Although I concur in section 2 of the majority opinion, I write separately because I cannot as a matter of sound jurisprudence condone the use of dictum to uphold a now defunct death penalty statute. In using this method, the majority have insulated from review by the United States Supreme Court the decision of this court as to whether an individual will live or die.
The question as to the constitutionality of California’s former death penalty statute is one on which reasonable persons may differ. One of the difficulties encountered in any systematic analysis of this area is the lack of consistent application of the rules to the cases that have come before the United States Supreme Court. I submit it is not possible for anyone to say with any certainty what the higher court will do should it ultimately pass judgment on this statute. Whatever its ultimate determination, this court should not impede that review by deciding this fundamental question in dictum.
It is a settled principle that this court does “not reach constitutional questions unless absolutely required to do so to dispose of the matter before us.” (People v. Williams (1976) 16 Cal.3d 663, 667 [128 Cal.Rptr. 888, 547 P.2d 1000] and cases cited.) The wisdom of this time-honored rule of judicial restraint becomes evident when one considers the ever-present danger that the court may examine the challenged statute with less exactitude when an individual is to be granted relief on some other basis. The fact that this court attempted to file this case within 150 days of the certification of the record, in accord with the spirit of Penal *197Code section 190.6, only reinforced this tendency. Here then lies the real possibility for judicial oversight and faulty analysis.
The majority conpede that a decision on the constitutionality of former Penal Code section 190 et seq.1 is not necessary “to dispose of the matter before us.” (People v. Williams, supra, 16 Cal.3d at p. 667.) Appellant’s conviction has been reversed, and he has been granted a new trial. It is doubtful that the death penalty will ever be applied to the individual before us.
However, the majority feel compelled to reach out and express themselves on this issue. In so doing they violate not only honored tenets of judicial restraint but also sound principles of federalism. On a purely federal constitutional question, the majority have effectively protected their views from review. The United States Supreme Court, which is the proper body to ultimately resolve the issue of the constitutionality of California’s former death penalty statute, does not decide constitutional questions unless absolutely necessary to resolve a case. (See, e.g., Ashwander v. Tennessee Valley Authority (1936) 297 U.S. 288, 347 [80 L.Ed. 688, 711, 56 S.Ct. 466] (conc. opn. of Brandeis, J.).) Thus, even if the Supreme Court were to disagree with the majority’s view that former section 190 et seq. does not violate the Eighth Amendment, the majority’s error would nevertheless stand because the high court does not grant certiorari merely to correct dictum.
Is it fair or sound jurisprudence to decide the constitutionality of California’s former death penalty statute in the abstract? Is it fair or sound procedure to decide this issue of life or death without an individual before this court who has been validly convicted of first degree murder and who faces death at the hands of the state if the statutory scheme is upheld? I submit it is not.
The citizens of this state and the trial courts are entitled to “know whether they have a valid death penalty.” (Maj. opn., ante, p. 172.) However, the majority’s advisory opinion will not settle this important question. Further, under the rules of appellate review, the majority’s view is not binding authority even on this court since reaching the constitution- . 1 issue was unnecessary to today’s judgment. (See, e.g., Simmons v. Superior Court (1959) 52 Cal.2d 373, 378 [341 P.2d 13]; Childers v. Childers (1946) 74 Cal.App.2d 56, 62 [168 P.2d 218].) In other words, any *198other case that might come before this court raising this issue could be the vehicle for declaring the statute unconstitutional without transgressing the principles of stare decisis.
Finally, today’s decision will not determine whether there is a “valid death penalty” in this state since the statute under scrutiny here is no longer in effect, having been repealed by the people in November 1978. There are many other cases before this court on automatic appeal from sentences of death under former section 190 et seq. I would follow the respected tradition of judicial restraint and defer all discussion of the constitutional issues until a resolution is necessary to the disposition of a case.
Consider the following issues that the majority opinion decides in dictum.
1. Proportionality review is necessary under the United States Constitution to uphold a death penalty statute.
2. Proportionality review may be read into California’s former death penalty statute even though the Legislature specifically and intentionally left this requirement out of the statute.
3. A new definition of proportionality review is carved out and is nothing more than a restatement of case law interpreting the Eighth Amendment as it applies to all sentences, not merely those involving the death penalty.
4. A finding is made that discretion of the sentencing authority has been “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action” under Gregg v. Georgia (1976) 428 U.S. 153, 189 [49 L.Ed.2d 859, 883, 96 S.Ct. 2909], even though under the former California statute (a) the jury is not required at the penalty phase to make any special finding that one of the aggravating factors exists beyond a reasonable doubt or even by a preponderance of the evidence, and (b) there is no method by which an appellate court can determine the basis on which the jury determined that this particular individual should be put to death.
This court has no business deciding these fundamental questions in dictum, however one would resolve them. No matter how clamorous the movement of the moment, “[t]he right to be free of cruel and unusual *199punishments, like the other guarantees of the Bill of Rights, ‘may not be submitted to vote [and depends] on the outcome of no election.’ ” (Furman v. Georgia (1972) 408 U.S. 238, 268 [33 L.Ed.2d 346, 366, 92 S.Ct. 2726] (conc. opn. of Brennan, J.).) That right should not be resolved in a context where the issue of an individual’s life or death is not squarely before us. Neither the principle of judicial restraint nor the concept of essential fairness is well served by such a rush to judgment.
All statutory references hereinafter are to the Penal Code.