Concurring and Dissenting.—
I dissent. In Our application of the rule announced in Witherspoon (Witherspoon v. Illinois, 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]) this court noted in its decision in People v. Varnum, 70 Cal.2d 480, 492-493 [75 Cal.Rptr. 161, 450 P.2d 553]: “Our task requires us to assess the responses of the venireman in the full context of that portion of the court and counsels’ voir dire examination of the entire panel conducted during the. time said venireman was present in the courtroom and until the time he or she was -excused for cause. To ascertain what the juror meant by what he said, we must consider not merely the words of his answers but also the words of the questions he was asked and additionally all of the circumstances in which the colloquy took place. The *788voir dire examination of a juror individually is not conducted in a vacuum; it is but a part of a broader process directed to an. entire group of men and women designed to effectuate tbe selection of fair and impartial jurors. Before his name is drawn, the individual venireman is in attendance in the body of the courtroom, an involved subject of this process, addressed collectively with the other members of the panel by the judge, and, along with them,, observing and aware of the individual examination of the veniremen whose names are first drawn. In short, in our probing of the juror’s state of mind, we cannot fasten our attention upon a particular word or phrase to the exclusion of the entire context of the examina-, tion and the full setting in which it was conducted. ’ ’
Applying Varnum to the instant ease, a review of the voir dire examination indicates that at the very outset the court instructed the panel that in the penálty phase the decision as to whether the defendant (if found guilty) should suffer death or life imprisonment “is within the discretion of the jury.” He further explained in questioning one of the first jurors that he was not suggesting that ‘ ‘ this is a proper case; that would-be for the jury to determine, if we get that far.”
The court stated. the test with respect to conscientious objections or opinions concerning the death penalty as follows: “Do you have any such conscientious scruples against the imposition of the death penalty as would preclude you from returning a verdict of guilty in a proper case?” (Italics added.) The court reiterated this test on over 40' occasions.
Thus, it is clear from a review of the entire record that each prospective juror was made aware that the court was seeking to ascertain whether any conscientious scruples which any such juror might have were such as to preclude such juror from returning a verdict of guilty.
Under Witherspoon, supra, and this court’s decision in In re Anderson, 69 Cal.2d 613, 617 [73 Cal.Rptr. 21, 447 P.2d 117], it was entirely proper to excuse jurors for cause whose attitude toward the death penalty- would prevent them from making an impartial decision as to the defendant’s guilt. In People v. Fain, 70 Cal.2d 588, 601 [75 Cal.Rptr. 633, 451 P.2d 65], this court held that a juror whose views would preclude her from returning a first degree murder conviction was properly excused for cause. On the other hand, in Fain, we held that a juror who said it would be difficult for her to vote for the death penalty was improperly excused because as in Witherspoon it cannot be assumed that such juror “could *789never vote in favor of it or that he would not consider doing so in the case before him. ” (Id. at pp. 515-516, fn. 9.)
Thus, in Fain we noted the distinction between the effect of a juror’s conscientious scruples with respect to capital punishment upon his ability to vote to impose the death penalty itself as distinguished from his ability to act impartially in the determination of defendant’s guilt.
These two types of prejudice and the different standards to be applied to them were clearly defined in Witherspoon, supra, pp. 522-523, footnote 21, and reiterated by this court in Anderson, supra, p. 617. They are quoted again in the majority opinion in the instant case, but, I submit, are not followed. Under those standards the prospective juror must make it “unmistakably clear (1) that [she] would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial . . . or (2) that [her] attitude toward the death penalty would prevent [her] from making an impartial decision as to the defendant’s guilt.” (Italics added; Witherspoon v. Illinois, supra, 391 U.S. 510, 522-523, fn. 21 [20 L.Ed.2d 776, 784-785, 88 S.Ct. 1770].)
In the instant case, as has been noted, the judge’s test question, which he continued to repeat time and time again, came under the second category dealing with the effect of a juror’s attitude upon his ability to make an impartial decision as to defendant’s guilt and not under the first category dealing with his ability to vote for the death penalty itself.
The first juror asserted to have been improperly excused was Mrs. Ragsdale. At least 12 veniremen had been examined by the court before she was questioned and each'one of the 12 had been asked the test question referred to above. There were some minor variations in the exact language used but no change whatever in substance; each pertained specifically to the effect of conscientious scruples upon the juror’s ability to return a verdict of guilt (and not with imposing the death penalty itself).
Mrs. Ragsdale was asked if she heard the judge’s statement of the case and the questions propounded hy the court and counsel and nodded affirmatively. She was then asked the test question, albeit phrased in a slightly different manner. The questions and answers were as follows:
“The Court: Do you have some conscientious scruples as would prevent you from returning a verdict of guilty in a case wherein the death penalty might he imposed ?
*790“A. Well, your Honor, I don’t feel libe I should sit on the ease.
“The CouRT: Do you have an opinion at this time, Mrs. Ragsdale? I don’t want you to tell me what the opinion is. I want to know if you have one ?
“A. Yes, I do have an opinion, sir.
“Q. And you feel that opinion is such it would take evidence to remove it ?
“A. Yes, sir.
‘ ‘ The Court : Any objection to excusing this juror-?
“Mr. Davis: No, your Honor.
“Mr. Puglia: No.
“Mr. Wells: No,’.’
In essence what this juror said was that she had conscientious scruples, she phrased it “an opinion,” which would prevent her from returning a verdict of guilty, an opinion which would take evidence to remove. Whether her “opinion” favored the defense or prosecution we do not know but clearly this juror was not impartial on the issue of guilt and was properly excused.
