Gaines

This is an automatic appeal from a judgment of guilty of murder in the first degree, pursuant to the provisions of section 1239, subdivision (b), of the Penal Code. The jury fixed the punishment at death.

Viewed in the light most favorable to the People, the record discloses the following facts:

Defendant presents these questions:

Defendant’s specific contentions are:

Since the jury actually had agreed upon a verdict as to defendant, it was proper for the court to formally take the verdict and then send the jurors back to deliberate on the penalty for his codefendant Rollins. Likewise, defendant Rollins had the right to waive further deliberations and leave his fate up to the trial judge.

An examination of the record discloses that it is free from prejudicial error and that defendant had a fair trial, well *641 represented by a competent attorney before an able and impartial trial judge.

The judgment is affirmed.

Gibson, C. J., Sehauer, J., and White, J., concurred.

I dissent.

Defendant’s plea of not guilty by reason of insanity was improperly withdrawn. Penal Code section 1018 unequivocally provides that “Unless otherwise provided by law every plea must be put in by the defendant himself in open court. ’ ’ Penal Code section 1016 enumerates the five pleas that may be entered, including ‘ ‘ 5. Not guilty by reason of insanity. ’ ’ Read together these sections set forth a clear statutory procedure: unless otherwise provided by law, the pleas enumerated in section 1016 must be put in by the defendant himself in open court. The purpose of section 1018 is to ensure that the defendant in a criminal action personally puts in issue the issues raised under any of the pleas included in section 1016. Since the withdrawal of a plea removes from litigation an issue that the defendant has personally put in issue, the withdrawal must also be by the defendant personally. Otherwise the issues to be litigated would not include those raised by defendant personally. Defendant had personally put his sanity in issue by his plea in open court of not guilty by reason of insanity. That issue remained in the case, for it was not personally withdrawn by defendant.…