concurring in part and dissenting in part:
I concur in the judgment of the court affirming the verdict of guilty and join Justice Vollack’s dissent as to the penalty phase. Because I would uphold the jury’s verdict of death, I write separately on the question of whether Colorado’s death pqp-alty statute is constitutional in order to more specifically address the constitutional arguments made by the defendant.
I.
The defendant contends that the death penalty statute violates due process and constitutes cruel and unusual punishment. Colo. Const, art. II, §§ 20, 25. He further contends that section 16-11-103(5), 8 C.R.S. (1978), is impermissibly vague and ambiguous and thus fails to meet the minimal requirements of certainty and clarity mandated by due process of law. He also argues that section 16-11-103(4), 8 C.R.S. (1979 Supp.), violates due process of law because it does not require the prosecution to disprove mitigating circumstances beyond a reasonable doubt.
A.
The modern era of death penalty legislation and adjudication began in 1972 when the United States Supreme Court, in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), held that the Georgia death penalty statute violated the eighth and fourteenth amendments to the United States Constitution. The five Justices supporting this conclusion each wrote a separate opinion explaining his views. A reading of these opinions indicated the death penalty was not unconstitutional per se, but, rather, the manner in which the death sentence was being imposed was impermissible.
*1261As a result of Furman, the legislatures of thirty-five states, including Colorado, and the Congress of the United States enacted or reenacted legislation which permitted the death penalty to be imposed. See Gregg v. Georgia, 428 U.S. 153, 179 nn. 23-24, 96 S.Ct. 2909, 2928 nn. 23-24, 49 L.Ed.2d 859 (1976). The Colorado legislature adopted a statute, subsequently approved by a vote of the people, which required the fact finder to consider aggravating and mitigating factors as a basis for arriving at a decision as to what penalty should be imposed in a first-degree murder case. Ch. 52, sec. 4, § 16-11-103, 1974 Colo.Sess.Laws 251, 252.1
In 1976, the Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed. 2d 928 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed. 2d 944 (1976); and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), considered the constitutionality of the death penalty procedure in those five states. In Gregg, which was the lead case, the Court was again divided, but it was on the approach authored collectively by Justices Stewart, Powell, and Stevens that the result in each case turned.2
From this collective opinion, it is evident that: the sentence of death for the crime of murder is not a per se violation of the eighth and fourteenth amendments to the Constitution; an assessment of contemporary values concerning the death penalty is relevant to the application of the eighth amendment; and a penalty must accord with the dignity of man which is a basic concept underlying the eighth amendment.
The Justices also stated that the requirements of the eighth amendment must be applied with an awareness of the limited role to Be played by the courts, and,
[Tjherefore, in assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity_ And a heavy burden rests on those who would attack the judgment of the representatives of the people.... “[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.”
Gregg at 175, 96 S.Ct. at 2926.
The plurality opinion concluded that the death penalty is not a form of punishment that may never be imposed, but to the contrary took the position that such a penalty was permissible if the statute set standards to guide and control the exercise of discretion by the sentencing authority. Further, a procedure should be adopted by which the fact finder could consider the circumstances of the crime and the character and situation of the defendant.
Subsequent to the adoption of the Colorado statute, the Court decided Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), which mandated that the eighth and fourteenth amendments of the United States Constitution require that the fact finder must: “not be precluded *1262from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett at 604, 98 S.Ct. at 2964 (emphasis in original) (footnotes omitted).
In People v. District Court, 196 Colo. 401, 686 P.2d 31 (1978), we found that the 1974 statute, section 16-11-103, 8 C.R.S. (1976 Supp.), “violates the constitutional commandment now set forth in the Lockett case because it does not allow the sentencing entity — in these cases, the jury — to hear all the relevant facts relating to the character and record of the individual offender or the circumstances of the particular case.” 196 Colo, at 405, 586 P.2d at 34.3
The legislature again lent its efforts to enact a death penalty statute that would withstand constitutional scrutiny. In 1979, the statute was amended to add section 16-11-103(5.1), which authorized the fact finder to consider, in addition to certain statutory mitigating factors, “any other factors bearing on the question of mitigation.” Ch. 158, sec. 1, § 16-11-103, 1979 Colo.Sess.Laws 673, 674.
