McCOMB, J.
This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment, after trial before the court without a jury, finding defendant guilty of murder in the first degree and imposing the death penalty.
Facts: Early in the morning on Sunday, October 25, 1964, defendant took his .22 caliber rifle, left his apartment, and drove to a service station in Modesto operated by John Arthur Inman. He bought a dollar’s worth of gasoline and a quart of oil. He then asked for a package of cigarettes, and when Inman went back into the living area of the station to get the cigarettes, defendant picked up his rifle, followed Inman inside, and said, “This is a stick-up, I want to get some money.” Turning around, Inman replied, “Nobody is going to get me,” and moved toward defendant, reaching for the rifle.
Defendant started firing at Inman. He fired six shells in all, and when Inman continued to advance toward him, defendant hit him with the rifle and knocked him to the floor unconscious. He poured a pan of gasoline over Inman’s outstretched body, took the money from the cash register, struck a match to the gasoline-soaked body, and fled.
On February 11, 1965, defendant entered a plea of not guilty and not guilty by reason of insanity to the murder charge and thereafter waived the 60-day time limitation. (Pen. Code, § 1382, subd. 2.) On April 14, 1965, he appeared in court with counsel and made motions for leave to waive a jury trial and to withdraw his plea of not guilty by reason of insanity. Both motions were granted.
On April 19, 1965, defendant, represented by counsel, was tried before the court without a jury and found guilty of [311]*311murder in the first degree. The court fixed the penalty at death.
Defendant contends:
First. That in view of his mental condition he should not have teen permitted to waive a jury trial.
Two court-appointed psychiatrists examined defendant prior to the hearing at which he waived a jury trial. One classified him “in the borderline mental defective groups,” and the other estimated him to be “of dull normal intelligence.” Defendant contends that he should therefore not have been permitted to waive a jury.
In People v. Monk, 56 Cal.2d 288, 298 [10] [14 Cal.Rptr. 633, 363 P.2d 865], we rejected the defendant’s claim that because of his lack of education and his mental state, as evidenced by psychiatrists’ reports, he was unable to understand the consequences of waiving a jury trial. The reports showed that he was emotionally disordered but sane, that his native intelligence was adequate, and that he had been in school to perhaps the tenth grade.
In the present ease both psychiatrists concluded that defendant was sane. One of them reported that on direct examination defendant was found to be in contact with his environment, that he could think quickly and easily, that there was no blocking of thought, and that on the Bellvue Verbal test he scored highest in comprehension, arithmetical reasoning, and retention. The other reported that his responses were coherent and relevant and without evidence of any disorder in his thought processes. Defendant started school at five or six years of age and quit at sixteen in the ninth grade. Accordingly, our holding in the Monk ease is controlling here.
Although the trial court in a criminal case is not required to explain to a defendant the nature and consequences of his action in waiving a jury trial where he is, as in the case at bar, represented by counsel and fails to show that either he or his counsel has been misled as to the result which might occur from his waiving a jury trial (People v. Golston, 58 Cal.2d 535, 538-539 [3] [25 Cal.Rptr. 83, 375 P.2d 51] ; People v. Langdon, 52 Cal.2d 425, 432 [2] [341 P.2d 303]), the record shows that the trial court nevertheless went to great lengths to explain the nature and consequences of such a waiver. In addition, defendant’s attorney in several instances paraphrased the court’s statement to present the matter in even simpler language.
[312]*312The judge asked defendant numerous times if he understood the explanations given to him, and defendant repeatedly replied that he did and also acknowledged that his attorney had fully explained them to him before the hearing at which he waived a jury trial.
The excerpt from the reporter’s transcript quoted in the footnote1 shows that the matter was presented in such clear and concise language that even one “in the borderline mental defective groups” or one “of dull normal intelligence” must be presumed to have understood what his rights were [313]*313when he gave as clear an indication of comprehension as defendant did.
Under the circumstances, the trial court properly accepted defendant’s waiver.
Second. That the trial court’s finding of premeditated murder was erroneous in view of the evidence of defendant’s mental condition.
[314]*314This contention is likewise without merit. The first degree murder conviction is warranted on the theory that the homicide was committed during the perpetration of a robbery. The evidence leaves no doubt that defendant robbed the victim and killed him in the perpetration of the robbery.
