I concur in the
affirmance of the judgment (1) that defendant was guilty of murder of the first degree and (2) that he was sane at the time of the commission of the offense.
I dissent from the reversal of the judgment as to the imposition of the death penalty. I would affirm this portion of the judgment also, since I do not believe there was any prejudicial error committed by the trial court.
I do not believe it was error to admit (a) the photograph of the decedent showing a portion of her body, including her face, taken after her death, or (b) the tape recording of the decedent’s dying declaration. The picture of the decedent was relevant for the purpose of showing the enormity of the crime which defendant had committed and the suffering of his victim and to indicate the nature of the punishment which should be administered to a defendant who had so callously and unrcmorsefully inflicted such cruelties. (See People v. Friend, 47 Cal.2d 749 [306 P.2d 463].)
The tape recording of the decedent’s dying declaration was properly received to show the enormity of the crime and the circumstances of the offense. The condition of the victim, as indicated by her statement, was relevant to the jury’s consideration of the proper punishment to be imposed.
*859Penal Code section 190.1 specifically provides that upon the trial of the question of penalty evidence may be produced relating to the “circumstances surrounding the crime, of the defendant’s background and history, and of any facts in aggravation or mitigation of the penalty.” The members of the jury have an unqualified and unlimited discretion in fixing the penalty upon a conviction of first degree murder. As stated in People v. Friend, 47 Cal.2d 749, at pages 767-768 [306 P.2d 463] : “. . . the law does not itself prescribe, nor authorize the court to innovate, any rule circumscribing the exercise of their discretion, but, rather, commits the whole matter of its exercise to the judgment and the consciences of the jury; that in deciding the question whether the accused should be put to death or sentenced to imprisonment for life it is within their discretion alone to determine, each for himself, how far he will accord weight to the considerations of the several objectives of punishment, of the deterrence of crime, of the protection of society, of the desirability of stern retribution, or of sympathy or clemency, of age, sex, human passion, ignorance or weakness, or (if appropriate under the evidence, of illness or intoxication or provocation not sufficient to reduce the degree or class of the crime), of the presumptions concerning, or possible uncertainties attaching to, life imprisonment, or of the irrevoeableness of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light, or any other consideration whatever which in the light of the evidence, the duty they owe to the accused and to' the state, and the law as explained to them by the judge, appears to them to be important. ’ ’
The only valid purpose of separating the trials as to guilt and penalty would be to permit the production of evidence at the second hearing which should not be brought into the trial as to guilt. Otherwise the penalty issue might just as well be submitted on the evidence already produced. The court has held that the scope of inquiry and the factors which the jury may consider on the penalty issue are necessarily quite broad. (See People v. Friend, supra; People v. Green, 47 Cal .2d 209 [302 P.2d 307].) In People v. Jones, 52 Cal.2d 636, the court stated at page 647 [4] [343 P.2d 577] : “It would appear that the new section embodies the broad, liberal rule on admission of evidence that has always existed where a defendant has pleaded guilty and the only issues being tried relate to the degree of the crime and the penalty to be imposed. *860In such cases wide leeway in the admission of evidence is permitted. (People v. Green, 47 Cal.2d 209, 236 [302 P.2d 307] ; People v. Gilbert, 22 Cal.2d 522, 528 [140 P.2d 9] ; People v. Thomas, 37 Cal.2d 74 [230 P.2d 351].)”
If the evidence offered might in any way assist the jury to resolve the question of whether the defendant deserves or would benefit from the giving of mercy, such evidence is relevant and material.
Schauer, J., concurred.