I fully concur in that portion of the majority opinion (part I) which upholds defendant’s conviction of first degree murder. I further concur in the majority’s extended discussion and determination (parts II B and C) that although defendant was properly convicted of robbery, the evidence was probably insufficient to demonstrate that the murder occurred during the commission of a robbery. Accordingly, there was no special circumstance *75permitting the imposition of the death penalty (see former Pen. Code, § 190.2, subd. (c)(3)(i)) on that ground.
I respectfully dissent, however, from the entirety of that portion of the majority’s opinion (parts II D, E, and F) which reverses defendant’s conviction for kidnaping and which further vacates the jury’s finding of special circumstances based upon the commission of a murder during a kidnaping. In my view, the jury had before it overwhelming evidence establishing that the defendant killed his victim while he was kidnaping her. I am further convinced that even had the asserted instructional errors not occurred the jury undoubtedly would have returned a similar conviction of murder during a kidnaping.
Focusing entirely on some statements by the prosecutor during his lengthy closing argument, and on one isolated phrase in a kidnaping instruction, the majority holds that the findings of special circumstances must be reversed because the jury might have based its verdict on an erroneous application of kidnaping principles. From a reading of the trial record, I am convinced that it is not reasonably probable that a verdict more favorable to defendant would have resulted if the claimed errors had not occurred. What were these claimed errors?
During the closing arguments, the prosecutor observed that kidnaping required a nonconsensual movement of the victim, and he argued that as Karen’s agreement to enter the car was induced by fraud, it was thereby nonconsensual in nature. The trial court so instructed the jury, and this was improper according to the majority. Assuming that error was thereby committed, however, these brief references to kidnaping by fraud could not possibly have misled the jury, for as I explain below, the evidence was overwhelming that, during the critical portion of the asportation of Karen, defendant kidnaped his victim through force or the threat of force, not through fraud.
Next, during his closing argument as to the kidnaping count, the district attorney asserted as follows: “Now, what about the movement of the Defendant—of the victim, excuse me, by the Defendant from the vehicle, even down to where the body was found, where the killing had actually taken place. Now, that distance, 90 feet, I believe the testimony was, approximately, seems rather insignificant in relation to 5 miles and 20 miles, but in other words, it’s a movement of substantial distance in that it took the victim away from the immediate side of David Khan to the place where she was actually murdered.”
*76Shortly thereafter the prosecutor added: “Distance, I’ve already made reference to, must be more than slight or trivial. We have three distances involved. Any one of the three is sufficient for a kidnap. The 20 miles, of course, absolutely no question. Five miles also. 90 feet, you have to conclude that was a substantial distance if for some reason you conclude the 20 and 5 [miles] were not or the other elements were not present during the portion of the move.”
Extracting from the lengthy argument these isolated references, the majority concludes that the People irrevocably rejected any contention that the case was one of a “continuous kidnapping,” and that it was “not the theory on which the case was tried.” {Ante, p. 67.) The majority errs.
Initially, it should be noted that the jury, of course, could totally disregard all the arguments of counsel. The prosecutor told the jury early and often that the arguments were not evidence, and that the jury was free to disregard them. “The comments made by myself and Mr. Weiner are not evidence. . . . What we say is not evidence, merely a presentation of our opinion of evidence as we see it. It’s important that you bear in mind throughout your deliberations.” He also informed the jurors that they were the exclusive judges of the facts and were to be guided by the court’s instructions. Similarly, the court so instructed the jury.
Moreover, the majority misreads the record in insisting that the reality of a continuing kidnap was “not the theory on which the case was tried.” To the contrary, it was the central theme of the prosecution argument, and was urged repeatedly throughout its closing presentation. I cite a few examples. Early in his argument the prosecutor urged that defendant’s conduct demonstrated “a continuing deliberate intent to accomplish specific acts.” Further, he argued that “All the circumstances, the acquisition of that victim, the transportation of that victim, the events that occurred at the scene, the slap, the order to take off the clothes, the fire of shotgun all indicate a movement by force or fear in that she reasonably had apprehension that she would face harm.” Again, the prosecutor contended: “All the factors which I have been discussing would indicate threats, duress, if you will, throughout the entire transportation of that victim up to the point she was killed.” (Italics added.) Later, the prosecutor said “The movement to the location up in Nicholas was not merely incidental to the robbery in that the defendant wanted to move a victim where he could more easily rob her, *77but he was moving a defendant or—the victim to a spot he could actually accomplish not only the removal of identifying property, thereby robbery, he could murder her free of any detection or other witnesses and perhaps even murder of Daniel Khan if he deemed it necessary.” (Italics added.) And again, “had the Defendant been stopped short of his final destination, then the killing hopefully would not have occurred. But the further they got away from where they were at, the Reeves residence, the greater likelihood was that the victim was going to meet the fate she did in fact meet. When they got to a safe location, safe in the mind of the Defendant where no one was really around except David Khan, then the full force of the harm was then put onto the victim.” (Italics added.) Again, the district attorney urged, “After the defendant acquired the shotgun, the shells, and possession of the victim, he then had her driven to a secluded spot, none of this indicates just a rash impulse or reaction to a situation, but a planned, deliberate sequence of events to get the victim in a location where he could accomplish the acts he had in mind.” (Italics added.)
