Maggio

This cause was heretofore before us on an appeal from the judgment and an order denying a motion for a new trial. The judgment and order were affirmed on April 6, 1928. (See People v. Maggio, 90 Cal. App. 683 [ 266 Pac. 813 ].) After the remittitur had gone down and on June 1, 1928, upon motion of the defendant the trial judge modified the judgment theretofore rendered and affirmed by this court, by which the defendant was sentenced to imprisonment at San Quentin for the term provided by law, to one in which the defendant was fined in the sum of five hundred dollars. The People prosecute this appeal from the order made amending and modifying the judgment. The respondent has made a motion to dismiss the appeal on the ground that the People have no right to appeal from such an order. Section 1238 of the Penal Code provides that “An appeal may be taken by the people. ... 5. Prom an order made after judgment affecting the substantial rights of the people.” If this appeal is properly prosecuted it must be by virtue of this language. Respondent seriously argues that from all of the testimony which was before this court on the former hearing it appears that the punishment sought to be…