The Colorado death penalty statute under which the defendant was sentenced, section 16-11-103, 8 C.R.S. (1978 & 1979 Supp.), was, except for the addition of subsection 5.1, substantially the same statute which the citizens of this state approved in 1974.
B.
Despite this strong evidence of the will of the citizens of this state to have a death penalty statute, the defendant argues that the death penalty is offensive to Colorado’s contemporary standards of decency and therefore constitutes cruel and unusual punishment under art. II, § 20, of the Colorado Constitution, which provides that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”4
The “standards of decency” argument is based on the premise that standards of decency have evolved to the point where the state should not engage in the act of killing a human being regardless of the crime committed. The proponents of this thesis argue that capital punishment is so dehumanizing on the society which imposes the death penalty and the person upon whom it is inflicted that it is no longer a viable alternative in a civilized society.5
The defendant urges us to follow the lead of the California Supreme Court in People v. Anderson, 6 Cal.3d 628, 493 P.2d 880, 100 Cal.Rptr. 152 (1972), and the Massachusetts Supreme Judicial Court in Dis*1263trict Attorney for Suffolk District v. Watson, 381 Mass. 648, 411 N.E.2d 1274 (1980). In those cases, the respective courts adopted the “standard of decency” argument and held the death penalty statute unconstitutional under their respective state constitutions.
Whatever the strength and weakness of these decisions, later events clearly established that they did not represent the views of the people of those states.
Anderson was decided in February 1972. In November 1972, the people of California responded by adopting, through initiative, a constitutional amendment which provided that the death penalty shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishment under the California Constitution. Cal. Const, art. I, § 7, adopted Nov. 7, 1972. Within two years of the Watson decision, the citizens of Massachusetts approved a constitutional amendment effectively overruling Watson; the legislature reenacted the death penalty six weeks later. See Commonwealth v. Colon-Cruz, 393 Mass. 150, 470 N.E.2d 116, 117-18 (1984).
The citizens of Colorado, directly and through their elected representatives, have repeatedly declared their support of the death penalty. They have expressed the values of the community. Since contemporary community values are the test, their view must be accepted as the standard by which to measure a claim that the death penalty is offensive to contemporary standards of decency in Colorado.
Despite the continuing debate in all segments of society over the morality and desirability of capital punishment, it is now patently clear that a substantial majority of our society regards it as an appropriate sanction. See Spaziano v. Florida, 468 U.S. 447 at 463-64 n. 9, 104 S.Ct. 3154 at 3164 n. 9, 82 L.Ed.2d 340 (1984) (in 1984, 37 states had a capital sentencing statute).
The defendant offers no basis to reject the expressed will of the people and the legislature other than to suggest that the steady decrease in the number of executions in Colorado6 “persuasively demonstrates that capital punishment is unacceptable today.” In effect, the defendant suggests that because the state has not executed anyone in the past twenty-one years, the citizens of this state in reality do not want a death penalty statute regardless of how they or their elected representatives vote.
