People v. Floyd

PETERS, J.

I concur in the majority opinion insofar as it affirms the judgments of guilt, but I dissent insofar as the majority opinion affirms the judgments imposing the death penalty.

In my view, the trial court erred in excusing two jurors for cause, and *732 each such error alone requires reversal of the penalty judgment as to each defendant. The trial court committed error, as conceded by the majority, with regard to the admission of Dr. Tweed’s testimony, and I believe this error requires reversal of the penalty judgment as to Milton. I also believe that the prosecutor was guilty of misconduct in his argument to the jury in the penalty trial.

Witherspoon Errors

I disagree with the majority’s opinion that jurors Rogers and Willis were properly excluded for cause under the constitutional standards enunciated in Witherspoon v. Illinois, 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ], The majority assert that these two jurors “made it unmistakably clear that under no circumstances would [they] impose the death penalty.” Although these jurors did initially express an automatic opposition to the death penalty under any circumstances, they later expressly retreated from their prior position by stating that they could consider the death penalty under certain circumstances and they never thereafter repudiated this latter view.

These two jurors affirmatively indicated an ability to consider the death penalty under certain circumstances. Thus the instant case presents a much clearer violation of Witherspoon than the many previous cases which we have reversed for Witherspoon error because of the exclusion for cause of jurors who, although expressing opposition to the death penalty, were not questioned sufficiently so as to make clear that this opposition was automatic and immutable. In contrast to such prior cases, the two jurors in the present case were questioned at length concerning their opposition to the death penalty and expressly indicated that their opposition was not automatic and immutable.

At the outset of voir dire both Miss Rogers and Mr. Willis indicated they would not vote for the death penalty under any circumstances. 1 Had the *733 voir dire of these jurors ended at this point, I would agree that they were properly excluded for cause under Witherspoon .

However, upon questioning by defense counsel thereafter, Miss Rogers stated that she did not know whether she could impose the death penalty in a case such as the aggravated hypothetical case posed to her and that whether she could impose the death penalty if “the proper case” were presented “depends on the degree” and on “all the facts.” Mr. Willis expressly adopted these answers given by Miss Rogers and added that with him too “it would be a question of degree.” Miss Rogers and Mr. Willis thereby expressly retracted their initial statements and indicated a willingness to consider the death penalty in certain cases. Neither juror subsequently repudiated this view either expressly or impliedly.

Defense counsel’s questioning of Miss Rogers and Mr. Willis was as follows:

“Mr. Boags: Miss Rogers, it is your belief that no matter what the person did that you could not vote the death penalty?

“Miss Rogers: Yes, that is my opinion.

“Q By Mr. Boags: No matter how heinous the crime?

“A Yes, sir.

“O You cannot think of a situation where you could say the death penalty would be a proper one?

“A No.

“Q What if—I would like to give you an example. Say, if a person *734 is proven he killed 10 persons, children and women, and very heinous-type crimes. Then this person, after he was arrested, said, ‘Yes, I did it and if released I will do it again, and that besides the 10 I killed, for every $100 that you give me, I will show you where the body of another is that I killed.’ And if all those facts are proven and the man testified in court substantially the same way, do you think you could impose the death penalty on that person?

“A I don’t know about that type of person. I never heard of that type of person.

“Q Well, if you were sitting on a case like that, do you think you could impose it?

“A I don’t really know.

“Q What I am getting at is this. In the abstract, you know, it is easy to discuss these subjects about death and life, and what I believe is that it is always a question of degree.

“A That is right.

“Q And what I am trying to find out from you is if you agree with me that the death penalty is a question of degree?

“A Yes.

“Q And would it be fair to say, then, if the proper case was presented to you that you possibly could vote the death penalty, is that right?

“A All I can say is it depends on the degree.

“Q If the proper case was presented, you would vote it?

“A I don’t know. I would have to get all the facts.

“Q Right. I would assume that. May I have a moment, your Honor? (Pause.)

“Mr. Boags: Mr. Willis, you have heard the questions I have just asked, is that correct, sir?

“Mr. Willis: Yes, sir.

“Q Would it be fair to say if I asked you the same questions, your answers would be substantially the same?

“A Yes.

“Q Also, with you it would be a question of degree, is that right?

“A Sure.”

The majority misinterpret the record when they state that “by his initial testimony and by adopting the answers previously given by Miss Rogers, juror Willis made it unmistakably clear that under no circumstances would *735 he impose the death penalty . . . It is true that Mr. Willis’ initial testimony did indicate an opposition to the death penalty no matter what the circumstances. However, the voir] dire transcript above quoted clearly demonstrates that the answers of Miss Rogers that Mr. Willis adopted were those indicating that she was uncertain whether she could vote for the death penalty in the aggravated hypothetical case and that whether she could impose the death penalty in “the proper case” “depends on the degree.” Mr. Willis’ adoption of these answers, far from making clear an unalterable opposition to the death penalty under any circumstances, indicated that there were indeed circumstances in which he would consider the death penalty. Moreover, Mr. Willis, in addition to adopting the answers of Miss Rogers, stated that imposition of the death penalty was “a question of degree.” Thus Mr. Willis expressly retreated from his initial position by indicating that he would be willing to consider the death penalty in certain cases, and it is clearly incorrect to hold—as the majority do—that “by his initial testimony and by adopting the answers previously given by Miss Rogers, Juror Willis made it unmistakably clear that under no circumstances would he impose the death penalty . . . .”

Moreover, it should be noted that Mr. Willis’ statements made after his expression of willingness to consider the death penalty under certain circumstances are consistent with that expression. The majority do not contest this point; they do not contend that his later statements justified his exclusion.

Mr. Willis subsequently stated that he was opposed to sitting on the robbery-murder case before him for the reason the death penalty was sought and that he could not be “fair to the State” in the case before him. He was then asked if he had a bias or prejudice in the proceeding, and replied “I am against capital punishment, yes.” He was thereupon excused for cause. These final statements by Mr. Willis indicated merely a general opposition to the death penalty, and, as such, are not only clearly insufficient in themselves as a ground for his exclusion, according to the repeated holdings of this court, 2 but also are not inconsistent with his earlier statements that he *736 could consider the death penalty in certain circumstances and therefore clearly cannot be construed as a retraction of those earlier statements.

In view of his expressed ability to consider the death penalty in. the “proper case,” Mr. Willis did not—as the majority argue—make it “unmistakably clear that under no circumstances would he impose the death penalty . . . .” Quite the contrary, his statements “clearly left open the possibility that in some case [he] might impose the death penalty” (People v. Vaughn, supra, 71 Cal.2d 406, 416 ), and therefore he was improperly excluded under Witherspoon . (See id., at pp. 413-416; Witherspoon v. Illinois, supra, 391 U.S. 510, 522, fn. 21 [ 20 L.Ed.2d 776, 784 , 88 S.Ct. 1770 ].)

