LILLIE, J.
The judgment of the trial court in this cause made on June 19, 1959, (adjudging defendant guilty of first degree murder) was affirmed by this court in an opinion filed on June 8,1960, (People v. Barreras, et al., Benavidez, Appellant, 181 Cal.App.2d 609 [5 Cal.Rptr. 454]); appellant’s petition for a hearing by the Supreme Court was denied Augustz 3, 1960. Thereafter, pursuant to decision of the Supreme Court of the United States, the remittitur herein [304]*304was recalled and the judgment of this court was vacated in order to consider (in the light of Douglas v. California, 372 U.S. 353 [83 S.Ct. 814, 9 L.Ed.2d 811]) the matter of appointment of counsel for defendant Benavidez who had appeared in propria persona when this appeal was previously before this court. Thereupon, this court appointed Mr. Robert W. Stanley as counsel for Benavidez. Again the judgment of the trial court was affirmed by this court in an opinion filed December 1, 1964; appellant’s petition for a hearing by the Supreme Court was granted on January 27, 1965, and the cause re-transferred to this court for reconsideration in light of Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977].
Defendant and one Barreras were charged with robbery, attempted robbery and murder. The cause was submitted on the transcript of the testimony taken at the preliminary hearing ; also submitted by way of stipulation for consideration by the court, was a written statement of the defendants and one Trujillo taken upon their arrest by the officers. Defendants offered no evidence on their behalf nor did they testify at the trial. Both were found guilty of first degree murder; the first two counts were dismissed. Only Benavidez appealed.
At approximately 2:05 a.m. on December 21, 1958, Allsop and Johnson walked across the street behind a 1949 Mercury automobile; as they continued walking the car pulled up alongside of them from which emerged Barreras and defendant. Trujillo, a minor, remained in the car. They told Allsop and Johnson, at whom defendant was pointing a gun, to throw down their wallets. Allsop, having no wallet, threw his change on the ground; Johnson, having an injured back, sat down on the ground to rest. He then got up, and “holding his back, walked toward them”; defendant shot him in the chest. Johnson died December 25, 1958, the result of the gunshot wound. Defendant and Barreras then returned to the car, which had stalled, and forced Allsop at gun point to help push it; Allsop did so, but immediately thereafter called police who found Johnson’s body face down near a Mercury automobile stuck in the mud.
Several hours later, around 4:30 a.m., defendant and Barreras appeared at the home of Angie Villalobes on 118th Place. Defendant told her he was in trouble and asked her to take his friends home; he told her he had shot a man. Around 6 or 6 :30 a.m. he placed the shotgun under her bed. Later officers rang the bell and walked into the front room of a house on 46th Street where they arrested Barreras who was asleep on a couch. He asked them why they were arresting him and [305]*305when they told him that he knew, Barreras responded, “No”; one officer picked up a pair of shoes from the floor and asked him to look at the mud on them; the police told him they had found the automobile and knew he had shot a man. Barreras then said he had been there and shot him, and he would take them to the others, directing them to 118th Place, where police took defendant into custody. Defendant was asleep when they arrived; when he asked what it was all about, he was told, “Don’t you know?” Police advised him they knew what had happened and knew a man had been shot, and said they wanted the shotgun; when told that they would search for it, defendant said, “Well, you will find it anyhow, it is there under the bed,” pointing to the foot of the bed in which he had slept. The shotgun was disassembled under the mattress. The officers took defendant, Barreras and the juvenile, Trujillo, to the police station where their statements were taken.
Defendant’s statements were freely and voluntarily given without promise of reward. Defendant said that he, Barreras and Trujillo had met around 6:30 p.m. and had driven around; that shortly after 2 a.m. they were around 182nd and Western; that Barreras was driving, Trujillo was seated in the front and he was in the rear with the shotgun; that two men came out of a bar, they were both drunk and one thumped the ear; that they got out and went to where the men were standing; that he had a shotgun in his hand and asked the man why he had hit the car; that upon their denial and after one called them names, Barreras said, “Throw your money down,” and he (Benavidez) told them to put up their hands; that one threw money down, the other laid down on the grass, then got up and started towards him, and he (Benavidez) shot him; that he didn’t know whether the gun went off accidentally or deliberately but he tried to shoot him in the leg; that after shooting Johnson he held the gun on Allsop and made him push the ear, but after it started it stuck in the mud; and that they abandoned the ear and went to Angie’s house. Neither defendant testified at the trial or offered a defense.
The evidence read without the confession leads to the inescapable conclusion that Benavidez killed Johnson in cold blood in the perpetration of a robbery; it shows no mitigating circumstances of any kind.. Benavidez held the shotgun on the two victims, shot Johnson, forced Allsop at gun point to help push the car out of the mud while Johnson lay dying, abandoned the car when it could not be moved, fled the scene [306]*306on foot, secreted himself in the home of a friend and hid the gun under the mattress of the bed on which he was found sleeping by the officers. Neither defendant saw fit to take the stand and explain what occurred.