Under the felony-murder rule of section 189 of the Penal Code, a killing committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under section 288 is murder of the first degree. This is true whether the killing is wilful, deliberate, and premeditated or merely accidental and whether or not the killing is planned as a part of the commission of the robbery. (People v. Cheary, 48 Cal.2d 301, 313 [13] [309 P.2d 431] ; People v. Morlock, 46 Cal.2d 141, 146 [6] [292 P.2d 897].)
[315]*315Even independent of the felony-murder rule, however, the first degree murder conviction finds adequate support in the theory that defendant committed a deliberate and premeditated killing.
As stated in People v. Cartier, 54 Cal.2d 300, 305-306 [2] [5 Cal.Rptr. 573, 353 P.2d 53] : “The necessary elements of deliberation and premeditation may be inferred from proof of such facts and circumstances as will furnish a reasonable foundation for such an inference, and where the evidence is not in law insufficient, the matter is exclusively within the province of the trier of fact to determine.” (See also People v. Hillery, 62 Cal.2d 692, 703 [7] [44 Cal.Rptr. 30, 401 P.2d 382]; People v. Robillard, 55 Cal.2d 88, 95 [5] [10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086].)
Evidence of the circumstances at the time of the killing, as well as the circumstances before and after the killing, is competent to show deliberation and premeditation. (People v. Sears, 62 Cal.2d 737, 743 [6] [44 Cal.Rptr. 330, 401 P.2d 938];
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McCOMB, J.
This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment, after trial before the court without a jury, finding defendant guilty of murder in the first degree and imposing the death penalty.
Facts: Early in the morning on Sunday, October 25, 1964, defendant took his .22 caliber rifle, left his apartment, and drove to a service station in Modesto operated by John Arthur Inman. He bought a dollar’s worth of gasoline and a quart of oil. He then asked for a package of cigarettes, and when Inman went back into the living area of the station to get the cigarettes, defendant picked up his rifle, followed Inman inside, and said, “This is a stick-up, I want to get some money.” Turning around, Inman replied, “Nobody is going to get me,” and moved toward defendant, reaching for the rifle.
Defendant started firing at Inman. He fired six shells in all, and when Inman continued to advance toward him, defendant hit him with the rifle and knocked him to the floor unconscious. He poured a pan of gasoline over Inman’s outstretched body, took the money from the cash register, struck a match to the gasoline-soaked body, and fled.
On February 11, 1965, defendant entered a plea of not guilty and not guilty by reason of insanity to the murder charge and thereafter waived the 60-day time limitation. (Pen. Code, § 1382, subd. 2.) On April 14, 1965, he appeared in court with counsel and made motions for leave to waive a jury trial and to withdraw his plea of not guilty by reason of insanity. Both motions were granted.
On April 19, 1965, defendant, represented by counsel, was tried before the court without a jury and found guilty of [311]*311murder in the first degree. The court fixed the penalty at death.
Defendant contends:
First. That in view of his mental condition he should not have teen permitted to waive a jury trial.
Two court-appointed psychiatrists examined defendant prior to the hearing at which he waived a jury trial. One classified him “in the borderline mental defective groups,” and the other estimated him to be “of dull normal intelligence.” Defendant contends that he should therefore not have been permitted to waive a jury.
In People v. Monk, 56 Cal.2d 288, 298 [10] [14 Cal.Rptr. 633, 363 P.2d 865], we rejected the defendant’s claim that because of his lack of education and his mental state, as evidenced by psychiatrists’ reports, he was unable to understand the consequences of waiving a jury trial. The reports showed that he was emotionally disordered but sane, that his native intelligence was adequate, and that he had been in school to perhaps the tenth grade.
In the present ease both psychiatrists concluded that defendant was sane. One of them reported that on direct examination defendant was found to be in contact with his environment, that he could think quickly and easily, that there was no blocking of thought, and that on the Bellvue Verbal test he scored highest in comprehension, arithmetical reasoning, and retention. The other reported that his responses were coherent and relevant and without evidence of any disorder in his thought processes. Defendant started school at five or six years of age and quit at sixteen in the ninth grade. Accordingly, our holding in the Monk ease is controlling here.
Although the trial court in a criminal case is not required to explain to a defendant the nature and consequences of his action in waiving a jury trial where he is, as in the case at bar, represented by counsel and fails to show that either he or his counsel has been misled as to the result which might occur from his waiving a jury trial (People v. Golston, 58 Cal.2d 535, 538-539 [3] [25 Cal.Rptr. 83, 375 P.2d 51] ; People v. Langdon, 52 Cal.2d 425, 432 [2] [341 P.2d 303]), the record shows that the trial court nevertheless went to great lengths to explain the nature and consequences of such a waiver. In addition, defendant’s attorney in several instances paraphrased the court’s statement to present the matter in even simpler language.
