A jury found defendant guilty of murder of the first degree and fixed the penalty at death. This appeal is automatic. (Pen. Code, § 1239, subd. (b).) In a previous trial for the same offense defendant waived trial by jury and pleaded guilty to murder, which the court found to be of the first degree. The court sentenced him to life imprisonment. On defendant’s appeal the District Court of Appeal reversed the judgment and remanded the ease for a new trial pursuant to a stipulation of defendant and counsel for the respective parties on the ground that defendant was improperly allowed to withdraw his plea of not guilty and to enter a plea of guilty after the court had ordered defendant’s counsel discharged on defendant’s motion. (Pen. Code, § 1018; People v. Ballentine, 39 Cal.2d 193, 196 [246 P.2d 35].)
Defendant admitted in open court that he killed the deceased, Mrs. Joyce Lovett, in a motel in Pinole, and that he inflicted the lacerations and contusions found on her body. Defendant had previously been casually acquainted with the deceased and met her in a bar in San J ose on the evening of July 10, 1961. They had a few drinks and the deceased agreed to accompany defendant on a trip to Lake Tahoe. They left the bar about closing time and drove to a motel in El Cerrito where defendant registered them as Mr. and Mrs, *485R. Henderson. The following day they went to two or three bars in El Cerrito and San Pablo where each of them drank several beers. In the afternoon they started toward Sacramento but were forced to stop in Pinole because defendant’s automobile was overheated. They ate and had several more beers in Pinole. Defendant inquired at a bar about motel accomodations. A customer drove them to a motel on the edge of town where defendant again registered them as Mr. and Mrs. Henderson. They arrived at the motel about 4 o’clock in the afternoon. About half an hour later defendant killed and mutilated the deceased. At 10 o’clock that evening a motel employee gave defendant a ride downtown, and defendant drove his automobile back to the motel. Later that night he put the deceased’s body in his car and after driving around for several hours put the body along the highway. Defendant then drove to his apartment in Santa Clara where he stayed the remainder of the night. The following day he confessed the killing to his half-sister and showed her the deceased’s rings. After seeing a lawyer in San Jose, he agreed to turn himself in and at about 8 p.m. surrendered to the Alameda County Sheriff.
The day after the killing Dr. McNie performed an autopsy on the body of the deceased. He testified that death was caused by asphyxiation from strangulation associated with multiple blunt injuries. Dr. McNie found multiple contusions on deceased’s head, neck, shoulders, arms, and legs. He found multiple small abrasions on the left breast, multiple scratches measuring up to two inches in length on the skin of the lower abdomen, a three-eights inch by one-quarter inch puncture of the skin over the pubis, and multiple wedge-shaped lacerations of the skin and mucosa of the perineum radiating outward from the rectum and vagina, the largest of which was two by one inches extending from the vagina across the urethra to the clitoris. There was a three-quarter inch laceration of the rectovaginal septum. There were six to eight lacerations in the rectal area and the rectum was dilated to 2-1/2 inches in diameter and contained deceased’s wadded panties. It was Dr. McNie’s opinion, based on the finding of hemorrhage into the tissues underlying the injuries, that, except for the perineal area, the injuries had been inflicted before death. Dr. McNie was not asked whether in his opinion the injuries to the perineal area occurred before or after death. He testified, however, that there were areas of hemorrhage into the underlying supporting tissues of the *486rectum and vagina and into the mucosa at the edges of the lacerations. There was no evidence of sperm in the vaginal tract. A blood test disclosed .19 per cent alcohol in the deceased’s bloodstream at the time of death.
Based on the condition of the hody, the People requested and the trial court gave instructions defining murder of the first degree when committed by means of torture and when committed in the perpetration or attempt to perpetrate mayhem. The evidence of defendant’s possession of the deceased’s rings, which the physical evidence suggested had been removed before death, and his possession of the deceased’s purse, support the instruction regarding a killing in the perpetration or attempt to perpetrate robbery. The circumstances of the killing and the existence of fresh scratches on defendant’s face when he was arrested support the instruction that the deceased may have been killed during the perpetration or attempt to perpetrate rape.
