Thc present case arises under the 1977 death penalty law (Stats. 1977, eh. 316), repealed by initiative on November 7, 1978. Citations to former Penal Code sections in this opinion refer to the 1977 law.

Thc account of the events of April 9 is based upon the testimony at trial, including the recorded statement of defendant to the Kern County Sheriffs Department. We will note those relatively few instances in which the testimony is in conflict.

Defcndant revealed to the psychological experts who examined him that he regularly used PCP and marijuana, and occasionally used other drugs as well. Those statements are admissible, however, only to serve as the basis for expert opinion. (In re Spencer (1965) 63 Cal.2d 400, 412 [46 Cal.Rptr. 753, 406 P.2d 33].) There is no evidence admitted for the truth thereof to show defendant was under the influence of any drug except alcohol.

Bufflo’s testimony might imply that Etayo was killed beside the car. Both defendant and Lufenberger testified, however, that she came out from behind the car and was walking toward defendant when he shot her. The position of the body described by the police witnesses supports the latter version.

The trial judge thus anticipated our ruling in Hovey v. Superior Court, supra, 28 Cal.3d 1, 80, that the “portion of the voir dire of each prospective juror which deals with issues which involve death-qualifying the jury should be done individually and in sequestration.”

The jury also found that defendant had used a firearm in committing each of the charged offenses. (See Pen. Code, § 12022.5.)

The defense presented three rebuttal witnesses who questioned Rothenberger’s veracity.

Defcndant called witnesses at the penally phase who testified to his difficult childhood, his good community reputation for honesty, hard work, and nonviolence, and his relatively good record in county jail awaiting trial.

We suggest an additional mitigating factor not mentioned by the trial court: that defendant turned himself in to the police before he was a suspect in the case.

Thc public defender stresses that Lufenberger thought defendant was joking and did not take these suggestions seriously. In light of later events, Lufenberger’s reaction does not prove the suggestion was frivolous, but suggests that Lufenberger did not understand the seriousness of the defendant’s intention.

Defendant contends that he received inadequate notice that the prosecution would rely on the felony-murder doctrine. He cites former Penal Code section 190.4, which requires the People to charge the underlying felorty before asserting the special circumstance of premeditated murder committed in the course of a felony. That provision, however, is inapposite because the People in this case charged only the special circumstance of multiple murder. With respect to the guilt trial, it has long been settled that under an accusatory pleading charging murder in the short form prescribed by Penal Code sections 951 and 952 the accused may be convicted of first degree murder on the theory that the murder was committed in the perpetration of a felony. (In re Walker (1974) 10 Cal.3d 764, 781 [112 Cal.Rptr. 177, 518 P.2d 1129].) Thus a defendant, charged with murder, is on notice that the prosecution may seek to prove that charge by showing that the homicide occurred during the commission of an enumerated felony. Defendant points out that an information which complies with sections 951 and 952 may not in some cases give sufficient notice to conform to constitutional requirements. (See People v. Jordan (1971) 19 Cal.App.3d 362, 369 [97 Cal.Rptr. 570; People v. Clenney (1958) 165 Cal.App.2d 241, 253-254 [331 P.2d 696].) He notes also that the California practice of simplified pleading in criminal cases rests largely on the theory that a defendant will learn the details of the charges from the transcript of the testimony before the magistrate or grand jury. (See People v. Marshall (1957) 48 Cal.2d 394, 399 fn. 5 [309 P.2d 456] and cases there cited.) In the present case the testimony at preliminary hearing, since it did not include testimony by Lufenberger, arguably would not have alerted defendant to the need to defend against a theory of felony murder. Nevertheless defendant, when apprised of the prosecution’s felony-murder theory, did not request a continuance to prepare a defense against that theory; on appeal, defendant does not suggest any way in which the belated injection of the felony-murder theory into this case affected the defense. We conclude that the prosecution’s failure to give defendant earlier notice of this theory did not impair the presentation of defendant’s defense.

The Attorney General also points to Bufflo’s testimony that defendant shouted something to Etayo which included the word “car.” Bufflo could not make out the other words. It is speculative whether defendant said anything which relates to a possible taking of the car.

In People v. Green (1980) 27 Cal.3d 1 [164 Cal.Rptr. 1, 609 P.2d 468], we noted that a murder would not be considered to have been committed in the course of a robbery “when the defendant’s intent is not to steal but to kill and the robbery is merely incidental to the murder.” (P. 61.) In contrast to Green, in which a defendant stole the victim’s clothes and personal effects to conceal her identity, the theft here was not ancillary to the murder, but if Lufenberger’s testimony is believed, a concurrent objective. As the district attorney argued to the jury in this case, the fact that defendant had an independent intent to kill and in order to kill the victims was willing to risk disabling the car, does not preclude a finding that he also acted with the intent to steal the car.