[312]*312The judge asked defendant numerous times if he understood the explanations given to him, and defendant repeatedly replied that he did and also acknowledged that his attorney had fully explained them to him before the hearing at which he waived a jury trial.
The excerpt from the reporter’s transcript quoted in the footnote1 shows that the matter was presented in such clear and concise language that even one “in the borderline mental defective groups” or one “of dull normal intelligence” must be presumed to have understood what his rights were [313]*313when he gave as clear an indication of comprehension as defendant did.
Under the circumstances, the trial court properly accepted defendant’s waiver.
Second. That the trial court’s finding of premeditated murder was erroneous in view of the evidence of defendant’s mental condition.
[314]*314This contention is likewise without merit. The first degree murder conviction is warranted on the theory that the homicide was committed during the perpetration of a robbery. The evidence leaves no doubt that defendant robbed the victim and killed him in the perpetration of the robbery.
Under the felony-murder rule of section 189 of the Penal Code, a killing committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under section 288 is murder of the first degree. This is true whether the killing is wilful, deliberate, and premeditated or merely accidental and whether or not the killing is planned as a part of the commission of the robbery. (People v. Cheary, 48 Cal.2d 301, 313 [13] [309 P.2d 431] ; People v. Morlock, 46 Cal.2d 141, 146 [6] [292 P.2d 897].)
[315]*315Even independent of the felony-murder rule, however, the first degree murder conviction finds adequate support in the theory that defendant committed a deliberate and premeditated killing.
As stated in People v. Cartier, 54 Cal.2d 300, 305-306 [2] [5 Cal.Rptr. 573, 353 P.2d 53] : “The necessary elements of deliberation and premeditation may be inferred from proof of such facts and circumstances as will furnish a reasonable foundation for such an inference, and where the evidence is not in law insufficient, the matter is exclusively within the province of the trier of fact to determine.” (See also People v. Hillery, 62 Cal.2d 692, 703 [7] [44 Cal.Rptr. 30, 401 P.2d 382]; People v. Robillard, 55 Cal.2d 88, 95 [5] [10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086].)
Evidence of the circumstances at the time of the killing, as well as the circumstances before and after the killing, is competent to show deliberation and premeditation. (People v. Sears, 62 Cal.2d 737, 743 [6] [44 Cal.Rptr. 330, 401 P.2d 938]; People v. Caritativo, 46 Cal.2d 68, 72 [4] [292 P.2d 513].)
The manner and means employed to accomplish the killing are also important considerations in determining the degree of murder. (People v. Guldbrandsen, 35 Cal.2d 514, 520 [3] [218 P.2d 977] ; People v. Steward, 156 Cal.App.2d 177, 184 [7] [318 P.2d 806].)
The record shows that defendant coldly, dispassionately, and without mercy murdered his victim. As herein-above indicated, defendant left his apartment with his newly purchased .22 caliber automatic rifle and went to the service station operated by the victim at a time when other customers were unlikely to be there. He purchased a dollar’s worth of gasoline. The victim chatted with defendant and asked him how his children were. After the gasoline was put in the car, defendant asked for some cigarettes. When the victim went inside to obtain a package, defendant reached inside the car, took his rifle from the floorboards in the back of the car, and followed him. Once inside, he told the victim he was going to [316]*316rob him, and when the victim turned, defendant started shooting. He shot all six shells, four bullets striking the victim. When the victim did not fall and reached for the rifle, defendant struck him with it. The victim then slumped to the floor, and defendant poured gasoline over him, took the contents of the cash register, lit the gasoline on the victim’s body, and fled.
There is no merit in defendant’s argument that in view of his mental condition the doctrine of “diminished responsibility” should be a factor and that thus the evidence is insufficient to show deliberation and premeditation.
A claim of diminished responsibility is defensive matter and must be raised by the defendant in the trial on the issue of his guilt. (See People v. Henderson, 60 Cal.2d 482, 490-491 [5, 6] [35 Cal.Rptr. 77, 386 P.2d 677].) In the present case, no evidence entitling defendant to rely on such defense was introduced during the guilt phase. The reports of the medical experts apparently relied on by defendant were introduced during the penalty phase. Accordingly, the doctrine is inapplicable here.
