BURKE, J. I concur in the affirmance of the judgment against Sears, as modified.
I concur in the affirmance of the judgment against Ketchel in all respects except as to the reversal of the penalty as to which I dissent.
The majority base their reversal upon asserted violations of the subsequently announced decision of the Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770].
In our recent unanimous decision in People v. Varnum, 70 Cal.2d 480 [75 Cal.Rptr. 161, 450 P.2d 553], this court laid down certain specific guidelines to govern our review of death’ penalty cases to determine whether prospective jurors were excluded in violation of the principles established in Wither-spoon. This court said in Varnnim (at p. 492-493): “In our application of the rule announced in Witherspoon, we must determine whether the prospective juror who has been excused for cause made it ‘unmistakably clear’ that he or she would automatically vote against the imposition of the death penalty regardless of the evidence in the case. Our task requires us to assess the responses of the venireman in the full context of that portion of the court and counsels’ voir dire examination of the entire panel conducted during the time said venireman was present in the courtroom and until the time he or she was excused for cause. To ascertain what the juror meant by what he said, we must consider not merely the words of his answers but also the words of the questions he was asked and additionally all of the circumstances in which the colloquy took place. The voir dire examination of a jufor individually is not conducted in a vacuum; it is but a part of a broader process directed to an entire group of men and women designed to effectuate the selection of fair and impartial jurors. ... In short, in our probing of the juror’s state of mind, we cannot fasten our attention upon a particular Word or phrase to the exclusion of the entire context of the examination and the full setting in which it was conducted. We are not unmindful of the Supreme Court’s observation in Witherspoon that ‘it can[652]not be assumed that a juror who describes himself as having ‘ ‘ conscientious or religious scruples ’ ’ against the infliction of the death penalty or against its infliction “in a proper case” (see People v. Bandhauer, 66 Cal.2d 524, 531 [58 Cal.Rptr. 332, 420 P.2d 900, 905]) thereby affirms that he could never vote in favor of it or that he would not consider doing so in the case before him.’ (Witherspoon v. Illinois, supra, 391 U.S. 510, 515-516, fn. 9 [20 L.Ed.2d 776, 781].) But neither the words .‘in a proper case’ nor any other words, taken alone, can be seized upon as a touchstone by which to determine the quality of the juror under Witherspoon. We must evaluate them in context.”
I submit that the reasonable and fair application of these rules to the instant case indicates conclusively, just as it did in Varnum, that the charge of the majority here that venireman D ’Arcy was improperly excluded is without foundation in fact.
The introductory statements of the trial judge to the veniremen in Varnum in pertinent part are set forth in a footnote.1 It will be noted that the judge in the case at bench was even more explicit in addressing the panel of prospective jurors:
‘ ‘ Now in this case if you were, however, to find the defendants guilty of the offense charged, one of the penalties is death, and the Court is required to ascertain if any prospective juror entertains such conscientious opinions as would preclude his or her finding a defendant guilty, if the evidence should justify such finding, or if he or she would under no circumstances vote for the death penalty in a proper case.
1 ‘ If you entertain such conscientious opinions, the law provides that you will not be permitted or compelled to serve as a juror. . . .
“If a defendant is found guilty of Murder in the first degree, an offense punishable by life imprisonment or death, there shall thereupon be further proceedings on the issue of [653]penalty and the jury shall fix the penalty of death or life imprisonment.
“In other words, in a first-degree murder ease, we have what is called a bifurcated trial. You first determine, the jury first determines as to whether or not a defendant is guilty of the crime as charged, that is, Murder in the first degree. If you find a defendant guilty of Murder in the first degree, then you will also proceed by a second trial to determine whether, on the matter of penalty, it will be life imprisonment or death, and the jury has a wide discretion in determining whether or not it shall be life or whether the penalty shall be death in the case of first-degree Murder.
“However, if the defendant is acquitted, as mentioned, or found guilty of a lesser offense than Murder in the first degree, then the jury does not consider the matter of penalty. The law, as mentioned, imposes neither death nor life imprisonment but presents the two alternatives to the absolute discretion of the jury. The Legislative has formulated no rules to control the exercise of the jury’s discretion.
‘ ‘ The Court, therefore, inquires of the prospective jurors if there are any of you who entertain such conscientious opinions concerning the death penalty that would preclude you from finding a defendant guilty if the evidence should justify such finding.
“Is there any juror who entertains such conscientious opinions that he or she could under no circumstances vote for the death penalty in a proper case ? ’ ’ (Italics added.)
It would be difficult to conceive of how the trial judge could have improved his opening remarks to the panel as a whole to make it perfectly clear that by the phrase “ in a proper case ’ ’ he meant one in which the jury in the exercise of its “absolute discretion” determined the death penalty to be proper; that the law imposes neither death nor life imprisonment; and that the “Legislature has formulated no rules to control the exercise of the jury’s discretion.” The judge then noted that “any juror who entertains such conscientious opinions that he or she could under no circumstances vote for the death penalty in a proper case” (italics added) would be excused from serving.
