I dissent.
The record discloses six interrogations of Ford. The first one had at Modesto at 1 a.m. on November 29, 1963. This interrogation is not material to the issues discussed here or in the majority opinion. The second (the arrest interrogation) in *497Bakersfield at 11:45 p.m. on the same day. The third (the custody interrogation) 30-40 minutes in length, at the Bakersfield police. When, with respect to the arrest interrogation, this took place cannot be ascertained from the record. The fourth, at Bakersfield on December 3, when the Los Angeles police officer arrived to return Ford to Los Angeles. The fifth on December 3 in the automobile returning Ford to Los Angeles, and the sixth on December 5 in the Los Angeles police station. The last interrogation was tape-recorded.
Interrogations 4, 5 and 6 are conceded by the majority to be within Dorado. The majority couples the arrest and custody interrogations and says in respect thereof:
“The questioning of Ford at the time of his arrest and at the Bakersfield police station, we hold to be factual questioning of a suspect in furtherance of an investigation and properly admissible in evidence. (People v. Dorado, 62 Cal.2d 338, 354 [42 Cal.Rptr. 169, 398 P.2d 361]; People v. Stewart, 62 Cal.2d 571 [43 Cal.Rptr. 201, 400 P.2d 97].)” I agree that the arrest interrogation was investigatory. I believe the custody interrogation was accusatory.
The majority bold that the impropriety of admitting the interrogations with the Los Angeles police which the majority concedes to be a confession although within Dorado does not require a reversal because it: “. . . merely duplicates and reiterates an earlier confession which has been lawfully obtained. (People v. Parham, 60 Cal.2d 378, 385 [33 Cal.Rptr. 497, 384 P.2d 1001] ;...)... there is no danger that an illegal second confession can somehow taint a legal first confession. ...”
I do not agree that the “later questioning” was a duplicate of the first, and I believe that even if it was, a reversal is required.
Assuming arguendo, that the arrest and custody interrogations linked together by the majority were during an investigaory stage, and that it was “an earlier confession . . . lawfully obtained ...” and that the later tainted confession merely ‘ duplicates and reiterates ’1 the earlier lawful confession, such assumptions do not rule out Dorado. Dorado clearly announces at pp. 356-357: “The improper introduction of the confession which has been obtained in violation of the constitutional right to counsel transgresses the protection of due process no less than the illegal introduction of a confession which has been coerced. In either case courts cannot inquire into the prejudicial nature of the introduction of an illegally *498obtained confession for the reasons stated in People v. Parham (1963) 60 Cal.2d 378, 385 [33 Cal.Rptr. 497, 384 P.2d 1001]; ‘Almost invariably . . . a confession will constitute persuasive evidence of guilt, and it is therefore usually extremely difficult to determine what part it played in securing the conviction. [Citation omitted.] . . .
“Summarizing the principal issue on the confession, we must decide this case in conformity with the decisions of the Supreme Court of the United States. That court having declared the content of a constitutional right, it is our function to enforce it in situations wherever it logically applies. To do otherwise would, in effect, be to distort the United States Constitution itself.”
The majority concede that the “later questioning by the Los Angeles police” was a confession. The issue here is not whether harmless error is committed when a statement or an admission is admitted of “. . . something less than ... an essential element of the crime or the fact necessary to establish . . . guilt. ...” (People v. Dorado, 62 Cal.2d 338, 356 [42 Cal.Rptr. 169, 398 P.2d 361] ; People v. Finn, 232 Cal.App.2d 422, 428 [42 Cal.Rptr. 704]; People v. Peckham, 232 Cal.App.2d 163 [42 Cal.Rptr. 673].)
