I dissent. I would affirm the judgment in its entirety.
PETERS, J.I agree that the judgment of guilt must be affirmed, and that the judgment of death must be reversed. But, it is my opinion, under the facts stated in the majority opinion, this court should exercise the discretionary power, conferred by section 1181, subdivision 7 of the Penal Code, to reduce the penalty to life imprisonment. But this is not a proper case in which to now discuss that point, at length. The power granted by that subdivision has apparently never been exercised by an appellate court, and there is a major difference of opinion among the members of this court as to the proper interpretation and application of that subdivision. Inasmuch as four members of this court are not now willing to exercise the power apparently granted by that subdivision, since the point has not been briefed, since in any event the penalty is being reversed, and because the new trial may result in a life imprisonment verdict so that the point involved may become moot, the consideration of this point may now properly be deferred.
Another point should be mentioned. Inevitably involved in this and all other death penalty eases, is the constitutionality of the procedures adopted in California for the imposition of the death penalty. This issue was argued at length in In re Anderson and Saterfield, 69 Cal.2d 613 [73 Cal.Rptr. 21, 447 P.2d 117 [. There this court, by a four-to-three majority, held that the death penalty procedures adopted in California were constitutional. I disagree with that conclusion, and in the instant ease would hold the death penalty procedures adopted in California to be unconstitutional, for the many reasons so clearly expressed by Mr. Justice Tobriner in his dissent in the Anderson and Saterfield case. But unless or until at least four members of this court rule to the contrary, or unless or until the United States Supreme Court overrules the majority of this court, I am bound by the majority rule announced in that ease. Solely under compulsion of the majority rule adopted in that case, it must be held, in the instant case, that the death penalty procedures adopted in California are constitutional.