From 1967 to 1972, when Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), was decided, a de facto moratorium had existed while cases challenging the procedures for implementing the death penalty were being reexamined by the United States Supreme Court. In Colorado, the legislative effort to adopt a constitutional death penalty statute was rejected by this court in People v. District Court, 196 Colo. 401, 586 P.2d 31 (1978), because the statute did not allow the sentencing entity to hear all the relevant facts relating to the character and record of the offender or the circumstances of the case contrary to Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). At the legislative session immediately following our decision, the legislature amended the death penalty statute in an effort to remedy the defects we had pointed out in District Court; ch. 158, sec. 1, § 16-11-103, 1979 Colo.Sess.Laws 673-75.7
These repeated reenactments of the death penalty statute indicate that it is not the legislature’s desire for a death penalty statute which has been lacking in recent years, but, rather, it is their ability to draft one that complies with constitutional standards which has been deficient. In addition, as the New Jersey Supreme Court said in response to this same argument, *1264“the lack of executions may have had more to do with judicial standards than with community standards.” State v. Ramseur, 106 N.J. 123, 524 A.2d 188, 212 (1987). I believe that it is correct to say today, as this court said seventy-eight years ago, “If capital punishment is to be abolished, the remedy lies with the legislative branch of the state government.” Demato v. People, 49 Colo. 147, 150, 111 P. 703, 704 (1910). Accordingly, I am of the opinion that Colorado’s death penalty statute does not violate our state constitutional prohibition against cruel and unusual punishment.
C.
The defendant contends that even if the death penalty furthered some valid purposes it serves no legitimate purpose more effectively than imprisonment. In support of this argument, he notes that the legislature has articulated four purposes of its sentencing provisions: to punish by assuring the imposition of a sentence relative to the seriousness of the offense; fair and consistent treatment by eliminating unjustified disparity in sentences; deterrence; and rehabilitation. § 18-1-102.5, 8B C.R.S. (1986).
He claims that of these four purposes two are actually frustrated by the death penalty. Execution presents an ultimate obstacle to the rehabilitation that could otherwise be effected, and the death penalty magnifies disparities through its arbitrary and selective imposition.
I agree that the purpose of rehabilitation is frustrated by the death penalty. However, rehabilitation is only one of four stated purposes — punishment and deterrence are also to be weighed in the balance. People v. Watkins, 200 Colo. 163, 613 P.2d 633 (1980). The defendant’s arbitrary imposition argument is grounded on his claim that the selection of those persons who suffer the death penalty remains arbitrary despite the legislature’s attempts to limit the jury’s discretion. In support of his argument, he steps outside of the record to inform us that his brother James, who he claims actually killed Regina Drake, was convicted in a separate trial of accessory to murder in the first degree and received an eight-year sentence.8
The defendant’s argument has been previously rejected for sound reasons, and I reject it here. There can be little doubt that there is no requirement that all persons involved in the same crime receive the same penalty. People v. Brubaker, 189 Colo. 219, 539 P.2d 1277 (1975) (no requirement that coconspirators receive same sentence); Antone v. Strickland, 706 F.2d 1534 (11th Cir.), cert. denied, 464 U.S. 1003, 104 S.Ct. 511, 78 L.Ed.2d 699 (1983), cert. denied and stay of execution denied, sub nom. Antone v. Dugger, 465 U.S. 200, 104 S.Ct. 962, 79 L.Ed.2d 147 (1984); see Ross v. Kemp, 756 F.2d 1483 (11th Cir.1975).
The substance of defendant’s argument is that since prosecutors have discretion to initiate death penalty cases their unbridled exercise of that discretion is violative of his constitutional rights to due process of law. Colo. Const, art. II, § 25,.
*1265In Gregg, this argument was considered and rejected. The plurality opinion observed that:
The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant.
Gregg at 199, 96 S.Ct. at 2937. See also Gregg at 199-200 n. 50, 96 S.Ct. at 2937-38.
A concurring opinion also addressed the issue of prosecutorial discretion as follows:
Petitioner’s argument that prosecutors behave in a standardless fashion in deciding which cases to try as capital felonies is unsupported by any facts. Petitioner simply asserts that since prosecutors have the power not to charge capital felonies they will exercise that power in a standardless fashion. This is untenable. Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength' of their case and the likelihood that a jury would impose the death penalty if it convicts. Unless prosecutors are incompetent in their judgments, the standards by which they decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence. Thus defendants will escape the death penalty through prosecutorial charging decisions only because the offense is not sufficiently serious; or because the proof is insufficiently strong. This does not cause the system to be standardless any more than the jury’s decision to impose life imprisonment on a defendant whose crime is deemed insufficiently serious or its decision to acquit someone who is probably guilty but whose guilt is not established beyond a reasonable doubt.