From the beginning to end the prosecutor urged upon the jury that defendant engaged in a prearranged plan to obtain physical possession of his wife, initially by trick, then subsequently to detain her through fear of force, and to carry her, continuously arid without interruption, “to a secluded spot” (defendant’s words) where he could first satisfy himself sexually and then execute her, finally attempting to destroy any evidence of her identity and of his own connection with the crimes.
Despite brief references in the argument by the prosecutor to the sufficiency of the first or last “segments” of the asportation, the unalterable fact is that the overwhelming weight of uncontradicted evidence established a continuous kidnaping beginning when defendant entered the car and ending when defendant murdered his wife. As previously noted, a fair reading of the entire record establishes beyond reasonable doubt that the jury would have so found, as in fact it did find, even had the asserted instructional errors not occurred. It follows, under very well established and constitutionally ordained rules for determining prejudicial error, that we should affirm defendant’s kidnaping conviction, as well as the special circumstances finding based upon a murder committed during the course of a kidnaping.
I begin by emphasizing that the sovereign people of this state in their California Constitution have mandated the following important, but perhaps frequently ignored, standard governing our appellate review: *78“No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Art. VI, § 13, italics added.) Interpreting this vital command of the people we have consistently held that if a claimed instructional error has occurred, such as the failure of a trial court to instruct sua sponte regarding the legal issues, the judgment nevertheless must be affirmed if “it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. . . . ” (People v. Bradford (1976) 17 Cal.3d 8, 18 [130 Cal.Rptr. 129, 549 P.2d 1225]; accord People v. Williams (1975) 13 Cal.3d 559, 563-564 [119 Cal.Rptr. 210, 531 P.2d 778]; People v. Gordon (1973) 10 Cal.3d 460, 470 [110 Cal.Rptr. 906, 516 P.2d 298]; People v. Welch (1972) 8 Cal.3d 106, 119 [104 Cal.Rptr. 217, 501 P.2d 225]; see also People v. Wheeler (1977) 71 Cal.App.3d 902, 907 [139 Cal.Rptr. 737].) Significantly, most of these cases (Bradford, Williams, Welch, and Wheeler) involved a failure by a trial court to define the legal terms referred to in other instructions, an omission very comparable to the trial court’s supposed failure herein to define further or clarify what constitutes a “substantial” distance for purposes of measuring the sufficiency of the last asportation of the victim, Karen.
The following factual circumstances described in the trial record, many of them recited in the majority opinion, and largely unchallenged, persuade me that no “miscarriage of justice” has occurred in this case. The marriage of defendant/ and his wife Karen was very short and stormy. At the time of her death, she was only 16 years of age, and defendant had physically beaten her several times. Explaining that she was leaving defendant and intended to seek an annulment of her marriage, Karen asked her friend Pamela Robison if she could move in with her. When informed of Karen’s decision to leave him, defendant threatened to kill her if she left, and Karen expressed fear for her safety.
Unable to locate Karen himself, and because “she ripped off $800 and was fooling around,” defendant offered his friend David Khan $50 and $5 “for gas” if David would find and bring Karen to the Scott-Reeves house where defendant would be waiting, but to “keep on going” if he observed any police in the vicinity. Defendant further directed David to tell Karen that defendant was “in trouble” and needed to pick up *79some things. In the interim, defendant obtained, and wrapped in a white cloth covering, a shotgun and some shells. Accompanied by his brother Donnie, David then found Karen at Pam’s home and, as ordered by defendant, explained that defendant was “in trouble” and needed some things. At David’s request, Karen then accompanied him and Donnie to the Scott-Reeves residence where defendant awaited her. Upon observing defendant, Karen became excited, sat up in the car, and inquired of David “What’s he doing here?” She also asked David if he had known defendant was to be there, but David denied any such knowledge.
