I concur in the conclusions stated by Mr. Justice McComb and in his reasoning. I find it necessary, however, to emphasize my differences with the majority opinion.
I can understand with the majority that there is a reasonably debatable question as to whether the record affirmatively and satisfactorily shows that the trial court performed its full duty to independently weigh the evidence as required by People v. Borchers (1958) 50 Cal.2d 321, 328 [1, 2], 330 [9, 10] [325 P.2d 97] and People v. Moore (I960) 53 Cal.2d 451, 454 [2] [348 P.2d 584]. However, construing the record *740favorably to affirmance, as is the duty of a reviewing court, I am satisfied with Justice MeComb’s conclusion that the judgment should be affirmed.
The reversal of a judgment in a ease of this character (and this is a second reversal in the same case) even when clearly required under established law, is in itself a serious matter. But far transcending the importance of the reversal in adverse effect on law enforcement, are certain pronouncements in the opinion (hereinafter quoted) which, whether so intended or not, constitute an attack on the death penalty. I cannot find justification in fact or in law for the majority’s criticism of the prosecutor’s argument to the jury regarding the death penalty or for the pronouncements which constitute an undermining attack on that penalty.
The majority relate that “For the third time a jury has fixed defendant’s penalty at death for the murder of his wife. . . . [After the first trial] the trial court granted a new trial on the ground of newly discovered evidence, and we affirmed. [Citation.] Defendant was again . . . found guilty . . .; again the jury fixed the penalty at death. We affirmed the judgment as to the adjudication that.defendant is guilty of murder of the first degree and was sane. ... We reversed [McComb, J., and Schauer, J., dissenting] ... as to the imposition of the death penalty because of the admission of evidence tending to inflame and prejudice the jury. (People v. Love [1960] 53 Cal.2d 843 [350 P.2d705].)”
The order of the majority in the above referred to reversal is as follows (p. 858 of 53 Cal.2d) : “The judgment is reversed as to the imposition of the death penalty, and the cause is remanded for retrial and redetermination of the question of penalty only and for the pronouncement of a new sentence and judgment in accordance with such determination and the applicable law.” The applicable law includes the provision of section 190.1 of the Penal Code, 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. The determination of the penalty of life imprisonment or death shall be ... on the evidence presented. ...” (Italics added.)
Yet today the majority rule that (ante, p. 729) “Since it appears, . . . that the prosecutor committed prejudicial misconduct in arguing the deterrent effect of the death penalty to the jury, the judgment , . . must be reversed.”
*741What possible rationality can be found in the provision of section 190.1 that “Evidence may be presented ... on the issue of penalty . . . and of any facts in aggravation or mitigation of the penalty” if evidence and argument cannot be addressed to what is then the sole issue in litigation ? What can the words “Evidence ... in aggravation or mitigation of the penalty” mean if they do not relate to a basis for selecting as between the more drastic penalty—the greater deterrent—and the mitigated one of imprisonment?
I agree with the majority that {ante, p. 725) “The court did not err in dismissing defendant’s subpoena for Governor Brown and Warden Duffy. . . . He had subpoenaed Governor Brown to elicit his views on capital punishment. The penalties for first degree murder have been fixed by the Legislature. (Pen. Code, § 190.) The wisdom or deterrent effect of those penalties are for the Legislature to determine and are therefore not justiciable issues. [Manifestly the Legislature has made the determination.] Hence evidence as to these matters is inadmissible.” Certainly the above holding is correct. But most assuredly no inference can properly be drawn from that holding that the Legislature has left any doubt that on its findings and in its judgment both the death penalty—for its greater deterrent effect, particularly in aggravated cases—and so-called life imprisonment—with its lesser effect for mitigated cases—are essential for the protection of society in California.