Gregg, 428 U.S. at 225, 96 S.Ct. at 2949 (White, J., concurring).
I also reject the defendant’s argument for another reason. Section 16-11-103(7)(b), 8 C.R.S. (1979 Supp.), requires that a sentence of death shall not be imposed if “the supreme court determines that the sentence was imposed under the influence of passion or prejudice or any other arbitrary factor....”
Based on the record here, I do not believe that the decision of the prosecutor to seek the death penalty against the defendant alone reflects an arbitrary act. Such a decision is one which is invested in the district attorney, and absent evidence of an irrational or discriminatory application of that discretion, the defendant’s argument has no validity. People v. Hernandez, 686 P.2d 1325 (Colo.1984); People v. Lewis, 680 P.2d 226 (Colo.1984); Sandoval v. Farish, 675 P.2d 300 (Colo.1984).
D.
The defendant contends that the death penalty is unconstitutionally cruel and unusual punishment and violates due process because the state has failed to show that it is the least drastic means available to fulfill any compelling state interest. His argument is grounded on the premise that there is no evidence that the death penalty “enjoys a superior deterrent effect” and the public can be protected by means other than execution.
The deterrent effect of the death penalty has been hotly debated, and statistical attempts to evaluate the worth of the death *1266penalty as a deterrent have been inconclusive. Gregg, 428 U.S. at 184-85, 96 S.Ct. at 2930. In resolving the issue raised by the defendant, I am guided by the basic principle that it is the legislature which has the responsibility to define crimes and establish the appropriate punishments. Only if constitutional bounds are overreached should we exercise our power to find unconstitutional such punishments. Id. at 174-75, 96 S.Ct. at 2926.
The legislative determination that the death penalty is warranted under certain circumstances is entitled to the presumption that its acts are constitutional and a heavy burden rests on those who would attack its judgment. Gregg at 175, 96 S.Ct. at 2926. See also People v. Jackson, 28 Cal.3d 86, 618 P.2d 149, 168 Cal.Rptr. 603 (1980) (death penalty laws are presumed constitutional); In re Anderson, 69 Cal.2d 613, 447 P.2d 117, 73 Cal.Rptr. 21 (1968).
Here, the legislature has concluded that the death penalty is within the purposes which have been established for sentencing under the Colorado Criminal Code. § 18-1-102.5, 8 C.R.S. (1979 Supp.). Among these purposes are retribution (punishment) and deterrence.
Retribution constitutes a valid penological objective for the death penalty. It is not a forbidden objective nor one inconsistent with our respect for the dignity of men. Gregg, 428 U.S. at 183, 96 S.Ct. at 2930. Deterrence is also a permissible purpose and whether the death penalty deters murder is a question most appropriately weighed and considered by the legislature. I believe that the legislature could find that it does just as it could find that it does not. Since the legislature is best equipped to evaluate “the moral consensus concerning the death penalty and its social utility as a sanction,” Gregg, 428 U.S. at 187, 96 S.Ct. at 2931,1 conclude that the Colorado death penalty statute does not violate the defendant’s due process rights nor is cruel and unusual punishment under the United States or Colorado Constitutions.
E.
The defendant contends that four of the five mitigating factors set forth in section 16-11-103(5), 8 C.R.S. (1979 Supp.), are couched in language which is “impermissi-bly vague, unclear and ambiguous and fail to meet the minimal requirements of certainty and clarity of due process of law....”
