Robles

*909 Opinion

Leo Estrada Robles was convicted of assault with a deadly weapon by a life prisoner and of first degree murder, and on both counts his penalty was fixed at death. The judgment was reversed insofar as it relates to penalty and was affirmed in all other respects. (People v. Robles (1970) 2 Cal.3d 205 [ 85 Cal.Rptr. 166 , 466 P.2d 710 ].) Upon retrial of the penalty issue, his 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 aside, it is unnecessary to consider the claims of error arising out of his second penalty trial.

In response to an inquiry by this court, counsel for defendant reviewed the record of the guilt phase of…