SULLIVAN, J.
Defendant, Dennis Stanworth, was charged by indictment with, and convicted upon pleas of guilty to, two counts of murder (Pen. Code, § 187) ,1 one count of kidnaping to commit robbery with bodily harm (§2.09), four counts of kidnaping (§207), three counts of forcible rape (§ 261, subd. 3), one count of sexual perversion (§288a), and one count of robbery (§211).2 Pursuant to stipulation the trial court made findings as to the degrees of the murders upon its examination of the transcripts of proceedings before the grand jury and determined both murders to be of the first degree. The issue of penalty for each of the murder counts and for the count of kidnaping to commit robbery with bodily harm was tried to a jury which fixed the penalty on each of the murder counts at death and on the kidnaping count at life imprisonment without possibility of parole.3 This appeal is automatic. (§ 1239', subd. (b).)
We set forth the pertinent facts as disclosed by the transcript of the proceedings had at the trial on the issues of penalty. On August 12, 19.65, at 5:30 p.m., Miss W,4 20 years of age, a student nurse and an employee at a Montgomery Ward store in Richmond, was driving out of the store’s parking lot. While she was stopped at a stop sign, defendant [824]*824approached and asked for a ride down the street to his car, which he said was stalled. She twice refused his request, but he reached through the open window on the passenger side, unlocked the door and entered. He exhibited a knife and threatened to use it on Miss W if she refused to take him where he wanted to go. She drove him to a parking lot of Golden Gate Fields, in Berkeley.
After Miss W stopped her car, defendant produced an insulated or covered wire and bound her hands behind her back. He then removed part of her clothing and raped her. During the act of sexual intercourse defendant told Miss W that he would have to kill her, put his hands around her throat and choked her until she lost consciousness. When she regained consciousness, defendant untied her hands,, upon her promise not to attempt to escape, permitted her to dress and drove her back to the Montgomery Ward Store. During the return trip he stated that he was married and had four children;5 that he was glad he had not killed her; that he was sorry for what had happened and that he would not do it again. Defendant was convicted on counts of kidnaping and raping Miss W.'
On November 4, 1965, about 8:30 pirn., Mrs. D, 24 years of age, was walking home along a dark road from a nearby shopping center in El Sobrante. As she passed a field, defendant seized her, held an ice pick to her throat, and demanded that she submit to sexual intercourse with him. He then pulled and dragged her into the'field, bound her hands with an insulated wire, tore off her clothing and forcibly raped her.-Afterwards he took $15 from Mrs. D’s purse and threatened to kill her.She begged for her life and told him that she had four children, whereupon he fled across the field with the money. As to the foregoing incident, defendant was convicted on counts of kidnaping to commit robbery with bodily harm, rape and robbery.
On May 13, 1966, about 9 p.m., Miss S, 17 years of age and a high school student, stopped her car at a stop sign as she drove from a school parking lot in Richmond. Defendant opened the door on the passenger side of her car and entered, exhibiting a knife. Holding the knife against her stomach, he told her she would not “get hurt” if she did what he wanted. [825]*825He directed her to drive onto a side street, bound her hands behind her back with insulated wire and forced her onto the floorboards in the front seat of her automobile. He then drove to Point Bichmond on San Francisco Bay, and forced her onto the beach area. He removed her clothing, after freeing her hands upon her promise that she would not “try anything.” He fondled her for a short while, and then removed his penis from his trousers and indicated that she was to orally copulate him. He forced his penis into her mouth, and when she drew back, choking, he slapped her about the face and inserted his penis back into her mouth. Defendant refused to return her clothing and started back to-the car. She followed him and eventually he drove her back to the high school. During the return trip he returned her clothing, and threatened her with serious consequences if she called the authorities. Defendant was convicted of kidnaping and sexual perversion, based on the foregoing incident.
