I concur in the affirmance of defendant’s guilt, but dissent to the reversal of penalty.
As will be seen, there are essentially two thrusts to my dissent. First, I take issue with reliance on what may be labeled the Polk-Varnum, rule and, second, I am apprehensive about the pragmatic result of that rule-:
The. Polk-Varnum requirement that at the penalty phase of a bifurcated trial prior crimes must be proved beyond a reasonable doubt finds little support in law or reason, and can be rationalized only by an abbreviated reverence for stare decisis. The rule was devised in the fertile tradition of judicial creativity and in total disregard of a long line of prior cases to the contrary. I proceed, then, to chronicle the relatively brief but checkered history of Polk-Varnum.
Penal Code section 190.1, providing for admission at the penalty trial of ‘ ‘ any facts in aggravation or mitigation of the penalty,” was adopted in 1957. At the first opportunity thereafter, in 1959, this court, speaking unanimously through Justice Peters, used the following oft-cited language to enunciate the proper interpretation of that section: “ It would appear that the new sectioii 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. In such cases wide leeway in the admission of evidence is permitted. [Citations.] If there are any limitations on the admission of such evidence, it is certainly the rule that if the evidence would have been admissible on the trial of the guilt issue, it is admissible on the trial aimed at fixing the penalty.” (People v. Jones (1959) 52 Cal.2d 636, 647 [343 P.2d 577].1
*813Subsequent to Jones, provisions regarding evidence of prior crimes at the penalty phase of a bifurcated trial became firmly established and were consistently reaffirmed in numerous decisions of this court. Those rules, unmistakably evident to prosecutors, defense counsel and trial judges, consisted of two major propositions: (1) any evidence admissible at the guilt phase of the trial was admissible at the penalty phase, and (2) prior acts and other aggravating or mitigating circumstances need not be proved beyond a reasonable doubt — or even by a preponderance of the evidence — at the penalty phase. (People v. Jones (1959) supra, 52 Cal.2d 636; People v. Purvis (1961) 56 Cal.2d 93 [13 Cal.Rptr. 801, 362 P.2d 713]; People v. Howk (1961) 56 Cal.2d 687 [16 Cal.Rptr. 370, 365 P.2d 426]; People v. Hamilton (1963) 60 Cal.2d 105 [32 Cal.Rptr. 4, 383 P.2d 412]; People v. Griffin (1963) 60 Cal.2d 182 [32 Cal.Rptr. 24, 383 P.2d 432]; People v. Hines (1964) 61 Cal.2d 164 [37 Cal.Rptr. 622, 390 P.2d 398].)
Thus in People v. Purvis, supra, at pages 95-96, this court, speaking through Justice Traynor, held it would be error to instruct that facts at the penalty trial must be proved either beyond a reasonable doubt or by a preponderance of the evidence, as the jury “has absolute discretion” in its weighing and application of the evidence. (See People v. Howk, supra; People v. Hines, supra; cf. In re Anderson (1968) 69 Cal.2d 613, 621-625 [73 Cal.Rptr. 21, 447 P.2d 117].) A year later it was held in People v. Bentley (1962) 58 Cal.2d 458, 460-461 [24 Cal.Rptr. 685, 374 P.2d 645], that evidence of other crimes, as long as they were not established by inadmissible hearsay, could be received even though relating to escapades for which no conviction had been obtained. (See also People v. Mitchell (1966) 63 Cal.2d 805, 815 [48 Cal.Rptr. 371, 409 P.2d 211].)
Perhaps the ultimate holding, however, was that in People v. Griffin (1963) supra, 60 Cal.2d 182, reversed on other grounds (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229], in which this court held that detailed evidence of a prior offense could be admitted at the penalty phase although the defendant had been acquitted of the crime in another court, on the rationale that an “acquittal is merely an adjudication that the proof at the prior proceeding was not sufficient to *814overcome all reasonable donbt of the guilt of the accused.” (Id. at p. 191.)2
Again in 1963, in People v. Hamilton, 60 Cal.2d 105, 129 [32 Cal.Rptr. 4, 383 P.2d 412], this court (per Justice Peters) reiterated that guilt need not be proved beyond a reasonable doubt at the penalty trial (citing Howk and Purvis with approval), but if the court held that evidence was incompetent and therefore inadmissible at the guilt phase, it could not be admitted at the penalty phase. Thus because an admission could not be introduced at the guilt trial without independent proof of the corpus delicti (People v. Cullen (1951) 37 Cal.2d 614, 624 [234 P.2d 1]), the admission could not be introduced absent such independent proof at the penalty trial, for the reason that it remained incompetent evidence. As indicated, Hamilton nevertheless reaffirmed the basic established rules as to penalty trials; yet it was later inexplicably to be cited as an authority for the abandonment of those rules.
