In dissenting I stress above all other considerations, however serious they are, my objections to the *498majority’s holding (ante, pp. 495 -497) that the prohibition against double jeopardy (Cal. Const., art. I, § 13; Pen. Code, §§ 687, 1023) forbids the trier of fact to impose a death sentence on a defendant convicted on retrial of first degree murder after reversal on appeal1 of a judgment sentencing him to life imprisonment for the same offense, following his previous waiver of jury trial and plea of guilty. The record of the second trial is replete with evidence, material to both guilt and penalty, which had not been adduced at the first proceeding because of such waiver and plea.
The subject majority ruling is wholly without support in the decisions of this or any other court, and indeed is directly contrary to the holdings of ,the United States Supreme Court (Stroud v. United States (1919) 251 U.S. 15, 18 [40 S.Ct. 50, 64 L.Ed. 103, 110]; see also Murphy v. Massachusetts (1900) 177 U.S. 155 [20 S.Ct. 639, 44 L.Ed. 711]) and of every state court (including the Supreme Court of California) that has had occasion to rule on the matter (People v. Grill (1907) 151 Cal. 592, 598 [91 P. 515]; State v. Kneeskern (1926) 303 Iowa 929 [210 N.W. 465]; State v. Morgan (1919) 145 La. 585 [82 So. 711]; Mann v. State (1887) 23 Fla. 610 [3 So. 207]; Greer v. State (1874) 62 Tenn. (3 Baxt.) 321). As will hereinafter be shown, the latter holdings remain good law and have not been “vitiated” (as the majority argue) by subsequent decision on essentially distinguishable issues.
There is no doubt, as the majority acknowledge (ante, p. 495), that after reversal on appeal the prohibition against double jeopardy does not prevent a retrial whereby the defendant can legally be convicted of the same offense as that of which he was originally found guilty. Penal Code section 1180 specifies that “The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict or finding cannot be used or referred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the accusatory pleading.” Thus there will be a retrial in the case at bench (§ 1262), and upon such trial defendant can again be convicted of murder in the first degree. (United States v. Ball (1896) 163 U.S. *499662, 672 [16 S.Ct. 1192, 41 L.Ed. 300].) If he should be so convicted, it would be the statutory duty of the trial court to comply with Penal Code section 190, which prescribes that “Every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life, at the discretion of the court or jury trying the same, and the matter of punishment shall be determined as provided in section 190.1. . . .” (Italics added.) The latter section declares in relevant part that “If such person has been found guilty of an offense punishable by life imprisonment or death,... there shall thereupon be further proceedings on the issue of penalty, and the trier of fact shall fix the penalty____The determination of the penalty of life imprisonment or death shall be in the discretion of the court or jury trying the issue of fact on the evidence presented. ...” But under the present ruling of the majority the trier of fact will actually have no discretion in such proceedings other than to fix the punishment at life imprisonment. Indeed, even if wholly different evidence were to be introduced on the retrial of the penalty issue,2 the trier of fact could give no effect to such evidence but would be mechanically bound by the finding made on other evidence and by a different trier of fact in the first proceeding. The subject holding thus amounts to a judicial aborgation of the relevant portions of Penal Code sections 190 and 190.1: In cases such as the one before us it will be futile to comply with the statutory command that “there shall thereupon be further proceedings on the issue of penalty,” as the determination of that issue will no longer “be in the discretion of the court or jury trying the issue of fact on the evidence presented” (Pen. Code, § 190.1).
Analysis discloses only two arguments that can conceivably be advanced in support of today’s majority holding on double jeopardy: i.e., either (1) the prohibition against double jeopardy applies because in the first penalty trial3 the trier of fact impliedly “acquitted” defendant of that “degree” of first degree murder that warrants the death penalty, by *500finding him “guilty” of another “degree” of first degree murder that warrants only life imprisonment; or (2) the prohibition against double jeopardy relates not only to the offense of which the defendant was “acquitted” but also the punishment imposed for the offense of which he was convicted (and for which he can be retried). Bach of these arguments, as will be shown in turn, is an absurdity.
