Ketchel

Donald Floyd Ketchel and Thomas Edward Sears were found guilty of first degree murder and first degree robbery. The jury imposed the death penalty for the murder.' On appeal, we reversed the judgments insofar as they related to the death penalty. (People v. Ketchel (1963) 59 Cal.2d 503 [ 30 Cal.Rptr. 538 , 381 P.2d 394 ],) 1 Upon retrial, the jury again imposed the death penalty. We reversed these judgments, both as to guilt and penalty, because confessions inadmissible under Escobedo v. Illinois (1964) 378 U.S. 478 [ 12 L.Ed.2d 977 , 84 S.Ct. 1758 ], and People v. Dorado (1965) 62 Cal.2d 338 [ 42 Cal.Rptr. 1693 , 398 P.2d 361 ], were allowed into evidence at their trial on guilt. (People v. Ketchel (1966) 63 Cal.2d 859 [ 48 Cal.Rptr. 614 , 409 P.2d 694 ].)

The instant appeal arises from defendants’ third trial. The jury found Ketchel and Sears guilty of robbery in the first degree and murder in the first degree. The jury fixed the penalty for the murder as death for Ketchel and life imprisonment for Sears. 2 Sears’ appeal was consolidated with Ketchel’s automatic appeal. (Pen. Code, § 1239, subd. (b).)

We summarized at some length in our first opinion the factual circumstances…

I concur in the affirmance of the judgment against Sears, as modified.

I concur in the affirmance of the judgment against Ketchel in all respects except as to the reversal of the penalty as to which I dissent.

The majority base their reversal upon asserted violations of the subsequently announced decision of the Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ].

In our recent unanimous decision in People v. Varnum, 70 Cal.2d 480 [ 75 Cal.Rptr. 161 , 450 P.2d 553 ], this court laid down certain specific guidelines to govern our review of death’ penalty cases to determine whether prospective jurors were excluded in violation of the principles established in Wither-spoon. This court said in Varnnim (at p. 492-493): “In our application of the rule announced in Witherspoon , we must determine whether the prospective juror who has been excused for cause made it ‘unmistakably clear’ that he or she would automatically vote against the imposition of the death penalty regardless of the evidence in the case. Our task requires us to assess the responses of the venireman in the full context of that portion of the court and…