The challenged portion of the statute reads:
(5) The court shall not impose the sentence of death on the defendant if the sentencing hearing results in a verdict or finding that at the time of the offense:
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(b) His capacity to appreciate wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution; or
(c) He was under unusual and substantial duress, although not such duress as to constitute a defense to prosecution; or
(d) He was a principal in the offense, which was committed by another, but his participation was relatively minor, although not so minor as to constitute a defense to prosecution; or
(e) He could not reasonably have foreseen that his conduct in the course of the commission of the offense for which he was convicted would cause, or would create a grave risk of causing, death to another person.
The critical focus in a vagueness challenge is whether the law “either forbids or requires the doing of an act in terms so vague that men of ordinary intelligence must necessarily guess as to its meaning and differ as to its application.” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Due process does not require “mathematical exactitude in legislative draftsmanship.” E.g., People ex rel. City of Arvada v. Nissen, 650 P.2d 547, 550 (Colo.1982).
We also observed in People v. Schoon-dermark, 699 P.2d 411, 415 (Colo.1985), that the “Due Process Clauses also seek to limit arbitrary and discriminatory enforce*1267ment of laws by requiring sufficiently clear and defined standards which are capable of fair application by police, prosecutors, judges, and juries.” See also Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).
The defendant contends that the quoted provisions of the statute do not meet these standards because they fail to give him and the jury adequate notice of the type of conduct that will subject him to, or exclude him from, the death penalty. He also complains that the description of conduct which constitutes mitigating circumstances becomes even more ambiguous when qualified by the requirement that such conduct does not need to constitute a defense to prosecution. I disagree.
The type of conduct referred to in subsections 5(b) through (e), capacity to appreciate wrongfulness of conduct, duress, minor participation and creating a grave risk of death, are set out in words that are common and easily understood by persons familiar with the English language. The words can be understood in light of the duty of the fact finder to consider whether the defendant’s conduct comes within their meaning.
The term “as to constitute a defense to prosecution” is also sufficiently clear and understandable. This statutory language, enacted for the benefit of a person who is potentially subject to the death penalty, makes it possible for the fact finder to find that a defense rejected on the merits at the guilt phase of the trial may nevertheless warrant sentencing leniency.
In Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), the petitioner argued that the statutory mitigating factors in the Florida death statute were vague because whether a defendant acted “under the influence of extreme mental or emotional disturbance,” whether defendant’s capacity “to conform his conduct to the requirements of law was substantially impaired,” or whether a defendant’s participation as an accomplice was “relatively minor” are questions beyond the capacity of a judge or jury to determine.
In response to this argument, the Court said:
While these questions and decisions may be hard, they require no more line drawing than is commonly required of a fact finder in a law suit. For example, juries have traditionally evaluated the validity of defenses such as insanity or reduced capacity, both of which involve the same considerations as some of the above-mentioned mitigating circumstances.
Proffitt at 257-58, 96 S.Ct. at 2969.
F.
The defendant’s final argument concerning the constitutionality of the death penalty statute is that the failure to require the prosecution to disprove the existence of the mitigating and additional mitigating factors set forth in section 16-11-103(5) and (5.1), 8 C.R.S. (1978 & 1979 Supp.), beyond a reasonable doubt violates due process of law.
Section 16-11-103(3), 8 C.R.S. (1979 Supp.), requires that the prosecution prove the existence of aggravating circumstances beyond a reasonable doubt. However, the statute is silent as to what the burden of proof is, and who bears it, in establishing whether or not mitigating factors exist.9
In considering whether the due process clause of the United States Constitution requires the prosecution to disprove the existence of statutory mitigating factors, the United States Supreme Court has stated that “the Constitution does not require a State to adopt specific standards for instructing the jury in consideration of aggravating and mitigating circumstanc-es_” Zant v. Stephens, 462 U.S. 862, *1268890, 103 S.Ct. 2733, 2750, 27 L.Ed.2d 235 (1983); see also Patterson v. New York, 432 U.S. 197, 207-209, 97 S.Ct. 2319, 2325-26, 53 L.Ed.2d 281 (1977) (state statute requiring the defendant to prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance upheld against a federal due process challenge; “it would not necessarily follow that a State must prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of punishment.... If the State nevertheless chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may assure itself that the fact has been established with reasonable certainty. To recognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue, if in its judgment, this would be too cum-
bersome, too expensive, and too inaccurate.”). State and lower federal courts which have examined the issue have reached the same result.10 Though the rationales for these holdings are not always identical, two major themes emerge. The first, and most important, is the differing purposes of the guilt phase and penalty phase of a trial. At the guilt phase, the purpose is to determine whether the defendant is guilty of committing the crime charged. It is elementary that the state must prove all elements of the offense charged beyond a reasonable doubt.
