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.)
In response to an inquiry by this court, counsel for defendant reviewed the record of the guilt phase of the trial and advised us there are no tenable grounds for attacking the judgment of guilt at this time. (See People v. Ketchel (1966) 63 Cal.2d 859, 866 [48 Cal.Rptr. 614, 409 P.2d 694].)
The judgment, insofar as it provides for the penalty of death, is modified to provide a punishment of life imprisonment and as so modified is affirmed.
For the reasons expressed in my dissenting opinion in People v. Anderson, 6 Cal.3d 628, 657 [100 Cal.Rptr. 152, 493 P.2d 880], I dissent from the modification of the judgment to provide a punishment of life imprisonment instead of death for first degree murder. (See Cal. Const., art. I, § 27.)
For the effect of article I, section 27, of the California Constitution on this issue, see People v. Murphy (1972) ante, pages 349, 352, footnote 2 [105 Cal.Rptr. 138, 503 P.2d 594].