In re ROBERT PAGE ANDERSON on Habeas Corpus; In re FREDERICK SATERFIELD on Habeas Corpus, 69 Cal. 2d 613

BURKE, J. The issue here presented is whether the death penalty and the procedures followed in imposing it are constitutional, and not whether it should be retained or abolished in California. Retention or abolition raises a question of legislative policy which under our system of division of powers falls within the competence of the Legislature or the electorate. A jury found Frederick Saterfield guilty on two counts of first degree murder and fixed the penalty on each count at death; the judgment was affirmed (People v.

Saterfield, 65 Cal.2d 752 [56 Cal.Rptr. 338, 423 F.2d 266] [cert. den. 389 U.S. 942 and 964 [19 L.Ed.2d 378, 88 S.Ct. 352]]). A jury also found Robert Page Anderson guilty of first degree murder, attempted murder of three other men, and first degree robbery, and fixed the penalty at death for the murder; the judgment was affirmed (People v. Anderson, 64 Cal.2d 633 [51 Cal.Rptr. 238, 414 P.2d 366]). Saterfield and Anderson now seek habeas corpus on the grounds that (1) it was improper to excuse for cause veniremen consciéntiously opposed to the death penalty;

(2) Penal Code sections 190 and 190.1 are unconstitutional because they contain no standards to assist the trier of fact in determining whether to impose death or life imprisonment; (3) the death penalty per se and as applied, constitutes cruel and unusual punishment; and (4) petitioners have been denied their right to counsel in post-state-appeal proceedings. We issued orders to show cause and pending final determination of the instant proceedings stayed all judgments of death in California.

Counsel in all pending automatic appeals and other attorneys were afforded an opportunity to file amicus curiae briefs, in which additional arguments have been presented challenging the constitutionality of the death penalty as applied in California.

We hold that the death penalty is constitutional and does not constitute cruel or unusual punishment, that Penal Code sections 190 and 190.1 are valid, and that in keeping with a newly declared policy of this court petitioners, and all other indigent defendants in capital cases, in the interests of justice, will be afforded the services of counsel in the proceedings hereafter specified between the termination of their state appeals and their execution. We have further concluded that under the compulsion of the June 3, 1968, decision of the United States Supreme Court in Witherspoon v.

Illinois, 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 770], the death penalties in the two cases now before us must be set aside because certain prospective jurors were improperly excused for cause. It is necessary, therefore, that petitioners be remanded to the trial courts for new trials limited to the issue of penalty. Excusing Veniremen Opposed To Death Penalty Petitioners argue that excusing for cause veniremen conscientiously opposed to the death penalty deprived them of a jury which fairly represented a cross

section of the community and tended to assure the state a jury whose members were favorable to the prosecution at each phase of the trial. At Saterfield’s trial two prospective jurors and two prospective alternate jurors were excused for cause on the ground of their opposition to the death penalty. Likewise at Anderson’s trial seven prospective jurors and one prospective alternate juror were excused for cause on that same ground.

At each trial one or more of the prospective jurors excused on that ground did not make it “unmistakably clear (1) that [he] would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial ... or (2) that [his] attitude toward the death penalty would prevent [him] from making an impartial decision as to the defendant’s guilt,” as mandated by the Witherspoon decision. (391 U.S. 510, 522-523, fn. 21 [20 L.Ed.2d 776, 785].) For example, at Saterfield’s trial one prospective juror stated, “I am opposed to the death penalty,” and was thereupon excused for cause; at Anderson’s trial one prospective juror in response to the question “Do you know of any reason you couldn’t be a fair and impartial juror in this case?” replied, “Yes, sir, I do.

I don’t believe in capital punishment” and was immediately excused for cause. In neither instance had the court made it clear to that particular prospective juror that opposition to the death penalty or conscientious scruples against that penalty would be insufficient by itself to disqualify such a juror from serving. This is not surprising, because the trials preceded the decision of the United States Supreme Court in Witherspoon v.

Illinois, supra, 391 U.S. 510, which sets forth new rules that the states are not only compelled to follow but must apply retroactively (see fn. 22, at p. 523 [20 L.Ed.2d at p. 785]).

Witherspoon held “that a sentence of death can not be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its indiction. ’ ’ Witherspoon further stated that “No defendant can constitutionally be put to death at the hands of a tribunal so selected” but that “nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt. ’ ’ Witherspoon, therefore, requires us to set aside the death penalties imposed on petitioners and to have the issue of penalty retried.

There is no merit to the Attorney General ’s contention that, since, assertedly, the California law at the time of petitioners’ trials was not materially different from the rules in Witherspoon, defense counsels’ failure to object to the exclusion of the prospective jurors in question bars petitioners from now claiming error. At the time of petitioners’ trials, under decisions interpreting Penal Code

section 1074, subdivision 8, it was proper to excuse for cause prospective jurors who “did not believe in capital punishment” or who were “conscientiously opposed to capital punishment” as well as those “whose consciences would preclude them from imposing [the death penalty].” (E.g., People v. Shipp, 59 Cal.2d 845, 853 [31 Cal.Rptr. 457, 382 P.2d 577] [cert. den. 377 U.S. 999 [12 L.Ed.2d 1049, 84 S.Ct. 1927]] ; People v. Love, 56 Cal.2d 720, 726 [16 Cal.Rptr. 77 7, 17 Cal. Rptr. 481, 366 P.2d 33, 809] ; People v.