The erroneous exclusion of Mr. Willis alone requires reversal of the penalty trial. (E.g„ People v. Washington, 71 Cal.2d 1170, 1177 [ 81 Cal. Rptr. 5 , 459 P.2d 259 ]; /„ re Arguello, 11 Cal.2d 13, 15-16 [ 76 Cal.Rptr. 633 , 452 P.2d 921 ]; People v. Bradford, supra, 70 Cal.2d 333, 344-345 ; In re Anderson, supra, 69 Cal.2d 613, 619 .)

*737 It is also apparent that Miss Rogers did not repudiate her expressed uncertainty toward the hypothetical case and ability to consider the death penalty in “the proper case.” When asked by the prosecutor whether she would be willing to vote for a death verdict under any particular circumstances, she equivocally replied “I can’t think of any circumstances now.” Such a response falls far short of the unambiguous response demanded by Witherspoon . (See People v. Vaughn, supra, 71 Cal.2d 406, 413 .) Moreover, when the hypothetical case was thereafter again posed to her she once again expressed uncertainty as to whether she could impose the death penalty in such a case, stating that “I don’t know if I would or not. I really couldn’t say.”

Finally, the prosecutor asked each juror then present 3 whether he would be willing and have the courage to vote for a verdict of death “in this case” if he thought “this” was a proper case for the death penalty. 4 Miss Rogers *738 answered “No” to the question whether she would be willing and have the courage to vote for a verdict of death if she “thought that this was a proper case for the imposition of the death penalty, ...” (Italics added.) The prosecutor then asked her, “Even if you thought it was a proper case, you would not have the courage to vote for a verdict of death?” (italics added), to which she replied, “No, I wouldn’t.” She was then excused by the court.

The word “it” in the latter question clearly refers to the words “this . . . case” in the prior question— so that both of Miss Rogers’ answers indicated only her inability to return the death penalty in “this” case.

This court has held, in an opinion written by the author of the majority opinion in the instant case, that it is not sufficient grounds for exclusion under Witherspoon for a juror to indicate an inability to return the death penalty “in this case.” (People v. Risenhoover, 70 Cal.2d 39, 55 [ 73 Cal.Rptr. 533 , 447 P.2d 925 ].) Such an attitude does not necessarily preclude the juror “from concurring in such a verdict in all cases or in this case irrespective of the evidence that might be introduced at the trial,” and thus it is “not . . . ‘unmistakably clear’ that [such a juror] ‘would automatically vote against the imposition of capital punishment without regard to any *739 evidence that might be developed at the trial. . . .’ (Witherspoon v. Illinois, supra, 391 U.S. 510, 522, fn. 22 [ 20 L.Ed.2d 776, 785 ].)” (People v. Risenhoover, supra, 70 Cal.2d 39, 55 .)

It should be noted that at the time Miss Rogers stated she would not impose the death penalty in “this” case, she knew only that the case before her involved a robbery and a killing during the commission of the robbery; she had not been informed that at the penalty trial evidence would be introduced as to prior armed robberies allegedly committed by the defendants. Since the introduction at trial of defendant’s “priors” is an extremely important factor in a jury’s decision to impose the death penalty (A Study of the California Penalty Jury in First-Degree-Murder Case (1969) 21 Stan.L.Rev. 1297, 1326-1327), it cannot even be said that Miss Rogers’ responses indicate that she would not impose the death penalty in the particular case before her “irrespective of the evidence that might be introduced at the trial.” 5

*740 In summary, Miss Rogers stated to the defense attorney that whether she could impose the death penalty in “the proper case” “depends on the degree” and on “all the facts” and stated to both the defense attorney and the prosecutor that she did not know whether she would vote for the death penalty in the hypothetical situation. Her subsequent statements that she would not be willing to vote for the death penalty in “this” case after being informed that the case before her involved a robbery-murder clearly cannot be construed as a repudiation of her earlier expressions of ability to consider the death penalty in certain circumstances. In view of her expressed ability to consider the death penalty in certain circumstances, she did not—as the majority contend—make it “unmistakably clear that under no circumstances would she impose the death penalty, . . .” Like Mr. Willis, Miss Rogers “clearly left open the possibility that in some case [she] might impose the death penalty” (People v. Vaughn, supra, 71 Cal.2d 406, 416 ), and thus she was improperly excluded under Witherspoon .

The majority suggest an alternative ground for upholding the exclusion of Miss Rogers: “Although the instant trial preceded the decision in Wither-spoon, the standards which the trial court imposed comported fully with those announced in Witherspoon . Therefore, we could base our decision as to Miss Rogers upon the rule that ‘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 ].)”

First, whether the standards imposed by the trial court “comported fully *741 with those announced in Witherspoon” is the very point at issue, and for the reasons set forth at length above, I disagree with the majority on this point. It might be noted in this regard that, since the instant trial took place prior to the Witherspoon decision—when the state of the statutory and case law was materially different from the constitutional standard enunciated in Witherspoon and it was proper to excuse for cause prospective jurors who cannot be excluded under Witherspoon (In re Anderson, supra, 69 Cal.2d 613, 618-619 )—it would be entirely fortuitous for the judge to have applied standards which were in accordance with Witherspoon. (People v. Williams, 71 Cal.2d 614, 629 [ 79 Cal.Rptr. 65 , 456 P.2d 633 ].)

Moreover, it is doubtful that the rule quoted from Linden , if applied in the scrupled-juror situation, could ever “comport fully” with the Wither-spoon holding that it must be “unmistakably clear” the excluded juror would automatically vote against the imposition of the death penalty. If the juror gives “conflicting answers” to the question as to whether he could ever impose the death penalty and the conflict is not subsequently resolved on voir dire, it simply cannot be said that his automatic opposition to the death penalty is “unmistakably clear.”

For the above reasons, it is my opinion Miss Rogers also was improperly excluded in the present case.

Each of the erroneous exclusions—that of Mr. Willis and that of Miss Rogers—independently requires reversal of the penalty trial.

Aranda-Bruton Error

Bruton v. United States (1968) 391 U.S. 123 [ 20 L.Ed.2d 476 , 88 S.Ct. 1620 ], held that a defendant’s right of cross-examination is violated when he is inculpated by the introduction of an extrajudicial statement of a jointly tried codefendant in spite of an instruction that the jury consider the statement only against the codefendant. As the majority concede, Bruton must apply to statements introduced by a codefendant at the penalty phase of a capital trial. The majority also concede that People v. Aranda, 63 Cal.2d 518 [ 47 Cal.Rptr. 353 , 407 P.2d 265 ], applies to statements introduced by a codefendant" at a penalty trial, so that a trial judge faced with the likelihood that such a statement will be introduced must either grant a motion for separate penalty trials or see to it that all references to the nondeclarant defendant are “effectively deleted without prejudice to the declarant.” (Id., at p, 530.)

When Dr. Tweed took the stand, Floyd’s counsel asked him to repeat *742 Floyd’s version of the crime. Dr. Tweed’s response mentioned the gun and Floyd’s admission that he shot the bus driver. Floyd’s counsel then initiated the following dialogue:

“Q Did he say where he had gotten the gun?