Juror Ross was about the 18th in the list of jurors examined and thus he had heard the court repeat the test question at least 17 times before he was questioned. He was asked:
‘ ‘ Q. Do you know of any reason from what you have heard here today why you couldn’t give to both sides and to all parties a fair, impartial trial ?
“A. Yes, I have some very strong feelings in,regard to the capital punishment law.
“Q. Are you telling the Court at this time that you have some conscientious scruples which might preclude you from returning a verdict of guilty where —
“A. I do, yoiir Honor. Yes.
“The Court: Well, then, you’ll be excused, sir. Thank you.”
I submit he was properly excused for cause.
By the time juror Dawson was examined she had heard the court, ask the test question, stressing ability to determine guilt, over 30 times. Also, in the questioning of almost every prospective juror who preceded her, at least 40 by actual count, either the court or counsel would ask whether the juror had heard all of the questions that had been asked of the other jurors. After certain identification questions, Mrs. Dawson’s examination proceeded along the same line:
‘ ‘ Q. You have an awareness by this time of what the case is *791about and the nature of the problems with which you’ll be confronted. With that in mind, do you know of any reason why you couldn’t serve on this case ?
“A. Your Honor, I’m afraid I would be prejudiced. I have very strong opinions on the death penalty.
‘ ‘ Q. Are you opposed to the death penalty ?
“A. Ido.
‘ ‘ Q. That is a conscientious opinion ?
‘ ‘ A. Quite conscientious. It’s something that’s very old.
‘ ‘ Q. Then, of course, under the law, the law sets up that as a qualification, you would not be permitted to serve in this case where that’s possible.
“A. Yes.
“The Court : Again, ladies and gentlemen, this Court is not' suggesting, that that is the proper disposition. I’m merely stating a legal principle with which you are confronted on this issue. So you will be excused.
“Mrs. DawsoN: Thank you, sir.”
I believe that it is entirely reasonable to assume that when Mrs. Dawson stated she would be “prejudiced” she was anticipating the court’s .test question which, in the normal sequence which he had employed, followed immediately after his general question as to whether the juror knew of any reason "why he couldn’t serve in the case.
In- fact, in more than a dozen instances the identical sequence was followed. Referring back to the examination of juror Ross it is to be noted the court asked the questions in the identical sequence and that Ross anticipated the question to follow just as I am asserting it is reasonable to assume juror Dawson did.
A juror who volunteers that she “would be prejudiced” because of her “strong opinions on the death penalty” .was properly determined by the trial judge to be one whose “attitude toward the death penalty would prevent [her] from making an impartial decision as to defendant’s guilt.” (Italics added; Witherspoon, supra.)
Mr. Slaff was the last of the panel to be excused for cause relating to the Witherspoon issue:
“Q. You know of any reason, sir, why you couldn’t sit on this particular jury to give to both sides a fair trial ?
“A. Well, sir, I have fixed feelings about capital punishment.
“Q. Do I understand that when you say that, you are opposed to the imposition of the death penalty ?
*792“A. Yes, sir.
“Q. Would that opinion which you hold, as you .sit there-today, preclude you from returning a verdict of guilty in a case?
“A. Yes, sir.
‘ ‘ The Coukt : Under those circumstances, sir, you may not serve. So you will be excused. That’s all. ’ ’
Here, again, he was properly excused under the second' category of prejudices relating to guilt.
The majority assert that they cannot distinguish the answers of venireman Dawson from those which we held in the Anderson-Saterfield cases, 69 Cal.2d 613 [73 Cal.Rptr. 21, 447 P.2d 117], as compelling a reversal. The distinction, however, is readily apparent. In the Anderson-Saterfield cases, unlike the instant case, the trial court did not use the test question utilized by the judge in the instant case. In Sater-field, the companion case to Anderson, supra, 69 Cal.2d 613, the emphasis of the court’s questioning in the very few instances where he referred to the death penalty at all was on the imposition of the death penalty itself and hot on the bearing of any prejudice on the question of guilt:
“The Couet: One other question that the Court might put to you people; in all probability the People in' this matter will be seeking the death penalty. Now, are there any of you with objections, conscientious or otherwise, that would cause you to be biased for or against such a request.
“Do any of you have, any of you already have a pre-con-ceived notion this is something you couldn’t deliberate- on with a fair and impartial mind ?
‘ ‘ Are there any of you that feel that way ? ’ ’
Likewise counsel in their voir dire examinations in both Anderson and Saterfield, supra, asked the jurors if they tended to prefer one penalty over the other, or had any initial feelings as to which is the more appropriate. In addition in many instances counsel asked if the prospective juror could vote for the death penalty for first degree murder in a proper case. In Anderson, supra, the trial court did not ask the prospective jurors specifically with reference to their views on capital punishment. After asking identifying and other preliminary questions of each juror he would ask: “Do you know of any reason you couldn’t be a fair and impartial juror in this case ?” If the juror responded in the negative the court then permitted counsel to inquire. If the juror indicated that he ha.d certain beliefs concerning the death penalty which *793would prevent him from serving or that his- opposition to the death penalty would not permit him to be fair and impartial, he was thereupon excused with no further questioning.
This was in no way comparable to the format utilized in the instant ease.
Finding no error under the application of Witherspoon I dissent from the reversal of penalty. I concur in the affirmance of guilt.
McComb, J., and Schauer, J.,* concurred.