I dissent. The judgments should be reversed, or, at least, the judgment of death should be reduced to life imprisonment.
In the first place, the judgment should be reversed because the tape-recorded conversation with the witness Colvin was inadmissible, and its admission constituted prejudicial error. *450Colvin was a police agent. His interrogation of defendant was equivalent to interrogation by the prosecuting attorney or the police. Had this interrogation been carried on by the prosecuting officials directly without giving the Escobedo-Miranda warnings there can be no doubt it would have constituted prejudicial error. The fact an agent was used does not change the rule.
Two weeks before the taped conversation was secured the prosecution had detailed information from Mrs. Hodges, Col-vin, and Mrs. Long that defendant had committed the murder. They had more than sufficient information to arrest defendant. No longer were they simply investigating a possible crime. Suspicion had directly focused on defendant, and on defendant alone. The inference is clear that the prosecution arranged for the tape-recorded conversation in an attempt to secure further evidence of guilt from the suspect’s own mouth. This violates the basic policy of the Escobedo-Miranda cases, and of the many other cases interpreting them. That policy is to prohibit basically unfair tactics in the interrogation of a defendant and to prevent coercion, direct or indirect. To use psychological pressure in interrogating a defendant, directly or indirectly, without the warnings required by law and through a police decoy two weeks after they have accumulated evidence of defendant’s guilt, after suspicion had focused on defendant, and after the police had ample cause to arrest is to employ the very same unfair tactics denounced in Escobedo and Miranda.
Escobedo and Miranda clearly established that the privilege against self-incrimination and the right to counsel apply to police interrogation prior to indictment and trial and that confessions and admissions secured prior to trial in violation of the privilege or the right must be excluded. Those cases are not limited to interrogations which take place in the police station or jail but they extend to interrogations designed to elicit admissions and confessions once suspicion has focused upon the defendant. We have recognized that the rules established by these cases are applicable in the absence of arrest or confinement. Thus in People v. Arnold, 66 Cal.2d 438, 448 [58 Cal.Rptr. 115, 426 P.2d 515], we pointed out that a person, although not physically deprived of his freedom, should be viewed as such if he has been led to believe as a reasonable person that he is so deprived. Similarly, in People v. Furnish, 63 Cal.2d 511, 516 [47 Cal.Rptr. 387, 407 P.2d 299], we pointed out that in the absence of arrest all of the circum*451stances surrounding the making of the defendant’s statement must be considered, and specifically emphasized “factors which may subject the suspect to unusual pressures.” (See also People v. Chaney, 63 Cal.2d 767, 769 [48 Cal.Rptr. 188, 408 P.2d 964].)
One cannot read the lengthy and detailed discussion in Miranda (384 U.S. at pp. 448-456 [16 L.Ed.2d at pp. 708-713]) of improper police practices employed to elicit admissions and confessions from aceuseds reluctant to speak, without recognizing that the basic concern of the court was to protect the privilege against self-incrimination and the right to counsel from subversion by unfair police methods. The instant cáse reflects unfair police methods used to compel defendant to make admissions. The fact that those methods may have been more subtle than the ones discussed in Miranda is immaterial. ¥e should not permit such methods to subvert our basic constitutional guarantees.
Miranda was expressly and directly concerned with psychological pressures used by police officers to make a suspect talk whether or not he freely and voluntarily wanted to talk, and the court adopted safeguards to protect the privilege against self-incrimination and the right to counsel. Although Miranda involved a defendant in physical custody of the police, the same rules also apply where the police subtly or obviously use the same or similar psychological pressures to obtain admissions or confessions from a suspect upon whom suspicion has focused. Once- suspicion has focused law enforcement officials should not be permitted to avoid the rules established by Miranda to protect our constitutional guarantees by resort to subtle but coercive psychological pressures to compel the suspect to make admissions and confessions where there has been no waiver of the privilege against self-incrimination or of the right to counsel.
