THE PEOPLE, Respondent,
v.
FRANK M. HESLEN, Appellant.

J. Oscar Goldstein and Burton J. Goldstein for Appellant.

Robert W. Kenny, Attorney General, David K. Lener, Deputy Attorney General, John Quincy Brown, District Attorney, Albert H. Mundt, Chief Deputy District Attorney, and John B. Heinrich, Deputy District Attorney, for Respondent.

CARTER, J.

[1] In this case a judgment imposing the death penalty upon defendant for first degree murder was reversed by this court on November 1, 1945, on the ground that the jury was erroneously instructed relative to the distinction between first and second degree murder. (People v. Heslen, (Cal.) 163 P.2d 21.) On November 29, 1945, pursuant to respondent's petition, a rehearing was granted. The case was then placed on the calendar for argument at which time the respondent made a motion to modify the judgment by reducing it from a judgment of first degree murder to a judgment of second degree murder. Counsel for defendant *521 appeared and stated that he would not resist the motion. Under all the circumstances the motion should be granted.

The judgment of the trial court is, therefore, modified by reducing it to murder of the second degree, and as so modified, is affirmed. The cause is remanded to the trial court with directions to pronounce judgment upon defendant sentencing him for the term prescribed by law for murder of the second degree.

Gibson, C.J., Shenk, J., Traynor, J., Schauer, J., and Spence, J., concurred.