“A Yes, he said he had gotten the gun from some friend.

“Q Did he say where he was taking it?

“A He stated he was taking it to a relative of this friend from whom he had gotten the gun.”

The jury was already aware from prior evidence that the gun was found in the home of Milton’s half-brother, and the necessary implication of Dr. Tweed’s testimony is that Milton had supplied Floyd with the murder weapon. The majority concede that Milton’s Aranda rights were violated by the introduction of the portion of Dr. Tweed’s testimony quoted above, and that “the jury conceivably could have inferred that Milton was the ‘friend’ who, according to Floyd, gave Floyd the gun, . . .” Nonetheless, the majority deem this error nonreversible because Milton’s counsel failed to object to the offending questions and because the majority conclude any error was insubstantial (People v. Hines, 61 Cal.2d 164, 168-170 [ 37 Cal.Rptr. 622 , 390 P.2d 398 ]) and harmless beyond reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705, 710 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ].)

Milton’s counsel did not object to the questions of Dr. Tweed as to where Floyd obtained the gun or where he was taking it. Counsel did not move to strike the answers, but at the next recess out of the presence of the jury, he moved for a mistrial. The court denied the request, but ultimately instructed the jury “that the psychiatrist’s testimony during this penalty trial ‘which disclosed defendant’s statements should be considered only for the purpose of exposing the information upon which the psychiatrist based his opinion and not as evidence of the truth of the statements.’ ”

The record shows that Milton’s counsel did all that can reasonably be required to prevent this error and that under the settled principles relating to errors committed in the penalty trial, the error was reversible.

Immediately prior to the penalty trial, Milton’s counsel raised the possibility that Dr. Tweed would testify as to a confession by Floyd which inculpated Milton. After extended discussion and seme research, the trial judge denied Milton’s request for a separate penalty trial while instructing Floyd’s counsel to see to it that Dr. Tweed would not refer to Milton, and directing the prosecutor to avoid any such reference in cross-examination. When Milton’s counsel suggested that it would be impossible effectively to *743 delete such references, the trial judge indicated that he would “meet this issue clearcut at the time I am confronted with it.”

The failure to object to the specific questions asked of Dr. Tweed may not be held to constitute a waiver of the Aranda error. The court had expressly and without equivocation directed Floyd’s counsel to admonish Dr. Tweed to delete all references to Milton. Thus, when Floyd’s counsel asked the doctor did Floyd “say where he had gotten the gun?” Milton’s counsel could reasonably have assumed that the court’s instruction would be obeyed and that the response would not refer to Milton. In fact, such an assumption would have been correct; Dr. Tweed replied simply that Floyd received the gun from “some friend.” Similarly, when Dr. Tweed was asked whether Floyd said “where he was taking” the gun, Milton’s counsel could again reasonably have assumed that the court’s instruction would be obeyed and that the response would not refer to Milton. For example, counsel could have assumed that Dr. Tweed, who was not purporting to quote Floyd, would have answered that Floyd was taking the gun to another friend. Hence, prior to Dr. Tweed’s second response, Milton’s counsel was fully justified in relying upon the court’s instruction and in foregoing the tactical risks of objecting. In fact, however, Dr. Tweed’s second response—that Floyd “was taking [the gun] to a relative of this friend from whom he had gotten the gun”—connected this dialogue with Milton because the jury already knew the gun was found in the home of Milton’s half-brother. Even though pretrial discussion left open the possibility that the court would have to resolve problems posed by unavoidable references to Milton when they arose, there is nothing in the record suggesting that this reference to Milton was unavoidable. Hence Milton’s counsel cannot be expected to have anticipated the reference.

To hold, as the majority do, that failure to object should preclude Milton from raising the Aranda error would mean that Milton’s counsel, in order to protect his client’s rights, would have had to object to every question of Dr. Tweed where there was any possibility of reference to Milton. In view of the court’s order to delete all reference to Milton, it is manifestly unfair to place such a burden upon Milton’s counsel. 6 Such a requirement would be purely formalistic and serve no useful purpose.

*744 The majority do not claim that the failure to move to strike Dr. Tweed’s testimony constituted a waiver by Milton of his right to confrontation, and it would be improper to so hold. A motion to strike the answers was not necessary to alert the trial judge and other counsel to Milton’s right to have all references to him excluded or to his assertion of that right. He had previously asserted the right and the judge had seemingly vindicated it by his order directing deletion of all such references. More importantly, the granting of a motion to strike or a limiting instruction, as recognized by Aranda and Bruton , would not have eliminated the harmful results of the error, and therefore the requirement of a motion to strike is not applicable. (People v. Varnum, 70 Cal.2d 480, 488 [ 75 Cal.Rptr. 161 , 450 P.2d 553 ].)

Critical to both Aranda and Bruton is the recognition that “the erroneous admission into evidence of a confession implicating both defendants is not necessarily cured by an instruction that it is to be considered only against the declarant.” (Bruton v. United States, supra, 391 U.S. at p. 133, fn. 9 [20 L.Ed.2d at p. 483], quoting People v. Aranda, supra, 63 Cal.2d at p. 526 .) It was precisely because of the inherent inefficacy of such an instruction when the jury has already heard a confession implicating a nondeclarant defendant that Aranda established the alternatives of separate trials or effective deletions of all references to the nondeclarant. (People v. Aranda, supra, 63 Cal.2d at pp. 528-531.) And, “[b]y effective deletions, we mean not only direct and indirect identifications of codefendants but any statements that could be employed against nondeclarant codefendants once their identity is otherwise established.” (Id., at p. 530; footnote omitted.)

Here the deletions were ineffective. The evidence that the murder weapon was found in the home of Milton’s half-brother was an important part of the prosecution’s case at the guilt trial and undoubtedly made an indelible impression upon the jury. When coupled with this evidence, Dr. Tweed’s repetition of Floyd’s statement clearly implied Milton had supplied the gun to Floyd. As soon as the questions were asked, Milton’s counsel was put in the very dilemma Aranda sought to prevent. An objection or motion to strike would only have served to crystallize the damaging implications of *745 Dr. Tweed’s testimony, and a limiting instruction might also have done more harm than good. In my view, it is absurd to condition the raising of an error upon an objection when the whole theory of the violated rule is premised upon the inefficacy of objection.

