The opinion
ROTH, P. J.
I dissent.
Appellant was convicted of the crime of attempted burglary in the second degree in violation of sections 459 and 664, Penal Code, in that on January 13, 1963, he attempted to enter the building occupied by the Beau Jest Bar, with intent to commit theft therein. He admitted two prior felony convictions of robbery.
There were two doors through which the beer tavern could be entered from the rear. One was nailed shut while the other was operating. During the early morning of January 13, 1963, two Los Angeles police officers were patrolling the Highland Park area of Los Angeles in the vicinity of the tavern. At about 5 o’clock in the morning, while it was still dark, the officers passed through an alley approximately 50 feet from the rear of the tavern. The lights of their police car were off. One of the officers observed someone at the rear door. The person turned and ran through a parking lot. The officers gave chase on foot. The officers yelled, “Police” and commanded him to stop. A number of shots were fired. After an extended chase, one of the officers observed the person duck in back of a bush. The officer approached the other side of the bush, reached over it and found himself directly opposite the other person. The officer pointed his gun at this person and told him to stop right there. He had the person in view at that time and later identified him as appellant.
As the officer started to go around the bush, appellant began walking toward the officer who noticed that appellant was holding an object in his right hand. The officer pointed his gun at appellant and ordered him to drop the object. *780 Appellant continued to edge closer to the officer who maintained a distance of about 15 feet between himself and appellant. The officer again ordered appellant to drop the object but, instead, appellant made a throwing motion at the officer, who then fired at appellant and hit appellant in a nonvital spot. The object which appellant threw at the officer was a screwdriver. Appellant escaped by running into the driveway of a private residence, and the officer lost sight of him among the various houses.
Officer Najera, together with Officer Siler and Sergeant Chinis of the Los Angeles Police Department were sent to the area later in the morning to investigate the above detailed events. None of said officers took part in the chase heretofore detailed. Officer Najera observed fresh blood stains on the ground near a bush in that area. He followed the spots of blood over fences and through back yards for some distance. He talked to a lady in an apartment house located in the neighborhood. This lady told Najera that she had seen a stout lady buying a big bunch of bandages, more than one would ordinarily use in a year's time. Najera then went to the store where the lady said the bandages had been purchased. He was told that the lady who bought the bandages lived in the vicinity. Najera then started going from house to house looking for a lady who answered the above description. He observed a lady coming up the street from the drugstore with another package of bandages. He stopped her and explained to her that he was looking for a man who had been shot. This lady took the officer to her home, telling him that the man was there. She said that he had come in early that morning and that she had been putting bandages on his wound. She led the officer to her home and let him in. He found appellant lying on a mattress in the rear bedroom of the house.
Officer Najera described appellant’s condition as follows: “The defendant had his neck bandaged and his leg, his upper leg almost to his buttocks, that was bandaged, and blood was coming out of the bandages. . . . [Referring to the leg bandages] ... It was almost in the middle of his buttocks, the bandage was clear around the trunk of his body. ’ ’
Officer Najera asked appellant “Are you hurt?” Appellant replied “I have a sore throat.” Najera further testified “When he told me he had a sore throat he had a large bandage on his neck, and it was all bloody and he was bleeding from that area—it would be the left side of his neck. ’ ’
*781 Najera further testified as follows:
“Q. As soon as you saw him then you told him he was under arrest? A. Either Officer Siler or Sergeant Chinis or myself told him he was under arrest. I believe they used the handcuffs on him immediately. ’ ’
On cross-examination, Officer Najera stated that he and Officer Siler and Sergeant Chinis, who were with him in the home in which appellant was found, picked up and recovered all articles of appellant’s clothing that could be found in the bedroom or on the premises.
He also testified as follows:
“Q. At the time of your recovery of the clothing, in your mind did you feel that this was the man that had committed the burglary that you had been notified about ? A. Yes. ”
Najera further testified he called an ambulance. He then testified “. . . I . . . stood by until the ambulance crew put him in the ambulance. I rode with him in the ambulance. During the course of the trip to the hospital we had other conversations. Q. Were the statements made by the defendant freely and voluntarily given to you? A. Yes, they were. Q. Did you make some threats or any promises of reward or immunity ... ? A. No, I did not. Q. Did you use any force on him for his statements ? A. No, I did not. ’ ’
Najera related the conversation as follows: “Most of this conversation is probably—not exactly the way he told it to me, but in essence it was that he was not a good burglar . . . that he was a better robber than a burglar. He got caught. That the only reason he went to burglarize this bar . . . was because—and he named the people, . . . they were people we arrested right after we arrested him. He said they had been burglarizing numerous bars in Highland Park so he got the idea to do the same thing; but he wasn’t too good at it and he got caught.
i C
“Q. Did he make any statement to the effect as to whether or not he was burglarizing the premises when the police arrived, that you recall? A. Yes, he said that was the first time he had burglarized that place or any place; that he had got the idea to burglarize it from his roommates, and he named these people, ...”
Later that day Officer Combs of the Police Department interviewed appellant at the hospital. He testified that at that time he asked appellant to tell him what happened the previous night at the Beau Jest Bar, and that he would write *782 down what he was told. “He [appellant] said, ‘Yeah, I’ll tell you what happened. This morning I was behind the Beau Jest Bar and trying to get in the back way. I saw the cops driving by with their lights off. I took off and then one cop started after me. . . .
