Pennington

This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment of the Superior Court of Imperial County, after trial before a jury, on verdicts finding *511 defendant guilty of murder in the first degree (Pen. Code, §§ 187, 189), finding that he was sane at the time of the crime (Pen. Code, § 1026), and imposing the death penalty (Pen. Code, § 190). Defendant was also convicted of felony child stealing of his 10-year-old victim (Pen. Code, § 278), of lewd and lascivious conduct with a child under age 14 (Pen. Code, § 288), and of unlawfully furnishing drugs to a minor (Bus. & Prof. Code, § 4234). 1

We have concluded that the judgment must be reversed in its entirety because under the rule established by Pate v. Robinson, 383 U.S. 375 [ 15 L.Ed.2d 815 , 86 S.Ct. 836 ], defendant was improperly denied a hearing to determine if he was sufficiently competent and sane to stand trial.

Defendant entered pleas of not guilty and not guilty by reason of insanity. Trial commenced, with the impaneling of a jury, on May 24, 1965. When the prosecution began presenting its case, defendant on occasions interrupted the trial with comments or curses. At the beginning of a session of…

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,…