I dissent. Even if the doctrine of the law of the case precludes us from treating this submission as a “slow plea” {ante, p. 600; see generally 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 633 et seq.), this case is at least analogous to those where a conviction based upon a negotiated plea is set aside because of the trial court’s failure to obtain constitutionally required waivers.
In In re Sutherland (1972) 6 Cal.3d 666 [100 Cal.Rptr. 129, 493 P.2d 857], the defendant pleaded guilty to one count in return for dismissal of the remaining four counts. In setting aside the conviction on habeas corpus, this court ordered all five counts restored to the superior court calendar. “Since by granting relief we are in effect permitting defendant to withdraw his guilty plea, the ends of justice require that the status quo ante be restored by reviving the four dismissed counts.” (Id. at p. 672.) A successful attack upon a guilty plea on direct appeal resulted in a like disposition in People v. Kirkpatrick (1972) 7 Cal.3d 480, 487 [102 Cal.Rptr. 744, 498 P.2d 992].
The quid pro quo here was waiver of petitioner’s right to jury trial in return for a stipulation that he would not be found guilty of first degree murder. Petitioner declined the People’s offer to reinstate the bargain following reversal of the second degree murder conviction. Therefore, the ends of justice require that the status quo ante be restored by reviving the first degree murder charge, unless it is barred by the doctrine of double jeopardy.
The majority correctly concludes the “constitutional” doctrine of *611double jeopardy does not bar prosecution of petitioner for first degree murder on retrial because “petitioner was never placed in jeopardy of conviction of first degree murder. At the time jeopardy attached in his trial, i.e., when the submission was accepted by the court, he was not exposed to the risk of conviction of first degree murder, there has therefore been no implied acquittal of that offense, and the trier of fact has been given no opportunity to find him guilty of first degree murder.” (Ante, p. 607.)
However, the majority then holds that section 1023 of the Penal Code, as construed in People v. Greer (1947) 30 Cal.2d 589 [184 P.2d 512], does bar the first degree murder charge. The sole reason given for this otherwise inexplicable conclusion is that, “If the rule were otherwise a defendant charged with and convicted of a lesser included offense could not appeal without running the risk of a new prosecution for a greater inclusive offense, whereas a defendant charged with the greater offense but convicted only of the lesser offense could appeal without running such risk under the doctrine of implied acquittal.” (Ante, p. 608.)
The quoted reasoning does not apply here. Defendant could have appealed “without running the risk of a new prosecution for a greater inclusive offense.” Had he not repudiated the bargain, defendant after reversal could not be tried for the greater offense. A defendant who avoids prosecution for the greater offense by a bargain and then repudiates it is obviously in a substantially different position on retrial from the defendant who did not repudiate the bargain or the one who did not enter into a bargain but was acquitted of the greater offense.
I further dissent from adding verses—admittedly not constitutionally required (ante, p. 605)—to the Boykin-Tahl-Mosley litany.
McComb, J., concurred.