Duncan, 53 Cal.2d 803, 816 [3 Cal.Rptr. 351, 350 P.2d 103] [pet. for cert, granted, 363 U.S. 840 [4 L.Ed.2d 1725, 80 S.Ct. 1639] ; writ dismissed 366 U.S. 417 [6 L.Ed.2d 380, 81 S.Ct. 1355]]; People v. Wein, 50 Cal.2d 383, 394 [326 P.2d 457] [cert. den. 358 U.S. 866 [3 L.Ed.2d 99, 79 S.Ct. 98] ]; People v. Riser, 47 Cal.2d 566, 573-576 [305 P.2d 1] [app. dism. 358 U.S. 646 [3 L.Ed.2d 568, 79 S.Ct. 537]]; People v. Hoyt, 20 Cal.2d 306, 316 [125 P.2d 29]; People v. Kynette, 15 Cal.2d 731, 744-745 [104 P.2d 794] [cert. den. 312 U.S. 703 [85 L.Ed.2d 1136, 61 S.Ct. 806] ] ; see People v.

Garter, 56 Cal.2d 549, 573, fn. 10 [15 Cal.Rptr. 645, 364 P.2d 477].) It is obvious that Wither-spoon made a material change in the law in this state. Since petitioners were tried before Witherspoon, failure to object to the exclusion of the prospective jurors in question does not bar petitioners from now claiming error. (Cf. People v. Nye, 63 Cal.2d 166, 175 [45 Cal.Rptr. 328, 403 P.2d 736]; People v. Love, supra, 56 Cal.2d 720, 731-732; People v.

Kitchens, 46 Cal.2d 260, 262-263 [294 P2d 17].) The Attorney General also contends that any error under Witherspoon in excusing for cause prospective jurors opposed to the death penalty is nonprejudicial where, as here, the prosecution had sufficient peremptory challenges to remove all such jurors.

The Attorney General asserts that since the chances of a jury’s being able to determine the penalty impartially are diminished if the jury contains even one person who is hostile to, or has reservations concerning, the death penalty, it may be assumed that, if the challenges for cause had not been available, the prosecutors would have excluded the veniremen in question by way of peremptory challenge ; that a prosecutor may constitutionally exercise his peremptory challenges in a particular case for any purpose he deems proper (Swain v.

Alabama, 380 U.S. 202, 221-222 [13 L.Ed.2d 759, 773-774, 85 S.Ct. 824]); and that therefore any error in excluding for cause the veniremen in question did not affect the composition of the juries at petitioners’ trials and is not a ground for vacating the death sentences. We do not agree.

Witherspoon did not discuss the effect of the existence of remaining peremptory challenges of the prosecution, but the broad language of the opinion establishes without doubt that in no case can a defendant be put to death where a venireman was excused for cause solely on the ground he was conscientiously opposed to the death penalty. According to our understanding of Witherspoon, reversal is automatically required if a venireman was improperly excused for cause on the basis of his opposition to the death penalty.

It may be noted that in Witherspoon the defense had three remaining peremptory challenges when it accepted the . jury, but that fact was not viewed as showing that the jurors who were impaneled were impartial and that therefore no harm resulted from improperly excusing for cause some prospective jurors.

Furthermore, in arguing that it may be assumed that the prosecutor would have used his peremptory ■ challenges to remove veniremen who under Witherspoon were improperly excused for cause, the Attorney General bases his argument on a concept of an impartial jury that is in conflict with the majority opinion in Witherspoon.

Under the view of the Witherspoon majority a jury from which all prospective" jurors opposed the death penalty have been excluded is not an impartial jury but rather constitutes a “hanging jury,” one that is “uncommonly willing to condemn a man to die,” and one that “cannot speak for the community” but “can speak only for a distinct and dwindling minority.” We cannot engage in conjecture that the prosecutor would have used his peremptory challenges to excuse all such jurors.

Witherspoon left undecided the question whether the exclusion of veniremen opposed to capital punishment necessitates setting aside the judgment as to guilt. The opinion noted (fn. 11, p. 517 [20 L.Ed.2d at p. 782]) that during the post-conviction proceedings there under review no request was made to submit evidence on the matter.

The petitioner in that case pointed to certain materials, but the United States Supreme Court stated, “We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. ’’ In the instant case petitioners made a motion for an evidentiary hearing regarding their claim that the exclusion of veniremen opposed to capital punishment results in an unrepresentative jury on the issue of guilt and substantially increases the risk of conviction.

We denied the motion in December 1967. Petitioners have again requested such a hearing and ask that we reconsider the matter in the light of Witherspoon.

They state that they have arranged with Louis Harris and Associates to conduct a described study and that the result of this study “is suggestive of the kind of factual inquiry whose product can be presented at an evidentiary hearing.” They further state that the Harris study has not yet been finished and that preparation for an evidentiary hearing will require “several more months—at the least.” What was stated by the New Jersey Supreme Court in response to a request for the same type of evidentiary hearing is applicable, namely, “. . . we cannot suspend the judicial process until projected studies are made at the behest of a litigant.

This is especially true when the studies are of a sociological or psychological nature, for the prospect is remote that such studies will yield views of human behavior of such incontestable, eternal truth that existing constitutional doctrines will have to retreat before them. Such studies hold too little promise to warrant what would amount to an indeterminate stay of the judicial process in a critical area.” (State of New Jersey v.

Forcella (July 1968) 52 N.J. 263 [245 A.2d 181].) It is thus unnecessary to consider at this time various arguments of the Attorney General in support of his position that petitioners are not entitled to an evidentiary hearing. Penalty Discretion: Standards Petitioners further contend that Penal Code sections 190 and 190.1 violate the due process and equal protection clauses of the United States Constitution because those sections, allegedly without specifying any standards, impose on the trier of fact the duty of selecting the penalty.