Remarkably inauspicious was the initial incursion into the previously unquestioned ground rules regarding burden of proof, although the foray was subsequently magnified far out of proportion. In People v. Terry (1964) supra, 61 Cal.2d 137, 149, this court held that a mere information, by itself, could not be introduced at the penalty trial to prove commission- of a prior crime, just as an arrest, standing alone, would be inadmissible for that purpose (People v. Hamilton (1963) supra, 60 Cal.2d 105, 132). Both were merely hearsay as to the commission of the crime, and where the defendant ultimately pleaded guilty to a lesser offense ‘ ‘ the use of incidents in the preliminary stages of the criminal process as evidence to. prove that a defendant has committed an alleged criminal act becomes too prejudicial when weighed against its probative value.” (People v. Terry, supra, at p. 149.) In other words, the evidence there was both incompetent (as hearsay) and irrelevant (having relatively little probative value), and did *815not meet the minimal standards now codified in Evidence Code section 352.3 While the foregoing occurred in the penalty trial, it cannot be doubted that a similar objection would apply equally to introduction of such evidence at the guilt trial. The court thus in that context correctly cited, in footnote 8, the Hamilton rule that the “same safeguards” must be applied in the penalty phase as protect the defendant in the guilt phase.
Unfortunately, however, the Terry court gratuitously added another sentence of unadulterated dictum to footnote 8, and this has been a source of obfuscation' and error ever since. The court restated the Hamilton holding as to confessions lacking a corpus delicti, and continued; “As a corollary, defendant should not be subject to a finding of a jury that he committed prior crimes unless his commission of such prior crimes has been proven beyond a reasonable doubt.” The raison d’etre of this cryptic sentence has eluded both courts and commentators, and apparently continues to do so. (See Comment (1964) 52 Cal.L.Rev. 386, 397 fn. 69.)
The only consistent interpretation of the footnote is that, given a situation in which only a. conviction beyond a reasonable doubt would justify the introduction of ‘ ‘ preliminary stages” of the criminal process at the guilt phase — as the Terry court appears to indicate — this “same safeguard” applies also in the penalty phase. If, however, that so-called “corollary” to Hamilton requires that prior crimes must always be proved beyond a reasonable doubt in a penalty trial, though not at a guilt trial, we have a classic non sequitur and clearly erroneous dictum which directly contradicts statements of the established principles set out not only in previous cases, but also in the Terry opinion itself and in its companion case, People v. Hines (1964) supra, 61 Cal.2d 164, 173.
At the outset of its discussion of the penalty trial, the Terry court reviewed the applicable principles, outlining the “necessarily broad” range of inquiry and the “broad, liberal rules on admission of evidence” in this area. (61 Cal.2d at p. 143.) In footnotes 1 through 3 the court favorably cited, among others, the Jones, Purvis, Griffin, and Bentley cases, *816and substantially reiterated their holdings. Therefore the Terry court was under no illusion as to the éstablished rules, and it made no overt effort to discard precedent. Nor is there any' hint the court erroneously believed that a reasonable doubt standard was required for proof of prior crimes at the-guilt phase, and thus the “same safeguard” had to be applied at the penalty trial. (People v. Rosoto (1962) 58 Cal.2d 304, 331 [23 Cal.Rptr. 779, 373 P.2d 867]; People v. Lisenba (1939) 14 Cal.2d 403, 429-432 [94 P.2d 569].) What is undeniable is that the enigmatic reference in footnote 8 to a reasonable doubt standard, particularly in view of the citation, in the same opinion, of cases holding directly to the contrary, provided a shaky foundation indeed for the edifice soon thereafter to be built upon it.
The fortuitous footnote in Terry inspired four justices of the court in People v. Polk (1965) 63 Cal.2d 443, 450 [47 Cal.Rptr. 1, 406 P.2d 641], to totally abandon all precedent and to categorically assert: “Since evidence of other crimes . . . may have a particularly damaging impact on the jury’s determination whether the defendant should be executed, we recognized in People, v. Terry . . . that there should Jbe an exception to the normal standard of proof at the trial on the issue of penalty (People v. Purvis . . .).” The uncontro-vertible fact is that the court had recognized no such principle in Purvis or in Terry, primarily because such a proposition was then — and still is — precedentially barren.4 With this mythical authority to guide it, the Polk court enunciated for the first time a reasonable doubt rule for other crimes in penalty proceedings, pausing neither to justify its adoption nor to recognize the existence of consistent authority to the contrary. Thus we see the genesis of an evidentiary quagmire. Two years later People v. Varnum (1967) 66 Cal.2d 808 [59 Cal.Rptr. 108, 427 P.2d 772], gave the rule a stamp of venerable authenticity by reference to both Polk and Terry. Now in this case the majority gratuitously add still another to *817what I must assume will eventually be a formidable list of citations.