The foregoing evidence, together with evidence tending to rebut defendant’s defense of lack of malicious intent and premeditation, was the basis for the People’s theory that the killing was murder of the first degree because it was willful, deliberate, and premeditated. In this regard, the man who drove defendant and the deceased from the bar in Pinole to the motel testified that defendant did not appear to be intoxicated at that time. The manager of the motel testified that when defendant registered “he had been drinking but he wasn’t inebriated.” Both of these witnesses were also of the opinion that the deceased was not intoxicated, although the blood test disclosed that her bloodstream contained .19 per cent alcohol. To negative lack of criminal intent the People also offered the testimony of Mrs. Pauline Perez that a month before the killing defendant had committed a sexual attack upon her under circumstances similar to those surrounding the homicide.
Mrs. Perez testified that she met defendant in the same bar in San Jose in which he later met the deceased and agreed to have defendant take her home. She testified that defendant did not take her home and that when she attempted to get out of his car, he struck her and threatened to kill her if she tried it again. When they stopped, defendant drew a knife and attempted to rape her and forced her to commit an unnatural act and to submit to the commission of a similar act by him. She testified that defendant then inserted a sap into her vagina and bit her arms, legs, breasts, and stomach. He *487threatened to kill her so that she could not report the incident to the police, but relented when she begged for her life. When defendant allowed her to leave the ear, he kept her underclothes and purse. Mrs. Perez was taken to a hospital and the police were notified. Photographs of Mrs. Perez’s injuries were introduced by the People to explain and corroborate her testimony. Defendant admitted on the stand that he performed the acts testified to by Mrs. Perez, but denied that he had a knife or that he threatened to kill her. He also denied that he threatened to kill her because she had informed on him.
Defendant does not contend that the evidence is insufficient to support a conviction of first degree murder under any or all of the theories advanced by the People. His defense is that he had no intent to harm the deceased and that he had no control over his actions because of his intoxication and mental illness not amounting to legal insanity. He testified that the mutilation of the deceased occurred after he had killed her by strangulation. He could not recall when or how he received the scratches on his face and denied that he attempted to rape the deceased or to force her to engage in any unnatural act. He testified that he took the rings from her finger after he had put the body along the highway, but he did not know why he had taken them. He did not explain his possession of the deceased’s purse.
In support of his defense of intoxication, defendant testified that he drank 13 to 15 beers at various bars on the day of the killing and that he was drunk when he and the deceased arrived at the motel. He testified that after cheeking into the motel the deceased took a shower and as she was drying herself he walked into the bathroom, picked her up and carried her into the bedroom. He “laid her down on the bed, and then .. . started to make love to her and then this strange thing come” that he described as “like watching... yourself do something and yet unable to intercede or to stop whatever is happening.... [Y] ou seem to be paralyzed and I could see everything was going on and, to put it bluntly, just like a dream.” Defendant testified that he strangled the deceased with his hands but that before killing her he did not hit or cut her or do any other violence to her body. He testified that after he had killed her he“woke” or “came out” and realized what he had done. He carried her body into the shower and attempted to revive her with cold water. “And then I says, ‘If she’s as dead as she appears, who will believe *488me?’ So that’s when I got the crazy notion and did what the other I did.” Defendant testified that he went into the bathroom where the body was lying in a corner of the shower stall and cut the deceased’s body with a beer can opener. Defendant then “passed out” on the bed. When he awoke, he dressed the body and left it leaning against the wall in the bathroom. About midnight he carried the body to his car and disposed of it along the highway.
This version of the killing and mutilation was substantially the same as that told to the various psychiatrists who testified at the trial. Defendant’s half-sister, to whom defendant confessed the crime before surrendering to the sheriff, testified that he told her that he “got a pain... down here in the lower part, and it hurt, you know. Got a lot of pain and it made him black out like, and when he came to, he had a can opener in his hand and he went in [to the bathroom] ... and he looked at her and he realized he strangled her and cut her up from the bottom part with the can opener to the belly button.... [A]nd then he told me how he did it. He said that he went into the bathroom and he says he don’t remember doing it, but he knows he did it. He said that he went into the bathroom and strangled her and then he—he didn’t remember how he cut her up. He just cut her up. That’s all. And then when he woke up on the bed, the pain was gone away, he said. That he woke up and he found the can opener in his hand....”