The majority’s application of harmless error rules is as unsatisfactory as their invocation of the requirement of objection. The majority seek to depress the prejudicial effect of Dr. Tweed’s implication that Milton gave Floyd the murder weapon by pointing to Milton’s prior armed robberies, two of which were committed with Floyd. Although nothing has altered our ignorance as to just what factors prompt a particular jury to return a death verdict in any given case, we now have empirical evidence that certain factors generally have a significant impact on the penalty verdicts of California juries. (A Study of the California Penalty Jury in First-Degree-Murder Cases, supra, 21 Stan.L.Rev. 1297, 1420.) This study supports the majority’s implication that the introduction of a defendant’s criminal record significantly increases the likelihood that a death verdict will be returned against him. {Id., at pp. 1326-1330.) On the other hand, the circumstance that a defendant did not personally kill a victim strongly reduces the likelihood that a death penalty will be returned; in fact, only 4 of the 52 defendants included within the study’s sample of 238 penalty trials who did not personally commit an act of homicide were condemned to death by a penalty jury. (Id., at pp. 1348-1349.) More important for the case before us, the study found a significant relationship between a defendant’s status as a “non-triggerman” and life sentence verdicts 'after eliminating the effects of other factors—including the introduction of prior offenses. (Compare id., at pp. 1348-1349 with id., at pp. 1316-1326.) In other words, the fact that a defendant is a “non-triggerman” by itself significantly increases his chance of obtaining a life verdict, even assuming that'his “priors” are introduced at the penalty trial.

In sum, Dr. Tweed’s testimony furnished the sole basis for an inference that Milton supplied Floyd with the murder weapon. Since it is impossible for us to know whether this inference affected the decision of the particular jury which condemned Milton to die, and since this inference tends to negate Milton’s status as “non-triggerman”—a status which generally weighs heavily in favor of a life sentence regardless of a prior record—this court is in no position to declare that the conceded Aranda error did not contribute to Milton’s death verdict. If Floyd’s admissions were believed, it is not at all unlikely that any tendency of the jury to distinguish for purposes of punishment between Floyd and Milton was neutralized by the showing that Milton was at least equally involved in the use of the gun in the robbery.

Although the majority concede Aranda error, their discussion of Bruton *746 leaves me uncertain whether they have concluded that there was harmless error or that there was no Bruton error. In my view there was such error, and it was prejudicial.

In concluding that any Bruton error was not prejudicial, the majority deny that Dr. Tweed’s testimony created a substantial risk that the jury would ignore the court’s instruction. In so doing the majority have intertwined the incidents of Bruton error with rules designed to determine whether a conceded error is reversible because prejudicial.

I think a fair reading of the Bruton language cited by the majority 7 indicates Bruton was concerned not with the question of harmless error, *747 but rather with defining a context in which a limiting instruction cannot cure error. The court’s conclusion was that because extrajudicial statements of a codefendant which inculpate a nondeclarant defendant are inherently “powerfully incriminating,” the introduction of such statements when the declarant does not take the stand presents a context “in which the risk that the jury will not, or cannot, follow instructions is . . . great,” and that therefore “in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination.” (Bruton v. United States, supra, 391 U.S. at pp. 135-137 [20 L.Ed.2d at pp. 484-485].)

Thus Bruton deems erroneous the mere context presented by the introduction of a statement by a codefendant who does not testify when that statement inculpates a jointly tried nondeclarant defendant. The court’s discussion of the incriminating nature of such statements and of the risk that a jury will ignore a limiting instruction explains the rule, but does not establish factual prerequisites to a finding that the rule has been violated.

Even if findings of incrimination and of risk are prerequisite to establishing Bruton error, however, it is perfectly clear that these findings do not determine the question whether an error—like the one here—is reversible. Bruton acknowledged “the impossibility of determining whether in fact the jury did or did not ignore” a limiting instruction. (Id., at p. 136 [20 L.Ed.2d at p. 485].) Thus, once both incrimination and risk are established, it must be assumed the jury did not follow the instruction: “The effect is the same as if there had been no instruction at all.” (Id., at p. 137 [20 L.Ed.2d at p. 485].)

Here, incrimination is established by Dr. Tweed’s testimony, which furnished the sole basis for the inference that Milton supplied the murder weapon. The risk that the jury improperly used that testimony against Milton is even greater than in Bruton . In Bruton , the jury was clearly instructed not to consider the codefendant’s confession as evidence against the non declarant. (Id., at pp. 125, fn. 2, 137 [20 L.Ed.2d at pp. 479, 485].) Here the jury was never given a clear and unambiguous instruction that it could not use Dr. Tweed’s testimony concerning Floyd’s statements against Milton. Instead, the jury was told it could consider those statements “ ‘only for the purpose of exposing the information upon which [Dr. Tweed] based his opinion and not as evidence of the truth of the statements.’ ” The jury might have adhered to the literal meaning of this instruction by considering the evidence that the gun was found in the apartment of Milton’s half-brother as proof of “the truth of the statements” which were exposed by Dr. Tweed—and by considering the resulting inference that Milton supplied the murder weapon as evidence in aggravation of the penalty.

*748 Hence the fact of Bruton error as to Milton seems clear. But the critical question remains whether that error was reversible. (E.g., In re Hill, supra, 71 Cal.2d 997, 1013-1015 .) It cannot be disputed that Bruton was a constitutional decision, or that a conviction must not be sustained in the face of constitutional error unless an appellate court can declare that it is convinced beyond a reasonable doubt that the error did not contribute to the verdict. (Chapman v. California, supra, 386 U.S. at p. 24 [ 17 L.Ed.2d at p. 710 ].)

The California harmless error rule for all penalty trial errors is stated by People v. Hines, supra, 61 Cal.2d 164 . In that case, we examined the unique aspects of penalty trials which render inapposite the “reasonably probable” harmless error rule which is applicable to guilt errors. Because of the absolute discretion afforded a jury presented with “a mass of material,” because “[t]he 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,” and because “ ‘[t]o attempt to assess the effect of error in this legal vacuum is to superimpose one untestable surmise upon another,’ ” we reaffirmed the rule that “ ‘any substantial error occurring during the penalty phase of the trial, that results in the death penalty, since it reasonably may have swayed a juror, must be deemed to have been prejudicial.’ ” (Id., at pp. 168-170, and cases cited.)

My view of the relationship between the Hines and Chapman tests in the context of a penalty trial constitutional error is that they are perfectly consistent: it is impossible to declare beyond reasonable doubt that any substantial error did not contribute to a death verdict. In any case, we are bound by the supremacy clause to apply the Chapman test here, and to reverse the penalty verdict unless we can say beyond a reasonable doubt that the implications of Dr. Tweed’s testimony did not contribute to Milton’s death verdict. I submit such a declaration would fly in the face of reality—especially in view of the factors discussed at length in Hines . Accordingly, I would reverse Milton’s penalty verdict because of prejudicial Bruton error in the penalty trial below.

Misconduct

It is clear the prosecutor argued that the jury should impose the death penalty to exact retribution. The majority note that we have never addressed the question of the propriety of such argument in a penalty trial, that we have held “in other contexts” that vengeance or retribution has no place in “ ‘the scheme’ ” (In re Estrada, 63 Cal.2d 740, 745 [ 48 Cal.Rptr. 172 , 408 P.2d 948 ]), that we have expressed doubts as to the *749 propriety of introducing a photograph displaying a murder victim’s pain because “retribution is no longer considered the primary objective of the criminal law” which “focuses on the criminal, not merely on the crime” (People v. Love, 53 Cal.2d 843, 856-857, fn. 3 [ 3 Cal.Rptr. 665 , 350 P.2d 705 ]; italics added), and that the prosecutor argued other factors besides retribution in appellants’ penalty trial. From this the majority conclude: “In these circumstances, the prosecutor’s remarks concerning the widow of the slain bus driver did not constitute misconduct. (See People v. Garner, 57 Cal.2d 135, 156 [ 18 Cal.Rptr. 40 , 367 P.2d 680 ]; People v. Love, 56 Cal.2d 720, 731 [ 16 Cal.Rptr. 777, 17 Cal.Rptr. 481 , 366 P.2d 33, 809 ].)”