Even assuming, however, that the medical reports were introduced during the guilt phase, they would not support defendant’s contention.2 Such reports and the reasonable infer[317]*317enees to be drawn therefrom support the conclusion that defendant possessed sufficient mental capacity to commit a deliberate and premeditated murder and, accordingly, would not entitle him to rely on the doctrine of diminished responsibility.
Third. That Ms statements were improperly received, in evidence.
The record shows that while defendant was in custody in Bakersfield on another charge, Sergeant Hall, of the Stanislaus County sheriff’s office, went to the Kern County jail to question him about his involvement in the killing of Mr. In-man.
Before questioning defendant, Sergeant Hall told him that he had a right to an attorney and did not have to make any statement to the police if he did not desire to do so, and defendant said, ‘ ‘ I know about that. ’ ’
Defendant was then taken to a small interrogation room, where Lieutenant Kilroy was sitting. As Sergeant Hall and defendant entered the room, Sergeant Hall told the lieutenant that he had advised defendant of his rights and that defendant had stated he knew about them. Lieutenant Kilroy said to defendant, “Ton want to remember this, Leo, as we go along, ’ ’ and defendant nodded in an affirmative manner.
The interview with defendant commenced about 2:10 p.m., and he was questioned until 3 o’clock, at which time a 15-minute recess was taken when defendant indicated he wanted a drink and wished to use the restroom. During the questioning, defendant denied any involvement in the crime.
When interrogation was resumed at 3:15, defendant said he would like to confer with an attorney before he made any statement. He was asked if he planned, after being returned to Modesto, to obtain a private attorney or to utilize the services of the public defender, and he said he would probably utilize the services of the public defender. He was asked if he had a particular attorney in Kern County he wanted to call or have the officers call, and he said that he did not have an attorney and did not know any attorney to contact.
There was no refusal by the officers to call an attorney, and Sergeant Hall testified that defendant was not prohibited from contacting an attorney and was not told no attorney [318]*318would be contacted for him until after he had talked with the officers.
The officers questioned defendant until approximately 4:10 p.m., during which time defendant voluntarily talked with the officers but made no admissions or incriminating statements.
As the interview terminated, defendant stated that he would like to return to his cell, so that he could think it over, and he requested that the officers obtain for him, from his property in the Kern County jail, pictures of his children. This was done.
Almost three hours later, defendant was again brought to the interrogation room. At that time he said he wanted to talk with his mother before making a statement. The officers said it should be his decision and that his mother could not make the decision for him. They used a similar argument when he said he would like to talk with his wife and his father.
Thereafter, questioning was resumed, and during this interview defendant eventually confessed that he had robbed and killed Mr. Inman.
Defendant was returned to Modesto the following day. On the way, he voluntarily made another confession to the officers transporting him.
In Modesto, after conferring with his mother for about an hour, defendant made a lengthy statement, which was tape recorded. At that time the following proceedings occurred: “Q. [By Sergeant Hall] Now, Leo, as I told you down in Bakersfield about your rights to an attorney and statement and such as that, you remember my telling you that when we came down the hallway there? A. Yes, sir. Q. All right. And you understand that you have these rights ? A. Yes, sir. ’ ’
Defendant thereafter proceeded to make his statement, with no further request for an attorney.
The United States Supreme Court recently held, in Miranda v. Arizona, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], that before an accused is subjected to interrogation, he must be informed in clear and unequivocal terms of his right to remain silent; that the warning must be accompanied by an explanation that anything said can be used against him in court; that he must also be clearly informed that he has the right to consult with an attorney and to have the attorney with him during interrogation and that if he is indigent, an attorney will be appointed to represent him if [319]*319desired; that if the accused indicates in any manner, either prior to or during questioning, that he wants to remain silent, the interrogation must cease; and that if he states that he wishes an attorney, the interrogation must cease until an attorney is present.
Defendant was advised that he had a right to an attorney and did not have to make any statement to the police if he did not want to do so, but it is clear that the warning given him fell short of that now required by the Miranda ease and that under the rule established in that ease defendant’s interrogation should have ceased when he said he wanted to talk with an attorney before giving a statement.
Although defendant’s conviction was not final before the decision in Escobedo v. Illinois, 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758], his trial began before the decision in Miranda. Accordingly, he is entitled to the benefit of the rules laid down in Escobedo, but is not entitled to the benefit of the holding in Miranda. (People v. Rollins, 65 Cal.2d 681 [56 Cal.Rptr. 293, 423 P.2d 221].)