In this manner the court in the instant case adequately impressed upon the minds of- the jurors two of the crucial requirements of Witherspoon for the proper exclusion of jurors for cause: (1) That by the use of the term “proper case” is meant one which is left entirely within “the absolute [654]discretion of the jury/'’ and (2) that the conscientious objections of a prospective juror to the imposition of the death penalty must be such that “under no circumstances” would the juror vote to impose the death penalty.
It is to be noted that these preliminary statements by the trial judge to the assembled panel, unlike those of the judge in Varnum, went into the second requirement of Witherspoon mentioned above that the conscientious objections of the prospective juror must be so firm that the juror under no circumstances would vote for the imposition of the death penalty regardless of the evidence in the case. In Varnum this second requirement was taken care of in the individual questioning of jurors which followed the judge’s opening admonitions.
The majority limit their discussion of the voir dire examination of individual veniremen largely to that of Mrs. D ’Arcy. In the interest of brevity we refer to the questioning of Mrs. D’Arcy as set forth in the majority opinion ( ante, pp. 635-650). The crucial question asked of her by the court was: ‘ ‘ Q. And if you felt from the evidence that this was a proper case for the imposition' of the death penalty) could you vote for the imposition of the death penalty if you believed that it was a proper case? A. No, your Honor, I could not.” (Italics added.) I have italicized certain words to indicate that the judge was following up his introductory remarks, in which he told the panel that it would be up to the jury to determine penalty without any rules laid down by law, in order to make it clear to this individual juror that the decision as to penalty was not only the collective decision of the jury as a whole but was necessarily an individual decision for each juror. Notwithstanding the clarity of this question and the straightforward answer given, the court repeated the question in a slightly different manner in order to ascertain for certain that her objection to the death penalty was such that not even in a case in which she felt the death penalty eould properly be imposed would she vote for that penalty: “Q. You believe that you entertain such a conscientious objection that even in a proper case that you could not impose the death penalty, assuming it was— A. I do. ”
When considered in conjunction with the preliminary statement by the court, the individual questioning of Mrs. D ’Arcy indicated quite clearly that she was properly excused for cause. Since the majority single out the voir dire of Mrs. D’Arcy for attack, we may assume that they consider it the worst example of a Witherspoon violation.
[655]It should be borne in 'mind also that the examination of Mrs. D ’Arcy was preceded by the individual questioning of a number of other jurors in which the court and counsel repeatedly stressed that the decision as to what is a proper case is for the individual juror to decide from the evidence without guidelines or help from the law,2 and furthermore that the strength of the juror’s convictions against the imposition of the death penalty must be such that “under no circumstances ’ ’ would he.vot-e to impose that penalty.
Defense counsel Ettinger and Markey obviously were concerned that jurors opposed to the death penalty might be improperly excused from serving on the jury when it considered the issue of guilt, and they questioned- a number of jurors as to whether their feelings with respect to the death penalty would preclude them from deciding the guilt issue. I submit that it was only as to this issue that venireman Le-maire indicated some confusion in her answers.
The majority quote a portion of the questioning of juror Lemaire (ante, p. 649) as indicating that this juror was confused as to what was meant by “a proper case.” The particular portion quoted was after the voir dire examination by defense counsel Ettinger-with respect to that juror’s attitude on the guilt phase and not that of penalty. Juror Lemaire was the first juror to raise her hand when the judge had finished his preliminary explanation to the panel, detailed above, and had concluded with the general question: “Is there any juror who entertains such conscientious opinions that he or she could under no circumstances vote for the death penalty in a proper easel” (Italics added.) The court then [656]asked her: “In other words, is it yonr feeling that.from the evidence, if this is a proper case for the imposition of the death penalty, that you could not or would not vote for the imposition of the death penalty because' of your conscientious objection or opinion; is that correct? A. Yes sir.”
Certainly there was no confusion shown by juror Lemaire up to this point. It was then that defense counsel Ettinger asked her concerning the guilt phase:
“Q. Mrs. Lemaire, his Honor posed to you a question in two parts, the first part of which was — I am going to paraphrase it — does your feeling in opposition to the death penalty or would your feeling in opposition to the death penalty preclude you from rendering a, verdict on the issue of guilt, or could you decide that part of it ?
“A. I could decide that part of it, but I don’t believe in capital punishment. So when it got to the second part of it, I don’t think I would be a proper juror.
“Mr. EttiNger: We would object on behalf of Defendant Sears to the challenge for cause of this juror.
“Mr. Maricev: If it please the Court, may I join in the objection and also state for the record — and I don’t intend to repeat this too often, your Honor, and I would request that I have a standing objection — but I feel that my client is entitled on the issue of guilt to a jury which has not had excluded, by reason of any conscientious objections, any part of the general public, and I feel that Mrs. Lemaire, in this particular instance, and anyone else in any instance, is part of the public from whom the jurors are selected. (Italics added.)
“I would object to anyone being excluded on the basis of cause who happens to hold such a conscientious objection. I do so based on the United States Constitution and the Constitution of the State of California. ’ ’
At this point the judge again questioned juror Lemaire and the colloquy which followed her answer to one of the questions asked by the judge is seized upon by the majority to indicate confusion as to what was meant by ‘ ‘ proper case. ’ ’ I submit, however, that when the voir dire is considered in its entirety rather than the isolated portion thereof selected by the majority it is apparent that juror Lemaire was not confused by the term “proper case” but rather was uncertain whether the judge was asking her if her feelings would prevent her from deciding the issue of (1) guilt or (2) penalty.
