I concur in the majority opinion to the extent that it affirms defendant’s conviction of first degree murder, rape and the commission of a lewd and lascivious act on a child under the age of 14. I respectfully dissent, however, from the majority’s reversal as to penalty. A careful review of the applicable statutes convinces me that defendant properly was sentenced to life imprisonment without the possibility of parole.
The 1977 act at issue here commenced with former Penal Code section 190, which unambiguously stated that “Every person guilty of murder in the first degree shall suffer death, confinement in state prison for life without possibility of parole, or confinement in state prison for life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5....” (Italics added; further *833references to § 190 et seq. are to the now repealed provisions of the 1977 act.) Children 14 years of age or older are deemed “persons capable of committing crimes.” (Pen. Code, § 26.) It is, therefore, clear that the act was intended to apply to such persons, except as provided in the specified succeeding sections of that act to which I now refer.
Section 190.1 provided that “A case in which the death penalty may be imposed pursuant to this chapter shall be tried in separate phases,” namely, the guilt (including special circumstances), sanity and penalty phases. The penalty phase “shall be conducted in accordance with the provisions of Sections 190.3 and 190.4.” (§ 190.1, subd. (c).)
Section 190.2 recited that “The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in the state prison for life without possibility of parole in any case in which one or more . . . special circumstances has been charged and specially found, in a proceeding under Section 190.4, to be true: ...” (Italics added.) Thus, under the 1977 act, in any case where first degree murder is accompanied by the requisite special circumstances, the penalty shall be death or life imprisonment without parole. There is no provision whatever for a life-with-parole sentence in such a case.
Section 1903 repeated the foregoing limited choice of punishment alternatives, providing that “If the defendant has been found guilty of murder in the first degree and a special circumstance has been charged and found to be true, . .. the trier of fact shall determine whether the penalty shall be death or life imprisonment without possibility of parole.” (Italics added.) The section further listed the various factors to be considered by the trier of fact in making its penalty determination.
Section 190.4 set forth various procedures applicable during the guilt, sanity and penalty phases provided for in section 190.1. One of its provisions is noteworthy here: Under subdivision (a), if the jury finds the defendant guilty but fails to reach a unanimous verdict on the special circumstances charge, a new jury is selected to retry that issue. If the new jury likewise fails to reach a unanimous verdict, “the court shall dismiss the jury and impose a punishment of confinement in state prison for life.” (Italics added.) This provision represented the sole authorization under the 1977 act for imposing a sentence of life imprisonment with possibility of parole. Nowhere in the act is there any suggestion that a straight life sentence would be appropriate under any *834circumstance other than a failure to find the requisite special circumstance.
Finally, section 190.5 exempted two classes of offenders from the penalty of death: (1) persons under the age of 18 at the commission of the crime (subd. (a)), and (2) persons who were “principals” in the capital offense but were not personally present during its commission and did not “intentionally physically” aid or commit the acts causing death (subd. (b)). Subdivision (a) stated that “Notwithstanding any other provision of law, the death penalty shall not be imposed upon any person who is under the age of 18 years at the time of commission of the crime.” (Italics added.) Notably absent from subdivision (a) was any exemption from the mandatory alternative penalty (§§ 190.2, 190.3) of life imprisonment without possibility of parole.
Thus, briefly summarizing the pertinent aspects of the 1977 act, (1) “every person” found guilty of first degree murder shall suffer death, life imprisonment without possibility of parole, or life imprisonment with possibility of parole, “as provided” in the provisions of the act itself (§ 190); (2) where special circumstances are found to exist, the penalty shall be death or life imprisonment without possibility of parole (§§ 190.2, 190.3); (3) where special circumstances are not found, the penalty shall be life with possibility of parole (§ 190.4); and (4) persons under 18 when the offense was committed are exempt from the death penalty (§ 190.5). To me, the conclusion is simply inescapable that persons under 18 when the offense was committed are not exempt from a life-without-parole sentence; indeed, if they are convicted of first degree murder with special circumstances, they are automatically subject to that penalty. (Accord, People v. Superior Court (Reed) (1979) 98 Cal.App.3d 39, 44-49 [159 Cal.Rptr. 310].)
In the present case, defendant was found guilty of first degree murder with special circumstances, having molested, raped and strangled to death a 13-year-old girl. (See § 190.2, subd. (c)(3)(iii)-(iv).) The majority orders defendant’s sentence “reduced to life imprisonment, the only alternative sentence authorized by the applicable statute (Former § 190.)” (Ante, p. 832, italics added.) Yet as we have seen, a straight sentence of life imprisonment was “authorized” only where special circumstances were not found to exist (§ 190.4). Section 190 by itself did not “authorize” any penalty whatever, but merely referred to succeeding sections of the act for the determination of such penalty.
*835The majority likewise errs in its reliance upon section 190.1. Far from being a “cornerstone” of the act which “limits” its application to cases in which the death penalty may be imposed (ante, pp. 827-828), the section merely outlined the various phases of capital cases. Nothing in section 190.1 limited, or otherwise involved, the various penalties which are prescribed for first degree murder.
The majority’s recitation of legislative history is similarly unproductive (see ante, pp. 829-830), disclosing only an intent to exempt minors from the death penalty. That intent was made manifest, of course, by the adoption of section 190.5.
Finally, the majority expresses concern over “the anomalous requirement of a superfluous penalty hearing whenever a verdict of guilt with special circumstances is returned against a minor.” (Ante, p. 831.) The argument is a hollow one, based upon a patently false premise. Obviously, the sole purpose of the penalty hearing described in section 190.4 is to determine whether death or life without parole should be imposed. As minors such as defendant are exempt from the former penalty, the latter may be automatically imposed without the necessity of further hearing, with its “palpable waste of judicial resources.” (Ibid.)
Thus, the statutory scheme before us clearly authorized the imposition of life imprisonment without parole in the present case, subject to the Governor’s power to grant a pardon or commutation (Cal. Const., art. V, § 8; Pen. Code, § 4800 et seq.) in an appropriate case.
I would aifirm the judgment in its entirety.
Fainer, J.,* concurred.
Assigned by the Chairperson of the Judicial Council.