Under the Escobedo rules, it was not necessary that the warning to defendant include advice that he was entitled to have an attorney present at his interrogation and that if he was indigent, an attorney would be appointed for him if desired. (Escobedo v. Illinois, supra, 378 U.S. 478; People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361].)
Likewise, defendant is not entitled to the benefit of the rule that once an accused states he wishes an attorney, interrogation must cease until an attorney is present. However, he requested an attorney while he was in custody and while the police were carrying out a process of interrogations that lent itself to eliciting incriminating statements, and therefore under Escobedo he was entitled to have an attorney present at the interrogation (378 U.S. at pp. 484-487) unless he had waived the right (p. 490, fn. 14). We must therefore determine whether a waiver took place.
Defendant is also entitled to raise generally the question of the voluntariness of his confession. (Johnson v. New Jersey, 384 U.S. 719, 730 [16 L.Ed.2d 882, 86 S.Ct. 1772].)
We have held that the denial of the right to an attorney by evasion or neglect of the suspect’s request for an attorney is just as much a constitutional violation as a denial by explicit rejection. (People v. Anderson, 63 Cal.2d 351, 361-[320]*320362 [9] [46 Cal.Rptr. 763, 406 P.2d 43]; see also People v. Luker, 63 Cal.2d 464, 474 [47 Cal.Rptr. 209, 407 P.2d 9].)
In the present ease, however, the officers did not deny defendant’s request by explicit rejection or by evasion or neglect. On the contrary, the record shows that they asked him if there was any attorney in Kern County he wanted to call or have them call for him, and he told them he did not know any attorney to contact. They then continued to question defendant for an additional hour, during which time he freely gave his answers to their questions, maintaining his innocence throughout.
Defendant was then, at his request, allowed to return to his cell to think it over, and he was not asked any further questions for a period of almost three hours. This was ample time for defendant to have "thought it over.” Under the circumstances, by subsequently making a confession without having again requested an attorney, he must be deemed to have waived his right to an attorney and voluntarily confessed.3
[321]*321Fourth. That evidence of statements made by him to a fellow inmate at the jail was improperly admitted.
Wayne Lynn Grider testified that he was confined in the Stanislaus County jail at the time defendant was held there; [322]*322that during such time defendant approached him in the exercise area and asked him what he thought of defendant’s chances of “beating” his case; that he told defendant he did not even know what defendant was in for; and that defendant proceeded to tell him. He then testified as to certain details related to him by defendant.
Mr. Grider testified that no one had suggested that he talk with defendant and that the conversation was started by defendant himself. He said that a representative from the district attorney’s office who had seen him talking with defendant asked him if he knew defendant or anything about his case and that he then told him of the conversation.
Defendant contends that the evidence of his statements to Mr. Grider was inadmissible, because the confessions he made to the police were inadmissible due to his having been deprived of counsel at the critical pretrial stage of his case, and his statements to Mr. Grider were made in a continuing pattern of “talking” about the crime, initiated by the police interrogation.
In the first place, as pointed out above, defendant had waived his right to counsel before he confessed to the police, and his confessions to the police were therefore admissible.
Even assuming, however, that such confessions were inadmissible, defendant’s statements to Mr. Grider were made [323]*323after the court had appointed counsel for him and under circumstances entirely free of the compelling influence sometimes present in a police interrogation. As a result, it is clear that the statements were not given in the atmosphere condemned by Escobedo and Miranda. Accordingly, evidence of the statements was properly admitted.
Fifth. That the trial court committed prejudicial error during the penalty trial.
Defendant contends that the trial court abused its discretion in imposing the death penalty. In support of this proposition he argues that the finding of premeditation, on which he alleges imposition of the death penalty was based, was erroneous. This argument, it has been demonstrated above, is without merit.
Defendant further argues that the court gave no indication that any consideration was given to, or weight placed upon, his mental condition. This argument is likewise without merit.
Although, as stated above, there is no basis in the record for applying the doctrine of “diminished responsibility,” it is clear that the trial court carefully considered the evidence of defendant’s mental condition and properly exercised its discretion.
In giving its decision, the court stated: “The Court has endeavored to carefully consider all the evidence and the arguments presented as to what penalty should be imposed upon the Defendant for the crime of murder in the first degree. . . .
