I concur in the judgment and agree with the views expressed except as to the dictum added “for the guidance of the court on retrial. ’ ’
As discussed in my dissent in People v. McClellan (1969) ante, p. 793 [80 Cal.Rptr. 31, 457 P.2d 871], it is not, and should not be, the law at the penalty proceeding after the defendant has been found guilty that evidence of other crimes must be proved beyond a reasonable doubt. I would return this court, and trial courts, to the course charted by the Legislature, which provided in Penal Code section 190.1 as clearly and simply as words can express it that the trier of fact at the penalty proceeding is to consider “the defendant’s background and history, and . . . any facts in aggravation or mitigation of the penalty.” No matter how often I read that code section, I have yet to discover in it a limiting qualification. Any facts would seem to mean any facts.
Burke, J., concurred.