Later courts went against this
Overruled on other grounds by People v. Anderson, 43 Cal. 3d 1104 (1987)
37 Cal.3d 302, 328-329 , overruled in part by People v. Anderson, supra,
Distinguished
Distinguished by People v. Scheid, 16 Cal. 4th 1 (1997)
Turner therefore is distinguishable.
The opinion
MOSK, J., Concurring and Dissenting.
. . I concur in the plurality’s disposition of this appeal insofar as it affirms the judgment as to guilt, sets aside the special circumstances findings, and reverses the judgment as to penalty.
I dissent from Part II.2.a of the plurality opinion (ante, pp. 313-315) insofar as it purports to answer the question we expressly left open in People v. Zimmerman (1984) 36 Cal.3d 154, 161 , footnote 6 [ 202 Cal.Rptr. 826 , 680 P.2d 776 ], i.e., whether “the use of peremptory challenges to systematically exclude persons who had reservations about the death penalty” denies a capital defendant “his due process right to a ‘neutral’ or impartial penalty phase jury within the meaning of Witherspoon v. Illinois (1968) 391 U.S. 510 . . . .” I disagree with the plurality’s answer to that question for the reasons stated in Parts I, II, and V (except pp. 342-344, ante) of the concurring and dissenting opinion by the Chief Justice in this case.
Respondent’s petition for a rehearing was denied January 17, 1985. Bird, C. J., and Lucas, J., were of the opinion that the petition should be granted.