Defendants Leamau Smith, Barbara Walker, and Donald Castner appeal from judgments entered upon jury verdicts finding them guilty of conspiracy to commit forgery and burglary (Count I), the murder of Charles Monaghan (Count II), the murder of Robert Endler (Count III), the attempted murder of Stephen Suzuki (Count IV), and the attempted murder of Endel Jurman (Count V). The jury found the murders to be of the first degree, and fixed the penalty therefor at life imprisonment for Mrs. Walker and Castner, and death for Smith. The appeal of the latter is automatic. (Pen. Code, § 1239, subd. (b).) 1
During the two months preceding February 1, 1964, Smith arranged for the printing of large numbers of blank checks purportedly issued by the Colgate-Palmolive Company and the Alka-Seltzer Miles Laboratories Company. With the assistance of Castner and Anderson, Smith placed false account numbers on the checks by a silk-screen process, made the checks payable to fictitious payees, signed them with the names of fictitious makers who were purportedly authorized officers of the issuing companies, prepared fictitious driver’s licenses appearing to identify Smith as the person named as payee, and cashed a number of these checks at stores in the Los Angeles area.
In the late afternoon of February 1, 1964, Smith and Mrs. Walker left the house where they lived together, and proceeded to drive along West Pico Boulevard and nearby streets. Smith attempted with mixed success to cash fraudulent AlkaSeltzer checks at eight or nine liquor stores and food markets on the way. When the owner of one of the liquor stores refused to cash a check that Smith had presented, Mrs. Walker said, “Why don’t you cash that cheek, it’s a good check.”
About 8:15 p.m. Smith and Mrs. Walker arrived at the Sears, Roebuck store on West Pico Boulevard. They went to the cashier’s department and Smith presented one of the Alka-Seltzer checks to be cashed, together with a fictitious *785 driver’s license purporting to identify him as the payee, “Thomas B. Conway.” On turning the license over, the cashier’s suspicions were aroused when she found it did not have the usual seal of the State of California stamped on the reverse side. A call went out for the store security officer, Mr. Winters; while awaiting his arrival, the cashier explained tiie delay to Smith by pretending that the check was being cleared through Telecredit. Smith stated that he “couldn’t wait that long, ’ ’ but the cashier retained the check and license and reported that the Telecredit line was busy. Mr. Winters then arrived, and out of the presence of Smith and Mrs. Walker the cashier gave the check and license to him and explained her reasons for believing they were not genuine.
At Mr. Winters’ request, Smith and Mrs. Walker accompanied him to an inner office. He asked Smith if he had any further identification, and Smith said he did not. Smith then stated he wanted the cheek and license returned to him and wanted to leave. Mr. Winters replied he would first have someone examine the cheek and license; in the presence of Smith and Mrs. Walker, Mr. Winters telephoned the Wilshire Detective Bureau, located next door to Sears, and asked that a detective be sent over.
A few minutes later Police Officers Monaghan, Endler, and Jurman, all in plain clothes, arrived in the office. Mr. Winters showed them the check and license and told them he suspected they were not genuine. Smith asked the officers, “Are you cops?” and Officer Endler answered, “Yes.” Smith and Mrs. Walker appeared to speak to each other, but their words were inaudible to the others present. 2 The police officers then separated Smith and Mrs. Walker, conducting the latter to a chair in the outer office. Mr. Winters attempted to reach Telecredit to verify the check, when Smith suddenly drew a gun from under his coat. Officer Monaghan shouted, “Look out, he has a gun,” and a shot rang out. Mr. Winters and the officers ducked, and Smith stood waving his gun and saying, “Get out of my way, I’m coming through” or “I’m coming out.” Officer Endler had been shot point-blank in the head; when found after the shooting, his gun was still in its holster. Officer Monaghan drew his gun and pushed Mr. Winters, who *786 was unarmed, behind him on the floor. Mr. Winters’ view was then blocked, but he heard another shot and saw Officer Monaghan bleeding profusely from the head. Officer Jurman attempted to stop Smith, but Smith shot him in the chest and arm. At some point in this melee Smith also fired in the direction of two employees crouching by a counter and wounded one, Mr. Suzuki. Smith then ran out of the office and down a main aisle of the store, brandishing his gun and shouting, “Don’t move, anybody, don’t move.” He left via the parking lot and escaped in his car.
