It is my view that the trial judge’s comments to the jury in the case at bar go far afield from the court’s proper function, exceed the court’s power to “make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the case” (Cal. Const., art. VI, § 19) as that power relates to the selection of penalty for first degree murder, and invade a province which by law is solely that of the jury.
The most serious departure by the trial judge (and by the majority) from the law as spelled out in our previous decisions (see People v. Friend (1957), 47 Cal.2d 749, 766 [13] [306 P.2d 463]; People v. Green (1956), 47 Cal.2d 209, 218-232 [7-10] [302 P.2d 307]; see also People v. Ball (1926), 199 Cal. 451, 456-458 [249 P. 859]; People v. Bollinger (1925), 196 Cal. 191, 207 [237 P. 25]; People v. Leary (1895), 105 Cal. 486, 496 [39 P. 24]) is that here the trial judge made unmistakably clear to the jury the fact that in his opinion they should fix the punishment at death. The majority purport to meet this issue by holding that “The extent to which a judge is free to comment on the evidence is shown by the fact that it has frequently been recognized that a judge may express his opinion as to the guilt or innocence of the defendant . . . There is no justification for holding that a judge has a lesser right to comment on the evidence where punishment is involved than where matters relating to guilt are in issue, and the same principles should be applied in determining whether the power has been properly exercised.” Contrary to the majority’s quoted declaration, there is justification—indeed, *583not only justification but necessity, if we are to abide by the law previously enunciated—for holding that “a judge has a lesser right to comment on the evidence where punishment is involved than where matters relating to guilt are in issue.” The difference is an obvious one. Guilt must always depend on evidence and only on evidence, and the judge may comment on evidence; hence, he may indicate an opinion as to the fact which depends on evidence. But where punishment (in a first degree murder case) is involved the selection of the penalty need not depend in any degree whatsoever on the evidence and, under the legislative plan as we have construed it, must always include exercise of an “absolute” or unfettered discretion.
As we unqualifiedly enunciated in People v. Friend (1957), supra, 47 Cal.2d 749, 764-765 [11], the discretion of the jury as to penalty in a first degree murder case is absolute1 and may be resolved on considerations of pure conjecture, sympathy, apprehension, etc.; it is the law (pp. 767-768 of 47 Cal.2d) “that insofar as selecting the penalty is concerned (as between the two alternatives [of life imprisonment or death]) the law does not itself prescribe, nor authorize the court to innovate, any rule circumscribing the exercise of *584their 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 irrevocableness 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.”
Although the trial judge gave lip service to the rule that “the penalty is entirely up to you [the jury],” and “anything I say is not binding on you,” his comments as a whole, even if they were an accurate review of such of the evidence as he commented upon, would constitute a partisan plea for the more extreme penalty. The judge not only indicated in a general way his view that the penalty should be death; he went on to particularize his reasons for his view. He made it clear that in his opinion defendant showed no remorse (“I seemed to feel as I heard it that Mr. Friend was concerned mostly about his own plight and not what he had done”) and that defendant had not fully disclosed details of the crime known to him (“He was the only one . . . that could give you the full details, if he saw fit so to do, but he said he didn’t remember much about the rape, didn’t remember much about this or about that”). Furthermore, in giving his reasons, the trial judge did not merely comment on the evidence; he misstated evidence unfavorably to defendant. The judge said, “You saw the defendant on the witness stand on two different occasions when he wouldn’t answer the questions on cross-examination. . . . When certain questions were asked him why he didn’t want to answer them. When I ordered him to answer them he said, ‘I don’t remember,’ or ‘I don’t know.’ Those were questions relative to the rape and relative to the molesting of the minor children several years *585later and the rape on the elderly woman on which he was on probation at the time he was picked up for this offense.”
The two questions which defendant did not answer directly, and which the judge directed him to answer, had nothing to do with rape or molestation of children. One of the incidents which resulted in the judge’s directing defendant to answer on cross-examination was as follows:
“Q. Did you have a couple of suitcases there [at defendant’s brother’s house when defendant called the newspaper reporter] f A. Yes.
“Q. Where were they in the house? A. I can’t say where. That makes no difference. They were in the house.
“The Court: Answer the question.