I believe the prosecutor’s retribution argument was clearly misconduct. In re Estrada, supra, 63 Cal.2d 740 , culminated in California a trend reflected in the opinions of a variety of state and federal courts which have indicated a growing disapproval of retribution as a penal objective. (E.g., Williams v. New York (1949) 337 U.S. 241, 248 [ 93 L.Ed. 1337, 1342 , 69 S.Ct. 1079 ]; Ronan v. Stevens (1963) 93 Ariz. 375 [ 381 P.2d 100, 102-103 ]; People v. Love, supra, 53 Cal.2d 843, 856-857, fn. 3 ; Tuel v. Gladden (1963) 234 Ore. 1 : [ 379 P.2d 553, 554-556 ].)

Perhaps this trend was most eloquently described closer to its inception: “Historically, it may be said that the origin of all legal punishments had its root in the natural impulse of revenge. At first this instinct was gratified by retaliatory measures on the part of the individual who suffered by the crime committed, or, in the case of murder, by his relatives. Later, the state took away the right of retaliation from individuals, and its own assumption of the function of revenge really constituted the beginning of criminal law. The entire course, however, of the refinement and humanizing of society has been in the direction of dispelling from penology any such theory.” (Commonwealth v. Ritter (Phila. Co. 1930) 13 Pa.D. & C. 285, 290.)

Estrada altered the previous California position that penalty-ameliorating amendments apply only to crimes committed after the effective date of the amendment. In holding that such amendments apply to all cases not yet final, we stated: “This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.” (In re Estrada, supra, 63 Cal.2d at p. 745.)

Estrada continued by quoting with approval People v. Oliver (1956) 1 N.Y.2d 152 , [ 151 N.Y.S.2d 367 , 134 N.E.2d 197, 201-202 ], a case which reached a similar result on the same theory: “This application of statutes reducing punishment accords with the best modern theories *750 concerning the functions of punishment in criminal law. According to these theories, the punishment or treatment of criminal offenders is directed toward one or more' of three ends: (1) to discourage and act as a deterrent upon future criminal activity, (2) to confine the offender so that he may not harm society and (3) to correct and rehabilitate the offender. There is no place in the scheme for punishment for its own sake, the product simply of vengeance or retribution.”

Although Estrada arose in “other contexts” than review of a death penalty trial, it is clear that “the scheme” with which Estrada was concerned was the whole of criminal law and penology. And the “context” was riot that far removed from a' death penalty case: Estrada expressly overruled People v. Harmon, 54 Cal.2d 9 [ 4 Cal.Rptr. 161 , 351 P.2d 329 ]. (In re Estrada, supra, 63 Cal.2d at p. 742.) Harmon was convicted of nonfatal assault by a life prisoner at a time when such a conviction carried a mandatory death penalty. We rejected Harmon’s suggestion that we follow the rule of People v. Oliver, supra, to apply an amendment which was enacted prior to his appeal and which provided a discretionary death penalty for such an assault. (People v. Harmon, supra, 54 Cal.2d at pp. 20-27.) Harmon was executed on August 9, 1960.

None of the cases cited by the majority indicate any regression from Estrada’s recognition that retribution has no legitimate place in the criminal law. In People v. Love, supra, 53 Cal.2d 843 , the appellant challenged the admission into evidence of a tape recording and photograph of a murder victim prior to and at death, respectively. Finding this evidence tended to prove only that the victim died in unusual pain, we held its introduction prejudicially erroneous when compounded by the prosecutor’s argument to the same effect. We noted in passing that proof of unintentionally inflicted pain is of “questionable importance to the selection of penalty” because relevant only to retribution, and because “retribution is no longer considered the primary objective of the criminal law . . . and is thought by many not even to be a proper consideration . . . .” (Id., at pp. 856-857, & fn. 3, citations omitted.) Love was a part of the trend which Estrada culminated; it foreshadowed Estrada’s recognition that retribution has no place in modern penology. For this court to cite Love to limit Estrada would be. to announce an egregious retreat from the “evolving standards of decency that mark the progress of a maturing society.” (Trop v. Dulles (1958) 356 U.S. 86, 101 [ 2 L.Ed.2d 630, 642 , 78 S.Ct. 590 ].)

Moreover, the rationale of People v. Love, supra, fully supports the conclusion that retributive argument at a penalty trial is misconduct. With regard to the challenged eviderice, and in view of other evidence of the victim’s pain, we reasoned that “even if relevant and material, . . . the *751 photograph and the tape recording served primarily to inflame the passions of the jurors and both should have been excluded.” (People v. Love, supra, 53 Cal.2d at pp. 856-857.) Denying that the wide scope of the penalty trial justifies the admission of such evidence, we explained: “Allegedly inflammatory evidence is admissible only when its probative value outweighs its prejudicial effect. . . . Since the jury has complete discretion to choose between the alternative penalties in the light of the objectives of criminal law . . . the permissible range of inquiry on the issue of penalty is necessarily broad. . . . The determination of penalty, however, like the determination of guilt, must be a rational decision. Evidence that serves primarily to inflame the passions of the jurors must therefore be excluded, and to insure that it is, the probative value and the inflammatory effect of proffered evidence must be carefully weighed.” (Id., at p. 856; citations omitted, italics added.) Since the jury’s task is to choose the appropriate penalty “in the light of the objectives of criminal law,” and since Estrada flatly denies that retribution is such an objective, it follows that evidence and argument relevant only to retribution is erroneous and should be excluded from penalty trials. Furthermore, such argument inherently “serves primarily to inflame the passions of the jurors,” and for that reason alone must be excluded.

To whatever extent retributive argument might amount to a dispassionate appeal for execution as a means of preventing extralegal vengeance or of maintaining community respect for the administration of' justice, 8 another of the authorities relied upon by the majority provides ample reasons for the exclusion of such argument. People v. Love, supra, 56 Cal.2d 720 , held that evidence and argument as to the deterrent effect of capital punishment are improper because argument must be based on properly admitted evidence or matters of common knowledge, because there is “no legislative finding, and it is not a matter of common knowledge, that capital punishment is or is not a more effective deterrent than imprisonment,” because argument may not be calculated to mislead the jury or appeal primarily to passion, and, inferentially, because “[j]uries in capital cases cannot become legislatures ad hoc, and trials on the issue of penalty cannot be converted into legislative hearings.” (Id., at pp. 729-732, 726.) I submit that all of these reasons apply as forcefully to retribution as to deterrence. Estrada held that concluding that the Legislature was motivated by vengeance would be impermissible “in view of modern theories of penology.” (In re Estrada, supra, 63 Cal.2d at p. 745.) Whether or not the imposition of capital punishment serves to prevent extralegal vengeance *752 or to maintain community respect for the administration of criminal justice are certainly not matters of common knowledge. To the extent that retributive argument urges these propositions, a fair resolution of the factual propriety of such propositions in any given penalty trial would require presentation of such a wide range of evidence and argument that penalty trials might indeed resemble legislative hearings. To every other extent, retributive argument appeals solely to passion.