Karen was thereby delivered into the hands of the defendant. The $50 was earned. The ruse was successful. The trap was sprung. After a few moments, Donnie left the car and defendant, carrying his carefully wrapped shotgun and shells, took his place in the front seat of the vehicle next to his wife, and slid the weapon under the front seat. The record is crystal-clear as previously noted that from that moment on she was under defendant’s complete dominion and control. Defendant’s kidnap of Karen began, and during that kidnap he murdered her. With his friend David at the wheel defendant directed him to proceed to “a secluded area.” Karen sat in the front seat. On her left was her husband’s accomplice, who had brought her by a trick to this meeting with her husband. On her right was her husband, who had threatened her life, who had physically beaten her several times during their short marriage, and who brought with him the deadly weapon recently obtained and loaded by him. Thereafter, part of her confinement was on wheels. Part of it was on foot. But from the moment defendant entered the car until the moment of her death 25 miles away, whether in the front seat of the moving vehicle or at the site of her death, her actions, and the course and direction of her movement, were wholly subject to his will.
The record further amply demonstrates that defendant’s complete domination of Karen was instilled through force, threat of force, and fear for her physical safety. During the 25-mile automobile ride, Karen told defendant she had a derringer. He responded that he had a “toy” of his own. This discussion of weapons sets the tone and atmosphere of violence and threat that characterizes the car ride. Apparently fearing a repetition of earlier acts of violence, at one point Karen told her husband “If you’re going to beat me, you better make it good, because it’s going to be the last time.” At a point approximately five miles from their ultimate destination, and apparently with a growing sense of the deadly peril that was rapidly enveloping her, she attempted to climb *80into the back seat perhaps as a preliminary to an escape attempt. Defendant forcibly restrained her in the front seat by violently jerking on her hair, causing her to moan either in pain or fear.
Upon arrival at their destination in a secluded area, defendant ordered Karen from the car, escorted her to the back of the vehicle and asked her “What the [expletive] was about the annulment?” Karen’s reply, in apparent desperation, was that “it wasn’t true, that she just wanted him to come back.” Defendant then told Karen that he was going to kill her, and ordered her to remove her clothing. Defendant went to the car at which time Karen approached David in a frantic but futile effort to save herself, kicked toward David’s leg to attract his attention, and extended her hands in a further appeal for David’s assistance. Having previously betrayed her and apparently feeling that he was in no position to help her, David ignored the overtures and declined to intervene.
Thereafter, defendant instructed her again in a “commanding voice” to remove her clothes. She did so and David then heard defendant slap Karen a few times. Defendant thereupon fired his shotgun, presumably thereby dramatically emphasizing both his intent and his authority. He then ordered her on foot to her place of execution approximately 90 feet away from both the car and from David’s presence. Apparently, defendant had one other matter on his mind besides killing Karen, because at some point en route he satisfied himself sexually with her one last time, in his words, “both front and back.” Having done so, he thereupon dispatched her with a single charge of his .12 gauge sawed-off shotgun aimed at close range and directly at her face.
From the foregoing record it appears to me inescapable that Karen was confined not by fraud but by force and the threat of force from the time defendant entered the car through the last few moments of her life and culminating in her death. If anything, her fear was intensified after the trio arrived at its destination. In referring to the very last portion of Karen’s journey the majority concedes as much, acknowledging “No claim is made that such movement was anything other than involuntary, compelled by both force and fear.” (Ante, p. 65.) Most assuredly she was not free to leave. This is amply evidenced by defendant’s language, his statement to her of his intent to kill her, the slaps which he administered, the discharge of the shotgun, and Karen’s desperate but rejected appeal for David’s help. Her confinement by the overpowering, threatening, deadly force both possessed and speedily used by the defen*81dant was uninterrupted and unquestionably it was substantial. (People v. Camden (1976) 16 Cal.3d 808, 814 [129 Cal.Rptr. 438, 548 P.2d 1110].)
In People v. Stanworth (1974) 11 Cal.3d 588, 601 [114 Cal.Rptr. 250, 522 P.2d 1058], referring to section 207, we stressed that “The statute is to be given effect in its commonsense meaning.’” So interpreting this section in the light of the foregoing record, I am convinced beyond any doubt that defendant kidnaped Karen and killed her during the kidnaping.
The majority asserts, in justification of its reversal of the kidnaping conviction, that “We simply cannot tell from this record which theory [of kidnaping] the jury in fact adopted. Indeed, we cannot even be sure that all the jurors agreed on the same theory. ...” {Ante, p. 71.) But, in measuring a record for prejudicial error we need not demand such unachievable certainty. Under the above cited authorities, so long as no miscarriage of justice has occurred, and it is not reasonably probable that the jury would have reached a more favorable verdict, then we must affirm the conviction under the constitutional mandate to us which the people have imbedded in article VI, section 13. Furthermore, the record discloses no confusion whatever in the minds of the jurors in the matter of the kidnaping, as to the charges, evidence, arguments, instructions or conviction. While, as noted by the majority, they were troubled by the robbery aspects of the crimes, they made no inquiry nor did they voice any uncertainties or doubts as to the kidnaping. With due deference, from the uncontradicted facts in the record before us, it is hardly conceivable that the jury, having convicted defendant of murdering Karen, nevertheless would have acquitted him of kidnaping her.