It is asserted that the absence of standards prevents a defendant from knowing how to defend himself at the penalty trial, permits the trier of fact to impose the death penalty for arbitrary reasons, and precludes a meaningful review of the penalty imposed.

Section 190, as enacted in 1872, specified the death penalty as the sole punishment for first degree murder. By the amendments of 1873-1874, the

section vested in the trier of fact discretion to fix the penalty at death or life imprisonment, and from that time to the present date no amendments to the

section have modified or limited in any way the absolute discretion of the trier of fact to determine which of the two penalties to impose.

Section 190.1, as enacted in 1957 and amended in 1959, likewise does not limit that discretion. This court has held repeatedly that under sections 190 and 190.1 the Legislature has entrusted to the absolute discretion of the trier of fact the awesome decision between life imprisonment and death for first degree murder (e.g. People v. Polk, 63 Cal.2d 443, 454 [47 Cal.Rptr. 1, 406 P.2d 641] [cert. den. 384 U.S. 1010 [16 L.Ed.2d 1016, 86 S.Ct. 1914]]; People v. Hines, 61 Cal.2d 164, 168-169 [37 Cal.Rptr. 622, 390 P.2d 398]; People v. Purvis, 56 Cal.2d 93, 96 [13 Cal.Rptr. 801, 362 P.2d 713]; People v.

Brice, 49 Cal.2d 434, 437 [317 P.2d 961]; People v. Green, 47 Cal.2d 209, 218 [302 P.2d 307]), and that the law does not prescribe or authorize the court to innovate any rule circumscribing the exercise of that discretion—that the jury need not find ameliorating circumstances to impose life imprisonment, nor need they find aggravating circumstances to impose death (e.g. People v. Hamilton, 60 Cal.2d 105, 136 [32 Cal.Rptr. 4, 383 P.2d 412]; People v. Lane, 56 Cal.2d 773, 786 [16 Cal.Rptr. 801, 366 P.2d 57] ; People v. Green, supra, 47 Cal.2d 209; People v. Friend, 47 Cal.2d 749, 767 [306 P.2d 463]).

An instruction directing the jury to fix the penalty at death unless they found extenuating circumstances was held contrary to the statute and erroneous in People v. Green, supra, 47 Cal.2d 209, 217, which overruled a line of eases originating with People v. Welch (1874) 49 Cal. 174, that approved such an instruction. Although the jury has absolute discretion in determining which penalty to impose, safeguards exist to protect against any possibility of arbitrary action.

In disposing of a defendant’s motion for a new trial, the trial judge has the duty to review the evidence to determine whether in his independent judgment the weight of the evidence supports the jury’s verdict, and if he decides it does not, he has the power to reduce the penalty to life imprisonment. (Pen. Code, § 1181, subd. 7 ; People v. Hill, 66 Cal.2d 536, 567-568 [58 Cal.Rptr. 340, 426 P.2d 908] [cert. den. 389 U.S. 993, and 390 U.S. 911 [19 L.Ed. 2d 884, 88 S.Ct. 838]]; People v. Love, supra, 56 Cal.2d 720, 727-729; People v.

Moore, 53 Cal.2d 451, 454 [2 Cal.Rptr. 6, 348 P.2d 584].) In addition the Governor has the power to grant a pardon or commutation. (Cal. Const., art. V, § 13; Pen. Code, § 4800 et seq.) This court, however, has consistently and repeatedly held that it has no power to substitute its judgment as to choice of penalty for that of the trier of fact. (E.g. People v. Lookadoo, 66 Cal.2d 307, 327 [57 Cal.Rptr. 608, 425 P.2d 208]; People v. Mitchell, 63 Cal.2d 805, 821 [48 Cal.Rptr. 371, 409 P.2d 211] [cert. den. 384 U.S. 1007 [16 L.Ed.2d 1021, 86 S.Ct. 1985]] ; People v. Howk, 56 Cal.2d 687, 699-701 [16 Cal.

Rptr. 370, 365 P.2d 426];; People v. Monk, 56 Cal.2d 288, 300 [14 Cal.Rptr. 633, 363 P.2d 865] ; People v. Rittger, 54 Cal.2d 720, 734-735 [7 Cal.Rptr. 901, 355 P.2d 645]; People v. Cash, 52 Cal.2d 841, 845 [345 P.2d 462] ; People v. Linden, 52 Cal.2d 1, 26 [338 P.2d 397] [cert. den. 364 U.S. 849 [5 L.Ed.2d 73, 81 S.Ct. 94] ] ; People v. Green, supra, 47 Cal.2d 209, 235; People v. Harrison, 41 Cal.2d 216, 219 [258 P.2d 1016] ; People v. Dessauer, 38 Cal.2d 547, 555 [241 P.2d 238] [cert. den. 344 U.S. 858 [97 L.Ed. 666, 73 S.Ct. 96] ] ; People v. Thomas, 37 Cal.2d 74, 77-78 [230 P.2d 351] ; People v.

Odle, 37 Cal.2d 52, 58-[230 P.2d 345] ; People v. Danielly, 33 Cal.2d 362, 383 [202 P'.2d 18] [cert. den. 337 U.S. 919 [93 L.Ed. 1728, 69 S.Ct. 1162]]; People v. Tuthill, 32 Cal.2d 819, 827 [198 P.2d 505].) The constitutionality of sections 190 and 190.1, as construed by this court, has been upheld. Repeated previous attacks upon one or both of the sections on the ground that their Í ailure to provide standards rendered them unconstitutional or impermissibly vague or a violation of due process consistently have been rejected. (E.g. People v.

