
    [Crim. No. 12006.
    In Bank.
    Apr. 24, 1969.]
    In re EDWARD LOUIS ARGUELLO on Habeas Corpus.
    
      Paul N. Halvonik, Gary D. Berger, Jerome B. Falk, Jr., Charles Stephen Ralston, Anthony G. Amsterdam, Richard Bancroft, Roy Eisenhardt, Jack Greenberg, Leroy D. Clark, Marshall W. Krause, Garfield Stewart, Blarry J. Kreamer, Thomas Whelan and Nathaniel Colley for Petitioner.
    Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, and Deraid E. Granberg, Deputy Attorney General, for Respondent.
    
      
       Assigned by the Chairman of the Judicial Council.
    
   BURKE, J.

Counsel for Edward Louis Arguello petitions for a writ of habeas corpus in which he raises the same contentions presented in In re Anderson and Saterfield, 69 Cal.2d 613 [73 Cal.Rptr. 21, 447 P.2d 117], We have concluded that Arguello’s claim that error under Witherspoon v. Illinois, 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 17701, compels setting aside the death penalty must be upheld and that it is therefore necessary to remand him to the trial court for a new trial limited to the issue of penalty.

Arguello was found guilty by a jury of first degree murder and the penalty was fixed at death. On appeal, the judgment was reversed insofar as it related to penalty but affirmed in all other respects. (People v. Arguello, 61 Cal.2d 210 [37 Cal.Rptr. 601, 390 P.2d 377].) At the second penalty trial the death sentence was again imposed. On appeal we recalled the remittitur in People v. Arguello, supra, vacated our judgment, and reversed the judgment appealed from in its entirety. (People v. Arguello, 63 Cal.2d 556 [47 Cal.Rptr. 485, 407 P.2d 661].) A jury again found Arguello guilty of first degree murder and fixed the penalty at death, and we affirmed the judgment. (People v. Arguello, 65 Cal.2d 768 [56 Cal.Rptr. 274, 423 P.2d 202].)

At Arguello’s last trial six prospective jurors and four prospective alternate jurors were excluded on the ground of their opposition to the death penalty. Most of them were excused on the court’s own motion. Under Witherspoon v. Illinois, supra, 391 U.S. 510, it was improper to exclude one or more of the prospective jurors. For example, venireman Welsh stated that she did “not believe in the death penalty” and was thereupon excused. The court had not made it clear to her that opposition to the death penalty or conscientious scruples against that penalty would be insufficient to disqualify her from serving. This was understandable since the trial was long before the United States Supreme Court rendered its decision in Witherspoon, which sets forth new rules that the states are required to follow and to apply retroactively (391 U.S. 510, 523, fn. 22 [20 L.Ed.2d 776, 785]).

The Attorney. General does not dispute that it was error under Witherspoon to exclude for cause venireman Welsh, but the Attorney General urges that we reconsider the conclusion in Anderson and Saterfield, supra, 69 Cal.2d 613, 618-620, that under Witherspoon such an error automatically requires reversal of the death sentence.

The Attorney General cites Bell v. Patterson, 402 F.2d 394, in which the court concluded that under the circumstances there appearing error under Witherspoon in excluding two veniremen did not deprive the defendant of an impartial jury and therefore did not require a. reversal of the death sentence. Under the court’s analysis of the record in that case, the merits of which peed not concern us, the trial judge had the correct rule in mind but misapplied it, and the court emphasized that Witherspoon was distinguishable on its facts because there all the exclusions were the result of the intentional application of an improper standard. (See also State v. Mathis, 52 N.J. 238 [245 A.2d 20, 27].)

In the instant case, however, as in Witherspoon and in this court’s Anderson and Saterfield,. supra, eases the error in excluding one or more veniremen appears to have been the result of the intentional application of the standard existing at the time of the trial as established by statute or decisions of this court interpreting a statute (see Anderson and Saterfield, supra, 69 Cal.2d 613, 618-619, and cases cited therein), which standard is not permissible according to Witherspoon. Under the broad language of Witherspoon there can be no doubt that in such a situation the error automatically requires reversal of the death sentence.

