I dissent.
A number of eyewitnesses identified appellants as the robbers who at gunpoint obtained money from the cashiers at the Star Market, and abundant competent evidence established that they were guilty of the murder of Thomas Elder, a 28-year-old policeman who attempted to apprehend them while they were fleeing from the market. I am not of the opinion that it is reasonably probable that a result more favorable to them would have been reached had their confessions not been admitted. Such admission did not constitute reversible error under the provisions of section 4½, article VI, of the California Constitution, or under the tests enunciated in either People v. Watson, 46 Cal.2d 818, 835 [299 P.2d 243], or Fahy v. Connecticut, 375 U.S. 85, 86-87 [84 S.Ct. 229, 11 L.Ed.2d 171]. Nor do I believe that the other matters raised relating to the trial on guilt warrant setting aside the judgments as to guilt.
I am also of the opinion that the errors complained of with respect to the second penalty trial did not result in a miscarriage of justice. (Cal. Const., art. VI, §4½; People v. *869Watson, supra, 46 Cal.2d 818, 835; Fahy v. Connecticut, supra, 375 U.S. 85, 86-87.) In addition to other competent evidence establishing their guilt of the robbery and the murder, appellants admitted their guilt while testifying in their own behalf at the second penalty trial. It further appears that Ketchel had committed four prior robberies and that Thomas Sears had also previously committed a robbery. Thus, we may infer that each was well aware of his right to remain silent. The evidence indicates further that they had discussed and were aware of their right to counsel.
I would not vacate our judgment of May 7, 1963, as to appellants and would affirm the judgments as to penalty.
McComb, J., and White, J.,* concurred.
Respondent’s petition for a rehearing was denied February 23, 1966. Mosk, J., did not participate therein. McComb, J., Burke, J., and White, J.,* were of the opinion that the petition should be granted.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.