The first argument has nowhere been better stated than by this court in People v. Grill (1907) supra, 151 Cal. 592, 598: “It is now claimed that where there is a charge of murder of the first degree and a conviction of murder of the first degree with the penalty of imprisonment for life such judgment is a virtual acquittal of the character of murder sufficiently atrocious to justify the death penalty and is a bar to the infliction of the death penalty upon a retrial of the same charge. ’ ’ The argument thus assumes that there are two “degrees” or grades of first degree murder, one being “sufficiently atrocious to justify the death penalty” and the other being, presumably, not “sufficiently atrocious.” A complete refutation of this argument and its assumption is set forth in Grill {ibid.), as follows: “The discretion given to the jury to mitigate the punishment upon a conviction of murder in the first degree, and inflict imprisonment for life only, does not, after such a verdict, divide that degree of murder into two degrees, but merely reduces the punishment. The mere substitution of imprisonment for life for the death penalty is not a determination that any element of murder of the first degree is lacking. On the contrary, such a verdict cannot be given until all the facts necessary to constitute that degree of murder are established. The former conviction was not an acquittal of the first degree of murder nor of any degree thereof.” (Italics added.) Likewise, the United States Supreme Court observed in Stroud v. United States (1919) supra, 251 U.S. 15, 18 [40 S.Ct. 50, 64 L.Ed. 103, 110], that “The fact that the jury may thus mitigate the punishment to imprisonment for life did not render the conviction less than one for first degree murder.”
The majority seek to circumvent the holdings of Stroud and Grill by asserting (ante, p. 497) that “Since the Green [Green v. United States (1957) 355 U.S. 184 (78 S. Ct. 221, 2 L.Ed.2d 199, 61 A.L.R.2d 119)] and Gomez [Gomez v. Superior Court (1958) 50 Cal.2d 640 (328 P.2d 976)] cases have now established that a reversed conviction of a lesser degree of a crime precludes conviction of a higher de*501gree on retrial, the rationale of the Stroud and Grill cases has teen vitiated.” (Italics added.) That the emphasized language is a total non sequitur appears from the face of the opinions themselves. Both Green and Gomez dealt with the problem of whether the prohibition against double jeopardy precludes retrial for a higher degree of an offense after reversal of a conviction of a lower degree. In the case at bench, by contrast, defendant has been convicted of only one offense, first degree murder; as just explained, the jury’s determination of penalty (or the court's determination as in the first trial here) does not divide first degree murder into two further “degrees” or grades.
It is true that in Grill (at p. 598 of 151 Cal.) this court adverted in passing to the fact that (as of that date) “It has been held that a conviction of murder of the second degree upon the trial of a charge of murder of the first degree is no bar to a subsequent conviction of the higher degree upon a retrial of the same ease granted upon defendant’s motion,” citing inter alia People v. Keefer (1884) 65 Cal. 232, 235 [3 P. 818], But the court then observed, “Upon this exact point we need express no opinion,” and immediately went on to dispose of the issue of double jeopardy on the unrelated but wholly adequate rationale quoted hereinabove. The Keefer rule was abandoned in Gomez; but since that rule was unnecessary to the decision in Grill—and reliance thereon was expressly disavowed in the above quoted language of the Grill opinion—it is manifest that Gomez neither overruled Grill by implication nor in any way "vitiated ’ ’ its true rationale.
Similarly, it is manifest that the rationale of Stroud was not “vitiated” by the decision in Green. While the Green case cast doubt upon Trono v. United States (1905) 199 U.S. 521 [26 S.Ct. 121, 50 L.Ed. 292], cited in Stroud, the court in Green nevertheless took pains to declare (at p. 195, fn. 15, of 355 U.S. [2 L.Ed.2d at p. 208, 61 A.L.R.2d at p. 1128]: “Stroud v. United States, 251 U.S. 15 [40 S.Ct. 50, 64 L.Ed. 103], is clearly distinguishable. In that case [as in the ease at bench] a defendant was retried for first degree murder after he had successfully asked an appellate court to set aside a prior conviction for that same offense.” It appears to me somewhat presumptuous for the majority of this court to assert that Stroud was “vitiated” by Green when the United States Supreme Court itself states in the latter deei*502sion that Stroud “is clearly distinguishable.’’4
This brings me to the second possible argument in support of the majority’s holding—i.e., that the prohibition against double jeopardy relates also to the punishment imposed for the offense of which the defendant was convicted (and for which, after reversal on appeal, he can be retried). Ignoring the lines drawn by the high court in Green, the majority further assert (ante, p. 497) that “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.’’ No authority is cited for this sweeping statement, nor can any be found. It represents a misreading or disregard of both Green and Gomez, which stand for the basic proposition that under the law of double jeopardy a defendant cannot be said to have waived his implied acquittal on one offense in order to exercise his right to appeal from his conviction on another offense, regardless of whether the distinction between the offenses as set forth in the penal statutes is expressed by means of different names (e.g., manslaughter and murder) or by means of different degrees of a crime bearing one name (e.g., first degree murder and second degree murder). The fallacy inherent in the majority’s attempted analogy is simple. It overlooks the fundamental principle that even though different degrees of a crime may refer to a common name (e.g., murder), each of those degrees is in fact a different offense, requiring proof of different elements for conviction. This truth was well grasped by the court in *503Gomez (at p. 645 [2] of 50 Cal.2d), where it was stated that “The elements necessary for first degree murder differ from those of second degree murder.... A jury impliedly decides that the necessary element of the greater crime is lacking under the evidence and returns a verdict finding the defendant guilty of the lesser degree.” And given the fact that different degrees constitute different offenses, it is not suprising that they carry different punishments. The majority’s emphasis on such difference in punishments is, therefore, both misleading and without substance.