I am mindful of People v. Parham, 60 Cal.2d 378, in which ease a defendant was choked to extract evidence from his mouth and the court said at pp. 385-386 [33 Cal.Rptr. 497, 384 P.2d 1001]:
“Unlike involuntary confessions, other illegally obtained evidence may be, as in this case, only a relatively insignificant part of the total evidence and have no effect on the outcome of the trial. . . . Unless we were to take the unprecedented step of holding that the state must be penalized for violating a defendant’s constitutional rights in securing evidence by conferring an immunity upon him . . ., we must consider . . . the exclusionary rule not as a penalty but as derived from the principle that the state must not profit from its own wrong. . . . The state does not so profit when erroneously admitted evidence does not affect the result of the trial. ...”
In the same ease and immediately preceding the above quoted statement the court says at page 385: *4995 L.Ed.2d 760, 766-767]; Payne v. Arkansas, 356 U.S. 560, 567-568 [78 S.Ct. 844, 2 L.Ed.2d 975, 980-981]; Stroble v. State of California, 343 U.S. 181, 190 [72 S.Ct. 599, 96 L.Ed. 872, 880-881].) Almost invariably, however, a confession will constitute persuasive evidence of guilt, and it is therefore usually extremely difficult to determine what part it played in securing the conviction. (See Payne v. Arkansas, 356 U.S. 560, 568 [78 S.Ct. 844, 2 L.Ed.2d 975, 981]; Allen, Federalism and the Fourth Amendment: A Requiem for Wolf, 1961 Sup.Ct.Rev. 1, 45; cf. Hamilton v. Alabama, 368 U.S. 52, 55 [82 S.Ct. 157, 7 L.Ed.2d 114, 116-117].) These considerations justify treating involuntary confessions as a class by themselves and refusing to inquire whether in rare cases their admission in evidence had no bearing on the result.” (Italics added.)
*498“Defendant . . . invokes the rule that the admission of an involuntary confession in evidence requires reversal regardless of other evidence of guilt presented to the jury. (Lynumn v. Illinois, 372 U.S. 528 [83 S.Ct. 917, 922, 9 L.Ed.2d 922] ; Rogers v. Richmond, 365 U.S. 534, 540-541 [81 S.Ct. 735,
*499As I read Dorado, improper introduction of an unlawful confession leaves no room to determine whether or not it is harmless error. Dorado adopts the rule announced by Parham and emphasized in the excerpt above.
The foregoing construction of Dorado appears to be fortified by the opinion in Stewart, supra, 62 Cal.2d 571, 581-582, where the court says: “Because defendant, however, confessed only to the robbery and murder of Miss Mitchell, we must determine if the erroneous admission of his confession constituted prejudicial error as to those other robberies for which he was convicted but as to which he did not confess. (See People v. Dorado, supra, ante, pp. 338, 356.) A full examination of the record indicates that the error requires the reversal of the judgment on these counts since ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. ’ (People v. Watson (1956) 46 Cal.2d 818, 837 [299 P.2d 243].)”
I am of the opinion too, that the “later questioning by the Los Angeles Police” is not a duplicate of the arrest and the custody interrogations. Although there is reiteration of some statements, there are differences which are hereafter pointed out.
William P. McMonagle who identified himself as “what we call an investigating officer” attached to the Wilshire District Division of the Los Angeles police, testified that at approximately 1 p.m. at the City of Bakersfield on December 3, he talked to Ford in the presence of his partner, Sergeant Dennis, and a detective from the Bakersfield Police Depart*500ment. The conversation was had with Ford at the Ace Garage in Bakersfield where the stolen ear was impounded. Ford pointed out the car and stated he had been driving it when he was arrested, and that he had known the ear had been stolen.
