JEFFERSON (Bernard), J. — I dissent.
The majority finds no error sufficient to justify a reversal of defendant’s conviction. I do.
I
The Exclusion, Prior to the Guilt Phase of Defendant’s Trial, of Prospective Jurors Who Expressed Conscientious Scruples Against Capital Punishment to the Extent That They Could Not Vote for the Death Penalty Irrespective of the Evidence, Constituted a Denial of Defendant’s Constitutional Rights to Due Process of Law, Equal Protection of the Laws, and a Fair and Impartial Trial by Jury
In selecting jurors for the guilt phase of defendant’s trial, the trial court conducted a voir dire examination of prospective jurors regarding their views on the death penalty. Six prospective jurors were excused for cause [455]and one prospective alternate juror was excused for cause as a result of the court’s voir dire examination.
It is defendant’s contention that since, under the provisions of section 190.1 of the Penal Code in existence at the time of defendant’s trial, the jury was not required or authorized to recommend or impose the death penalty for murder as contrasted with life imprisonment, but only to find whether the special-circumstances allegations were true or not, there was no legal justification for permitting a voir dire examination of prospective jurors to determine their attitude toward the death penalty.
Defendant points out that such inquiry (1) led to the exclusion of prospective jurors who asserted that their conscientious scruples against, or attitude toward, the death penalty would preclude a fair consideration of defendant’s guilt or innocence, or of whether the special circumstances were true or not; and (2) led to the leaving on the jury of those persons who possessed conscientious scruples against the death penalty but who indicated that they would still be able to determine the issues of guilt or special circumstances, based upon the evidence. It is the contention of defendant that such inquiry, therefore, created a guilt-prone jury and, hence, denied to defendant his constitutional due process and equal protection rights and his right to a fair and impartial jury made up of a broad cross-section of the community.
The majority rejects this contention. I consider the contention meritorious.
I begin with a consideration of principles set forth in Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]. Witherspoon declared that a sentence of death cannot be 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 infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.” (Id., at pp. 522-523 [20 L.Ed.2d at pp. 784-785]; fns. omitted.)
The essence of Witherspoon is that prospective jurors in a death penalty case may not be excluded from serving on the jury simply because they voice general objections to the death penalty, or simply express conscientious or religious scruples against its infliction, but do not state unambiguously that they would automatically vote against the imposition of [456]capital punishment no matter what the evidence at trial might reveal. These Witherspoon principles were affirmed in Boulden v. Holman (1969) 394 U.S. 478 [22 L.Ed.2d 433, 89 S.Ct. 1138], and Maxwell v. Bishop (1970) 398 U.S. 262 [26 L.Ed.2d 221, 90 S.Ct. 1578].
It is the thesis of defendant that Witherspoon left open the question of whether, in a capital punishment case, the exclusion for cause from a jury selected to determine guilt of persons who assert that their views against the death penalty are such that they would automatically vote against the imposition of the death penalty under any and all circumstances or would be prevented from making an impartial decision as to the defendant’s guilt, produces a guilt-prone jury which denies to defendant due process of law, equal protection of the law and a right to a fair trial by a jury chosen at random from a cross-section of the community.
Defendant urges that the procedure of questioning prospective jurors relative to their attitudes toward the death penalty and excusing, for cause, those who cannot put aside their attitudes in assessing the evidence as to guilt or innocence, denies to a defendant the right to a jury chosen from a randomly selected cross-section of the community in violation of due process, equal protection and fair jury-trial constitutional rights.
Defendant argues that, under the provisions of Penal Code sections 190 and 190.1, as they existed at the time of his trial, the questioning of prospective jurors on voir dire examination regarding their views as to the death penalty constituted a totally irrelevant consideration on the issue of juiy qualifications. Defendant points out that the jury in the case at bench was only required to determine first, his guilt or innocence of the offense of murder, and second, the truth or falsity of the allegations with respect to special circumstances.
Prior to 1973, Penal Code section 190.1 provided that the trier of fact, if it were the jury, would fix the penalty of death or life imprisonment based upon the evidence presented such as the circumstances surrounding the crime, the defendant’s background and history, and of any facts in aggravation or mitigation of the penalty. In 1972, Penal Code section 190.1 was declared by People v. Anderson (1972) 6 Cal.3d 628 [100 Cal.Rptr. 152, 493 P.2d 880], to be violative of article I, section 6 of the California Constitution, which proscribes cruel or unusual punishments.