The majority refer to the examination of two other jurors, Mr. Lagman ánd Mrs. Eastman, to substantiate the statement [657]that there was confusion in the minds of the jurors as to what was meant by the phrase “a proper case.” As to juror Lagman, the majority quote three questions and answers to demonstrate this claim. (Ante, p. 649.) The voire dire of, this particular juror and the colloquy between court and counsel extend through 20 pages of the reporter’s transcript, much of which was taken up by the juror’s repeated assertion that he would vote .to impose the death penalty only in cases of premeditated murder. He stated in part: “Like I said, your Honor, if it would appear to be premeditated, coldblooded murder, I think under- that circumstance I could possibly vote for it.” Subsequently, some confusion was brought about by the prosecuter’s reference to the felony-murder doctrine (a robbery-murder). The latter pointed out that under the law a robbery-murder would also be a first degree murder, even though the murder was not premeditated, and asked whether the juror under such circumstances “could bring [himself] to vote the death penalty?” In a colloquy with counsel, the trial court summarized the juror’s position by saying:" He limits it to premeditation, as I understand his answers. First he answered the question that he couldn’t give the death penalty when I gave him the question. Then he qualified it subsequently to add the word ‘premeditation.’ That is the only time that he would vote it. That is his definition, I suppose, of a proper case.
“Well, I will give the defendants the benefit of the doubt and deny the challenge.” (Italics added.) Thus, it is obvious that this juror clearly understood that wha.t is a proper case is for the determination of the individual juror.
In the examination of Mrs. Eastman, which immediately followed the questioning of Mr. Lagman, she indicated some confusion as to what she heard ‘ ‘ about instruction in terms of penalty.” At -this point defense counsel stated: “I could say this just briefly and without conceding that we ever get that far in this trial, without conceding we ever get to a penalty phase. I think the Court has indicated to you and will indicate in the instructions that the penalty is up to you in your sole discretion. They will not say that if you find such-and-such-and-such, you give life, and if you find such-and-such- and-such, you come in with death in the gas chamber.
“The Court will say you are the judge, and I say ‘You’ in the general sense of the jury and you as a separate individual member. (Italics added.)
[658]“Now, perhaps the Court will ca,re to elaborate.
“The Court: Well, Mrs. Eastman, if the defendants are found guilty of murder in the first degree, an offense punishable by life imprisonment or death, there shall thereupon be further proceedings on the issue of the penalty. The jury shall fix the penalty of death or life imprisonment.
‘1 The law imposes neither death nor life imprisonment but presents the two alternatives to the absolute discretion of the jury.
“The Legislature has formulated no rules to control the exercise of the jury’s discretion.
‘ ‘ Does that clear the matter up for you ?
“ [Mrs. EastmaN] : Yes, it does.”
These further explanations were substantially the same as those previously given before venireman D ’Arcy was excused. Venireman Eastman apparently had not heard or paid close attention to the earlier explanations and expressly stated that the court’s further explanations cleared up the matter for her. It is unreasonable to infer from her comments that venireman D’Arcy was confused by the court’s prior explanations.
I, am satisfied that the issue of defendants’ penalty was determined by a fair and impartial jury, and I would therefore affirm the judgment in that respect.
McComb, J., and Sullivan, J., concurred. The petition of appellant Sears for a rehearing was denied September 4, 1969.
"‘Now in. the State of California the law does not impose either of two possible alternative punishments, but leaves that in the sole discretion of the jury.
“ ‘The State of California f-or the crime of murder, if the finding is murder in the first degree, the legislature has two possible alternative penalties.
‘ ‘ ‘ One is life imprisonment and, second, the penalty is death, and the determination of the proper penalty is left, as I have indicated, in the sole discretion of the jury.’ ” (People v. Varnum, supra, 70 Cal.2d 480, 495, fn. 9.)
In the questioning of jurors Leinaire, Blasco anh Lindamood, which preceded the voir dire examination of Mrs. D’Arcy, each was ashed whether his objections to the death penalty were such that he would not vote to impose it even if he felt (or believed) from the evidence that it was a proper case for the imposition of such penalty. In addition, as to the jurors ultimately excused for cause each was asked substantially the same question. Furthermore, jurors Lemaire and Kinslow each asserted that his convictions were such that under no circumstances would he vote to impose the death penalty. As to the other jurors excused, their Arm opposition to imposition of the death penalty was expressed in varying ways, but I submit that a fair and reasonable reading of their voir dire examinations will reveal that it was to the same effect that under no circumstances would they vote to impose that penalty. Several (Taylor and Turner) stated that they could not even vote on the issue of guilt if it meant that the defendant would be put to death. Others asserted that they could not pass the judgment of death (Detlefsen), could not vote for it (Hayes) or even in a case in which they felt the evidence made it a proper ease for the imposition of the death penalty, they could not vote for it (D’Arcy and Guzzo).