The Attorney General has filed on behalf of the People of California a petition for rehearing in which he presents facts, law, and argument supporting his request that this court reconsider its majority decision filed November 2, 1961. The petition has been denied but the arguments of the Attorney General remain fundamentally unanswered.
Such arguments are founded on facts which have been generally recognized in organized society since time immemorial and on the law of this state as it had existed in all material respects, until the majority’s unprecedented pronouncement, from at least the time that the Penal Code was adopted in 1872. Only the fiat of the majority denies validity to the clearly expressed intention (and implied finding) of the Legislature (Pen. Code, §§ 190 and 190.1) that evidence and argument in aggravation of the penalty mean evidence and argument for the penalty of death, while evidence and argument in mitigation of penalty seek so-called life imprisonment in contrast to death. How can it be said that a governor can commute a death sentence to imprisonment unless the latter be a mitigated, i.e., a lesser punishment ? A mitigated punishment is, of course, a lesser deterrent than an aggravated punishment. If this be not true, we should abandon a society based on the premise that man is a free agent; a fortiori we should scrap the entire system of modern penology because it is based on the concept that man is a free moral agent, a reasoning being responsive to sanctions and benefits. And if the aggravated punishment is pot a greater deterrent than the *749lesser then it would be simply cruel and unnecessary; hence it would violate section 6 of article I of our Constitution and be void.
We observe that as a matter of simple logic the majority’s decision must inevitably tend to encourage murders in the commission of crimes of violence, hence to increase for every citizen, and particularly for law enforcement officers, the hazard of death by violence; further, we note that the opinion fails to respect the necessarily implied finding of the Legislature as to the deterrent effect of the death penalty, implicit in the express provisions for the trial of the penalty issue in capital cases (see Pen. Code, §§ 190 and 190.1) which were enacted following and implementing our decision in People v. Friend (1957) 47 Cal.2d 749, 764 [8], 766 (fn. 8), 767 [13] [306 P.2d 463]. Instead of respecting, the majority opinion effectually emasculates, the penalty selection provisions of section 190.1 and overrules the decision which the Legislature had thereby implemented and which eoncededly had been the law of this state when the case was tried.
Because the petition for rehearing (signed by Attorney General Stanley Mosk, by Assistant Attorney General Doris H. Maier, and by Deputy Attorney General Raymond M. Momboisse) so cogently, albeit respectfully, presents the case for the People, and because of the grave import of this decision to peace officers, to the law-abiding public and to the Legislature, we deem it proper to, and we do, incorporate herein the major portion of the petition, as follows:
“This Court has held that it was error for the district attorney to argue that the death penalty is a more effective deterrent than life imprisonment as there is no legislative finding, and it is not a matter of common knowledge, that capital punishment is or is not a more effective deterrent than imprisonment. Further, this Court found that it was error for the prosecutor to assert, without any evidence in the record, that many criminals use empty guns and that they do so because of the fear of the death penalty.
‘ ‘ Certainly it was the intent of the Legislature in enacting section 190.1 of the Penal Code to codify the law as expressed in People v. Friend, 47 Cal.2d 749 [306 P.2d 463], that at the penalty phase the jury should be fully advised of the consequences of the penalties which might be imposed.
“This Court in People v. Friend, 47 Cal.2d 749, at 765-768 [306 P.2d 463], held that to aid the jury to act in*750telligently in making their selection of the alternative penalties, counsel may properly argue their respective views as to which punishment, under all the circumstances shown, will be more appropriate and desirable in the cause of justice. To that end, appeals to reason in the exercise of the jury’s discretion were held to be proper, as were appeals for clemency or for stern retribution.
“This Court went on to outline the great responsibility placed upon members of the jury and the difficultness of that verdict. Naturally in the conscientious discharge of their duty, jurors are eager to have, and have a right to have given to them, all the guidance the law can offer. Among those things which this Court at that time felt were essential for an intelligent determination by the jury were arguments as to which penalty will better serve the objectives of punishment. Among those objectives this Court recognized deterrents [sic] to the offender, and other prospective offenders.