Hence I believe it settled that retribution has no place in the criminal law of in proceedings to determine penalty. I think it indisputable that this court would not even consider qualifying these principles but for the existence of capital punishment, and the existence of capital punishment is obviously not a judicially cognizable reason for doing so now. I am not sure that the majority do intend to retreat from Estrada, but because they have cited language which might be so viewed, I find it necessary to express my views.

People v. Love, supra, 56 Cal.2d at p. 731 , discussed the prosecutor’s erroneous deterrence argument in the context of prior cases. Although the language cited by the majority might be taken to approve argument “that it is necessary swiftly and severely to punish the guilty,” this hardly amounts to" approval of retributive argument—because swift and severe punishment may be suggested by legitimate penal objectives. It follows that the implied necessity of showing that a “prosecutor went beyond merely urging severe punishment” does not support a conclusion that merely urging retributive punishment is nonprejudicial.

The majority’s remaining authority is People v. Garner, supra, 57 Cal.2d 135, 156 , which held that concededly erroneous argument concerning deterrence was nonprejudicial because “only a minor part of [the prosecutor’s] appeal to the jury . . . .”

Although the prosecutor’s references to retribution were few quantitatively, I believe the context of those references rendered them a substantial portion of his appeal for execution. Apart from several sentences commending the jurors for their conscientiousness, thanking them for their attention, and expressing confidence that their verdict would be just, the prosecutor’s references to retribution constituted the conclusion of his entire argument. 9 Although his tone of voice is impossible to glean from *753 the record, his language obviously reflects an appeal to the passions of the jurors. He argued that although “our society is becoming more and more permissive. ... I don’t think we have reached the point yet where equal punishment for our crimes can only take place in the second life and not in this life,” that “[tjhese defendants snuffed the life of a precious human being,” that “[w]e are not only talking about avenging Mr. Hartzel’s death, but Mrs. Hartzel,” and that the defendants should not be permitted to live in prison when “Mr. Hartzel would never eat another meal, never see his wife again, never listen to music again, never see another sunrise.”

As noted above, the appropriate test of harmless error in a penalty trial examines whether the error was substantial. 10 Because the prosecutor’s *754 references to retribution amounted to a passionate concluding appeal for death sentences, I do not see how they can be deemed insubstantial and therefore harmless.

In sum, I would reverse both penalties because of Witherspoon error. I believe the improper admission of Floyd’s statement through Dr. Tweed independently calls for a reversal of Milton’s death verdict. Finally, I disagree with the majority’s treatment of the misconduct contention to the extent that it implies either that retributive argument is proper or that the erroneous argument in this case was harmless.

Traynor, C. J., and Tobriner, J., concurred.

Appellants’ petitions for a rehearing were denied February 25, 1970. Peters, J., was of the opinion that the petitions should be granted.

In obvious reference to Mr. Willis’ initial answer, the majority unnecessarily and, in my opinion, incorrectly assert that the answer “I believe so” is by itself an unambiguous response.

In response to the trial court’s question whether there was “any juror that entertains such a conscientious opinion that he would under no circumstances vote for the death penalty,” Mr. Willis replied “I am. ... I don’t believe I could send a man to death.

I don’t believe I could vote to go to the gas chamber.” This response by itself is an unambiguous expression of automatic opposition to the death penalty under any circumstances because of the direct and tinambiguous reply “I am.” The subsequent use of the phrase “I don’t believe" to amplify his prior unequivocal answer does not, in the circumstances here presented, render the prior answer ambiguous.

In my opinion, the response “I don’t believe" is not by itself sufficiently unambiguous to satisfy Witherspoon . This court repeatedly has expressly held that the response “I don’t think” does not by itself satisfy the Witherspoon requirement of unambiguous expression of an automatic opposition to the death penalty under any circumstances (In re Hillery, 71 Cal.2d 857, 863 [ 79 Cal.Rptr. 733 , 457 P.2d 565 ]; People v. *733 Osuna, 70 Cal.2d 759, 768 [ 76 Cal.Rptr. 462 , 452 P.2d 678 ]; People v. Chacon, 69 Cal.2d 765, 772-773 [ 73 Cal.Rptr. 10 , 447 P.2d 106 ]), and I cannot understand how the phrase “I don’t believe” is any more clear than the phrase “I don’t think.” Indeed, this court has never explicitly held that the phrase “I don’t believe” satisfies the requirements of Witherspoon , and there is language of this court suggesting the contrary. (See People v. Vaughn, 71 Cal.2d 406, 416 [ 78 Cal.Rptr. 186 , 455 P.2d 122 ].)

The majority cite People v. Hill, 70 Cal.2d 678, 701, fn. 3 [ 76 Cal.Rptr. 225 , 452 P.2d 329 ], as holding that a venireman was properly excluded who answered “I believe so” in response to the question whether he would be unable to return a verdict imposing the death penalty regardless of the evidence. However, the venireman in Hill , upon further questioning by the trial court, responded, “I believe that is my feeling, yes.” {Id., italics added.) Thus Hill does not stand for the proposition that the phrase “I believe” by itself satisfies Witherspoon , because the juror held properly excluded in that case both reiterated his original statement and, more importantly, clarified his answer by an affirmative “yes” upon further questioning by the court.

Mr. Willis’ statement that he was opposed to sitting on the case before him for the reason the death penalty was sought clearly does not meet the requirements of Wither-spoon, since it “expressed little more than a deep uneasiness about participating in a death verdict.” (People v. Bradford, 70 Cal.2d 333, 345 [ 74 Cal.Rptr. 726 , 450 P.2d 46 ]; see also People v. Stanworth, 71 Cal.2d 820, 837-838 [ 80 Cal.Rptr. 49 , 457 P.2d 889 ].)

As for Mr. Willis’ statement that he could not be “fair to the State” in the case before him, we have held that a prospective juror’s statement that he could not be fair or impartial to the state if selected to sit in the case cannot be the basis of a *736 challenge for cause according to Witherspoon. (In re Seiterle, 71 Cal.2d 698, 701 [ 78 Cal.Rptr. 857 , 456 P.2d 129 ]; see also In re Eli, 71 Cal.2d 214, 216-217 [ 77 Cal.Rptr. 665 , 454 P.2d 337 ]; In re Anderson, 69 Cal.2d 613, 617-618 [ 73 Cal.Rptr. 21 , 447 P.2d 117 ].)

