I agree with the majority’s holding that the trial court “did not err in dismissing defendant’s subpoena for Governor Brown and Warden Duffy. . . . The penalties for first degree murder have been fixed by the Legislature. [Citation.] The wisdom or deterrent effect of those penalties are for the Legislature to determine and are therefore not justiciable issues. Hence evidence as to these matters is inadmissible.”
By its enactments (as more fully discussed in my dissenting opinion in People v. Love (1961) ante, p. 739) the Legislature clearly has determined that the death penalty, as the strongest deterrent against certain crimes of violence, is essential for the protection of potential victims of such crimes. Therefore, evidence on the legislative issue as to whether that penalty is or is not the greatest deterrent is inadmissible. Conversely, evidence is admissible to help the jury in determining in each case (as contemplated by Pen. Code, §§ 190 and 190.1) which of the two alternative, but not equal, penalties should be imposed.
The correct rules relative to the selection of penalty (as between death and so-called life imprisonment) are stated or indicated in People v. Friend (1957) 47 Cal.2d 749, 764 [8]-768 [13] [306 P.2d 463], Insofar as appears proper to be quoted here, the opinion in that case declares (p. 764 [8]): “We note . . . that the trend is toward the more liberal admission of evidence pertinent only to the selection of penalty. For example, it has become established practice to advise the jury of the facts concerning the possibility of pardon, commutation, parole, etc. [Citations.] Obviously, the law pertaining to pardons, commutations and paroles has not the slightest relevancy to the issue of guilt; it is pertinent only as *772a fact which may he considered in selecting the penalty to be imposed; i.e., it is evidence which may be considered as relevant to the ‘aggravation’ or ‘mitigation’ of punishment in the sense in which those terms have been used in relation to the selection of penalty. ... [P. 767 [13].] They [the jury] should be told . . . that beyond prescribing the two alternative penalties the law itself provides no standard for their guidance in the selection of the punishment; . . . 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, . . .” We pointed out also that (fn. 8, p. 766) “For some years many courts and writers on criminal law and penology have held that the purpose of legally adjudicated punishment is not or should not be vengeance, but rather deterrence of the offender and other prospective offenders from crime, ...” (Italics added.)
I agree further with the majority that “The instant case involves a close factual determination” but I do not agree with them that any prejudicial error was committed. The close factual question was for the jury and the trial judge. Under rules of law which I deem to be controlling I accept their determination and would affirm the judgment and the order denying defendant’s motion for a new trial.
McComb, J., concurred.
Respondent’s petition for a rehearing was denied November 29, 1961. Schauer, J., and McComb, J., were of the opinion that the petition should be granted.