Laudermilk

•Defendant appeals from a judgment, entered upon a plea of guilty, convicting him of first degree murder (Pen. Code, §§ 187, 189) 1 and sentencing him to life imprisonment (§190).

On August 25, 1964, defendant ivas charged by indictment with the murder of his former wife. Upon arraignment, the public defender was appointed to represent him. He pleaded not guilty, demanded a jury trial, and the cause was set for trial on November 9, 1964. A month later, by leave of court, lie entered pleas of not guilty and not guilty by reason of insanity. Thereafter, since the case involved a capital offense for which the district attorney was demanding the death penalty, and the court felt that an otherwise heavy case load prevented the public defender from giving it adequate attention, the court pursuant to section 987a appointed Mr. Glithero to represent defendant and pursuant to section 1027 appointed two psychiatrists, Doctors W. S. Musfelt and M. L. Palestine, to examine him. The cause was reset for trial on November 30, 1964.

Both doctors examined defendant within a few days and filed their reports with the court Avell before the above trial date. The circumstances of the killing, as…

I dissent.

The sole point of any importance involved on this appeal is whether there was presented to the trial court any substantial evidence of the insanity of appellant so as to entitle him to the hearing required by section 1368 of the Penal Code. 1 If *289 such evidence was produced, no matter how strong the conflicting evidence may have been and no matter how weak was the evidence on behalf of appellant, provided only it was substantial, the trial judge was required to order a present sanity hearing as a matter of law.

This was not always the California law. For many years the California courts had held that the trial court on a motion under section 1368, and on conflicting evidence, had discretion to determine whether it had a “doubt” of sanity, and if not to deny the motion. (See People v. Merkouris, 52 Cal.2d 672 [ 344 P.2d 1 ], cert. den. 361 U.S. 943 [ 4 L.Ed.2d 364 , 80 S.Ct. 411 ] ; People v. Lindsey, 56 Cal.2d 324 [ 14 Cal.Rptr. 678 , 363 P.2d 910 ].) Under the compulsion of Pate v. Robinson, 383 U.S. 375 [ 15 L.Ed.2d 815 , 86 S.Ct. 836 ], this court in People v. Pennington, 66 Cal.2d 508 [ 58 Cal.Rptr. 374 , 426 P.2d 942 ], revised the rule of the Merkouris and…