Moreover, contrary to the majority’s assertion, the authorities demonstrate that the distinction between degrees of crime and difference in punishment is not “immaterial to the basic purpose of the constitutional provision against double jeopardy.” Although the majority do not restate that “basic purpose,” I assume it to be as set forth in Gomez (at p. 644 [2] of 50 Cal.2d, quoting from Green v. United States (1957) supra, 355 U.S. 184, 187-188 [78 S.Ct. 221, 2 L.Ed.2d 199, 204, 61 A.L.R.2d 1119, 1124]) : “ The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” (Italics added.) The limitation of the protection to repeated trials for “the same offense” is not accidental; it is obedient to the express language of the constitutional and statutory mandates. Thus the Fifth Amendment to the United States Constitution declares that “No person shall... be subject for the same offence to be twice put in jeopardy of life or limb.” Article I, section 13, of the California Constitution likewise provides that “No person shall be twice put in jeopardy for the same offense.” And the Penal Code sections which restate and implement the constitutional command (§§ 687, 1023) are also phrased in terms of jeopardy for the same “offense.” (See also Pen. Code, §§ 999, 1022, 1387.)
Under the foregoing provisions this court has consistently held that the prohibition against double jeopardy does not apply to the issue of punishment. Thus in reversing a judgment of death insofar as it related to the question of penalty we held (People v. Green (1956) 47 Cal.2d 209, 235 [14] *504[302 P.2d 307] that “Inasmuch as the original sentence is set aside at the behest of the defendant it cannot be successfully pleaded as constituting former jeopardy and there is no denial of due process. [Citations.] ” (Accord, People v. Hooton (1959) 53 Cal.2d 85, 88 [3]—89 [4] [346 P.2d 199].) As the United States Supreme Court declared in the leading case of United States v. Ball (1896) 163 U.S. 662, 669 [16 S.Ct. 1192, 41 L.Ed. 300] (cited in the majority opinion ante, at p. 495) : “The prohibition is not against being twice punished,5 but against being twice put in jeopardy;...” That same court has held, more particularly, that a defendant is not twice put in jeopardy when, after reversal of his sentence on an appeal taken by him, his punishment is roer eased for the same offense. (Murphy v. Massachusetts (1900) 177 U.S. 155 [20 S.Ct. 639, 44 L.Ed. 711] [affirming judgment which increased defendant’s minimum sentence, after appeal, from 10 years to 12% years imprisonment].)
Lest it be thought that Green v. United States (1957) supra, 355 U.S. 184 [78 S.Ct. 221, 2 L.Ed.2d 199, 61 A.L.R.2d 1119], has necessarily “vitiated” the holding in Murphy as well, it is appropriate to consider two recent decisions of distinguished state courts on this issue, each postdating Green by some five years. In Hicks v. Commonwealth (1962) (Mass.) 185 N.E.2d 739, the defendant pleaded guilty to four indictments of armed robbery and was sentenced to concurrent terms of 15 to 20 years imprisonment on each indictment. The defendant appealed, exercising his statutory right to a review of the sentences (Mass. Gen. Laws, ch. 278, §§ 28A-28D). The Appellate Division, after hearing, ordered the defendant’s sentences increased to concurrent terms of 20 to 25 years imprisonment. The defendant then appealed to the Supreme Judicial Court of Massachusetts, arguing that “the increase of the sentences placed him in jeopardy for the second time” in contravention of the constitutional guarantees. The court rejected this contention, reasoning that “It has been held repeatedly by this court and by the Supreme Court of the United States that a defendant can be tried a second time for an offence when his prior conviction for that offence has been set aside on his appeal. [Citations.] Had the *505[defendant] been convicted and sentenced and if on his appeal the conviction had been reversed, a subsequent conviction followed by a longer sentence than the one initially imposed would not be objectionable.” (185 N.E.2d at p. 740 [12].) On all fours with Hicks is Kohlfuss v. Warden of Connecticut State Prison (1962) 149 Conn. 692 [183 A.2d 626], in which the Supreme Court of Errors of Connecticut held that a defendant had not been subjected to double jeopardy when the minimum term of imprisonment specified in his sentence was ordered increased in a review thereof sought by him. The court in its opinion relied on Stroud v. United States (1919) supra, 251 U.S. 15 [40 S.Ct. 50, 64 L.Ed. 103], and Murphy v. Massachusetts (1900) supra, 177 U.S. 155 [20 S.Ct. 639, 44 L.Ed. 711], and dismissed Green v. United States (1957) supra, 355 U.S. 184 [78 S.Ct. 221, 2 L.Ed.2d 199, 61 A.L.R.2d 1119], as being “clearly distinguishable from the case at bar.” (183 A.2d at p. 628 [4].) It is established in California by both statutes and decisional law that “The prosecution . . . commences when the indictment or information is filed in the superior court and normally continues until . . . the accused is ‘brought to trial and punishment’ or is acquitted.” (People v. Tideman (1962) supra, 57 Cal.2d 574, 579 [5]; Pen. Code, §§ 682, 683.) The granting of a new trial reopens the criminal action for all purposes; upon the new trial (unless trial by jury is waived) the discretion of the jury in the selection of the penalty is absolute. (People v. Green (1956) 47 Cal.2d 209, 218 [7], 229 [302 P.2d 307]; People v. Friend (1957) 47 Cal.2d 749, 764-765 [11] [306 P.2d 463].)
The consequences of the majority’s radical departure from established law and practice should be frankly faced. The most immediate of these is that a new category of “automatic” appeals has been carved out by judicial decision, for all defendants convicted of first degree murder and sentenced to life imprisonment will hereafter have everything to gain and nothing to lose by prosecuting review of their judgments at the public expense no matter how frivolous and insubstantial their grounds of appeal may be. Even more serious, however, will be the effect of the majority’s holding on established sentencing practices of our trial courts. Until today it had never been thought that when a judgment of conviction was reversed at the defendant’s behest, the former sentence or disposition in any way tied the hands of the trial judge in sentencing the defendant on a new judgment of conviction *506for the same offense rendered upon retrial. Thus when a defendant is convicted of one of the many offenses punishable either as a felony or as a misdemeanor (see Pen. Code, § 17) and is sentenced as a misdemeanant, the trial judge on a new conviction after reversal on appeal may sentence the defendant as a felon for the same offense. When a defendant is convicted of a misdemeanor and a fine is imposed in lieu of confinement in county jail, the trial judge on a new conviction of the same offense after reversal may instead sentence the defendant to jail or to both a fine and jail (Pen. Code, § 19; see also § 672). When a defendant is convicted of two or more offenses at the same trial and the judgment directs that the sentences shall be served concurrently (Pen. Code, § 669), the trial judge on new convictions of the same offenses after reversal may direct that the same sentences shall be served consecutively. And when a convicted defendant is granted probation, then appeals and secures a reversal of the cause, the trial judge on a new conviction for the same offense may deny probation and sentence the defendant to a term of imprisonment.
Each of the foregoing propositions has long been part of the settled law and practice of the trial courts of this state. Each is now upset by the majority’s holding (ante, p. 497) that the prohibition against double jeopardy applies in cases where the law “allows the court or jury to fix different punishments for the same crime.” If these practices have not been affected by today’s decision, it can only be because the majority have decided that in California there is to be one criminal law for death penalty cases and another criminal law for all other cases. Such an unspoken discrimination is without rational foundation and would in effect be grossly unfair to the vast majority of defendants not on trial for their lives—and to the public at large in California who are entitled to the firm enforcement of laws enacted for their protection.
The mention of the public at large—the seemingly forgotten law-abiding members of society—brings me to another phase of this case, the presentation of which requires some augmentation of the facts beyond those indicated by the majority.
In the first place it may be noted that this defendant was not in any sense a victim of overreaching by the trial court or the prosecutor. Bather, it appears the defendant—apparently aided by study of the Penal Code and other sources of *507legal lore—schemed his way to a new trial. As to his waiver of a jury at the first trial, his plea of guilty, his discharge of court-appointed counsel, and his procuring of a new trial by stipulation, the record shows items and entries as hereinafter summarized or quoted.