On the morning of August 1, 1966, Susan Muriel Box and Caree Lee Collison, aged 15 and 14 years respectively, were hitchhiking along a highway in Pinole.6 Defendant first drove past them, but returned and offered them a ride. With the intention of raping them, he drove the girls to Point Wilson, overlooking San Pablo Bay. He was armed with a .22 caliber pistol and forced the girls at gun point to walk across a field to a large bush, where he had them disrobe. Miss Collison attempted to escape and defendant forced her to come back by threatening the life of Miss Box. When Miss Collison returned, defendant shot her in the head probably twice. He then shot Miss Box in the head, and performed an act of sexual intercourse upon her body. He placed Miss Box’s body on top of Miss Collison under the bush, and partially covered them with branches. As he was leaving the scene he heard one [826]*826of the girls moan, and he fired again at them, the bullet passing through the thigh of the drawn-up right leg of Miss Box and into her abdomen.
The girls’ bodies were discovered in the afternoon of August 3, 1966. Miss Box was dead. Miss Collison was alive but in a comatose state. She never recovered consciousness. She died on September 12,1966.
The death of Miss Box occurred almost instantaneously from brain damage caused by the bullet in her head. In addition to wounds in her head, abdomen and right leg, she had a puncture wound in the left chest caused by a sharp-pointed penetrating object, a burned or blistered area approximately one-half inch in diameter below one knee, and numerous scratch marks on her face, chest, left shoulder, hips, right thigh and right buttock. Seminal fluid was found in her vaginal canal. Defendant was convicted of counts of kidnap-ing, forcibly raping and murdering Miss Box.
Miss Collison died from severe bronchial pneumonia secondary to head wounds. In addition to two bullet wounds in her head, there was a third wound in her ear which may have been caused by a bullet or by some sharp, penetrating [827]*827object. Other wounds consisted of lacerations on the fingers caused by a bullet, numerous scratches on her’legs and thighs, numerous small superficial marks over her face and a large part of her body, a hand-sized burned area on the left thigh, marked swelling on the left side of the face and a constriction or burn mark around the left wrist. Defendant was convicted of counts of kidnaping and murdering Miss Collison.
On August 3, 1966, two days after the attacks on Miss Box and Miss Collison, Miss G, then 18 years of age, was leaving the parking lot of a shopping center at 8:15 p.m. in Pacifica in San Mateo County, when defendant opened the door on the passenger side of her automobile and stepped in. He told her to drive him to his car, which he claimed was disabled behind a store building. After she had driven there, defendant removed Miss G’s keys from the ignition, displayed a knife, and demanded her money. She gave him her purse and he took the money in it, which was approximately four or six dollars. He then forced her onto' the front floorboard on the passenger side, bound her hands and feet with wire and threatening her with a knife, drove to a point near the ocean. There, defendant pulled and dragged Miss G over a hill and down to the beach.
When she refused to kiss him be removed the wire from her feet and pulled at her blouse, causing her to scream and run. She tried to run away but he caught her and put a wire around her neck. She screamed again, he threatened to kill her unless she was quiet, and he strangled her with his hands. She quieted down and he tore off her clothing and raped her. After he had completed the act, he left her on the beach with her hands loosely bound. She freed and dressed herself, made her way to the highway and eventually notified the authorities. Defendant was apprehended in Miss G’s car a few hours later. This incident which took place in San Mateo County is of course not among any of the offenses with which defendant was charged in the Contra Costa County proceedings now before us.
As previously stated (see fn. 2, ante) two indictments were returned against defendant: the first (No. 10134) on August 18, 1966, charging 12 counts of felony; and the second (No. 10173) on September 20, 1966, after Miss Collison’s death, charging the single count of her murder.
When defendant appeared for entry of his plea to the first indictment, the court suspended the proceedings under section 1368 (doubt as to present sanity) and appointed two psychia-[828]*828triste, Dr. Rood and Dr. Perretti, to examine defendant as to his present sanity and report to the court. At the subsequent hearing on the question of present sanity, pursuant to stipulation of the parties, the matter was submitted on the reports of the above two psychiatrists. The court found that the defendant “is presently sane and understands the nature of the proceedings" and ordered that the criminal proceedings be reinstated.