Hill supra, 66 Cal.2d 536, 568-569 [cert. den. 389 U.S. 993 and 390 U.S. 911 [19 L. Ed,2d 884, 88 S.Ct. 838] ]; People v. Seiterle, 65 Cal.2d 333, 340 [54 Cal.Rptr. 745, 420 P.2d 217] [cert. den. 387 U.S. 912 [18 L.Ed.2d 633, 87 S.Ct. 1699]]; People v. Mason, 54 Cal.2d L64,169 [4 Cal.Rptr. 841, 351 P.2d 1025],) In other jurisdictions courts have likewise rejected claims that due process or equal protection was violated by statutes vesting in the trier of fact unguided discretion in the choice between the penalties of death and life imprisonment. (Maxwell v.

Bishop, 398 F.2d 138, 148-150; In re Ernst’s Petition, 294 F.2d 556, 560-561 [cert. den. 368 U.S. 917 [7 L.Ed.2d 132, 82 S.Ct. 198]]; State v. Walters, 145 Conn. 60 [138 A.2d 786,792-794] [app. dism. and cert. den. 358 U.S. 46 [3 L.Ed.2d 45, 79 S.Ct. 70]]; State v. Latham, 190 Kan. 411 [375 P.2d 788, 796-799] [cert. den. 373 U.S. 919 [10 L.Ed.2d 418, 83 S.Ct. 1310]]; Chatterton v. Dutton, 223 Ga. 243 [154 S.E.2d 213, 215] [cert. den. 389 U.S. 914 [19 L.Ed.2d 266, 88 S.Ct. 247] ]; State of New Jersey v. Forcella, supra, 52 N.J. 263 [245 A.2d 181]; State v.

Johnson, 34 N.J. 212 [168 A.2d 1, 10-11] [app. dism. “for want of a substantial federal question,” 368 U.S. 145 [7 L.Ed.2d 188, 82 S.Ct. 247], cert. den. 368 U.S. 933 [7 L.Ed.2d 195, 82 S.Ct. 370]]; see also Ex parte Sullivan, 83 F.2d 796, 798.) The statutes in State v. Latham, supra, and Ex parte Sullivan, supra, are similar in form to our sections 190 and 190.1. In the other out-of-state eases the statutes specify that the penalty for first degree murder shall be death unless the jury recommends life imprisonment.

It has been suggested that this difference has constitutional significance because such statutes empower the jury to mitigate the death penalty whereas under our statutes the jury selects between two alternative penalties neither of which is given preference by the Legislature (see People v. Green, supra, 47 Cal.2d 209, 218). In effect, however, both forms confer unguided discretion upon the jury as to the choice of penalties and it would exalt form over substance to conclude that one violates due process and equal protection and the other does not.

As we shall see, in one sense both approaches serve to mitigate capital punishment, and both have been widely used throughout the United States (see American Law Institute, Model Penal Code Tentative Draft No. 9 (1959) p. 121-126; Knowlton, Problems of Jury Discretion in Capital Cases (1953) 101 U.Pa.L.Rev. 1099,1101-1103).

Vesting in the trier of fact unguided discretion in the choice between penalties for first degree murder has long been characteristic of the laws of the United States and of many states.' (See In re Ernst’s Petition, supra, 294 F.2d 556, 560; see generally Knowlton, Problems of Jury Discretion in Capital Cases, supra, 101 U.Pa.L.Rev. 1099, 1101-1103.) The Legislature, by entrusting to the absolute discretion of the jury the decision between life imprisonment and death has indicated its belief that jurors understand the factors that are relevant to such a decision. (People v.

Polk, supra, 63 Cal.2d 443, 451.) It may be neither practicable nor desirable that any rigid formula control a trier of fact in determining whether to extend mercy by imposing life imprisonment or to deny it by imposing death. (See In re Ernst’s Petition, supra, 294 F.2d 556, 560-561; State v. Johnson, supra, 168 A.2d 1, 10-11; Royal Commission on Capital Punishment 1949-1953 Report, pp. 173-174 and 195.) But even if it were practicable and desirable to have such a formula it does not follow that the Legislature’s failure to provide one renders the sections unconstitutional.

A statute mitigating capital punishment is not essentially unfair to the wrongdoer for failure to specify standards for the exercise of that discretion. Sections 190 and 190.1, like the Federal Kidnaping Act which was involved in United States v. Jackson, 390 U.S. 570, 581-582 [20 L.Ed.2d 138, 147, 88 S.Ct. 1209], have as an objective the avoidance of “the more drastic alternative of mandatory capital punishment in every case.

In this sense, the selective death penalty procedure established by the Federal Kidnaping Act [or California Penal Code sections 190 and 190.1] may be viewed as ameliorating the severity of the more extreme punishment that Congress [or the state Legislature] might have wished to provide. ’ ’ The discretion conferred upon the penalty jury is similar to that conferred on the trial court to punish certain crimes as either felonies or misdemeanors.

Many sections of the Penal Code vest in the trial court discretion to sentence defendants convicted of such crimes to state prison or to jail, without mention of standards for exercise of that discretion. (E.g. Pen. Code, §§ 17, 476a, 489, 496, 524.) Such sections have been held not to violate due process or equal protection. (In re Watkins, supra, 64 Cal.2d 866, 869-870; In re Rosencrantz, 211 Cal. 749, 750-751 [297 P. 15]; People v. Widener, 220 Cal.App.2d 826, 830 [34 Cal.Rptr. 130]; cf. Smith v. Rhay, 254 F.2d 306, 308; Daloia v.