After having been indicted for murder defendant was provided with two attorneys; he asked for trial “on the issue of present sanity pursuant to section 1368, Penal Code” and four eminent psychiatrists were appointed (two designated to be “on behalf of the defendant”) to “examine said defendant as to his present sanity.” Trial by jury on this issue was waived by both defendant and the district attorney; the reports of the doctors and testimonies of various witnesses including the defendant were received, and the court (Martin E. Eothenberg, Judge) found that defendant was sane and able to cooperate with his counsel. Thereafter defendant entered pleas of not guilty and not guilty by reason of insanity, and four psychiatrists were appointed “to examine ... and determine whether... defendant was sane at the time of the commission of the crime, and render a report . . . and to testify as to the mental condition of said defendant. ...”
On January 16, 1962, the time fixed for trial, defendant appeared with his attorneys before Judge Hugh H. Donovan, waived a jury and consented “that the Court determine his guilt or innocence and if found guilty, the Court to determine the degree of the offense.” Evidence was received, including the reports of six doctors, the transcript of the Grand Jury proceedings and various photographs. The trial was then ordered continued to Monday, January 22,1962.
On Thursday, January 18, however, the record shows that defendant with his two attorneys, and the district attorney and his deputy, appeared and the following minute orders were made:
1. Minutes of Thursday, January 18, 1962, 9:30 a.m., Hon. Hugh H. Donovan, Judge.
“The defendant with his counsel William Kretzmer and Theodore Porurio [sic] and the District Attorney John Nejedly and Deputy District Attorney Daniel Boatwright appear in open Court at this time, and the Court fixes this as the time for hearing the defendant’s motion.
“Thereupon the defendant moves the Court to discharge the Court appointed attorneys and the defendant was duly advised of his legal rights to be represented by self-employed *508attorneys and the Court orders William Kretzmer and Theodore Foruria, heretofore appointed by the Court, discharged in this case.
“It is further ordered by the Court that said court appointed counsel be present at the further trial of this case on January 22, 1962 at 1 -.30 o’clock p.m. to assist the defendant in any way he may call upon them so to do. [Italics added.]
“Upon motion of defendant, it is by the Court ordered that copies of documents received into evidence, consisting of doctors’ reports, testimony at Grand Jury hearing and the list of evidence submitted to the Court, be transmitted to defendant.
“The defendant is remanded to the custody of the Sheriff.’’
2. Minutes of Monday, January 22, 1962, 9:15 a.m., Hon. Hugh H. Donovan, Judge.
“The defendant in pro pers and the District Attorney and Daniel Boatwright, Deputy District Attorney appear in open Court at this time, this being the time fixed by the Court for the further trial of this cause. William Kretzmer appears in open Court at this time in compliance with the order of the Court. [Italics added.]
“Thereupon the defendant waives further argument in this cause and withdraws his pleas heretofore entered and now enters a plea of guilty of Violation of Section 187, California Penal Code as charged in the Indictment.
“The defendant waives argument as to the degree of the charge herein and states that he has no legal cause to show why judgment should not be pronounced at this time and no sufficient cause being shown or appearing to the Court, the Court thereupon renders its judgment;
“Thereupon the Court fixes the degree of the offense charged in the indictment as first degree murder;
“It is therefore ordered, adjudged and decreed that the said Ronald Kaye Henderson is guilty of the crime of Violation of Section 187, California Penal Code (Murder, first degree) and that he be punished by imprisonment in the California State Prison for life.
“Defendant is remanded to the custody of the Sheriff for delivery into the custody of the Director of Corrections at the California Medical Facility at Vacaville, California.
“It is further ordered by the Court that the time for fixing the fee of counsel William Kretzmer, heretofore, appointed by the Court to represent the defendant in this cause, be set *509for Wednesday, January 31, 1962 at 9 :30 o’clock a.m.6 “IN THE SUPERIOR COURT OF CONTRA COSTA COUNTY — STATE OF CALIFORNIA
January 22, 1962
“Present, Hon. Hugh H. Donovan, Judge
No. 7605
“THE PEOPLE OF THE STATE
OF CALIFORNIA Convicted of Violation
VS of Section 187, Penal
“RONALD KAYE HENDERSON, Code (Murder) Defendant
“The District Attorney, with the defendant came into Court. The defendant was duly informed by the Court of the indictment found against him on the 11th day of September A.D., 1961, for the crime of Violation of Section 187, California Penal Code (Murder); of his arraignment on September 18, 1961 and of the appointment of psychiatrists to make an examination and report as to the defendant’s sanity; of his trial by Court as to the defendant’s sanity and the findings of the Court on November 13, 1961 that defendant is sane; and of his plea of Not Guilty and Not Guilty by reason of insanity; and of his trial by Court on January 16, 1962 and of his withdrawal of pleas heretofore entered and of his plea of ‘Guilty of the Offense Charged’; on the 22nd day of January 1962 to-wit: Guilty of the crime of Violation of Section 187, California Penal Code (Murder) and of the Court fixing the degree of the offense on January 22, 1962, to-wit : Murder in the first degree.