In the instant case, the ploy used by the law enforcement officials was as psychologically coercive as those discussed with disapproval in Miranda. Prior to the interview by Col-vin, defendant had learned that Mrs. Hodges had complained of a threat made by him, and his parole had been subject to question. The plan as reflected by the 45-minute conversation between,Colvin and defendant was that Colvin would come to defendant telling him that a Los Angeles police officer had tried to reach him but that C'olvin had not returned the officer’s call but had called his mother who said the call from the police'.may have related to defendant. Colvin told defend*452ant that he had heard a rumor that defendant killed a police officer and asked whether this related to Sacramento. Colvin also stated that he was worried that the call from the officer may have related to that rumor. Even if innocent of the killing, defendant, a parolee, would realize the threat to his freedom due to the rumor, would think that he must say or do something to stop the spread of the rumor, and since Mrs. Hodges had recently made a complaint to the parole authorities, he must act to prevent her from further spreading such rumors.
As might be expected, defendant reacted by telling Colvin, Mrs. Hodges’ son, that “if I go, she is going with me.” Interestingly enough, the threat when first detailed did not relate to the Sacramento murder at all but to an assertion that Mrs. Hodges had killed defendant’s first wife. It was only after that that he made admissions regarding the Sacramento murder, and those admissions were made in the context of a threat to Mrs. Plodges based on her complicity in the crime.
It is clear from the testimony of the police officers that the entire purpose of the conversation between Colvin and defendant was to secure a confession. The case differs from Hoffa v. United States, 385 U.S. 293, 309-310' [17 L.Ed.2d 374, 386-387, 87 S.Ct. 408], where the undercover police agent m> not interrogating the defendant to obtain admissions or confessions of past criminal conduct but was seeking to determine whether the defendant was presently engaged in an attempt to commit, or the commission of, a crime.1 In People v. Ing, 65 Cal.2d 603, 613 [55 Cal.Rptr. 902, 422 P.2d 590], and Ballard v. Superior Court, 64 Cal.2d 159, 170 [49 Cal.Rptr. 302, 410 P.2d 838, 18 A.L.R.3d 1416], it does not appear whether the police agents used psychological pressures to obtain the incriminating statements, and the cases are factually distinguishable. However, I would disapprove them insofar as they state or hold that Escobedo and Miranda are inapplicable in the absence of custody.
It seems clear the admissions were improperly secured and their admission into evidence constituted reversible error. Even if the tape-recorded conversation were admissible, however, in my opinion, this is a proper case to exercise the discretionary power conferred by section 1181, subdivision 7 of the Penal Code and reduce the penalty to life imprisonment. *453Just as there are no standards governing the fixing of the penalty hy the jury (In re Anderson and Saterfield, 69 Cal.2d 613, 621-623 [73 Cal.Rptr. 21, 447 P.2d 117]), or the trial judge, there are no statutory standards to regulate the discretion of this court. Bach case must be decided upon the record according to the conscience of each judge.
In the instant ease the following factors are important. The killing occurred 13 years before defendant’s connection with it was discovered. Then it was discovered because Mrs. Hodges and her daughter and son came to the district attorney and told their stories. Admittedly, Mrs. Hodges had lived with defendant, in á common law relationship, had quarreled with defendant and married another man. There was bad blood between them. Her testimony and the testimony of her two children are suspect. The tape recording was, to say the .'least, of doubtful value. The testimony of first degree murder while technically sufficient, was of but doubtful weight. If we do have a discretionary power under section 1181, subdivision 7 of the Penal Code this case is a proper one in which to exercise that power. (Cf. People v. Terry, 61 Cal.2d 137, 146 [37 Cal.Rptr. 605, 390 P.2d 381].)
The language of section 1181, subdivision 7, is crystal clear. It confers on this court the same power conferred on trial courts to reduce the death penalty to life. It is well settled that it confers discretionary power on trial courts. The matter is that simple.
