The majority determines that a 1978 murder conviction entered in Texas for a crime committed when the defendant was 15 years of age constitutes a prior murder conviction for the purpose of Penal Code section 190.2, subdivision (a)(2), despite the circumstance that, *245because of his age, defendant could not have been convicted of murder in California at that time.1 I disagree.
At issue is a provision of section 190.2, which defines special circumstances that, if demonstrated, render a defendant charged with murder subject to the death penalty or life in prison without the possibility of parole. One such special circumstance is shown if the defendant has a prior murder conviction, specifically, if “[t]he defendant was convicted previously of murder in the first or second degree.” (§ 190.2, subd. (a)(2).) The statute further provides: “For the purpose of this paragraph, an offense committed in another jurisdiction, which if committed in California would be punishable as first or second degree murder, shall be deemed murder in the first or second degree.” (Italics added.)
Defendant was convicted of murder in Texas in 1978, for a crime committed when he was 15 years of age. Defendant, like any other person who committed a murder at age 15 in California at that time, could not have been tried in California as an adult had he been accused of murder in California, nor could he have been punished by a term in state prison. (See former Welf. & Inst. Code, § 602, as amended by Stats. 1976, ch. 1071, § 12, p. 4819; see also former Welf. & Inst. Code, § 707, as amended by Stats. 1977, ch. 1150, § 2, p. 3693.) Rather, he would have been subject to the jurisdiction of the juvenile court, which would not have entered a criminal conviction, but instead would have adjudged him to be a ward of the court. (Ibid.) Thus, his act would and could not at that time be “punishable as first or second degree murder.”
The majority, however, concludes that the crucial words of section 190.2, subdivision (a)(2), are “an offense,” and that a proper interpretation of the statute turns on a comparison of the elements of the offense in California and in the foreign jurisdiction, rather than on any personal characteristic of the defendant. Because the crime of murder as defined in Texas and California in 1978 consisted of the same elements, the majority concludes that defendant’s Texas murder conviction fits the proviso of section 190.2, subdivision (a)(2).
Viewed in isolation, it may be the case that the reference to “an offense” in a statute ordinarily would relate only to a crime in the abstract— to the elements of the offense—and not to a defendant’s status or personal characteristics. Section 190.2, subdivision (a)(2), refers, however, not simply to “an offense” but to an offense that “would be punishable as” murder if committed in California. We should give effect to the words “would be *246punishable as,” since in interpreting a statute, we generally should give effect to each word employed by the Legislature. (See People v. Woodhead (1987) 43 Cal.3d 1002, 1010 [239 Cal.Rptr. 656, 741 P.2d 154].) It seems evident that the words “would be punishable as” refer not merely to the elements of the offense but to the potential punishment that could be imposed. A murder committed by a person 15 years of age was not “punishable as” a murder in California in 1978, because at that time, only minors 16 years of age or older could be found fit to be tried and punished as adults. (See former Welf. & Inst. Code, § 707, as amended by Stats. 1977, ch. 1150, § 2, p. 3693.)
I do not agree with the majority that section 190.2, subdivision (a)(2), does not refer to the status, personal characteristics, or circumstances of the accused. Certainly the majority is correct to the extent that the statute does not permit the defendant to avoid the special circumstance by pointing to differing affirmative defenses in California and the foreign jurisdiction or to different rules regarding such matters as jury selection or jury unanimity. The statute does not contemplate a trial within a trial to determine whether, if defendant had been charged with the crime in California, he or she would have been convicted given the evidence of guilt that was introduced. But this does not suggest that the status of the defendant, leaving aside the facts of the crime, is irrelevant. The question is not whether the defendant would have been convicted and punished in California for the offense of murder under the particular circumstances of the crime, but whether he or she could have been convicted and punished in California for that offense. A trial within a trial would not be necessary to resolve this issue. The clearly established circumstance of the defendant’s age at the time of the offense should be considered relevant when that age would render the offense not “punishable as first or second degree murder.”