In contending that the error under Witherspoon does not require reversal the Attorney General also points to general principles such as that an accused is not entitled to a jury composed of any particular individuals (People v. Abbott, 47 Cal.2d 362, 372 [303 P.2d 730]), but these principles do not aid him because Witherspoon is controlling. The Attorney General further states that when the jury was accepted the prosecutor had 11 peremptory challenges remaining and Ar-guello had at least one. However, error under Witherspoon cannot be held nonprejudicial because of unused peremptory challenges of the defense (Witherspoon v. Illinois, supra, 391 U.S. 510, 523, 533 [20 L.Ed.2d 776, 785, 791] or of the prosecution (Anderson and Saterfield, supra, 69 Cal.2d 613, 619-620).

Arguello also contends: (1) the death penalty constitutes cruel and unusual punishment; (2) the administration of the death penalty in the absence of prescribed standards violates the due process and equal protection clauses of the United States Constitution; (3) he was denied his right to counsel during a period of several months after our denial of a rehearing on his last automatic appeal; (4) exclusion of veniremen opposed to capital punishment denied him his right to an unbiased jury representing a cross-section of the community at the guilt phase of the trial. He requests an evidentiary hearing “on the allegations of this petition.”

The first three of the above contentions are settled by our decision in (Anderson and Saterfield, supra, 69 Cal.2d 613, and Arguello’s request for an evidentiary hearing on those issues is denied for the same reasons we denied a like request in the last mentioned cases.

With respect to Arguello’s claim that exclusion of veniremen opposed to capital punishment denied him his right to an unbiased jury representing a cross-section of the community at the gtiilt phase of the trial, in the absence of persuasive documentation we must agree with the United States Supreme Court that “We . . . cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, 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.” (Witherspoon v. Illinois, supra, 391 U.S. 510, 517-518 [20 L.Ed.2d 776, 782] ; see also Anderson and Saterfield, supra, 69 Cal.2d 613, 620-621; People v. Gonzales, 66 Cal.2d 482, 498-499 [58 Cal.Rptr. 361, 426 P.2d 929].) During the post-conviction proceedings under review in Witherspoon no request was made to submit evidence on the matter. As previously stated, however, Arguello has made a request for an evidentiary hearing relating to his claim.

In Anderson and Saterfield, supra, 69 Cal.2d 613, 621, before Witherspoon we denied a similar request. After With-erspoon, the petitioners in Anderson and Saterfield again requested an evidentiary hearing and stated that they had •arranged to have a described study made, that the study was not yet finished, and that preparation for the hearing would require at least several more months. We denied the request on the ground that the petitioners were then unready for an evidentiary hearing and that the type of' study they had underway did not warrant what would amount to an indeterminate stay of the judicial process. The instant ease differs from Anderson and Saterfield in that Arguello (1) does not state whether or not he is now prepared for an evidentiary hearing and (2) gives no indication of the nature of the evidence he intends to introduce. Under the circumstances here appearing an evidentiary hearing also is not warranted.

Under the compulsion of Witherspoon v. Illinois, supra, 391 U.S. 510, the writ is granted as to the penalty trial. The remittitur issued in Grim. 10129, People v. Arguello, is recalled and the judgment imposing the- death penalty is reversed insofar as it relates to the penalty. In all other respects it is affirmed. Arguello is remanded to the custody of the San Diego County Superior Court for a new penalty trial.

Traynor, C. J., McComb, J., Peters J., Tobriner, J., Sullivan, J., and Herndon, J. pro tem., concurred. 
      
      
         Witherspoon stated (391 U.S. 510, 521-523 [20 L.Ed.2d 776, 784-785]): “Specifically, we hold that a sentence of death cannot he 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 inflictions.21 No defendant can constitutionally be put to death at, the hands of a tribunal so selected,’’ and footnote 21 read in part, “The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given ease indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out even if applicable statutory or case la.w in the relevant jurisdiction would appear to support only a narrower ground of exclusion. . .
      
     