Two psychiatrists testified that because of defendant’s mental state he did not premeditate before the killing. Dr. Wilcox’s report, which was admitted into evidence, stated that “I feel that this man is a borderline schizophrenic.... Despite the appearance of fairly good integration in most areas of the personality, there are many evidences of psychotic thinking. It seems to me that the murder grew directly out of his illness. The murder appeared to be an expression of his hate for women and society; also his hate for himself.. .. I feel that Mr. Henderson is psychotic and that he also is legally insane. I feel that he was insane at the time of the murder.” Although Dr. Wilcox was unsure whether defendant could premeditate at the time of the killing, it was his opinion that defendant did not premeditate. Dr. Adams was of the opinion that at the time of the killing defendant was not capable of killing the deceased with premeditation. He testified that in light of defendant’s background he was suffering from a “severe psychologic problem... not in a *489psychotic or insane sense, but rather in the sense of a flood of emotion which has a dynamic interpretation in the background, I am sure, connected somewhere with his mother, but in any event, leading to an emotional upheaval and always in a sexual setting over which he did not have voluntary control. Therefore, I say that at the time this happened, he was again, in my opinion, a victim of this flood of emotion to the extent that he was unable to utilize normal volitional control over his actions. ’ ’
On cross-examination, both Dr. Wilcox and Dr. Adams stated that they based their opinions on what defendant had told them and that if the actual facts differed from defendant’s statement of them their opinions would be different. Dr. Wilcox stated that he would question his conclusion that defendant did not premeditate if the sequence of the killing and the mutilation were reversed, as the testimony of the autopsy surgeon suggested. In response to a hypothetical question he stated that defendant was able to premeditate during the Perez incident.
In rebuttal, the People introduced the testimony of three psychiatrists who had examined defendant and concluded that he was not suffering from any mental defect that would preclude his acting with malice aforethought and premeditation when he killed the deceased. Dr. Eapaport testified that “at the time of this alleged offense, he was conscious and aware of what he was doing.... He had no mental illness ... that would have precluded him from forming intent or engage in premeditation.” Dr. Argens found “no evidence of mental illness as such would preclude [defendant’s] ... normal actions or ordinary actions.... [He found] no evidence at all of psychosis.” Dr. Port, who examined defendant on the day after the killing, testified that at the time of the homicide defendant “was conscious and was not suffering from any form of mental illness or emotional disturbance that would have interfered with his capacity to premeditate.”
Defendant contends that the trial court erred in failing on its own motion to instruct the jury on the legal significance of the evidence of defendant’s mental illness and in refusing to give defendant’s proffered instruction on manslaughter.
“ It would seem elementary that a plea of not guilty to a charge of murder puts in issue the existence of the particular mental states which are essential elements of the *490two degrees of murder and of manslaughter.... Accordingly, it appears only fair and reasonable that defendant should be allowed to show that in fact, subjectively, he did not possess the mental state or states in issue.” (People v. Gorshen, 51 Cal.2d 716, 733 [336 P.2d 492]; People v. Wells, 33 Cal.2d 330, 343-357 [202 P.2d 53].)
“ ‘ It is elementary that the court should instruct the jury upon every material question upon which there is any evidence deserving of any consideration whatever. . . . The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon.... That is a question within the exclusive province of the jury. However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.’ ” (People v. Carmen, 36 Cal.2d 768, 773 [228 P.2d 281].)
The People do not dispute these settled propositions of law that under a general plea to the charge of murder, evidence is admissible tending to establish a defense negating the specific mental states essential to the crime and that when such evidence is received, the defendant is entitled to an instruction apprising the jury of its significance. The People contend, however, that the trial court is not required to give such an instruction on its own motion. They argue that “The eases which have found a duty on the court to give sua sponte instructions have generally involved situations where the failure to give the instructions had the effect of removing from the jury a significant issue in the trial and thus failing to give to the defendant an opportunity... to obtain a determination by the jury of the particular issue.” We think that this is such a case.
