SCHAUER, J., Concurring and Dissenting. For reasons hereinafter explained I concur in the judgment but in the interest of more helpful and accurate guidance of the trial court on the new trial (this is a second reversal) I would modify the majority opinion in certain respects. I would amend and augment the opinion to more adequately define (for instruction of the jury at the penalty stage of a trial) the difference between the burdens of (a) proof and (b) persuasion in, respectively, (1) the process of evaluating conflicting evidence to determine whether the existence of particular facts has been proved and (2) the process of exercising absolute discretion to determine the ultimate issue of selecting the penalty. Furthermore, I think a reading of the transcript demonstrates the untenability of, and I would delete, the holding that “There is no evidence that would support ... a [100]determination” that any of the hearsay statements of Eleanor Purvis were admissible.
In more detail, my views in this matter and the reasons therefor, are as follows:
Defendant’s first requested instruction as to burden of proof at the penalty stage of the trial1 was properly refused because it would have required that facts in aggravation of punishment be proved beyond a reasonable doubt and would have left the jury uninstructed as to whether there was any burden of proof of facts in mitigation. Similarly, defendant’s alternative requested instruction on the subject2 would have created the erroneous impression that, while the jury could consider aggravating facts only if they were proved by a preponderance of the evidence, there was no burden of proof as to mitigating facts.
As the majority say (ante, p. 96 [13 Cal.Rptr. 803, 362 P.2d 715]), “The jury has absolute discretion in fixing the penalty and is not required to prefer one penalty over another. ’ ’ And at the penalty stage of trial there is no burden of producing evidence. The instructions given here apprised the jury of these concepts,3 but did not tell them about any burden of persuasion, or risk of nonpersuasion, of facts. In my opinion there is a burden of proof of facts, if either party seeks to prove them, at the penalty stage of trial as in any other adversary proceeding; and there is a difference [101]between the process of the jury’s evaluating conflicting evidence to determine whether the existence of particular facts have been proved, and the process of their exercising absolute discretion to determine the ultimate issue of selecting the penalty.
The trier of the issue of penalty does not have to find the existence of mitigating circumstances in order to select the punishment of life imprisonment, or the existence of aggravating circumstances in order to fix the punishment at death. The ultimate determination need not rest on the resolution of any question of fact in the traditional sense in which such questions are usually presented in a lawsuit. The selection of penalty may be based on matters such as the following, which are not proved as facts but rest in the judgment and consciences, the minds and hearts, of the jury: “considerations of the several objectives of punishment, of the deterrence of crime, of the protection of society, of the desirability of stern retribution, or of sympathy or clemency ... or of the irrevocableness of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light . . . .” (People v. Friend (1957), 47 Cal.2d 749, 768 [306 P.2d 463] ; People v. Jones (1959), 52 Cal.2d 636, 649 [7] [343 P.2d 577].)
Although a jury could properly, for example, disbelieve all the evidence introduced by the People in aggravation, believe all the evidence introduced by the defendant in mitigation, and yet impose the death penalty because of “extraevidentiary” factors such as those just recited, I think its original evaluation of the evidence (before it reached its final task of selecting punishment) would have to be guided by the concept of burden of proof. I know of no other manner in which the evidence could be weighed, and I doubt that anyone would contend that at the penalty stage of trial the evidence could be arbitrarily ignored.
It has been held that where the selection of penalty is made by the jury, the proceeding should be a trial in the full [102]technical sense, governed by the same rules of procedure as the trial of the issue of guilt. (People v. Purvis (1959), 52 Cal.2d 871, 883-884 [12] [346 P.2d 22] ; People v. Green (1956), 47 Cal.2d 209, 236 [16] [302 P.2d 307].) That holding concerned the requirement that only competent evidence be received, but to me it also contemplates the concept of burden of .proof—although not the same burden which is imposed on the People at the trial of the issue of guilt, when there is a presumption of defendant’s innocence—and instructions explaining the applicable burden.
