Opinion
PETERS, J.
Darryl Thomas Kemp, under sentence of death for murder, petitions for a writ of habeas corpus. The writ must be granted as to the penalty under the rules announced in Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], but denied insofar as the petition seeks to attack the judgment of guilt.
Petitioner was convicted after a jury trial of one count of murder of the first degree, two counts of rape, and one count of kidnaping. He was found by the jury to have been sane at the time of the commission of each of the offenses charged, and the jury in January 1960 fixed the penalty for the murder at death. This court affirmed the judgments in People v. Kemp, 55 Cal.2d 458 [11 Cal.Rptr. 361, 359 P.2d 913], in March 1961.1
Petitioner alleges that the jury which sentenced him to death was selected in violation of the requirements of Witherspoon v. Illinois, supra, 391 U.S. 510, and In re Anderson, 69 Cal.2d 613 [73 Cal.Rptr. 21, 447 P.2d 117]. Witherspoon established that in a capital punishment case, only those jurors who make it “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,” may be properly excluded. (Witherspoon v. Illinois, supra, 391 U.S. 510, 522, fn. 21 [20 L.Ed.2d 776, 785, 88 S.Ct. 1770].)
[193]*193The Attorney General properly and with commendable candor concedes that at least 10 of the 12 jurors who were excluded based on their views concerning the death penalty were, under Witherspoon, improperly excluded.2 The judgment imposing the death penalty must, therefore, be reversed. In the circumstances, it is unnecessary to consider whether the two additional jurors were properly excluded.3
[194]*194Petitioner also attacks the judgment of guilt. He contends that, although this court in affirming his conviction of first degree murder rejected his contention that he lacked the mental capacity to commit the charged crimes (see People v. Kemp, supra, 55 Cal.2d 458, 470), cases subsequent to Kemp have changed the substantive law of diminished capacity, and under current law, the evidence is insufficient to sustain a finding that Kemp was capable of the specific intent required for the crimes involved. The contention is without merit.
Kemp’s chief defense at his trial, diminished capacity, was held applicable to the guilt trial long prior to the Kemp trial in People v. Wells, 33 Cal.2d 330, 356-357 [202 P.2d 53], and People v. Gorshen, 51 Cal.2d 716, 726, 733 [336 P.2d 492]. After the judgment against Kemp was affirmed, we held in People v. Wolff, 61 Cal.2d 795, 821 [40 Cal.Rptr. 271, 394 P.2d 959], that “in the proceeding to determine the degree of the offense, the true test must include consideration of the somewhat limited extent to which this defendant could maturely and meaningfully reflect upon the gravity of his contemplated act.” Wolff was followed by People v. Bassett, 69 Cal.2d 122, 140 [70 Cal.Rptr. 193, 443 P.2d 777], People v. Goedecke, 65 Cal.2d 850, 857 [56 Cal.Rptr. 625, 423 P.2d 777], and People v. Nicolaus, 65 Cal.2d 866, 878 [56 Cal.Rptr. 635, 423 P.2d 787]. Neither Wolff nor the cases following it, however, purported to establish a new standard of diminished capacity; rather, Wolff merely made clear that the determination of premeditation4 requires “ ‘an appraisal which involves something more than the ascertainment of objective facts.’ ” (61 Cal.2d at p. 820.) Indeed, the language of the test in Wolff on which petitioner relies derives directly from concepts of premeditation developed in the earlier cases of People v. Thomas, 25 Cal.2d 880, 900 [156 P.2d 7], and People v. Holt, 25 Cal.2d 59, 89-90 [153 P.2d 21] (discussed in Wolff, at pp. 820-822).
[195]*195It is immaterial that the psychiatrist who testified that Kemp “consciously and knowingly premeditated the commission of each of the crimes involved” (People v. Kemp, supra, 55 Cal.2d 458, 470) did not respond in the exact language used in Wolff, Goedecke, and Nicolaus (People v. Risenhoover, 70 Cal.2d 39, 51 [73 Cal.Rptr. 533, 447 P.2d 925]). “There is no magic in the particular words emphasized in Goedecke and Nicolaus: the court was there concerned, rather, with the prosecution’s failure to introduce expert proof on the issue [of mental capacity] . . . .” (People v. Bassett, supra, 69 Cal.2d 122, 140.)
The prosecution’s expert witness at the guilt phase, Dr. Thomas L. Gore, a psychiatrist, testified that Kemp was “fully conscious” when he committed the crimes, that he had “no brain injury,” that he had the “ability to premeditate and deliberate,” and that he specifically intended to rape his victims. Although vicious, Kemp’s crimes were not “bizarre” crimes “whose very character pointed to dissolution of the accused’s deliberative faculties.” (People v. Chapman, supra, 261 Cal.App.2d 149, 165; see also, People v. Coogler, 71 Cal.2d 153, 167 [77 Cal.Rptr. 790, 454 P.2d 686]; compare, People v. Bassett, supra, 69 Cal.2d 122, 124 [18-year-old defendant “executed his mother and father”]; People v. Nicolaus, supra, 65 Cal.2d 866, 869 [defendant killed his three children]; People v. Goedecke, supra, 65 Cal.2d 850, 852 [defendant murdered his father, mother, sister and brother]; People v. Wolff, supra, 61 Cal.2d 795, 799 [15-year-old defendant murdered his mother].)