It can no longer be doubted that the defense of mental illness not amounting to legal insanity is a “significant issue” in any ease in which it is raised by substantial evidence. Its purpose and effect are to ameliorate the law governing criminal responsibility prescribed by the M’Naughton rule. (See Lindman & McIntyre, The Mentally Disabled and the Law (1961) 355-356.) Under that rule a defendant is not insane in the eyes of the law if at the time of the crime he knew what he was doing and that it was wrong. Under the Wells-Gorshen rule of diminished responsibility even though a defendant be legally sane according to the M’Naughton test, if he was suffering from a mental illness that prevented his acting with malice aforethought or with premeditation and deliberation, he cannot be convicted of mur*491der of the first degree. This policy is now firmly established in the law of California (People v. Gorshen, supra; People v. Baker, 42 Cal.2d 550, 569-571 [268 P.2d 705]; People v. Sanchez, 35 Cal.2d 522, 526-529 [219 P.2d 9]; People v. Wells, supra; People v. Harris, 29 Cal. 678, 683-684) and where, as here, substantial evidence sufficient to inform the court that defendant is relying upon the defense of diminished responsibility is received, it must on its own motion instruct the jury as to the legal significance of such evidence, for such an instruction is “necessary for the jury to be fully and fairly charged upon the relevant law.” (People v. Jackson, 59 Cal.2d 375, 380 [29 Cal.Rptr. 505, 379 P.2d 937], and cases cited therein.)
The People contend that the failure to instruct on diminished responsibility was not prejudicial because the intent and state of mind of defendant were fully developed by argument of counsel and were adequately covered by the instructions given. It is true that from the opening statement of counsel for the defense the issue of defendant’s mental state at the time of the homicide was in issue. Defense counsel stated that he expected the evidence would show “exactly what the District Attorney said, that this was a sadistic murder.” He added that he expected to prove from medical experts “that Mr. Henderson was suffering from such a psychosis or ... illness that he ... did not have the mind or the capability of forming a malicious or a premeditated [intent] ____” During his argument to the jury, the prosecutor referred to the psychiatric testimony and stated “this really is the defense of the defendant here: his inability to premeditate, his lack of intent.” In closing argument, defense counsel urged the jury to “examine carefully what the psychiatrists have told you and what they have testified to, and I think... that you will agree with me that this was a heinous crime. I don’t argue that.... [B]ut I say to you it wasn’t premeditated.” He argued “in closing... the only issue in this case is the premeditation and the intent.... I do not excuse nor condone Mr. Henderson, but I say to you he is guilty of nothing greater than murder in the second degree. . . .”
We agree that in light of such extensive argument on the issue of defendant’s responsibility he could not have been harmed by the failure to instruct on that issue if the jury was otherwise properly instructed on intent. The jury, however, was not properly instructed on that issue. It was in*492strueted that to constitute willful, deliberate, and premeditated murder the killing must be accompanied by a clear intent to take life resulting from deliberation and formed upon a preexisting reflection and not in heat of anger, and that the slayer must weigh and consider the question of killing and the reasons for and against such choice and, having in mind the consequences, decide to and commit the unlawful act causing death. These instructions were proper, hut they informed the jury only that a particular intent was necessary. How the jury should discover whether that intent existed was covered by the following instruction: “The intent or intention is manifested by the circumstances connected with the offense and the sound mind and discretion of the accused, and I further instruct you that all persons are of sound mind who are neither idiots nor lunatics nor affected with insanity to such an extent as to be unable to discern right from wrong.”
Although counsel argued and the court instructed that defendant’s intent was the crucial issue in the case, the only instruction that purported to tell the jury how to determine what that intent was told them to look to the circumstances of the offense and defendant’s “sound mind” unless they found him to be an idiot, lunatic or legally insane.
