Counsel for Edward Louis Arguello petitions for a writ of habeas corpus in which he raises the same contentions presented in
In re Anderson
and
Saterfield,
69 Cal.2d 613 [73 Cal.Rptr. 21, 447 P.2d 117], We have concluded that Arguello’s claim that error under
Witherspoon
v.
Illinois,
391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 17701, compels setting aside the death penalty must be upheld and that it is therefore necessary to remand him to the trial court for a new trial limited to the issue of penalty.
Arguello was found guilty by a jury of first degree murder and the penalty was fixed at death. On appeal, the judgment was reversed insofar as it related to penalty but affirmed in all other respects.
(People
v.
Arguello,
61 Cal.2d 210 [37 Cal.Rptr. 601, 390 P.2d 377].) At the second penalty trial the death sentence was again imposed. On appeal we recalled the remittitur in
People
v.
Arguello, supra,
vacated our judgment, and reversed the judgment appealed from in its entirety.
(People
v.
Arguello,
63 Cal.2d 556 [47 Cal.Rptr. 485, 407 P.2d 661].) A jury again found Arguello guilty of first degree murder and fixed the penalty at death, and we affirmed the judgment.
(People
v.
Arguello,
65 Cal.2d 768 [56 Cal.Rptr. 274, 423 P.2d 202].)
At Arguello’s last trial six prospective jurors and four prospective alternate jurors were excluded on the ground of their opposition to the death penalty. Most of them were excused on the court’s own motion. Under
supra, 391 U.S. 510, it was improper to exclude one or more of the prospective jurors. For example, venireman Welsh stated that she did “not believe in the death penalty” and was thereupon excused. The court had not made it clear to her that opposition to the death penalty or conscientious scruples against that penalty would be insufficient to disqualify her from serving. This was understandable since the trial was long before the United States Supreme Court rendered its decision in
Witherspoon,
which sets forth new rules that the
[15]
states are required to follow and to apply retroactively (391 U.S. 510, 523, fn. 22 [20 L.Ed.2d 776, 785]).
The Attorney. General does not dispute that it was error under
Witherspoon
to exclude for cause venireman Welsh, but the Attorney General urges that we reconsider the conclusion in
Anderson
and
Saterfield, supra,
69 Cal.2d 613, 618-620, that under
Witherspoon
such an error automatically requires reversal of the death sentence.
The
Attorney
General cites
Bell
v.
Patterson,
402 F.2d 394, in which the court concluded that under the circumstances there appearing error under
Witherspoon
in excluding two veniremen did not deprive the defendant of an impartial jury and therefore did not require a. reversal of the death sentence. Under the court’s analysis of the record in that case, the merits of which peed not concern us, the trial judge had the correct rule in mind but misapplied it, and the court emphasized that
Witherspoon
was distinguishable on its facts because there all the exclusions were the result of the intentional application of an improper standard. (See also
State
v.
Mathis,
52 N.J. 238 [245 A.2d 20, 27].)
In the instant case, however, as in
Witherspoon
and in this court’s
Anderson
and Saterfield,.
supra,
eases the error in excluding one or more veniremen appears to have been the result of the intentional application of the standard existing at the time of the trial as established by statute or decisions of this court interpreting a statute (see
Anderson
and
Saterfield, supra,
69 Cal.2d 613, 618-619, and cases cited therein), which standard is not permissible according to
Witherspoon.
Under the broad language of
Witherspoon
there can be no doubt that in such a situation the error automatically requires reversal of the death sentence.
1
[16]
In contending that the error under
Witherspoon
does not require reversal the Attorney General also points to general principles such as that an accused is not entitled to a jury composed of any particular individuals
(People
v.
Abbott,
47 Cal.2d 362, 372 [303 P.2d 730]), but these principles do not aid him because
Witherspoon
is controlling. The Attorney General further states that when the jury was accepted the prosecutor had 11 peremptory challenges remaining and Ar-guello had at least one. However, error under
Witherspoon
cannot be held nonprejudicial because of unused peremptory challenges of the defense
(Witherspoon
v.