“When he did almost get me I threw this screwdriver I had at him and took off again. Sure, he told me to stop, but like I said I didn’t want to go back to jail.
“ This is the first time I hit that place. ...”
In seeking a reversal, appellant contends that: there was no probable cause for his arrest; that there was an illegal search and seizure; that the corpus delicti of burglary was not established; that the evidence was insufficient to support the judgment, and that his confession was inadmissible. I agree with the majority that the evidence as outlined disposes of the first four of these contentions. I disagree that the ambulance conversation on the facts of this record occurred during the investigatory stage.
When appellant told Officer Najera that he had “a sore throat” he was handcuffed and placed under arrest. Suspicion for the commission of the crime had admittedly focused directly on appellant. Officer Najera not only stated that he thought appellant was the man who committed the crime, admittedly a subjective test, but all the facts and circumstances surrounding the handcuffing and arrest of appellant were ample evidence of probable cause to justify the arrest and to justify Officer Najera’s statement that he thought he had his man. In People v. Stewart, 62 Cal.2d 571, 577-578 [ 43 Cal.Rptr. 201 , 400 P.2d 97 ], the court said: “An arrest fulfills the first requirement that the investigation has begun to focus on a particular suspect. The Penal Code itself conditions the arrest upon the presence of reasonable ground for the belief that the individual committed the offense; section 813 predicates the issuance of a warrant upon ‘reasonable ground to believe that the defendant has committed’ the offense; section 836 requires that the arrest must rest upon the officer’s reasonable cause for believing the person committed the offense.
“ ‘Probable cause for an arrest,’ we have said, ‘is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. . . . Probable cause may exist even though there may be some room for doubt. . . . The test in such case is not whether the evidence upon which the officer *783 made the arrest is sufficient to convict hut only whether the prisoner should stand trial.’ (People v. Fischer (1957 ) 49 Cal.2d 442, 446 [ 317 P.2d 967 ]; see generally, Witkin, Cal. Criminal Procedure (1963) pp. 102-104; Fricke, Cal. Criminal Procedure (6th ed. 1962) pp. 19-20.) ”
Nothing in the record indicates whether or not appellant was informed prior to any conversations with any of the officers of his rights to counsel and to remain silent, or whether he otherwise knowingly and intelligently waived those rights. And specifically there is nothing in the record to show he was advised of or effectively waived such rights prior to his statements to Officer Najera in the ambulance.
The statements in the ambulance amounted to a complete confession of the crime.
As stated in Stewart, supra, p. 579 “. . . Whatever may be the subjective intent of the interrogators, we must, in order to determine if the police are carrying out ‘a process of interrogations that lends itself to eliciting incriminating statements’ . . . analyze the total situation which envelops the questioning by considering such factors as the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances.”
As some writers have suggested, “An objective test is . . . likely for the new American rule, for it is noteworthy that the question of ‘purpose to elicit a confession’ may be more readily determined from the objective evidence—such as the nature of the questions and accusations put to defendant and the length of the interrogation-—-than the question whether the police had decided to charge the defendant.” (Enker and Elsen, Counsel for the Suspects: Massiah v. United States and Escobedo v. Illinois (1964) 49 Minn. L.Rev. 47, 71.)
The record in the instant case of the conversations, particularly that in the ambulance, does not indicate a question and answer approach. In fact Officer Najera testified: “Most of this conversation was from Mr. Cully to me. I did very little questioning. ...”
I feel that the record shows that “The weight of the circumstantial evidence recited . . . and available to [Najera] ... at the point of interrogation provided reasonable grounds for focusing upon defendant as the particular suspect.” (People v. Dorado, supra, p. 347.)
The negative pregnant in the officer’s testimony suggests *784 that although little, he did engage in some questioning and that few or little as the questions might have been, they were designed to elicit answers which would incriminate.
It is clear to me that when appellant was placed in the ambulance, the accusatory stage had been reached. He confessed in the ambulance to Officer Najera in response to “. . . very little questioning”; the “very little questioning” succeeded in obtaining incriminating statements amounting to a confession. Appellant was not advised of his right to counsel or of his right to remain silent and there is nothing to indicate that he effectively waived either. We can make no presumption that such rights were waived (People v. Stewart, supra, p. 580 ). In these circumstances the statements of appellant made in the ambulance and certainly those in the hospital later in the day which were taken down, were illegally admitted into evidence. Such error requires reversal. (People v. Dorado, 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ]; People v. Stewart, 62 Cal.2d 571 [ 43 Cal.Rptr. 201 , 400 P.2d 97 ]; People v. Modesto, 62 Cal.2d 436, 447 [ 42 Cal.Rptr. 417 , 398 P.2d 753 ]; In re Schlette, 232 Cal.App.2d 407 [ 42 Cal.Rptr. 708 ]; People v. Ahmed, 232 Cal.App.2d 314 [ 42 Cal.Rptr. 854 ].)
I would reverse the judgment.
Appellant’s petition for a hearing by the Supreme Court was denied October 20, 1965. Peters, J., was of the opinion that the petition should be granted.