I dissent. I agree with the dissenting opinion of Justice Burke insofar as it concludes that there is sufficient evidence to support a verdict of first degree murder on the theory that the homicide was committed by defendant in the performance of, or the attempt to perpetrate, an offense proscribed by Penal Code section 288. Having reached such conclusion, I am of the view as is Justice Burke, that we are not required to uphold the verdict on the additional theory of deliberate and premeditated murder. Indeed I would join his dissenting opinion were it not for the fact that, while deeming it unnecessary to rest the verdict on a theory of deliberate and premeditated murder, the author nevertheless comments on the sufficiency of the evidence to sustain the verdict on such theory. I am not disposed to reach this question.
I would affirm the judgment.
Respondent’s petition for a rehearing was denied January 22, 1969. Peek, J.,* sat in place of Mosk, J., who deemed himself disqualified. McComb, J., Burke, J., and Sullivan, 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.