Rhay, 252 F.2d 768, 770-771.) In re Watkins, supra, at page 870, states, “ ‘ Since every person charged with the offense has the same chance for leniency as well as the same possibility of receiving the maximum sentence, there is nothing discriminatory in the statute. ’ ’ ’ It has been suggested that the similarity between the discretion conferred on a penalty jury to choose between life imprisonment and death and the discretion conferred on a trial court to sentence a defendant to state prison or to jail is only superficial because (1) the trial court, unlike the penalty jury, does not select between two legislatively neutral alternative penalties; (2) the trial court’s sentencing discretion is circumscribed by standards inherent in the penological regime of rehabilitation, whereas the penalty jury’s discretion is not so circumscribed; (3) the decision rendered by the trial court is of less gravity than that rendered by the penalty jury; and (4) the trial court’s discretion is not absolute since the defendant may seek appellate review on the ground of abuse of discretion, whereas the penalty jury’s discretion is absolute.

The asserted distinctions are not persuasive. In both cases the Legislature has prescribed the punishments available; in both it has authorized a specified body to make a choice within the legally prescribed limits. The fact that a crime punishable as a felony or a misdemeanor is regarded as a felony unless and until the trial court imposes a misdemeanor sentence (Pen. Code, § 17; People v. Banks, 53 Cal.2d 370, 380-383 [1 Cal.Rptr. 669, 348 P.2d 102]; People v. Finley, 219 Cal.App.2d 330, 341 [33 Cal.Rptr. 31]) does not show that the Legislature prefers a felony sentence to be imposed by the trial court.

Although the form of the choice by which the discretion conferred is to be exercised differs, this difference does not warrant contrary conclusions concerning the constitutionality of the respective statutes. A defendant’s potential for rehabilitation is but one of several factors the trial court considers in determining whether to sentence a defendant to jail or to state prison. The trial court also considers matters such as the community’s need for protection (see People v. Smith, 259 Cal.App.2d 868, 873 [66 Cal.Rptr. 586]), and no specific standard controls the exercise of the trial court’s discretion.

A defendant’s potential for rehabilitation is similarly an appropriate factor for the penalty jury to consider in determining which penalty to impose. (See People v. Morse, 60 Cal.2d 631, 647 [36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810]; see also People v. Polk, supra, 63 Cal.2d 443,451.) The trial court’s decision may be of less gravity than that of the penalty jury, but both decisions involve grave consequences to the individuals involved.

And finally, although the penalty jury has absolute discretion to determine which penalty to impose, such discretion, as we have seen, is absolute only in the first instance since the trial judge in ruling on a motion for a new trial, has the power to reduce the penalty to life imprisonment if in his independent judgment the weight of the evidence does not support the death penalty. It should also be noted that Witherspoon v. Illinois, supra, 391 U.S. 510, mentions lack of standards in selecting between death and life imprisonment and gives no intimation that the procedure is therefore unconstitutional.

Reliance by petitioners upon Giaccio v. Pennsylvania, 382 U.S. 399 [15 L.Ed.2d 447, 86 S.Ct. 518], is misplaced. As we pointed out in People v. Seiterle, supra, 65 Cal.2d 333, 340 (cert. den. 387 U.S. 912), Giaccio “is not contrary to the cited cases [which held § 190.1 constitutional]. Giaccio held that a statute permitting a jury to assess costs against an acquitted defendant was constitutionally invalid because of vagueness and the absence of any standards sufficient to enable defendants to protect themselves against arbitrary and discriminatory imposition of costs.

The court expressly stated in Giaccio that ‘In so holding we intend to cast no doubt whatever on the constitutionality of the settled practice of many states to leave to juries finding defendants guilty of a crime the power to fix punishment within legally prescribed limits. ’ (382 U.S. at p. 405, fn. 8 [15 L.Ed.2d at p. 451].) ” (See also Maxwell v. Bishop, supra, 398 F.2d 138, 149-150; State of New Jersey v. Forcella, supra, 52 N.J. 263 [245 A.2d 181].) The instant ease differs from Skinner v. Oklahoma, 316 U.S. 535 [86 L.Ed. 1655, 62 S.Ct. 1110], cited by petitioners.

Skinner held that a statutory classification requiring sterilization under specified circumstances of persons convicted of larceny but not those convicted of embezzlement was a violation of equal protection.

The court stated in part (at p. 541 [86 L.Ed. at p. 1660]) “When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes the one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.” Penal Code sections 190 and 190.1, however, do not contain an unconstitutional classification, and, since under like circumstances every person convicted of first degree murder has the same chance for leniency as well as the same possibility of receiving the maximum sentence, there is nothing discriminatory in the sections.

There is, of course, a presumption in favor of constitutionality, and the invalidity of a legislative act must be clear before it can be declared unconstitutional. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind, 67 Cal.2d 536, 549 [63 Cal.Rptr. 21, 432 P.2d 717]; Patton v. La Bree, 60 Cal.2d 606, 609 [35 Cal.Rptr. 622, 387 P.2d 398] ; In re Cregler, 56 Cal.2d 308, 311 [14 Cal.Rptr. 289, 363 P.2d 305].) •[4b] No authority has been cited holding that statutes like Penal Code sections 190 and 190.1 violate due process or equal protection.

For the reasons set forth above we are satisfied that we should not depart from our previous conclusion in this regard. No Delegation Of Legislative Power To Jury It is also asserted that Penal Code - sections 190 and 190.1, as presently construed and applied, delegate to the penalty jury a legislative function in a manner that violates the

section of the state Constitution providing for separation of powers (art. Ill, § 1). It is argued that the members of the jury have been delegated legislative powers because they must resolve basic policy questions with regard to the type of punishment to be imposed, as opposed to the extent of punishment to be imposed. That delegation is said to be improper because the sections do not contain standards sufficiently certain to preclude arbitrary exercise of that power by the jury, or to insure a reasonable opportunity of securing redress by judicial review if that power is abused.