The majority suggests that had the jury been properly instructed regarding the law of kidnaping, and particularly had it been told that neither a fraudulent asportation nor a 90-foot movement would constitute kidnaping, it might have acquitted defendant of that offense. The majority asserts that the jury might have rejected David Khan’s testimony regarding the events which occurred during the transit from the Scott-Reeves home to the death scene. (In passing, it should be observed that even though Karen’s original entry into the vehicle at Pam’s residence was voluntary, being induced by the fraud of defendant and David in concert, this would not dilute the criminal nature of her subsequent ride after leaving the Scott-Reeves residence. As we carefully explained in Camden, “... it would be unreasonable to conclude that *82the Legislature intended to exclude from the scope of section 207 those asportations which although voluntarily initiated are continued by means of threat or force.” (16 Cal.3d at p. 814.)) Moreover, David’s description of events was uncontradicted and not inherently unbelievable. Is it reasonably probable that the jury would have disbelieved his testimony in which, in essence, he admitted his own complicity in a kidnaping? Moreover, by its verdict which convicted defendant of Karen’s murder, the jury necessarily accepted David’s testimony of the circumstances of Karen’s death and rejected defendant’s own defense theory that it was David rather than defendant who murdered Karen. At the same time it also rejected the alibi contention partially advanced by defense counsel and also brushed aside the defense suggestion advanced in closing argument, referring to those who discovered Karen’s body, “. . . when you are in that room deliberating remember the fishermen.” The jury discarded all of these defenses and convicted defendant of the murder.
Furthermore, and I believe this is very significant, the majority itself affirms defendant’s murder conviction. It follows, accordingly, that the majority accepts the record as containing substantial evidence establishing defendant as the killer. It is self-evident that defendant not having taken the stand, all of the circumstances of that murder, other than the acquisition of the weapon, came entirely from the mouth of David. Is it “reasonably probable” that the jury which accepted David’s murder testimony would have rejected his kidnaping testimony if it had been instructed, sua sponte, that, standing alone, neither the victim’s asportation to the Scott-Reeves residence nor the “last 90 feet,” constituted a kidnap? Emphatically, no.
It stultifies the record of this three-week jury trial to speculate that the jury may have been misled by not having been told that the trip to the Scott-Reeves home was not a kidnap, or that, alternatively, the 90-foot movement on foot from the car to the death scene was not a kidnap. The jury was entitled under the applicable law and under the court’s instructions to take into consideration the entirety of defendant’s continued confinement of Karen by threat or force. The kidnaping began during the car ride with defendant and continued through the period after she arrived in the car, exited the car, conversed with defendant at the rear of the car and disrobed, and took her last walk, the “90 feet.” If instead of walking on foot to her death she had ridden on horseback with defendant, she would have been kidnaped during that portion of her journey. The mode of transportation was immaterial. *83There was an uninterrupted continuum of conduct and of movement, commencing with her departure in the car from the Scott-Reeves residence up to the moment of death. The kidnap was continuous in intent, purpose, design and act.
The jury heard all of this evidence and deliberated under careful instructions from the trial court. The record demonstrates overwhelmingly a vicious, carefully premeditated murder by defendant of his wife under circumstances of almost unbelievable brutality, committed during the course of his kidnap of the victim. His movements of Karen were substantial and not trivial and they were carefully planned and executed to accomplish his purpose and to conceal his connection with both his victim and his crimes.
In my view, there unquestionably was no “miscarriage of justice” in this case. Accordingly, with the majority I would affirm defendant’s conviction of first degree murder (count I) and of robbery (count II), and I would also strike the findings of special circumstances charged in count I; i.e., that the murder was wilful, deliberate, and premeditated and was personally committed in the course of a robbery. However, unlike the majority, I would affirm the judgment of conviction of kidnaping, and also that portion of the judgment which finds the “special circumstances,” namely, that the murder was wilful, deliberate and premeditated and was personally committed by defendant during the commission of a kidnaping in violation of section 207 of the Penal Code (§ 190.2, subd. (c)(3)(ii)).
Clark, J., and Manuel, J., concurred.
Appellant’s petition for a rehearing was denied May 28, 1980.