concurring:

I concur in the judgment and in all of the court’s opinion except Section I.C., which holds the California statute constitutional despite the absence of a requirement of a written statement by the jury of the reasons for its imposition of the death penalty. On that point, I respectfully disagree.

The purpose of requiring a sentencing jury to provide written findings in support of a death sentence is to enable appellate courts to ensure that the jury’s discretion was properly exercised and that the sentence was not arbitrary or capricious. Gregg v. Georgia, 428 U.S. 153, 195 , 96 S.Ct. 2909, 2935 , 49 L.Ed.2d 859 (1976) (plurality opinion). In the absence of such written findings, the reviewing court can only assume that the jury acted within its instructions. While that assumption is commonly employed in reviewing general verdicts of guilt, it is not a permissible basis for approval of a death sentence.

In Roberts v. Louisiana, 428 U.S. 325 , 96 S.Ct. 3001 , 49 L.Ed.2d 974 (1976), the Supreme Court struck down a statutory scheme under which five specific types of murder carried a mandatory death sentence. The statute also.required that the jury in each such case be instructed on lesser included offenses of second-degree murder and manslaughter, whether or not the evidence justified those instructions. The state argued that the specificity of categories of capital murders was sufficient to guide the jury and avoid the danger of capriciousness that had led the Supreme Court to strike down other death penalty statutes. The plurality rejected the state’s argument and commented as follows:

Id. at 334-35 , 96 S.Ct. at 3006-07. This language indicates that some method must be provided to determine whether the sentencing jury followed instructions and whether its death sentence was arbitrarily imposed. While California has provided a system that furnishes standards to guide the jury initially, it has not required from the jury any documentation to permit the requisite review of the jury’s death sentence.

The majority relies, as did the California Supreme Court, on the fact that the trial judge is required by the California statute to review the jury’s sentence and to make written findings in support of his or her determination to uphold or set aside the jury’s sentence. The majority finds this system sufficiently close to that approved in Proffitt v. Florida, 428 U.S. 242 , 96 S.Ct. 2960 , 49 L.Ed.2d 913 (1976), to render it constitutional. In Proffitt , however, the statute imposed upon the judge, not the jury, the final decision whether or not to pass the death sentence. The judge was required to set forth his or her reasoning in written form, which permitted the necessary appellate review. In the present case, the California statute places the judge in an entirely different position. The death sentence itself is imposed by the jury. That sentence will stand unless the judge finds it contrary to law or not supported by the evidence. The judge’s reasons for approving the jury’s sentence need not be the reasons that the jury, the actual sentencing authority, relied upon in imposing the death sentence. Review of the judge’s findings is therefore not an adequate substitute for an effective review of the jury’s determination to impose the death sentence. Because the California statute fails to require written findings by the jury that would permit review to determine whether the death sentence was arbitrarily imposed, it violates the eighth and fourteenth amendments.