On the same day and before the same judge, defendant appeared for arraignment upon the second indictment. Counsel was appointed to represent him,7 and upon his motion it was ordered that “up to $350 be provided to the defendant to retain a psychiatrist of his own choosing. ’ ’
On September 29, 1966, defendant entered pleas to the counts charged in the first indictment. He pleaded not guilty by reason of insanity to all counts8 and not guilty as to those counts charging him with the various kidnapings and the robbery.9 In view of the pleas of not guilty by reason of insanity, the court appointed Doctors Rood and Perretti to examine defendant (§ 1027). On the same day and before the same judge, defendant appeared for arraignment upon the second indictment and entered a plea of not guilty by reason of insanity. The above two doctors were similarly appointed to examine defendant in respect to the crime charged in the second indictment. The court thereupon ordered that both proceedings (No. 10134 and No. 10173) be consolidated for the purposes of trial.
On November 14 defendant withdrew all pleas previously entered and entered pleas of guilty as to all counts charged in both indictments. As previously stated the issue of the degrees of the murders was submitted to the trial court on the transcript of the grand jury proceedings. We have examined the transcript and find it to be in accord in all material respects with the factual matters hereinbefore recited. It provides substantial support for the trial court’s finding that the murders are of the first degree.
[829]*829Defendant waived a trial by jury on the issue of penalty raised in both murder counts and in the kidnaping count but the court ordered that a jury be drawn to try said issues. As we have detailed above, defendant was convicted on all counts, sentenced to death on the murder counts and to state prison on the remaining- counts. (See fn. 3, ante.) This appeal followed.
At the outset we are confronted with defendant’s assertion in propria persona that he has a right to dismiss his counsel on appeal (see fn. 7, ante) and to proceed in propria persona, and that he has a right to dismiss this appeal. Throughout these proceedings defendant has expressed g-uilt and remorse concerning the crimes which he freely admits having committed. This has been reflected in the manner in which he has defended, or has refused to defend, against the charges, as is evidenced by his pleas of guilty and his waivers of a trial by jury on the issues of penalty raised in the capital offenses. In furtherance of his professed purpose to accept punishment without what he deems to be unnecessary litigation or delay, he attempted to discharge the counsel appointed for him below. The record discloses that such efforts on defendant’s part were not based on any dissatisfaction with any action or conduct of such counsel or with his abilities or skills as an attorney, but instead were predicated upon defendant’s desire not to be represented at all.10 The trial judge advised defendant as to the reasons for the necessity of a trial on the issues of penalty but appears to have been unsuccessful in persuading defendant to that view.11 Defendant nevertheless [830]*830cooperated throughout the trial proceedings and thereafter seemed to accept, if grudgingly, the representation of his counsel.
Defendant initially requested and consented to our appointment on January 19, 1967, of counsel to represent him on this appeal but almost immediately sought by one means or another to frustrate the appeal. On February 13 he purported by letter to “waive this appeal”;12 in a letter dated March 6 he asked that the court dismiss his counsel and permit him to proceed in propria persona; in a letter dated March 13 he urged us to take action on his prior requests, citing authority claimed to support his right to dismiss counsel but, by implication at least,, recognizing that he might not have the right to dismiss an automatic appeal.13 Nevertheless, on June 15 defendant filed herein a “Voluntary Abandonment of Appeal” in the language of and otherwise conforming to rule 38, California Rules of Court. That rule provides in pertinent part that an “appellant may dismiss his appeal at any time by filing an abandonment thereof, signed by him or his attorney of record.” We thereupon requested that opposing counsel submit briefs directed to the question of whether an appellant may request abandonment or dismissal of an automatic appeal. In response to that request defendant instructed [831]*831Ms counsel either to submit a brief supporting defendant’s position that he can dismiss the appeal, or to step aside.14 Defendant also addressed a communication to the Attorney General enclosing an “Affidavit of Verification” and urged that it be utilized by the People in preparing their brief. The document stated: “I DENNIS ST ANW ORTH hereby swear that the conviction which has resulted in the sentence of death is valid. I also swear that no violation of my constitutional rights has taken place; and if any have I waive those rights. I stipulate that the record of my trial is valid and the contentions of the respondent are true and that the contentions as put to this court in my briefs have no merit.” Opposing counsel have submitted their briefs as requested, both ignoring defendant’s communications to them.
