For all the reasons set forth in Mr. Justice Burke’s opinion, I concur in the decision of the majority of this court that the death penalty is constitutional and does not constitute cruel or unusual punishment, that Penal Code sections 190 and 190.1 are valid, and that petitioners will be afforded the services of counsel in the proceedings specified in Mr. Justice Burke’s opinion. I respectfully dissent from that portion thereof that sets aside the death penalties under the compulsion of Witherspoon v. Illinois, 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770],
The circumstances that influenced the United States Supreme Court to conclude that the Witherspoon jury “fell woefully short of that impartiality to which the petitioner was entitled under the Sixth and Fourteenth Amendments” (391 U.S. at p. 518 [20 L.Ed.2d at p. 783, 88 S.Ct. at p. 1775]) did not exist in the two eases before us.
*670The jury that fixed the penalty at death in Saterfield was composed of 12 men and women, each of whom, on voir dire examination by defendant through his counsel, solemnly swore that he had no preference for one penalty over another or had no preconceived notion that one was more appropriate than the other. The record shows:
Juror Shaver: “Q. And as I have indicated you may be called on to decide the question of penalty. Do you have any feelings that one penalty is more appropriate than the other ? A. No, sir, I don’t think so.”
Juror Kavanaugh. "Q. And if the question of penalty is put up to you, do you have any, start—at this point, we will put it that way, with any feelings one penalty is to be preferred over the other ? A. No. Q. Do you feel that the facts of the case should determine, perhaps, what penalty is imposed? A. That is right. Q. If that question [penalty] reaches you? A. Yes.”
Juror Allis. “Q. Any feeling, if that question of penalty is submitted to you, any feeling that one is to be preferred over the other? A. (Juror indicates negatively.) Q. One is more appropriate than the other ? A. No. ’ ’
Juror Wehrs. “ Q. Do you have any feeling that there are— at least awareness of any feeling that anyone who takes a human life should give his life in exchange ? A. Do I have any what? Q. In other words, do you feel that anyone who kills another person should be executed? A. Based on the evidence and the instructions I received, I would make my determination from that. Q. But you have no feeling at this point? A. No preconceived feeling, no.”
Juror Reynolds."Q. If the circumstances, or the question of penalty is submitted to you, do you, at this time, have any feelings as to whether the death penalty or life imprisonment is more appropriate? A. No. Q. It is a question of the facts presented to you ? A. Yes. ”
Juror Leasure. This juror was not specifically asked if she had any feeling that one penalty was more appropriate than another, but defense counsel asked: "Q. Mrs. Leasure, I presume you were able to hear my questions? A. Yes. Q. Any of them you feel calls for comment, as far as you were concerned? A. No.”
Juror Pulliam. “Q. Do you have any feelings, at the moment, one penalty or the other is more appropriate? A. No.”
Juror Hilburn. “Q. And as has also been indicated to you, it may evolve upon you to decide penalty in this case; do you *671have any feeling one penalty is more appropriate than the other at this time ? A. No, sir. ’ ’
Juror Georges. “Q. Do you have any particular feelings that, assuming the question of penalty is ever submitted to you, that one penalty is more appropriate than the other? A. No, sir.”
Juror Hall. “Q. Do you have any particular feelings, if the question of penalty is ultimately submitted to you, as to what penalty is most appropriate? A. No, I don't at this time. I’d have to hear the evidence. ’ ’
Alternate Juror Moss. “Q. Do you have any feelings that if the question of penalty is submitted to you, do you have any feelings, at the moment, one penalty would be more appropriate than the other ? A. No. ’ ’
Alternate Juror Moore. “Q. Do you have any particular feeling one penalty is more appropriate than another ? A. No. Depends on the ease, of course. ’ ’
I do not understand how the above jurors can, by any definition, be said to be jurors “uncommonly willing to condemn a man to die.” (391 U.S. at p. 521 [20 L.Ed.2d at p. 784, 88 S.Ct. atp.1776].)
