I respectfully dissent. The majority invalidates a provision of the 1978 death penalty law which creates the following “special circumstance” allowing imposition of death or life imprisonment without parole: “(14) The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity, as utilized in this section, the phrase especially heinous, atrocious or cruel manifesting exceptional depravity means a conscienceless, or pitiless crime which is unnecessarily torturous to the victim.” (Pen. Code, § 190.2, subd. (a).)
*810The majority finds that the terms “heinous,” “atrocious,” “cruel” and “depravity” are unconstitutionally vague because they “address the emotions and subjective, idiosyncratic values [lacking] directive content.” (Ante, p. 802.) Moreover, the majority holds that the definitional phrase (“a conscienceless, or pitiless crime which is unnecessarily torturous to the victim”) “only add[s] to the vagueness problem.” (Ante, p. 803.)
It is significant that if an insurmountable “vagueness problem” truly exists, we are the only court to discern it. My research discloses that all other courts which have considered the issue, including the United States Supreme Court, have uniformly upheld identical or substantially identical language defining special or aggravating circumstances in state death penalty legislation as against similar vagueness attacks. These cases have sustained the following applicable language: (Proffitt v. Florida (1976) 428 U.S. 242, 255-256 [49 L.Ed.2d 913, 924-925, 96 S.Ct. 2960] [“especially heinous, atrocious or cruel”]; Spinkellink v. Wainwright (5th Cir. 1978) 578 F.2d 582, 611 [same], cert. den. (1979) 440 U.S. 976 [59 L.Ed.2d 796, 99 S.Ct. 1548]; Allen v. Superior Court (1980) 113 Cal.App.3d 42, 50-58 [169 Cal.Rptr. 608] [same]; Burrows v. State (Okla.App. 1982) 640 P.2d 533, 542 [same]; State v. Clark (La. 1980) 387 So.2d 1124, 1132, cert. den. (1981) 449 U.S. 1103 [66 L.Ed.2d 830, 101 S.Ct. 900] [“especially heinous, atrocious or cruel manner”]; Coleman v. State (Miss. 1979) 378 So.2d 640, 648 [“especially heinous, atrocious or cruel”]; State v. Dicks (Tenn. 1981) 615 S.W.2d 126, 131-132, cert. den. (1981) 454 U.S. 933 [70 L.Ed.2d 240, 102 S.Ct. 431] [“especially heinous, atrocious or cruel in that it involved torture or depravity of mind”]; State v. Dixon (Fla. 1973) 283 So.2d 1, 9, cert. den. (1974) 416 U.S. 943 [40 L.Ed.2d 295, 94 S.Ct. 1950] [“especially heinous, atrocious or cruel”]; Hopkinson v. State (Wyo. 1981) 632 P.2d 79, 153-154, cert. den. (1982) 455 U.S. 922 [71 L.Ed.2d 463, 102 S.Ct. 1280] [same]; State v. Goodman (1979) 298 N.C.1 [257 S.E.2d 569, 585] [same]; State v. Ortiz (1981) 131 Ariz. 195 [639 P.2d 1020, 1031] [“especially heinous, cruel or depraved”]; State v. Osborn (1981) 102 Idaho 405 [631 P.2d 187, 199-200] [“especially heinous, atrocious or cruel, manifesting exceptional depravity”]; State v. Simants (1977) 197 Neb. 549 [250 N.W.2d 881, 891], cert. den. (1977) 434 U.S. 878 [54 L.Ed.2d 158, 98 S.Ct. 231] [“especially heinous, atrocious or cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence”].) I have found no cases expressing a contrary view based upon the appropriate standards of vagueness, and I cannot presume that the Supreme Court (having authored them), and the highest courts of our sister states (being mandat*811ed to apply them), are uniformly insensitive to these standards, or to the semantic and legal nuances of the statutory language.
