The opinion
STONE, J., Concurring and Dissenting.
I have no quarrel with the affirmance in this case, but I must dissent from that portion of the majority opinion holding that failure to advise a defendant of his Sixth Amendment constitutional rights must be raised in the trial court or it is waived, and as a necessary corollary thereto that a silent record raises the presumption that a defendant has been advised of such rights under the Sixth Amendment.
To view in proper perspective the holding that a defendant’s Sixth Amendment rights are waived if not asserted in the trial court, it is necessary to first determine whether a silent record raises the presumption that a defendant has been advised of such rights. The import of People v. Dorado, 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ] ; In re Lopez, 62 Cal.2d 368 [ 42 Cal.Rptr. 188 , 398 P.2d 380 ]; People v. Modesto, 62 Cal.2d 436 [ 42 Cal.Rptr. 417 , 398 P.2d 753 ], and other recent eases, is to require as a condition precedent to the use in evidence of a confession or admission, proof that a defendant has been advised of his rights under the Sixth Amendment and that he knowingly waived them.
California courts have long required that it be shown that a confession was freely and voluntarily made, without coercion, threats or undue pressure, and without promises of reward, immunity from punishment, or leniency, real or apparent, by those in authority. (People v. Miller, 135 Cal. 69 [ 67 P. 12 ].) The same proof has been required for use of admissions as evidence since People v. Atchley (Dec. 1959) 53 Cal.2d 160 [ 346 P.2d 764 ], (See CALJIC 29 A-l.) The burden is upon the prosecution to prove that these conditions precedent have been met.
Not only must the trial judge first satisfy himself whether the foundational evidence meets the requirements for the use of the confession or admission in evidence, but also he must instruct the jury that his determination is not binding upon them, the jurors must determine for themselves whether the proper foundation has been laid to permit consideration of the confession.
Dorado and kindred cases have made proof that a defendant *51 has been advised of his rights under the Sixth Amendment a part of this foundational proof. Since it is a condition precedent to the use of a confession or admission, this evidence is as essential to the record as the confession or admission itself. There is no room for a presumption from a silent record that the foundation has been laid. Therefore it seems to me that the majority holding that objection to lack of the foundational evidence is waived if not raised in the trial court, is untenable. If the confession or admission is in the record, but the foundational evidence necessary to make it useable as evidence is not, the record reflects error on its face. And since the record reflects reversible error, it can be raised for the first time on appeal.
I find no difficulty in distinguishing a violation of a defendant’s Sixth Amendment rights in the use of a confession or an admission as evidence, from the introduction of other kinds of evidence subject to exclusionary rules, such as that obtained by an illegal search. Objection to the introduction of such other kinds of evidence is waived if not made in the trial court, because unless objection is made no foundational evidence is required for its use.