.’ (People v. Mahoney, 201 Cal. 618, 627 [258 P. 607] [disparaging comments by judge] ; see also People v. Conley, 64 Cal.2d 310, 319-320 [49 Cal.Rptr. 815, 411 P.2d 911] [right to jury trial on every significant issue]; People v. McKay, 37 Cal.2d 792, 798-800 [236 P.2d 145] [unfair pretrial publicity]; People v. Sarazzawski, 27 Cal.2d 7, 10-11 [161 P.2d 934] [various errors, causing denial of a fair trial]; People v. Patubo, 9 Cal. 2d 537, 542-543 [71 P.2d 270, 113 A.L.R. 1303] [disparaging comments by judge]; People v. Muza, 178 Cal.App.2d 901, 913-914 [3 Cal.Rptr. 395], cert. den. 369 U.S. 839 [7 L.Ed.2d 843, 82 S.Ct. 869] [remarks of trial judge]; People v. Duvernay, 43 Cal.App.2d 823, 828-831 [111 P.2d 659] [misconduct of prosecution].) Similarly in People v. Spencer, 66 Cal.2d *530158, 163 [57 Cal.Rptr. 163, 424 P.2d 715], the court, faced with a nonprejudicial confession under the rule of People v. Cotter, 63 Cal.2d 386, 398 [46 Cal.Rptr. 622, 405 P.2d 862], refused to rest ‘affirmance of the judgment solely upon our evaluation of the minor effect of the defendant’s confession upon the jury, we must still weigh its impact upon defendant’s trial.’ ”
On the facts at bench I am convinced that had the jury been advised that only one verdict could be returned, there was a reasonable probability that a guilty verdict on only the lesser charge would have been returned.
I would reverse the order granting probation and remand the cause for a new trial.