The same contention with regard to a statute similar to ours was rejected by the Supreme Court of Kansas in State v. Latham, supra, 375 P.2d 788, 798 : “The legislative power was exercised when the legislature fixed the punishment for murder in the first degree. The statute does no more than empower a jury, upon a consideration of all the evidence and the court’s instructions, to assess the extent of punishment prescribed beforehand in accordance with the heinousness or gravity of the homicide.

In performing that duty, the jury in no sense exercises legislative power.” Similar contentions with regard to the court’s power to impose penal sentences within legislatively fixed limits have likewise been rejected in several noncapital cases. (People v. Pryor, 17 Cal.App.2d 147, 152 [61 P.2d 773] ; In re O’Shea, 11 Cal.App. 568, 572 [105 P. 776] ; State v. Logan, 98 Ariz. 179 [403 P.2d 279, 280] ; People v.

Reid, 396 Ill. 592 [72 N.E.2d 812] [cert. den. 332 U.S. 776 [92 L.Ed.361, 68 S.Ct. 39]].) Not Gruel Or Unusual Punishment It is next contended that for various reasons the death ;penalty for first degree murder constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution and

section 6,

article I, of the California Constitution. Numerous cases have rejected claims that the death penalty for first degree murder constitutes cruel and unusual punishment per se. (E.g. Wilkerson v. Utah, 99 U.S. 130 [25 L.Ed. 345] ; People v. Thomas, 65 Cal.2d 698, 708 [56 Cal.Rptr. 305, 423 P.2d 233] [cert. den. 389 U.S. 868 [19 L.Ed.2d 143, 88 S.Ct. 140] ]; People v. Bashor, 48 Cal.2d 763, 765 [312 P.2d 255]; People v. Lazarus, 207 Cal. 507, 514 [279 P. 145] ; see Trop v.

Dulles, 356 U.S. 86, 99 [2 L.Ed.2d 630, 641, 78 S.Ct. 590] [plurality opinion]; 21 Am.Jur.2d, pp. 544-545, 553-555; 24B C.J.S., p. 555; 5 Wharton’s Criminal Law and Procedure (1957) p. 424; Mosk, The Eighth Amendment Rediscovered

(1968) Loyola L.A. L.Rev., pp. 20-22; see also Francis v. Resweber, 329 U.S. 459, 463-464 [91 L.Ed. 422, 426-427, 67 S.Ct. 374] [plurality opinion].) Petitioners urge us to reconsider the matter.

They argue that the death penalty is cruel and unusual punishment because it “inflicts the loss of life without commensurate justification.” They assert that life is a fundamental right, that before the state may restrict a fundamental right it must demonstrate a “compelling interest” in so doing, and that to show such an interest the state must establish that (1) the restriction imposed rationally relates to legitimate governmental objectives sought; (2) the benefit to the public far outweighs the impairment of the constitutional right, and (3) no alternative means less subversive of the constitutional right are available.

Petitioners assert that the state’s compelling interest is the punishment of criminals, that the proper functions of punishment are isolation, rehabilitation and deterrence, and do not include retribution (see In re Estrada, 63 Cal.2d 740, 745 [48 Cal.Rptr. 172, 408 P.2d 948]), and that isolation and rehabilitation can better be achieved by life imprisonment than execution. They offer to establish at an evidentiary hearing that the death penalty is not a more effective deterrent than life imprisonment.

Petitioners cite cases applying a compelling interest test in contexts other than the question of the validity of a statute imposing a penalty for a crime. (E.g. Sherbert v. Verner, 374 U.S. 398, 406 [10 L.Ed.2d 965, 971, 83 S.Ct. 1790] ; N.A.A.C.P. v. Button, 371 U.S. 415, 438-444 [9 L.Ed.2d 405, 421-424, 83 S.Ct. 328]; Parrish v. Civil Service Com., 66 Cal.2d 260, 271 [57 Cal.Rptr. 623, 425 P.2d 223].) “ The fixing of penalties for crime is a legislative function.

What constitutes an adequate penalty is a matter of legislative judgment and discretion and the courts will not interfere therewith unless the penalty prescribed is clearly and manifestly cruel and unusual.” (People v. Tanner, 3 Cal.2d 279, 298 [44 P.2d 324]; People v. Keller, 245 Cal.App.2d 711, 714-715 [54 Cal.Rptr. 154].) In Trop v.

Dulles, supra (1958) 356 U.S. 86, 99 [2 L.Ed.2d 630, 641] (plurality opinion), which concluded that denationalization for wartime desertion constituted a cruel and unusual punishment within the meaning of the Eighth Amendment, it was stated, ‘ ‘ [L] et us put to one side the death penalty as an index of the constitutional limit on punishment.

Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment—and they are forceful—the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty. ’ ’ Petitioners further argue that the death penalty is cruel and unusual in that it is imposed without standards and can be imposed regardless of extenuating circumstances. The absence of so-called standards has previously been discussed.

It seems clear that the death penalty, which has been repeatedly upheld against claims that it constitutes cruel and unusual punishment per se, does not become cruel or unusual as a result of the Legislature’s vesting in the trier of fact discretion to extend mercy to a convicted first degree murderer. In contending that the death penalty is unconstitutional, amici point to the statement in Trop v.

Dulles, supra, 356 U.S. 86, 101 [2 L.Ed.2d 630, 642], that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” An amicus curiae brief also contends that the death penalty violates the Eighth Amendment because it‘ ‘ drives men mad and to suicide.” In support of these contentions amici point to testimony in People v. Thornton, Los Angeles Superior Court No. 328445, and to various documents.