The majority offers in support of its interpretation the claim that the Legislature “knows how” to draft a provision requiring consideration of the defendant’s age or other personal characteristics, and that its failure to do so expressly in section 190.2, subdivision (a)(2), indicates that it did not intend that personal characteristics be considered. Specifically, the majority suggests that if the Legislature intended personal characteristics of the defendant to be relevant under section 190.2, subdivision (a)(2), it would have employed language such as the following found in section 668: “Every person who has been convicted in any other . . . jurisdiction of an offense for which, if committed within this state, that person could have been punished under the laws of this state by imprisonment in the state prison
I do not believe that a strong inference regarding legislative intent can be drawn from the Legislature’s failure to employ the language of section 668, *247but in any event, the majority’s own interpretation of section 190.2, subdivision (a)(2), is subject to the same claim. Assuming the Legislature’s intent was limited to comparing the elements of the crime of murder in the foreign jurisdiction and in California, the Legislature similarly would know how to state this specifically—it could have employed language such as that found in section 667.51, which provides for enhanced punishment for those with prior sex offense convictions, including “any offense committed in another jurisdiction that includes all of the elements of. . . the [California] offenses . . . .” (§ 667.51, subd. (b); see also §§ 667.51, subd. (c), 667.61, subd. (d)(1), 667.71, subd. (c)(14).)
The interpretation offered by the majority produces the anomaly that defendant is subject to the special circumstance only because his prior offense was committed in Texas; had it been committed in California, he could have been committed only as a juvenile, and would not have been “previously convicted of murder” as section 190.2, subdivision (a)(2), requires. Thus, under the majority’s view defendants whose prior juvenile offenses were committed in another state are treated more harshly than those whose offenses were committed in California. No legislative rationale has been suggested for such a distinction in treatment, and it would raise serious constitutional questions.
The interpretation I have suggested, of course, does not eliminate all anomalies in the statute’s application to prior juvenile murders, particularly because California juvenile law with respect to the treatment of youthful offenders has changed over the years. (See, e.g., Welf. & Inst. Code, § 602, subd. (b) [providing for prosecution in adult court of persons over the age of 14 years when enumerated offenses are charged].) But it remains true that the interpretation offered by the majority would make the existence of a prior-murder special circumstance depend upon whether the prior offense occurred in California or in some other state. That type of anomaly would be inconsistent with the apparent legislative intent to provide equal treatment of defendants under this provision of the death penalty statute regardless whether their prior crimes were committed in California or in another jurisdiction.
In support of a conclusion consistent with that reached by the majority, counsel for respondent claimed at oral argument that if Texas were to convict and punish 10 year olds as adults for murder, California would be bound by section 190.2, subdivision (a)(2), to follow suit with respect to the prior-murder special circumstance, stating that “we should give credit to that conviction and the finding by the Texas courts that this person was suitable to be tried as an adult. We do have some 10 year olds out there committing *248some very heinous crimes. I hate to see that happen but sometimes that needs to be recognized and I think we have to give deference to those types of findings from other states.” I disagree. In my view, section 190.2, subdivision (a)(2), does not require or contemplate this type of deference to other states’ determinations regarding what type of defendant is subject to punishment in California for first or second degree murder.
In sum, I believe that the language of section 190.2, subdivision (a)(2), is truly ambiguous, as is the evidence of legislative intent to be derived from the Legislature’s failure to employ the more precise language that it has used in other statutes. Reasonable minds can differ—as they have in the Court of Appeal and in this court—over the proper interpretation of section 190.2, subdivision (a)(2). In my view, the interpretation I have suggested is the more reasonable, given the statutory language. At the very least, I believe that it is as reasonable as the interpretation offered by the majority, so that the statutory provision before us presents an appropriate occasion on which to construe any ambiguity in the statutory language “ ‘as favorably to the defendant as its language and the circumstances of its application may reasonably permit ....’” (People v. Garcia (1999) 21 Cal.4th 1, 10 [87 Cal.Rptr.2d 114, 980 P.2d 829]; see also People v. Hicks (1993) 6 Cal.4th 784, 795-796 [25 Cal.Rptr.2d 469, 863 P.2d 714].) Under these circumstances, I believe that the words “would be punishable as first or second degree murder” should lead us to interpret the statute so that it would not include the conviction of a minor in a foreign jurisdiction for an offense that could not have been punished as first or second degree murder had the offense been committed in California.
For these reasons, I respectfully dissent.
Werdegar, J., concurred.
All statutory references are to the Penal Code unless otherwise indicated.