McMonagle further testified that en route from the Ace Garage to the Wilshire Station in Los Angeles, Ford said: “ [H]e had known the ear was stolen and . . . ‘He would take the rap for the stolen car, but he wouldn’t take the rap for the burglary’. ...” (Italics added.) Later, he stated “he had known the ear had been stolen but that he didn’t steal it. .. . [T]hat he had gotten the car from a guy named Mike in Watts, on, he thought it was Wednesday; . . . later ... he thought the plates on the car had been switched so that it had cold plates on it before he got it. .. . [A] Iso, that he had been to Oakland twice in the car; that he had been to Bakersfield about three times, and he stated he wanted to get the car back to Los Angeles, he was on his way back, so that no one would know the car had been out of town. ... He also stated he had been through Bakersfield, the first time he had been loaded, and if we had caught him then it would have been too bad. . . . [Italics added.] Well, we talked, . . ., at least an hour . . . coming to Los Angeles, . . . when we got to Wilshire Station we had another conversation. ... I asked him where he knew Mike from, and he said, ... ‘I met him in a bar. I asked him what Mike looked like, and he said, ‘Well, he looks about like me.’ . . . ‘[A]bout my height.’ ... He stated he couldn’t help us find him, that it ivas a matter of honor, more or less, with him. ... He said this Mike was a con, and all the people that hung around down where he got the car were cons, and he didn’t want to be known amongst them as a ‘snitch.’ ” (Italics added.)
None of the italicized portions of the “later questioning” appear in the arrest or custody interrogations. In my opinion the confessions are not duplicates. I suspect that the prosecutor also properly believed that the additional facts obtained in the “later questioning” would have considerable impact on any jury.
It is my opinion too that the accusatory stage had been reached upon the conclusion of the arrest interrogation and before the custody interrogation had begun at the Bakersfield police station.
When investigation ceases and accusation begins is often a sensitive question.
It is clear that assuming arrest and failure to advise, there must be focus on a defendant and thereafter a purpose to elicit *501incriminating statements and/or a confession. (Dorado, supra, p. 354.)
Specifically, the record shows that after the Modesto interrogation, immaterial here, Ford in the late evening of the same date, to wit: November 27 at 11:40 p.m., was observed by Officers Burum and Patterson sitting in an automobile, double-parked. Burum was asked what attracted his attention to the automobile or to Ford. He gave the arrest interrogation as follows:
“Well, the fact it was double parked and that someone got out of the car and that the car was unfamiliar to me as being
in that particular area. . . .
6 (
“I checked the license number of the vehicle against the Los Angeles Police Department stolen sheet that is mailed to us every day and found that the license number of the vehicle was
listed on the sheet.
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“Q. And where within the car was the Defendant seated? A. Behind the steering whele.
i (
“Q. After cheeking, finding the numbers of the car were on that particular list, what did you do? A. I placed the subject under arrest and checked with our communications center, which keeps a master list of stolen cars, which is published by Sacramento, by teletype.
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“Q. . . . [W]hen you first arrested him. Where was the first conversation? Was that out in the field or in the station? A. Out in the field.
‘ ‘ Q. All right. At that location tell us what was said about the car. A. He was asked who owned the vehicle.
“Q. What did the Defendant say to that? A. He stated that it was registered to a Mary Pennario, but he did not know her address.
“Q. Did you ask him how he happened to be in possession of the car? A. Yes, sir.
“Q. What did he say about that?
i C
“A. He didn’t say much of anything at that time.”
The foregoing interrogation concededly investigatory was held in the presence of Officer Bill Patterson on the street in Bakersfield when appellant was arrested.
Appellant was then taken to the police station where the *502custody interrogation was had between Ford and Officer Buruxo. in the presence of Officer Archie Sherman.
There is nothing in the record, as already pointed out, to indicate when the custody interrogation started. It could be five minutes—it could have been five hours after the arrest interrogation. It is clear from the record that it lasted 30-40 minutes and was had in the presence of a different second officer. It is also clear that the narration of the testimony at the trial could not have occupied more than approximately two minutes of the court's time. The substantially verbatim interrogation as testified to at the trial, follows:
“Q. Were the statements made by the defendant there at the Police Department concerning the car freely and voluntarily made? A. Yes.
“Q. Was any force or coercion used on him, or anything like that? A. No.
“Q. All right. What did he say about the car in the Police Department ? A. He stated he had borrowed it from a friend by the name of Mike in Watts, and that he knew—he told me that he knew it was stolen—that he knew it was hot, as he stated it, but, he said, he did not take it initially. [Emphasis is added to indicate admissions not made in the arrest interrogation.]