Additional police arrived on the scene and found Officers Monaghan and Endler dead from gunshot wounds of the head, and Officer Jurman and employee Suzuki alive but suffering from other gunshot wounds. Throughout the shooting and escape Mrs. Walker had remained seated in the chair where she had been placed earlier. Officer Bradshaw took possession of her purse, opened it and found a loaded .25-caliber pistol in a holster. Officer Bradshaw then arrested and handcuffed Mrs. Walker, and turned her over to Officer Sinclair, his superior. A further examination of Mrs. Walker’s purse disclosed a driver’s license in her wallet with her photograph on it but issued to the name “Barbara J. Snyder,” and scraps of paper bearing the names and addresses of defendants Castner and Anderson. In a separate, zippered compartment of the purse were found four other driver’s licenses, each bearing the same photograph of Smith but issued to a different fictitious name and address; six forged Alka-Seltzer checks; and a driver’s license and social security card in a fictitious name (“Larry Parker”) previously used by Smith in passing the Colgate-Palmolive checks. 3
After leaving the Sears parking lot Smith abandoned his car on a side street and took a taxi to a bar, where he telephoned Castner. Phillips, who lived with Castner, testified that the latter answered the call about 9 :15 p.m., and became “visibly shook and nervous.” After hanging up, Castner ran around the apartment pouring photographic solutions down the drain and packing other equipment, including an enlarger, into Phillips’ car. They drove to the bar and had a round of drinks with Smith, then all three returned to Phillips’ *787 car. As they entered Smith said, “Turn on the radio, I have shot someone.” They heard a news broadcast stating that two policemen had been killed at the Sears store and two persons had been wounded. Smith told Phillips and Castner that he and Mrs. Walker had gone into Sears to cash a check and there had been “some trouble.” At Smith’s direction they drove to an alley and dumped the equipment into a trash can, then continued to the railroad freight yard where Smith left them. Phillips and Castner drove on to the apartment of a friend, Johnny Holloway; the three went to a bar, and Castner told Holloway that if anyone should ask, they had been with him all evening. Smith was arrested in Chicago on a fugitive warrant four days later, still in possession of the gun that had been used to kill Officers Monaghan and Endler.
Mrs. Walker testified in her own defense. She was five or six months pregnant at the time of trial, had three children by a prior marriage, and was 21 years old. Her schooling had not progressed beyond the sixth or seventh grade, and she could barely read or write. Smith met her in Chicago where she was working as a waitress, and brought her to California in the middle of January 1964. Through Smith she met Castner and Phillips, but she had never seen Anderson until he appeared in court. Smith told her to call him “Jim Snyder,” and to describe him as a sales promotion man for Colgate-Palmolive. He told her he carried a gun for protection because he often had large amounts of money on his person. He told her that the various checks he cashed were his own pay cheeks, and she had no knowledge that they were fictitious. She had no part in preparing any of the checks involved in this ease, and Smith had made it very clear to her that she was to keep out of his “business.” He gave her a driver’s license made out to “Barbara J. Snyder” for the purpose of proving her age when they went to bars or nightclubs together. He often opened her purse, and told her she need not use the zippered compartment. Before they went out on the evening of February 1 he turned his back on her and put something in that compartment, which was later found to contain the additional fictitious checks and driver’s licenses. When they reached the Sears parking lot Smith said he planned to buy a dress for her and told her to carry the .25-caliber automatic in her purse for him. She obeyed, as she had in the past, and they entered the store. She did not know he was still armed; during the shooting and the confu *788 sion following it, she made no move to escape; and thereafter she fully cooperated with the police in their efforts to identify and apprehend “Jim Snyder.”
Smith took the stand and corroborated Mrs. Walker’s testimony as to her ignorance of his “business.” 4 As for himself, he made in effect a judicial confession of all the crimes charged against him. He admitted conceiving the idea of the cheek forging operation, and described his participation therein during December 1963 and January 1964. As to the events of February 1, he admitted stopping on the way to Sears with Mrs. Walker at a number of liquor stores and food markets for the express purpose of cashing fictitious checks. He admitted presenting such a check at the cashier’s department of Sears; and although he testified that he “didn’t intend to kill anyone,” his own description of the ensuing events discloses an unmistakable intent to shoot his way out of his predicament regardless of the cost in human lives. 5
We shall consider the contentions of each appellant generally in the order presented.
