Can a prosecutor in a penalty trial ask the jury to impose the death penalty for reasons of retribution or vengeance?

Although this court has never held that it is improper for a prosecutor in closing argument in a penalty trial to ask the jury to impose the death penalty for reasons of retribution or vengeance, we have stated in other [1 Cal.3d 722] contexts that 'There is no place in the scheme for punishment for its own sake, the product simply of vengeance or retribution.' (In re Estrada, 63 Cal.2d 740, 745, 48 Cal.Rptr. 172, 176, 408 P.2d 948, 952.) And, in People v. Love, 53 Cal.2d 843, 3 Cal.Rptr. 665, 350 P.2d 705, where the issue was the admissibility at the penalty trial of a photograph indicating that the victim had died in great pain, we stated, in finding the photograph prejudicially inflammatory: 'Proof of such pain is of questionable importance to the selection of

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Although the prosecutor asked the jury to consider retribution in deciding whether to impose the death penalty, he also discussed other pertinent factors, including defendants' commission of other crimes, their premeditation and intent to kill, their lack of remorse, and their amenability to rehabilitation. 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.)

Furthermore neither counsel objected to the statements at the trial, and 'Misconduct of the prosecuting attorney may not be assigned as error on appeal if it has not been assigned at the trial unless, the case being closely balanced and presenting grave doubt of the defendant's guilt, the misconduct contributed materially to the verdict or unless the harmful results of the misconduct could not have been obviated by a timely admonition to the jury.' (People v. Varnum, 70 A.C. 514, 523, 75 Cal.Rptr. 161, 166, 450 P.2d 553, 558.) Here the remarks of the prosecutor fall within the general rule and not within either of the exceptions.

Defendants challenge the exclusion under section 1074, subdivision 8, of the Penal Code of certain jurors, based on those jurors' opposition[1 Cal.3d 723] to the death penalty. Witherspoon v. Illinois (1968) 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776, holds that 'a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.' The court excepted from this ruling prospective jurors who 'made unmistakably clear * * * that they would Automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them * * *.' (Id., at p. 522, fn. 21, 88 S.Ct. at p. 1777.)