I dissent from reversal of the penalty. The majority apply unpractically rigid evidentiary standards to a proceeding designed not to ascertain guilt, but to assess penalty. In so doing, they overlook the basic purpose of the penalty proceeding, which is to receive evidence “of the circumstances surrounding the crime, of the defendant’s background and history, and of any facts in aggravation or mitigation of the penalty.” (Pen. Code, § 190.1.)
I am well aware of the rule that “any substantial error occurring during the penalty phase of the trial, that results in the death penalty, since it reasonably may have swayed a juror, must be deemed to have been prejudicial.” (Italics added.) (People v. Hamilton (1963) 60 Cal.2d 105, 137 [32 Cal.Rptr. 4, 383 P.2d 412].)
In the context in which defendant’s statement was used, there is certainly no substantial error, and I doubt that there is any error whatever. When defendant was asked to try on a coat—a procedure the majority finds unobjectionable—he admitted the garment was his, and then without further *764interrogation voluntarily added, “I know I’m in trouble. I killed that broad.” Sergeant Nichols immediately cautioned defendant in a manner the majority finds satisfied the requirements of People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361],
The unsolicited statement of defendant was clearly admissible. As this court said, unanimously, in People v. Cotter (1965) 63 Cal.2d 386, 396 [46 Cal.Rptr. 622, 405 P.2d 862] : “Neither this court, nor the United States Supreme Court, has ever taken the position that the desire of a guilty man to confess Ms crime should be stifled, impeded, discouraged, or hindered in any way. ’ ’
Assuming arguendo that the statement was inadmissible, it strains credulity to find prejudicial error in its use in the penalty phase of the trial. Defendant said “I’m in trouble.” This conceded nothing not then evident. “I killed that broad.” This was introduced after the jury had already found he had in fact killed the waitress. It added no new element. Only applying the term “broad” to the victim might be deemed questionable. Yet that expression is not considered to be criminal argot; it is common language of the street, not pejorative but merely inoffensive slang, (gee H. L. Mencken, The American Language, 4th ed. (1938) p. 577.1) If that is the manner in which defendant spoke, or regularly speaks, then that is the way in which the jury must accept him and his utterances in weighing “aggravation or mitigation” of the totality of circumstances. In the truth-seeking process there is no justification to conceal that knowledge, whether significant or trivial, from the jury.
Whether the statement in question reflects callousness or lack of remorse is subject to interpretation. But it is not inadmissible, for the jury is entitled to consider defendant’s subjective response to the brutal act he committed. Toward that end, the defense produced a witness whom defendant told “he was sorry he did it.” The jurors who have the grave responsibility of assessing penalty may weigh all of the defendant’s virtues and vices. Remorse, being the echo of a lost virtue, is one of the elements properly considered.
I find no reversible error in the prosecuting attorney’s argument to the jury. Defendant’s attempt to escape from the *765county jail was his voluntary act. Prom that established circumstance flows a perfectly rational deduction that defendant was, and in the future might be, a difficult rather than contrite prisoner.
The prosecutor’s discussion regarding individual responsibility of the jurors may have been “inconsistent” as the majority’s footnote 5 suggests. There is a giant step between inconsistency—which ordinarily redounds to the advantage of the defense—and prejudicial error. Any confusion regarding the function of the jurors, individually and collectively, was adequately dissolved by the court in its instructions. It is evident that the jurors were not confused and that they followed the court’s instructions, for after returning their verdict they were polled and each juror responded individually that the verdict was his.
I would affirm the judgment in its entirety.
MeComb, J., and Burke, J., concurred.
Mencken places broad for woman in the same category as law for policeman, big-house for prison, eroalcer for doctor, bone-orchard for cemetery, eye for detective, hard-stuff for metal money, paper-hamger for forger.