Mathis

*814 Opinion

Dovie Carl Mathis was convicted of first degree murder and first degree robbery, and on the murder count his penalty was fixed at death. The judgment was affirmed. (People v. Mathis (1965) 63 Cal.2d 416 [ 46 Cal.Rptr. 785 , 406 P.2d 65 ].) Thereafter, under compulsion of Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ], the judgment was reversed insofar as it imposed the death penalty and was affirmed in all other respects. (In re Mathis (1969) 70 Cal.2d 467 [ 74 Cal.Rptr. 914 , 450 P.2d 290 ].) Upon rétrial of the penalty issue defendant’s punishment was again fixed at death, and his automatic appeal is now before us. .(Pen. Code, § 1239, subd. (b).)

In People v. Anderson (1972) 6 Cal.3d 628 [ 100 Cal.Rptr. 152 , 493 P.2d 880 ], we held that the death penalty violated our state constitutional prohibition against cruel or unusual punishment. (Cal. Const., art. I, § 6.) 1 And in Furman v. Georgia (1972) 408 U.S. 238 [ 33 L.Ed.2d 346 , 92 S.Ct. 2726 ], the United States Supreme Court ruled that imposition of the death penalty in these circumstances contravened the federal Constitution. As defendant’s death penalty must therefore be set…