OPINION

BURKE, J.

Ronald Walter King pleaded guilty to first degree murder. It was stipulated that the court might read the preliminary hearing transcript for the purpose of approving the plea and determining the degree. After reading the transcript the court approved the plea and stated that it determined the murder to be in the first degree. At the proceeding to determine the penalty a jury fixed the penalty at death. Motions for a new trial and for reduction of the sentence were denied, and defendant's automatic appeal is now before us (Pen. Code, § 1239, subd. (b)).

Defendant contends that the court erred in denying his motion to allow him, over the prosecutor's objection, to waive a jury trial on the issue of penalty; that error was committed in selecting the jury; and that it was improper for the prosecutor to make certain remarks to the jury panel. We have concluded that none of the contentions can be upheld and that the judgment should be affirmed.

On the evening of August 13, 1966, defendant entered Al's Liquor Store in Bellflower to commit a robbery, while his companion, Kenneth Watson, waited in a car outside. Two customers were in the store, and, after they left, defendant shot and killed the clerk, Dennis Sponseller, with a shotgun. The victim was unarmed. Evidence indicated that the muzzle of the shotgun was six to eight feet from the victim when the gun was fired. The autopsy surgeon testified that death occurred within minutes and was caused by a shotgun wound, which perforated the heart.

Defendant's fingerprints were found on the cash register, the drawer of which remained closed although several keys were depressed, and only a penny was found in the victim's pockets. The owner of the store testified that $160 was missing and that it was the practice of the store for the clerk to keep money in his pocket or a drawer for cashing checks.

Defendant, testifying in his own behalf, admitted shooting the decedent during an attempt to perpetrate a robbery. He stated that at the time in question he was living with the Kenneth Watsons, that they were "broke," and that Watson suggested committing the robbery. He testified that he did not deliberately fire the gun, that it "just went off," and that he was scared and left without obtaining any money. He denied telling Mrs. Watson on the night of the murder that he shot the victim on seeing him reach under a counter thinking he was going for a gun or alarm button. In rebuttal Mrs. Watson stated that defendant had made such a statement that night.

Defendant also testified that he had never previously been involved in a crime of violence. On cross-examination he admitted having been convicted of two prior felonies — each of which related to "bad checks." He stated that he was currently in a federal prison as a result of one of the convictions. Two officers at the prison, called as defense witnesses, testified that defendant had been cooperative and polite during the past six months.

(1) After entering his guilty plea, defendant indicated that he wished to waive a jury trial on the issue of penalty. The prosecutor refused to join in the waiver, and defendant moved that he nevertheless be permitted to waive a jury trial. The motion was denied, and defendant contends that the court thereby erred. We do not agree.

Article I, section 7, of the California Constitution provides: "The right of trial by jury shall be secured to all, and remain inviolate. . . . A trial by jury may be waived in all criminal cases, by the consent of both parties, expressed in open court by the defendant and his counsel. . . ." (Italics added.) (2) This section does not guarantee the right to trial by jury to determine the issue of penalty, and under former practice a defendant did not have a right to a jury trial on that issue after a guilty plea. ( People v. Hough, 26 Cal.2d 618, 620-621 [ 160 P.2d 549] [cert. dismd. 326 U.S. 691 [90 L.Ed. 407, 66 S.Ct. 232]].) However, Penal Code section 190.1, enacted in 1957, provides "If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived," and by its terms the provision in the quoted constitutional section regarding the method of waiver is applicable in a proceeding to determine the penalty. In People v. Washington, 71 Cal.2d 1061, 1086-1087 [ 80 Cal.Rptr. 567, 458 P.2d 479], wherein a jury found the defendant guilty of various crimes including murder and fixed his penalty at death, the defendant claimed on appeal that the rejection by the prosecution of his offer to waive a jury trial was a denial of his "constitutional right to waive a trial by jury," and this court, relying on our constitutional provision and authority such as Singer v. United States, 380 U.S. 24 [13 L.Ed.2d 630, 85 S.Ct. 783], concluded that the claim lacked merit. (See also People v. Spencer, 170 Cal.App.2d 145, 149 [ 338 P.2d 484] [cert. den. 361 U.S. 949 [4 L.Ed.2d 382, 80 S.Ct. 405]].)

