BURKE, J. I dissent. Seiterle contends that it was error under Witherspoon v. Illinois, 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], to exclude for cause veniremen Cody and Prestwood. However, venireman Cody was properly excluded because her responses made it “unmistakably clear . . . that [she] would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial. ...” (Witherspoon v. Illinois, supra, at p. 522, fn. 21 [20 L.Ed.2d at p. 785].)1 The voir dire examination of venireman Prestwood is as follows:
“Q. [By the Court] Is there anything about the nature of this case, Mrs. Prestwood, that would prevent your serving fairly and impartially to the defendant as well as to the People of the State of California ?
[705]“A. Yes. '
“A. Yes.
“Q. And wbat is that, Mrs. Prestwood?
“A. I don’t agree with the death penalty.
“Q. Do yon have such conscientious scruples against the death penalty and its imposition that you feel you could not serve fairly and impartially to the People of the State of California as well as to the defendant if selected in this case ?
“A. Yes. .
. “Q. And nothing that you have heard during the last two •or three days [i.e. the period during which other veniremen had been questioned] has changed that in any way ?
“A. No.
‘ ‘ Q. And you feel nothing would ?
“A. No.”
Defense counsel stated that he had no questions, and the court then granted a challenge for cause by the prosecutor.
Isolating these few questions and answers from the several days of voir dire examination which preceded them and considering them alone could give rise to doubt whether there was Witherspoon error in excusing venireman Prestwood for cause without further questioning. However, when the questions and answers are considered in context with the previous voir dire examination and rulings of the court, then ‘.-an be no reasonable doubt that the court did not violate Wither-spoon in excluding her.
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 Varnum to the instant case, we find that the court and counsel by their painstaking voir dire [706]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.2 When Mrs. Prestwood’s responses are viewed in the context of the prior examination of other veniremen and the court’s rulings, it is apparent that she was indicating with fervor and frankness that nothing could change her opposition to the imposition of the death penalty in any case or under any circumstances. Witherspoon stated “ It is entirely possible . . . that even a juror who believes that capital punishment should never be inflicted and who is irrevocably committed to its abolition could nonetheless subordinate his personal views to what he perceived to be his duty to abide by his oath as a juror and to obey the law of the State.” (391 U.S. at pp. 514-515, fn. 7 [20 L.Ed.2d at p. 781].) Certainly, there is good cause in the instant case to believe that this juror would [707]neither subordinate nor change her personal views on infliction of the death penalty. In fact, she asserted nothing would change her opinion.
The statements of venireman Prestwood are somewhat similar to those of a venireman in In re Anderson and Saterfield, supra, 69 Cal.2d 613, 618, who was held to have been improperly excluded for cause.3 However, in the instant case, unlike Anderson and Saterfield, supra, the court’s inquiry did not .end with the venireman’s answer that-she felt she could not be fair to both sides because of her. opposition to capital punishment; here the court pursued the subject further to ascertain the extent of the juror’s feelings. In doing so the court alluded specifically to all she had “heard during the last two or three days” to see if that had changed her mind and whether anything would change her opinion, to which she repeatedly answered in the negative. These followup questions serve to distinguish this case from Anderson and. Saterfield, supra.
Veniremen Pastorius, Jordan, and Hill were also excluded for cause upon the basis of their opposition to the death penalty. No claim is made, nor does it appear, that their exclusion was erroneous under Witherspoon v. Illinois, supra, 391 U.S. 510. The examinations of veniremen Pastorius and Jordan revealed that they would not impose capital punishment under any circumstances. (See fn. 2 herein.) Venireman Hicks made conflicting statements as to whether there were any circumstances under which she could impose, the death penalty, but her final statement was that she could' not impose that penalty under any circumstances.4 Since, as hereafter [708]discussed, the trial court gave every evidence of excluding only those who would not impose the death penalty under any circumstances it impliedly found in accord with her final statement, and the trial court’s -determination is binding upon us. “Where a prospective juror gives conflicting answers to questions relevant to his impartiality, the trial court’s determination as to his state of mind is binding upon an appellate court. [Citations.] ” (People v. Linden, 52 Cal.2d 1, 22 [338 P.2d 397].)
The instant trial preceded the decision in Witherspoon v. Illinois, supra, 391 U.S. 510, which made a material change in the law in this state with respect to the standards for excluding for cause veniremen opposed to capital punishment (In re Anderson and Saterfield, supra, 69 Cal.2d 613, 618-619), but here, the standards the trial court scrupulously imposed comported fully with the subsequently announced Witherspoon standards. This is quite evident not only from the court’s detailed examination of the five veniremen excluded on the ground of their attitude toward the death penalty but also from the court’s actions with respect to other veniremen.