On June 30, 1967, defendant submitted a further document to this court purporting to be in response to our above-mentioned request for briefs and representing that he had discharged his counsel. We construed the document to constitute not only a brief directed to the question of defendant’s right to dismiss this appeal but also, together with the purported “Abandonment of Appeal,” to constitute a motion to dismiss counsel appointed for him by this court. On July 12 we made an order denying defendant’s motion to dismiss his counsel. Since that date defendant has communicated with us on additional occasions and, we are advised, has communicated with the State Bar complaining that his counsel has failed to act in defendant’s best interests.
We hasten to point out that there is nothing in the record before us, either upon an examination of the trial court proceedings, the briefs on appeal, or other matters that have been directed to our attention, which even suggest that counsel has conducted the trial or appeal in defendant’s behalf in other than a competent, professional and skillful manner, always to [832]*832the end of relieving defendant of the consequences of the crimes charged. Counsel’s task has been particularly difficult in view of defendant’s attitudes and opposition, as expressed at various times, and he has shown great patience and restraint in continuing to represent defendant in an objective manner. We are unable to discern that defendant has any complaint other than that he is represented, and we would be less than objective if we were to conclude, that his purpose in obtaining other representation or in representing himself was anything other than to frustrate the relief, if any, to which he might.be entitled pursuant to this appeal.15
Directing' our attention first to defendant’s claimed right to dismiss an appeal taken in a death penalty case, we can find no statute or rule of court making express provision for the right which defendant now asserts. Section 1239, subdivision (b) provides: “When upon any plea a judgment of death is rendered, an appeal is automatically taken by the defendant without any action by him or his counsel.” The appeal is thus taken without any affirmative action by a defendant, or even his consent thereto. Furthermore the statutory scheme contemplates, if it does not explicitly direct, the review of death penalty cases by this court. Thus, section 1217 requires that one convicted of a capital crime be held at the state prison “pending the decision upon his appeal,” and section 1193 provides that the trial court fix the date of execu[833]*833tion. after a judgment imposing the death penalty “has been affirmed by the appellate court.”
In construing the statutory provisions relating to an appeal in the case of one convicted of a capital offense, we have held that subdivision (b) of section 1239 imposes a duty upon this court “to make an examination of the complete record of the proceedings had in the trial court, to the end that it be ascertained whether defendant was given a fair trial. ...” (People v. Perry (1939) 14 Cal.2d 387, 392 [94 P.2d 559, 124 A.L.R. 1123].) We said in People v. Bob (1946) 29 Cal.2d 321 [175 P.2d 12]: “The Legislature of California has taker extraordinary precaution to safeguard- the rights of those upon whom the death penalty is imposed ... , by providing for an automatic appeal . . . and enjoining upon this court an examination of the record and the preparation of a forma-opinion and decision from which it should appear that no miscarriage of justice has resulted.” (Italics added.) (29 Cal.2d at p. 328; see also People v. Figueroa (1911) 160 Cal. 80, 81 [116 P. 391].)
It is manifest that the state in its solicitude for a defendant under sentence of death has not only invoked on his behalf a right to review the conviction by means of an automatic appeal but has also imposed a duty upon this court to make such review. We cannot avoid or abdicate this duty merely because defendant desires to waive the right provided for him. In other contexts it has been held that a defendant’s waiver or attempted waiver of a right is ineffective where it would involve also the renunciation of a correlative duty imposed upon the court. Thus in People v. Werwee (1952) 112 Cal.App.2d 494 [246 P.2d 704], where a defendant purported to consent that a jury could be separated after commencing its deliberations, the court stated: “If it should be contended [834]*834that a defendant under such circumstances waived his right to claim irregularity in the separation of the jury by consenting to it, our answer would be that he could not waive the right to have the statutory procedure observed.” (P. 499.) The court continued: “Although a defendant may waive rights which exist for his own benefit, he may not waive those which belong also to the public generally.” (P. 500.) In People v. Blakeman (1959) 170 Cal.App.2d 596 [339 P.2d 202], the court held that a defendant could not be deemed to have waived the invalidity of a condition upon which probation had been imposed, reasoning: ‘ ‘ The fallacy of this argument is that we are not dealing with a right or privilege conferred- by law upon the litigant for his sole personal benefit. ¥e are concerned with a principle of fundamental public policy. The law cannot suffer the state’s interest and concern in the observance and enforcement of this policy to be thwarted through the guise of waiver of a personal right by an individual. ‘Any one may waive the advantage of a law intended for his benefit. But a law established for a public reason cannot be contravened by a private agreement.’ (Civ. Code, §3513.)” (P. 598.)