But in contrast to the law the majority go on to assert that the judgment here must be reversed and remanded for a new (fourth) trial on the issue of penalty because: “ [The prosecutor] stated as a fact the vigorously disputed proposition that capital punishment is a more effective deterrent than imprisonment.” Would “vociferously” perhaps be a more accurate adverb than “vigorously”? And since, as the majority already had held, the Legislature has fixed the penalties for first degree murder and they “are therefore not justiciable issues,” why should the prosecutor not accept the findings of the Legislature and the law as to the two alternative penalties, exactly as he did, and offer evidence and argument pertinent to the jury’s performance of duty, as clearly contemplated by the Legislature in its enactment of Penal Code sections 190 and 190.1?
The majority continue: “The Legislature has left to the absolute discretion of the jury the fixing of the punishment *742for first degree murder [i.e., without any control by the judge of their discretion but, of course, presumably rationally in the light of the evidence]. [Citation.] There is thus no legislative finding, and it is not a matter of common Jenowledge, that capital punishment is or is not a more effective deterrent than imprisonment.” The italicized pronouncement, in my view, is obnoxious to fact and law. Unsupported by statute or prior decision, it is a blow which appears to be aimed directly against rational application, and therefore toward ultimate abolition, of the death penalty. If the quoted italicized pronouncement were true—that there is neither legislative finding nor common knowledge “that capital punishment is or is not a more effective deterrent than imprisonment” then, of course, the death penalty should be abolished.
Further implementing its tenet the majority opinion continues: “Since evidence on this question [presumably evidence in aggravation or mitigation of penalty as contemplated by Pen. Code, § 190.1] is inadmissible, argument thereon by prosecution or defense could serve no useful purpose, is apt to be misleading, and is therefore improper. It is true that in People v. Friend [1957] 47 Cal.2d 749, 766, 768 [306 P.2d 463], we stated that counsel could advance ‘arguments as to which penalty will better serve the objectives of punishment’ and listed deterrence of crime as one of those objectives. To the extent that People v. Friend is inconsistent with our conclusion herein it is overruled.” (Italics added.)
By the above quoted holdings the majority in effect place the prosecutor in a forensic strait jacket as to argument for the greater deterrent. Those holdings also effectually emasculate the provision of Penal Code section 190.1, for the taking of evidence to aid the jury in making an intelligent and informed selection as between the alternative, but by no means equal, penalties of death or imprisonment. In so doing it appears to me that the majority action trenches upon an invasion of the legislative province in disregard of the distribution of powers prescribed by California Constitution, article III, section 1. (Compare Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 213-221 [11 Cal.Rptr. 89, 359 P.2d 457] ; see also dissenting opinion, pp. 221-224; Civ. Code, § 22.3; Stats. 1961, ch. 1404, p. 3209.) To the same end today’s majority also disregard the doctrine of stare decisis in overruling (as above quoted) the decisional law which admittedly had bound the trial court at the time of trial.
Although overruling the cited decision the majority rely on *743it as a basis for reversal. They say “That decision [Friend (1957)], however, was binding on the trial court at the time this case was tried, and it would have been an idle act for defendant to object in the trial court to the prosecutor’s argument that capital punishment is a more effective deterrent than imprisonment. He is therefore not precluded from raising the question for the first time on appeal.” The trial court thus is reversed for following the law as it existed at the time of trial—and as it also existed at the time of this court’s first reversal of the judgment and remand “for retrial and re-determination of the question of penalty only.”
Actually the correct rules, as had been held by this court in the Friend (1957) decision, relative to the selection of penalty (as between death and so-called life imprisonment) are stated or indicated in the now overruled case. Insofar as appears proper to be quoted here, the opinion in that ease declares (p. 764 [8] of 47 Cal.2d) : “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 possibilities 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 a fact which may be 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, . . .” (Italics in last sentence added.) 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 prospec*744five offenders from crime, ...” (Italics added.) All of the foregoing, the majority today brush aside.
Regardless of individual preferences among the justices I deem it to be the duty of this court to accept the fact that the Legislature has determined that the death penalty, in the cases wherein it is prescribed, is the strongest deterrent against the commission of such crimes. The fact that the jury (or the trial judge) has a final power of determination as to whether the death penalty or life imprisonment shall be imposed in a given case is of course not a legislative determination that life imprisonment is an equally strong deterrent. It merely shows the concern of the Legislature that liability to suffer the strongest deterrent be surrounded by the strongest safeguards for the accused. Even as the death penalty is the strongest deterrent against murder, so is it also the most effective protector of the lives of the victims of those who deliberately choose the commission of crimes of violence as a profession.