*789
Challenges to prospective jurors.
Smith first contends that the trial court erred in sustaining the People’s challenges for cause to a group of prospective jurors who stated that although they could vote for a verdict of guilty of first-degree murder, their moral scruples would prevent them from thereafter voting to fix the penalty at death. Penal Code section 1074, subdivision 8, provides that a challenge for implied bias may be taken “If the offense charged be punishable with death, the entertaining of such conscientious opinions as would
preclude his finding the defendant guilty;
in which case he must neither be permitted nor compelled to serve as a juror. ’ ’ (Italics added.) Smith argues that the scruples of the prospective jurors here involved would not have precluded such a finding of guilt but would only have precluded a vote to impose the death penalty. The same argument was considered at length and rejected in
People
v.
Riser
(1956)
The point is without merit. The enactment of section 190.1 can in no way be construed as evidence of legislative intent to overrule our decision in
Riser,
which has since been cited in two further decisions of this court rejecting the argument here advanced by Smith.
(People
v.
Shipp
(1963)
Smith’s prior felony convictions. The indictment charged Smith with, six prior convictions of felony in various states and federal courts. Smith denied these allegations, and at the *790 close of the People’s case in chief on the guilt phase the prosecuting attorney introduced into evidence, without objection by Smith, documentary proof of the prior convictions charged. Smith then took the witness stand in his own defense. In the course of cross-examination the prosecuting attorney asked Smith if he had been convicted of each of the charged felonies and had served a term of imprisonment therefor, identifying each by the date and place of conviction and the name of the crime. Smith contends that such questions exceeded the allowable scope of cross-examination for impeachment purposes.
The contention is without merit. A defendant who testifies in his own behalf may be impeached by proof he has suffered one or more prior convictions of felony in this state or elsewhere. (Code Civ. Proc., §§ 2051, 2065.) While the courts will be zealous to insure that the prosecuting attorney is not permitted to delve into the details and circumstances of the prior crime
(People
v.
David
(1939)
Smith contends that the prosecuting attorney in the present case was allowed to go beyond these limits and ask him the actual terms of imprisonment he served on each prior conviction. Inquiry into " the length of time served and conditions or circumstances surrounding the parole of a defendant” is improper
(People
v.
Wynn
(1941)
supra,
Smith also complains that the court failed to give appropriate limiting instructions upon request at the time the foregoing questions were asked. The court replied that it would give such instructions “when the proper time comes,” and proceeded to do so in its charge to the jury at the close of the guilt phase. In particular, the court on defendant’s request carefully instructed as to the limited purposes for which the evidence of Smith’s prior convictions could be considered by the jury, and warned the jury that “You must not use this evidence in determining the defendant’s guilt or innocence of the other charges, nor must you permit yourself to be influenced against the defendant because he may have suffered a prior felony conviction.” Such instructions adequately protected Smith’s substantive rights.
Proof and instructions relating to conspiracy. The prosecution advanced two theories to warrant a verdict of first-degree murder against Smith: that the killings of Officers Monaghan and Endler were deliberate and premeditated, or that they occurred in the perpetration of burglary, i.e., during Smith’s entry into Sears with the intent to commit the felony of forgery. (Pen. Code, §§ 189, 459, 470.) There was ample evidence to support a first-degree murder conviction of Smith on either or both of these grounds, and the court gave corresponding proper instructions.
There was also ample evidence that Smith and Castner, and possibly Anderson in addition, were guilty of forgery and conspiracy to commit forgery. Yet rather than ask for an indictment on these simple and provable charges, the prosecution apparently sought to use the fact of the common forgery *792 operation as a means to ensure first-degree murder convictions of everyone in any way connected with these events. For this purpose, of course, a charge of conspiracy merely to commit forgery would have been insufficient because it would not have involved the felony-murder doctrine. To bring that doctrine into play, the prosecution charged instead that Smith, Castner, Anderson, and Mrs. Walker had committed a compound crime entitled “conspiracy to commit forgery and burglary.’’ The evidence is thin indeed that such a conspiracy ever existed here. Bather, the jury’s verdict on Count I may well have been based on the not unnatural surmise that if several persons conspire to prepare fictitious checks, they probably also intend to pass them for profit in stores or other business establishments. It is true that Smith himself clearly intended to pass these checks in stores, and he admitted as much on the witness stand. But other than mere association and opportunity to conspire, there is little evidence from which the jury could justifiably have believed beyond a reasonable doubt that Castner, Anderson, or Mrs. Walker participated in the burglarious plans of Smith.