“Q. He told you he knew it was hot? A. Yes, sir.
( i
“Q. For our record, as a police officer what does the word ‘hot' mean ? A. It means stolen, or not belonging to the person that has it.
“Q. Now, did you ever ask him why he gave you the first story about having borrowed it from Mary Pennario ? A. Not when we first talked to him out in the field, no.
“Q. Yes, but later on when he told you he had gotten it from a friend in Watts, knew it was hot, you didn’t go back, ask why he told you about Mary Pennario... ? A. No, sir. ’'
The foregoing statements were not volunteered. Before Officer Burum gave the testimony above excerpted, he testified referring to Officer Sherman and himself: “Yes, sir; in the police station we talked to him.” He then reiterated said statement as follows:
“ Q----Now, later did you discuss this car with the Defendant? A. Yes, sir, we did. Q. Now, this was in the station, I take it? A. In the Police Department, yes. Q. All right, who was present at that conversation in the Police Department? A, Officer Archie Sherman.”
*503In my opinion the factors listed by Stewart, supra, as criteria to help decide whether an interrogation is investigatory or accusatory, should be annotated as follows:
1. Ford was under arrest upon ample probable cause.
2. Interrogation was at the Bakersfield police station in the presence of an arresting officer and a second officer who was not present at the arrest interrogation.
3. The time elapsing between the arrest interrogation and the custody interrogation is not disclosed by the record.
4. The nature of the questions asked does not appear in any respect from the record. Whether such questions were or were not in the nature of Konigsherg, 336 F.2d 844, is, in my opinion, a deduction not warranted. In Konigsherg too, the facts were different (there were many suspects) and the defendant in that case was advised of his constitutional rights.
5. The record is completely silent as to the nature of the custody interrogation, other than it took place in the Bakersfield police station. What accusations were made or what questions were propounded, does not appear. It does appear that although the statements made by Ford were voluntary and not coerced, that they were not volunteered. The only evidence on that subject is that of officer Burum who testified: “Yes, sir. In the police station we talked to him.”
When Ford was arrested, focus was definitely on Ford.
Ford’s inability at the time of the arrest interrogation to give any address for Mary Pennario, street, neighborhood, city or state, when behind the wheel of a car the officers knew was stolen, and the fact that he didn’t say anything when told the car was stolen, was ample, not only for a showing of probable cause, but uncontradicted and unexplained, for a conviction. These facts standing alone make out a complete case of a violation of section 10851 of the Vehicle Code. Thus, in People v. Citrino, 46 Cal.2d 284, the court says at page 289 [294 P.2d 32]:
Defendant’s explanation that Cotelli gave him the property was not contradicted by any witness, but in view of defendant’s own use of that name and the fact that he did not know where Cotelli was at the time of the trial, the jury could reasonably conclude that Cotelli and his gift were both fictitious.”
In Stewart, at pp. 577-578, the court says: “An arrest fulfills the first requirement that the investigation has begun to focus on a particular suspect. The Penal Code itself con*504ditions the arrest upon the presence of reasonable ground •for the belief that the individual committed the offense; section 813 predicates the issuance of a warrant upon ‘reasonable ground to believe that the defendant has committed ’ the offense; section 836 requires that the arrest must rest upon the officer’s reasonable cause for believing the person committed the offense.
“ ‘Probable cause for an arrest,’ we have said, ‘is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused.... Probable cause may exist even though there may be some room for doubt.... The test in such case is not whether the evidence upon which the officer made the arrest is sufficient to convict but only whether the prisoner should stand trial. ’ (People v. Fischer (1957) 49 Cal.2d 442, 446 [317 P.2d 967]; see generally, Witkin, Cal. Criminal Procedure (1963) pp. 102-104; Fricke, Cal. Criminal Procedure (6th ed. 1962) pp. 19-20.) ”
In People v. Hopkins, 214 Cal.App.2d 487 [29 Cal.Rptr. 636], the court held that mere possession of recently stolen property, with slight corroboration through statement or conduct tending to show guilt, warrants a conviction of unlawful taking. See also, People v. Rhinehart, 137 Cal.App.2d 497 [290 P.2d 600]; People v. Holland, 82 Cal.App.2d 310 [186 P.2d 58]; People v. Citrino, 46 Cal.2d 284 [294 P.2d 32]; People v. Valdez, 14 Cal.App.2d 580 [58 P.2d 656]; People v. Ragone, 84 Cal.App.2d 476, 481 [191 P.2d 126] ; to the same effect.