“People v. Friend was decided on January 25, 1957. In that same year the Legislature added section 190.1 to the Penal Code, in which it was provided that there should be a separate trial to pass on the question of penalty when one of the alternative penalties was death. At that trial ‘Evidence may be presented ... of the circumstances surrounding the crime, of the defendant’s background and history, and of any facts in aggravation or mitigation of the penalty.’
“It is presumed that the Legislature at the time it enacted this statute knew of the decision of this Court in the case of People v. Friend, 47 Cal.2d 749 [306 P.2d 463] (Kusior v. Silver, 54 Cal.2d 603, 618 [7 Cal.Rptr. 129, 354 P.2d 657]).
“Indeed it could be said, as was held by this Court in People v. Nash, 52 Cal.2d 36, 47 [338 P.2d 416], that it is apparent the Legislature had in mind the law and presumably knew of the existing domestic decisional law in this regard and intended not to change it. Rather, by utilizing the judicially construed words ‘aggravation or mitigation of the penalty,’ the Legislature indicated its intent that the judicial definition should continue as the law of this State.
“After the enactment of section 190.1 of the Penal Code and its amendment in 1959 (Stats. 1959, Ch. 738) this Court in People v. Love, 53 Cal.2d 843, 856 [350 P.2d 705], indicated that the Friend decision still stated the permissible range on inquiry on the issue of penalty.
“We respectfully suggest that the opinion of this Court in People v. Friend was correct, that it was adopted by the *751Legislature when it enacted section 190.1 of the Penal Code and should be the controlling law in this case.
1 ‘ This Court has repeatedly held that the jury could be informed of the minimum term a person given a life sentence for first degree murder must serve and the minimum average and maximum terms actually being served for first degree murder in California (People v. Purvis, 52 Cal.2d 871, 884 [346 P.2d 22]; People v. Friend, 47 Cal.2d 749, 755 [306 P.2d 463] ; People v. Green, 47 Cal.2d 209, 217 [302 P.2d 307]). The reason put forth by the court was that such matter is essential in ascertaining the significance of a life sentence and thus at arriving at an intelligent evaluation of the penalty to be imposed.
“Certainly the same is equally true when dealing with deterrent effect of the penalties involved.
“We respectfully suggest that the opinion of this Court in People v. Friend, was correct, and that it is essential that the jury be advised of the deterrent effect of capital punishment in order that they may intelligently and effectively perform the grave responsibility given to them.
“We are thus confronted with the question of whether or not capital punishment is a deterrent.
“Logically it is indisputable that death is the greatest deterrent possible and as stated by Justice McComb it is a matter of common knowledge that the death penalty is a deterrent.
“The use of the word ‘lawfully’ in our criminal statutes implies that the person knows what he is doing, intends to do what he is doing, and is a free agent (People v. Trombley, 41 Cal.2d 801, 807 [sic, In re Trombley, 31 Cal.2d 801, 807 (193 P.2d 734)]).
“This Court quite recently reaffirmed its belief in the dignity of man when in People v. Nash, 52 Cal.2d 36 [338 P.2d 416], at 50, it reiterated the basic premise of all moral and social order and the cornerstone of criminal law, that man is a creature possessed of free will, charged with personal responsibility for his choice of action.
“Because man is a free agent and has a free will, it follows that his choice of action will be influenced by the consequences which will flow from it. Thus it follows that punishment for a crime will deter one from committing a crime. Thus at least one purpose of the penal law is to express a formal social condemnation of forbidden conduct, and buttress that condemnation by sanctions calculated to prevent that which is for*752bidden. The ultimate goal is deterrence (Sauer v. United States, 241 F.2d 640, 9th Cir., p. 648).
“If there is any validity to the theory that the purpose of legally adjudicated punishment is to deter the commission of crime, it must follow that death, which is the ‘King of Terrors’ (Job xviii, 14), which is the extreme penalty and is so generally considered (People v. Gomez, 209 Cal. 296, 300 [286 P. 998]), is the most effective deterrent.
“Certainly no one can seriously argue that insofar as the particular individual involved, capital punishment is without peer in its deterrent effect.
