I concur in the judgment.
I write separately to state, and to explain, my adherence to the view that we have “authority under Penal Code sections 1181, subdivision 7, and 1260,” to “reduce [a] sentence from death to life imprisonment without possibility of parole . . . .” (People v. Heishman (1988) 45 Cal.3d 147, 206 [246 Cal.Rptr. 673, 753 P.2d 629] (conc. and dis. opn. of Mosk, J.); accord, People v. Ramirez (1990) 50 Cal.3d 1158, 1202-1203 [270 Cal.Rptr. 286, 791 P.2d 965] (conc. and dis. opn. of Mosk, J.); People v. Allison (1989) 48 Cal.3d 879, 918 [258 Cal.Rptr. 208, 771 P.2d 1294] (conc. and dis. opn. of Mosk, J.); People v. Adcox (1988) 47 Cal.3d 207, 277 [253 Cal.Rptr. 55, 763 P.2d 906] (conc. and dis. opn. of Mosk, J.); People v. Coleman (1988) 46 Cal.3d 749, 789 [251 Cal.Rptr. 83, 759 P.2d 1260] (conc. and dis. opn. of Mosk, J.); People v. Lucero (1988) 44 Cal.3d 1006, 1034-1306 [245 Cal.Rptr. 185, 750 P.2d 1342] (conc. and dis. opn. of Mosk, J.); People v. Coleman (1985) 38 Cal.3d 69, 98 [211 Cal.Rptr. 102, 695 P.2d 189] (dis. opn. of Mosk, J.); People v. Holt (1984) 37 Cal.3d 436, 463-464 [208 Cal.Rptr. 547, 690 P.2d 1207] (conc. and dis. opn. of Mosk, J.); People v. Mabry (1969) 71 Cal.2d 430, 446-449 [78 Cal.Rptr. 655, 455 P.2d 759] (conc. opn. of Mosk, J.).)
Penal Code section 1181 (section 1181) deals with appellate courts, including this one, indirectly. It provides that, “[w]hen a verdict has been rendered or a finding made against the defendant, the [trial] court may, upon his application, grant a new trial in [certain] cases only . . . .” It specifies a number of circumstances. It lists one such in its subdivision 7: “When the verdict or finding is contrary to law or evidence, but in any case wherein authority is vested by statute in the trial court or jury to recommend or determine as a part of its verdict or finding the punishment to be imposed, the court may modify such verdict or finding by imposing the lesser punishment without granting or ordering a new trial, and this power shall extend to any court to which the case may be appealed . . . .” (Italics added.)
Penal Code section 1260 (section 1260) deals with appellate courts directly. It provides that the appellate court “may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or *1082attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”
It is evident that section 1181, subdivision 7, and section 1260 are complementary. Section 1260 defines what an appellate court has authority to do. Under this provision, an appellate court may, among other things, “reduce ... the punishment imposed” for an offense. For its part, section 1181, subdivision 7, defines, in part, when an appellate court has authority to do what it may. Under this provision, an appellate court may reduce the punishment imposed “[w]hen [a] verdict or finding” choosing between available statutory punishments is “contrary to law or evidence”— specifically, it may “modify such verdict or finding by imposing the lesser punishment.”
It is also evident that section 1181, subdivision 7, and section 1260 are of general applicability. Certainly, they are not limited in their operation so far as they touch the death penalty law, which appears at Penal Code section 190 et seq. (section 190 et seq.). To quote section 1181, subdivision 7, the death penalty law is paradigmatic of provisions “wherein authority is vested by statute in the trial court or jury to recommend or determine as a part of its verdict or finding the punishment to be imposed.” Moreover, the death penalty law refers to section 1181, subdivision 7, and does so expressly. In section 190.4, subdivision (e), it provides in pertinent part that, “[i]n every case in which the trier of fact has returned a verdict or finding imposing the death penalty, the defendant shall be deemed to have made an application for modification of such verdict or finding pursuant to Subdivision 7 of Section 11 [sz'c: read Section 1181]” on the ground that it is “contrary to law or the evidence presented.”