“The defendant was then asked if he had any legal cause to show why judgment should not be pronounced against him to which he replies that he had none. And no sufficient cause being shown or appearing to the Court, thereupon the Court renders its judgment:
“That whereas the said Ronald Kaye Henderson having been duly convicted in this Court of the crime of Violation of Section 187, California Penal Code (Murder, first degree).
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, That the said Ronald Kaye Henderson is guilty of the crime of Violation of Section 187, California Penal Code (murder, first degree) and that he be punished by im*510prisonment in the STATE PRISON OP CALIFORNIA for life and that the Sheriff of Contra Costa County deliver the defendant into the custody of the Director of Correction at the California Medical Facility at Vacaville, California, and there deliver him.
“The defendant was then remanded to the custody of the Sheriff of the County of Contra Costa to be by him delivered into the custody of the Director of Corrections at the California Medical Facility at Vacaville, California.”
As to Proceedings Relative to Second Judgment
Psychiatric Report of Theo K. Miller, M.D., and Walter Rapaport, M.D., dated September 6,1962:
“The Honorable Wakefield Taylor, Judge
Superior Court
Contra Costa County
Martinez, California
“Dear Judge Taylor:
“Pursuant to your order the undersigned Theo K. Miller, M.D., Superintendent and Medical Director of the Napa State Hospital, and Walter Rapaport, M.D., Superintendent and Medical Director of the Agnews State Hospital, examined the above-named Ronald Kaye Henderson to determine his mental condition with special reference to his plea of Not Guilty and Not Guilty by Reason of Insanity to a charge of violation of Penal Code, Sec. 187.
“Be it remembered that both examiners had seen Mr. Henderson and examined him on several occasions in October 1961. In addition, one of us, Dr. Rapaport, examined Mr. Henderson on December 24, 1961. Reports of these examinations were submitted to The Honorable Martin E. Rothenberg on the date of October 30, 1961 and the report of Dr. Rapaport under date of December 27, 1961. ... [Defendant] went to Vacaville on January 23, 1962 and in April was transferred to San Quentin Prison. He states that he was not placed on a psychiatric ward as [sic] San Quentin. The defendant states that he went to Court prior to going to Vacaville and he states that Judge Donovan was the judge. At this time he states that he never knew the charges that he was facing. When asked about his statement at earlier examinations wherein he told the examiners what the charges were, the defendant replied, ‘If you know anything you can bring it up in court. ’ He states that when he went into Judge Donovan’s court last year he had decided to fire his attorneys *511because he did not feel that they were giving him a good defense. He states that on January 24, the day after arriving in Vacaville, he put in a Notice of Appeal and a lawyer was appointed to represent him and the appeal was completed on the grounds that the court had accepted a plea of Guilty at a time when the defendant had no lawyer. He states that the matter of firing his lawyers and entering a plea of Guilty was his own idea and no one else had advised him. [Italics added.] He states the lawyer who wrote the appeal was Robert Brilliant but that now he has another lawyer who was appointed by the court in Martinez. He states that his ease is set for September 18 and that his plea is Not Guilty and Not Guilty by Reason of Insanity. He gives the victim’s name as Joyce Marie Lovett, whom he had met about a year and a half before the incident. He states that he is now in jail for killing someone but goes on to say that he didn’t kill anybody, that he wouldn’t even kill a fly. Asked whether he had beaten women in the past, he states, ‘That is in the past. I am talking about the present. There is no actual proof of anything. ’
“The defendant states that he will answer any questions except those about the actual homicide. Asked if this means that he could answer if he wanted to or that he doesn’t know the answers, the defendant replies that the examiners can form their own conclusion, and repeats that he will not answer question [s] or give any information about the homicide. He quotes the Penal Code and says, ‘You can’t walk into court and plead guilty unless evidence is introduced to prove a crime was committed, and there was no such evidence introduced in my ease. I entered a plea of guilty to get a new trial. I looked at hooks in the jail here and took a chance that the judge would refuse to accept my plea of guilty and appoint another attorney.’ ” (Italics added.)