“A. Well, I don’t recall now just exactly where they were in the house.”
The second incident which resulted in the judge’s directing defendant to answer on cross-examination was as follows:
“Q. Did you go down to the La Jolla Park [on the night defendant killed Miss Muir] ? A. I think at this time, I think the story has been told so dog-gonned many times I am getting tired of repeating the thing.
“The Court: Mr. Friend, you will answer the questions. You have given your story on direct and you will give it on cross. Now you answer the questions.
“By Mr. Low: Q. Did you go down to the La Jolla Park? A. I think I did. ’ ’
Manifestly these two incidents did not involve matters as serious as those indicated in the trial judge’s comments; they did not concern defendant’s offenses of rape and molestation of minor children. The judge’s statement that defendant refused to answer questions about those important and damaging matters was seriously prejudicial to defendant.
On the prior appeal in this case (People v. Friend (1957), supra, 47 Cal.2d 749) we took cognizance of the sole and absolute discretion of the jury in the selection between the two alternative but equally prescribed punishments, and for the guidance and assistance of trial judges specifically pointed out that (p. 766 of 47 Cal.2d) “ [13] Quite naturaliy jurors, in the conscientious discharge of their duty, are eager, as were those in this case, to have all the guidance the law can give them. This poses a delicate task for the trial judge but his duty is clear. He must, of course, inform the jurors that they have no concern with punishment unless, under the instructions applicable to the trial of the issue of guilty or not guilty, *586they shall have found that beyond all reasonable doubt the defendant is guilty of murder of the first degree as charged.[2] When and if they so find, the duty of selecting the penalty devolves upon them, and on them alone, and they should be instructed as to the absolute nature of their power in the exercise of that function.
“From the discussion of the subject hereinabove and in People v. Green (1956), [supra, 47 Cal.2d] 209, 217-221, 229-232, it appears that there need be no error in counsel’s advancing arguments as to which penalty will better serve the objectives of punishment, or in contending that the effect of certain evidence is ‘mitigating’ or ‘aggravating,’ as may affect their selection of the punishment to be imposed, provided that the jurors in every case are clearly and adequately instructed as to the full scope of their function. They should be told (in accord with the law as reviewed in People v. Green (1956), supra, and herein) that beyond prescribing the two alternative penalties the law itself provides no standard for their guidance in the selection of the punishment; that the law provides equally the two penalties of death or life imprisonment, but that neither penalty attaches automatically or at all until the jury unanimously agree upon their choice of punishment and designate it in their verdict; that the choice as between the two penalties is in every case committed to their absolute discretion.” (Italics added.)
Section 190 of the Penal Code “clearly and equally states two alternatives as punishment; it gives preference to neither.” (People v. Green (1956), supra, 47 Cal.2d 209, 218 [7] ; People v. Friend (1957), supra, 47 Cal.2d 749, 751 [5a] ; People v. Brust (1957), 47 Cal.2d 776, 787 [9] [306 P.2d 480].) Since the law itself suggests no preference for penalty or basis for making the selection, neither should the trial judge, by comment to the jury, suggest preference for either penalty or emphasize factors which would tend to influence the jury toward either penalty. Selection of penalty, as we have repeatedly emphasized, is exclusively and absolutely the province of the jury. Presumptively, a suggestion that the death penalty should not be imposed would not be prejudicial to the defendant, but certainly any suggestion that it should be imposed would be inherently prejudicial.
