I dissent.

The majority misapply Pate v. Robinson (1965) 383 U.S. 375 [ 15 L.Ed.2d 815 , 86 S.Ct. 836 ], to this ease, which is factually dissimilar in crucial respects.

In Pate the Supreme Court was obviously influenced by the unanimity of testimony concerning defendant’s mental condition. Reference was made repeatedly to the “uncontradicted testimony of four witnesses called by the defense” (p. 378, 15 L.Ed.2d p. 818) ; to the “uncontradicted testimony of Robinson’s history of pronounced irrational behavior” (pp. 385-386, 15 L.Ed.2d p. 822) ; to the fact that the prosecution *522 introduced only a stipulation which contained no finding of sanity (p. 383, 15 L.Ed.2d p. 821) ; to the prosecutor who “seemingly admitted [that] . . . the facts presented to the trial court . . . could not properly have disposed of the issue of Robinson’s competence” (p. 386, 15 L.Ed.2d p. 822). (Italics added.)

By contrast, the defendant in the instant case offered only the testimony and affidavit of one witness, and here it was the defendant who necessarily conceded in his brief that the People presented “to be sure, substantial and impressive evidence . . . that appellant was sane." 1

Although, as I indicate hereafter, we may not reweigh the facts upon which the trial court acted, I shall comment briefly in order not to appear to acquiesce in the majority’s tenuous interpretation of the evidence.

The defendant’s sole expert was a psychologist. He was not a psychiatrist, held no M.D. or Ph.D. degrees. He had treated defendant seven years before the trial, observed him one morning in the courtroom during this trial, and interviewed him for no more than 15 minutes the same day. He gave no tests and consulted with no psychiatrist or other qualified expert.

In appraising the opinion of the psychologist, the court had before it for comparison and contrast the reports of Dr. George Abe, an M.D. and superintendent of Metropolitan State Hospital, the reports of three court-appointed psychiatrists, the court’s own observation of the defendant during the trial, and evidence relating to defendant’s conduct from December 31, 1964, to January 11, 1965. If we are to reweigh the evidence before the trial court, we must conclude that the People’s presentation was infinitely more formidable.

But we have no power to reweigh the medical evidence here. The procedure of section 1368, compelling a cessation of the trial and an immediate sanity hearing, is to be invoked only if the trial court itself entertains a doubt concerning defendant’s ability “to understand the nature and purpose of the proceedings taken against him and to conduct his defense in a rational manner.” (People v. Merkouris (1959) 52 Cal.2d 672, 678 [ 344 P.2d 1 ], cert. den. 361 U.S. 943 [ 4 L.Ed.2d 364 , 80 S.Ct. 411 ] ; People v. Jensen (1954) 43 Cal.2d 572, 576 *523 [ 275 P.2d 25 ].) The doubt may not be that of an enterprising defense counsel, nor of a reviewing tribunal which has had no opportunity to set eyes upon the defendant; rather, the doubt must arise in the mind of the trial court.

Pate is authority for the proposition that it is a denial of due process for a trial court to refuse arbitrarily to consider uncontradicted testimony of lack of capacity. But neither Pate nor logic suggests that a reviewing court can vicariously inject a doubt in the mind of the trial court when none in fact exists after the trial court has given reflective consideration to conflicting evidence on this issue.

People v. Merkouris (1959) supra, is controlling and persuasive under these circumstances. Yet the majority in elastically trying to apply Pate to this case not only emasculate Merlcouris, but belatedly find it unconstitutional in application.

I would adhere to the following rationale of Merkouris:

Due process is clothed in no particular raiment and assumes no exclusive form. Basically it contemplates a reasonable opportunity to be heard before an uncommitted agency. Once defense counsel raised the issue of defendant’s ability to understand the nature and purpose of the proceedings taken against him and to conduct his defense in a rational manner, the trial court properly proceeded to appoint three psychiatrists to assist him and heard the defendant’s presentation. *524 This having been done, due process was satisfied; compliance therewith was not absent merely because the court, having expressed that it “never had any doubt, does not now have any doubt as to defendant’s sanity,” did not thereafter invoke section 1368. The procedure adopted here was identical with that approved by this court in People v. Ashley (1963) 59 Cal.2d 339, 363 [ 29 Cal.Rptr. 16 , 379 P.2d 496 ],

I would affirm the judgment.

McComb, J., concurred.

Respondent’s petition for a rehearing was denied May 24, 1967. Mosk, J., and Burke, J., were of the opinion that the petition should be granted.

The majority attempt to fortify their conclusion on the Penal Code section 1368 issue by quoting from testimony of Dr. Larson and Dr. Kaplan. This is of dubious value to us, since both witnesses testified later in the trial, not at the time the court expressed no doubt about defendant’s ability to conduct his defense.