“Insofar as its deterrent effect on others, the Royal Commission on Capital Punishment in its report concluded that ‘Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal human beings than any other form of punishment, and there is some evidence (though no convincing statistical evidence) that this is in fact so’ (page 24).
“Further proof of the effectiveness of the death penalty is to be found in answers to questionnaires circulated by the Subcommittee of the Judiciary Committee on Capital Punishment and found in its report pertaining to the problems of the death penalty and its administration in California. The overwhelming majority of judges, district attorneys and police officers were of the opinion that the death penalty should be retained. These are the men who are best qualified to arrive at such conclusion, for they are the individuals who are in direct contact with the criminal element in our society.
“Probably one of the best statements of this is the following remark of Sir James Fitz james Stephen:
“ ‘No other punishment deters men so effectually from committing crimes as the punishment of death. This is one of those propositions which it is difficult to prove, simply because they are in themselves more obvious than any proof can make them. It is possible to display ingenuity in arguing against it, but that is all. The whole experience of mankind is in the other direction. The threat of instant death is the one to which resort has always been made when there was an absolute necessity for producing some result. . . . No one goes to certain inevitable death except by compulsion. Put the matter the other way. Was there ever yet a criminal who, when sentenced to death and brought out to die, would refuse the offer of a commutation of his sentence for the severest *753secondary punishment? Surely not. Why is this? It can only be because “All that a man has will he give for his life.” In any secondary punishment, however terrible, there is hope; but death is death; its terrors cannot be described more forcibly. ’ (Boyal Commission on Capital Punishment, 1949-1953 Beport, page 19.)
“Indeed, as stated by Justice Schauer in his dissent, if capital punishment is not a more effective deterrent than imprisonment, it must be abolished. Actually it would have been abolished before now, for history clearly establishes the fact that disproportionate penalties shock human feelings and result in the equalization of crime and punishment. Thus over the years the death penalty has been limited to crimes of great atrocity and danger to society which cannot otherwise be effectually guarded against.
“This principle has been recognized by our courts for it has been held that the Legislature may classify crimes and prescribe severer punishment for the commission of one class than for another as a deterrent against the commission of the more heinous crimes (People v. Smith, 218 Cal. 484, 489 [24 P.2d 166]).
“This certainly is reflected in the codes of the State of California wherein the Legislature imposes the death penalty only for the crimes of treason against the State (Pen. Code sec. 37), procuring the execution of an innocent person (Penal Code sec. 128), first degree murder (Penal Code sees. 189 and 190), train wrecking (Penal Code sec. 219), kidnaping with bodily harm (Penal Code sec. 209), and an aggravated assault by a life prisoner (Penal Code sec. 4500).
“Indeed, section 209 of the Penal Code is particularly demonstrative of the conclusion of the Legislature that the death penalty is by far a more effective deterrent than life imprisonment, for there when the person kidnaped suffers bodily harm, the punishment is to be life imprisonment without the possibility of parole, or death, whereas in those instances where the victim does not suffer bodily harm, the punishment is only imprisonment for life with the possibility of parole. This is proof that the Legislature recognizes that the death penalty is a more effective deterrent than mere life imprisonment.
“Likewise, as pointed out in both of the dissents, the People of the State of California have constantly been called upon in recent years through the Legislature to abolish the *754death penalty. In each instance the conclusion has been that the death penalty is a deterrent and it has been retained.
“In the same vein, it is interesting to note that the People of the State of California have not been directly offered the opportunity to express their view in an election as to whether or not the death penalty should be abolished.
“It seems only reasonable to conclude that if the proponents of abolition believed that the majority of the people of this State did not believe in capital punishment, that they would at least attempt to submit the matter to a popular vote. The failure to do so is the best proof that even the advocates of abolishment are convinced that the majority of the people of this State believe that it is an effective deterrent and desire its retention.
“Historically it has been demonstrated that capital punishment is a most effective deterrent. Little can be added to the excellent summaries of history to be found in the dissents filed in this case. They vividly pointed out that throughout the history of Christians and Jews, and more particularly throughout the history of California, the death penalty has been universally considered and has proven to be the most effective deterrent.