Defendant was questioned earlier by the Norwalk police, but since neither the police nor defendant testified, his statement to the Norwalk police was not offered into evidence.

E.g., Greenwald v. Wisconsin (1968) 390 U.S. 519 [20 L.Ed.2d 77, 88 S.Ct. 1152]; Payne v. Arkansas (1958) 356 U.S. 560 [2 L.Ed.2d 975, 78 S.Ct. 844], People v. Underwood (1964) 61 Cal.2d 113 [37 Cal.Rptr. 313, 389 P.2d 937], also cited by the public defender, involved coercive threats by the interrogating officer.

During the Bakersfield interview Deputy Hamilton said to defendant: "... you’ve told us throughout the day that you’re very upset over this thing.... Uh—you and your mind will feel much better if you tell the entire thing and get it off your mind.... [H] Tell us everything you know ... [1]t’ll be a load off your shoulders and I know it’s a load on your shoulders.” Defendant argues that this statement was an improper inducement to confess. The cases cited by defendant, however, all involve at least an implied promise that defendant will receive better treatment from the police or prosecution if he confesses (see People v. Alfieri, supra, 95 Cal.App.3d 533; People v. Clark (1921) 55 Cal.App. 42 [203 P. 781]); no such implied promise appears in Hamilton’s exhortation. Furthermore, at the time of Hamilton’s statement defendant had already given a statement in Norwalk and repeated the substance of that statement for tape recording in Bakersfield.

The officers had no duty to tape record the Norwalk interview. (People v. Goss (1980) 109 Cal.App.3d 443, 457 [167 Cal.Rptr. 224]; People v. Miller (1975) 52 Cal. App.3d 666, 669-670 [125 Cal.Rptr. 341].) Their failure to do so, however, becomes significant when the officer’s notes, the only other contemporaneous record of the interview, are intentionally destroyed.

Describing defendant's interview with the police, the prosecutor stated that “up to that point the defendant . . . admitted his own conversation about killing people, but never testified, never stated at any time to the officers, at any time earlier, that Lufenberger had suggested that they take their car.”

Firsl, in his closing summation, the district attorney said: “Now, if you consider the testimony, and it is uncontradicted concerning the defendant saying that he is going to kill those people, and take the car....” A few minutes later, he told the jury: “You cannot just assume facts that are not in evidence. You can’t consider things—you have to weigh and consider all this evidence very carefully, and when you weigh that, the testimony is uncontradicted, he went over there with the intention of killing those people and taking their car.” He reiterated “in this case, the testimony is, and it is uncontradicted, he [defendant] said, ‘Let’s kill the people and take their car.’” Finally, the district attorney summed up the prosecution case: “he felt like killing somebody. And he wanted to get a car. Now, he could have gotten a car without shooting them sure. But because of the attitude which he had, he wanted to kill them. And that, of course, is what makes this case a little unusual. But that doesn’t mean that all the testimony, it did, and there is not testimony that it didn’t happen that way.”

The cases cited by the Attorney General are distinguishable. In People v. Jackson (1980) 28 Cal.3d 264 [168 Cal.Rptr. 603, 618 P.2d 149], we characterized the prosecutor’s comment as “indirect, brief, and mild” (p. 305); that comment, in any event, concerned only a minor issue of the case. Here the prosecutor repeatedly referred to defendant’s failure to contradict the crucial prosecution evidence on the issue of intent and premeditation. In People v. Gaulden (1974) 36 Cal.App.3d 942 [111 Cal.Rptr. 803] and People v. Bethea (1971) 18 Cal.App.3d 930 [96 Cal.Rptr. 229] and People v. Gray (1979) 91 Cal.App.3d 545 [154 Cal.Rptr. 555], the “uncontradicted” testimony could have been contradicted by witnesses other than defendant, so the prosecutor’s comment did not reflect directly on defendant’s failure to testify. Finally, in People v. Roberts (1975) 51 Cal.App.3d 125 [123 Cal.Rptr. 893], the prosecutorial comment was made to respond to the defense counsel’s reference to “conflicts” in the evidence.