Appellant’s contentions relative to the sufficiency of the evidence to support the conviction of first degree murder, the variance between pleading and proof, the use of an information in a capital case, denial of his constitutional rights' during trial, the admissibility of certain evidence and his claim of double jeopardy are all without merit, but, while the record shows that his confession was freely and voluntarily given, we are compelled to conclude under recent rulings in Escobedo v. Illinois (1964) 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977], and People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], that it was not properly admitted in evidence compelling a reversal of the judgment.
Inasmuch as defendant’s written confession that he shot Johnson in the perpetration of a robbery was given by him at the police station after his arrest (upon evidence which provided reasonable grounds for focusing upon defendant as the particular suspect), it must be conceded that the investigation had then ceased to be a general inquiry into an “unsolved crime” and had begun to focus on Benavidez, and that the process of interrogation had shifted from general questioning to the accusatory stage, the purpose of which was to obtain incriminating statements and “to elicit a confession.” (Escobedo v. Illinois
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LILLIE, J.
The judgment of the trial court in this cause made on June 19, 1959, (adjudging defendant guilty of first degree murder) was affirmed by this court in an opinion filed on June 8,1960, (People v. Barreras, et al., Benavidez, Appellant, 181 Cal.App.2d 609 [5 Cal.Rptr. 454]); appellant’s petition for a hearing by the Supreme Court was denied Augustz 3, 1960. Thereafter, pursuant to decision of the Supreme Court of the United States, the remittitur herein [304]*304was recalled and the judgment of this court was vacated in order to consider (in the light of Douglas v. California, 372 U.S. 353 [83 S.Ct. 814, 9 L.Ed.2d 811]) the matter of appointment of counsel for defendant Benavidez who had appeared in propria persona when this appeal was previously before this court. Thereupon, this court appointed Mr. Robert W. Stanley as counsel for Benavidez. Again the judgment of the trial court was affirmed by this court in an opinion filed December 1, 1964; appellant’s petition for a hearing by the Supreme Court was granted on January 27, 1965, and the cause re-transferred to this court for reconsideration in light of Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977].
Defendant and one Barreras were charged with robbery, attempted robbery and murder. The cause was submitted on the transcript of the testimony taken at the preliminary hearing ; also submitted by way of stipulation for consideration by the court, was a written statement of the defendants and one Trujillo taken upon their arrest by the officers. Defendants offered no evidence on their behalf nor did they testify at the trial. Both were found guilty of first degree murder; the first two counts were dismissed. Only Benavidez appealed.
At approximately 2:05 a.m. on December 21, 1958, Allsop and Johnson walked across the street behind a 1949 Mercury automobile; as they continued walking the car pulled up alongside of them from which emerged Barreras and defendant. Trujillo, a minor, remained in the car. They told Allsop and Johnson, at whom defendant was pointing a gun, to throw down their wallets. Allsop, having no wallet, threw his change on the ground; Johnson, having an injured back, sat down on the ground to rest. He then got up, and “holding his back, walked toward them”; defendant shot him in the chest. Johnson died December 25, 1958, the result of the gunshot wound. Defendant and Barreras then returned to the car, which had stalled, and forced Allsop at gun point to help push it; Allsop did so, but immediately thereafter called police who found Johnson’s body face down near a Mercury automobile stuck in the mud.
Several hours later, around 4:30 a.m., defendant and Barreras appeared at the home of Angie Villalobes on 118th Place. Defendant told her he was in trouble and asked her to take his friends home; he told her he had shot a man. Around 6 or 6 :30 a.m. he placed the shotgun under her bed. Later officers rang the bell and walked into the front room of a house on 46th Street where they arrested Barreras who was asleep on a couch. He asked them why they were arresting him and [305]*305when they told him that he knew, Barreras responded, “No”; one officer picked up a pair of shoes from the floor and asked him to look at the mud on them; the police told him they had found the automobile and knew he had shot a man. Barreras then said he had been there and shot him, and he would take them to the others, directing them to 118th Place, where police took defendant into custody. Defendant was asleep when they arrived; when he asked what it was all about, he was told, “Don’t you know?” Police advised him they knew what had happened and knew a man had been shot, and said they wanted the shotgun; when told that they would search for it, defendant said, “Well, you will find it anyhow, it is there under the bed,” pointing to the foot of the bed in which he had slept. The shotgun was disassembled under the mattress. The officers took defendant, Barreras and the juvenile, Trujillo, to the police station where their statements were taken.
Defendant’s statements were freely and voluntarily given without promise of reward. Defendant said that he, Barreras and Trujillo had met around 6:30 p.m. and had driven around; that shortly after 2 a.m. they were around 182nd and Western; that Barreras was driving, Trujillo was seated in the front and he was in the rear with the shotgun; that two men came out of a bar, they were both drunk and one thumped the ear; that they got out and went to where the men were standing; that he had a shotgun in his hand and asked the man why he had hit the car; that upon their denial and after one called them names, Barreras said, “Throw your money down,” and he (Benavidez) told them to put up their hands; that one threw money down, the other laid down on the grass, then got up and started towards him, and he (Benavidez) shot him; that he didn’t know whether the gun went off accidentally or deliberately but he tried to shoot him in the leg; that after shooting Johnson he held the gun on Allsop and made him push the ear, but after it started it stuck in the mud; and that they abandoned the ear and went to Angie’s house. Neither defendant testified at the trial or offered a defense.