Section 1181 of the Penal Code provides that the trial court may grant a new trial when, inter alia, “the verdict or finding is contrary to law or evidence, ...” (Subds. 6 and 7.) Subdivision 6 of that section provides that if this condition exists but the evidence shows the defendant to be guilty of a lesser degree of the crime of which he was convicted or of a lesser included offense, the court may modify the verdict, finding, or judgment accordingly without granting a new trial. The subdivision further provides that “this power shall extend to any court to which the cause may be appealed. ’ ’
Subdivision 6 has been interpreted as requiring the trial court to make an independent review of the evidence and to reduce the degree or crime where it determines that the weight of the evidence dictates such action. (E.g., People v. Moore, 53 Cal.2d 451, 454 [2 Cal.Rptr. 6, 348 P.2d 584]; People v. Sheran, 49 Cal.2d 101, 108-109 [315 P.2d 5].) However, while an appellate court under subdivision 6 is given the *454same power as the trial court, the circumstances justifying its exercise in accordance with the typical functioning of appellate courts2 are narrower than those justifying action by the trial court. Thus, an appellate court will, upon application to reduce the degree or class of an offense, consider only the sufficiency of the evidence as a matter of law to support the determination of degree or class at the trial level. (People v. Sheran, supra.)
These same arguments do not apply with equal force to subdivision 7 of the section. Subdivision 7 of section 1181 provides that “ [w]hen the verdict or finding is contrary to law or evidence,” and if the case before it is one in which “authority is vested by statute in the trial court or jury to recommend or determine . . . the punishment to be imposed, the [trial] court may modify such verdict or finding by imposing the lesser punishment without granting or ordering a new trial, and this power shall extend to any court to which the case may be appealed.” Subdivision 7 requires the trial court in a case in which the jury has imposed the death penalty to review the evidence independently and to reduce the penalty to life imprisonment if in its own independent judgment the death penalty was not proper. (E.g., People v. Love, 56 Cal.2d 720, 728-729 [16 Cal.Rptr. 777, 17 Cal.Rptr. 481, 366 P.2d 33, 809].)
Since the trier of fact in a capital case is neither bound nor guided in making its decision regarding penalty except in two types of cases discussed hereinafter, the power of the trial court under subdivision 7 is obviously a different, more discretionary power than that which it possesses under subdivision 6.
The question which, has not been explored satisfactorily by this court is the nature and scope of this court’s power3 under subdivision 7.
In a long line of cases based upon People v. Odle, 37 Cal.2d 52 [230 P.2d 345], which was decided prior to the enactment *455of subdivision 7 of section 1181 and involved a construction of section 1260, this court has held that absent error affecting the penalty determination in a capital case it will not interfere with that determination since it has “no power to substitute its judgment as to choice of penalty for that of the trier of fact.” (In re Anderson and Saferfield, supra, 69 Cal.2d 613, 623; People v. Lookadoo, 66 Cal.2d 307, 327 [57 Cal.Rptr. 608, 425 P.2d 208]; People v. Mitchell, 63 Cal.2d 805, 821 [48 Cal.Rptr. 371, 409 P.2d 211]; People v. Welch, 58 Cal.2d 271, 275 [23 Cal.Rptr. 363, 373 P.2d 427]; People v. Love, supra, 56 Cal.2d 720, 728; People v. Howk, 56 Cal.2d 687, 700 [16 Cal.Rptr. 370, 365 P.2d 426]; People v. Lindsey, 56 Cal.2d 324, 328 [14 Cal.Rptr. 678, 363 P.2d 910]; People v. Monk, 56 Cal.2d 288, 300 [14 Cal.Rptr. 633; 363 P.2d 865]; People v. Rittger, 54 Cal.2d 720, 734-735 [7 Cal.Rptr. 901, 355 P.2d 645]; People v. Moore, supra, 53 Cal.2d 451, 454; People v. Cash, 52 Cal.2d 841, 845 [345 P.2d 462]; People v. Linden, 52 Cal.2d 1, 26-27 [338 P.2d 397]; People v. Feldkamp, 51 Cal.2d 237, 241 [331 P.2d 632]; People v. Borchers, 50 Cal.2d 321 [325 P.2d 97]; People v. Brust, 47 Cal.2d 776, 792 [306 P.2d 480]; People v. Green, 47 Cal.2d 209, 235 [302 P.2d 307]; People v. Carmen, 43 Cal.2d 342, 351 [273 P.2d 521]; People v. Byrd, 42 Cal.2d 200, 213 [266 P.2d 505]; People v. Ortega, 41 Cal.2d 621, 622 [262 P.2d 2]; People v. Sutic, 41 Cal.2d 483, 493 [261 P.2d 241]; People v. Harrison, 41 Cal.2d 216, 219 [258 P.2d 1016]; People v. Dessauer, 38 Cal.2d 547, 555 [241 P.2d 238]; cf. People v. Talbot, 64 Cal.2d 691, 712 [51 Cal.Rptr. 417, 414 P.2d 633]; People v. Ashley, 59 Cal.2d 339, 365 [29 Cal.Rptr. 16, 379 P.2d 496].)
