I concur in the affirmance of the judgment in all respects other than as to penalty, but I dissent from the *514reversal on the penalty phase for the reason that the record does not support an affirmative finding that in the absence of the subject errors (in the instruction given the jury as to the possibility of a gubernatorial pardon or reduction in sentence and in the argument of the prosecutor to the jury that it should consider the possibility of parole or commutation) a result more favorable to defendant would have been probable and that, therefore, there was a miscarriage of justice.
People v. Morse (1964) 60 Cal.2d 631 [36 Cal.Rptr. 201, 388 P.2d 33], relied on by the majority as defining the subject errors, also expressly recognizes the integrity of article VI, section 4%, of the California Constitution. The language of the Morse ruling is (pp. 652-653 of 60 Cal.2d) : “We have no doubt that these errors in directing the attention of the jury to the roles of Adult Authority, judge and Governor, by means of argument, evidence and instruction in the instant ease, prejudicially influenced the jury. . . . [A] fter examination of the entire cause, including the evidence, we are of the opinion that it is reasonably probable that a result more favorable to defendant as to penalty would have been reached in the absence of the error.”
The court in the case at bench has made no such finding; the record would not support it. Instead the relevant conclusional statement of the majority is: “Under People v. Hines (1964) 61 Cal.2d 164, 170 [37 Cal.Rptr. 622, 390 P.2d 398], we must reverse the judgment imposing the death penalty since ‘substantial deviation from the standards established in Morse has occurred. ’ ” It appears irrefragable that the last above quoted language does not constitute compliance with article VI, section 4%, of the California Constitution. It is fundamental that this court cannot, by its own nonconforming declaration, invest itself with jurisdiction in an area specifically denied to it by the Constitution.
Under these circumstances, this court may not set aside the judgment as to penalty. The judgment should be affirmed in all respects.
MeComb, J., and Schauer, J.,* concurred.
Petitioner’s application for a rehearing was denied March 17, 1965. Mosk, J., did not participate therein.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.