While the questions propounded by the defense to the Anderson jurors were not so precisely worded as in Saterfield, it is clear to me that, unlike Witherspoon (where “In its quest for a jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die” (ibid.) the State of California was in search of a jury that was capable of imposing either one of the alternative penalties provided by state law based on which penalty the individual juror believed was justified. A typical question asked of prospective jurors by the prosecution time after time was, in substance: “If you felt that the merits of this case were consistent with what you would require in a proper case, you would have no hesitancy in returning the death penalty ? [Answer.] And by the same token, if you felt the ease on its merits didn’t measure up to that which you felt was a proper case for the death penalty, you would have no hesitancy in returning a verdict of life imprisonment, is that correct? [Answer.] ” Sometimes the questions were stated in reverse order: “If you felt that the case warranted the returning of life imprisonment, you would return such a verdict, is that correct? [Answer.] And on the other hand, if you felt the case justified the death penalty, I take it you’d return such a verdict? [Answer.] ”
*672Again unlike Witherspoon, the State of California did not ‘‘ entrust the determination of whether a man shall live or die to a tribunal organized to return a verdict of death. ’ ’ (391 U.S. at p. 521 [20 L.Ed.2d at p. 784, 88 S.Ct. at p. 1776].)
Witherspoon tells us that an acceptable impartial juror is one who will “be willing to consider all of the penalties provided by state law, and . . . not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings.” (391 U.S. at p. 522 [20 L,Ed.2d at p. 785, 88 S.Ct. at p. 1777, fn. 21].) Yet, a jury, as a body, (who must return a unanimous verdict) does not represent a cross-section of the community and is, ipso facto, not an impartial jury, unless it is composed of some individual jurors who “harbor doubts about the wisdom of capital punishment” or who “would be reluctant to pronounce the extreme penalty.” (391 U.S. at p. 520 [20 L.Ed.2d at p. 784, 88 S.Ct. at p. 1776].) These differing qualifications for an impartial individual juror and an impartial jury as a body are beyond comprehension, as 12 impartial jurors should add up to one impartial jury. Regardless of the arithmetic involved, for reasons not in issue in Witherspoon, that case does not, in my opinion compel setting aside the death penalties in our cases.
The majority say that they cannot conjecture that the prosecutor would have used his peremptory challenges to exclude jurors who were excused for cause by the court on its own motion. It is entirely reasonable that the People would have done so. In Saierfield, the People exercised only 2 of its 20 peremptory challenges in the selection of the 12 regular jurors and only one peremptory challenge in the selection of 4 alternates. In Anderson, the People used only 9 of its 20 peremptory challenges. Since none of the alternates served in Anderson, the manner of their selection is of no consequence. The defense was satisfied with the jury after the exercise of 10 peremptory challenges in Saierfield and 8 in Anderson
Witherspoon speaks only of veniremen improperly excused for cause and repeatedly criticizes the State of Illinois for having excused all veniremen who harbored doubts about the wisdom of capital punishment or all who said they did not believe in, or were opposed to, capital punishment. There is nothing in the opinion that compels the conclusion that the death penalty would have been set aside had some lesser number been improperly excused. As the majority of this court *673point out, the Witherspoon court did not discuss the effect of the existence of remaining peremptory challenges of the prosecution. That issue was not before them.
Mr. Chief Justice Weintraub, speaking for the New Jersey Supreme Court in State v. Mathis, 52 N.J. 238 [245 A.2d 20], has taken the correct approach to the problem of jury selection and/or exclusion in conformity with the Witherspoon rule: " The thesis of Witherspoon is that persons who dislike capital punishment but are nonetheless capable of weighing the penalty issue constitute a segment of the community within the concept that a jury shall be drawn from a cross-section of the community. The erroneous exclusion of some jurors does not mean that the balance of the jury list was thereby deprived of representatives of that segment. Nor would it matter if no member of that segment in fact was selected. A defendant’s right is to a fair opportunity to draw from all relevant segments, and unless the erroneous rulings amounted to a denial of that opportunity, the constitutional right was not infringed. To hold otherwise would burden the judicial process with no demonstrable justification. And we think it correct to add that if the prosecution did not use all its peremptory challenges, that fact may be a relevant makeweight, for it is not unreasonable to assume that the remaining challenges would have been used, had the trial court ruled against the State on its objection to a specific juror. Here the State used only 7 of its 12 peremptory challenges.” (P. 27.)
I would deny the writs.
On December 11, 1968, the opinion was modified to read as printed above. Petitioners’ application for a rehearing was denied December 18, 1968.