¶1I dissent.
¶2The court here instructed the jury that “The law of this state provides that 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 jury that finds him guilty. If you should find the defendant guilty of murder in the first degree, it will be your duty to determine which of the two penalties shall be inflicted, the death penalty or confinement in the state prison for life.
¶3“The discretion which the law invests in you is not an arbitrary one and is to be employed only when you are satisfied that the lighter punishment should be imposed. If you find the defendant guilty of first degree murder and do not find extenuating facts or circumstances to lighten the punishment, it is your duty to find a verdict of murder in the first degree and fix the penalty at death. There will be handed to you for your use appropriate forms of verdict.” (Emphasis added.)
¶4The emphasized portion of the instruction should not have been given. It has not been, and should not be, the law of this state. Section 190 of the Penal Code provides that “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 jury trying the same-, ...” (Emphasis added.) The statute leaves the determination of punishment for first degree murder to the discretion of the jury alone, directing only that it be death or life imprisonment. To permit the court to inform the jury that before life imprisonment may be imposed, there must be extenuating circumstances is to permit judicial invasion of the province of the jury and constitutes an interference with its exercise of the discretion directed by the statute. The statute leaves the penalty to the sole discretion of the jury; a majority of this court deprives this defendant of the right to a jury trial on the issue of penalty by condoning an instruction which tells the jury it may not fix the penalty at life imprisonment unless it finds that extenuating circumstances existed.
¶5In Mr. Justice Schauer’s dissent in People v. Williams, 32 Cal.2d 78 [195 P.2d 393], a case involving the same *215erroneous instruction, he traced the origin of the error which a majority of this court now sanctions once more. He showed that it began with specious reasoning in People v. Welch (1874), 49 Cal. 174, and that it has, from time to time, been followed until the present time. In People v. Bollinger, 196 Cal. 191, 209 [237 P. 25], the question was once again discussed and the cases holding the giving of such an instruction not to be error once again cited. The court there said: “We have, however, gone into the subject in the hope, if not the expectation, that the practice of giving such instructions may be abated, thus giving assurance that the penalty reflects the decision of the jury alone and at the same time sparing this court the necessity of repeatedly passing on such assignments of error. And considering the numerous occasions this court has held that section 190 of the Penal Code confers on the jury alone the discretion of determining the punishment in cases of guilt of murder in the first degree, trial courts, especially where a human life is at stake, should not interfere with the discharge of that solemn duty by the jury.” As Mr. Justice Schauer said (dissent, People v. Williams, supra,32 Cal.2d 78, 96): “The denounced practice has been continued because this court has tolerated it and the evil instruction will continue in use until this court finally enforces what it has so often recognized to be the law.” In Winston v. United States, Strather v. United States, Smith v. United States, 172 U.S. 303 [19 S.Ct. 212, 43 L.Ed 456]; Andres v. United States, 333 U.S. 740 [68 S.Ct. 880, 92 L.Ed. 1055], the Supreme Court reversed judgments of conviction where a statute similar to ours was concerned and instructions invading the province of the jury, as here, were given. ‘ ‘ The proper practice for the trial court is to refrain from giving any instructions which might have a tendency in the slightest degree to influence or control the discretion of the jury in its determination of the proper penalty in a case where the defendant is charged with murder in the first degree.” (People v. Martin, 12 Cal.2d 466, 470-471 [85 P.2d 880].) Prior to and including the Williams case, this court deplored, while condoning, the error of the instruction (see People v. Bawden, 90 Cal. 195 [27 P. 204]; People v. Rogers, 163 Cal. 476 [126 P. 143] ; People v. Bollinger, supra,196 Cal. 191; People v. Ross, 134 Cal. 256 [66 P. 229]; People v. Smith, 13 Cal.2d 223 [88 P.2d 682]; People v. Kolez, 23 Cal.2d 670 [145 P.2d 580]). In the case at bar, we are told by the majority that the question of whether or not the giving of *216the instruction was prejudicial error is completely answered by the decision in the Williams case.