Illinois, supra,
391 U.S. 510, 523, 533 [20 L.Ed.2d 776, 785, 791] or of the prosecution
(Anderson
and
Saterfield, supra,
69 Cal.2d 613, 619-620).
Arguello also contends: (1) the death penalty constitutes cruel and unusual punishment; (2) the administration of the death penalty in the absence of prescribed standards violates the due process and equal protection clauses of the United States Constitution; (3) he was denied his right to counsel during a period of several months after our denial of a rehearing on his last automatic appeal; (4) exclusion of veniremen opposed to capital punishment denied him his right to an unbiased jury representing a cross-section of the community at the
guilt
phase of the trial. He requests an evidentiary hearing “on the allegations of this petition.”
The first three of the above contentions are settled by our decision in
(Anderson
and
Saterfield, supra,
69 Cal.2d 613, and Arguello’s request for an evidentiary hearing on those issues is denied for the same reasons we denied a like request in the last mentioned cases.
With respect to Arguello’s claim that exclusion of veniremen opposed to capital punishment denied him his right to an unbiased jury representing a cross-section of the community at the
gtiilt
phase of the trial, in the absence of persuasive documentation we must agree with the United States Supreme Court that “We . . . cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.”
(Witherspoon
v.
Illinois, supra,
391 U.S. 510, 517-518 [20 L.Ed.2d 776, 782] ; see also
Anderson
and
Saterfield, supra,
69 Cal.2d 613, 620-621;
People
v.
Gonzales,
66 Cal.2d 482, 498-499 [58 Cal.Rptr. 361, 426 P.2d 929].) During the post-conviction proceedings under review in
Witherspoon
no re
[17]
quest was made to submit evidence on the matter. As previously stated, however, Arguello has made a request for an evidentiary hearing relating to his claim.
In
Anderson
and
Saterfield, supra,
69 Cal.2d 613, 621, before
Witherspoon
we denied a similar request. After
With-erspoon,
the petitioners in
Anderson
and
Saterfield
again requested an evidentiary hearing and stated that they had •arranged to have a described study made, that the study was not yet finished, and that preparation for the hearing would require at least several more months. We denied the request on the ground that the petitioners were then unready for an evidentiary hearing and that the type of' study they had underway did not warrant what would amount to an indeterminate stay of the judicial process. The instant ease differs from
Anderson
and
Saterfield
in that Arguello (1) does not state whether or not he is now prepared for an evidentiary hearing and (2) gives no indication of the nature of the evidence he intends to introduce. Under the circumstances here appearing an evidentiary hearing also is not warranted.
Under the compulsion of
Witherspoon
v.
Illinois, supra,
391 U.S. 510, the writ is granted as to the penalty trial. The remittitur issued in Grim. 10129,
People
v.
Arguello,
is recalled and the judgment imposing the- death penalty is reversed insofar as it relates to the penalty. In all other respects it is affirmed. Arguello is remanded to the custody of the San Diego County Superior Court for a new penalty trial.
Traynor, C. J., McComb, J., Peters J., Tobriner, J., Sullivan, J., and Herndon, J. pro tem.,
*
concurred.
1
Witherspoon
stated (391 U.S. 510, 521-523 [20 L.Ed.2d 776, 784-785]): “Specifically, we hold that a sentence of death cannot he carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause,simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its inflictions.21 No defendant can constitutionally be put to death at, the hands of a tribunal so selected,’’ and footnote 21 read in part, “The most that can be demanded of a venireman in this regard is that he be willing to
consider
all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the
voir dire
testimony in a given ease indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out even if applicable statutory or case la.w in the relevant jurisdiction would appear to support only a narrower ground of exclusion.
. .
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Holding. The court held that the exclusion of prospective jurors based on general opposition to the death penalty, in violation of Witherspoon v. Illinois, requires an automatic reversal of the death sentence. Consequently, the defendant is remanded for a new penalty trial.
Issues
Does the exclusion of prospective jurors for general opposition to the death penalty require reversal of a death sentence under Witherspoon v. Illinois?
Does the exclusion of jurors opposed to capital punishment result in an unrepresentative jury on the issue of guilt?
Is an evidentiary hearing warranted regarding the claim that jury selection procedures denied the defendant an unbiased jury at the guilt phase?
Disposition. remanded
Quotations verified verbatim against the opinion
“Under the broad language of Witherspoon there can be no doubt that in such a situation the error automatically requires reversal of the death sentence.”
“Arguello is remanded to the custody of the San Diego County Superior Court for a new penalty trial.”