At this time, however, we need not finally determine whether the evidence of conspiracy to commit burglary is so inadequate as to require reversal on that ground alone. Anderson is not a party to this appeal; and as will appear, the judgments as to Castner and Mrs. Walker must be reversed in any event because of the admission into evidence of statements obtained in violation of the rules of
Escobedo
v.
Illinois (1964) 378
U.S. 478 [
Smith complains that the court erred in sustaining an objection to the following question asked of him by his counsel: “Mr. Smith, when you entered any establishment that you did enter for the purpose of cashing one of these checks, did you
*793
have any knowledge that when you entered that store or that establishment, that that would constitute a crime of burglary in California ? ” It is urged that this question was essential to Smith’s defense because he proposed to testify he was ignorant of the law of burglary in California and therefore “had no intent” to commit that crime. To state the argument is to refute it. It is true, as we held in
People
v.
Marsh
(1962)
Smith contends that any conspiracy to commit forgery or burglary terminated as a matter of law when he and Mrs. Walker were “placed into custody by police officers.” Once again the facts do not support his contention. At the time of the shooting neither Smith nor Mrs. Walker had been placed under arrest; and although the store personnel had expressed doubts about the validity of the cheek and license presented by Smith, the matter was still under investigation
*794
when Smith suddenly drew his gun and began firing. It has long been settled, of course, that “whether or not the act committed was the ordinary and probable effect of the common design or whether it was a fresh and independent product of the mind of one of the conspirators, outside of, or foreign to, the common design, is a question of fact for the jury [citations], and if there be any evidence to support the finding of the jury on this question, its determination is conclusive.”
(People
v.
Kauffman
(1907)
Directly in point are
Kauffman
and a number of later decisions (e.g.,
People
v.
Boss
(1930)
Here, the events had not progressed as far as in Grunewald, for Smith was not attempting to conceal a successfully completed crime but to escape arrest for an unfinished crime that was on the brink of being uncovered in his presence. His acts were clearly part of the res gestae of the offense, and Grunewald in no way affects the settled rules of liability for such conduct.
Smith contends that the instructions on conspiracy and various other theories of the case were contradictory and confusing. It would unduly prolong this opinion to discuss the particulars of Smith’s contention; we have examined the instructions and conclude that taken together, as the jury was *795 charged to do, they fairly state the law governing this somewhat complicated multiple trial.
Procedure at the penalty phase.
Smith contends that in this phase the People should
not
be permitted to open and close either the presentation of evidence or the arguments to the jury. This point has more than once been rejected by this court.
(People
v.
Love
(1961)
supra,
Questions of search and seizure.
Shortly after the commission of the crimes on the evening of February 1 police officers entered the house at the rear of 2962 Veteran Avenue, Los Angeles, where Smith and Mrs. Walker lived together, and removed therefrom certain items of evidence. Defendants objected to the introduction of these items on the ground of illegal search and seizure, and the matter was heard at length in the absence of the jury. At the outset the prosecution stipulated that the entry and search were made without a warrant, thereby assuming the burden of showing proper justification.
(Tompkins
v.
Superior Court
(1963)
Officer Sinclair testified that he arrived at Sears within minutes after the shooting and took charge of Mrs. Walker. He explained, “We were seeking the identity of the man who had accompanied her into Sears.” In Mrs. Walker’s purse he found her driver’s license bearing the address, 2962 Veteran Avenue. He asked her if the latter was her address, and she said it was. He asked her who lived with her at that address, and she said that Lee did, the man who had come into the store with her (i.e., defendant Leaman Smith). The officer then asked her if Lee would go back to that address, and she answered, “I suppose he will. His clothes are there.” Officer Sinclair then asked her, “You don’t mind if we go and wait for him?” and Mrs. Walker replied, “No. I hope you catch him.” Officer Sinclair instructed two uniformed policemen *796 to stake out the Veteran Avenue premises and stop anyone who tried to enter or leave.