We therefore hold that, contrary to defendant’s assertions, rule 38 has no application to an. automatic appeal. That rule is addressed to a situation where a party, having the absolute right to forego an appeal in the first place, retains a coextensive right to dismiss it at any time for any reason or for none at all. On the contrary, a defendant under judgment of death does not have an election to take or forego an appeal. As we have explained, that right has been denied him by the operation of section 1239 subdivision (b). In short, a proceeding pursuant to subdivision (b) is not an appellant’s appeal in the ordinary sense of rule 38. It is not entirely “his appeal,” since the state, too, has an indisputable interest in it which the appellant cannot extinguish. Accordingly, defendant’s application to dismiss the instant appeal must be denied.
There remains the further question whether defendant is entitled to dismiss or secure the discharge of his counsel appointed to represent him on this appeal. One who is an indigent is constitutionally entitled to be represented by counsel on appeal from a judgment upon a criminal, conviction. (Douglas v. California (1963) 372 U.S. 353 [9 L.Ed.2d 811, 83 S.Ct. 814].) This right, like other constitutional rights, may be waived by a defendant. (Johnson v. Zerbst (1938) 304 U.S. 458 [82 L.Ed. 1461, 58 S.Ct. 1019, 146 A.L.R. 357].) “The determination of whether there has been [835]*835an intelligent waiver of counsel involves a consideration of the nature of the charge, thé facts and circumstances of the ease, and the education, experience, mental competence and conduct of the accused. [Citations.]” (People v. Chesser (1947) 29 Cal.2d 815, 822 [178 P.2d 761, 170 A.L.R. 246]; In re James (1952) 38 Cal.2d 302, 313 [240 P.2d 596].)
In the instant case the record fairly establishes that defendant is competent and well oriented to the situation in which he finds himself. However, those are not the only factors which we must consider. Not only is defendant’s life at stake as a result of his. conviction of two counts of murder, but it is all too plain to us that his intentions are to defeat the very purpose of appellate review in order that he may suffer, as quickly as possible, the penalty imposed upon him in the trial court. In such circumstances, defendant’s refusal to act to extricate himself from the threat of death must be deemed the equivalent of an inability to do so, and he is not entitled to proceed in propria persona. This is not to say that defendant would not be entitled to replace his counsel on a showing that such counsel refused to act or to cooperate reasonably in the effort to relieve defendant of the penalties imposed. Although defendant has complained that counsel refuses to act as directed and instructed, he has rejected our request for specific details,16 and defendant’s complaint appears to be only that his counsel insists on seeking out and asserting error-in the trial proceedings, rather than sit idly by and do nothing. We are satisfied that under the prevailing circumstances defendant’s best interests require the assistance of counsel. His motion to dismiss counsel was properly denied and, assuming it to be renewed, must again be rejected.
Proceeding to the merits, we have concluded that under the compulsion of Witherspoon v. Illinois (1968) 391 [836]*836U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], we must reverse the judgment insofar as it relates to the penalty imposed for each of the murder counts for the reason that certain prospective jurors were excused for cause in violation of the standards expounded by the United States Supreme Court in that case.
Witherspoon states that a defendant in a capital ease is entitled to have his penalty determined by a jury which is selected in such a manner that it expresses ‘ ‘ the conscience of the community on the ultimate question of life or death.” (391 U.S. at p. 519 [20 L.Ed.2d at p. 783].) In order to insure that persons who merely voice opposition to the death penalty are not excluded from the jury, the Supreme Court has ruled that a venireman may not be excused for cause unless he makes it “unmistakably clear . . . that [he] would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the 522, fn. 21 [20 L.Ed.2d at p. 785].)