In Singer v. United States, supra, 380 U.S. 24, 36 [13 L.Ed.2d 630, 638, 85 S.Ct. 783], wherein the defendant challenged a federal rule that conditioned a defendant's waiver of a jury trial on consent of the court and the prosecutor, the court stated, "A defendant's only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury — the very thing that the Constitution guarantees him." Singer also stated (at p. 37 [13 L.Ed.2d at p. 639]), "We need not determine in this case whether there might be some circumstances where a defendant's reasons for wanting to be tried by a judge alone are so compelling that the Government's insistence on trial by jury would result in the denial to a defendant of an impartial trial." Here no claim is made, nor does it appear, that such circumstances were present.

In arguing that it was error not to accept his waiver of a jury at the penalty trial, defendant cites People v. Jones, 52 Cal.2d 636 [ 343 P.2d 577], wherein it was recited that defense counsel and defendants waived a jury trial on the issue of penalty and that the trial court determined the penalty, and Jones stated that the procedure was correct. Although Jones did not recite that the prosecutor joined in the waiver, nothing therein shows that he did not do so, and the matter was not discussed.

Eight veniremen were excused for cause on the basis of their attitude toward the death penalty. Defendant contends that under Witherspoon v. Illinois, 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], it was error to excuse them. (3) Although Witherspoon was decided after defendant's trial, it is applicable herein. ( Witherspoon v. Illinois, supra, 391 U.S. 510, 523, fn. 22 [20 L.Ed.2d 776, 785, 88 S.Ct. 1770].)

Witherspoon 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." ( Id. at p. 522 [20 L.Ed.2d at pp. 784-785].) The court excepted from this ruling veniremen 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 [20 L.Ed.2d at p. 785].)

(4) In determining whether a venireman comes within this excepted group we must "assess the responses of the venireman in the full context of that portion of the court and counsels' voir dire examination of the entire panel conducted during the time said venireman was present in the courtroom and until the time he or she was excused for cause. To ascertain what the juror meant by what he said, we must consider not merely the words of his answers but also the words of the questions he was asked and additionally all of the circumstances in which the colloquy took place." ( People v. Varnum, 70 Cal.2d 480, 492 [ 75 Cal.Rptr. 161, 450 P.2d 553].)

Here the phrase "in a proper case" was repeatedly employed in questioning the veniremen concerning their attitude toward the death penalty, and that phrase, if considered by itself, is ambiguous. (See, e.g., People v. Nye, 71 Cal.2d 356, 365-366 [ 78 Cal.Rptr. 467, 455 P.2d 395]; People v. Varnum, supra, 70 Cal.2d 480, 494; People v. Teale, 70 Cal.2d 497, 514-515 [ 75 Cal.Rptr. 172, 450 P.2d 564]; People v. Morse, 70 Cal.2d 711, 741 [ 76 Cal.Rptr. 391, 452 P.2d 607].) As pointed out in Teale (at p. 515) "in the absence of additional language which might explain its content or nullify its effect, the phrase might easily suggest to a venireman that the law classes certain kinds of cases as `proper' for the infliction of the death penalty and that, if the defendant is found guilty of a crime of this class, the jury will be required to impose the death penalty." However, as we shall see, in the instant case as in People v. Varnum, supra, 70 Cal.2d at pages 494-496, and People v. Nye, supra, 71 Cal.2d at pages 365-367, it was made clear to the veniremen that what was a proper case was within the determination of each individual juror.

(5) On the first day of the jury selection proceedings before any venireman was excused for cause the court addressed the jury panel as follows:

"The law provides that every person guilty of murder in the first degree shall suffer death or confinement in the State Prison for life. The determination of the penalty of life imprisonment or death shall be in the discretion of the jury, which is now to be selected. . . . The law imposes neither death nor life imprisonment, but presents the two alternatives to the absolute discretion of the jury. The legislature has formulated no rules to control the exercise of the jury's discretion. . . .