Although we do indeed have authority under section 1181, subdivision 7, and section 1260 to reduce a sentence from death to life imprisonment without possibility of parole, our power is limited. In passing on an automatic application for modification of a verdict or finding of death pursuant to section 190.4, subdivision (e), the trial judge “shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances . . . , and shall make a determination as to whether” the trier of fact’s at least implicit verdict or finding “that the aggravating circumstances outweigh the mitigating circumstances” is “contrary to law or the evidence presented.” He must first give the evidence, which he received at trial, the weight he himself believes it deserves. (E.g., People v. Marshall *1083(1990) 50 Cal.3d 907, 942 [269 Cal.Rptr. 269, 790 P.2d 676].) He must then determine whether the trier of fact’s at least implicit conclusion that aggravation outweighs mitigation is contrary to law or evidence. In considering a request to reduce a sentence of death, we, like the trial judge, must determine whether the trier of fact’s at least implicit conclusion that aggravation outweighs mitigation is contrary to law or evidence. But, unlike the trial judge, we can do so only after viewing the evidence, which comes to us on a cold record, in the light most favorable to the punishment imposed. (Cf. People v. Longwith (1981) 125 Cal.App.3d 400, 414-415 [178 Cal.Rptr. 136] [noncapital case].)
Furthermore, although we do indeed have authority under section 1181, subdivision 7, and section 1260 to reduce a sentence from death to life imprisonment without possibility of parole, our exercise of such power will likely be rare. In passing on an automatic application for modification of a verdict or finding of death pursuant to section 190.4, subdivision (e), the trial judge will presumably grant relief if indeed he should (cf. Evid. Code, § 664 [establishing a presumption that “official duty has been regularly performed”])—that is, if the trier of fact’s at least implicit conclusion that aggravation outweighs mitigation is, in fact, contrary to law or evidence. Hence, in considering a request to reduce a sentence of death, we shall have occasion to grant relief only in the assumedly uncommon situation in which the trial judge has erroneously refused to do so.
To the extent that the majority state that we do not have authority under section 1181, subdivision 7, and section 1260 to reduce a sentence from death to life imprisonment without possibility of parole “simply because we disagree with” the trier of fact’s choice (maj. opn., ante, at p. 1080), they are right. Pursuant to section 190.4, subdivision (e), we can do so only after we view the evidence in the light most favorable to the punishment imposed, and only if we then determine that the trier of fact’s at least implicit conclusion that aggravation outweighs mitigation is contrary to law or evidence.
But to the extent that the majority imply that we do not have authority under section 1181, subdivision 7, and section 1260 to reduce a sentence from death to life imprisonment without possibility of parole under any circumstances, they are wrong. In part, they argue inclusio unius est exclusio alterius: section 190.4, subdivision (e), requires the trial judge automatically to decide whether to modify a verdict or finding of death; it does not require us automatically to consider whether to reduce a sentence of death but only *1084to review the trial judge’s decision.1 Such an argument comes up short. Perhaps one can infer that only the trial judge must decide whether to modify a verdict or finding of death even in the absence of a request. But one simply cannot infer that we may only review the trial judge’s decision and may not reduce a sentence of death even in the presence of a request.2 In other part, the majority argue precedent. The decisions they cite find their source in People v. Odle (1951) 37 Cal.2d 52 [230 P.2d 345]. Odle held that we did not have authority to reduce a sentence of death. (Id. at pp. 55-59.) It may have been correct when it was decided. At that time, subdivision 7 in its present form had not yet been added to section 1181. (See Stats. 1933, ch. 520, § 1, p. 1341.) In other words, at that time, we did not yet possess the “power” to reduce the “punishment . . . imposed” for an offense “[w]hen [a] verdict or finding” choosing between available statutory punishments was “contrary to law or evidence.” Soon thereafter, however, we were given that very “power” through the addition to section 1181 of subdivision 7 in its present form. (Stats. 1951, ch. 1674, § 117, p. 3851.)
Even though we do indeed have authority under section 1181, subdivision 7, and section 1260 to reduce a sentence from death to life imprisonment without possibility of parole, I would not exercise our power in this cause. Viewing the evidence in the light most favorable to the punishment imposed, I cannot determine that the jury’s implicit conclusion that aggravation outweighs mitigation is contrary to law or evidence.
Appellant’s petition for a rehearing was denied August 20, 1997, and the opinion was modified to read as printed above.
In pertinent part, Penal Code section 190.4, subdivision (e), states: “The denial of the modification of the death penalty verdict pursuant to subdivision (7) of Section 1181 shall be reviewed on the defendant’s automatic appeal.... The granting of the application shall be reviewed on the People’s appeal. . . .”
The majority base a perfunctory argument of “acquiescence” on their argument of inclusio unius est exclusio alterius. The former falls with the latter’s failure.