Although none of these cases purports to derive this rule from the language of subdivision 7 of section 1181, the majority would apparently nonetheless hold that subdivision-7 has been construed by reiteration and, since some of the later cases refer to the power of the trial court under subdivision 7, by implication. If this rule is both interpreted expansively and held to define the power granted to appellate courts in subdivison 7, that power will be largely limited to cases where its exercise seems, absent peculiar circumstances,4 *456inappropriate — eases involving prejudicial error affecting the penalty determination, such as an improper reference to the possibility of parole for the defendant if he is sentenced to life imprisonment. Ordinarily, however, the appropriate action in such cases is to order a hew trial on the issue of penalty so that the legislative objective of having punishment determined by the trier of fact in a fair proceeding can be carried out. Furthermore, a broad application of this rule would contravene the explicit language of subdivision 7 which gives both trial and appellate courts some power to reduce punishment in cases where the trier of fact determines or recommends the punishment and where the verdict or finding is “contrary to law or evidence.”
In a case decided seyeral years after the enactment of subdivision 7 of section 1181 but which does not cite section 1181, this court recognized that it has at least some power to reduce a death sentence imposed by the trier of fact to life imprisonment when the verdict is “contrary to . . . [the] evidence.” In People v. Jackson, 44 Cal.2d 511 [282 P.2d 898], we held that the trier of fact improperly imposed the death penalty finder section 209 of the Penal Code, prescribing punishment for kidnaping for ransom, reward, extortion or robbery, because there was insufficient evidence of bodily harm, the existence of which is a prerequisite to consideration of death as a possible penalty under that section.5 We directed the trial court to sentence the defendants to life imprisonment, the appropriate penalty in the absence of bodily harm.
It would be unreasonable to limit this court’s power under subdivision 7 of section 1181 to reduce sentences “contrary to . . . [the] evidence” to cases in which the evidence is insufficient as a matter of law to establish the existence of some fact specified by the Legislature as a prerequisite to consideration or imposition of the death penalty. First, there are apparently only two types of cases in this category: kid-naping cases such as Jackson arising under section 209 of the-. Penal Code and cases of aggravated assaults by life prisoners arising under section 4500 of the Penal Code.6 It is unlikely *457that the Legislature intended its broadly worded grant of power to appellate courts in subdivision 7 to be confined to these limited types of cases and not to apply at all to first degree murder cases arising under sections 187-190 of the Penal Code.
Since the trial court necessarily has a more discretionary power under subdivision 7 than it does under subdivision 6 in capital eases, there being no standards to govern the trier of fact in determining penalty except in cases arising under sections 209 and 4500 of the Penal Code, it seems only logical that the power granted to this court under subdivision 7 is. a more discretionary power than that which it possesses under subdivision 6. Accordingly, it is most reasonable to construe this court’s power under subdivision 7 as being a limited power to impose life imprisonment rather than the death penalty in cases where, in its judgment, the trier of fact has abused its discretion in imposing the death penalty — i.e., in cases where in its judgment the evidence should be considered insufficient to warrant the death penalty, even though the Legislature has not explicitly forbidden its imposition in such (possibly unforeseeable) circumstances.
