I concur in the majority opinion to the extent that it affirms defendant’s conviction of first degree murder, attempted murder and robbery. I respectfully dissent, however, from the majority’s reversal as to penalty.
Under the 1978 death penalty law, the trial courts are required to inform the jury at the penalty phase that a sentence of life imprisonment without possibility of parole subsequently may be commuted or modified by the Governor. The majority concedes that this instruction correctly states the law. It finds, however, that the instruction violates defendant’s due process rights. This holding will require the reversal of every death sentence heretofore imposed in those jury trials which have been conducted under the 1978 law, assuming, as we must, that the trial court followed the mandate of that law and gave the requisite instruction. Scores of capital cases will face retrial. (Approximately 90 judgments of death have been filed with this court subsequent to the enactment of the 1978 law at issue here.) I respectfully suggest that only if a constitutional defect clearly and unmistakably appears should we require such a colossal reexpenditure of judicial resources. No such defect is involved here.
As we recently observed, the death penalty laws, as with all legislation, are presumed constitutional and will be upheld unless their invalidity “clearly, positively and unmistakably” appears. (People v. Jackson (1980) 28 Cal.3d 264, 317 [168 Cal.Rptr. 603, 618 P.2d 149]; see In re Dennis M. (1969) 70 Cal.2d 444, 453 [75 Cal.Rptr. 1, 450 P.2d 296].) In similar fashion, in appraising the constitutionality of initiative measures such as the 1978 death penalty law, we should resolve all doubts in favor of the use of the initiative process if we can reasonably do so. (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 248 [149 Cal.Rptr. 239, 583 P.2d 1281].) Significantly, the majority cites no cases whatever which suggest that it would be unconstitutional to instruct the jurors in a capital *603case regarding the Governor’s commutation power. Indeed, as discussed below, most cases acknowledge the self-evident fact that the Governor’s authority to commute or reduce a criminal sentence is a matter of common knowledge. That being so, the giving of the challenged instruction must be considered harmless and nonprejudicial.
The majority first criticizes the instruction on the basis that it induces the jury to “speculate” regarding irrelevant penalty factors. (Ante, p. 596.) To the contrary, the instruction is purely informational, explaining to those jurors who might otherwise be misled that a sentence denominated “life imprisonment without possibility of parole” is nonetheless subject to possible commutation by the Governor. (See Summers v. State (1970) 86 Nev. 210 [467 P.2d 98, 100], approving a similar informational instruction.) Clearly, the instruction does not advise or encourage the jury to reach its verdict in reliance upon this information. Indeed, the jury is separately instructed regarding the sole and limited factors which are to be considered and weighed in determining the proper penalty; the Governor’s commutation power is not included among these factors. (See Pen. Code, § 190.3, subds. (a)-(k).)
Moreover, even if the instruction did advise the jury to consider the commutation power in making its determination, on what proper basis could such an instruction be deemed unconstitutional? It is true that some prior cases have suggested that the consideration of the possibility of subsequent administrative grants of parole raises an extrinsic factor which might confuse the jury or diminish its sense of responsibility. (E.g., People v. Morse (1964) 60 Cal.2d 631, 643, 652-653 [76 Cal. Rptr. 391, 452 P.2d 607].) Yet unlike the situation in those cases, here the issue of parole is necessarily presented to the jurors by the very language of the alternative punishment being considered by them, namely, “life without possibility of parole.” (Pen. Code, § 190.) Moreover, Morse involved no statute which mandated the giving of such instruction, and its holding appears to rest not on constitutional grounds but upon this court’s inherent power to supervise the lower courts in the absence of contrary legislation. Surely, the people of this state, who are the ultimate sovereign, in adopting legislation of this kind by initiative, are entitled to disagree with and override our view of the relevance of information which might be of concern to the jurors in a capital case.
The majority suggests, however, that the instruction mandated by the 1978 law is incomplete in its failure to advise the jury that the Governor may commute a sentence of death as well as a sentence of life *604without possibility of parole. It is difficult to understand how or why a defendant would ever desire such an instruction, which could only lead the jurors to minimize the seriousness and severity of the death penalty as a choice of punishment. Indeed, in Morse, supra, we expressly disapproved a similar instruction, on the basis that it “may very well induce the jury to assume that its finding for the death penalty merely initiates a series of procedures which invoke a reconsideration of the penalty and which may result in its reduction to life imprisonment. [¶] ... The impact of the instruction must necessarily weaken the jury’s own sense of responsibility.” (60 Cal.2d at p. 649, italics added.)
Incredibly, the majority now invalidates the 1978 death penalty law for its failure to require an instruction of a type condemned by us in Morse. Such a capricious conclusion makes no sense.
The majority insists, however, that the challenged instruction tells the jurors only “half the story,” implying thereby that a death sentence is “the only way to be sure that the defendant is never again let loose upon society to repeat his vicious crime.” (Ante, p. 597.) Assuming for purposes of argument that some jurors may exist who base their penalty decision upon such factors, it is highly unlikely that any such jurors would choose the lesser penalty upon being advised of the Governor’s power to commute a death sentence. Thus, from the defendant’s standpoint, no tactical reason whatever exists for requesting an instruction on that issue.
Finally, as many of the cases make clear, it is likely that most jurors already know of the Governor’s commutation power. Several courts have recognized that the availability of parole and commutation in capital cases is readily understood among lay persons. (See State v. Carroll (1937) 52 Wyo. 29 [69 P.2d 542, 560); State v. Cherry (1979) 298 N.C. 86 [257 S.E.2d 551, 561]; Grandsinger v. State (1955) 161 Neb. 419 [73 N.W.2d 632, 651], cert. den. 352 U.S. 880 [1 L.Ed.2d 81, 77 S.Ct. 104]; Paramore v. State (Fla. 1969) 229 So.2d 855, 860; Sullivan v. State (1936) 47 Ariz. 224 [55 P.2d 312, 318-319].) Cherry involved juror discussion and consideration of the possibility of subsequent parole by administrative bodies. The North Carolina Supreme Court noted; “We see little prejudice to defendant since the possibility of parole or executive clemency is a matter of common knowledge among most adult persons.” (P. 561, italics added.) The same conclusion was expressed more forcibly by the Nebraska Supreme Court in Grand-singer, another capital case, wherein the court observed that the *605prosecutor’s comments regarding the availability of pardon or parole “was simply a statement of existing ... law which all men, including the jurors, were presumed to know and doubtless did already know about before the statement was made.” (P. 651.) The Grandsinger court concluded that “It would be a perversion of truth and justice” to hold that the prosecutor’s comments required reversal of the death penalty rendered in that case. (Ibid.)
In the present case, the majority’s reversal of the judgment as to penalty is similarly improper, resting as it does upon a highly unlikely chain of speculation that some jurors were (1) previously unaware of the full extent of the Governor’s commutation powers and (2) chose the death penalty only after learning that the Governor may commute a sentence of life imprisonment without possibility of parole. Given the jurors’ probable prior knowledge, such a circumstance, in my view, would be highly unlikely.
In sum, the people of this state by adopting the 1978 death penalty initiative have determined that, although probably widely known, the jurors in capital cases nonetheless should be informed of the Governor’s power to commute a sentence of life imprisonment without possibility of parole. The majority’s contrary views as to the wisdom of such an instruction afford no basis for declaring the law, established by the people’s initiative, unconstitutional.
I would affirm the judgment in its entirety.
Respondent’s petition for a rehearing was denied February 24, 1982, and the opinion was modified to read as printed above. Richardson, J., was of the opinion that the petition should be granted.