Officer Sinclair then conducted Mrs. Walker next door to the Wilshire station where he questioned her further, his purpose being “To attempt to identify the man that shot the officers.” She said she didn’t know his real name, but that he had told her to call him " Jim Snyder.” She gave a physical description of Smith, and Officer Sinclair caused this description to be broadcast over police radio, then sent Officer Denver, a plainelothesman, to the Veteran Avenue address. Officer Denver was instructed to “take up a position” at that address “to apprehend the suspect wanted, if he should arrive there; and also to obtain whatever information I could which would assist to identify the suspect or to determine his present whereabouts.” When Denver arrived, Officers Germann and Ruedy had already entered the house.
At the Wilshire station Officer Sinclair asked Mrs. Walker if she had any pictures of “this Jim Snyder.” She said there were pictures of him at the Veteran Avenue house, and he asked her if it would be all right for the police to pick them up. She said she didn’t mind if they did so, and repeated, “I hope you catch him.” Officer Sinclair then asked her if there was anything else in the house to identify “Jim Snyder,” and she answered that there might be “something in a bag or some bags.”
Officer Sinclair then spoke by telephone to Officer Denver at the Veteran Avenue house and instructed him to pick up the pictures of ‘ ‘ Jim Snyder ’ ’ and ‘ ‘ anything else that might aid in identifying him.” Being aware, moreover, that the entire shooting incident had arisen out of an attempt by “Jim Snyder” to pass an Alka-Seltzer check of doubtful validity, Officer Sinclair spoke to Officer Denver a second time and told him generally to bring in all identifying evidence in “a forgery case or shooting ease. ’ ’ In the ensuing search the officers found and removed a photograph of Smith and Mrs. Walker, a box of ,38-ealiber ammunition, a box of .25-caliber ammunition, a toy pistol, a packet of Colgate-Palmolive cheeks, a packet of Alka-Seltzer cheeks, a cheekwriter, a typewriter, five partially-completed California driver’s licenses, and several receipts. After hearing the foregoing testimony the court held the search to be lawful and overruled defendants’ objections to the evidence seized. This ruling was correct. 8
*797
It will be remembered that the shootings took place in front of numerous eyewitnesses, some of them police officers. Although “Jim Snyder” escaped from the scene, the manhunt began immediately. It was reasonable for the police to believe he might stop at his house before continuing his flight, to obtain clothes, money, or ammunition. This belief, in fact, was shared by his mistress, who communicated it to the police at that time. To make an arrest, a peace officer may break open the door or window of the house in which he has reasonable grounds for believing the suspect to be, “after having demanded admittance and explained the purpose for which admittance is desired.” (Pen. Code, § 844.) But compliance with the latter section “is not required if the officer’s peril would have been increased or the arrest frustrated had he demanded entrance and stated his purpose.”
(People
v.
Maddox
(1956)
It was with this kind of danger in mind that Officer Germann took reasonable precautions in entering the house on Veteran Avenue. lie had received a radio message instructing him to stake out that house, and informing him that the suspect had just killed two policemen at the Sears store. Failing to obtain a key from the adjacent house of the landlord, Officer Germann approached the suspect’s residence while “covered” by his fellow officers. He shone a flashlight into various rooms, saw no one, tried the doors and found them locked, then slipped in through an unlocked window and crawled to the door which he opened for his partner, Officer Ruedy. With drawn guns the policemen then searched the house for the suspect or “for any evidence of the suspect's having been there and gone.” The law recognizes that fresh pursuit of a fleeing suspect who has committed a grave offense and remains dangerous to life and limb may constitute “exceptional circumstances” sufficient to justify a search without a warrant.
(Johnson
v.
United States
(1948)
*798 Nor were the police required at that point to abandon their search for “Jim Snyder" or his true identity. They were not compelled to close their eyes to the contents of the house, and their ensuing search was incidental to the purpose of their entry. While in the house, it was not unreasonable for the officers to look about them for evidence that would identify the suspect, thus far known to them only by one of his several aliases, or that would enable them to pick up his trail. The evidence obtained by that search was properly admitted.
The second ground of the trial court’s ruling was that Mrs. Walker had given valid consent to the entry and search.
(People
v.
Burke
(1956)
Mrs.Walker also contends that her consent was involuntary and was given only “because of assertion of authority by police officers.” While permission obtained by means of such an assertion of authority is constitutionally inadequate
(People
v.
Shelton
(1964)
Apparently on Smith’s behalf, Mrs. Walker argues that her consent was not binding on Smith, cooecupant with her of the premises at 2962 Veteran Avenue. She relies on such cases as
People
v.
