Lilliock

By its verdict a jury found William R. Lilliock and Oliver Stanley Williams guilty of murder in the first degree. The same jury determined that Williams should suffer the death penalty and Lilliock be sentenced to life imprisonment. Thus Williams’ appeal is automatic. (Pen. Code, § 1239, subd. (b).) Lilliock’s appeal was transferred to this court and consolidated with that of Williams.

Since we hold that both appeals come within the rules set forth by the United States Supreme Court in Massiah v. *620 United States, 377 U.S. 201 [ 84 S.Ct. 1199 , 12 L.Ed.2d 246 ], and Escobedo v. Illinois, 378 U.S. 478 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ], as followed by this court in People v. Dorado, ante, p. 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ], and since the pertinent facts as regards this issue are not in conflict it becomes unnecessary to discuss in detail the factual background of the present case.

It is sufficient to note that on October 28, 1962, Arthur Kretehman, the victim, resided in a cottage at a motel near downtown Los Angeles. At approximately 10 o ’clock that evening the occupant of the cottage next door heard a thud, then a moaning sound from the cottage. When the witness…

I am of the view that the majority opinion in this case does not meet the conditions essential under state law to reversal of the subject judgments.

California’s Constitution, which defines and delimits the powers of this court (see §§ 4 and 4%, art. VI) does not empower—to the contrary it forbids—us to reverse a judgment (oh any ground here relevant) “unless, after examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (See People v. Watson (1956) 46 Cal.2d 818, 835-838 [12,13] [ 299 P.2d 243 ].)

The majority do not cite any decision by the United States Supreme Court which holds that compliance by this court with the above cited sections of our Constitution would, in the circumstances of this ease, violate any federally guaranteed right of defendants. As pointed out by Justice Burke in his dissenting opinion in People v. Dorado (1965) ante, pp. 338, 365 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ], the high federal court in Escobedo 1 “stresses that each ease must be weighed in relation to the totality of its own circumstances. ’ ’ So weighing the circumstances shown in the case…