Polk

*446 TRAYNOR, C. J.

Defendants were convicted of conspiracy to commit kidnaping for the purpose of robbery (Pen. Code, §§ 182, 209) and of the first degree murder of William Fambro (Pen. Code, §189). The jury fixed the penalty at death on the murder count, and defendants were sentenced to prison for the term prescribed by law on the kidnaping count and to death on the murder count. On appeal, the judgments were reversed for a new penalty trial only. (People v. Polk, 61 Cal.2d 217, 234 [ 37 Cal.Rptr. 753 , 390 P.2d 641 ].) Upon retrial, the jury again fixed the penalty for each defendant at death. This appeal is automatic. (Pen. Code, § 1239, subd. (b).)

The essential facts are set forth in our former opinion and need not be repeated. (People v. Polk, 61 Cal.2d 217 [ 37 Cal.Rptr. 753 , 390 P.2d 641 ].)

At the second trial on the issue of penalty, there was also evidence that Polk admitted complicity in the killing of a gas station attendant, Raymond Sweet, on March 17, 1962, and, with Jesse Ferguson, in kicking to death in Los Angeles on April 10, 1962, a skid row inhabitant called “The Hook.”

Defendants were arrested in Los Angeles on May 20, 1962. The police began to question…

I dissent. As noted in the opinion affirming the judgments of guilt at the first trial (People v. Polk, 61 *452 Cal.2d 217, 220 [ 37 Cal.Rptr. 753 , 390 P.2d 641 ]), “The evidence establishes the perpetration of a series of brutal crimes—kidnapings, assaults with a deadly weapon, armed robberies, and murder with mutilation of the victim—committed in concert by these defendants. ...” I am of the opinion after “an examination of the entire cause, including the evidence” (as mandated by § 4½, art. VI, of the Cal. Const.), that it is not reasonably probable that a result more favorable to defendants Polk and Gregg would have been reached in the absence of the errors noted in the opinion of the majority. I would affirm the judgments appealed from in their entirety.

McComb, J., and Schauer, J., * concurred.

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council,