However, in 1973, the pre-1973 provisions of Penal Code section 190.1 were repealed and a new 190.1 section was added to the Penal Code. [457]Under the 1973 version of section 190.1, the penalty of death was to be imposed “only upon the finding of the truth of the special circumstances enumerated in Section 190.2 [of the Penal Code].” Under this 1973 version of Penal Code section 190.1, “[t]he determination of the truth of any or all of the special circumstances charged shall be made by the trier of fact on the evidence presented.”
It is clear that the function of the jury was changed radically in the 1973 version of Penal Code section 190.1 from what its function had been in the pre-1973 version of Penal Code section 190.1. It is also clear that the Witherspoon principles were enunciated by the Witherspoon court in light of an Illinois statute that resembled the pre-1973 version of California’s Penal Code section 190.1, since the jury in Illinois had the duty and discretion to fix the penally for murder as either death or life imprisonment.1
Under such circumstances, it was essential, therefore, that a prospective juror’s attitude toward capital punishment be elicited in order to qualify him to sit on the jury and make a fair determination, based upon the evidence, of defendant’s guilt or innocence and, in the case of guilt, the appropriate punishment. It is not at all clear, however, how a prospective juror’s attitude toward capital punishment has any relevancy whatever under the post-1972 version of Penal Code section 190.1, to determine such juror’s qualification to serve in a murder case since the jury was required only to determine guilt or innocence of the defendant and the truth or falsity of allegations of special circumstances.
In noncapital cases involving felonies of various kinds, no voir dire inquiry is made of prospective jurors regarding their attitudes toward the penalty or punishment that may be imposed for particular crimes, whether the crime charged be rape, robbery, burglary, or some other felony, and even though the finding of the existence of special circumstances charged in the information results in the court’s imposition of a more severe sentence. No valid reason is suggested by the majority, and none appears to me, why prospective jurors should be questioned about their views on penalty in a murder case as distinguished from a robbery, rape or burglary case where the truth or falsity of special-circumstances allegations are submitted to the jury for determination.
[458]The People argue simply that the Witherspoon principles have been followed in subsequent cases and that the California Supreme Court has repeatedly held that excusing a prospective juror for cause is proper if he states that he would not vote for the death penalty under any circumstances, and that even the improper exclusion of jurors because of scruples against the death penalty does not, in and of itself, create an unfair jury with respect to the guilt phase of a defendant’s trial.
This argument has validity only upon an assumption that jurors would automatically know that in a murder case where there are allegations of special circumstances, the penalty that the court will impose will be death or life imprisonment, dependent upon whether the allegations of special circumstances are found by the jury to be true or not. But this is sheer speculation.
The majority accepts the premise that prospective jurors know that the allegations of special circumstances means a request for the death penalty, and asserts that it is naive to argue to the contrary. But in adopting such a premise, the majority of necessity is taking judicial notice of a matter that is simply not the subject of judicial notice. The majority’s view constitutes a violation of Evidence Code section 450 which provides: “Judicial notice may not be taken of any matter unless authorized or required by law.” The question of what prospective jurors know does not fall within any category of matters made the subject of judicial notice by Evidence Code section 451 or 452.
No judge, trial or appellate, is free to take judicial notice of a matter simply because he personally believes it is not reasonably subject to dispute. To be the proper subject of judicial notice, a matter must fall within a category that is sanctioned or required for judicial notice by either a statutory provision or a judicial decision. This is the essential meaning of Evidence Code section 450. In the case at bench, however, the majority ignores this principle of law by substituting the majority’s personal beliefs for the objective requirements of Evidence Code section 450.
In other than murder cases, it is usual for the court to give CALJIC instruction No. 17.42, which provides: “In your deliberations the subject of penalty or punishment is not to be discussed or considered by you. That is a matter which must not in any way affect your verdict.” In People v. Shannon (1956) 147 Cal.App.2d 300 [305 P.2d 101], the giving of CALJIC instruction No. 17.42 in a burglaiy case was objected to by the defendant on the ground that it suggested guilt of the defendant. In [459]rejecting such suggestion, the court stated: “On the contrary, it directs the jury not to involve the question of guilt with a consideration of the penally. That is the law. Without that advice a jury may permit their consideration of guilt to be deflected by a dread of seeing the accused suffer the statutory punishment.” (Id., at p. 306.)
And in the case at bench, in the special-circumstances phase of the trial, after defendant’s guilt had been determined, a similar instruction was given, to wit, CALJIC instruction No. 8.86.5. This instruction reads: “In your deliberations the subject of penalty or punishment is not to be discussed or considered by you. That is a matter which must not in any way affect your finding as to the special circumstances charged in this case.”
