SCHAUER, J., Concurring and Dissenting. I concur in the affirmance of the judgment in all respects other than as to penalty, but I must dissent from the reversal on the penalty pll8iS6
In People v. Morse (1964) 60 Cal.2d 631, 636 [la]-653 [Id] [36 Cal.Rptr. 201, 388 P.2d 33], we held it error to give the theretofore accepted instruction (CALJIC No. 306 rev.) on possibility of parole, pardon, or reduction of sentence by the Governor or the trial court. Obedient to the mandate of article VI, section 4%, of the California Constitution,1 we then made “an examination of the entire cause, including the evidence,’’ in order to determine whether that error, on the totality of the record of that case, resulted in a miscarriage of justice. Our reasoning and conclusion were as follows (id. at pp. 652-653 [6a] of 60 Cal.2d): [176]The court then reread the above-mentioned instruction. The jury then asked additional questions relating to the alternative death or life sentences. Thus the jury, while deliberating upon the death penalty, was aware of, and had repeated to it, the facts concerning the roles of the Adult Authority, the trial judge and the Governor. Furthermore, the trial court affirmatively instructed the jury that it could consider these facts. Whatever the reasons this court might have found in the record in Linden ‘to avoid an otherwise indicated reversal,’ we find in the record here no justification for concluding that the error was not prejudicial insofar as concerns the fixing of penalty. To the contrary, after examination of the entire cause, including the evidence, we are of the opinion that it is reasonably probable that a result more favorable to defendant as to penalty would have been reached in the absence of the error. ” (Italics added.) The emphasized language of the last quoted sentence is that of this court’s well-settled interpretation of the mandate of our Constitution (art. VI, §4%) as enunciated in People v. Watson (1956) 46 Cal.2d 818, 836-837 [12] [299 P.2d 243].
[175]“We have no doubt that these errors in directing the attention of the jury to the roles of Adult Authority, judge and Governor, by means of argument, evidence and instruction in the instant case, prejudicial!y influenced the jury. Moreover, after deliberating for one day, the jury specifically asked ‘to hear again the court’s instructions re the third phase, in clarification of reference to possible consequences.’
[176]There was—and is—no ambiguity in the just quoted reasoning and conclusion of Morse, and I concurred on the understanding that the opinion meant what it said in analyzing the various factual elements “in the record here” and in applying thereto the express language of the Watson test. (See also my concurring opinion in People v. Quicke (1964) ante, p. 162 [37 Cal.Rptr. 617, 390 P.2d 393].) Obviously we found that the evidence which we are required to consider (the totality of the record including the evidence) at least preponderated in establishing that there had been a miscarriage of justice. Indeed, we said “We have no doubt” as to the effect of the error.
In the case at bench, after holding erroneous the same instruction as that condemned in Morse, the majority properly continue (ante, p. 168) : “We must determine, then, whether under article VI, section 4%, of the California Constitution the error resulted in a miscarriage of justice. [Fn. omitted.] We apply the recognized test that ‘a “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. ’ (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)”
Yet it appears to me that the majority thereafter pay no [177]more than lip service to either the constitutional mandate or “the recognized test” formulated in Watson. The majority-first argue (ante, p. 169) that “any substantial error” occurring on the penalty phase “may have affected the result” (italics added). This may be true; but having said it, we are not further advanced. The same, after all, can properly be said of any substantial error in the guilt phase: it too “may have affected the result.” But whether it simply may have done so is not the issue before us as an appellate court: Here, we are called upon to discharge our constitutional obligation and either affirm the trial court’s judgment or affirmatively determine “after an examination of the entire cause, including the evidence” that in our opinion the error has resulted in a miscarriage of justice; if we do not reach that affirmative conclusion we cannot reverse the judgment without clear violation of the Constitution’s express mandate.
Having nevertheless asserted that any substantial error “may have affected the result,” the majority then purport to apply the Watson test, saying (ante, p. 169): “it is ‘reasonably probable’ that in the absence of such error ‘a result more favorable to the appealing party would have been reached.’ ” But how can it be reasonably “probable” that a different result would have been reached if the error is simply one which “may have” affected—rather than probably did affect—the result? To say that an error “may have” affected the result is to say only that it possibly did so; this is the language of mere speculation. Indeed, such is the majority’s position: i.e., that because of the asserted absence of standards and the wide scope of admissible evidence in this phase of the trial, “the jury may conceivably rest the death penalty upon any piece of introduced data or any one factor in this welter of matter. The precise point which prompts the penalty in the mind of any one juror is not known to us and may not even be known to him.” (Italics added.) (Ante, p. 169.) That quoted language of the majority in truth precludes reversal of the judgment; it demonstrates that they cannot, on the totality of the record, rationally reach through a preponderance of proof an affirmative opinion that a result more favorable to the defendant probably would have been reached in the absence of the error complained of. In such circumstances it is of course possible that a substantial error “may have affected the result.” Yet it is equally possible that it may not have done so: as the majority subsequently—and commendably—acknowledge (ibid.), “Such factors as the grotesque nature of the crime, the certainty of guilt, or the [178]arrogant behavior of the defendant may conceivably have assured the death penalty despite any error.” (Italics added.) The very recitation of the quoted statement demonstrates that the majority’s ultimate conclusion is constitutionally untenable—and it does not question the fact of guilt.
