I concur in the judgment and in the opinion supporting it, subject to this limitation as to its approval of People v. Purvis (1961), ante, p. 93 [13 Cal.Rptr. 801, 362 P.2d 713] : For the reasons and to the ends explained in my concurring and dissenting opinion in the Purvis case (see ante, p. 99). I do not agree that the majority opinion in that case provides adequately accurate or helpful guidance to trial courts in conducting the penalty phase of a capital case.
Whether we like it or not the Legislature of this state has provided for a separate trial as to the penalty in capital cases. We cannot say that such trial shall not embrace the reception of evidence. If evidence is received it should be material to the issue, and its weight as tending to establish ultimate material facts may be argued. And since the only issue then being tried is the selection of penalty, surely the persuasiveness of those facts as they may affect the process of exercising absolute discretion in the selection of the penalty must be arguable.
As indicated in the above mentioned concurring and dissenting opinion in Purvis I think this court should more adequately define (for the guidance of court and counsel as to burdens of proof and persuasion, and for instructing the *708jury, at the penalty phase of capital cases) the difference between the burdens of (a) proof and (b) persuasion in, respectively, (1) the process of evaluating conflicting evidence to determine whether the existence of particular facts has been proved and (2) the process of exercising absolute discretion in ultimately selecting the penalty.
McComb, J., concurred.