It is true that, in prior cases, the California Supreme Court, in the wake of Witherspoon, has rejected the contention that the exclusion, during the guilt trial of a death penally murder case, of prospective jurors who are unwilling to impose the death penalty, made the jury a guilt-prone jury. In People v. Murphy (1972) 8 Cal.3d 349, 368 [105 Cal.Rptr. 138, 503 P.2d 594], the court stated: “He requests an evidentiary hearing to develop the argument that ‘empirical evidence is now available [citing Jurow, New Data on the Effect of a “Death Qualified” Jury on the Guilt Determination Process (1971) 84 Harv.L.Rev. 567] indicating that a jury from which persons who would never vote to impose the death penalty are excluded is a “hanging jury” with regard to determination of guilt [i.e., more likely to convict].’ Similar requests were made in People v. Sirhan (1972) 7 Cal.3d 710, 747-749 [102 Cal.Rptr. 385, 497 P.2d 1121], People v. Robles, supra, 2 Cal.3d 205, 219 [85 Cal.Rptr. 166, 466 P.2d 710], In re Arguello (1969) 71 Cal.2d 13, 16 [76 Cal.Rptr. 633, 452 P.2d 921], and In re Anderson (1968) 69 Cal.2d 613, 620-621 [73 Cal.Rptr. 21, 447 P.2d 117], and were rejected for various reasons. We must again reject the contention not only because of our decision in People v. Anderson, supra, 6 Cal.3d 628 but because we are not willing to accept as decisive the conclusion of the Jurow study 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. Defendant simply fails to establish the validity of such a claim.” A year after Murphy, the California Supreme Court spoke in similar fashion in People v. Rhinehart (1973) 9 Cal.3d 139, 155 [107 Cal.Rptr. 34, 507 P.2d 642].
But even though defendant has not established that the jury selection procedures in the case at bench resulted in a guilt-prone jury, it is my [460]view that those procedures did result in excluding from service on the jury a large and identifiable segment of the community, which constitutes error. In Peters v. Kiff (912) 407 U.S. 493, 503-504 [33 L.Ed.2d 83, 94, 92 S.Ct. 2163], the United States Supreme Court declared: “When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.” (Fn. omitted.)
In Adams v. Superior Court (1974) 12 Cal.3d 55, 59 [115 Cal.Rptr. 247, 524 P.2d 375], the California high court points out that the United States Supreme Court, in Williams v. Florida (1970) 399 U.S. 78 [26 L.Ed.2d 446, 90 S.Ct. 1893], “... explained that the jury impartiality provisions of the Sixth Amendment to the federal Constitution require the jury selection process to provide a ‘fair possibility for obtaining a representative cross-section of the community.’ The process of selection must be structured to insure that cognizable classes of citizens are not systematically excluded from jury service.” Although Adams points out that selection of a jury from a cross-section of the community is intended to insure that there shall be no “systematic and intentional exclusion of economic, sexual, social, religious, racial, political, or geographical groups” (Adams, supra, 12 Cal.3d 55, 60), I am satisfied that Adams did not intend to make this group listing as all-inclusive.
The Adams case interprets Witherspoon as holding that “before exclusion may be held improper, there must be a common thread running through the excluded group — a basic similarity of attitudes, ideas or experience among its members so that the exclusion prevents juries from reflecting a cross-section of the community.” (Id., at p. 60.)
In view of the fact that the provisions of Penal Code sections 190 and 190.1, as they existed at the time of defendant’s trial, made a juror’s attitude regarding the death penalty an irrelevant consideration, the exclusion from the jury of persons who had a fixed and unalterable aversion to the death penalty amounted to an arbitrary exclusion of an otherwise identifiable, ascertainable and eligible group of citizens. The excluded group certainly meets the Witherspoon-Adams test of having “a common thread running through the excluded group — a basic similarity [461]of attitudes, ideas or experience among its members so that the exclusion prevents juries from reflecting a cross-section of the community.” (Adams, supra, 12 Cal.3d 55, 60.)
Since the jury in defendant’s case had no responsibility in recommending punishment upon a finding of guilt, and no legitimate interest in ascertaining what the appropriate punishment should be, there is a failure of the People to establish that the state had any legitimate purpose in excusing for cause, at the guilt-phase trial or the special-circumstances phase, members of the class indicated. (Taylor v. Louisiana (1975) 419 U.S. 522 [42 L.Ed.2d 690, 95 S.Ct. 692]; Williams v. Florida (1970) 399 U.S. 78 [26 L.Ed.2d 446, 90 S.Ct. 1893]; People v. Jones (1973) 9 Cal.3d 546 [108 Cal.Rptr. 345, 510 P.2d 705].)