The evidence read without the confession leads to the inescapable conclusion that Benavidez killed Johnson in cold blood in the perpetration of a robbery; it shows no mitigating circumstances of any kind.. Benavidez held the shotgun on the two victims, shot Johnson, forced Allsop at gun point to help push the car out of the mud while Johnson lay dying, abandoned the car when it could not be moved, fled the scene [306]*306on foot, secreted himself in the home of a friend and hid the gun under the mattress of the bed on which he was found sleeping by the officers. Neither defendant saw fit to take the stand and explain what occurred.
Appellant’s contentions relative to the sufficiency of the evidence to support the conviction of first degree murder, the variance between pleading and proof, the use of an information in a capital case, denial of his constitutional rights' during trial, the admissibility of certain evidence and his claim of double jeopardy are all without merit, but, while the record shows that his confession was freely and voluntarily given, we are compelled to conclude under recent rulings in Escobedo v. Illinois (1964) 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977], and People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], that it was not properly admitted in evidence compelling a reversal of the judgment.
Inasmuch as defendant’s written confession that he shot Johnson in the perpetration of a robbery was given by him at the police station after his arrest (upon evidence which provided reasonable grounds for focusing upon defendant as the particular suspect), it must be conceded that the investigation had then ceased to be a general inquiry into an “unsolved crime” and had begun to focus on Benavidez, and that the process of interrogation had shifted from general questioning to the accusatory stage, the purpose of which was to obtain incriminating statements and “to elicit a confession.” (Escobedo v. Illinois (1964) 378 U.S. 478, 492 [84 S.Ct. 1758, 12 L.Ed.2d 977].) There is absent in the record any showing that at the time Benavidez was interrogated at the police station, he was represented by counsel or knew of his right to have a lawyer, or that he had in any manner been warned by the officers of his “absolute constitutional right to remain silent” (378 U.S. 478, 491) or knew of that right.
Escobedo holds that an accused must he afforded his right to counsel as soon as “the process shifts from investigatory to accusatory—when its focus is on the accused and its purpose is to elicit a confession. . . .” (378 U.S. 478. 492), and that he has the right not to incriminate himself, and must be informed of his “absolute right to remain silent.” (378 U.S. 478, 485.) The facts in the case at bar bring it squarely within the rule of Escobedo, with the exception that defendant did not request counsel; however, on this issue the case of People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], controls.
Rejecting the contention that the failure to request counsel [307]*307constitutes a waiver thereof, the Supreme Court in People v. Dorado (1965) 62 Cal.2d 338, 349 [42 Cal.Rptr. 169, 398 P.2d 361] declared: “The right to counsel matures at this critical accusatory stage; the right does not originate in the accused’s assertion of it.” It held that he must know of his right in order to intelligently waive it and that “In the absence of evidence that defendant already knew that he had a right of counsel during interrogation, the failure of the officers to inform him of that right precludes a finding that he knowingly waived it. ’ ’* As to the right of one accused to remain silent, the Supreme Court in Dorado had this to say: “Escobedo also holds that the accused has the right not to incriminate himself and to remain silent, and that, in any self-incriminatory statements are to be admissible, he must waive that right. Such waiver presupposes knowledge of the right to remain silent; in the absence of evidence of such knowledge, the waiver requires a warning to the accused of that right.”
Without any doubt the evidence, excluding appellant’s confession, points directly to his coldblooded killing of Johnson with a sawed-off shotgun while he and Barreras were in the process of robbing Johnson and Allsop. But regardless of how strong the evidence of guilt against appellant may be, the rule of Dorado does not permit the disposition of the introduction of his confession on the ground that it constitutes harmless error, for therein the court held that the use of the confession results in a denial of due process and requires reversal regardless of other evidence of guilt. Therefore, we are precluded from inquiring into whether appellant was prejudiced by the admission in evidence of his confession in the light of the clear and undisputed testimony of Allsop, an eyewitness, Angie Villalobes, to whom, immediately after the killing, he told “he had shot a man,” and the officers, the results of the police investigation, and the statements made to the police by him before he was taken into custody. Thus, inasmuch as the matter of prejudice is not subject to our inquiry, we are compelled to reverse the conviction. (People v. Dorado, 62 Cal.2d 338, 357 [42 Cal.Rptr. 169, 398 P.2d 361].)
The judgment is reversed.
Wood, P. J., concurred.
People v. Dorado, 62 Cal.2d 338, 352 [42 Cal.Rptr. 169, 398 P.2d 361].