Shelton
(1964)
supra,
This is not a ease in which, as in
Stoner
v.
California
(1964)
Finally, Mrs. Walker complains that various items taken by the police from the automobile that Smith drove on the evening of February 1, and introduced into evidence over objection, were obtained by an illegal search and seizure. The car was found parked on a side street on February 3, and an inventory of its contents was taken later that day at the Wilshire police station; it was stipulated that the inventory was made without a search warrant. Mrs. Walker seeks to bring this ease within the authority of
Preston
v.
United States
(1964)
In the present case, however, the People do not attempt to justify this search as incidental to an arrest, i.e., the ground relied on in Burke and Preston. In distinction to those cases, here the car was abandoned property when it was found by the police. Smith had rented it from Avis Rent-A-Car some two weeks prior to February 1, under a fictitious name, and had equipped it with stolen license plates. Smith himself testified that after using the car to escape from the Sears parking lot he abandoned it on a side street, parking it between two other cars to prevent a quick cheek on its license plates. As we know, he then hailed a taxi, met Castner and Phillips in a bar, and left the city by freight train, finally being arrested in Chicago four days later. It may reasonably be inferred from such conduct that Smith had abandoned any interest he possessed in either the car or its contents, the latter being mainly liquor and groceries purchased by Smith on the way to Sears to facilitate cashing his fictitious checks.
*801
In these circumstances the controlling decision is
Abel
v.
United States
(1960)
The analogy between the vacating of a rented hotel room and the abandonment of a rented automobile is persuasive. Here, as in
Abel,
the property in question was
bona vacantia
as far as Smith was concerned. The police therefore were free to seize and search the vehicle without fear of infringing any of Smith’s constitutional rights. (For a case applying this rule to the search of an abandoned “getaway” car, see
People
v.
Harper
(1962)
Extrajudicial statements of Mrs. Walker and Castner.
During the night of February 1-2 Mrs. Walker and Castner were separately interrogated at the Wilshire police station. Although the interrogation of Mrs. Walker was directed in part to discovering the identity of a third suspect still at large, the investigation had nevertheless focused on Castner and her as probable participants in the crimes. Each was under arrest and in custody at that time, and the police had undertaken a process of interrogations that lent itself to eliciting incriminating statements. The inquiry had thus reached the accusatory stage as to Mrs. Walker and Castner (cf.
People
v.
Mathis
(1965)
ante,
pp. 416, 431-432 [46 Cal.
*802
Rptr. 785,
The record does not show that Mrs. Walker was informed of her rights in this regard, and under
People
v.
Stewart
(1965)
It follows that the admission into evidence of the statements of Mrs. Walker and Castner constituted error under
Escobedo
v.
Illinois, supra,
and
People
v.
Dorado, supra.
The final question to be determined is whether such errors were prejudicial. (Cal. Const., art. VI, § 4½;
People
v.
Watson
(1956)
Castner’s statement constituted a full confession of the crime of check forgery, and strong evidence of his participation in a conspiracy to commit such forgery. He admitted that he had placed the account numbers on the checks by means of a silk-screen process, explaining how suspicion was allayed by using only nonunion printing shops to print the blanks; he admitted tliat he had provided all the equipment and materials to print the account numbers; he acknowledged that he had no authority from either Colgate-Palmolive or Alka-Seltzer to print its checks, and that when he did so he knew someone was “going to be hurt” and a “lot of money” lost. The Attorney General concedes that Castner’s statement was “generally incriminating,” as indeed it was. Moreover, since Castner chose not to take the witness stand this statement constituted the primary prosecution evidence, apart from the testimony of accomplices, connecting him with the crimes charged.
In view of the meager amount of properly admitted evidence
*804
of participation by either Mrs. Walker or Castner in a conspiracy to commit burglary, the use of their extrajudicial statements obtained in violation of
Escobedo
and
Dorado
must be held prejudicial error.
9
That error, however, did not taint Smith’s judgment of conviction. The jury was carefully instructed that each extrajudicial statement was limited to the defendant making it, and that statements of a defendant-accomplice must be corroborated and should be viewed with distrust. More importantly, the independent evidence of Smith’s guilt "Was overwhelming: not only was he positively identified by numerous eyewitnesses, but he took the stand himself and in effect made a detailed judicial confession of all the crimes charged. In the premises there is no reasonable possibility that the error in admitting the statements of Mrs. Walker and Castner might have contributed to Smith’s conviction. (Cal. Const., art. VI, § 4½;
Fahy
v.