To jump from the premise that a given error possibly (i.e., “may have”) affected the result, to the conclusion that “it is reasonably probable that” in the absence of such error a result more favorable to defendant “would have been reached” is not logic. We spoke plainly in Watson, and there is no mystery about what we meant when we used the word “probable” in the subject formulation: In this as in other uses in the law (e.g., “probable cause”), the word has its commonsense meaning of “more than a mere possibility, and more than mere conjecture.” (72 C.J.S. 969; People v. Watson (1956) 46 Cal.2d 818, 837 [12] [299 P.2d 243] [“ [T]he test, as stated in any of the several ways, must necessarily be based upon reasonable probabilities rather than upon mere possibilities; otherwise the entire purpose of the constitutional provision would be defeated”] ; see also California Words, Phrases and Maxims, p. 441 and eases there cited.) Manifestly, “probability” and “possibility” are not synonyms for meeting the explicitly defined constitutional standard. It cannot be seriously argued that the requirement for an affirmative finding of probable prejudice is satisfied by a finding of possible prejudice. In other words, this court cannot unequivocally “be of the opinion that the error complained of has resulted in a miscarriage of justice” (italics added) when by its own language it finds only a possibility that there has been such a miscarriage. Once again, the language of the majority is that of mere speculation—not the substantial preponderance of evidential proof required by section 4%.
In our work we should assume that the vast majority of the people of California are law-abiding persons of good conscience and good will. It requires no extrasensory perception to know that they want—and they deserve—at least reasonably firm and sustained law enforcement. They do not, I think, object to the law’s being sometimes tempered with mercy; but that is a function of the trial court or of the Executive, not of this reviewing court. Section 4, article VI, of our Constitution expressly provides that “The Supreme Court shall have appellate jurisdiction ... on questions of [179]law alone, in all criminal cases where judgment of death has been rendered.” (Italics added.) The foregoing language is that of limitation, as well as a grant, of power. The people, by sections 4 and 4%, evidence the fact that they do not want law enforcement to be substantially weakened, and sociopathic criminals correspondingly encouraged, by judicial innovations of technical (not concerned with guilt or innocence) grounds for reversals of judgments imposing the most feared penalty for those crimes which the Legislature has determined need most to be deterred. That great majority of our body politic are entitled to such consistently firm law enforcement as will at least tend to make them reasonably safe in their homes and places of business, and on the streets in going to and from those places.
We cannot doubt that we do not have satisfactory safety for law-abiding citizens today. That fact is concomitant with the fact that the percentage of death penalty judgments which have been reversed for declared procedural errors during the past five years is a sorry one. It was such a situation in the period preceding October 10, 1911, that led to the adoption by an aroused electorate of section 4%, article VI, of our Constitution (then made applicable only to criminal trials but later extended to civil eases). I think it is not reasonably to be expected that the current conditions of increasing crimes of violence will be ameliorated by today’s virtual abrogation, as to the penalty phase, of the mandate of article VI, section 4%, as we explained it in Watson. Under the majority’s “interpretation” of that mandate (see also People v. Hamilton (1963) 60 Cal.2d 105, 136 [27]-137 [28] [32 Cal.Rptr. 4, 383 P.2d 412]) any “substantial” error “must be deemed to have been prejudicial.” (Ante, pp. 169-170.) But it is exactly such “deemed”or “presumed” prejudice that article VI, section 4%, was adopted by the people to prevent. (See People v. Watson (1956) supra, 46 Cal.2d 818, 834-835 [11], and eases there cited.) It is no answer to say that prejudice must be “presumed” from such error on the penalty phase because the jury is assertedly vested with an “absolute and unguided discretion” in fixing the penalty (ante, p- 168). The majority do not discuss (or even mention) the fact that at the time article VI, section 4%, was adopted juries also possessed such discretion.2
[180]Nor is it any answer to point to the enactment of Penal Code section 190.1 in 1957, whereby the Legislature sanctioned broad inquiry into “the defendant’s background and history, and ... any facts in aggravation or mitigation of the penalty. ...” To begin with, that enactment could not have the effect of abrogating pro tanto article VI, section 4%, of our Constitution, for the obvious reason that the Legislature has no power to thus nullify a constitutional command. Moreover, the primary emphasis of the majority here is on the so-called “legal vacuum” in which the jury assertedly operate (ante, p. 170) ; but in that respect, as noted above, the discretion vested in the jury was no less “absolute” at the time article VI, section 4%, was adopted than it is today. Then as now an appellate court could not know “The precise point which prompts the [death] penalty in the mind of any one juror”; then as now it could be said that “any particular factor” might “influence any two jurors in precisely the opposite manner.” (Ante, p. 169.) Yet in adopting the constitutional mandate the people made no express or implied exception for the issue of penalty in a trial for first degree murder, but declared absolutely that “No judgment shall be set aside, or new trial granted, in any case,” unless its terms be complied with.3 (Italics added.)
