Spencer

I dissent. I would affirm the judgment. Applying the "harmless error” rule (Cal. Const., art. VI, § 13 ; Fahy v. Connecticut, 375 U.S. 85 [ 11 L.Ed.2d 171 , 84 S.Ct. 229 ]; Chapman v. California, 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 ]), it is my opinion that there is no reasonable possibility that the evidence complained of might have contributed to the conviction.

The jury found defendant guilty of kidnaping for the purpose of robbery (Pen. Code, § 209) and of first degree murder (Pen. Code, §§ 187, 189), and fixed the penalty at death. The trial judge denied defendant’s motion for a new trial and for a reduction of penalty. This appeal comes to us automatically under Penal Code section 1239, subdivision (b).

Defendant contends that his confession was improperly admitted at the guilt trial because he had not been informed of his rights to silence and to counsel prior to the time he confessed; he also urges that improper comments by the district attorney and an inadmissible confession infected his penalty trial with error. Since we conclude that the introduction of defendant’s confession at the guilt trial constituted reversible error under Escobedo v. Illinois (1964) 378 U.S. 478 [ 12 L.Ed.2d 977 , 84 S.Ct. 1758 ], and People v. Dorado (1965) 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ], we need not reach the issues raised by defendant’s other contentions.

The essential facts stand uncontradicted. Late in the evening of May 3, 1963, two sailors on liberty, Billy Jack and Paul Clements, were hitchhiking from San Diego to Hermosa…