The other alleged instances of prosecutorial misconduct are of lesser moment. (1) The district attorney stated that “1 accept the testimony” of Lufenberger that defendant intended to steal the car. If this rather unclear language was intended to indicate the prosecutor’s personal belief in the truth of that testimony, it was improper. (See People v. Perez (1962) 58 Cal.2d 229, 245 [23 Cal.Rptr. 569, 373 P.2d 617, 3 A.L.R.3d 946] and cases cited.) Taken in context, however, it is unlikely that the statement had any impact on the jury. (2) The district attorney said that “as a result of [Lufenberger’s] giving of a statement he became near to being prosecuted.” Lufenberger’s statement described him as armed, at the scene of the crime, and doing nothing to prevent it. Whether that statement made him more or less likely to be prosecuted is problematic, but arguably the prosecutor’s comment went beyond the scope of the evidence. (3) The district attorney in argument said Dr. Kelly, the expert witness for the defense, had never testified for the prosecution. This was a misstatement of the evidence, which showed only that Kelly usually testified for the defense. (4) The prosecutor stated that intoxication would not be a defense unless it raised a reasonable doubt as to defendant’s “ability” to deliberate and premeditate. As defense counsel pointed out in his argument, intoxication would be a defense to first degree murder if it caused the defendant to act without premeditation or deliberation, even if it did not affect his ability to do so. But in view of the extensive argument of defense counsel on this point, and the instructions of the court correctly explaining the issue, the jury could not have been misled. Defense counsel did not object to any of these acts or statements by the prosecutor. All are of the type that could readily be cured by a timely objection and admonition. Thus they cannot be asserted as error on appeal. Defendant does not claim counsel’s failure to object renders his representation constitutionally inadequate. Under People v. Pope (1979) 23 Cal.3d 412, 426, 430 [152 Cal.Rptr. 732, 590 P.2d 859], any such contention could be raised only by habeas corpus. The public defender also claims prosecutorial misconduct in the attempt of the district attorney to impeach Dr. Kelly by referring to alleged testimony by Kelly in a prior case. When examination of the transcript of the prior case proved the testimony in question was not by Kelly, the prosecutor recanted and dropped the matter. Absent any indication that the prosecutor’s mistake was not an innocent one, we find no misconduct.

Lufenberger’s testimony partially corroborates defendant. He testified that he heard shots, which sounded louder than shots from a .22 rifle, before defendant began to shoot at the victims. He denied, however, saying “throw out your gun.”

Defendant also claims that because counsel failed to request an Instruction on unreasonable self-defense, he did not receive reasonably competent representation by counsel. In People v. Pope (1979) 23 Cal.3d 412 [152 Cal.Rptr. 732, 590 P.2d 859], we explained that to prove inadequacy of trial counsel “appellant must show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. In addition, appellant must establish that counsel’s acts or omissions resulted in the withdrawal of a potentially meritorious defense.” (23 Cal.3d at p. 425.) Defendant’s argument fails the first part of this test, for it is implicit in our discussion of the doctrine of unreasonable self-defense in Flannel that the doctrine was one which, owing to its uncertain and undeveloped character, might well be overlooked by a reasonably competent practitioner.

Penal Code section 217 was repealed effective January 1, 1981. (Stats. 1980, ch. 300, §§ 1-2.) The repeal was occasioned by judicial decisions pointing out that assault with intent to commit murder, which was punishable by terms of two, four, or six years imprisonment, was but one form of attempted murder, punishable by terms of five, seven, or nine years. (See People v. Montano (1979) 96 Cal.App.3d 221, 228-232 [158 *763Cal.Rptr. 47] and cases there cited.) By repealing section 217, the Legislature assured that all attempted murders would be punished under the general attempt statute (Pen. Code, § 664) whether or not they involved assaults. Since the legislative purpose in repealing section 217 was not to eliminate sanctions for persons who commit the acts formerly proscribed by that section, but to render such persons subject to the more severe punishment specified in section 664, the repealing statute does not operate retroactively to mitigate the sentences of persons who committed assaults with intent to commit murder before January 1, 1981. (Cf. People v. Rossi (1976) 18 Cal.3d 295 [134 Cal.Rptr. 64, 555 P.2d 1313].)

The Attorney General also argues that Martinez can be distinguished on the grounds that the trial court there failed to instruct that intent to kill is an essential element of the crime of assault with intent to commit murder. In effect, the trial court in Martinez gave only the misleading implied malice instruction, while the court here gave both the correct intent to kill instruction and the implied malice instruction. Although one can distinguish between the giving of misleading instructions and the giving of contradictory instructions, both actions constitute error.

