I dissent from the reversal of the judgment with respect to penalty and concur in the affirmance of the judgment in all other respects.
The majority hold that a new penalty trial is required pursuant to the mandate of Witherspoon v. Illinois, 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], on the ground that the “proper case” questions to the prospective jurors “were neither (1) preceded by an explanation that the issue was to be determined by the subjective judgment of each individual *494juror, nor (2) qualified by such language as ‘under no circumstances’ or ‘in no event,’ etc.” (Ante, p. 493.)
I cannot agree with the foregoing conclusion, tor on reviewing the jurors’ responses in the context of the entire voir dire (People v. Varnum, 70 Cal.2d 480, 492-493 [75 Cal.Rptr. 161, 450 P.2d 553]), it is apparent to me that the jurors were adequately instructed regarding the extent of their discretion to impose death or life imprisonment, and that each juror made it unmistakably clear that he or she would, under no circumstances, impose the death penalty.
Shortly before the prosecution commenced its voir dire examination, the court instructed the first panel of jurors (which included jurors Remy, Shirley M. Brown, Cruz, Burgess, Majors and Maxwell) that the matter of penalty is solely within the discretion of the jury; that the law does not require the jury to find one way or another; and that no instructions would be given the jury requiring them to impose the death penalty, or life imprisonment, if certain facts are found to be true.
Thereafter, the prosecutor preceded his questioning of individual jurors by explaining that the state was seeking the death penalty; that the matter of punishment is left in the “unfettered discretion” of the jury; that no law governs that discretion; and that “It is your own personal feeling as to what should be done.” (Italics added.)
Thereupon, the prosecutor commenced to ask various members of the jury if, having “unfettered discretion,” he or she could impose the death penalty “in a proper case” or “where the facts justify it.” Mrs. Remy answered that she believed she could not impose death in a proper case. Mrs. Shirley M. Brown replied, “I could not. . . . Not for. the death penalty, if that was it.” Mrs. Cruz responded, “After the Judge explained it., I would not be able to turn in the death penalty.” Mrs. Burgess stated, ‘The same answer [as juror Cruz], . . . No, I could not.” Mrs. Majors replied, “I could life imprisonment, but never take his Ufe.” Mr. Maxwell stated, “That is correct,” when asked if he could not impose death in a proper case. Mrs. Morrison, from a second panel of jurors, after being told that the choice of penalty was left to her own “personal discretion” stated that she could not impose death.
All of the foregoing responses were made immediately following the court’s instructions and the prosecutor’s statements to the effect that the jurors had sole and .unfettered discretion whether to impose death, and that their own personal feelings, and not the law, must govern their decision. *495Consequently, I fail to see how these jurors could possibly have been misled by the “proper case” terminology used on voir dire. By affirming that they would be unable to impose the death penalty even if they felt, in their sole, unfettered and personal discretion,1 that a proper case for death was presented, these jurors made it unmistakably clear that under no circumstances would they vote for death. That being so, their responses clearly satisfied the Witherspoon test.
McComb, J., concurred.
In Williams, Ketchel and Hillary, relied'upon by the majority, the excluded jurors were never informed that the choice of penalty was left to their own unfettered and personal discretion.