Finding no error under the application of Witherspoon, supra, I would discharge the order to show cause and deny the petition for a writ.
McComb, J., and Herndon, J. pro tern.,* concurred.
The voir dire examination of Mrs. Cody is as follows:
“Q. [By the Court] Mrs. Cody, you have been present through all of the proceedings, have you not?
“A. Yes, I have.
“Q. Is there anything about the nature of this action that prevents you serving fairly and impartially to the defendant, as well as the people of the State of California if selected as a juror?
“A. Yes, I am opposed to capital punishment.
“ Q. Do you have such conscientious scruples against the death penalty and its imposition that you feel you could not serve fairly and impar[705]tially to the people of the State of California as well as to the defendant if selected in this ease?
'“A. Yes. I believe given this choice I would not ever vote for the death penalty.
“Q. You understand that is the sole issue that -will have to be deter: mined by this jury?
‘ ‘ Q. And you feel that you could not under any circumstances return a verdict requiring the imposition of the death penalty?
“A. Not under these circumstances. I think if it were mandatory under certain standards that if given a choice I would—
“The Court: Do you wish to examine the prospective juror?
“Mr. Chapman [Defense counsel]: No, your Honor.”
The court then granted the prosecutor's challenge of Mrs. Cody for cause.
During the preliminary questioning by the judge, venireman Pas-torius indicated she did not favor capital punishment and felt she could not act fairly and impartially as a juror; she was not excused at that point, and neither were Mrs. Jordan, who said ‘ ‘ I definitely don’t believe in capital punishment and under no circumstances could I vote for it,” nór Mrs. Hicks who voiced ‘‘My objection is the same as Mrs. Jordan’s.” Mrs, Jordan was then asked: ‘‘Mrs. Jordan, do I understand from your expression that you under no circumstances feel that the provisions of. the law of the State of California provide that the death penalty should be enforced? Mrs. Jordan: I couldn’t say whether it should or shouldn’t. 'I personally don’t believe in the death penalty. I think only one man has that right and I cannot be convinced that two wrongs make a right and I could never never follow it. The Court: Under any circumstances? A. No.” Mrs. Hicks was then asked ‘‘Is your state of mind such that you could not under any circumstances return a verdict imposing a death penalty in any ease? A. Yes. The Court: In other words you feel that under no circumstances yon could? A. Well, there would be exceptions— I would be pretty prejudice [sic].” The court indicated he would not excuse either Mrs. Jordan or Mrs. Hicks for cause at that time. Mrs. Beason indicated she had ' ‘ a horror of the death penalty, capital punishment” but was willing to impose it under certain circumstances and in a proper ease. She was not excused for cause, nor were several other jurors who expressed similar views.
Subsequently during examination by defense counsel Mrs. Jordan again expressed the view that she could not impose the death penalty under any circumstances and was then excused for cause. Mrs. Pastorius was asked: ‘‘Mrs. Pastorius, is it your position that under no circumstances, under no set of facts could you possibly impose the death penalty? A. Yes, it is, ’ ’ and was excused for cause. Mrs. Hicks was also .excused for the same reason but since her further examination took place after Mrs. Prest-wood had been excused it could have had no bearing upon the particular issue as to the propriety of the latter’s discharge for cause.
The venireman in Anderson and Saterfield, supra, was asked, “Do you know of any reason you couldn’t be a fair and impartial juror in this ease?’’ The venireman replied, “Yes, sir, I do. I don’t believe in caipital punishment’’ and was thereupon excused for cause.
Early in the voir dire examination Mrs. Hicks made conflicting statements as to whether there were any circumstances under which she could vote for the death penalty. (See fn. 2 herein.) Later the court resumed its examination of her, and the following occurred:
, “ Q. [By the Court] Mrs. Hicks, as I recall when the Court asked you at the outset of this ease if you had any legal cause to show why you could not serve on the jury, I believe you stated that you had conscientious scruples against the death penalty and its imposition in the State of California. Am I correct?
‘ ‘ [Mrs. Hicks] That is right.
‘ ‘ Q. Are your conscientious scruples such that if selected as a juror in -this case you could not under any circumstances return a verdict—
“A. Yes, sir.
“Q. That required the imposition of the death penalty?
[708]“A. Yes, sir.
“Q. Your state of mind is such that you couldn't under any circumstances vote for the death penalty?
‘ ‘ A. That is right. ’ ’
Defense counsel stated that he did not wish to examine Mrs. Hicks, and the court then excused her for cause.