In the present ease, the People-presented evidence of instances of reprehensible conduct of defendant antedating and apart from the subject murder, and the defendant presented evidence that those instances did not occur. Before the jury could intelligently decide—in their absolute discretion, to be sure—what penalty defendant should suffer, they would have to determine whether the aggravating events took place. That determination, I think, should have been made under guidance of instructions that the People had the burden of proving aggravating facts by a preponderance of the evidence. And where defendant presents evidence of mitigating circumstances I think the jury should be told that he has the burden of proving such circumstances by a similar preponderance.
I am further of the opinion that the jury should have been instructed that if they entertained a reasonable doubt as to which penalty should be imposed, they should select the lesser. Such an instruction (which would accord with a dictum in People v. Cancino (1937), 10 Cal.2d 223, 230 [3] [73 P.2d 1180]), would not concern the burden of proof of issues of fact. Rather, it would be a proper application of the more general rule that “The defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.” (In re Tartar (1959), 52 Cal.2d 250, 257 [10] [339 P.2d 553].) The instruction requested by defendant in this regard,4 however, [103]could not properly have been given in its entirety, for its last paragraph would have incorrectly told the jury that if a single juror had a reasonable doubt as to which punishment should be inflicted, it would be the duty of the entire jury to yield to his opinion and impose the lesser penalty. Rather, in such a situation, it would be the duty of the jury to report to the trial judge their inability (if such was the fact) to reach a unanimous verdict on the issue of penalty. The judge should then “dismiss the jury and either impose the punishment for life in lieu of ordering a new trial on the issue of penalty, or order a new jury impaneled to try the issue of penalty.” (Pen. Code, § 190.1.)
I am also not entirely in accord with the majority’s discussion of the testimony of police officers who related the contents of accusatory statements made by defendant’s wife Eleanor on various occasions during the six months prior to her murder by defendant on February 6, 1950. The evidence would support a determination that on one or two occasions when Eleanor stated that defendant had struck her or bruised her, defendant was present and did not deny the accusations. I cannot agree with the majority {ante, p. 97) that there is no evidence which would support a determination that those accusations were understood by defendant and made in circumstances calling for a reply, and that defendant’s failure to deny them could give rise to an inference that he admitted their truth. Eleanor’s statements were made to police officers who had been summoned by a report of a “family disturbance”; certainly srích a situation would normally call for some reply by the asserted creator of the disturbance. There is nothing in the record to suggest that defendant lacked ordinary capacity to understand the accusations (his own testimony belies such a suggestion) or that his silence was the result of coercion. In the circumstances I find no prejudice in the lack of literal compliance with the foundational requirement that the trial judge determine “in the first instance” whether the accusations were made in a situation which would support an inference of admissions by silence (People v. Simmons (1946), 28 Cal.2d 699, 712 [6a] [172 P.2d 18]) or in the failure to instruct the jury concerning such admissions.
I agree that the more damaging statements that defendant held Eleanor’s head under water and deliberately burned her with a cigarette were inadmissible hearsay. There is no evidence that defendant was present when Eleanor made [104]these accusations and their scope went far beyond that necessary to show a relevant state of mind of the victim. People v. Merkouris. (1959), 52 Cal.2d 672, 682 [10-12] [344 P.2d 1], should not be extended (and People v. Feasby (1960), 178 Cal.App.2d 723, 733-734 [14-17] [3 Cal.Rptr. 230] should not be construed) to permit the introduction in evidence, without discrimination, of all sorts of accusations against a defendant by the victim of a homicide, upon the theory that the victim’s state of mind is relevant.
However, I cannot agree with the broad statement of the majority {ante, p. 98) that in the trial of defendant for the murder of Eleanor “on the issue of guilt the state of mind of the victim would not have been relevant.” In that trial the prosecution might not have foreseen that the sole, defense would be an attempt to show that defendant killed without premeditation. Defendant’s plea of not guilty put in issue the identity of the killer as well as every element of the crime of murder. (Pen. Code, § 1019.) I am not prepared to say, on the basis of hindsight, that because defendant did not, at the trial for Eleanor’s murder, testify that he was not the killer, therefore the prosecution could not have proved Eleanor’s fear of defendant, by her declarations appropriately limited (see People v. Burton (1961), 55 Cal.2d 328, 348-349 [20-22] [11 Cal.Rptr. 65, 359 P.2d 433]), in order to show the probability that she was killed by defendant rather than some unidentified third person.