Proceeding with his scheme to procure a new trial it appears (from the official record of the proceedings in this action in the District Court of Appeal leading to the reversal of the first judgment, and in more detail than is related by the majority in respect thereto) that defendant under date of July 11, 1962, procured a stipulation as follows:
“IT IS HEREBY STIPULATED by and between the parties to the above-entitled action, through their respective counsel, that the judgment of conviction entered against the appellant on Jan. 22, 1962, by the Superior Court of the State of California, in and for the County of Contra Costa, *512may be reversed by this Court and the matter remanded for retrial. The basis for this stipulation is that the appellant was erroneously allowed to enter a plea of guilty, while unrepresented by counsel, to a felony for which the maximum punishment was death.
“Dated: July 11,1962
“STANLEY MOSK, Attorney General of the State of California
“JOHN S. McINERNY
Deputy Attorney General
John S. McInerny
Attorneys for Respondent
Robert M. Brilliant
ROBERT M. BRILLIANT Attorney for Petitioner
Ronald Kaye Henderson
RONALD KAYE HENDERSON
Petitioner”
The stipulation was then followed up by letters dated July 17, 1962, from defendant’s then attorney, Robert M. Brilliant, and one dated July 18, 1962, from the Attorney General which read respectively as follows:
“Consistent with our telephone conversation of even date herewith with John S. McInerny, deputy attorney general, and the Clerk in the above-entitled Court, hereiwith [sic] is my stipulation, to wit: That the remittitur issue forthwith. ’ ’
“Pursuant to the stipulation presently on file with the Court and relating to the reversal of this case, the People of the State of California hereby consent that the remittitur in this ease may issue immediately by this Court upon the Court’s entering the judgment of reversal ”
With such stipulations before it the District Court of Appeal on July 19, 1962, entered its order:
“Pursuant to a stipulation of the appellant and counsel for the respective parties, the judgment of conviction entered against the appellant on January 22, 1962, by the Superior Court of the State of California in and for the County of Contra Costa is reversed and the case is remanded for a new trial. It is ordered that the remittitur issue forthwith. ’ ’
Reading of the record at the second trial reveals that the evidence then taken was far more extensive and conclusive *513than that received at the first trial. The evidence now before us is overwhelming not only that defendant perpetrated the atrocities and killed his victim but also that he did so intentionally, designedly, intelligently, because he enjoyed doing it, and because he had learned from having failed to kill at least one woman (whom he had tortured to some extent as he tortured his victim here) that despite her promises not to tell on him if he would let her live, she did eventually tell. Indeed, it develops she could not well have concealed what he had done because of the condition in which he left her. More particularly as to the case at bench the evidence establishes that defendant weighed something over 200 pounds; his victim weighed 100 pounds. The cruelties he perpetrated on her before strangling her are too revolting to unnecessarily detail, but some quotations from the transcript must be incorporated.
Indicative of the crafty legal acumen of this defendant is the fact that he testified that the atrocious mutilations of the deceased occurred after he had killed her by strangulation. Thus he would avoid a finding of murder in the first degree, which is required by statute (Pen. Code, § 189) where the proof shows that the killing was “perpetrated by means of ... torture. ’ ’ Likewise this man said he could not recall when or how he received the long scratches on his face (and did not explain his “black eye”) although the evidence was unequivocal that he was "cold sober” shortly after receiving them and at the time he was arranging to get his car in order to dispose of the victim’s body. He could not remember things that were difficult to explain in any such way as would absolve him from guilt but he testified that before killing his victim he did not hit or cut her or do any other violence to her body. He conveniently “passed out” or went to sleep and he “woke” or “came out” only after the violent acts had been committed. This man by his trick on the trial court—perhaps on the Attorney General—has secured one new trial and seems about to cheat justice again. He “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 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. . . . He said that he went into the bathroom and strangled her and then he .... He just cut her up .... That he woke up and he found the can opener in his hand.” Is it not significant to even a reviewing court that he reiterates that he *514strangled her first and only then cut her up ? Manifestly this testimony was significant to the jury and the trial judge.
The record at the second trial reveals evidence pertinent to both guilt and penalty which was not produced at the first trial. It was not received at the first trial because defendant at that trial avoided it by pleading guilty. One new witness at the second trial had been picked up by defendant at the same bar at which about one month later he picked up the victim in the case at bench. The witness related defendant’s following her from the bar, offering to give her a ride home, her acceptance, her developing apprehension and attempt to leave the car, his beating her, wounding her in the head, and forcing her to disrobe and engage in unnatural acts. Then “He got some kind of thing ... and put it up in me ... he rammed it up in me in my privates ... and he also had his finger up my rectum ....” Each of these things, it appears he also did to the victim he killed in the case at bench.
The transcript proceeds “... he grabbed me by the hair ... and beat my head down against the seat and said ... ‘I think I’ll kill you now because, after all I did to you and after what you did to me, ’ he said, ‘I still didn’t come’....