I next consider the question of the effect of the error involved in the jury selection procedure employed in the case at bench. The error is one of constitutional dimension. In determining whether the error is prejudicial and reversible, consideration must be given to whether the prejudicial-per-se rule of error applies to mandate a reversal of defendant’s conviction, irrespective of the evidence of defendant’s guilt, or, whether the error may be deemed harmless through application of the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065].
The Chapman court recognized that “... there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error, ...” (Chapman, supra, 386 U.S. 18, 23 [17 L.Ed.2d 705, 710].) My analysis of the problem indicates that the prejudicial-per-se rule of error is applicable in the instant case rather than the harmless-constitutional-error rule set forth in Chapman. In Taylor v. Louisiana (1975) 419 U.S. 522 [42 L.Ed.2d 690, 95 S.Ct. 692], dealing with the right of a male defendant to be tried by a jury from which women were not excluded, the court described the importance and significance of the juiy-trial-fair-cross-section requirement in this language: “We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.... Restricting jury service to only special [462]groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.” (Taylor, supra, 419 U.S. 522, 530 [42 L.Ed.2d 690, 698].)
That there is no necessity for a defendant to show actual prejudice from the improper jury exclusion procedure is amply demonstrated by the view set forth in Peters v. Kiff (1912) 407 U.S. 493, 502 [33 L.Ed.2d 83, 93, 92 S.Ct. 2163], in which the court stated that “even if there is no showing of actual bias in the tribunal, this Court has held that due process is denied by circumstances that create the likelihood or the appearance of bias.” (Italics added.) The Peters court added: “But the exclusion from jury service of a substantial and identifiable class of citizens has a potential impact that is too subtle and too pervasive to admit of confinement to particular issues or particular cases.” (Peters, supra, 407 U.S. 493, 503 [33 L.Ed.2d 83, 94].)
In light of the principles set forth in Taylor and Peters, it is my view that the error involved in the jury selection procedure employed in the case at bench constitutes prejudicial error per se, because of the “likelihood or the appearance of bias” created thereby, and mandates a reversal of defendant’s judgment of conviction.
II
Evidence That Defendant Assaulted the Police Officer Who Arrested Him First on a Minor Charge Is Not Admissible to Show Consciousness of Guilt
The majority concedes that it was error for the trial court to admit evidence that defendant kicked the arresting officer in the chest upon the defendant’s arrest for being drunk in a public place. But the majority concludes that the incident was of such little probative force that it was not prejudicial. I disagree.
The admitted evidence had a potential for great prejudice to defendant because of its possible misuse by the jury as character trait or propensity evidence, made inadmissible by Evidence Code section 1101, subdivision (a). As indicated in People v. Thornton (1974) 11 Cal.3d 738, 756 [114 Cal.Rptr. 467, 523 P.2d 267], where other-crimes evidence was offered on the issue of identity, the court remarked that “because the prejudicial effect of such evidence is always manifest, the court’s discretion should be [463]exercised in favor of exclusion if the inference of identity is weak.” “Although Evidence Code section 352 gives the trial judge wide discretion, it is a discretion that must be exercised with discerning care in connection with the question of the admissibility of other-crimes evidence offered against a defendant, because of the inherently prejudicial nature of such evidence as constituting character trait and propensity evidence.” (People v. Gibson (1976) 56 Cal.App.3d 119, 131 [128 Cal.Rptr. 302].)
Because of the prejudicial errors involved in the jury-selection procedure employed in the case at bench and in the receipt into evidence of character-trait evidence, I would reverse the judgment of conviction and remand the case for a new trial. Defendant deserves a new trial, so that he can be tried on “relevant, nonprejudicial evidence” (People v. Guerrero (1976) 16 Cal.3d 719, 730 [129 Cal.Rptr. 166, 548 P.2d 366]), and before a validly selected jury.
A petition for a rehearing was denied June 20, 1978. Jefferson, J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied July 27, 1978.
In Witherspoon, the court remarked: “For in this case the jury was entrusted with two distinct responsibilities: first, to determine whether the petitioner was innocent or guilty; and second, if guilty, to determine whether his sentence should be imprisonment or death.” (Witherspoon, supra, 391 U.S. 510, 518 [20 L.Ed.2d 776, 782-783]; fn. omitted.)