As to comment on the evidence relating to the issue of guilt *587or innocence it is aptly said in People v. Robinson (1946), 73 Cal.App.2d 233, 237 [166 P.2d 17], that “The right thus conferred to comment on the evidence is a most potent one. Trial judges are not required to comment, but, if they do so, they should be extremely careful to exercise the power with wisdom and restraint. The point need not be labored that the members of the jury are apt to give great weight to any hint from the judge as to his opinion on the weight of the evidence or the credibility of the witnesses, and, for that reason, care should be taken not to affect unfairly the rights of the defendant.” And comment on the evidence relating to the selection of penalty is, as hereinabove indicated, a far more delicate matter than comment on the facts bearing on the issue of guilt or innocence. On the issue of penalty, where so many factors, including extrajudicial factors, may properly influence—indeed, alone control—the jury’s verdict, comment should be strictly restrained to the scope, nature, and substance we so carefully enunciated in the Green, Brust, and earlier Friend decisions; it should never extend to or encompass any indication by the judge that in his opinion the death penalty should be selected. Such an indication is inherently an invasion of the field which by law is committed exclusively and absolutely to the jury, and is clearly prejudicial to the defendant. Comment which passes the limit of fairness and amounts to advocacy of the more severe penalty is indisputably in contravention of our studied holdings in the Green, Brust, and previous Friend cases as well as of the long established rulings of this court in such cases as People v. Leary (1895), supra, 105 Cal. 486, 493, and People v. Bollinger (1925), supra, 196 Cal. 191, 207. If we are so soon to depart from such certainty and clarity as the Green, Brust, and Friend holdings provided and are to again indulge at least in part the inconsistencies which had plagued us for so many years (from 1874 to 1956; see People v. Green (1956), supra, 47 Cal.2d 209, 218-232) we owe it to the bench and bar to specify those holdings which today are intended to be overruled.
Simple intellectual integrity requires us to recall now the miserable mass and mess of irreconcilable inconsistencies which had been growing from (on the one side) the gross errors of People v. Welch (1874), 49 Cal. 174, clear down through Kolez (1944), 23 Cal.2d 670 [145 P.2d 580], Williams (1948), 32 Cal.2d 78 [195 P.2d 393], and Byrd (1954), 42 Cal.2d 200 [266 P.2d 505], and (on the other side) the never heretofore *588disputed correctness of the “It is clear beyond question” holdings of Leary (1895), 105 Cal. 486, 496 [39 P. 24], Bollinger (1925), 196 Cal. 191, 207 [237 P. 25], and Hall (1926), 199 Cal. 451, 456-458 [249 P. 859], and many other cases down to Green wherein (at p. 226 of 47 Cal.2d) we accepted the law which for so many years had been “clear beyond question” and declared that “the decision we make today at last requires compliance with that law.” But this is another “today,” some two years later than Green. And on this “today” the majority implicitly and essentially recant the brave declaration of two years ago. As of today the law that from 1895 to 1956 was “clear beyond question” is either no longer the law or it is no longer clear. Furthermore, the decision today tells the bench and the bar that we no longer require “compliance with that law”; no longer is the discretion of the jury in the selection of penalty absolute or unfettered; no longer is the selection of penalty exclusively the province of the jury. Bather, the majority today hold, even though the selection of penalty (as between the two equally prescribed), unlike the issue of guilt, is not a matter which must be resolved on or controlled by the evidence, that nevertheless the judge may not only comment on the evidence hut may intimate that it does not warrant selection of life imprisonment in preference to death; and even though it is (or was) altogether clear that the jury alone has the function of selecting the penalty, the judge may tell them that in his opinion they should fix the penalty at death.
The above indicated changes in the law which are express or implicit in today’s majority decision impel me to reiterate some of the principles which, although apparently no longer the law, are, I think, deserving of respect.
A jury of laymen confronted with the difficult task of selecting between the penalty of death and that of life imprisonment will, it may be assumed, look to the trial judge for such guidance as he may give them, and will be likely to take their cue from any intimation of the trial judge as to what verdict he believes they should return. Instead of attempting to influence the jurors to accept his view the trial judge should inform them in accord with the law stated in People v. Friend (1957), supra, 47 Cal.2d 749, 767, “that beyond prescribing the two alternative penalties the law itself provides no standard for their guidance in the selection of the punishment; that the law provides equally the two penalties of death or life imprisonment, but that neither penalty attaches *589automatically or at all until the jury unanimously agree upon their choice of punishment and designate it in their verdict; that the choice as between the two penalties is in every ease committed to their absolute discretion,” etc. It would be a rare case, if any, in which it would be proper for a trial judge to make any other comment on the law or the facts pertaining to the selection of penalty than comment of the scope and substance of that set forth in the Friend ease, supra, pages 766-768 of 47 Cal.2d, and quoted in large part ante, pages 509, 513.