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“. . . The Court is not unmindful of the apparent lack of high intelligence, or unfortunate economic circumstances of this Defendant. But the law of this land does not authorize or condone the commission of such a crime as here involved because of economic or social background. ’ ’
Also, during proceedings on the motion for a new trial the judge said, “I have thought about the arguments which you [defendant’s counsel] made this morning”; and the record shows that during the morning proceedings defendant’s counsel argued at length that in view of defendant’s mental condition there was no evidence to sustain a finding of premeditation and the death penalty should not be imposed.4
[324]*324The judge also pointed out during the proceedings on the motion for a new trial that the killing had occurred during the course of an armed robbery, and said: “And I want to make it clear also that this Court did consider the circumstances of this defendant, the circumstances under which he grew up, and the thing is this, that this is not a circumstance that is just peculiar to this defendant. There are lots of people who have lived in rather poor background and have grown up and become good, solid citizens in this community, in spite of unfortunate economic circumstances. I just can’t help but feel under the circumstances here that as long as we have the death penalty in this state, if it is to mean anything, and if the will of the people and the majority of the people who want it, want to continue to have it, and until some other extreme penalty or method is devised by the people of this [325]*325state, that this Court simply has no alternative but to allow the penalty to stand under the circumstances.
“I want to say now, if there were any questions that the Court were to sit here and say, ‘Pine, it is great to be merciful, it is great to be considerate of other people,’ and all of this, there must come a time, at least under the facts of this particular case in which this Court cannot in my judgment abdicate what I think is my duty as a trial judge in this case, and the facts and evidence of this case, and say that I can in the name of mercy or in kindness modify this particular sentence. ’ ’
The judge's statements clearly show that he conscientiously selected the penalty in his capacity as the officer of the People charged with that power and duty. It is clear that he properly exercised his duty and discretion as the trier of fact. (See People v. Lindsey, 56 Cal.2d 324, 328 [2] [14 Cal.Rptr. 678, 363 P.2d 910] ; People v. Cartier, supra, 54 Cal.2d 300, 311-313 [8] [5 Cal.Rptr. 573, 353 P.2d 53].)
[326]*326Sixth. That the trial court committed prejudicial error in considering the pardoning power of the Governor and the reviewing function of the Supreme Court when imposing the death penalty.
This contention is likewise devoid of merit. Defendant argues that the court committed prejudicial error by placing great weight on the pardoning power of the Governor and the reviewing function of this court.
Initially, the record fails to show that the trial judge placed “great weight” on the pardoning power of the Governor and the automatic review by this court.5 At most, he was acknowledging the fact that man is fallible and that even as careful as he was in applying the law, he was capable of making an error.
Furthermore, People v. Morse, 60 Cal.2d 631 [36 Cal.Rptr. 201, 388 P.2d 33], is inapplicable to the present case. This court there held that in the penalty phase of a first degree murder trial it was reversible error to give an instruction, and to allow evidence and argument, which permitted the jury to consider the possibility that the Adult Authority might at some future date grant a parole to the defendant if he were given a life sentence, and that whether or not a prisoner should be granted parole is a matter within the expert judgment of the Adult Authority and is not within the jury’s province.
In the present case there was no jury, and there was no improper instruction or argument concerning parole or otherwise.
In the Morse case this court said: “Both statements tend to diminish the jury’s sense of obligation; they both infuse into the issue factors that do not belong there. . . .
“We have no doubt that these errors in directing the attention of the jury to the roles of Adult Authority, judge and Governor, by means of argument, evidence and instruction in the instant case, prejudicially influenced the jury.” (Italics added.) (60 Cal.2d at p. 652.)
It would be unreasonable and unrealistic to apply the same reasoning to the trial court. The judge by reason of his position would be aware of the very things that this court has held tend to diminish the jury’s sense of obligation.
[327]*327The court did not commit prejudicial error in the penalty-trial.
Seventh. That this court should exercise its judgment as to the choice of punishment.
There is no merit to this contention. This court has uniformly rejected requests to reduce the penalty from death to life imprisonment. No error contributed to the choice of penalty, and we have repeatedly held that the trier of fact has the sole responsibility and absolute discretion to select the penalty for first degree murder. (People v. Mitchell, 63 Cal.2d 805, 821 [48 Cal.Rptr. 371, 409 P.2d 211]; People v. Howk, 56 Cal.2d 687, 699-701 [3-5] [16 Cal.Rptr. 370, 365 P.2d 426] and cases there cited.)
The judgment is affirmed.
Traynor, C. J., Mosk, J., -Burke, J., and Sullivan, J., concurred.