In the case at bench twelve prospective jurors were excused for cause as a result of their conscientious opinions with respect to the death penalty. (See §1074, subd. 8.) We deem it necessary to discuss only three of the twelve. Of these three, two veniremen, Mr. Muldoon and Mr. Moore, indicated on voir dire examination that they did not believe in the death penalty and they were excused without further questioning.17 Witherspoon itself involved six veniremen who were excused for cause when they indicated that they did not “believe in the death penalty.” (391 U.S. at p. 514 [20 L.Ed.2d at pp. 780-781].) The court held that it was error to excuse them without determining whether they could nevertheless return a verdict of death because, “It is entirely possible, of course, that even a juror who believes that capital punishment should never be inflicted and who is irrevocably committed to its abolition could nonetheless subordinate his personal views to [837]*837what he perceived to be his duty to abide by his oath as a juror and to obey the law of the state.” (391 U.S. at pp. 514-515, fn. 7 [20 L.Ed.2d at p. 781].) Since Mr. Muldoon and Mr. Moore indicated only that they did not believe in the death penalty they could not properly be excused for cause without it having been determined that their beliefs would prevent them from ever voting to impose death. Inasmuch as that determination was not made it was error for the trial court to have granted the prosecution’s challenge for cause.18
Prospective juror Eloise Whipple indicated on voir dire that she did not believe she “would want to return a death penalty,” and she was excused for cause without further examination.19 Mrs. Whipple’s statement indicates a lack of desire on her part to undertake the responsibility incident to a determination of the proper penalty to be imposed on defendant. We recognize that it is at best an unpleasant task to determine whether a man should live or die and that when given the choice most people would not want to assume that burden. However, the mere fact that a venireman may find it unpleasant or difficult to impose the death penalty cannot be equated with a refusal by him to impose that penalty under any circumstances. “Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position. ’ ’ (391 U.S. at p. 516, fn. 9 [20 L.Ed.2d at pp. 781-782].) Witherspoon requires, for the proper exclusion of a venireman, an absolute refusal on his part to consider the imposition of the death penalty, and Mrs. Whipple’s statements clearly did not bring her within that standard. She [838]*838therefore was erroneously excused for cause. Under the rules announced in Witherspoon the judgment must be reversed insofar as it relates to the penalty imposed for each of the murder counts.
Since the issue of penalty must be retried, we proceed to consider certain contentions of defendant for the guidance of the court on retrial.
It is contended that two photographic exhibits showing views of the nude body of Susan Muriel Box, were erroneously admitted in evidence over defendant’s objections. The basis for the objections and claim of error is that in view of the plea of guilty and the finding of first degree murder, the photographs had meager probative value in the trial on the issue of penalty when weighed against the prejudicial effect claimed to have necessarily resulted upon their examination by the jury.
We have examined the photographs. One of them depicts the position of Miss Box’s body as she was discovered under the large bush. The body lies face down and the photo displays her legs, buttocks, a portion of her back and her left arm which is twisted up over her back. The second photo shows Miss Box lying on her back at the morgue. The upper portion of her head with the fatal wound is not visible, but there are visible numerous other wounds over her body, legs and arms, including the wounds caused by the bullet which traversed her right thigh and entered her abdomen. The second photograph also shows the puncture wound in her chest. No claim is made that the photos were introduced in an untimely manner, were unreasonably displayed, or were unduly sensational.
