BURKE, J. I dissent. A review of the record reveals no error under Witherspoon v. Illinois, 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770].
The court initially, and counsel repeatedly thereafter, advised the veniremen that it would be the function of the jury to determine the penalty, namely, life imprisonment or death; that the jury would be called upon to make the decision from [865]all the evidence “in its absolute discretion under the law, which the Court will give them. ’ ’
The majority opinion asserts that the latter portion of the phrase used by the judge in his initial explanation to the veniremen obscured the fact that under the law theirs was an absolute discretion. One need only read the particular phrase in context to demonstrate that no confusion was created by the judge’s reference to this traditional division of responsibilities between judge and jury.
It is customary for both the court and counsel to state repeatedly during a voir dire examination that the court will instruct the jury as to the law, referring to the formal instructions at the conclusion of the trial. That this is what the court referred to in the statement quoted above becomes very clear when read in'eontext with the explanation which the: judge had just finished giving the veniremen concerning their function: that “it is the duty of the Court upon the conclusion of the testimony to instruct the jury in the rules of law which apply to this case; it is the duty of the jury to follow those rules of law stated to them by the Court. . . . [T]he jury will be governed solely by the evidence introduced in the trial and under the law as stated to them by the Court.”
It is entirely proper to consider the entire voir dire examination of the veniremen which preceded the examination of the juror asserted to have been improperly excused for whatever light such examination may shed upon the questions asked of this particular juror.
That it is our duty to consider the voir dire of individual jurors in context with the examination which preceded it has been plainly set forth in the recent unanimous decision in People v. Varnum, 70 Cal.2d 480, 492-493 [75 Cal.Rptr. 161, 450 P.2d 553].
Applying the rules of Varnwm to the instant ease, we find that the court and counsel by their painstaking voir dire examination and the court’s rulings had made it unmistakably clear to the prospective jurors that the only such jurors who would be excused for cause by reason of their conscientious scruples or objections to the death penalty would be those who could not or would not agree to impose it under any circumstances. Those veniremen who expressed mere distaste for the death penalty were not .excused.
Furthermore, applying the rules of Varnum, we note that the court made it quite clear that the decision as to what is a ‘ proper case ’ ’ is for the jury to determine:
[866]Juror Miney was advised in the questioning, as to whether she felt that under any circumstances she could impose the death penalty, that both the People and the defendant are "entitled to the independent thinking of the twelve jurors. . . A few typical examples of explanations given to other individual jurors follow
(Juror Yierra) "Mainly, what the law says that a person who has been convicted of first degree murder it is the duty of the jury to determine what, the punishment or penalty should be, either life imprisonment or death. That is what the jury has to decide. ... As just stated, a person who is found guilty of murder in the first degree is entitled to a choice of penalties as depending upon how the jurors view the matter. They are the ones that say what the penalty should be.
"A. Well, according to what I read—
"Q. We don’t give everyone convicted of murder life imprisonment nor do we put everyone to death. It depends upon the facts of each case. . . . The Court ordinarily gives instructions after all the arguments of both sides are in and the case rests in the hands of the jury and they decide what the penalty should be based upon the evidence and the law. That is exactly the reason why we are asking these questions. I mean, you wouldn’t be a fair and impartial juror if you have already made up your mind as to what the penalty should be, would you?”
(Juror Murphy) "Now, the Court has not indicated what the penalty should be, certainly, that is within the province of the jurors in this particular case after you have heard all the evidence in this case and the jurors, as previously stated, are the sole judges of what the facts are based on the evidence;the Court will give them the rules of law to apply to the facts, and they will have to come up with a very, very weighty decision one way or the other; there is no middle ground, you see, either life imprisonment or the death penalty. The jury must decide one way or the other. . . . Let’s be real frank about the matter. The Court, of course, is not expressing any opinion again relating one way or the other on the case, but suppose after you heard all of the evidence you felt that the death penalty was the proper penalty in this case, do you feel you could bring in a verdict for the death penalty or do you feel if you got to that point you would get cold chills and a fever, or something else, and you would say, ‘Well, I just can’t impose the death penalty even though I believe the facts would warrant it. ’ Is that your position, sir ?
[867]‘ ‘ A. Well, I would like to be excused.
“Q. Well, you are sort of quibbling a little bit. You don’t feel you could impose the death penalty now regardless of what the facts and circumstances are, is that it 1
“A. Yes.”
