MEMORANDUM CASE
OPINION
THE COURT.
Defendant Joseph Bernard Morse was convicted of first degree murder and the penalty was fixed at death. The judgment was reversed insofar as it related to penalty and affirmed in all other respects. ( People v. Morse (1969) 70 Cal.2d 711 [ 76 Cal.Rptr. 391, 452 P.2d 607].) Upon retrial of the issue of penalty defendant's punishment was again fixed at death. This appeal is automatic. (Pen. Code, § 1239, subd. (b).)
In People v. Anderson (1972) 6 Cal.3d 628 [ 100 Cal.Rptr. 152, 493 P.2d 880], we held that the death penalty violated our state constitutional prohibition against cruel or unusual punishments. (Cal. Const., art. I, § 6.) And in Furman v. Georgia (1972) 408 U.S. 238 [33 L.Ed.2d 346, 92 S.Ct. 2726], the United States Supreme Court ruled that imposition of the death penalty in these circumstances contravened the federal Constitution. As defendant's death penalty must therefore be set aside, it is unnecessary to consider the claims of error arising out of his second penalty trial.
For the effect of article I, section 27, of the California Constitution on this issue, see People v. Murphy (1972) ante, pages 349, 352, footnote 2 [ 105 Cal.Rptr. 138, 503 P.2d 594].
In response to an inquiry by this court, counsel for defendant reviewed the record of the guilt phase of the trial and advised us there are no tenable grounds for attacking the judgment of guilt at this time. (See People v. Ketchel (1966) 63 Cal.2d 859, 866 [ 48 Cal.Rptr. 614, 409 P.2d 694].)
The judgment, insofar as it provides for the penalty of death, is modified to provide a punishment of life imprisonment and as so modified is affirmed.
Mosk, J., did not participate.