I agree fully with the analysis found in the Chief Justice’s dissenting opinion: the exclusion of the jurors who do not believe in the death penalty1 violates the fair cross-section requirement of our state and federal Constitutions.
This separate dissent proposes what appears to me to be a practical response to the long lasting quandary: how can we assure a fair jury yet accommodate the required dual procedure, a guilt hearing followed, if needed, by the penalty phase. Rather than urging two separate juries, I would replace some of the original jurors with alternates. Views on the death penalty should not be a basis for removal of jurors in the guilt phase. However, at the penalty phase jurors who cannot enforce the death penalty may be replaced. Thus, one jury is preserved.
The availability of such a procedure would render particularly insubstantial the state’s interests in completely excluding such a group from capital juries. Administrative convenience and fiscal conservation, advanced by the state to justify the exclusion, would not be significantly impinged by impaneling one jury with sufficient alternates able to fully participate in the penalty phase. At the same time capital defendants would be assured that their guilt or innocence would be determined by a representative jury.
I
The majority recognizes the practicality of this solution. It rejects substitution of alternate jurors out of concern for the requirement that jurors “reach their consensus through deliberations which are common to all of them,” which this court discussed in People v. Collins (1976) 17 Cal.3d 687 [131 Cal.Rptr. 782, 552 P.2d 742], (Maj. opn., ante, at pp. 350-352.) I believe the concern based on Collins is misplaced in a situation, such as that at bench, where the penalty verdict must be decided separately from the verdict on guilt.
Let us look at Collins. There, after the cause had been submitted to the jury and deliberations among the jurors had begun, one of the jurors asked to be dismissed. The issue posed was whether substitution of an alternate *388during the jury’s final deliberations violated a defendant’s constitutional right to a unanimous verdict by 12 jurors. The court expressed concern that unless all 12 jurors fully participated in the deliberations the requirement of a unanimous verdict could not be met. The court concluded that the substitution did not necessitate a retrial. The constitutional mandate, according to the Collins court, is satisfied when: (1) the deliberations begin anew upon substitution of the alternate, (2) the jury actually is instructed to set aside past deliberations and begin anew, and (3) each of the 12 jurors reaching the verdict participates in the entire deliberative process. The procedure we suggest is consistent with Collins.
Penal Code section 190.1 provides that the question of the defendant’s guilt shall first be determined. Thereafter, if the defendant is guilty of a crime which may subject him to the penalty of death, a separate proceeding is conducted on the question of penalty. At the penalty proceeding, the jury will hear further evidence relating solely to that issue. After having heard and considered argument by counsel, the jury must consider the evidence introduced at the separate penalty proceeding and weigh the aggravating and mitigating circumstances to determine the appropriate penalty. Thus, at the close of the penalty proceeding the jury must begin entirely new deliberations. These are based on consideration of new evidence which may not have been relevant at the guilt phase and on reconsideration of other matters presented at the guilt phase in light of the unique function of selecting punishment.
Under the proposal advanced in this dissent the 12 jurors who will determine the penalty will have heard all of the evidence presented at both the guilt and penalty proceedings and will have fully participated in the deliberations leading to the penalty determination. The jury will be instructed to disregard prior deliberations, and to begin anew after the guilt proceeding. A consensus on the penalty will be reached through deliberations which are the common experience of all of the jurors.
II
The majority also suggests that using alternates will result in juries which are less than partial. According to the majority using the same jurors to decide both the guilt and penalty verdicts may be necessary to assure that the ultimate decisionmaker in capital cases acts with full recognition of the gravity of its responsibility. The concern appears to be that a juror may decide guilt with a foreknowledge that the onerous task of deciding the appropriate penalty will not be faced by that juror. The concern is misplaced. The jurors who have such strong convictions against the death penalty, the only ones who will not sit on the penalty phase, will surely be *389cognizant of the gravity of their responsibility. The other jurors will, of course, participate in the penalty phase. The majority expresses no qualms as to the alternates.
The use of alternate jurors serves the state’s interest in preserving administrative convenience. The alternates, empaneled with the original jurors, would hear the guilt phase evidence. Empaneling these alternates would not significantly delay the jury selection process because the number of those jurors who will actually sit on the guilt phase jury and are unable to serve on the penalty jury is likely to be small. Jurors who strongly oppose capital punishment may not be excluded from the penalty trial unless they make it “unmistakably clear” that they “would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial.” (Witherspoon v. Illinois (1968) 391 U.S. 510, at pp. 522-523, fn. 21 [20 L.Ed.2d 776, at p. 785, 88 S.Ct. 1770].) Of this small group many who have such strong convictions may likely be excluded at the outset by voir dire. They may (1) express a desire to have themselves excluded from participating in a capital trial, (2) be excluded on a peremptory challenge by the prosecution, or (3) be excluded for cause if they cannot render an impartial verdict on the issue of guilt.
The defendant on trial for a capital offense, I believe, has a right to have that group of people represented on the guilt jury which is impartial on the issue of guilt and is able to participate in the guilt determination. Despite its possible small number, it represents a distinctive segment of the community. Those potential jurors should not be systematically excluded from a jury which constitutionally must be representative of the community.
If capital punishment is to reflect the evolving standards of our society, the composition of the capital jury is crucial. There is no state interest which justifies excluding from the guilt jury those who will render an impartial verdict on the issue of guilt but who will not impose a penalty of death. The state interests advanced by the majority to justify the exclusion are served by impaneling one jury with sufficient alternates to participate in the penalty phase.
For these reasons I respectfully dissent.
Appellant’s petition for a rehearing was denied March 27, 1984, and the opinion was modified to read as printed above. Richardson, J.,* participated therein. Bird, C. J., Mosk, J., and Reynoso, J., were of the opinion that the petition should be granted.
The artless term “guilt phase indudables” is used to describe these jurors.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.