The majority attempts to distinguish the foregoing cases on the ground that they involve statutory definitions of “aggravating circumstances used for the purpose of sentencing,” rather than (as here) “special circumstances” authorizing imposition of the death penalty. (Ante, p. 806, fn. 7.) To the contrary, a careful scrutiny of these cases discloses that in many of them, the so-called “aggravating circumstances” were not mere discretionary sentencing factors but indeed were statutory prerequisites to the imposition of the death penalty, functionally equivalent to the “special circumstances” of the California statute. (See, e.g., Hopkinson, supra, 632 P.2d at p. 153; Osborn, supra, 631 P.2d at p. 199, fn. 9.)
The majority suggests that State v. Payton (La. 1978) 361 So.2d 866, supports its attempt to distinguish the cases. In fact the opposite is true. Payton held that the “heinous” standard was unduly vague for purposes of defining the substantive offense of murder, but upheld that standard for purposes of determining whether the requisite “aggravating circumstances” existed to authorize the death penalty. Though denominated “aggravating circumstances,” these statutory factors parallel the “special circumstances” of the California act, both ih form and function. (Compare the factors listed in Payton, 361 So.2d at p. 868, with those described in § 190.2 of the Cal. Pen. Cede.)
The courts in sister states have employed an analytical approach which is dramatically different from that adopted by the majority herein. Rather than seeking possible difficulties with, or anomalies in, the statutory language, every other court than ours has construed that language in such a manner as to uphold, not invalidate, the provision. Two recent cases are illustrative. Only last year the Supreme Court of Arizona in Ortiz had this to say about a statute creating an aggravating circumstance for murder which is “especially heinous, cruel, or depraved”: “We have objectively defined the relevant terms: a murder is ‘heinous’ if ‘hatefully or shockingly evil;’ ‘cruel’ if ‘disposed to inflict pain esp. in a wanton, insensate or vindictive manner: sadistic;’ and ‘depraved’ if ‘marked by debasement, corruption, perversion or deterioration.’ [Citation.] Cruelty focuses on the sensations of the victim before death, depravity focuses on the murderer’s state of mind, and heinousness focuses on society’s view of the murder as compared to other murders. To use this aggravating circumstance, the trial court must *812find that the murder is especially heinous, cruel, or depraved. [Citation.] We believe these standards satisfy Godfrey [v. Georgia (1980) 446 U.S. 420 (64 L.Ed.2d¡398, 100 S.Ct. 1759)] and that the especially cruel, heinous, and depraved aggravating circumstance has not been defined in an unconstitutionally broad and vague manner.” (639 P.2d at p. 1031, italics in original.)
In similar fashion, the Supreme Court of North Carolina in its 1979 Goodman case, analyzed substantially identical language: “While we recognize that every murder is, at least arguably, heinous, atrocious, and cruel, we do not believe that this subsection is intended to apply to every homicide. By using the word ‘especially’ the legislature indicated that there must be evidence that the brutality involved in the murder in question must exceed that normally present in any killing before the jury would be instructed upon this subsection. [Citations.]
“The Florida provision concerning this aggravating factor is identical to ours. Florida’s Supreme Court has said that this provision is directed at ‘the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” [Citations.] Nebraska has also adopted the Florida construction of this subsection. Both Florida and Nebraska have limited the application of this subsection to acts done to the victim during the commission of the capital felony itself. [Citations.] We too believe that this is an appropriate construction of the language of this provision.” (257 S.E.2d at p. 585.)
Unlike the majority in the present case, the foregoing courts have uniformly attempted, with apparent success, to construe the language at issue in a reasonably specific manner to avoid constitutional objections. Surely we have the same obligation. We have long held that legislative enactments such as Penal Code section 190.2, subdivision (a), “come before us clothed with a presumption of constitutionality. ‘All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears (In re Dennis M. (1969) 70 Cal.2d 444, 453 [75 Cal.Rptr. 1, 450 P.2d 296], italics added; see Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484 [171 P.2d 21, 166 A.L.R. 701].)