Connecticut
(1963)
The judgment as to Smith is affirmed. The judgments as to Castner and Mrs. Walker are reversed.
Traynor, C. J., McComb, J., Peters, J., Tobriner, J., Peek, J., and Burke, J., concurred.
The petition of appellant Smith for a rehearing was denied February 2, 1966.
Notes
A fourth defendant, Dennis Anderson, was originally charged in all five counts; his motion to dismiss for lack of probable cause (Pen. Code, § 995) was granted as to each count except Count I (conspiracy), and he obtained a severance.
Count VI of the indictment charged a fifth defendant, Clifford Phillips, with being an accessory after the fact (Pen. Code, § 32). In the course of trial, however, the court ruled that a corpus delicti of the charge against him had not been proved, and hence testimony of Ms statements to the police were inadmissible. The court then granted the People’s motion to dismiss as to Phillips for the purpose of calling him as a witness for the prosecution. (Pen. Code, § 1099.)
Smith testified that lie asked Mrs. Walker, “Are you ready?” Mrs. Walker denied this on the witness stand; she testified, rather, that lie asked her to give him the gun she had in her purse and that she refused to do so despite his repeated urging.
With Mrs. Walker’s consent the police then went to the house where she and Smith lived together, and found further evidence of Smith’s identity and of cheek forging operations. The circumstances surrounding this search and seizure will be discussed more fully at the appropriate point below.
He testified, for example, that “I didn’t think she was intelligent enough to put up the front, you might say, that was necessary to pass checks; and her memory was so bad that she couldn’t remember hardly even the names that I was using, much less the one that she should be using. ’ ’
Thus Smith testified that after separating him from Mrs. Walker, Mr. Winters began to frisk him “and I just pulled the gun out and jerked loose from his arm and told him, ‘ Don’t move. ’ And he backed up into a position right along here, and I was standing up here. (Indicating) So I started to go out this door, and I looked; and somewhere right along here, there was an officer with a gun. (Indicating) There was some more people out here on the floor, but I couldn’t tell exactly who was who at the time. So I shot from out here. (Indicating) And I came back in this way. And as I turned around, Mr. Endler was pushing the left side of Ms coat back as if he were going for his gun, and I hollered, ‘ Don’t move, ’ and I shot again, and I continued on past here and came out this door. (Indicating) I don’t even recall this table being in front of the door; but I do remember coming past here, and I looked back down through this window, and an officer who has now been identified as Mr. Jurman was back down in this position still with the gun in his hand. (Indicating.) So I shot again through here (indicating) and I came down this way and down here. (Indicating) Now, I am not really certain in my own mind even whether Mr. Monaghan shot at me from over here or I shot first, I don’t really know; but I don’t remember running into this gate at all. But I do know that when I came out that gate, that I had to continue tMs way to get back out the same direction that I had came in (indicating).”
While testifying that he could not remember firing the shot that wounded Mr. Suzuki, Smith admitted that in making good his escape ‘ ‘ I continued on running down this hall (indicating), hollering, ‘Don’t move! Don’t move! ’ every time I would see someone. ’ ’
“If the defendant was convicted by a jury, the trier of fact shall he the same jury unless, for good cause shown, the court discharges that jury in which ease a new jury shall be drawn to determine the issue of penalty. ’’ (Italics added.)
If the evidence on Count I is legally insufficient, of course, it is insufficient as to all three defendants convicted on that count, including Smith. But such a determination could not benefit the latter, who remains under two valid sentences of death. The conspiracy theory of Count I added nothing to the prosecution’s proof that Smith, the actual killer of Officers Monaghan and Endler, was guilty of first-degree murder on Counts II and III. In particular, even if the jury found that Smith entered the Sears store in furtherance of the alleged conspiracy to commit burglary, that same entry was an act of burglary sufficient to call into play the felony-murder rule.
Although the attack on the ruling is made in Mrs. Walker’s brief, we discuss its merits because it is also relevant to Smith’s appeal.
Because of this disposition we need not reach a contention raised by Mrs. Walker concerning the adequacy of the court’s answer to a question of law asked by the jury during its deliberations.