There is less reason to apply the cautionary rule to this collateral feature. ( People v. Soto, 232 Cal.App.2d 437, 444 [ 42 Cal.Rptr. 799].) Although section 2061, subdivision 4, Code of Civil Procedure (specifically setting out the rule) was repealed with the advent of the Evidence Code, and no similar provision was included in that code, the strong decisional law is still effective.
However, the good faith of the prosecuting officer is assured. (See People v. Soto, 232 Cal.App.2d 437 [ 42 Cal.Rptr. 799].) In any event, it seems clear to us that the instruction given by the court to the jury was more than fair to the defendant, and that as the jury is presumed to have followed the instruction and eliminated any thought of a prior felony conviction, there is nothing about the incident that would justify a reversal of Jackson's conviction.
[8] In any event, the statements were not incriminating, but were exculpatory, and for this reason are not within the Dorado rule. ( People v. Soto, 232 Cal.App.2d 437, 444 [ 42 Cal.Rptr. 799]; People v. Ulibarri, 232 Cal.App.2d 51, 55 [ 42 Cal.Rptr. 409].) Reliance also is placed upon the decision in Griffin v. California, 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106], as ground for reversal.
In the absence of any prejudice defendant cannot predicate error on their admission. (See People v. Dorado, supra, 62 Cal.2d 338, 356; and see People v. Campbell (1965) 233 Cal.App.2d 38, 48-49 [ 43 Cal.Rptr. 237]; People v. Campbell, supra, 232 Cal.App.2d 712, 715; People v. Herrera (1965) 232 Cal.App.2d 561, 563 [ 43 Cal.Rptr. 14]; People v. Soto (1965) 232 Cal.App.2d 437, 444 [ 42 Cal.Rptr. 799]; People v. Finn (1965) 232 Cal.App.2d 422, 426-429 [ 42 Cal.Rptr. 704]; People v. Jones (1965) 232 Cal.App.2d 379, 391-392 [ 42 Cal.Rptr. 714] ; People v. Ghimenti (1965) 232 Cal.App.2d 76, 82-84 [ 42 Cal.Rptr. 504]; People v. Ulibarri (1965) 232 Cal.App.2d 51, 55-56 [ 42 Cal.Rptr. 409]; but compare People v. Burns (1965) 232 Cal.App.2d 587, 589 [ 43 Cal.Rptr. 84].) That evening the defendant's sister-in-law's husband notified the Walnut Creek police of the presence of the boxes on his premises at San Leandro, and they were picked up by the police the next morning.
Several recent decisions hold that statements exculpatory on their face are outside the ambit of the Escobedo-Dorado doctrine. ( People v. Erb(Cal. App.) [43 Cal.Rptr. 111]; People v. Soto, 232 Cal.App.2d 437, 445 [ 42 Cal.Rptr. 799]; People v. Ulibarri, 232 Cal.App.2d 51, 55-56 [ 42 Cal.Rptr. 409].) Other decisions involving the Escobedo-Dorado rule adopt the assumption that use of such a statement for incriminatory purposes at the trial may be error, yet, since it is a "lesser statement" not amounting to a confession or admission, its evidentiary use will result in reversal only if the error is prejudicial.
[8] The test of harmless error has been defined, in elaboration of the provisions of article VI, section 4 1/2 of the California Constitution, as follows: "That a `miscarriage of justice' should be declared only when the court, `after an examination of the entire cause, including the evidence,' is of the `opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." ( People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243]; and see People v. McLaine, supra, 204 Cal.App.2d 96, 102; People v. Jones (1965) 232 Cal.App.2d 379, 392 [ 42 Cal.Rptr. 714]; People v. Finn (1965) 232 Cal.App.2d 422, 428-429 [ 42 Cal.Rptr. 704]; People v. Soto (1965) 232 Cal.App.2d 437, 445 [ 42 Cal.Rptr. 799]; People v. Herrera (1965) 232 Cal.App.2d 561, 563 [ 43 Cal.Rptr. 14]; People v. Saldana (1965) 233 Cal.App.2d 24, 32-33 [ 43 Cal.Rptr. 312]; People v. Campbell (1965) 233 Cal.App.2d 38, 45-46 [ 43 Cal.Rptr. 237]; People v. Cockrell(1965 Cal.App.) 43 Cal.Rptr. 510.) A hearing was granted by the Supreme Court on May 26, 1965.