Whether “the probative value of photographs offered into evidence outweighs the possible prejudicial effect is a question for the trial court in the exercise of its judicial discretion.” (People v. Harrison (1963) 59 Cal.2d 622, 627 [30 Cal.Rptr. 841, 381 P.2d 665]; see also People v. Sanchez (1967) 65 Cal.2d 814, 828 [56 Cal.Rptr. 648, 423 P.2d 800], remittitur recalled, revd. on other grounds, People v. Sanchez (1969) 70 Cal.2d 562 [75 Cal.Rptr. 642, 451 P.2d 74]; Peo-[839]*839pie v. Mathis (1965) 63 Cal.2d 416, 423 [46 Cal.Rptr. 785, 406 P.2d 65]; People v. Henderson (1963) 60 Cal.2d 482, 495 [35 Cal.Rptr. 77, 386 P.2d 677].) Although the claimed errors occurred during the penalty as distinguished from the guilt phase, the question of impropriety is to be resolved by the same principles. (People v. Jones (1959) 52 Cal.2d 636, 647 [343 P.2d 577].) In the Jones case we held with respect to the penalty phase of the trial for a capital crime: “It would appear that the new section embodies the broad, liberal rule on admission of evidence that has always existed where a defendant has pleaded guilty and the only issues being tried relate to the degree of the crime and the penalty to be imposed. In such cases wide leeway in the admission of evidence is permitted. [Citations.] If there are any limitations on the admission of such evidence, it is certainly the rule that if the evidence would have been admissible on the trial of the guilt issue, it is admissible on the trial aimed at fixing the penalty.” (52 Cal.2d at p. 647; see also People v. Tahl (1967) 65 Cal.2d 719, 728 [56 Cal.Rptr. 318, 423 P.2d 246].)
In support of his claim of error, defendant relies upon People v. Hines (1964) 61 Cal.2d 164 [37 Cal.Rptr. 622, 390 P.2d 398], wherein, after holding that a defendant could not claim error on appeal because he failed to object to the introduction of photographs at trial, we stated that in view of the fact “that defendant admitted his guilt and described the circumstances of the crime, we see no probative value in the photographs which would outweigh their prejudicial effect.” (Pp. 173-174.) The nature of the photographs in that case are not described beyond defendant’s allegation that they were “gruesome.” As indicated, we cannot fairly describe the photographs in the instant case in similar terms. Moreover,’it appears from Hines that the defendant had “described the circumstances of the crime,” thus making the photographic evidence merely cumulative to other evidence then before the jurors. In the instant case the details of what took place at the murder scene are not at all clear. The record contains no direct evidence explaining the puncture wound in Miss Box’s chest, the numerous scratch marks over her body, arms and legs, or the twisted position of her left arm. Such matters are clearly relevant to the issues of the aggravation of the crime and penalty. The photographs constitute the most accurate evidence of these matters and lend clarity to the testimony of doctors who testified in connection therewith. (People v. Sanchez, supra, 65 Cal.2d 814, 828, remittitur [840]*840recalled, revd. on other grounds, People v. Sanchez, supra, 70 Cal.2d 562.)
As we have explained, the photographs are not in any manner shocking to the senses and constitute relevant and material evidence, having substantial probative value in the resolution of issues on the penalty phase. When such probative value is weighed against the prejudice, if any, which may-have resulted to defendant, wé are compelled to conclude that on the record now before us no abuse of discretion is indicated in the necessary determination by the trial court in favor of receiving the photos. (People v. Harrison, supra, 59 Cal.2d 622, 627.)
Defendant next contends that' the court- failed to fully instruct the jury that evidence of other crimes committed may not be considered as evidence unless proved beyond a reasonable doubt. In People v. Terry (1964) 61 Cal.2d 137 [37 Cal.Rptr. 605, 390 P.2d 381], we stated: "Furthermore, in the penalty trial the same safeguards should be accorded a defendant as those which protect him in the trial in which guilt is established. In People v. Hamilton, supra, at page 129 [People v. Hamilton (1963) 60 Cal.2d 105 (32 Cal.Rptr. 4, 383 P.2d 412)] we held that if the prosecution attempts to prove prior crimes, the defendant is entitled to the protection of the rule which prohibits the admission of a confession until the corpus delicti has been proved. As a corollary, defendant should not be subject to "a finding of a. jury that he commited prior crimes unless his commission of such prior crimes has been proven beyond a reasonable doubt.” (61 Cal.2d at p. 149, fn. 8.) It is now settled that a defendant during the penalty phase of a trial is entitled to an instruction to the effect that the jury may consider evidence of other crimes only when the commission of such other crimes is proved beyond a reasonable doubt. (See People v. Varnum (1969) 70 Cal.2d 480, 485-486 [75 Cal.Rptr. 161, 450 P.2d 553]; People v. Hillery (1967) 65 Cal.2d 795, 805 [56 Cal.Rptr. 280, 423 P.2d 208]; People v. Mitchell (1966) 63 Cal.2d 805, 817 [48 Cal.Rptr. 371, 409 P.2d 211]; People v. Polk (1965) 63 Cal.2d 443, 450-451 [47 Cal.Rptr. 1, 406 P.2d 641].)
