failure to exercise all peremptory challenges waives claim trial court erroneously refused to excuse juror for cause
How later courts described this case
- failure to exercise all peremptory challenges waives claim trial court erroneously refused to excuse juror for cause
- presumptive tests for blood are generally accepted by California courts and have been used by criminologists and admitted into evidence in that state for over 40 years
- conc. and dis. opn. of Mosk, J.
Written by the judges who cited it.
The opinion
MOSK, J., Concurring and Dissenting.
I agree with the majority that the error in admitting expert testimony in violation of the Kelly-Frye rule (People v. Kelly (1976) 17 Cal.3d 24 [ 130 Cal.Rptr. 144 , 549 P.2d 1240 ]; Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013 [ 54 App.D.C. 46 , 34 *789 A.L.R. 145 ]) was not reversible under the Watson test. (People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ].) Therefore I would affirm the judgment of guilt.
On the other hand, I agree with Justice Broussard that the inculpatory evidence in this case is demonstrably thin. Even as catalogued by the majority, it cannot possibly be deemed “quite substantial.” (Maj. opn., p. 775.)
In the interest of justice and in good conscience I cannot send this defendant to his death in the gas chamber on a record of such frail evidence. Therefore, I would exercise our authority under Penal Code sections 1260 and 1181, subdivision 7 (see, e.g., People v. Lucero (1988) 44 Cal.3d 1006, 1034-1036 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ] (conc. and dis. opn. of Mosk, J.)) and vacate the judgment as to penalty and remand the cause to the trial court with directions to impose a sentence of life imprisonment.