The opinion
BURKE, J., Concurring and Dissenting.
I concur in the affirmance of the judgment of guilt as to defendant Luker sinee I am not of the opinion after “an examination of the entire cause, including the evidence” (as mandated by § 4½, art. VI, of the Cal. Const.), that it is reasonably probable *480 that a result more favorable to the defendant Luker would have been reached in the absence of the errors set forth in the majority opinion. (See People v. Watson, 46 Cal.2d 818, 836 [ 299 P.2d 243 ].)
I concur also in the judgment reversing the conviction of defendant Layne for the reason that after my examination of the entire cause under section 4%, article VI, I am of the opinion that it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the errors set forth in the majority opinion.
I dissent from the reversal of the judgment imposing the death penalty on the defendant Luker. This was a coldblooded, wanton, totally unprovoked murder accomplished in the perpetration of an armed robbery, and from my examination of the entire cause under the aforementioned article of the Constitution I am not of the opinion that it is reasonably probable that a result more favorable to the defendant Luker would have been reached in the absence of the errors set forth in the majority opinion. By the unequivocal mandate of our Constitution I am, therefore, compelled to vote to affirm the judgment in its entirety as to defendant Luker. (People v. Watson, supra, 46 Cal.2d 818, 836 ; see also dissenting opinions of Mr. Justices White and Schauer in People v. Terry, 57 Cal.2d 538, 569, 572 [ 21 Cal.Rptr. 185 , 370 P.2d 985 ]; of Mr. Justice Schauer in People v. Hillery, 62 Cal.2d 692, 714 [ 44 Cal.Rptr. 30 , 401 P.2d 382 ]; and dissenting opinions in In re Spencer, ante, pp. 400, 414 [ 46 Cal.Rptr. 753 , 406 P.2d 33 ]; In re Gaines, ante, pp. 234, 240 [ 45 Cal.Rptr. 865 , 404 P.2d 473 ]; and In re Lessard, 62 Cal.2d 497, 513 [ 42 Cal.Rptr. 583 , 399 P.2d 39 ].)
McComb, J., and Schauer, J., * concurred.
The petition of appellant Luker for a rehearing was denied December 1, 1965. Schauer, J.,* sat in place of Mosk, J., who deemed himself disqualified.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.