The opinion
TRAYNOR, J.,
Dissenting. — Humanitarian considerations have led the Legislature to extend to persons under judgment of death the privilege of avoiding punishment while insane. *654 (Pen. Code, § 1367.) The warden of the state prison is charged with the responsibility of determining whether there is good reason to believe that a person under judgment of death has become insane. (Pen. Code, § 3701.) Mandamus cannot properly issue to compel the warden to institute proceedings under section 3701, since the courts are prohibited from suspending the execution of a judgment of death (Pen. Code, § 3700), and are without power, except as provided by statute, to determine the sanity of a person sentenced to death and in the custody of the warden. (In re Phyle, 30 Cal.2d 838, 846 [ 186 P.2d 134 ] ; see People v. Sloper, 198 Cal. 601, 608 [ 246 P. 802 ].) A person under judgment of death does not have a constitutional right to have execution of sentence suspended on the ground that he has become insane. (People v. Riley, 37 Cal.2d 510, 514 [ 235 P.2d 381 ]; Phyle v. Duffy, 34 Cal.2d 144, 157 [ 208 P.2d 668 ], concurring opinion.) Procedural due process does not prevent delegation of the duty of determining the sanity of a person under judgment of death to an administrative official and does not require judicial review of that official’s determination. (Solesbee v. Balkom, 339 U.S. 9, 12-13 [ 70 S.Ct. 457 , 94 L.Ed. 604 ] ; Nobles v. Georgia, 168 U.S. 398, 405-409 . [ 18 S.Ct. 87 , 42 L.Ed. 515 ] ; In re Phyle, supra, 30 Cal.2d at 847-850 ; Phyle v. Duffy, supra, 34 Cal.2d at 159-161 .)
Since the court had no jurisdiction to entertain the proceeding, I would reverse the judgment and direct the trial court to dismiss the proceeding. (In re McGee, 36 Cal.2d 592, 599 [ 226 P.2d 1 ].)
Spence, J., concurred.