" Both the People and the defendant are entitled to the individual opinion of each juror. That means that each of you for yourself must determine the penalty of life imprisonment or death. . . .

"Where the offense charged is punishable by death, the Court is required to ascertain if any prospective juror entertains such a conscientious opinion that he would, under no circumstances, vote for the death penalty in a proper case. If you entertain such conscientious opinion, the law provides that you will not be permitted or compelled to serve as a juror." (Italics added.)

It is manifest that the quoted remarks made it clear that what was a proper case was for the individual juror to decide, even though the remarks did not include an express statement to that effect.

Immediately after the court's remarks the first three veniremen in question (Mrs. Foster, Mrs. Brough, and Mr. Kirschner) were examined and excused for cause, and on the second day of the jury selection proceedings the next four veniremen in question (Mrs. Tharp, Mrs. Ackerman, Mrs. Shadburn, and Mrs. Bair) were excused for cause following their examination. The relevant voir dire of the seven is set forth below. It may be inferred that all seven heard the court's remarks and that the veniremen excused on the second day also heard statements by defense counsel and the prosecutor during questioning of numerous veniremen, which likewise made it apparent that what was "a proper case" was for each individual juror to decide. The answers of each of the seven, in the light of the context, made it unmistakably clear that he or she would vote against the death penalty automatically and regardless of the evidence in the case.

The eighth venireman in question (Mr. Baugh) was excused for cause on the third day of the jury selection proceedings. His entire voir dire examination is set forth in the footnote. The record is unclear whether he was present when the court made its remarks on the first day of the jury selection proceedings. It appears that on the afternoon of the second day of such proceedings the court stated it would address its remarks "to the members of the jury panel who have just entered into the courtroom." The court at that time repeated many of its previous comments. It informed the veniremen that the determination of the penalty of death or life imprisonment was within the absolute discretion of the jury and further stated that "The legislature has formulated no rules to control the exercise of the juror's discretion." (Italics added.) Although the court did not repeat its earlier comments to the effect that each juror individually must decide between the two penalties, that fact was suggested by the italicized words, and subsequent questioning by defense counsel and the prosecutor of various veniremen before Mr. Baugh was excused made it clear that the decision as to penalty was not only the collective decision of the jury as a whole but was necessarily an individual decision for each juror. In the light of their context, the answers of Mr. Baugh made it unmistakably clear that he would vote against the death penalty automatically and regardless of the evidence in the case.

The present case differs from People v. Teale, supra, 70 Cal.2d 497, 512-518, and People v. Morse, supra, 70 Cal.2d 711, 739-742, wherein we concluded that it had not been made clear to the veniremen that what was a proper case was within the determination of each individual juror and that it was therefore error under Witherspoon v. Illinois, supra, 391 U.S. 510 to excuse for cause veniremen who, after manifesting opposition to capital punishment in general language, responded in the affirmative to the court's inquiry whether such opposition would prevent them from rendering the verdict of death "in a proper case" or who responded in the affirmative to similar questions. In neither Teale nor Morse does it appear that the veniremen were informed, as they were here, that the jury has absolute discretion in determining whether the penalty should be death or life imprisonment, that the Legislature has formulated no rules to control the exercise of the jury's discretion, and that each juror for himself must determine the penalty of death or life imprisonment. Furthermore in Teale, unlike the instant case, the voir dire examination of veniremen was fraught with statements that could only have produced confusion as to the meaning of the term "proper case."

