People v. Moore

SPENCE, J.

The People appeal from an order modifying the verdict by reducing the punishment imposed for defendant's crime, murder in the first degree, from death to life imprisonment. (Pen. Code, § 1238, subd. 6.) The trial court made the order of modification in passing upon defendant’s motion for a new trial. At that time both defendant's motion for a new trial and his motion to reduce the degree of his crime were denied, but defendant does not appeal. We have concluded that under authority of this court’s remand order and of the governing statute (Pen. Code, § 1181, subd. 7) the trial court had the power to make the challenged modification, and that the order should be affirmed.

On April 4, 1956, defendant was indicted for the crime of murder. A jury trial resulted in a verdict of first degree murder, with the penalty fixed at death. Thereafter defendant’s motion for a new trial was denied and the court pronounced judgment imposing the death penalty. Upon the automatic appeal to this court (Pen. Code, § 1239, subd. (b)), the judgment and order denying the motion for a new trial were affirmed.

(People

v.

Moore,

48 Cal.2d 541 [310 P.2d 969].) The remittitur was duly issued on June 10, 1957.

In September, 1957, defendant filed a petition for a writ of habeas corpus and stay of execution. On December 12, 1958, this court issued the following order: 1 ‘ The petition for a writ of habeas corpus is denied. The remittitur issued on June 10, 1957, in

People

v.

Moore,

Crim. 5992, is recalled and the judgment of this court filed May 10, 1957, in that case (48 Cal.2d 541) is vacated; the judgment of the trial court and its order denying a motion for new trial are vacated; the cause is remanded to the Superior Court of the State of California in and for the County of San Bernardino with directions to again hear and determine the motion for a new trial or reduction of the degree of the offense and to enter the appropriate judgment or order in accordance with the views set forth in

People

v.

Sheran,

49 Cal.2d 101 [315 P.2d 5];