That the ever present potentiality in California of the death penalty, for murder in the commission of armed robbery,1 each year saves the lives of scores,2 if not hundreds of victims of such crimes, cannot I think, reasonably be doubted by any judge who has had substantial experience at the trial court level wth the handling of such persons. I know that during my own trial court experience, which although not extensive in criminal law, included some four to five years (1930-1934) in a department of the superior court exclusively engaged in handling felony cases, I repeatedly heard from the lips of robbers—some amateurs (no prior convictions), some professionals (with priors)—substantially the same story: “I used a toy gun [or a simulated gun or a gun in which the firing pin or hammer had been extracted or damaged] because I didn’t want my neck stretched.” (The penalty, at the time referred to, was hanging; death by lethal gas was substituted in 1941.)
*745I, of course, recognize that there are persons who in all sincerity urge that the death penalty be abolished. They point to the cases which reach the courts and say: ‘ ‘ See, it has not deterred the commission of these crimes.” Certainly the potentiality of the penalty is not 100 per cent effective as a deterrent as to all criminals. But it would be absurd to claim that because it did not deter all it did not deter any. As to each victim of each armed robbery whose life is spared because that one robber was deterred from killing, I dare say that the victim and his loved ones would not quibble over the percentage of the deterrent’s efficacy.
There are also persons who entertain a conscientious scruple against any taking of human life. When a person who conscientiously believes that the state should never take a human life is called upon to take part in the operation of a death penalty law he, understandably—being conscientious in duty as well as in personal conviction—will suffer grievously. Whether he shall advocate repeal of the law would be one thing; urging forbearance of execution might be another. But regardless of whether a person has or has not any official connection whatsoever with law enforcement, and whether he realizes it or not, the death penalty law is a matter of importance to his safety. Whether any citizen would urge amendment of the law to make its application more swift and sure, or would repeal it altogether, or change it otherwise, the decision he makes should be of grave concern to him—and to his neighbors. Certainly each person must live with his own conscience. It is, however, to be hoped that his decision, as to any action affecting the death penalty which is motivated by conscience, will be an enlightened decision; that the decision he makes will be more than superficially consistent with his true objective. To make such a decision requires thinking— and information. By information, I mean facts, not theories. Probably all of us who have thought on the subject—and particularly those of us who have some responsibility in these cases (even as remote as it is at the appellate level)—devoutly wish that the death penalty were no longer necessary. But we have not yet reached the state which Sir Thomas More envisioned. Until a Utopian government has become reality, organized society (if it is to exist) must continue on the posit of free will and personal responsibility for one’s choices of action (see People v. Gorshen (1959) 51 Cal.2d 716, 724 [336 P.2d 492]) with sanctions for crimes appropriate to their *746gravity. A good government owes protection to its law abiding citizens.
Let us consider further this business of armed robbery. It is much more profitable, ordinarily, than burglary but it entails more risk. Robbery means facing the victim and taking the property “from his person or immediate presence . . . against his will, accomplished by means of force or fear.” (Pen. Code, §211.) The victim (if not blind and deaf) is a potential witness. Robbery is “in the first degree” if “perpetrated by torture or by a person being armed with a dangerous or deadly weapon. ...” (Pen. Code, § 211a.) Other kinds of robbery are of the second degree. Robbery in the first degree is punishable “by imprisonment in the state prison . . . for not less than five years;” that of the second degree, by like imprisonment “for not less than one year.” (Pen. Code, § 213.) The maximum in both cases is life imprisonment. Few, if any, law-respecting people would contend that these sentences, particularly in view of the early parole probabilities, are too severe.