Finally, Mr. Willis’ reply “I am against capital punishment, yes” to the question whether he had a bias or prejudice in the proceeding clearly does not warrant his exclusion under Witherspoon . It is well settled that substantively identical answers to substantively identical questions do not warrant exclusion under Witherspoon . In In re Hill, 71 Cal.2d 997, 1016, fn. 6 [ 80 Cal.Rptr. 537 , 458 P.2d 449 ], this court held that it was error under Witherspoon to exclude for cause jurors who replied “I don’t believe in the death penalty” to the question “[D]o you know of any reason why you cannot sit with us as a fair and impartial juror?” Similarly, in In re Anderson, supra, 69 Cal.2d 613, 617-618, we held improperly excluded under Witherspoon a juror who replied “Yes, sir, I do. I don’t believe in capital punishment” to the question “Do you know of any reason you couldn’t be a fair and impartial juror in this case?” (See also People v. Schader, 71 Cal.2d 761, 784-787 [ 80 Cal.Rptr. 1 , 457 P.2d 841 ] [error to exclude juror who stated “that she was opposed to the death penalty and that her opinions on the death penalty would prejudice her”]; People v. Quicke, 71 Cal.2d 502, 508, fn. 1 [ 78 Cal.Rptr. 683 , 455 P.2d 787 ] [error to exclude juror who stated “I am against capital punishment”].)

Mr. Willis was not present at this time, having previously been excluded for cause.

The voir dire examination by the prosecutor during this time was as follows (italics added):

“Mr. Bugliosi [The Prosecutor]: Now, many jurors have no conscientious objection to the imposition of the death penalty, but they personally do not want to sit on a case where the death penalty is involved and vote for a verdict of death. I would like to ask of you an individual question, based essentially on what I just mentioned.

“Mr. Schmittdell, if you thought that under all the facts in this case and under all the circumstances that this was a proper case for the imposition of the death penalty, would you personally have the courage,. and would you personally be willing to vote for a verdict of death?

“Mr. Schmittdell: Yes, I would.

“Mr. Bugliosi: Now, before I go any further, I might make a statement that neither defendants’ counsel or I, nor his Honor, can tell you what a proper case is for the imposition of a death penalty, for the simple reason there is no legal definition. The law leaves it up to your absolute discretion as to what is or is not a proper case. They don’t give you any guidelines or standards to follow. It is up to your individual discretion whether you feel the facts are sufficiently aggravating to warrant the imposition of the death penalty. You all understand that?

“(Whereupon the prospective jurors indicated in the affirmative.)

“Mr. Bugliosi: Mr. O’Connor, if you felt, after hearing all of the evidence and the testimony in this case, that this was a proper case for the imposition of the death penalty, would you personally be willing, and would you personally have the courage to vote for a verdict of death?

“Mr. O’Connor : Provided they had been found guilty, and I believe that is in the next trial.

“Q Yes, before the issue of death even arises, these defendants have to be found guilty of first degree murder.

“A Right.

“Q And in a proper case, you say you would be willing and would have the courage to vote for a verdict of death, is that correct?

“A Yes.

“Mr. Bugliosi: Mrs. O’Connor, how about you?

“Mrs. O’Connor: Yes.

*738 “Mr. Bugliosi: Mrs. Plumlee?

“Mrs. Plumlee: Yes.

“Mr. Bugliosi: Mrs. Blanchard?

“Mrs. Blanchard: Yes.

“Mr. Bugliosi: Mr. White?

“Mr. White: Yes, if so proved, yes.

“Mr. Bugliosi: The reason I am asking these individual questions, as I have indicated some jurors are not opposed to it but they want to let George do it. They, themselves, don’t want to vote for a verdict of death.

“Mrs. Bowman, if you thought that this was a proper case for the imposition of the death penalty, would you personally be willing, and would you personally have the courage to vote for a verdict of death?

“Mrs. Bowman: Yes.

“Mr. Bugliosi: Mr. West, how about you, sir?

“Mr. West: Yes, sir.

“Mr. Bugliosi: Mr. Smith?

“Mr. Smith: Yes.

“Mr. Bugliosi: Miss Rogers?

“Miss Rogers: No.

“Q Even if you thought it was a proper case, you would not have the courage to vote for a verdict of death?

“A No, I wouldn’t.

“Mr. Bugliosi: I make a motion, your Honor, to excuse the juror on the ground of implied bias.

“The Court: The motion is granted.

“Mr. Boags: [Defense Counsel]: Will the record reflect we are objecting?

“The Court: Objection is overruled.”

Even assuming the juror who states he would not return the death penalty “in this case" knows all of the relevant facts that are to be presented at the trial of the case before him so that his statement clearly indicates that he would not in fact impose the death penalty in the particular case before him, under Risenhoover he is improperly excluded because he has not indicated his automatic opposition to the death penalty “in all cases.” (See also People v. Vaughn, supra, 71 Cal.2d 406, 416 .)

Of course, the majority in the instant case do not purport to reject the Risenhoover ruling that a prospective juror is not properly excluded under Witherspoon because of his inability to impose the death penalty in the particular case before him, for to reject this ruling would be to emasculate completely Witherspoon , resulting often in juries that would “express the conscience of the community” even less than pre Witherspoon “hanging juries.”

The basic premise of Witherspoon is that “[gjuided 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 or death. Yet, in a nation less than half of .whose people believe in the death penalty, a jury composed exclusively of such people cannot speak for the community. Culled of all who harbor doubts about the wisdom of capital punishment—of all who would be reluctant to pronounce the extreme penalty—such a jury can speak only for a distinct and dwindling minority.” (391 U.S. at pp. 519-520 [20 L.Ed.2d at pp. 783-784]; footnotes omitted.)

An approach which would require the exclusion of prospective jurors based on their views as to the particular case would provide in effect that the less heinous the defendant’s crime or the more exemplary his conduct prior to the crime, the greater the likelihood of securing a death-oriented jury. Under such an approach, the more favorable the circumstances for imposing life imprisonment in a given case, the more prospective jurors would state that they could not return the death penalty in that case, the less would the resulting jury “express the conscience of the community,” and the more “distinct and dwindling” the minority represented by the jury would become. And if a particular case involved such extremely mitigating circumstances that the overwhelming majority of citizens or prospective jurors would not consider *740 the death penalty after hearing all the relevant factors, the resulting jury would be even more of a “hanging jury" than that which Witherspoon proscribed.

Suppose, for example, that the prospective jurors in the instant case were informed not only that the case involved a murder committed in the course of a robbery, but also that one of the defendants—Milton—was not the triggerman. The fact that a defendant did not himself pull the trigger, but is being prosecuted for first degree murder as an accomplice or under the felony-murder doctrine, is extremely mitigating —such a defendant was very rarely given the death penalty by even the pre-Witherspoon “hanging juries" from which prospective jurors with general conscientious scruples were excluded for cause. (Compare, In re Anderson, supra, 69 Cal.2d 613, 618-619 , with A Study of the California Penalty Jury in First-Degree-Murder Cases, supra, 21 Stan.L.Rev. 1297, 1348-1349.) Thus many “hanging jurors” that do not generally object to capital punishment apparently do object to its application to nontriggermen. If prospective jurors could be excluded for cause because the cases before them involve such nontriggermen and they state that they would never impose the death penalty against such defendants, the resulting juries would be culled not only of “all who harbor doubts about the wisdom of capital punishment” generally, but also of those who, though generally in favor of capital punishment, are opposed to its application in the vicarious liability situation. The resulting jury would be even less representative of the “conscience of the community” than the “hanging jury" that was proper under California law prior to Witherspoon and which Witherspoon attempted to preclude.