It is improper for the trial judge to throw the weight of his office behind a selection which is for the jury alone. “It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling.” (Starr v. United States (1894), 153 U.S. 614, 626 [14 S.Ct. 919. 38 L.Ed. 841], quoted in Bollenbach v. United States (1946), 326 U.S. 607, 612 [66 S.Ct. 402, 90 L.Ed. 350], and in Sanguinetti v. Moore Dry Dock Co. (1951), 36 Cal.2d 812, 819 [228 P.2d 557].) In the Sanguinetti ease, an action for damages under the Jones Act, plaintiff’s counsel in the presence of the jury asked leave to amend the complaint to increase the amount of damages prayed for from $50,000 to $75,000. The trial court, outside the presence of the jury, granted the motion and denied defendant’s motion for mistrial on the ground of misconduct of plaintiff’s counsel in presenting the motion in the jury’s presence. The court instructed the jury that “The damages must be reasonable and cannot be in excess of the amount alleged in the complaint, namely $75 000.” We held (p. 819 [3] of 36 Cal.2d) that “. . . any practice which would include the making of a motion, in the presence of the jury, after production of evidence, to increase the amount of damages asked, and which would bring to the knowledge of the jury the fact that the court after hearing plaintiff’s evidence permitted the complaint to be amended by increasing the prayer for damages, should be unhcsitantly condemned and stricken down,” for (p. 819 [4] of 36 Cal.2d) “It is, of course, elementary that the amount of damages is ordinarily a question of fact to be determined by the jury.”
It is true that the Sanguinetti case was bv a bare majority of this court but I do not understand that the declared principles of law, as such, were seriously disputed. It was, rather, application of those principles to the facts of the case on which we divided. In the specific criminal ease now before *590us, it seems to me that the court’s influencing the jury as to selection of penalty, a matter committed to the sole and absolute discretion of the jury, much more than its influencing the jury in any civil case as to amount of damages, should be unhesitantly condemned and stricken down.
Also analogous are the following statements in Dorsey v. Barba (1953), 38 Cal.2d 350 [240 P.2d 604], which holds that the trial court does not have the power to increase an inadequate award of unliquidated damages without plaintiffs’ consent: (p. 356 [8] of 38 Cal.2d) “An essential element [of the constitutionally guaranteed right to trial by jury] ... is that issues of fact shall be decided by a jury, and the assessment of damages is ordinarily a question of fact. The jury as a fact-finding body occupies so firm and important a place in our system of jurisprudence that any interference with its function in this respect must be examined with the utmost care”; (p. 358 [10] of 38 Cal.2d) “it is not the mere form of a jury trial to which one is entitled under the Constitution, but the fundamental right to have a jury determination of fact.” Likewise it is not the mere form of a jury selection of penalty to which a defendant is entitled under the Penal Code, but the fundamental right to have the selection made by the jury uninfluenced by the trial court.
It seems particularly incongruous, in my sense of relative values, that this court should reach the result of the majority in this case when so recently the court in considering a claim for damages in a civil case held that there must be a new trial because a jury may have been “misled [by statements of the trial judge] as to the proper manner of determining liability.” In Butigan v. Yellow Cal Co. (1958), 49 Cal.2d 652, 660 [320 P.2d 500], this court (even though the Vehicle Code expressly recognizes unavoidable accident as a defense in the circumstances there defined, and even though the instruction had been recognized as proper for many years) held that through the giving of the instruction on unavoidable accident the jurors “may get the impression that unavoidability is an issue to be decided and that, if proved, it constitutes a separate ground of nonliability of the defendant. Thus they may be misled as to the proner manner of determining liability . . .” IIow much more likely it is that the jury in this uenalty- and inherently damaging statements of the trial judge, selection case were misled by the inaccurate, unwarranted,
The fact that the defendant in the instant case is a miserable, friendless creature, guilty of horrible crimes, does not make *591him, in what I view as the proper concept of our function, any less deserving of a fair trial than was the plaintiff in Butigan v. Yellow Cab Co., supra.