At the penalty phase, however, the issue is whether the death sentence is appropriate. In California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), the Court stated:
More to the point, however, is the fundamental difference between the nature of the guilt/innocence determination at *1269issue in Beck [v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)] and the nature of the life/death choice at the penalty phase. As noted above, the Court in Beck identified the chief vice of Alabama’s failure to provide a lesser included offense option as deflecting the jury’s attention from ‘the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime.’ In returning a conviction, the jury must satisfy itself that the necessary elements of the particular crime have been proved beyond a reasonable doubt. In fixing a penalty, however, there is no similar ‘central issue’ from which the jury’s attention may be diverted. Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty ... the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment.
Ramos at 1007-08, 103 S.Ct. at 3457 (emphasis added) (citation and footnote omitted).
Simply put, once a defendant has been found guilty of a capital crime and aggravating circumstances have been proven beyond a reasonable doubt, the state has made its case for death. Requiring that the defendant then show mitigating circumstances exist does not violate due process.11
The second rationale that can be gleaned from the numerous cases cited in footnote 10 is that the burden on the state of proving beyond a reasonable doubt that no mitigating circumstances exist is virtually impossible to meet. Aside from the difficulty of proving the absence of a condition in general, see People v. Y.D.M., 197 Colo. 403, 593 P.2d 1356 (1979) (permissible to place burden on defendant to show excuse when investigation by the People might unearth no evidence), the factors that serve as mitigators tend to be facts within the defendant’s scope of knowledge. State v. Smith, 125 Ariz. 412, 610 P.2d 46 (1980); State v. Pierre, 572 P.2d 1338 (Utah 1977), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978); cf. People v. Y.D.M., 197 Colo. at 409, 593 P.2d at 1360 (“it is not manifestly unfair to place on the child the burden to show her absences from school were excused, for the facts which prove or disprove a claimed excuse are uniquely within the knowledge of the child_”).
The factors which allow for mitigation under section 16-11-103(5.1) include, inter alia, the influence of drugs or alcohol, the good faith — although mistaken — belief by the defendant that his actions were morally justified, and that the defendant is not a continuing threat to society. It would be impossible as a practical matter, for example, for the state to disprove beyond a reasonable doubt that the defendant did not have a good faith belief that his actions were morally justified.
Further, section 16-ll-103(5.1)(h) provides that the defendant can submit any evidence which may bear on the question of mitigation. This broad “catchall” category allows the defendant to present a wide variety of evidence, much of it totally beyond the possibility of rebuttal, much less disproof beyond a reasonable doubt.
For example, the defendant called several witnesses to testify on his behalf at the penalty phase of the trial. One witness testified that he believed the defendant was a born-again Christian and did not represent a continuing threat to society; another testified that the defendant was his friend and still had something useful to contribute to society; another testified that she was of the opinion the defendant had come to realize that God exists; a fourth was of the opinion that the defendant loves people and Christ and there is still something positive *1270that he could do with his life; and finally, the pastor of the Adventist church was of the opinion that the defendant seemed sincere and wanted to make something of his spiritual life.