“The prejudicial nature of the instruction appears most clearly in the difficulties that it creates for the jury in the application of the rule... that evidence of a mental infirmity, not amounting to legal insanity, is admissible and should be considered by the jury on the questions of premeditation and deliberation. If the defendant has a ‘sound mind,’ that is ‘a healthy and robust mind, neither diseased nor injured,’ it necessarily follows that he would not have a mental infirmity making him incapable of premeditating or deliberating.” (People v. Baker, 42 Cal.2d 550, 569 [268 P.2d 705].)
Defendant admitted that he killed and mutilated the deceased. These were the major “circumstances connected with the offense” from which the jury was instructed it could infer defendant’s intent. His sole defense was diminished responsibility because of his “unsound” though not insane mind, and this defense was withdrawn from the jury by the court’s instruction that defendant was of sound mind if he was not an idiot, lunatic or legally insane. There could be no question of defendant’s legal insanity during the trial of his guilt or innocence since that issue was to be determined on the separate proceeding under his plea of not guilty by rea*493son of insanity, which was not withdrawn until the conclusion of the trial on the issue of guilt. Under these circumstances, defendant is “conclusively presumed to have been sane at the time the offense is alleged to have been committed. ’ ’ (Pen. Code, § 1026.) There was no evidence that defendant was a lunatic or an idiot within the ordinary meaning of those words. Based on the only criteria it was given, the jury could only have found that defendant was of “sound mind.” The effect of the instruction that defendant was of sound mind together with the failure to instruct on the significance of his defense of diminished responsibility was to withdraw from the jury all consideration of the evidence introduced in support of that defense. Such evidence, although disputed, was considerable. There was no evidence that defendant intended to kill the deceased at any time before registering at the motel, and the autopsy surgeon’s report and defendant’s testimony agree that death occurred shortly thereafter. That defendant theretofore had no premeditated intent to kill is attested to by the prosecution witnesses who testified as to the conduct of defendant and the deceased at every point between their meeting in San Jose and the motel in Pinole. Although the half hour that elapsed between the registering and the killing was sufficient for defendant to form a willful, deliberate, and premeditated intent to kill, the evidence does not compel that conclusion. Although the circumstances of the killing and the condition of the deceased’s body would warrant a conclusion that the killing was premeditated, they also suggest that the perpetrator of such a killing and mutilation was deranged. Defendant testified that he had no intention to kill the deceased and that the act was done while he was in a dream-like state. Two psychiatrists testified in corroboration of this explanation of the killing. We do not overlook the testimony of the autopsy surgeon that the mutilation occurred before the killing, and we are aware of the damaging effect of this testimony, if true, upon defendant’s defense. That testimony, however, is not without equivocation. Dr. McNie consistently responded to questions regarding the relationship of the wounds to death by stating that he “felt” that they were inflicted before death. The jury was instructed that it could disregard or give such weight as it thought warranted to expert testimony. Accordingly, it was entitled to disregard an expert’s “feeling” concerning evidence within his competence to interpret. It follows that the jury could have concluded that *494defendant was telling the truth about the sequence of events and his intent at the time they occurred. It could have concluded that defendant's experts were not discredited on the ground that their opinions were based on an erroneous view of the circumstances. If the jury so concluded, it could not have found defendant guilty of murder in the commission of mayhem or by torture. The evidence that defendant killed during the course of rape or an attempt to rape was wholly circumstantial and inconsistent with the evidence that deceased willingly accompanied defendant to the motel and willingly engaged in sexual intercourse with him during their stay in the first motel. Although defendant had deceased’s rings and purse in his possession after the killing, that was the only evidence that the deceased was killed during the course of a robbery. There is no evidence that if an intent to take her property existed, it arose before the completion of the homicide. The vice of the instruction is that even if the jury found no murder by torture or killing during the course of mayhem, rape, or robbery, it was barred from considering defendant’s sole defense of diminished responsibility by the court’s direction that defendant was of “sound mind.’’ The error was aggravated by the court’s failure to give any instruction that told the jury for what purpose they could consider the evidence of that defense.
