concurring in result.
One argument advanced by defendant is that by excluding those who would never impose the death penalty from jury service during the guilt determination of the trial, a jury was created that was less than neutral with respect to guilt, i. e., a jury was created that is conviction prone. The principal opinion disposes of this contention by citing Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), holding that it is within the legitimate interest of the state to provide for disqualification of a venireman who would not consider the death penalty under any circumstances.
Granted, but it still may be the fact that a jury qualified as this jury was is less than neutral with respect to guilt. The subject has recently been discussed in detail in Hovey v. Superior Court of Alameda Cty., 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 P.2d 1301 (Cal.1980), which reviews the studies on the subject since the Witherspoon case. The results of the studies are consistently to the effect that such juries are less than neutral. The difficulty is that I am unable to offer any suggestion as to what to do about it.
Therefore, since the defendant did not receive the death penalty, I concur in the result reached in the principal opinion.