I concur in affirming the judgment of guilt, but dissent from reversal of the penalty.
Although I agree with the majority that the torture-murder special circumstance cannot be sustained, there remains the felony-murder special circum*112stance which the majority correctly affirm. That leaves only the issue of penalty.
Once again a majority of the court reverse a penalty on the sole ground that the trial judge gave an admonition which they simplistically describe as a “no-sympathy instruction. ”
As I have consistently pointed out (People v. Bandhauer (1970) 1 Cal.3d 609, 619 [83 Cal.Rptr. 184, 463 P.2d 408]; People v. Lanphear (1984) 36 Cal.3d 163, 169 [203 Cal.Rptr. 122, 680 P.2d 1081]; People v. Easley (1983) 34 Cal.3d 858, 886 [196 Cal.Rptr. 309, 671 P.2d 813]) the instruction in question advises the jurors not to be swayed by passion, prejudice, public opinion, and public feeling, among other emotions, all of which are likely to be antagonistic to a convicted murderer. But the inclusion of the word “sympathy” in that instruction is neutral: it can caution against sympathy for the victim and his family, or it can mean sympathy for the defendant. The former is more likely. In any event, the inclusion of that single equivocal word is not prejudicial; it does not justify a reversal and the requirement of a complete new penalty trial.
I would affirm the judgment in its entirety.
Lucas, J., concurred.
BIRD, C. J.I write separately to convey my concerns about three of the issues presented by this case.
I.
The plurality uphold the admission of Linda Grant’s statements to the police and the evidence that was obtained thereby. (Plur. opn., ante, at pp. 102-104.)
It is true, as the plurality indicate, that the holding of People v. Jimenez (1978) 21 Cal.3d 595 [147 Cal.Rptr. 172, 580 P.2d 672] deals only with the voluntariness of an accused’s confession and does not by its terms require that the prosecution prove the voluntariness of a statement made by a person other than the accused. Nevertheless, I believe that the necessity of ensuring the sanctity of the truth-seeking process by policing the admissibility of allegedly involuntarily seized evidence requires that when an accused challenges statements by a witness as involuntary the prosecution should prove they were voluntary.
*113In the search and seizure context, this court has explained that “it is morally incongruous for the state to flout constitutional rights and at the same time demand that its citizens obey the law, that government teaches by example, and that if the government becomes a law-breaker, its action breeds contempt for the law. The ‘success of the lawless venture depends entirely on the court’s lending its aid by allowing the evidence to be introduced. . . . Out of regard for its own dignity as an agency of justice and custodian of liberty the court should not have a hand in such “dirty business.’” ...” (People v. Blair (1979) 25 Cal.3d 640, 656 [159 Cal.Rptr. 818, 602 P.2d 738], citing People v. Cahan (1955) 44 Cal.2d 434, 445 [282 P.2d 905, 50 A.L.R.2d 513].)
Such observations are equally applicable where the admissibility of involuntary statements is concerned. It is incongruous for the state to seize statements involuntarily but require the accused to establish such involuntariness.
Moreover, even though Jimenez is based, for the most part, on the premise that an accused should not be convicted by his own statements without an affirmative showing by the prosecution as to the voluntariness of those statements, many of the policies that require the prosecution to shoulder that burden are equally applicable where the voluntariness of statements other than by the accused are at issue.1 For example, coerced statements, even though true, are inadmissible because “the methods used to extract them offend due process . . . .” (Jimenez, supra, 21 Cal.3d at p. 606.) Applying Jimenez's principles makes particularly good sense where the witness’s statements include alleged admissions by the accused that prove many or all of the elements of the charged offense.
For these reasons, I would apply Jimenez's reasoning to require the prosecution to prove, at least by clear and convincing evidence,2 the voluntariness of a nonaccused’s statements.
*114n.
The plurality uphold the torture special circumstance provision of the 1978 death penalty law (Pen. Code, § 190.2, subd. (a)(18)) by construing it to require proof that the accused intended to kill and to torture the victim, and the infliction of an extremely painful act upon a living victim. (Plur. opn., ante, at p. 110.) I would not rewrite the law as explained in my concurring and dissenting opinion in People v. Davenport (1985) post, 247, 290-294 [221 Cal.Rptr. 794, 710 P.2d 861].
in.
By reversing on only one issue—Lanphear-Easley error (People v. Lanphear (1984) 36 Cal.3d 163 [203 Cal.Rptr. 122, 680 P.2d 1081]; People v. Easley (1983) 34 Cal.3d 858 [196 Cal.Rptr. 309, 671 P.2d 813])—the plurality fail to discuss the trial court’s giving of the “Briggs commutation instruction” that this court held invalid in People v. Ramos (1984) 37 Cal.3d 136 [207 Cal.Rptr. 800, 689 P.2d 430]. That omission leaves the reader with an erroneous impression.
Even though some justices would not reverse the penalty on Lanphear-Easley grounds, in the past they have joined reversals based on Ramos error. (See People v. Montiel (1985) 39 Cal.3d 910, 928 [218 Cal.Rptr. 572, 705 P.2d 1248]; People v. Ramos, supra, 37 Cal.3d at pp. 153-159.) Ramos was decided over a year ago and its holding remains intact. Although precedents from this court are often distinguishable on their facts, that is not possible here. The trial judges in Ramos and in this case committed identical instructional error. Thus, even without Lanphear-Easley error the penalty in this case would have to be reversed.
Indeed, two Court of Appeal opinions apply Jimenez—albeit without exhaustive reasoning—to this context, requiring the prosecution to demonstrate voluntariness beyond a reasonable doubt. (People v. Jones (1980) 105 Cal.App.3d 572, 582 [164 Cal.Rptr. 605] [statements found admissible under this standard]; People v. Gordon (1978) 84 Cal.App.3d 913, 924 [149 Cal.Rptr. 91] [statements found inadmissible].)
“The standard of proof that is required in a given instance has been said to reflect *. . . the degree of confidence our society thinks [the factfinder] should have in the correctness of factual conclusions for a particular type of adjudication.’ [Citation.] The standard of proof may therefore vary depending upon the gravity of the consequences that would result from an erroneous determination of the issue involved. Where such consequences are serious, the reasonable doubt standard may be required in order to protect against the possibility of an erroneous determination. [Citation.] In order to properly evaluate the consequences that may result from an erroneous determination, it is necessary to consider the nature and purpose *114of the proceedings involved. [Citation.]” (Jimenez, supra, 21 Cal.3d at p. 604.)
I recognize that the “consequences” of an “erroneous determination” as to the voluntariness of a nonaccused’s statements may not be as grave for the accused as in the case of an accused’s involuntary confession. Unlike a confession, which admits every element of the prosecution’s case, the relevance and weight to be accorded a witness’s statement varies with the circumstances. For this reason, the clear and convincing standard appears appropriate for this context.