¶1I dissent.
¶2Two juries have considered the penalty phase of this defendant’s capital case and both reached the same result. After the first jury verdict this court found “overwhelming evidence” in support of defendant’s guilt (People v. Lanphear (1980) 26 Cal.3d 814, 837 [163 Cal.Rptr. 601, 608 P.2d 689]) but reversed the penalty under compulsion of Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]. Now a majority of this court propose yet another reversal, this time in misguided reliance on a palpably erroneous theory advanced by the majority in People v. Easley (1983) 34 Cal.3d 858 [196 Cal.Rptr. 309, 671 P.2d 813].
¶3*170Where my colleagues go wrong is in their conclusion that elimination of sympathy as a factor somehow prevents the jury from weighing mitigating circumstances. Nothing could be further from reality. The jurors were instructed by the court to “consider all the evidence which has been received during the trial,” and they were further advised specifically to weigh the aggravating and mitigating circumstances “that you find to be established by the evidence.”
¶4The defendant presented all the evidence he could muster regarding his unfortunate background and certain purported redeeming qualities of character. Those were his mitigating circumstances. Sympathy, on the other hand, is not a characteristic of the defendant; it is an emotion of the jurors. Thus, when jurors were cautioned not to be swayed by sympathy, they were not being instructed to ignore thoughtful and dispassionate consideration of the defendant’s proffered mitigation. They were merely admonished to employ reason, not emotion. That is sound advice in a court of law. Justice Cardozo reminded us: “The balance is swayed, not by gusts of fancy, but by reason.” (Cardozo, Growth of the Law (1924) p. 58.)
¶5What my learned colleagues fail to comprehend is that if jurors are permitted—indeed, encouraged—to entertain emotion in assessing penalty, in most instances they are likely to order death for the miscreant. I continue to adhere to the views expressed in my dissent in People v. Bandhauer (1970) 1 Cal.3d 609, 619 [83 Cal.Rptr. 184, 463 P.2d 408], and in my dissent in People v. Easley, supra,34 Cal.3d at page 886: “In the current climate of public opinion, sympathy is more likely to be aroused for the victim and his family than for a defendant who has been found guilty of a brutal first degree murder. Thus cautioning a jury in the penalty phase of the trial not to be swayed by mere sympathy redounds to the benefit, not the detriment, of the defendant.”
¶6The majority lean on a thin reed to reverse a second jury’s determination of what it believes to be the appropriate penalty in this case. To now require a third replay of the same theme offends the “miscarriage of justice” clause of the California Constitution (Cal. Const., art. VI, § 13).
¶7Respondent’s petition for a rehearing was denied July 12, 1984. Mosk, J., and Lucas, J., were of the opinion that the petition should be granted.