
    [Crim. No. 15284.
    In Bank.
    June 27, 1972.]
    THE PEOPLE, Plaintiff and Respondent, v. NATHAN ELMONT ELI, Defendant and Appellant.
    Counsel
    Nathan Elmont Eli, in pro. per., Paul N. Halvonik and Charles C. Marson for Defendant and Appellant.
    Evelle J. Younger, Attorney General, William E. James, Assistant Attorney General, and Robert F. Katz, Deputy Attorney General, for Plaintiff and Respondent.
   Opinion

BURKE, J.

Nathan Eli was convicted of first degree murder, and his penalty was fixed at death. The judgment was affirmed. (People v. Eli, 66 Cal.2d 63 [56 Cal.Rptr. 916, 424 P.2d 356] [cert. den. 389 U.S. 888 (19 L.Ed.2d 188, 88 S.Ct. 136)].) Thereafter under the compulsion of Witherspoon v. Illinois, 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], the judgment was reversed insofar as it related to the death penalty and affirmed in all other respects. (In re Eli, 71 Cal.2d 214 [77 Cal.Rptr. 665, 454 P.2d 337] [cert. den. 396 U.S. 1020 (24 L.Ed.2d 512, 90 S.Ct. 589)].) At the penalty retrial Eli’s penalty was again fixed at death, and his automatic appeal is now before us. (Pen. Code, § 1239, subd. (b).)

People v. Anderson, 6 Cal.3d 628 [100 Cal.Rptr. 152, 493 P.2d 880], held that the death penalty violated our state constitutional provision proscribing cruel or unusual punishment. (Art. I, § 6, Cal. Const.) Since Eli’s death penalty must therefore be set aside, it is unnecessary to consider his claims of error regarding his second penalty trial.

In his in propria persona, brief on appeal Eli also requests that the remittitur be recalled and the judgment of guilt vacated. Each of the grounds relied upon has been examined, and none warrants our recalling the remittitur.

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. Pursuant to defendant’s request, the motion to vacate the death sentence and remand the case to the superior court for resentencing is dismissed.

Wright, C. J., Peters, J., Tobriner, J., Mosk, J., and Sullivan, J., concurred.

McCOMB, J.

For the reasons stated in my dissenting opinion in People v. Anderson, 6 Cal.3d 628, 657 [100 Cal.Rptr. 152, 493 P.2d 880], I would deny defendant’s motion to vacate the death sentence and would affirm the judgment in its entirety.

Appellant’s petition for a rehearing was denied July 26, 1972.  