I have not recited an exegesis of the Polk-Vannum doctrine in a spirit of misoneism or simply to document the origins of a judicially adopted rule of evidence. This is not, of course, the first time such a creative process has occurred, nor will it be the last. My concern arises because the new rule5 which has been embraced unquestioningly by the majority is anomalous and contrary to the legislative intent expressed in Penal Code section 190.1.
The majority concede, as they must, that People v. Rosoto (1962) supra, 58 Cal.2d 304, 331, is prevailing law, and that “during the guilt trial -evidence of other crimes may be proved by a preponderance of the evidence, and that so far as proving other crimes by the evidence of an accomplice is concerned corroboration is not necessary.” But they fail to see the Legislature. clearly intended that the admission of evidence at the penalty phase be freer than at the guilt phase (People v. Jones (1959) supra, 52 Cal.2d 636), and at most subject to the “same safeguards” of the guilt trial as to competency and relevancy (People v. Terry (1964) supra, 61 Cal.2d 137). Since the jury in the penalty phase of a bifurcated trial is not considering the fate of a defendant presumed to be innocent — he has by then been found guilty of first degree murder — logic and the provisions of section 190.1 dictate- that the rules of evidence be less, not more, strict for the penalty trial. A majority of this court have inexplicably" altered the legislative plan by concluding without authority or empirical foundation that evidence of prior crimes is not only more prejudicial than other evidence, but is more damaging when it may sway the jury between the two types of available punishment than when it may sway jurors between guilt and innocence. I submit that even had the Legislature not spoken to the contrary, there is far more reason to limit strictly the admission of evidence at the guilt phase, where both life and freedom hang in the balance for a presumptively innocent defendant, than at the penalty phase, after freedom has already been lost by a guilty felon. A rule that imposes stricter evidentiary standards at the post-conviction penalty *818proceeding than at the crucial guilt trial boggles the judicial mind.
For efficient trial procedure, trial Courts and counsel are entitled to know how prior crimes are to be established at the penalty trial; the majority offer little assistance. Certainly a certified record of conviction will suffice. But what of proof by, for example, eyewitness testimony (People v. Bentley (1962) supra, 58 Cal.2d 458) or confession following inder pendent proof of the corpus delicti {People v. Hamilton (1963) supra, 60 Cal.2d 105) or testimony by an accomplice, as in this case? It is clear that the Terry opinion, whatever else it intended, did not purport to exclude all evidence of prior crimes except formal convictions, a position which “would deny relevant sentencing information to the. jury” and create “a fundamental change in the scope of evidence permitted.” (Comment (1964) 52 Cal.Rev. 386, 397, and fn. 69.) As said in People v. Mitchell (1966) supra, 63 Cal.2d 805, 815-816, “There is no requirement that a defendant'must-have been convicted in order to introduce evidence of other criminal conduct during the penalty phase [citing Griffin and Jones].”
The inevitable next question is: Who will decide whether the prosecution has sustained its burden of proof as to prior crimes? It is apparently contemplated that the jury will make this determination after hearing all the evidence, except where, as in the instant case, the court makes the evaluation as a matter of law.6 Where the evidence thus presented leaves any reasonable doubt of guilt of the prior crimes in, the minds of the jurors, they will be instructed to disregard the testh mony entirely in considering the penalty. In the not uncommon instances under Polk-Varnum in which the identical evidence of prior offenses has previously been presented at the guilt phase, as in this case, the jury will be expected to thoughtfully consider the evidence substantively in reaching a verdict on guilt or innocence, and then to erase that same testimony from their minds in determining penalty. This requirement suggests feats of mental legerdemain far more difficult than we have a right to expect of a jury.
We cannot overlook the serious pragmatic effect of the Polk-Varnum rule on the introduction of evidence of prior crimes at the penalty stage of a bifurcated trial. By requiring a *819higher degree of proof at the penalty trial than at the guilt trial, with all the time, effort, and resources this demands of both prosecution and defense,7 we discourage entirely the use of such evidence in determining penalty. This is contrary to the legislative intent, as often recognized by this court, that proof of prior crimes is a proper factor to be considered by the jury in the penalty trial. (E.g., People v. Mitchell. (1966) supra, 63 Cal.2d 805, 815; People v. Robillard (1960) 55 Cal.2d 88, 100 [10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086]; People v. Jones (1959) supra, 52 Cal.2d 636, 647.)