Thus construed, subdivision 7 embodies a legislative mandate for this court to cautiously provide an appellate-level check upon' rare cases of clearly abusive imposition of the death penalty. For example, this court might conclude that in a particular case where a defendant has committed first degree murder under overwhelmingly mitigating circumstances, has clearly exhibited remorse for his deed, and shows definite promise for rehabilitation, he not only should not (a' determination entrusted solely to the trial court upon review under subdivision 7) but must not (under the broadest possible latitude for the exercise of discretion by the trier of fact) be sentenced to death under existing legislation.
The suggested construction of this court’s power under subdivision 7 of section 1181 of the Penal C'ode is not inconsistent with the numerous cases holding that this court has “no power to substitute its judgment as to choice of penalty, for that of the trier of fact” if that phrase is reasonably interpreted to mean only that this court may not make an *458independent de novo judgment as to the appropriate penalty as the trial court may, indeed' must, do. Nor would this court’s power under subdivision 7 amount to the exercise of a clemency function, which would arguably give rise to a constitutional problem of separation of powers. (See People v. Odle, supra, 37 Cal.2d 52, 58.) The exercise of clemency is not a review of judicial proceedings but an exercise of grace and compassion. (Andrews v. Gardiner, 224 N.Y. 440, 447 [121 N.E. 341, 2 A.L.R. 1371] [Cardozo, J.], Editors’ Forum (1967) 55 Cal.L.Rev. 407, 412.)
For these reasons I am of the opinion that we should exercise in this case the discretionary power conferred by section 1181, subdivision 7 of the Penal Code and reduce the penalty to life imprisonment.
I would reverse the judgment because of the admission of the tape-recorded conversation with Colvin, but in any event this is a proper case to exercise the power granted by section 1181, subdivision 7, to reduce the penalty to life imprisonment.
Appellant’s petition for a rehearing was denied August 20, 1969. Peters, J., was of the opinion that the petition should be granted.
The fact finding power, although not normally exereised by appellate courts, is not unknown to them. Where a referee is appointed, usually in habeas corpus proceedings, he hears and sees the witnesses and makes findings, but his findings even though based on conflicting evidence are not binding on the appellate courts. They must weigh the evidence and make an independent judgment on the facts. Also in determining whether or not an error is prejudicial, under article VI, section 13 of the California Constitution, the appellate court must weigh the evidence. Other instances of fact finding by the appellate court exist.
This court has exclusive and automatic appellate jurisdiction in eases in which the judgment of death has been pronounced. (Cal. Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).)
One conceivable situation in which the power granted to appellate courts under subdivision 7 might appropriately be exercised in a case where retrial on the issue of penalty would otherwise be required is that in which a defendant has received a number of death sentences, each of which has been reversed due to some prejudicial error on the part of the prosecution. At some point this court might well decide that the prosecution should forfeit the possibility of obtaining a legitimate death sentence and be content with a life sentence.
Section 209 provides that a kidnaper punishable under that section shall be punished by death or by life imprisonment without possibility of -parole in the discretion of the jury, in eases in which the person or persons subjected to such kidnaping suffers or suffer bodily harm, but that in cases not involving bodily harm to such person or persons the punishment shall be life imprisonment with possibility of parole.
Section 4500 provides that every person undergoing a life sentence in a California state prison who, with malice aforethought, commits an assault of the type proscribed in section 245 of the Penal Code shall be *457sentenced, to death, except that if the person assaulted either is an inmate or does not die within a year and a day after the assault as a proximate result thereof then the punishment shall be death or life imprisonment without possibility of parole for nine years in the discretion of the trier of fact.