court aware of no case in which error such as reference to commutation "has been found nonprejudicial in a death penalty case" and court strongly doubted it "could ever confidently conclude that there was no reasonable possibility" the jury's decisionmaking process was tainted
How later courts described this case
- court aware of no case in which error such as reference to commutation "has been found nonprejudicial in a death penalty case" and court strongly doubted it "could ever confidently conclude that there was no reasonable possibility" the jury's decisionmaking process was tainted
- Myers “relied almost entirely on the statistical studies, legal briefs, referee’s report, and order in the Rhymes case”
Written by the judges who cited it.
The opinion
*295 BROUSSARD, J., Dissenting.
I agree with the dissent of the Chief Justice in all respects except one. She suggests that the majority of this court in People v. Harris (1984) 36 Cal.3d 26 [ 201 Cal.Rptr. 782 , 679 P.2d 433 ], certiorari denied (1984) 469 U.S. 965 [ 83 L.Ed.2d 301 , 105 S.Ct. 365 ], reached a consensus on the question whether a prima facie showing of underrepresentation could be rebutted with statistics indicating the lack of underrepresentation when the effects of the 20-mile rule are taken into account. The Chief Justice’s dissent states: “From this review of the opinions in Harris, it is clear that four members of this court were of the view that a prima facie showing of underrepresentation could be made with countywide figures, but that such a showing might be rebutted with statistics indicating the lack of underrepresentation when the effects of the 20-mile rule (or some less-than-countywide rule) are taken into account.” (Dis. opn. at p. 281, fn. omitted.)
I do not agree that a consensus was reached on the effect of the 20-mile rule. In Harris, we merely stated that the parties had assumed that it was the countywide figures which were significant, and that the state had not attempted to rebut the defendant’s showing on the basis of statistics from the 20-mile area. Thus the issue was not presented in Harris. (See Harris, supra, 36 Cal.3d at p. 48 .) Nor is it presented in this case since, as the Chief Justice’s dissent amply demonstrates, the issue was not preserved below.
Appellant’s petition for a rehearing was denied April 2, 1987.