In the ease at hand, the admission of uncorroborated accomplice testimony as to other offenses in the guilt phase of a trial, while denying it in the penalty phase, purportedly pursuant to Penal Code section 1111,8 dramatically illustrates the myopic character of Polk-Varnum. For it should be clearly seen as this court has heretofore unmistakably held, that section 1111 applies to convictions only; indeed, no other interpretation of the statutory language is plausible. (People v. McRae (1947) 31 Cal.2d 184, 187 [187 P.2d 741].)
I am convinced the original pre-Polk line of cases interpreting section 190.1 is sound. I would overrule Polk and Var-rima. I would also set the record straight on Terry, although all that need be done is to philosophize about the havoc that can be wrought hy a lone sentence improvidently added to an obscure footnote.
On the other' hand, if the majority are determined to assert this new evidentiary concept, they should reconsider the implications of their haphazard method of reconciling the new penalty standard with those imposed at the guilt trial. They should at the very least forthrightly overrule the long line of pre-Polk authorities. In the words of Francis Bacon: “If it be that previous decisions must be rescinded, at least let them be interred with honour. ’ ’ In lieu thereof, this eulogy in dissent must suffice.
MeComb, J., and Burke, J., concurred.Respondent’s petition for a rehearing was denied September 17, 1969. MeComb, J., and. Burke, J., were of the-opinion that the petition should be granted.
In 1959 the following original language of section 190.1 was deleted as part of an amendment proposed by the State Bar: "On such further proceedings on the issue of penalty, any evidence concerning the commission of the crime admissible in the trial determining the guilt of the defendant may be admitted.” However, it is clear from the statements of the State Bar itself and the subsequent pronouncements of this court that the deletion was simply a removal of superfluous language, not in*813tended to restrict admissibility in the penalty trial. (See Selected 1959 Code Legislation (1959) 34 State Bar J. 710; People v. Terry (1964) 61 Cal.2d 137, 143, fn. 1 [37 Cal.Rptr. 605, 390 P.2d 381].)
Even Justice Peters, who alone dissented, conceded that section 190.1 must be interpreted “very liberally” and that “it is proper to inquire into all facets of the character of defendant and to show the jury just what kind of man he is.” Justice Peters suggested it would be appropriate for the prosecution to introduce evidence that defendant had been previously charged with a crime and acquitted, for that “is part of his background and.history. ” (Id. at p. 195.) In' fact, his only objection was to the prosecution’s retrying the defendant de novo on the prior charge, by eyewitness testimony, especially since the state was in a position to bring in witnesses an j other “detailed evidence” of the prior crime while the defendant, like^most in his situation, lacked the resources to do so. Yet the Pollc-Va/rmim rule seems to demand a virtually complete retrial of prior offenses.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
It should be rioted here that the basic factual premise behind this statement — i.e., that evidence of prior crimes is more damaging to a defendant than any other evidence which might be adduced at the penalty trial — is at best questionable. Yet the following is apparently the current law of this state: prior crimes must be proved beyond a reasonable doubt (Polk-Varnum), but all other facts in aggravation or mitigation of penalty — whether more or less ‘ ‘ damaging ’ ’ than proof of prior crimes— carry either no burden of proof at all (Sines, Terry) or at most the “same safeguard" of guilt phase preponderance of the evidence (Hamilton, Polk). I am not the first to be puzzled by this curious anomaly. (See, e.g., Comment (1964) 52 Cal.L.Rev. 386, 403.)
I find it of more than casual (Significance that five years later, the majority still deem Terry dictum to be new law, and thus under the doctrine of People v. Kitchens (1956) 46 Cal.2d 260 [294 P.2d 17], and People v. De Santiago (1969) ante, p. 18 [76 Cal.Rptr. 809, 453 P.2d 353], the defense was required to make no objections and the trial court was required sua sponte to give limiting instructions.
Polk states that the court must instruct the jury that “they must he convinced [of prior crimes] beyond a reasonable doubt.” (63 Cal.2d at p. 451; see also People v. Hillery (1967) 65 Cal.2d 795, 805 [56 Cal.Rptr. 280, 423 P.2d 208]; People v. Mitchell (1966) supra, 63 Cal.2d 805, 817.)
In such a situation the defense easily can he placed in a more difficult position than the prosecution (see fn. 2, ante).
Penal Code section 1111 provides, in part: “A conviction cannot he had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant -with the commission of the offense. ...” (Italics added.)