(Juror Natali) “Well, we recognize, of course, that many people don’t believe in the death penalty under any circumstances, but nevertheless, the law of California accepts the death penalty in a proper case. That is one of the big responsibilities jurors have in a murder case, when it comes to fixing the penalty and the jurors are the ones who fix it. The Court doesn’t have a thing in the world to do with it. The juror [s] say whether it should be life or the death penalty. . . . Please bear in mind that the Court is not suggesting that this is a proper case for imposing the death penalty because we haven’t even gone into the evidence yet. ’ ’
(Juror Comfort) “[T]here is no burden of proof on the prosecution to prove that this man should die, or on the other hand that there is no burden of proof on the defendant that he should live. It is solely up to your discretion ? ’ ’
(Juror Williams) “ [T]hat our responsibility at this time is to decide whether he should receive a life sentence or death. And, in deciding that, you may exercise your absolute discretion, of course, based upon the instructions that the Court will give you. . . . Mr. Williams, do you think, distinguishing if you can the difference between the theory of rendering a verdict of death in a proper ease, and actually participating, do you feel that you would be able to participate in a verdict of death if the evidence should show you-it is a proper ease?”
(Juror Rosa) “You understand, I hope, by'asking these questions the Court is not insinuating at all, even intimating that this will be the proper penalty in this case, but—
“A. I understand.
“ Q.-if the jurors should find from the evidence that that is the proper penalty,, what we want to know is if you would be able to impose that? Do you have any conscientious opinion or scruples against it in the proper case ?
“A. No. . . .
‘ ‘ Q. The law says that there is a choice in the penalty of a first degree murder case, life or death; that it is the duty of the jurors to determine which it shall be. The jury determines the sentence, the Court has absolutely nothing to do with it. In a penalty case, the Court has no judgment, but the judgment on the penalty in a first degree murder case—
[868]‘ ‘A. Well, that is the way I feel about it.
“Q. I take it, then, you don’t feel you could follow the law because you don’t agree with the law ?
“A. I don’t really disbelieve it. I mean, I could if I — I wouldn’t even be believing in it.
“Q. Well, you would be unqualified as a juror, Mrs. Rosa, or are you willing to accept the law as it exists — the Court had better excuse you, I am afraid, you wouldn’t be very fair to the defendant in this case. The Court will excuse you.”
(Juror Yoss) “You understand that under the law of this state, the jurors have the choice, and not only the choice but the duty of deciding between the two possible punishments- in a first degree murder case, one of life imprisonment or the death penalty. You understand that? . . . When it comes time to decide the case, will you take the rules of law which the Court gives you and apply them to whatever you find the facts to be, based upon the evidence ? ’ ’
(Juror Hickey) “And, then again, I would like to emphasize as has been emphasized many times that the questions that I ask you, asked by the Court or the counsel are not to be construed as any implication on the part of either the Court or counsel as what the penalty should be in this matter. This matter is entirely within the discretion of the jury after they have heard all the evidence, have been instructed by the Court concerning the rules of the law. . . . And, when it comes to deciding the case, one way or the other, you understand that you only have two choices if you are accepted as a juror? You either find life imprisonment or the death penalty and would you take the rules of the law which the Court has given you and apply them to whatever you find the facts to be based upon the evidence ? Will you do that for us sir ? ”
(Juror Wooten) “Now, you feel, as you sit there now, you could exercise your absolute discretion based upon the Court’s instructions in rendering a verdict ? ’ ’
The majority opinion states that jurors were advised that “our laws do provide for the death penalty in the proper case,” and that this inferred some limitation, that would be forthcoming, upon the “absolute discretion” between penalties which they were also- being told they would have. Again, a reference to the questioning in context dispels the possibility of any such confusion. For example, Juror Fernandes, the last to be examined before the examination of Juror Hope, was asked by the court: “. . . the jury has been called upon to decide whether the penalty should be life imprisonment or the death .penalty ? Do you understand that ?
[869]“A. Yes, sir.
‘ ‘ Q. There is no middle ground at all, it has to be one or the other!
“A. Yes.
‘ ‘ Q. Do you entertain such conscientious opinions as would preclude you from assessing the death penalty in the proper ease!
“A. No, sir.
“Q. You are not opposed to the death penalty in the proper case then, is that correct, sir!