All these witnesses gave testimony to support mitigation — and none of it is susceptible to being refuted. Their testimony reflects, in varying degrees, ethical, moral, and religious principles which are at the very core of their lives. Those principles are not subject to being disproved in a court of law.
Accordingly, I am of the opinion that the defendant’s due process rights to being convicted only by proof beyond a reasonable doubt are not affected by the legislature’s decision not to require the People to disprove mitigating factors at the sentencing stage.
Because I am convinced that the conviction and death sentence of the defendant does not violate the United States Constitution or the Constitution of the State of Colorado, I would affirm both the judgment of conviction and the sentence.
. Senate Bill 46 required that it was to be submitted to a vote of the qualified electors at the November 1974 general election for their approval or rejection. The proposition was to be couched in the following language: "Shall the death penalty be imposed upon persons convicted of class I felonies where certain mitigating circumstances are not present and certain aggravating circumstances are present?" The vote was 451,403 to 286,805 in favor of adoption. Ch. 52, sec. 6, 1974 Colo.Sess.Laws 251, 254.
In 1966, a similar referendum was held. On the proposition, "Shall capital punishment be abolished?” the vote was 380,709 against and 193,245 in favor. Accordingly, capital punishment was not abolished. Ch. 132, secs. 1 & 3, 1965 Colo.Sess.Laws 507, 508.
. In Gregg and the associated cases, the Court upheld the discretionary death penalty statutes of Georgia, Florida, and Texas and struck down the mandatory laws of North Carolina and Louisiana. I believe it correct to assume that the plurality opinion signed by Justices Stewart, Powell, and Stevens represents the majority view of the Court since four other members of the Court would have upheld even the mandatory statutes.
. In People v. District Court, we expressed no opinion about the limits of punishment imposed by art. II, § 20, of the Colorado Constitution.
. The history of the prohibition of "cruel and unusual" punishment as it relates to the eighth amendment was extensively reviewed in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and again in Gregg v. Georgia, 428 U.S. at 169, 96 S.Ct. at 2923. The Colorado constitutional prohibition against "cruel and unusual" punishments was adopted in 1876 at a time when capital punishment was common in most states. Even as a territory, Colorado had a death penalty. General Laws Ch. XXII Criminal Code p. 198, sec. 20 (1868). The first legislature enacted legislation providing death as the penalty for specified crimes. General Laws XXIV, Div. IV, sec. 615 Criminal Code (1877).
Early decisions of this court upheld the imposition of the death penalty. See Smith v. People, 1 Colo. 121 (1869) (affirming conviction for murder; sentence of death mandatory); cf. Hill v. People, 1 Colo. 436 (1872) (reversing death penalty due to shifting to defendant burden to show lack of intent). In short, the imposition of the death penalty has a long history of acceptance in Colorado.
.The "standard of decency" argument was one of the primary arguments relied on by the defendants in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). It was rejected by a majority of the Court. Renewed in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), it was again rejected with the observation by Justices Stewart, Powell, and Stevens that, "it is now evident that a large proportion of American society continues to regard it [capital punishment] as an appropriate and necessary criminal sanction.” Gregg at 179, 96 S.Ct. at 2928.
. The defendant points out that executions in Colorado have decreased from seven in 1930 (25 between 1930-1939) to one in 1967, and none since.
. In 1984 and 1985, the legislature amended the death penalty statute. Ch. 120, secs. 1-8, 1984 Colo.Sess.Laws 491-96; ch. 145, sec. 8, 1985 Colo.Sess.Laws 647, 653-54. See also footnote 1 and accompanying text.
. In People v. District Court, 711 P.2d 666 (1985), the People sought relief in the nature of mandamus in connection with the respondent court's refusal to impose a life sentence on James Drake. There, James Drake had been charged with the first-degree murder of Regina Drake and habitual criminality. James Drake testified that Richard Drake killed the victim and he had only assisted Richard in hiding some bloody items and making a phone call to establish an alibi for Richard. James Drake requested an instruction on the lesser non-included offense of accessory to murder in the first degree. The jury returned a not guilty verdict to the charge of murder and a guilty verdict to accessory to murder. The jury also returned a verdict finding James Drake had previously been convicted of three felonies.
