prosecutor informed court during voir dire that if a venireperson expressing scruples about the death penalty "were not a challenge for cause, I would kick her off on a peremptory challenge"
How later courts described this case
- prosecutor informed court during voir dire that if a venireperson expressing scruples about the death penalty "were not a challenge for cause, I would kick her off on a peremptory challenge"
Written by the judges who cited it.
Later courts went against this
Overruled in part by People v. McKinnon, 52 Cal. 4th 610 (2011)
For this and the additional reasons discussed below, we overrule People v. Velasquez, supra, 26 Cal.3d 425, to the extent it provides that failure to object to a Witherspoon excusal at trial does not forfeit the issue on appeal.
Criticized by People v. Valencia, 112 Cal. App. 3d 939 (1980)
We reject the reliance on the Velasquez opinions.
The opinion
NEWMAN, J., Concurring and Dissenting.
I concur with the majority except that I believe we should decide the sufficiency of the evidence to support the jury’s finding of the truth of the first alleged special circumstance, that “[t]he murder was willful, deliberate, and premeditated and was committed during the commission.. .of.. .[rJobbery...” (former Pen. Code, § 190.2, subd. (c)(3)). That finding will directly affect any retrial ensuing our reversal of the judgment insofar as it relates to penalty.
Former Penal Code section 190.3 provides: “In determining the penalty the trier of fact shall take into account any of the following factors if relevant: [If] (a) The circumstances of the crime of which the defendant was convicted. .. and the existence of any special circumstances *448 found to be true... .” Accordingly, on remand the finding that the murder was willful, deliberate, and premeditated and committed during commission of a robbery is likely to be submitted to the jury as a special circumstance to be considered in determining the penalty. If we were to strike the finding the jury would be advised as to the robbery itself as among “the circumstances of the crime” but would not be advised that the murder had been found to be willful, deliberate, and premeditated.
The majority says that we need not consider error in instructing the jury about the finding of the penalty phase of the prior trial, “[s]ince we find that other grounds compel reversal of the penalty verdict.” (Ante, p. 436, fn. 8.) However, should we not direct the trial court to refrain from repeating its instruction at the penalty retrial if the finding did lack sufficient evidentiary support?
My view is that there was insufficient proof of deliberation and premeditation. The majority properly notes that there was no substantial evidence of any plan to kill and that “proof of a sudden killing in the course of an argument and struggle between defendants and the attendant would not prove a deliberate and premeditated murder.” Yet their opinion raises the possibility of inferring deliberation and premeditation from the testimony of the Somerses, which “suggests that Valencia restrained Casas while Velasquez held him at gun point for a brief period before shooting him.” (Ante, p. 435.) The Somerses’ observation of that restraint occupied but a few seconds; they saw it first while driving out of the station and immediately sped for help. Their momentary observation seems insufficient to establish premeditation or deliberation in the absence of other proof of plan or motive. (People v. Anderson (1968) 70 Cal.2d 15, 26-27 [ 73 Cal.Rptr. 550 , 447 P.2d 942 ].) The Somerses did not see the shooting. The witness Leyva, who did hear a shot, testified it was preceded by a struggle.
The evidence is insufficient unless it supports a rational conclusion that the prosecution proved deliberation and premeditation beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318 [ 61 L.Ed.2d 560, 573 , 99 S.Ct. 2781, 2789 ]; People v. Reilly (1970) 3 Cal.3d 421, 425 [ 90 Cal.Rptr. 417 , 475 P.2d 649 ]; In re Frederick G. (1979) 96 Cal.App.3d 353, 362-365 [ 157 Cal.Rptr. 769 ].) Thus I would supplement the majority’s reversal with directions to the trial court (1) to strike the finding of the special circumstance of willful, deliberate, *449 and premeditated murder during the commission of robbery, and (2) to conduct the penalty retrial accordingly.
The petitions of both parties for a rehearing were denied February 27, 1980. Clark, J., Richardson, J., and Manuel, J., were of the opinion that the petitions should be granted.
By order dated June 30, 1980, the United States Supreme Court vacated the judgment of the California Supreme Court and remanded the cause for further consideration in light of Adams v. Texas (1980) 448 U.S. —.