The risk of undergoing such a sentence is just as much a calculated risk of the professional robber as is the risk of deflation (or competition) a calculated risk of the conventional businessman. But the robber can do one thing that will vastly decrease the risk of identification and conviction: he can eliminate the known witnesses—the victims he robs. To accomplish any robbery he must at least make a show of force and induce fear; and for that reason he usually carries a gun— or something that looks like a gun. It cannot be validly disputed that the choice as to which he carries—-a gun or what looks like a gun—is in case after case controlled solely by his respect for the death penalty. If the punishment he risks for robbery is to be imprisonment—and only imprisonment, even if he eliminates the only witness—it would seem inevitable that the incentive to kill would be greatly increased. The greater chance of escaping any punishment would, in the minds of some at least, outweigh the slighter risk of having the term increased. Many a robber who would take the risk of a longer term would absolutely shun any plan which substituted death for imprisonment.
And now I return to the subject of conscientious scruples against the execution of a human being. From what has already been said it must be obvious that I understand that it would be poignantly desirable (in the faithful performance of their law enforcement duties) for jurors and trial judges *747particularly, and also for justices of courts of review, and governors or other officers having the power of commutation, if the death penalty were abolished. But I comprehend also that it would be tragically undesirable to the families of the innocent victims who would die violently as a result.
Because of what my own eyes have seen and my ears have heard I cannot doubt the efficacy of the death penalty as a savior of the lives of victims of robbers, kidnapers, burglars, and criminals of similar dispositions. But if there were doubt in my mind I should resolve it in favor of protecting the innocent victims of the future rather than sparing the guilty killers of the past.
Inasmuch as today’s majority opinion (1) may well be construed as at least approaching an invitation to the Legislature to repeal the death penalty; (2) as it declares a proposition which, if accepted, would constitute a basis arguably demanding repeal;3 and (3) as it shackles district attorneys and trial courts in effective administration of the present law as it was enacted, it may well be that the Legislature should give attention to the legislation so affected. In that connection, in view of today’s court action and of the entire record of appeals from penalty determinations under Penal Code sections 190 and 190.1 (as those sections were, respectively, amended and added by Stats. 1957, ch. 1968, p. 3509, and Stats. 1959, ch. 738, p. 2727), the Legislature perhaps will wish to give consideration to the possible desirability of eliminating the alternative of imprisonment in certain situations to be designated by the Legislature, and making the greater deterrent the sole penalty, to follow as a matter of law on final conviction in any such designated situation. It would seem that, if such action is contemplated, the Legislature in its study might consider whether the greater deterrence of such certainty might reasonably be made applicable to those who personally would kill, or direct another to kill, “in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288,” or in kidnaping. (See Pen. Code, §§ 189, 209.)
Finally, I emphasize: each person who officially or unofficially participates in or advocates enforcement, repeal or amendment of the subject law—and who receives the benefits of its protection—must live with his own conscience. But I re*748spectfully and earnestly urge that he who would consider repealing or otherwise defeating operation of this law, the principal purpose of which is to protect the lives of the victims of crimes of violence, will either make sure that the information on which he acts is sound and convincing or will pause to consider what his conscience may tell him as to some measure of moral responsibility for the “eliminations” which reason suggests may thereby be encouraged.
McComb, J., concurred.
Respondent’s petition for a rehearing was denied December 1, 1961. Schauer, J., and MeComb, J., were of the opinion that the petition should be granted. The following opinions were then rendered:
use robbery as the example for discussion because the deterrent effect of the death penalty for murder in the commission of (or attempt to commit) robbery is particularly well known among law enforcement officers who handle such cases at the investigation, arrest, and trial court levels. The point of my discussion, however, is equally applicable to the deterrent effect of the death penalty against harming kidnap victims and against murder committed in the perpetration or attempt to perpetrate arson, rape, burglary, mayhem or lascivious acts upon a child under the age of 14. (See Pen. Code, §§ 209, 189, 190, and 288.)
According to the 1958-1960 Report of the Department of Justice the number of robberies reported in California in 1959 was 11,548.
It may be noted also that in the same year 108,002 burglaries were reported in this state.
Why, indeed, should it not he repealed if, as the majority declare, it is no more of a deterrent to murder than is mere imprisonment?