In People v. Williams (1981) ante, page 392 [174 Cal.Rptr. 317, 628 P.2d 869], we overruled People v. Edwards (1912) 163 Cal. 752[127 P. 58], and held that counsel may utilize voir dire to uncover grounds for peremptory challenge. Even under this expanded voir dire, however, questioning of the juror will not reveal what other persons (neighbors, employers, fellow jurors in prior cases, etc.) think of the juror. The attorney who investigates the prospective jurors will thus retain an advantage in exercising peremptory challenges over his adversary who lacks access to that investigation.

In People v. Brawley, supra, 1 Cal.3d 277, 293, we emphasized that the prosecutor declared that he had no information which would indicate that any juror was disqualified for cause. The danger posed by denial of discovery, however, is not merely that the prosecutor may conceal facts showing a juror is disqualified, but that he will obtain a significant advantage over the defense in exercising peremptory challenges.

“[T]his practice ... creates the untoward image of a system in which the opportunity to rationally exercise peremptory challenges is governed by the size of the litigant’s bank account or defense fund.” (People v. Williams, supra, ante, pp. 392, 405.)

Defendant also argues that the admission of Siegel’s testimony violated one of the safeguards established in In re Spencer (1965) 63 Cal.2d 400 [46 Cal.Rptr. 753, 406 P.2d 33], to limit the use of psychiatric testimony based on interviews at which defense counsel was not present. We said in Spencer that if “a defendant does not specifically place his mental condition into issue at the guilt trial, then the . .. psychiatrist should not be permitted to testify at the guilt trial.” (P. 412.) We added in a footnote that if “defendant does not offer evidence of his mental condition at the penalty trial, the ... psychiatrist may not, of course, testify at that trial.” (Id., at fn. 10.) Defendant here maintains that he did not place his mental condition into issue at the penalty trial and consequently that Siegel should not have been permitted to testify at that trial. Defendant, however, raised an issue of diminished capacity, a defense which relates not only to guilt but also constitutes a mitigating circumstance in determining penalty. (See former Pen. Code, § 190.3, factors (c) and (g).) The parties stipulated that the evidence offered at the guilt phase could be considered by the jury at the penalty trial. Thus defendant did put his mental condition into issue at the penalty phase; the testimony of Siegel at the penalty trial did not violate the Spencer guidelines.

In People v. Burnick (1975) 14 Cal.3d 306, 326-327, footnote 17 [121 Cal.Rptr. 488, 535 P.2d 352], we quoted the description of one study from Ennis, Prisoners of Psychiatry: Mental Patients, Psychiatrists and the Law (1972) page 227: “... In a well-known New York study, psychiatrists predicted that 989 persons were so dangerous that they could not be kept even in civil mental hospitals, but would have to be kept in maximum security hospitals run by the Department of Corrections. Then, because of a United States Supreme Court decision [Baxstrom v. Herold (1966) 383 U.S. 107 (15 L.Ed.2d 620, 86 S.Ct. 760)], those persons were transferred to civil hospitals. After a year, the Department of Mental Hygiene reported that one-fifth of them had been discharged to the community, and over half had agreed to remain as voluntary patients. During the year, only 7 of the 989 committed or threatened any act that was sufficiently dangerous to require retransfer to the maximum security hospital. Seven correct predictions out of almost a thousand is not a very impressive record. “Other studies, and there are many, have reached the same conclusion: psychiatrists simply cannot predict dangerous behavior. They are wrong more often than they are right. And they always err by overpredicting dangerous behavior.” For a thorough review of the numerous studies on this issue, see Cocozza & Stead-man, The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence (1976) 29 Rutgers L.Rev. 1084.

The studies usually refer to psychiatric predictions of violence; Dr. Siegel is a psychologist. We find no reason to doubt that the conclusions of the studies apply equally to forecasts by psychologists.

Bccause this court has already taken judicial notice of the unreliability of expert forecasts of future violence, we do not believe it necessary to determine whether such forecasts must meet the test established in People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240], for the admissibility of scientific evidence.