¶6The instruction under consideration is not always given when a defendant is charged with first degree murder. In those cases where it is not given and where the discretion conferred by statute (Pen. Code, § 190) -is left wholly to the jury trying the case, the defendant is given his right to a jury trial upon all the issues including that of imposition of penalty. In cases where the instruction is given, the defendant is deprived of his right to a jury trial upon the issue of imposition of penalty. Is this equal protection under law ? Is not the rule now, as it has always been, that those in the same class shall receive equal protection and equal rights? It appears to me that all defendants accused of murder in the first degree are members of the same class. For the purpose of this argument, what occurs at the trial in the matter of proof is unimportant. If they are so accused and stand trial before a jury, then they stand in the same position. Suppose that there are two defendants charged with murder in the first degree. In one instance, the jury is instructed in the language of the statute that the penalty to be imposed rests in its discretion.; in the other, the jury is charged with the instruction here under consideration—that it must give the death penalty unless it finds “extenuating facts or circumstances to lighten the punishment.” What are these extenuating facts and circumstances? Conduct on the part of the deceased or conduct of the defendant ? If the matter is left to the discretion of the jury as directed by the statute, many human frailties might be taken into consideration with a view toward achieving justice.' An examination of the record in the case at bar shows no instruction given which defined “extenuating facts and circumstances.” It appears to me that the error of the instruction is compounded by leaving to the jury the problem of determining just what facts and circumstances would be considered extenuating in a legal sense. If the language of the statute which leaves the matter of penalty to the discretion of the jury alone is not observed, have such defendants been accorded due process of law? When a jury has been told that in order to fix the penalty at life imprisonment it must find “extenuating facts or circumstances,” can it be said that the defendant has not been seriously injured in his right to life*. As was said in Andres v. United States, supra, 333 U.S. 740, “In death cases doubts such as those presented here should be resolved in favor of *217the accused.” The perpetuation of the serious error of this instruction has the effect of resolving all doubts in favor of the state. Apparently now it is to be the court-made law of this state that the instruction is not erroneous. Mr. Justice Traynor, in his dissent in People v. Kolez, supra,23 Cal.2d 670, 675, said that this court has been unwilling to overrule the cases holding that it was not error to give the instruction in question but has also been unwilling to hold that it was proper to give it. That “It has thus placed itself in the inconsistent position of tolerating the giving of an instruction that it condemns. It has sought to overcome this inconsistency by admonishing trial courts not to give the instruction. There can be no such middle ground, however. If the instruction is not erroneous it is quite proper for trial courts to give it and an unwarranted interference for this court to admonish them not to give it. If the instruction is erroneous it should be held to be so outright. The dilemma is not resolved but perpetuated when this court, in deference to precedent, sanctions an incorrect instruction and at the same time admonishes the trial court to cease giving it. The repeated disregard of such admonitions demonstrates that if the correct rule is to be applied, this court must join in its enforcement and reverse the judgments of trial courts that vitiate it. Disregard of admonitions of this court in the past has been held to indicate an attempt to influence the jury improperly and therefore to constitute ground for reversal. (People v. Maughs, 149 Cal. 253, 263 [86 P. 187]; People v. Costello, 21 Cal.2d 760 [135 P.2d 164] ; see People v. Ryan, 152 Cal. 364 [92 P. 853].)”
¶7It also appears to me that the evidence is insufficient to justify the giving of an instruction on lying in wait. Ordinarily, the jury determines the state of mind of the defendant and the degree of the homicide from all of the circumstances of the case. A finding that a murder was by lying in wait, however, necessitates a verdict of first degree murder and takes from the trier of fact the further question whether it was willful, deliberate, and premeditated. (People v. Thomas, 41 Cal.2d 470, 478 [261 P.2d 1], concurring opinion; People v. Bernard, 28 Cal.2d 207, 211 [169 P.2d 636]; People v. Murphy, 1 Cal.2d 37, 41 [32 P.2d 635].) The nature of the act by which the murder was committed outweighs all other circumstances. The dangers inherent in such a rule have been forcefully pointed out. (Moreland, The Law of Homicide, pp. 197-198, 206-207.) The greatest danger is *218that if the rule is improperly invoked a defendant may be found guilty of murder in the first degree even though there is no evidence of lying in wait and the jury did not reach the question of premeditation and deliberation. Although there was ample evidence of premeditation and deliberation in the present ease to support a verdict of first degree murder on that ground, under the instruction on lying in wait the jury may have concluded that the crime was perpetrated by lying in wait and thus may never have reached the question of premeditation and deliberation. Although defendant was waiting and watching for his wife’s visitor to leave, there is no evidence that the shots were fired from a position of concealment. Defendant entered his wife’s house, spoke to her, and fired the shots that killed her. The victim was aware of defendant’s presence and no more is shown than that he did not tell her in advance that he would kill her. That circumstance is not enough to require the jury to return a verdict of first degree murder. The instruction is prejudieiously erroneous since it permitted the jury to return a verdict of first degree murder without first finding premeditation and deliberation.
¶8For the reasons above stated, I would reverse the judgment.
¶9Schauer, J., concurred.