Kemp, in June 1957, raped and murdered a nurse in her apartment; there was evidence that he had previously prowled in that area looking for a woman. (People v. Kemp, supra, 55 Cal.2d 458, 464, 466.) In May 1959, he raped a woman to whom he had offered a ride home. (55 Cal.2d at p. 466. ) In July 1959, by posing as a park attendant, he stopped, kidnaped and raped a woman who was driving through the park. (55 Cal.2d at p. 467. )
The psychiatrist for the prosecution testified that Kemp’s motive in all the attacks was sexual gratification.
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Opinion
PETERS, J.
Darryl Thomas Kemp, under sentence of death for murder, petitions for a writ of habeas corpus. The writ must be granted as to the penalty under the rules announced in Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], but denied insofar as the petition seeks to attack the judgment of guilt.
Petitioner was convicted after a jury trial of one count of murder of the first degree, two counts of rape, and one count of kidnaping. He was found by the jury to have been sane at the time of the commission of each of the offenses charged, and the jury in January 1960 fixed the penalty for the murder at death. This court affirmed the judgments in People v. Kemp, 55 Cal.2d 458 [11 Cal.Rptr. 361, 359 P.2d 913], in March 1961.1
Petitioner alleges that the jury which sentenced him to death was selected in violation of the requirements of Witherspoon v. Illinois, supra, 391 U.S. 510, and In re Anderson, 69 Cal.2d 613 [73 Cal.Rptr. 21, 447 P.2d 117]. Witherspoon established that in a capital punishment case, only those jurors who make it “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,” may be properly excluded. (Witherspoon v. Illinois, supra, 391 U.S. 510, 522, fn. 21 [20 L.Ed.2d 776, 785, 88 S.Ct. 1770].)
[193]*193The Attorney General properly and with commendable candor concedes that at least 10 of the 12 jurors who were excluded based on their views concerning the death penalty were, under Witherspoon, improperly excluded.2 The judgment imposing the death penalty must, therefore, be reversed. In the circumstances, it is unnecessary to consider whether the two additional jurors were properly excluded.3
[194]*194Petitioner also attacks the judgment of guilt. He contends that, although this court in affirming his conviction of first degree murder rejected his contention that he lacked the mental capacity to commit the charged crimes (see People v. Kemp, supra, 55 Cal.2d 458, 470), cases subsequent to Kemp have changed the substantive law of diminished capacity, and under current law, the evidence is insufficient to sustain a finding that Kemp was capable of the specific intent required for the crimes involved. The contention is without merit.
Kemp’s chief defense at his trial, diminished capacity, was held applicable to the guilt trial long prior to the Kemp trial in People v. Wells, 33 Cal.2d 330, 356-357 [202 P.2d 53], and People v. Gorshen, 51 Cal.2d 716, 726, 733 [336 P.2d 492]. After the judgment against Kemp was affirmed, we held in People v. Wolff, 61 Cal.2d 795, 821 [40 Cal.Rptr. 271, 394 P.2d 959], that “in the proceeding to determine the degree of the offense, the true test must include consideration of the somewhat limited extent to which this defendant could maturely and meaningfully reflect upon the gravity of his contemplated act.” Wolff was followed by People v. Bassett, 69 Cal.2d 122, 140 [70 Cal.Rptr. 193, 443 P.2d 777], People v. Goedecke, 65 Cal.2d 850, 857 [56 Cal.Rptr. 625, 423 P.2d 777], and People v. Nicolaus, 65 Cal.2d 866, 878 [56 Cal.Rptr. 635, 423 P.2d 787]. Neither Wolff nor the cases following it, however, purported to establish a new standard of diminished capacity; rather, Wolff merely made clear that the determination of premeditation4 requires “ ‘an appraisal which involves something more than the ascertainment of objective facts.’ ” (61 Cal.2d at p. 820.) Indeed, the language of the test in Wolff on which petitioner relies derives directly from concepts of premeditation developed in the earlier cases of People v. Thomas, 25 Cal.2d 880, 900 [156 P.2d 7], and People v. Holt, 25 Cal.2d 59, 89-90 [153 P.2d 21] (discussed in Wolff, at pp. 820-822).