Since defendant was deprived of the right to a jury determination of the only real issue in the case, the conviction must be reversed, for the denial of such a right itself is a miscarriage of justice within the meaning of article VI, section 4%, of the Constitution. (People v. McKay, 37 Cal.2d 792, 798 [236 P.2d 145]; People v. Sarazzawski, 27 Cal.2d 7, 11 [161 P.2d 934]; People v. Mahoney, 201 Cal. 618, 627 [258 P. 607].)
Since the judgment must be reversed, we shall consider other contentions that may arise on retrial.
Defendant’s contention that the trial court erred in admitting into evidence over objection the testimony of Mrs. Pauline Perez that defendant had attacked her sexually a month before the killing is devoid of merit. It was clearly admissible to prove, as the jury was instructed, defendant’s motive for killing the deceased and the intent with which the act was done. “It is settled in this state that except when it shows merely criminal disposition, evidence which tends logically and by reasonable inference to establish any fact material for the prosecution, or to overcome any material *495fact sought to be proved by the defense, is admissible although it may connect the accused with an offense not included in the charge. ’ ’ (People v. Woods, 35 Cal.2d 504, 509 [218 P.2d 981]; People v. Weitz, 42 Cal.2d 338, 347 [267 P.2d 295].) The evidence was relevant on the issues for which it was received. Although evidence of prior offenses carries with it the risk that its probative value may be outweighed by its possible prejudicial effect, evaluation of this risk rests in the sound discretion of the trial court. (People v. McCaughan, 49 Cal.2d 409, 421-422 [317 P.2d 974].) We find no abuse of discretion in the admission of Mrs. Perez’s testimony.
Defendant also contends that the trial court erred in admitting photographs of Mrs. Perez’s injuries, on the ground that they served solely to inflame the jury. When allegedly inflammatory photographs are presented, the trial court must determine their admissiblity in light of their probative value, other evidence on the issue, and their possible prejudice to the defendant. (People v. Love, 53 Cal.2d 843, 852 [3 Cal.Rptr. 665, 350 P.2d 705]; People v. Atchley, 53 Cal.2d 160, 168 [346 P.2d 764]; People v. Brubaker, 53 Cal.2d 37, 48 [346 P.2d 8].) We find no abuse of discretion in the admission of the photographs.
Defendant contends that the prohibition against double jeopardy precludes imposing the death sentence after reversal of the first judgment sentencing him to life imprisonment. Article I, section 13, of the California Constitution provides that “No person shall be twice put in jeopardy for the same offense----” It states a fundamental principle limiting the state’s right repeatedly to prosecute a defendant. It is not an absolute prohibition, for although jeopardy may have attached, legal necessity or the real or implied consent of the defendant permits a retrial. (Paulson v. Superior Court, 58 Cal.2d 1, 5 [22 Cal.Rptr. 649, 372 P.2d 641], and eases cited.) In the present ease, we must determine the extent to which a defendant who attacks an erroneous conviction thereby opens the door to being again placed in jeopardy.
He does not gain immunity, for by successfully attacking the judgment he at least subjects himself to a retrial that may reach the same result. (United States v. Ball, 163 U.S. 662, 672 [16 S.Ct. 1192, 41 L.Ed. 300, 303]; People v. Green, 47 Cal.2d 209, 235 [302 P.2d 307].) There is a sharp conflict in the cases, however, whether such an attack opens the door to the imposition of a more severe sentence on retrial. (See *496cases collected in 61 A.L.R.2d 1141-1216.) The question usually arises when a defendant has successfully attacked a conviction of a lesser included offense or a conviction of a lower degree of the crime charged.