The Attorney General also argues that the People have a constitutional right to introduce testimony predicting that a defendant will probably commit future criminal acts. He quotes Jurek v. Texas (1976) 428 U.S. 262, 275 [49 L.Ed.2d 929, 940, 96 S. Ct. 2950], in which the Supreme Court, upholding a Texas statute that permitted the jury to consider the likelihood of future criminal conduct, said “Indeed, a prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system.... And any sentencing authority must predict a convicted person’s probable future conduct when it engages in the process of determining what punishment to impose.” The issue before the Supreme Court in Jurek was quite different from that presented in the present case. Jurek held a specific state statute requiring the jury to determine the probability of future criminal conduct was constitutional. The California Legislature has enacted no comparable statute. Thus the issue here is the admissibility of an expert forecast of future criminal conduct offered under a statute permitting evidence “relevant to aggravation” (former Pen. Code, § 190.3). Weighing the prejudicial impact of that testimony against its marginal relevance and questionable reliability, we conclude that it should not be admitted. Jurek does not demand a contrary conclusion; although that decision implies that state courts could constitutionally admit evidence concerning the likelihood of future criminal acts it does not require state courts to admit all such evidence regardless of its unreliability or prejudicial effect.

Just as the sentence of death is unique, so is the role of the penalty jury. When a jury decides an issue of guilt, an appellate court can reverse that conviction if it rests on evidence which is entitled to little weight—evidence which is not “of ponderable legal significance... reasonable in nature, credible, and of solid value.” (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738], quoting Estate of Teed (1952) 112 Cal.App.2d 638, 644 [247 P.2d 54].) The penalty jury’s verdict. *772however, does not resolve a question of fact, and it is not clear whether an appellate court can reverse that verdict on the ground that it is unsupported by substantial evidence. Thus the danger arises that a penalty verdict may rest upon evidence entitled to little weight and yet escape appellate scrutiny.

The paragraph in question in section 190.3 reads as follows:

None of the factors explicitly encompass predictions of future violence. The Attorney General argues that proof of a pattern of violent conduct by defendant might be *773admissible under factor (b), which permits a showing of past criminal activity involving force or the threat of force, or to rebut defendant’s claim that he acted under the influence of mental or emotional disturbance (factor (c)), or that his capacity was diminished by intoxication (factor (g)). The actual prediction that defendant would probably be violent in prison, however, is not strictly relevant to either past violent conduct (factor (b)) or to defendant’s state of mind at the time of the killing (factors (c) and (g)).

We note, but need not resolve, the constitutional problems which might arise if it appeared that a verdict of death rested, not on an implicit determination that aggravating factors outweighed mitigating factors, but on evidence of defendant’s background, history, or character irrelevant to any of the listed factors.

Cf. Evidence Code section 352, which provides that “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will ... create substantial danger of undue prejudice....”

Our decision does not, of course, preclude the use of psychiatric testimony at the penalty phase to show defendant’s present “character, background, history, mental condition and physical condition” (former Pen. Code, § 190.3).

Two earlier decisions involving the same defendant (People v. Hines (1967) 66 Cal.2d 348, 355 [57 Cal.Rptr. 757, 425 P.2d 557]; People v. Hines (1964) 61 Cal.2d 164, 173 [37 Cal.Rptr. 622, 390 P.2d 398]) upheld admission of psychiatric testimony *775that defendant might kill again. These decisions antedate most of the studies cited herein to show the unreliability of psychiatric forecasts, as well as our recognition of such unreliability in People v. Burnick, supra, 14 Cal.3d 306. They date from a past era when no standards governed the discretion of the penalty jury (see In re Anderson (1968) 69 Cal.2d 613 [73 Cal.Rptr. 21, 447 P.2d 117]) and in which the courts accordingly imposed few constraints on the admissibility of penalty phase evidence (see People v. Jones (1960) 52 Cal.2d 636, 647 [343 P.2d 577].) Consequently, the view of the penalty determination expressed in the Hines decisions is no longer viable, and, to the extent that language in those cases is inconsistent with the present opinion, it is expressly disapproved. The other decisions cited by the dissent are not on point. The psychiatric testimony in People v. Bickley (1962) 57 Cal.2d 788, 793 [22 Cal.Rptr. 340, 372 P.2d 100], could be construed as describing Bickley’s present mental condition rather than forecasting future behavior. Addington v. Texas (1979) 441 U.S. 418 [60 L.Ed.2d 323, 99 S.Ct. 1804]; Brown v. Colm (1974) 11 Cal.3d 639 [114 Cal.Rptr. 128, 522 P.2d 688], and People v. Henderson, supra, 107 Cal.App.3d 475 are not capital cases. The dissent’s reliance upon such cases suggests that the dissent rejects the basic proposition that greater reliability is required for determinations of life and death than is required in civil commitment proceedings such as Addington v. Texas or tort actions such as Brown v. Colm.

Assigned by the Chairperson of the Judicial Council.