Also I am not prepared to say that evidence that a previous wife, particularly one killed by defendant, feared him for some time before her death, has no probative value in the determination of penalty for the subsequent killing of a paramour. But in the instant case the manner in which the district attorney used the statements of Eleanor suggests that he deliberately presented inadmissible hearsay concerning prior depraved conduct of defendant, with full awareness of the impropriety of such evidence. The prosecuting attorney should have known when he made his opening statement what the tenor of the testimony of the experienced police officers would be. Certainly at the end of the taking of evidence, after repeated colloquies among the trial judge and counsel concerning the matter, the prosecutor knew that he had not presented any admissible evidence that defendant attempted to drown Eleanor and burned her with a cigarette on occasions prior to her murder. Yet both the prosecution’s opening [105]statement and its closing arguments assumed the truth of the subject hearsay.
On almost every occasion when the officers’ testimonies as to Eleanor’s declaration were given the trial judge was eommendably careful to instruct the jury that the evidence was received only to show her state of mind and not to show the truth of other facts declared by her. But in the circumstances I do not believe that the admonitions of the judge could cure the prejudicial effect of the incompetent evidence. I do not imply that I think the penalty selected by the jury is not fully warranted by the properly admitted and competent evidence. In an ultimate sense, if we could consider only the admissible evidence and the verdict, we should properly conclude that no miscarriage of justice appears. But such a limited consideration of the record does not meet California’s standard of justice. The elements of procedural due process are as essential to a valid judgment as is proof of the facts constituting the crime. If any evidence on the issue of penalty is to be received it must be competent evidence, not prejudicial hearsay. I agree with the majority that the compounding of error in receiving incompetent evidence and the misconduct of the prosecuting attorney require reversal and remand for a new trial on the sole issue of penalty.
McComb, J., concurred.
The relevant part of the instruction (quoted by the majority also in their f.n. 1) is: .“those facts which tend to show aggravation may only be considered by you if you are convinced, beyond a reasonable doubt, that such facts have been proved. If you entertain a reasonable doubt that such facts have not been proved, then you should not consider such facts in arriving at your decision as to what is the proper penalty.” (Italics added.) The italicized “not” appears to have been inserted by clerical error.
The pertinent part of such instruction is: “those facts which tend to show aggravation may only be considered by you if you are convinced that such facts have been proved by a preponderance of evidence. If you are not convinced that such facts are proved by a preponderance of evidence then you should not consider them in arriving at your decision as to what is the proper penalty.”
The jury were told:
“In determining which punishment shall be inflicted, you are entirely free to act according to your own judgment and absolute discretion. The discretion of determining which punishment shall be imposed is vested in the jury alone. In this determination it is your duty to conscientiously consider all of the evidence of the circumstances surrounding the crime, of the defendant’s background and history and of any facts in aggravation or mitigation of the penalty which have been presented to you here in court, weighing and considering the evidence under the applicable rule of law which was given to you in the- Court’s instructions in this ease. [As stated, there was no instrue[101]tion concerning weighing the evidence as to the existence of particular facts in the light of any burden of proof.] . . .
“The choice as between the two penalties is in every case committed to the jury’s absolute discretion. . . .
“With respect to the penalty, no burden of proof is cast upon the People or the Defendant to show by any particular quantum, that is amount, of evidence which penalty should be imposed by you. You are further instructed that you must agree unanimously on the penalty which is to be imposed in this particular ease, which unanimous decision should be indicated by your verdict.” (Italics added.)
The requested instruction (quoted by the majority in their f. n. 3) is:
“The Court instructs you that if you entertain a reasonable doubt as to which of the two or more punishments should be imposed, it is your duty to impose the lesser.
“In determining which punishment shall be inflicted, you are entirely free to act according to your own judgment.
“If any individual juror, or the jury as a whole, entertains a reasonable doubt as to which of two or more punishments should be imposed, it is your duty to impose the lesser of the two.” (Italics added.)