Before this court’s decision in Gomez v. Superior Court, 50 Cal.2d 640 [328 P.2d 976], there was a curious distinction between a conviction of a lesser included offense and a conviction of a lesser degree of a crime divided into degrees. A conviction of a lesser included offense was deemed a final acquittal of the offense charged, which was not affected by a subsequent reversal of the conviction. (In re Hess, 45 Cal.2d 171, 176 [288 P.2d 5], and eases cited.) A conviction of the lesser degree of a crime divided into degrees was not deemed an acquittal of guilt of the higher degree, and after reversal the defendant could be convicted of the higher degree on retrial. (People v. Keefer, 65 Cal. 232, 235 [3 P. 818]; People v. McNeer, 14 Cal.App.2d 22, 30 [57 P.2d 1018].) In the Gomes case, however, we found this distinction to be logically indefensible and held that the double jeopardy clause precluded convicting a defendant of a higher degree of a crime after he had secured reversal of his conviction of the lower degree. In Green v. United States, 355 U.S. 184 [78 S.Ct. 221, 2 L.Ed.2d 199, 61 A.L.R.2d 1119], the United States Supreme Court reached the same conclusion with regard to a conviction of first degree murder after reversal of a conviction of second degree murder. In holding that a defendant is not required to elect between suffering an erroneous conviction to stand unchallenged and appealing therefrom at the cost of forfeiting a valid defense to the greater offense, we agreed with the reasoning in the Green ease, that “ ‘a defendant faced with such a “choice” takes a “desperate chance” in securing the reversal of the erroneous conviction. The law should not, and in our judgment does not, place the defendant in such an incredible dilemma. ’ ” (Gomez v. Superior Court, 50 Cal.2d 640, 651-652 [328 P.2d 976].) This reasoning applies with equal force to the present ease.
The Attorney General contends, however, that under the double jeopardy clause in the United States Constitution and the California Constitution the death penalty can be imposed on a conviction of first degree murder following reversal of a conviction for the same offense with punishment fixed at life imprisonment. (Stroud v. United States, 251 U.S. 15, 18 [40 S.Ct. 50, 64 L.Ed. 103, 110]; People v. Grill, 151 Cal. 592, 598 [91 P. 515]; see also, State v. Kneeskern, 303 Iowa 929 *497[210 N.W. 465, 473]; State v. Morgan, 145 La. 585 [82 So. 711, 719]; Mann v. State, 23 Fla. 610 [3 So. 207, 211]; Greer v. State, 62 Tenn. (3 Baxt.) 321, 323-325.) When Stroud v. United States and People v. Grill were decided, it had been held by the United States Supreme Court and by this court that a reversed conviction of a lesser degree of a crime did not preclude conviction of the higher degree on retrial. (Trono v. United States, 199 U.S. 521, 533-534 [26 S.Ct. 121, 50 L.Ed. 292, 296-297]; People v. Keefer, 65 Cal. 232, 235 [3 P. 818].) A fortiori that rule would apply to different punishments for the same crime. Since the Green and Gomez cases have now established that a reversed conviction of a lesser degree of a crime precludes conviction of a higher degree on retrial, the rationale of the Stroud and Grill cases has been vitiated. It is immaterial to the basic purpose of the constitutional provision against double jeopardy whether the Legislature divides a crime into different degrees carrying different punishments or allows the court or jury to fix different punishments for the same crime. Thus, Mr. Justice Frankfurter dissented in the Green case arguing that the Court’s decision in Stroud v. United States, supra, controlled the decision: “As a practical matter, and on any basis of human values, it is scarcely possible to distinguish a case in which the defendant is convicted of a greater offense from the one in which he is convicted of an offense that has the same name as that of which he was previously convicted but carries a significantly different punishment, namely death rather than imprisonment." (355 U.S. 184, 198 at p. 213 [2 L.Ed.2d 199, 210 at p. 219, 61 A.L.R.2d 1119,1130 at p. 1138].) Agreeing with Mr. Justice Frankfurter’s reasoning, we overrule People v. Grill, 151 Cal.592 [91 P. 515], A defendant’s right of appeal from an erroneous judgment is unreasonably impaired when he is required to risk his life to invoke that right. Since the state has no interest in preserving erroneous judgments, it has no interest in foreclosing appeals, therefrom by imposing unreasonable conditions on the right to appeal.
The judgment is reversed.
Gibson, C. J., Peters, J., Tobriner, J., and Peek, J., concurred.