IN RE: Daniel Allen ROBERTS on Habeas Corpus. (1970)

In this habeas corpus proceeding, petitioner contends that the judgment imposing the death sentence upon him should be set aside on the ground that the jury was selected in violation of Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, and on the ground that for various reasons the death penalty is unconstitutional as administered in this state. The record demonstrates Witherspoon error. Petitioner's other contentions were answered adversely to him in In re Anderson (1968) 69 Cal.2d 613, 73 Cal.Rptr. 21, 447 P.2d 117. Accordingly, the remittitur issued in People v. Roberts, 65 Cal.2d 514, 55 Cal.Rptr. 412, 421 P.2d 420, is recalled and the judgment imposing the death penalty is reversed insofar as it relates to the penalty. In all other respects the judgment is affirmed. Petitioner is remanded to the custody of the Superior Court of the City and County of San Francisco for a new trial on the issue of penalty.

I dissent. I would affirm the judgment in its entirety. (See Cal.Const. art. VI, s 13.)

PER CURIAM.

MOSK, J., did not participate.