The trial court, believing that it could not impose a life sentence on James Drake because he had not been found guilty of the crime charged in the information, sentenced James Drake to seven years and eight months plus one year of parole. We reversed, holding that when a verdict of guilty to a lesser non-included felony is followed by a verdict that the defendant has been convicted previously of three felonies, section 16-13-101(2), 8 C.R.S. (1985 Supp.), mandates the imposition of a sentence to life imprisonment.
. This silence was expressly noted by this court in People v. Durre, 690 P.2d 165, 168 n. 8 (Colo. 1984). Later in 1984, the legislature amended section 16-1 l-103(l)(d), 8A C.R.S. (1986), to provide that "there shall be no burden of proof as to proving or disproving of mitigating factors." Ch. 120, sec. 1, § 16-11-103, 1984 Colo.Sess.Laws 491, 492.
. Gray v. Lucas, 677 F.2d 1086 (5th Cir.1982) (scheme requiring jurors to find the existence of aggravating circumstances beyond a reasonable doubt, and then weigh those factors against mitigating factors, upheld as facially valid), cert. denied, 461 U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 815 (1983); State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978) (when the issue of guilt has been settled, to require the prosecution to negate mitigating circumstances would place an impermissible burden on the state), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979); Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73 (1977) (the absence of mitigating circumstances is not an element to he proved beyond a reasonable doubt), cert. denied, 439 U.S. 882, 99 S.Ct. 220, 58 L.Ed.2d 194 (1978); State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981) (at penalty phase, inquiry is into all relevant facts and circumstances weighing upon the propriety of capital punishment, not into elements of the offense); Tichnell v. State, 287 Md. 695, 415 A.2d 830, 849 (1980) (due process principles "do not require the prosecution to either prove beyond a reasonable doubt the absence of mitigating circumstances, or to prove beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances.”), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984); State v. Bass, 189 N.J.Super. 445, 458, 460 A.2d 214, 221 (1983) ("there is no constitutional requirement for the State to prove the insufficiency of such mitigating factors beyond a reasonable doubt.”); State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979) (due process does not require the prosecution to disprove beyond a reasonable doubt the existence of factors which mitigate the degree of punishment), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137 (1980); State v. Downs, 51 Ohio St.2d 47, 59, 364 N.E.2d 1140, 1148 (1977) (finding no authority "to support the proposition that the lack of mitigating factors is an additional, constitutionally mandated element of a capital offense”) (vacated on other grounds in light of Lockett v. State at 438 U.S. 909, 98 S.Ct. 3133, 57 L.Ed.2d 1153 (1978)); Parks v. State, 651 P.2d 686 (Okla.Crim.App.1982) (prosecution's only burden is to prove beyond a reasonable doubt the elements of the crime and any aggravating circumstances), cert. denied, 459 U.S. 1155, 103 S.Ct. 800, 74 L.Ed.2d 1003 (1983); Commw. v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982) (proving the elements of the crime and any aggravating circumstances is all that is constitutionally required of the prosecution), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983); State v. Pierre, 572 P.2d 1338 (Utah 1977) (prosecution is not required to disprove mitigating circumstances; burden would be impossible to sustain in many instances), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978).
The defendant has cited no case, and my research has discovered none, in which it was held that due process required that the prosecution disprove mitigating factors beyond a reasonable doubt.
. The defendant relies on People v. Chavez, 621 P.2d 1362 (Colo.1981), to support his argument. However, Chavez dealt with the issues of the right to remain silent and the right to be convicted by proof beyond a .reasonable doubt. Here, the defendant's guilt was already established, and only sentencing remained. Chavez is therefore inapposite.