We recently sounded the appropriate interpretive note: “The judiciary bears an obligation to ‘construe enactments to give specific content to *813terms that might otherwise be unconstitutionally vague.’ [Citation.] Thus we have declared that ‘A statute will not be held void for uncertainty if any reasonable and practical construction can be given its language.’ [Citation.] If by fair and reasonable interpretation we can construe section 647, subdivision (a), to sustain its validity, we must adopt such interpretation [citations] .. . .” (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 253 [158 Cal.Rptr. 330, 599 P.2d 636].)
In my view, the dissenting opinion of Justice Poché of the Court of Appeal in this case correctly analyzed the issue before us, and I fully support his reasoning: “I am not convinced that subsection 14 of Penal Code section 190.2, subdivision (a) is vague, much less that it is unconstitutionally vague. That provision, which is part of an initiative measure approved by the voters in 1978, carries a strong presumption of constitutionality. It must be upheld unless its unconstitutionality ‘clearly, positively and unmistakably appears.’ (In re Dennis M. (1969) 70 Cal.2d 444, 453 [75 Cal.Rptr. 1, 450 P.2d 296].)
“Due process commands that a penal statute must be definite enough to provide both a standard of conduct for those whose activities are proscribed and for the ascertainment of guilt. The statute involved here meets that standard. The notice given by the Penal Code is abundantly clear: do not commit murder in the first degree because if you do you may find yourself subject to death or lifetime behind bars if the killing is accompanied by one or more of the special circumstances set forth in Penal Code section 190.2. What is being forbidden is murdér. Once a person decided to engage in that clearly defined activity it is difficult to believe that he or she has any real need, much less constitutional right, to the same sort of precision with respect to the nature of the ‘special circumstances’ that will elevate that murder to one that can be so punished. Once a person decides to murder another his choice of methods is not within the ambit of protected activity. If the statutory description of the special circumstance is less than photo precise, it does not chill that murderer in the exercise of his First Amendment rights. Quite to the contrary, that alleged lack of specificity may serve a very real social good in helping to dissuade the potential killer from either committing the crime or committing it in a way that could be characterized as heinous, atrocious or cruel, manifesting exceptional depravity.
“But even if the due process clause requires the same specificity in defining special circumstances as it requires in the definition of the *814crime itself, that demand has been met. Is there any doubt that a juror or a potential murderer cán determine what is meant by ‘a conscienceless or pitiless crime which is unnecessarily torturous to the victim’? These terms define themselves. They have no different meaning in law than they have when usedi in ordinary conversation. The idea intended to be expressed by these words cannot be made more clear by any other judge-blessed words in the English language, except by an all inclusive listing of specific examples.”
In Proffitt v. Florida, supra, 428 U.S. 242, the United States Supreme Court upheld substantially identical language in the Florida death penalty law, rejecting a vagueness contention similar to that which is adopted by today’s majority. The majority attempts to distinguish Proffitt because (1) the Florida statute is procedurally different from the California act, and (2) the high court “left open” the vagueness issue as it relates to the specificity needed to define an offense or special circumstance. (Ante, p. 804.) To the contrary, I find no significant differences between the two state laws (see People v. Frierson (1979) 25 Cal.3d 142, 177-180 [158 Cal.Rptr. 281, 599 P.2d 587]) and nothing in Proffitt purports to leave unreached any issues of this kind.
In any event, the majority, in familiar fashion, has precluded any high court review of the vagueness question as applied to section 190.2, subdivision (a), by its reliance upon both federal and state constitutional provisions to justify its holding. In my view, the majority’s reliance upon the state Constitution, thereby shutting the door to the People who might otherwise have sought further review, frustrates the spirit, if not the letter, of article I, section 27 of the California Constitution, which validated the death penalty laws in this state. As we carefully observed in Frierson, the people adopted that constitutional provision in November 1972 for the purpose of “reinstating the death penalty to the extent permitted by federal constitutional law.” (P. 186, italics added.) I have no reasonable doubt that the statutory provision at issue here is constitutional under federal law. (Proffitt v. Florida, supra, 428 U.S. at pp. 255-256 [49 L.Ed.2d at pp. 924-925].)
I would issue the peremptory writs.
Petitioner’s application for a rehearing was denied July 28, 1982. Richardson, J., was of the opinion that the application should be granted.