The instant case also differs from People v. Ketchel, 71 Cal.2d 635 [ 79 Cal.Rptr. 92, 456 P.2d 660], wherein the majority concluded that the meaning of the phrase "proper case" had not been properly explained and that it was therefore error to exclude for cause a venireman who replied in the negative to the crucial question "And if you felt from the evidence that this was a proper case for the imposition of the death penalty, could you vote for the imposition of the death penalty if you believed that it was a proper case?" In Ketchel the court's introductory remarks informed the veniremen that the "jury" has "a wide discretion" in determining between life imprisonment and death and thereafter referred to the "absolute discretion of the jury" on the issue. The majority stated that "the discrepancy" was not explained to the veniremen, that "the designation of the jury collectively does not establish that the juror must reach an individual decision on the issue," and that the record showed that the questions as to "proper case" left the jurors in a state of confusion. Here, however, the court's remarks correctly informed the veniremen of the "absolute discretion" of the jury in selecting between the two penalties and did not mention "wide discretion," and it does not appear that veniremen were confused by the questions relating to "proper case." Rather the responses of venireman after venireman indicated that no misunderstanding resulted from the use of the quoted phrase. (6) Three of the veniremen excused for implied bias indicated that their inability to return a death penalty under any circumstances was based in whole or in part on their religious beliefs. (See voir dire examination of Mrs. Foster, Mrs. Brough, and Mrs. Bair in fn. 2.) Defendant contends that their exclusion was forbidden by section 4 of article I of the California Constitution, which provides "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be guaranteed in this State; and no person shall be rendered incompetent to be a . . . juror on account of his opinions on matters of religious belief. . . ." (Italics added.)

The contention cannot be upheld. People v. Rollins, 179 Cal. 793, 796-797 [ 179 P. 209], in rejecting a claim that Penal Code section 1074, subdivision 8, violated section 4 of article I of our state Constitution, stated in part, "Section 1074 of the Penal Code has nothing whatever to do with any question of `competency' of jurors, a matter covered by sections 198 and 199 of the Code of Civil Procedure, and section 1046 of the Penal Code. That section prescribes grounds of challenge for implied bias, matters going to the ability of the juror, regardless of his competency to act as a juror generally, to fairly and impartially try the particular case in accord with the law applicable thereto." Arguments by defendant that Rollins is no longer applicable are devoid of merit.

Defendant next appears to complain of the court's failure to excuse for bias numerous veniremen who assertedly showed "a predisposition toward the death penalty." (7) However, defendant did not challenge these veniremen for cause, and the general rule is that any challenge for cause must be seasonably made or is waived. ( People v. Young, 21 Cal.App.2d 423, 428 [ 69 P.2d 203]; cf. Riley v. Davis, 57 Cal.App. 477, 484 [207 P. 699]; see Witkin, Cal. Criminal Procedure (1963) p. 397.) (8) Furthermore the answers of some of the veniremen pointed to by defendant were merely statements such as that they favored retention of the death penalty, and such statements manifestly do not show either implied bias under Penal Code section 1074 or actual bias under Penal Code section 1073. Other of the veniremen in question were excused on peremptory challenge by the prosecutor, and hence defendant could not have been harmed by the fact that they were not excused for cause. The remaining venireman made statements that might be regarded as conflicting relating to whether he believed that the death penalty should be imposed in all robbery-murder cases. This venireman was thereafter excused on a peremptory challenge by defendant. (9) Even if it were assumed that a challenge for cause should have been made and would have been allowed, it does not appear that defendant was harmed by the fact that he removed the venireman instead by a peremptory challenge. Although defendant thereafter exhausted his peremptory challenges, the record does not show that he desired to exercise any additional peremptory challenges or had any objection to any of the 12 jurors who were sworn to try the cause.

(10) There is no merit to defendant's contention that it was improper for the prosecutor, in addressing the jury panel, to make specified statements to the effect that the state was seeking the death penalty. (See People v. Spencer, 60 Cal.2d 64, 76 [ 31 Cal.Rptr. 782, 383 P.2d 134] [cert. den. 377 U.S. 1007 [12 L.Ed.2d 1055, 84 S.Ct. 1924]].)

The judgment is affirmed.

Traynor, C.J., McComb, J., Peters, J., Tobriner, J., Mosk, J., and Sullivan, J., concurred.

Appellant's petition for a rehearing was denied February 25, 1970. Peters, J., was of the opinion that the petition should be granted.

Veniremen Foster and Brough

Venireman Kirschner

Venireman Tharp

Venireman Ackerman

Venireman Shadburn

Venireman Bair