The specific other crimes to which defendant’s contention has reference, are not designated.- Aside from the capital crimes for which the penalties were to be fixed, the prosecution submitted evidence as to the incidents involving Miss W, Miss S, Mrs. D and Miss G. In each instance compelling testimony of defendant’s guilt was received without refutation, and these matters were confirmed in large part by [841]*841defendant’s confessions. Although the prosecution submitted no other direct evidence of crimes, incidental references were made to matters which might constitute other crimes.
Defendant did not request the instruction here under consideration. Nevertheless, “the court has a duty to give instructions on the general principles of law governing the ease, even though not requested by the parties, ...” (People v. Wade (1959) 53 Cal.2d 322, 334 [1 Cal.Rptr. 683, 348 P.2d 116]; see also People v. Warren (1940) 16 Cal.2d 103, 117 [104 P.2d 1024].) Although such a duty does not always extend to include instructions upon specific points developed at the trial through evidence (People v. Jackson (1963) 59 Cal.2d 375, 380 [29 Cal.Rptr. 505, 379 P.2d 937]), an instruct tion has been required if “it is vital to a proper consideration of the evidence by the jury” (People v. Putnam (1942) 20 Cal.2d 885, 890 [129 P.2d 367]) or if necessary “for the jury to be fully and fairly charged upon the relevant law” (People v. Jackson, supra, 59 Cal.2d 375, 380). We have distinguished those “specific points developed at the trial” which do not require an instruction in the absence of a request therefor by defining “general principles of law” on which instructions on the court’s own motion are required as “those principles of law commonly or closely and openly connected with the facts of the case before the court.” (People v. Wade, supra,, 53 Cal.2d 322, 334; see also People v. Jackson, supra, 59 Cal.2d 375, 380; People v. Bevins (1960) 54 Cal.2d 71, 77 [4 Cal.Rptr. 504, 351 P.2d 776].)
The case then before the court was, as noted, a penalty trial wherein the issue of guilt had been already adjudicated. In resolving the sole issue before it, the trier of fact could consider only evidence “of the circumstances surrounding the crime, of the defendant’s background and history, and of any facts in aggravation or mitigation of the penalty.” (§190.1) Where the prosecution submits substantial evidence of other crimes as bearing on the penalty for the particular crime or crimes charged, such evidence cannot be deemed to bear only on a “specific point developed at the trial” but instead bears heavily on “those principles of law commonly or closely and openly connected with the facts of the case before the court.” (People v. Wade, supra, 53 Cal.2d 322, 334.) Instructions on how the jury may utilize such evidence, including an instruction that it may consider only those crimes proved beyond a reasonable doubt, are therefore vital to a proper consideration of the evidence, and the court should so instruct sua sponte.
[842]*842Finally, we deal with an erroneous instruction that the prosecutor with 'commendable candor has called to our attention. In the course of a general instruction on the province and function of the jury20 the court stated: “The law forbids you to be governed by sentiment, conjecture, sympathy, passion, prejudice, public opinion, or any other factor other than the evidence and the law.” It is error to instruct the jury in the penalty phase of the trial that it cannot be governed or influenced by pity or sympathy for the defendant. (People v. Polk, supra, 63 Cal.2d 443, 451; People v. Anderson (1966) 64 Cal.2d 633, 641 [51 Cal.Rptr. 238, 414 P.2d 366].)
Defendant’s purported applications to dismiss the appeal and his application to dismiss his counsel are, and each of them is, denied. The judgment is reversed insofar as it relates to the penalty imposed for each of the murder counts; in all other respects the judgment is affirmed.
Traynor, C. J., Peters, J., and Tobriner, J., concurred.
McCOMB, J.
I would affirm the judgment in its entirety. (Cal. Const., art. YI, § 13.)