The most devastating blow to article VI, section 4%, as it applies to the penalty phase, is struck by the majority’s definition of that “substantial error” which is “deemed to have been prejudicial.” Instead of applying the constitutional test to determine whether any given error was “substantial” in that sense, the majority assert (ante, p. 170):
[181]“Our sole inquiry here devolves into a determination of whether substantial error, that is, substantial deviation from the standards established in Morse, has occurred. We have set forth above the incidents of the errors under the Morse test. That the deviations were substantial cannot be seriously questioned. We therefore hold that prejudicial error occurred in the instant penalty trial.” (Italics added.) Since the instruction condemned in Morse was commonly given (with the approval of this court) in all capital murder trials (over a period of years) before the Morse opinion was handed down, it follows from the emphasized language of the majority opinion that in all eases of that nature there has been “substantial deviation from the standards established in Morse,” and hence that the giving of such instruction will hereafter “be deemed to have been prejudicial” in those cases. Today’s decision appears to suggest that the majority will “apply” article VI, section 4%, in eases where that application tenably leads to a reversal (e.g., Morse and People v. Quiche (1964) supra), but will reach the same result in all other related eases—regardless of what may be revealed by “an examination of the entire cause, including the evidence”—by the simple expedient of invoking the Hamilton language and “deeming” prejudicial the bare giving of the instruction itself.
The mandate of section 4%, article VI, is clear and is unequivocally recognized by this court in People v. Watson (1956) supra, 46 Cal.2d 818, 836-837 [12]; likewise clear is the limitation of section 4 on our powers of review to “questions of law alone, in all criminal cases where judgment of death has been rendered.” These are not just statutes; these are constitutional bulwarks. By these sections the people, properly concerned for their own (and loved ones’) safety, have demonstrated that a judgment of death, once rendered, is not lightly to be set aside. Mere speculation that judicially declared procedural error may have contributed to the verdict is not a basis upon which we can lawfully disturb a judgment of death. The verdict is not ours; it is that of the jury. And the judgment is that of the trial court duly rendered pursuant to the verdict. We have neither right nor power to reverse that judgment unless the evidence before us (the totality of the record) establishes not only error but the probability—i.e., preponderates in showing—that a result more favorable to defendant would have been reached in the absence of the error.
[182]It bears repeating that in Watson we said “ [T]he test, as stated in any of the several ways, must necessarily be based upon reasonable probabilities rather than upon mere possibilities ; otherwise the entire purpose of the constitutional provision would be defeated.” (People v. Watson (1956) 46 Cal.2d 818, 837 [12] [299 P.2d 243].) Today, in the ease at bench, it appears to me that by the majority’s ruling “the entire purpose of the constitutional provision [is] defeated.”
I have made “an examination of the entire cause, including the evidence” in this case, and I find herein no such concatenation of factual elements as warranted our conclusions of prejudice in Morse and Quicke. The record here simply does not support an affirmative finding that in the absence of the subject errors a result more favorable to defendant would have been probable. Accordingly, I would affirm the judgment in its entirety.
Artiele VI, section 4%, reads as follows: “No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”
Since the 1874 Penal Code section 190 has provided that “Every person guilty of murder in the first degree shall suffer death, or confine[180]ment in the State Prison for life, at the discretion of the jury” (italics added.) (See also People v. Spencer (1963) 60 Cal.2d 64, 75 fn. 3 [31 Cal.Rptr. 782, 383 P.2d 134].)
That a related constitutional provision applies alike to issues of punishment as well as guilt has been recognized by this court: "There is no justification for holding that a judge has a lesser right to comment on the evidence where punishment is involved than where matters relating to guilt are in issue, and the same principles should be applied in determining whether the power [conferred by section 19 of article VI] has been properly exercised. ... It is true that the jury has exclusive discretion as to the punishment to be imposed, but no distinction can be made on this ground since the jury is also the exclusive judge of all questions of fact relating to guilt. In short, regardless of which issue is being tried, the respective functions of judge and jury as to factual questions are the same, and neither the language of the constitutional amendment nor the purpose underlying its adoption permits the imposition of different limitations on the power to comment on the evidence. ’ ’ (People v. Friend (1958) 50 Cal.2d 570, 579 [7] [327 P.2d 97].)