The eases last cited and summarized apply to situations other than the one now before us the familiar concept that the trial judge should not improperly interfere in matters which are for the exclusive determination of the jury. The Green (1956), supra, 47 Cal.2d 209, and earlier Friend (January 25, 1957), supra, 47 Cal.2d 749, cases specifically apply that concept to the problem of selection of penalty. Since the latter decisions (and since the return, on June 19,1957, of the improperly influenced verdict now under consideration), the rules there announced have received implicit legislative approval by an enactment which went into effect on September 11, 1957, and which amended section 190 of the Penal Code and adopted section 190.1 of that code so as to provide for a separate trial on the issue of punishment in the case of a person charged with an offense for which the penalty is in the alternative death or life imprisonment.
Section 190.1 provides in part that ‘ ‘ Evidence may be presented at the further proceedings on the issue of penalty, of the circumstances surrounding the crime, of the defendant’s background and history, and of any facts in aggravation or mitigation of the penalty.” Thus the section clearly accepts our suggestion in the earlier Friend opinion (p. 763 of 47 Cal.2d, footnote 7) that “The character and scope of evidence pertinent to punishment which should be received in a case wherein the jury is required to fix the penalty, is a subject which could well receive legislative attention.”
Section 190.1 further provides in material part that “In any case in which defendant has been found guilty by a jury, and the same or another jury, trying the issue of penalty, is unable to reach a unanimous verdict on the issue of penalty, the court shall dismiss the jury and either impose the punishment for life in lieu of ordering a new trial on the issue of penalty, or order a new jury impaneled to try the issue of penalty ...” The wording of this new section certainly does not purport to authorize the trial judge to “order a new jury impaneled to try the issue of penalty” and to instruct them that in his opinion they should fix the penalty at death. It does authorize the trial judge to “either impose the punishment for life ... or order a new jury impaneled to try the issue of penalty.”
*592There is not the slightest indication in the new section that the Legislature intended to alter the rules spelled out by this court in People v. Green (1956), supra, 47 Cal.2d 209, and People v. Friend (1957), supra, 47 Cal.2d 749. The section does not empower the judge to instruct the jury in any way whatsoever not consonant with those rules. Rather, by dealing with the matters there determined in a manner consistent with those determinations it in effect recognizes and approves our holdings. Today the majority not only refuse to recognize and apply those holdings; they further refuse to accept the legislative recognition of such holdings.
For the reasons above stated I would reverse the judgment and the order denying a new trial.
Me Comb, J., concurred.
This holding was by no means new to the law. In People v. Green (1956), supra, 47 Cal.2d 209, 218 [5], we declared: “There has never been any suggestion or intimation within the language of the statute since its 1874 amendment [section 190 of the Penal Code as amended in 1874 provided that “Every person guilty of murder in the first degree shall suffer death or confinement in the state prison for life, at the discretion of the jury trying the same . . .”] that the discretion of the jury was conditional on, or had to be guided by, any particular circumstances . . .” (See also id., pp. 218-219 [7] of 47 Cal.2d.) And in People v. Bollinger (1925), supra, 196 Cal. 191, 207, on the authority of People v. Leary (1895), supra, 105 Cal. 486, we held: “It is clear beyond question that by the language of the amended section [Pen. Code, § 190, as amended by Stats. 1873-1874, p. 457] . . . two changes were made in the law as to the punishment for murder in the first degree—first, that the punishment may be either death or life imprisonment; and, second, that the discretion of determining which punishment shall be imposed was vested in the jury alone. Por . . . the law places no restriction upon the jury’s exercise of such discretion, nor does it attempt to confine its exercise to cases presenting palliating or mitigating circumstances. . . . The legislature has ‘ confided the power to affix the punishment within these two alternatives to the absolute discretion of the jury. . . .’ (People v. Leary [1895, supra], 105 Cal. 486, 496 [39 P. 24].) ” And as we stated in the Green ease (pp. 225-226 of 47 Cal.2d), “The above quotation from the Hall case (199 Cal. 451, 456-458) [the quotation from the Hall case appears at pp. 224-225 of the Green ease], together with that portion of the Bollinger case (196 Cal. 191, 207) which quotes section 190 of the Penal Code (as amended in 1873-1874) with the declaration that its meaning is ‘clear beyond question,’ correctly states the law; the decision we make today at last requires compliance with that law.”
Since the 1957 enactment of section 190.1 of the Penal Code, the issue of punishment is separately tried if a person is found guilty of an offense punishable by life imprisonment or death.