The matters pointed to do not disclose the percentage of prisoners on death row who during any recent period, as a result of being under the death sentence, attempted suicide or became insane. In any event, in a day when the death penalty “is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.” (See Trop v. Dulles, supra, 356 U.S. 86, 99 [2 L.Ed.2d 630, 641] [plurality opinion].) The fact that under Penal Code

section 3604 the death penalty is inflicted by the administration of “a lethal gas” does not render the punishment cruel or unusual. (People v. Daugherty, 40 Cal.2d 876, 894 [256 P.2d 911] [cert. den. 346 U.S. 827 [98 L.Ed. 352, 74 S.Ct. 47]; reh. den. 346 U.S. 880 [98 L.Ed. 387, 74 S.Ct. 120]].) A further contention is made that the ‘ ‘ anguish of the 1,000 day wait on death row and the attendant deterioration of personality” renders the death penalty cruel and unusual. To support the assertion of such anguish and deterioration extracts from books and testimony in People v.

Thornton, supra, Los Angeles Superior Court No. 328445, are set forth' in an amicus brief. A similar contention was rejected in People v. Chessman, 52 Cal.2d 467, 498-499 [341 P.2d 679] (cert, den. 361 U.S. 925 [4 L.Ed.2d 241, 80 S.Ct. 296]; pet. for reh. den. 361 U.S. 941 [4 L.Ed.2d 362, 80 S.Ct. 383]). There the defendant was detained pending execution of sentence of death for more than 11 years during which period various matters of which he complained were litigated. He contended' that such confinement constituted cruel and unusual punishment.

We recognized that mental suffering undoubtedly attended his detention, indicated that there had not been unreasonable delay by California in the proceedings, and concluded that unconstitutionally cruel or unusual punishment had not been imposed. Basic Due Process Not Violated . Amici next contend that, independently of the constitutional prohibition against cruel and unusual punishment, life is a fundamental right protected from state interference absent a compelling state interest, and they argue at length that the state cannot establish the existence of such an interest.

They also suggest that under tests other than that of a compelling state interest the death penalty violates due process. However, the fixing of penalties for a crime is a legislative function. (People v. Wade, 53 Cal.2d 322, 336 [1 Cal. Rptr. 683, 348 P.2d 116]; People v. Tanner, supra, 3 Cal.2d 279, 298; People v. Quilon, 245 Cal.App.2d 624, 629 [54 Cal. Rptr. 294]; People v. Olson, 173 Cal.App.2d 535, 536-537 [343 P.2d 379]), and we will not nullify the legislative judgment as to the appropriate penalties for the heinous crime of first degree murder.

It is for the Legislature and not this court to, decide whether it is sound public policy to empower the imposing of the death penalty. (See Robinson v. United States, 324 U.S. 282, 286 [89 L.Ed. 944, 947, 65 S.Ct. 666].) Counsel For Indigent Defendants Petitioners further contend that the due process and equal protection clauses of the United States Constitution confer upon indigent defendants in capital cases the right to appointed counsel throughout the period between the termination of their state appeals and their execution.

They argue that the state must appoint counsel for such defendants to represent them with respect to appeals or petitions for certiorari to the United States Supreme Court, habeas corpus petitions to federal courts, and applications for executive clemency, and to institute and represent such defendants at sanity /learings conducted under Penal Code sections 3700 et seq. Petitioners had counsel on appeal (People v. Saterfield, supra, 65 Cal.2d 752; People v. Anderson, supra, 64 Cal.2d 633), and no claim is made that they were denied their right to counsel at any stage prior thereto.

Their argument is directed to the post-state-appeal period, one which, of course, may be of many years duration as a result of a prisoner’s litigating and relitigating his claims in various courts.

It is undisputed that petitions for certiorari were filed by petitioners in propria persona; that petitioners were then, and are now, indigent; that Saterfield has a pending application for executive clemency; that, although Saterfield has counsel in the instant proceeding and a related one in a federal court, he is otherwise unrepresented by counsel; and that Anderson is now represented for all purposes by an attorney.

We believe that it will protect the interests of defendants and promote the cause of justice for this court to appoint counsel to represent indigent defendants in capital eases in the following proceedings undertaken between the termination of their state appeals and their execution: (

a) Proceedings in this court for post-conviction review; (

b) Proceedings for appellate or other post-conviction review of state court judgments in the United States Supreme Court, subject however to the power of that court to appoint counsel therein; (

c) Applications for executive clemency, and the conduct of sanity hearings where indicated. Hereafter, as a matter of policy, and upon application of the defendant, we will appoint counsel in such instances. Any request for the appointment of counsel in any other proceeding should be addressed to the court in which the proceeding is brought. Conclusion Other contentions, exhaustively briefed and argued in the extensive and carefully prepared briefs of counsel and amici, are not relevant to the issues presented in these cases, or lack merit, or concern matters that may not arise upon the penalty retrials.

We denied petitioners’ request for an evidentiary hearing relating to their various contentions in December 1967. They have again requested such a hearing. That request is likewise denied. Sections 190 and 190.1 were the result of an exercise by our Legislature of power vested in it by the Constitution and an exercise by the Governor of his power in approving the bills and making them “the law.” To sustain the sections is to respect the actions of the two branches of our government directly responsive to the will of the people and empowered under the Constitution to determine the wisdom of the legislation.

It is, of course, our duty to strike down unconstitutional statutes, but we are not entrusted with their wisdom. The constitutionality of sections 190 and 190.1 has previously been upheld, and in our opinion properly so. Petitioners were found guilty of the heinous crime of first degree murder, and their judgments were affirmed. Under the compulsion of Witherspoon v. Illinois, supra, 391 U.S. 510, the writs were granted as to the penalty trials. The remittiturs issued in Crim. 10126, People v. Saterfield, and Crim. 9317, People v.