“In addition to the effectiveness of the vigilantes referred to in the dissent of Justice McComb, we might add that similar activity in New Orleans in the 1890s resulted in an equally effective deterrent to crime.
“The best summary of our argument is found in these words ... ‘it is a matter of common knowledge that the death penalty is a deterrent.’
“In reference to that portion of the district attorney’s argument wherein he stated that it is a known recognized fact that criminals will carry toy guns or unloaded guns because of the death penalty, we respectfully submit that this is legitimate argument, for it is history and a matter of common knowledge.
“In the dissent by Justice McComb numerous specific cases have been set forth which prove this argument is a correct reflection of history, as does the personal experience of Justice Sehauer.
“In the Royal Commission on Capital Punishment Report it was stated: ‘From them we received virtually unanimous evidence, in both England and Scotland, to the effect that they were convinced of the uniquely deterrent value of capi*755tal punishment in its effect on professional criminals. On these the fear of the death penalty may not only have the direct effect of deterring them from using lethal violence to accomplish their purpose, or to avoid detection by silencing the victim of their crime, or to resist arrest. It may also have the indirect effect of deterring them from carrying a weapon lest the temptation to use it in a tight corner should prove irresistible. These witnesses had no doubt that the existence of the death penalty was the main reason why lethal violence was not more often used and why criminals in this country do not usually carry firearms or other weapons. They thought that, if there were no capital punishment, criminals would take to using violence and carrying weapons; and the police, who are now unarmed, might be compelled to retaliate ’ (page 21).
“Likewise, in the appendix to that report, page 335, specific instances were cited which confirm those set forth in Justices Me Comb's and Schauer's dissents.
“In our own state a hearing was held before the Senate Committee on Judiciary on March 9, 1960. That hearing was telecast in its entirety and was subsequently released as a printed report.
“During that hearing a report from the Los Angeles Police Department entitled, ‘Employees Report, Robbery Suspects in Committing Capital Offenses’ was introduced. That report showed that a number of defendants in conversations with reporting officers stated that they either had (1) toy guns, (2) empty guns, or (3) simulated guns, rather than taking a chance on getting the gas chamber.
“Likewise the Sheriff of Los Angeles County, Mr. Pitehess, in his presentation referred to specific instances where suspects had admitted that they had not armed themselves for fear of the death penalty. Likewise a tape was played to the committee in which a suspect had stated that a crime committed by him had been with a gun from which the firing pin had been removed so that no one would be injured, because he did not want to get the gas chamber (Report of the Senate Committee on Judiciary, March 9, 1960, pp. 149-153).
“Likewise Mr. Coakley, the District Attorney of Alameda County, informed the committee that any chief of police or sheriff or district attorney in any large community has had the same experience of talking to robbers who had told them they used a gun which was inoperative because of fear *756of the death penalty (Report of the Senate Committee on Judiciary, March 9, 1960, p. 156).
“Testimony to the same effect was elicited from Chief of Police Parker of Los Angeles (Report of the Senate Committee on Judiciary, March 9, 1960, p. 161).
“In an article appearing in 35 State Bar of California Journal one of the outstanding defense attorneys of the State, Mr. Leo R. Friedman, stated:
“ ‘The foregoing claims (that capital punishment was.not a deterrent) cannot be reconciled with the numerous cases of robbery, bank stick-ups, burglaries, etc., where the criminal used an unloaded gun or a toy pistol. Such criminals were willing to take a chance on being caught and imprisoned, but would not take a chance on killing the victim and being executed.
“ ‘Naturally, there can be no statistics produced to demonstrate how many murders were not committed because the would-be perpetrator feared the death penalty. If but one or two innocent lives are saved each year because the death penalty has deterred the commission of a murder, then the death penalty is justified. No one can successfully deny that the fear of the death penalty has saved innocent lives.’
“The numerous specific instances are all part of the history of this State and they show that among the professional criminals capital punishment is a deterrent and because of it, he commits crimes armed with a toy or inoperative gun. Thus it was proper for the district attorney to so argue to the jury.”
For all the reasons stated in our dissents to the majority decision and for the further reasons so ably presented for the People by the Attorney General, the petition for rehearing should be granted.