The foregoing appears to-fortify the majority conclusion that the investigatory interrogation standing alone could have convicted Ford. The vice of this conclusion, however, is pointed out by the language in Parham, supra, heretofore quoted: “. . . a confession will constitute persuasive evidence of guilt, and it is therefore usually extremely difficult to determine what part it played in securing the conviction.” (P. 385.)
The majority hold that arrest alone is not necessarily the line of demarcation for the accusatory stage. With this I agree. The accusatory stage might very well be reached before arrest and in some cases after arrest. It would seem, however, in view of the fact that an arrest cannot be made without .probable cause, that it would be seldom reached after an arrest. Thus, in People v. Garner, 57 Cal.2d 135 [18 Cal.Rptr. 40, 367 P.2d 680], Justice Traynor in a concurring, opinion *505at page 164 suggests that the rule could be frustrated by delaying an actual arrest.
Lawful arrest appears to be, to say the least, a substantial ingredient in a test of focus. If there are other guidelines, they are vague.
In Dorado, at page 347, the court says: “The weight of the circumstantial evidence recited above and available to the officers at the point of interrogation provided reasonable grounds for focusing upon defendant as the particular suspect.” (Italics added.)
This test appears to state the ingredients of reasonable or probable cause for arrest and would probably apply if no arrest is made.
In addition to arrest, there must be a purpose to obtain a confession or elicit incriminating statements. The test to determine the purpose is fixed as objective and not subjective. In other respects it is vague. Thus, in Stewart, supra, the court says at page 579 :
“The test which we have described does not propose a determination of the actual intent or subjective purpose of the police in undertaking the interrogations but a determination based upon the objective evidence. Whatever may be the subjective intent of the interrogators, we must, in order to determine if the police are carrying out ‘a process of interrogations that lends itself to eliciting incriminating statements’ (Escobedo v. Illinois, supra, at p. 491), analyze the total situation which envelops the questioning by considering such factors as the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances.
“As some writers have suggested, ‘An objective test is... likely for the new American rule, for it is noteworthy that the question of “purpose to elicit a confession” may be more readily determined from the objective evidence—such as the nature of the questions and accusations put to defendant and the length of the interrogation—than the question whether the police had decided to charge the defendant. ’ (Enker and Elsen, Counsel for the Suspect: Massiah v. United States and Escohedo v. Illinois (1964) 49 Minn.L.Rev. 47, 71.) ”
On the record before this court it appears to me that the majority assume that the custody interrogation was investigatory because it took place “shortly” after the arrest. And further, they assume that even though the objective evidence *506shows that focus was properly on Ford, that since the record is silent on what specific questions were put to Ford, that the Bakersfield police were seeking only information which would adequately explain Ford’s presence in the stolen car, so they could set him free. As already pointed out, there is no evidence that supports the statement that the custody interrogation took place “shortly” after the arrest. And further, the second assumption was specifically rejected by this court, speaking through my brother Herndon in People v. North, 233 Cal.App.2d 884 [44 Cal.Rptr. 123], where we said: “Since in ‘most cases’ the interrogation will... lend itself [to eliciting incriminating statements] in the absence of any contrary showing... in the record we cannot presume that this is one of the ‘rare’ or ‘unusual’ cases in which it did not so lend itself.”
I would reverse the judgment.
A petition for a rehearing was denied June 9, 1965, and appellant’s petition for a hearing by the Supreme Court was denied July 14, 1965. Peters, J., was of the opinion that the petition should be granted.