Anderson, are recalled and the judgments imposing the death penalty are reversed insofar as they relate to the penalty. In all other respects they are affirmed. Saterfield is remanded to the custody of the Orange County Superior Court and Anderson to the custody of the San Diego County Superior Court for new trials on the issue of penalty. Mosk, J., and Sullivan, J., concurred.

Witherspoon further declared (fn. 18, p. 520 [20 L.Ed.2d at p. 784]), that "in some future case" a defendant convicted by a jury from which the state had excluded only those prospective jurors who stated that they would not even consider returning a death penalty "might still attempt to establish that the jury was less than neutral with respect to guilt.

If he were to succeed in that effort, the question would then arise whether the State’s interest in submitting the penalty issue to a jury capable of imposing capital punishment may be vindicated at the expense of the defendant’s interest in a completely fair determination of guilt or innocence—given the possibility of accommodating both interests by means of a bifurcated trial, using one jury to decide guilt and another to fix punishment. ’ ’ In Witherspoon one of the three dissenting justices similarly stated (fn. 1, p. 541 [20 L.Ed.2d at p. 795]), "I would not wholly foreclose the possibility of a showing that certain restrictions on jury membership imposed because of jury participation in penalty determination produce a jury which is not constitutionally constituted for the purpose of determining guilt."

Section 190 provides: ‘‘ Every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life, at the discretion of the court or jury trying the same, and the matter of punishment shall be determined as provided in

Section 190.1, . . .’’ (Amendments to the Codes, 1873-1874, p. 457; Stats. 1921, ch. 105, § 1, p. 98; Stats. 1927, ch. 889, §1, p. 1952; Stats. 1957, ch. 1968, § 1, p. 3509.)

Section 190.1 provides: “The guilt or innocence of every person charged with an offense for which the penalty is in the alternative death or imprisonment for life shall first be determined, without a finding as to penalty. If such person has been found guilty of an offense punishable by life imprisonment or death, and has been found sane on any plea of not guilty by reason of insanity, there shall thereupon be further proceedings on the issue of penalty, and the trier of fact shall fix the penalty.

Evidence may be presented at the further proceedings on the issue of penalty, of the circumstances surrounding the crime, of the defendant’s background and history, and of any facts in aggravation or mitigation of the penalty. The determination of the penalty of life imprisonment or death shall be in the discretion of the court or jury trying the issue of fact on the evidence presented, and the penalty fixed shall be expressly stated in the decision or verdict.

The death penalty shall not be imposed, however, upon any person who was under the age of 18 years at the time of the commission of the crime. . . .’’ The suggestion that the previous decisions of this court assumed that constitutional doctrines applicable to statutes regulating conduct did not govern statutes prescribing penalties is devoid of merit.

Not only in Sill, Seiterle, and Mason, but in other eases involving various constitutional attacks on penalty statutes we have not assumed constitutional doctrines were inapplicable but rather have held that the statutes complied with the Constitution and have rejected the attacks on their merits. (E.g., People v.

Turville, 51 Cal.2d 620, 638 [335 3?.2d 678]; In re Watkins, 64 Cal.2d 866, 869-870 [51 Cal.Rptr. 917, 415 P.2d 805].) Noils reexamination of Sill, Seiterle, and Mason required by the statement in Witherspoon that “It should be understood that much more is involved here than a simple determination of sentence. ’ ’ Manifestly at the time of our cited cases we were fully aware of what was there involved. United States v.

Jackson, supra, held unconstitutional the death penalty provision of the Federal Kidnaping Act, which permitted imposition of the death penalty only upon defendants who assert their right to be tried by a jury, reasoning that the effect of the provision was to needlessly penalize the assertion of the Fifth Amendment right to plead not guilty and the Sixth Amendment right to demand a jury trial. California Penal Code sections 190 and 190.1 do not contain this constitutional infirmity.

Witherspoon states (at p. 519 [20 L.Ed.2d at p. 783]), “Guided by neither rule nor standard, ‘free to select or reject as it [sees] fit,’ a jury that must choose between life imprisonment and capital punishment can do little more—and must do nothing less—than express the conscience of the community on the ultimate question of life and death,15’’ and footnote 15 reads in part “[Illinois] has deliberately ‘made . . . the death penalty ... an optional form of punishment which [the jury remains] free to select or reject as it [sees] fit.’ [Citation.] And one of the most important functions any jury can perform in making such a selection is to maintain a link between contemporary community values and the penal system—a link without which the determination of punishment could hardly reflect ‘the evolving standards of decency that mark the progress of a maturing society. ’ (Trop v.

Dulles, 356 U.S. 86, 101 [2 L.Ed.2d 630, 642, 78 S.Ct. 590].’’ The Eighth Amendment of the United States Constitution prohibits “cruel and unusual punishment.” This amendment is, of course, applicable to the states. (Robinson v. California, 370 U.S. 660 [8 L.Ed.2d 758, 82 S.Ct. 1417].) ■ •

Section 6 of

article I of the California Constitution provides, . . nor shall cruel or unusual punishment be inflicted, ” See authorities on page 630. _It should also be noted that under an amendment to Penal Code

section 1239, effective the 61st day after the adjournment of the 1968 Regular Session, indigent capital defendants will have a statutory right to appointed counsel in certain proceedings. The amendment provides: “If the defendant [in a capital case] is unable to afford the services of counsel, the Supreme Court shall appoint counsel to represent him in any appeal to the Supreme Court, or any appeal or other review in the Supreme Court of the United States, ’ ’