I concur in the affirmance of the judgment as to guilt and in the sustaining of the special circumstance finding.
*917I dissent, however, from the affirmance of the judgment as to penalty. It is clear that the trial judge erred when he failed to state his reasons for denying defendant’s automatic application for modification of the verdict of death as required by Penal Code section 190.4, subdivision (e) (hereafter section 190.4(e)).
The error was particularly egregious in this instance, for the judge obviously did not recollect the facts. Whether he merely failed to recall the evidence, or actually had some other case in mind, we shall never know because of his death. He emphasized the “criminal record of the defendant,” and again stressed “the long and distinguished record of the defendant in the criminal annals of the county.” To the contrary, there was no evidence whatever concerning any prior violent criminal conduct by this defendant. He has never served time in prison nor been convicted of a felony. The prosecutor had so conceded in his argument to the jury in the penalty phase.
The foregoing error—revealing the judge’s misconception of the evidence—cannot be deemed harmless. The judge’s failure to specify reasons for denying modification—the comment he made being inaccurate—denied to defendant the objective analysis and “independent determination” required by section 190.4(e), and denied to this court assurance of the thoughtful and effective appellate review we are required to undertake when a man’s life is at stake. (People v. Rodriguez (1986) 42 Cal.3d 730, 794 [230 Cal.Rptr. 667, 726 P.2d 113].)
As I pointed out in my dissent in People v. Heishman (1988) 45 Cal.3d 147, 205 [246 Cal.Rptr. 673, 753 P.2d 629], this court cannot somehow sanitize the error by attempting to redetermine the application itself. Section 190.4(e) provides in relevant part as follows: “In ruling on the application, the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances . . ., and shall make a determination as to whether the jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented. The judge shall state on the record the reasons for his findings, [fl] The judge shall set forth the reasons for his ruling on the application and direct that they be entered on the Clerk's minutes.” (Italics added.)
On its face, section 190.4(e) plainly gives the determination of an application for modification of the verdict of death to the trial judge and the trial judge alone—not to any judge and certainly not to an appellate justice or an appellate court. The reason for this is evident: the Constitution imposes a requirement of heightened reliability for a verdict of death; only the trial *918judge has had the opportunity to observe the defendant and the demeanor of the witnesses; therefore, it is only that judge who can make a constitutionally adequate determination as to whether the defendant should be sentenced to death in accordance with the verdict.
In this case as in Heishman, supra, 45 Cal.3d 147, the trial judge is deceased. Once again we have only two valid alternatives, neither of which the majority consider. The first is to exercise our authority under Penal Code sections 1181, subdivision 7, and 1260, and reduce the sentence from death to life imprisonment without possibility of parole while at the same time affirming the judgment of guilt. (E.g., People v. Lucero (1988) 44 Cal.3d 1006, 1034-1036 [245 Cal.Rptr. 185, 750 P.2d 1342] (conc. & dis. opn. of Mosk, J.) [concluding in a capital case that the judgment of guilt should be affirmed but that the sentence of death should be reduced to life imprisonment]; cf. People v. Jackson (1955) 44 Cal.2d 511 [282 P.2d 898] [reversing a judgment with directions to the trial court to reduce a death penalty to life imprisonment in a case in which serious errors were committed but the overwhelming weight of credible evidence established guilt].) In the unusual circumstances presented by this case, such a procedure would serve the ends of justice and also avoid the necessity of conducting another penalty trial more than six years after commission of the crime.
The second alternative is to reverse the judgment as to penalty and to return the matter for a new penalty trial. I would not object to that result.
For the reasons stated above, I cannot join in the majority’s conclusion that the trial judge’s failure to state his reasons for denying defendant’s section 190.4(e) application can be deemed harmless error. Accordingly, I dissent from affirmance of the judgment as to penalty.