I find untenable the majority’s suggestion that Milton’s counsel should have objected on the ground that the questions relating to where Floyd obtained the gun and where he was taking it were irrelevant. Dr. Tweed was called to testify as to Floyd’s susceptibility to rehabilitation. Dr. Tweed testified that the killing was neither premeditated nor deliberate, but was instead “sort of automatic.” Dr. Tweed’s account of the story he heard from Floyd implied that Floyd’s possession of the gun was temporary. Such testimony is clearly relevant for purposes of disclosing the basis of Dr. Tweed’s expert opinion, and the fact that Floyd told Dr. Tweed where he got. and where he was taking the gun would tend to support Dr. Tweed’s conclusion that *744 Floyd was telling him the truth. Thus, had Milton’s counsel objected that the questions were irrelevant, the objection would probably have been overruled. Moreover, all of Dr. Tweed’s testimony should have been irrelevant to Milton, as the trial judge had ordered. Absent a question calling unavoidably for reference to Milton, Milton’s counsel was justified in relying upon the judge’s order, and in leaving tactical decisions regarding relevancy to Floyd’s counsel—who had called Dr. Tweed solely for his own client’s case. Finally, since Milton’s counsel cannot be deemed to have waived the Aranda claim by failing to object at all, a fortiori no waiver can follow from his failure to object on non -Aranda grounds.

The majority’s citation is to the first of the following two concluding paragraphs of Bruton : “Finally, the reason advanced by the majority in Delli Paoli was to tie the result to maintenance of the jury system. ‘Unless we proceed on the basis that the jury will follow the court’s instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense.’ 352 U.S. at 242 [1 L.Ed.2d at 285]. We agree that there are many circumstances in which this reliance is justified. Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. ‘A defendant is entitled to a fair trial but not a perfect one.’ ... It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge’s instructions to disregard such information. Nevertheless, as was recognized in Jackson v. Denno, supra, there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. . . . Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed. Pointer v. Texas, supra.

“We, of course, acknowledge the impossibility of determining whether in fact the jury did or did not ignore Evans’ statement inculpating petitioner in determining petitioner’s guilt. But that was also true in the analogous situation in Jackson v. Denno, and was not regarded as militating against striking down the New York procedure there involved. It was enough that that procedure posed ‘substantial threats to a defendant’s constitutional rights to have an involuntary confession entirely disregarded and to have the coercion issue fairly and reliably determined. These hazards we cannot ignore.’ 378 U.S. at 389 [12 L.Ed.2d at 922, 1 A.L.R.3d 1205 ]. Here the introduction of Evans’ confession posed a substantial threat to petitioner’s right to confront the witnesses against him, and this is a hazard we cannot ignore. Despite the concededly clear instructions to the jury to disregard Evans’ inadmissible hearsay evidence inculpating petitioner, in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination. The effect is the same as if there had been no instruction at all. . . . (Bruton v. United States, supra, 391 U.S. 123, 135-137 [ 20 L.Ed.2d 476, 484-485 , 88 S.Ct. 1620 ]; italics added, footnotes omitted.)

It is noteworthy that we have held that in a penalty trial, “[a] warning of probable consequences of failure to convict, and of the unfavorable reactions of neighbors is improper . . . .” (People v. Purvis, 60 Cal.2d 323, 342 [ 33 Cal.Rptr. 104 , 384 P.2d 424 ].)

The whole of the prosecutor’s conclusion was as follows:

“Is life imprisonment the proper penalty for these two defendants? I think it is common knowledge that our society is becoming more and more permissive. Whether for good or bad, certainly I don’t know. I am not a sociologist and don’t purport to be. But I don’t think we have reached the point yet where equal punishment for our *753 crimes can only take place in the second life and not in this life. I don’t think they have gotten that permissive yet.

“So I think you should ask yourselves this question. These defendants snuffed the life of a precious human being, or the precious life of a fellow human being, a 71-year-old bus driver. You recall Mrs. Hartzel testified, I believe, he had been a bus driver for 48 years. I think it is a fair inference he was probably a hard worker, probably was about to retire, spend the few remaining years of his life, the twilight of his life, enjoying a few warm, pleasant years with his family. These guys killed him.

“The question is what would be equal punishment for that act. We are not only talking about avenging Mr. Hartzel’s death, but Mrs. Hartzel. A great, great, an enormous loss. Sometimes it is too easy to forget about the victim and his loved ones.

“Counsel, by innuendo, have told you how- horrible it is—they don’t come out and say it, but the gas chamber and stuff like that. Well, there is another side of that coin. Maybe life imprisonment isn’t that bad, either.

“I know they are fed. I imagine three meals a day. I imagine their living conditions are sanitary. I know, at least in the State Prisons in California, they have a' library. They have a movie. The inmates participate in sports. Oh, it is not a country club. Don’t get me wrong. I am not saying that at all. It is not that bad, either.

“Should these defendants be permitted to live like that, we should say that Mr. Hartzel would never eat another meal, never see his wife again, never listen to music again, never see another sunrise. That is the problem you are going to have to deal with.

“Do they deserve to be given a break? I don’t know. Did they give Mr. Hartzel a break? Do they deserve to be given another chance? Did they give Mr. Hartzel a chance? Do they deserve any mercy? Did they show any mercy for Mr. Hartzel?

“I would say that it is an easy way out for you folks, the easiest thing for you to do would be to go back in the jury room and come back with a verdict for life imprisonment. That would be very easy, but the question is, is it the right way? Is it the way of 12 responsible human beings?

“You all told me that you would have the courage in the proper case to come back with a verdict of death. Now, all the chips are on the line, and I say that if this is not a proper case for the death penalty, what would be a proper case? How aggravated does a killing have to be? If the death penalty is to mean anything in the State of California other than two empty words, this is a proper case.

“In any event, you are 12 reasonable men and women. I know you are very conscientious. All of you were taking notes throughout the entire trial, I am confident whatever verdict you reach will be a proper and a fair verdict under the circumstances.

“I want to thank you very much for your attention throughout the entire trial. Thank you.”

Because I believe this test is the equivalent of the “reasonable doubt” standard of harmless constitutional error when an error occurs in a penalty trial, it is unneces *754 sary to determine whether Estrada’s absolute rejection of retribution is compelled by the Eighth Amendment. (See, The Death Penalty Cases (1968) 56 Cal.L.Rev. 1268, 1343-1354.)