[195]*195It is immaterial that the psychiatrist who testified that Kemp “consciously and knowingly premeditated the commission of each of the crimes involved” (People v. Kemp, supra, 55 Cal.2d 458, 470) did not respond in the exact language used in Wolff, Goedecke, and Nicolaus (People v. Risenhoover, 70 Cal.2d 39, 51 [73 Cal.Rptr. 533, 447 P.2d 925]). “There is no magic in the particular words emphasized in Goedecke and Nicolaus: the court was there concerned, rather, with the prosecution’s failure to introduce expert proof on the issue [of mental capacity] . . . .” (People v. Bassett, supra, 69 Cal.2d 122, 140.)
The prosecution’s expert witness at the guilt phase, Dr. Thomas L. Gore, a psychiatrist, testified that Kemp was “fully conscious” when he committed the crimes, that he had “no brain injury,” that he had the “ability to premeditate and deliberate,” and that he specifically intended to rape his victims. Although vicious, Kemp’s crimes were not “bizarre” crimes “whose very character pointed to dissolution of the accused’s deliberative faculties.” (People v. Chapman, supra, 261 Cal.App.2d 149, 165; see also, People v. Coogler, 71 Cal.2d 153, 167 [77 Cal.Rptr. 790, 454 P.2d 686]; compare, People v. Bassett, supra, 69 Cal.2d 122, 124 [18-year-old defendant “executed his mother and father”]; People v. Nicolaus, supra, 65 Cal.2d 866, 869 [defendant killed his three children]; People v. Goedecke, supra, 65 Cal.2d 850, 852 [defendant murdered his father, mother, sister and brother]; People v. Wolff, supra, 61 Cal.2d 795, 799 [15-year-old defendant murdered his mother].)
Kemp, in June 1957, raped and murdered a nurse in her apartment; there was evidence that he had previously prowled in that area looking for a woman. (People v. Kemp, supra, 55 Cal.2d 458, 464, 466.) In May 1959, he raped a woman to whom he had offered a ride home. (55 Cal.2d at p. 466. ) In July 1959, by posing as a park attendant, he stopped, kidnaped and raped a woman who was driving through the park. (55 Cal.2d at p. 467. )
The psychiatrist for the prosecution testified that Kemp’s motive in all the attacks was sexual gratification. The jury, was entitled to, and did, believe him; the “evidence of a motive,” when coupled with the method of committing the crimes (People v. Risenhoover, supra, 70 Cal.2d 39, 51-52), and the psychiatric evidence concerning Kemp’s mental state, was sufficient to sustain a finding of first degree murder.
Petitioner’s reliance on People v. Bassett, supra, 69 Cal.2d 122, is misplaced. In Bassett, two of three prosecution psychiatrists had not [196]*196even examined the defendant (69 Cal.2d at p. 141); here, Dr. Gore (and the two other prosecution psychiatrists who testified at the sanity trial) personally examined Kemp. Moreover, in Bassett, the defendant, aged 18, murdered his mother and father. (Id.., at p. 124.) The crime, when coupled with the limited basis for the prosecution’s experts’ conclusions and the other evidence, compelled our finding as a matter of law that the defendant could not be guilty of first degree murder. (Id., at p. 148; cf. People v. Coogler, supra, 71 Cal.2d 153, 166.)
Petitioner’s contention that this court should now admit more recent evidence, in the form of testimony concerning evidence of brain damage based on electroencephalograph (EEG) readings taken in 1961 prior to Kemp’s sanity hearing, is without merit. At the sanity phase of Kemp’s trial in 1960, a psychiatrist for the defense, Dr. Solomon, testified that he “had a number of studies done . . . which included a neurological examination, which included an examination of the cerebral spinal fluid, the fluid which circulates around the brain; an examination of the brain waves by the electroencephalogram and these were all negative for physical disease of the brain.” (Italics added.) The prosecution also claimed to have performed EEG tests, which proved negative.
It is clear that petitioner merely wishes to relitigate a factual issue determined adversly to him on his direct appeal. And, reiterating his request made in his direct appeal (People v. Kemp, supra, 55 Cal.2d 458, 471), he asks this court to pick and choose the psychiatric testimony which best supports his contention of diminished capacity. We declined to do so on direct appeal (People v. Kemp, supra, 55 Cal.2d 458, 471), and we decline to do so in this habeas corpus proceeding.
Petitioner also asks this court to exercise its power under subdivision 6 of section 1181 of the Penal Code, and reduce the conviction from first degree to second degree murder, on grounds that the evidence is insufficient. The evidence supports the finding of first degree murder. Whatever the limits of the power granted by that section to this court may be, the record does not indicate that this is a case where that power should be exercised.
The writ is granted. The remittitur issued by this court in case number Crim. 6632 is recalled, and the judgment imposing the death penalty is vacated. The case is remanded to the superior court for a new penalty trial. As to the balance of the judgment the writ is denied and these portions of the judgment affirmed.
[197]*197Traynor, C. J., Tobriner, J., Burke, J., Sullivan, J., and Coughlin, J. pro tem.,
Assigned by the Chairman of the Judicial Council.