“He says ‘I’m going to bite you up all over your body and I’m going to cut you wide open because I always wanted to see what a woman looked like inside,’ I said, ‘Please don’t .... Don’t kill me ...’ He said, ‘It wouldn’t do you any good if you get killed.’ I said, ‘You’ll die too,’ and he said ‘I don’t care, when I go into these moods, what happens to me. ’...
“He ... bit me on my right leg and my privates and my right side and bit me up on my breasts and my arms.” (Five color photographs graphically corroborating the witness’s testimony were received in evidence.)
Relevant indeed to the case at bench the witness continued: “I said, ‘Just let me get out of this car. I don’t care, any way, without any clothes, anything, just let me go. I won’t turn you in or anything....
“And he says, ‘No, I’m afraid to let you. I’m afraid you’ll tell on me like the rest of the girls I have done.’ ” However, although he kept her “pants, bra, slip, purse, and a little jacket that went with the dress” she had on, he did let her go.
She “ran to a house and started ringing the doorbell,” was admitted, the police were called and she went to the San Jose County Hospital. About two weeks later she received a *515telephone call from defendant, and he said, “Oh, yes. You turned me in, didn’t you? Now I’m going to get you. I’ll get you one way or the other. I’m going to Mil you.” She reported that call to the police. That incident meant to defendant that he would not be so indulgent as to let his next victim live to tell her story. This record shows he kept that resolution.
After studying the record it is impossible for me to conclude that the defendant has been denied any element of a fair trial or due process, or that there has been a miscarriage of justice by the conviction and sentence of the appellant. In particular, although many instructions were necessarily given to the jury to cover the multiple aspects of the case, the charge (taken as a whole of course) is commendably comprehensive and free from error. The learned trial judge was especially careful in defining the degrees of murder and the necessity for proof of specific intent, reached by deliberation and premeditation, as a basis for first degree murder. Among other elements the judge emphasized that “To constitute this kind and degree of homicide the Mlling must be accompanied by a clear, deliberate intent to take life. The intent to kill must be the result of deliberation and must have been formed upon a pre-existing reflection and not under a heat of passion or other condition such as precludes the idea of deliberation. ... To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of Mlling and the reasons for and against such choice, and, having in mind the consequences, decide to and commit the unlawful act causing death.”
I would affirm the judgment.
McComb, J., concurred.
Respondent’s petition for a rehearing was denied December 18, 1963. Schauer, J., and McComb, J., were of the opinion that the petition should be granted.
Here the reversal was hy stipulation of the parties, signed hy the defendant, by Ms attorney, and hy the Attorney General. The unusual circumstances (contrived by defendant) which led to its execution are hereinafter delineated.
Here, as has been already mentioned, the record on the retrial—the only trial where guilt was at issue—is replete with evidence, material to both guilt and penalty, which had not been adduced at the first proceeding because of defendant’s waiver of jury trial and plea of guilty.
It can only be on the first penalty trial that the majority hold defendant was “acquitted” of the type of first degree murder that warrants the death penalty, because defendant pleaded guilty to the charge as laid.
It is also a quite novel claim of precedent for the majority to "agree with” Mr. Justice Frankfurter’s argument on this point (ante, p. 497) while at the same time rejecting in effect the entire substance of Ms dissenting opinion, in which he was joined by three other members of the high court (355 U.S. at pp. 198-219 [2 L.Ed.2d at pp. 210-222, 61 A.L.R.2d at p. 1128]). It is noteworthy, for example, that the majority do not choose to quote the following passage from Justice Frankfurter’s opinion: "We should not be so unmindful, even when constitutional questions are involved, of the principle of stare decisis, by whose circumspect observance the wisdom of this Court as an institution transcending the moment can alone be brought to bear on the difficult problems that confront us. ... [W]e are not here called upon to weigh considerations generated by changing concepts as to minimum standards of fairness, which interpretation of the Due Process Clause inevitably requires. Instead, the defense of double jeopardy is involved, whose contours are the product of history.” (355 U.S. at p. 215 [2 L.Ed.2d at p. 220, 61 A.L.R.2d at pp. 1138, 1139].)
It may be noted that in California a statute, not based on the constitutional mandate against double jeopardy, independently proscribes double punishment for the same “act or omission.’’ (Pen. Code, § 654; People v. Tideman (1962) 57 Cal.2d 574, 578 [2] [21 Cal.Rptr. 207, 370 P.2d 1007].)
This does not mean that the proceedings of January 22 were discontinued at this time; to the contrary, the minutes of January 22 continue as shown.