‘ ‘A. That is right.
“Q. You understand our laws do provide for the death penalty in the proper ease!
“A. Yes.
“Q. And, the reason why we ask that type of question is that the law also charges the jury with the very onerous duty of determining what the penalty should be in a first degree murder case, do you understand that?
“A. Yes, sir.”
Only five prospective jurors were excused because of conscientious opinions which “would preclude them from assessing the death penalty in a proper case.” Since the majority opinion finds fault only with the excusing of one of the five, Mrs. Hope, we may assume that it concludes the others were properly excused.
An examination of the questions asked of each of the five jurors excused because of conscientious objections to the imposition of the death penalty reflect that in every instance essentially the same test question was used: “Do you entertain such a conscientious opinion as would preclude you from assessing the death penalty in a proper case!” (This same question was repeated almost without exception to each of the other veniremen as well.) In addition, as to each of the four who were excused by the court prior to the examination of Mrs. Hope, the court supplemented the test question with questions such as:
(Juror Mincy) “Do you feel under any circumstances that you could impose the death penalty! ’ ’
(Juror McCullough) “You don’t believe in the death penalty in any type of case! ’ ’
(Juror Murphy) “Well, are you trying to tell us, sir, that you don’t believe in the death penalty under any circumstances! . . . Well, you are sort of quibbling a little bit. You [870]don’t feel you could impose the death penalty now regardless of what the facts and circumcstances are, is that it?
(Juror Thayer) “You have the feeling then that no matter how strong the facts and circumstances were, you just couldn’t impose the death penalty if you felt it proper? A. I couldn’t.”
Having in mind the many, many times before reaching Mrs. Hope that the court and counsel had stressed that the choice of penalty was in the absolute discretion of the individual jurors and the jury as a whole, I find it inconceivable that Juror Hope was under any misapprehension whatever as to what her duty would be if selected. She, too, was explicitly told by the court: “You understand that we are interested in selecting a fair and impartial jury to determine what the penalty should be in the defendant’s case ?
“A. Yes, sir.
“ Q. Either life in prison or death ?
“A. Yes.
“ Q. One or the other ?
“A. Yes.
“Q. Depending upon how the jurors view the evidence and the law which will [be] given to them by the Court. . . .Was there anything about what you read or heard which left you with any fixed opinion or beliefs as to what the penalty should be in this case ?
“A. No.
“Q. You- are perfectly open minded at this time, is that right ?
“A. Yes, sir.
“Q. You won’t close your mind and determine what the penalty should be until after you have heard the testimony, heard the instructions so far as the rules of law are concerned, is that correct ?
“A. No.
“Q. I mean, would you keep an open mind and wait to make up your mind until after you have heard the Court’s instructions and all evidence ?
“A. Yes, sir..
“Q. All right. You see, that is a requirement, of course. I take it, then, you have no opinion one way or the other as far as the penalty, life imprisonment or death, as you sit in the jury box, is that correct?
‘ ‘ A. -Well, I don’t think I could send anyone to death.
“Q. Well, that was the next question I was going to ask you. Do you entertain such a conscientious opinion as it [871]would preclude you from assessing the death penalty in a proper case ? '
“A. I don’t think I could put anyone in the — not necessarily in this case, but in any case—
“Q. You understand, do you, that it is the law of California and it includes the death penalty ?
“A. Yes.
“Q. There has been a lot of sparring, discussion, and debate about the matter, but it is on the statute books, it is still our law to be applied in a proper case, do you understand that ?
‘ ‘ A. Yes, sir, I understand that.
"Q. I take it, from your response that even though that is the law you don’t think you could follow the law, is that it?
“A. No, I don’t think I could.
“Q. All right. Well, you ar.e entitled to your conscientious beliefs, of course, and we don’t quarrel with anyone who disagrees with our law, of course, but it disqualifies you to serve as a juror in this case. So, the Court will necessarily have to excuse you.
“A. Yes, sir.”
Clearly, Mrs. Hope expressed her view that she could not "send anyone to death . . . not necessarily in this case, but in any case.” Since she could not impose the death penalty in any case the court had absolutely no discretion whatever but-to excuse her in full compliance with the subsequently announced rules of the Witherspoon decision of the United States Supreme Court.
Finding no error, I would affirm.
McComb, J., concurred.