People v. Myers

729 P.2d 698, 43 Cal. 3d 250, 233 Cal. Rptr. 264, 1987 Cal. LEXIS 279

• Court: California Supreme Court
• Decided: January 2, 1987
• Docket: Crim. 21991
• Status: Published

Opinions

Opinion

GRODIN, J.

In January 1979, defendant Venson Lane Myers, along with several accomplices, committed two armed robberies of liquor stores, three weeks apart. During the second robbery, defendant shot both the store clerk and a patron, killing the patron. On the basis of these two incidents, a jury convicted defendant of one count of first degree murder (Pen. Code, §§ 187, 189),¹ one count of assault with intent to commit murder (§ 217), and three counts of robbery (§ 211); allegations of firearm use (§§ 12022.5, 1203.06) and great bodily injury (§ 12022.7) were also sustained. In addition, the jury found true one special circumstance allegation; that the murder was committed during the commission of a robbery. (§ 190.2, subd. (a)(17)(i).) At the initial penalty phase proceeding, the jury was unable to agree on penalty; a new jury was empaneled, and after a second penalty trial, the new jury returned a sentence of death. The matter is before us on automatic appeal. (§ 1239.)

Defendant raises only a single challenge to the guilt/special circumstance phase of the trial, contending that the trial court erred in failing to grant his motion for mistrial based on the procedure used in selecting the jury panel. Defendant’s jury challenge was directed at the county’s use of voter registration lists as the single source for jury panels, and was similar to a challenge that was recently before this court in People v. Harris (1984) 36 Cal.3d 36 [201 Cal.Rptr. 782, 679 P.2d 433]. Defendant contends that under Harris his conviction must be reversed. We conclude, however, by analogy to a decision of the United States Supreme Court involving a comparable challenge to a well-established jury selection procedure, that Harris should not be applied retroactively to invalidate convictions returned by juries that were selected and empaneled before the Harris decision was rendered. Accordingly, we affirm the judgment of guilt and the special circumstance finding.

At the penalty phase of the proceedings, however, the jury was given several instructions which may have seriously misled it both (1) as to the matters it should properly consider in determining sentence, and (2) even more fundamentally, as to the very nature of its ultimate task at the penalty phase. Under existing authorities, these errors clearly compel the reversal of the penalty judgment and a remand for a new penalty phase proceeding.

I.

We briefly review the evidence presented at the guilt/special circumstance and penalty phases of the trial.

A. Guilt/Special Circumstance Phase Evidence.

1. The La Verne Incident.

Cynthia Lopez, employed as a clerk at the El Rancho Seco Liquor Store in La Verne, testified that on January 7, 1979, about 7:20 p.m., three men— later identified as defendant, Michael Myers (defendant’s brother), and Ivan F 11—entered the store. Lopez looked up as defendant pointed a shotgun at her and ordered her to the ground.²

Michael Myers and Hill went behind the counter and attempted to open the cash register. When they were unable to do so, defendant ordered Lopez to get up and open it. She complied. Defendant then told the others to take the money out of the register. After they did so, the three ran from the store, defendant pointing the shotgun at Lopez as he left. Approximately $190 was taken during the incident.

Lopez testified that defendant did not appear to be intoxicated during the incident; he did not stagger and there was nothing unusual about his speech. No defense evidence was presented to contradict Lopez’s testimony.

2. The Glendora Incident.

According to the statement which defendant gave to the police after his arrest, defendant, Hill and Michael Benton drove by the B&J Liquor store in Glendora in the evening hours of January 23, 1979. They saw a long-haired clerk, whom they mistook for a woman, sitting in the store watching television, and decided to rob the store. After entering and discovering that the clerk was a man, however, they abandoned their robbery plan because he was tall and they did not have a gun. They bought a few items and left.

The next day, defendant borrowed a .22 caliber revolver from Angela Bryce, a friend, telling her that he needed it because somebody had “jumped” him. Later that evening, defendant, Hill, and Benton returned to the B&J Liquor store. They drove by four times before parking and leaving the car. As they approached the store, they decided not to enter because there was a customer inside and they did not want any witnesses. They reentered their car, drove around, came back and waited in the car. Finally, they decided to go into the store even though a customer was still inside.

When the three entered, Keith Hunt, the clerk, was sitting on a stepladder eating, while Thomas Leavall, the customer, was in another area of the store. Hunt testified to the events that occurred thereafter.

Immediately after entering the store, Benton and Hill jumped over the counter and went to the cash register while defendant drew the revolver and told Hunt to freeze. When Hill was unable to open the cash register, Hunt opened the register at Hill’s direction. Defendant then approached Leavall, and ordered him to get down on the floor. After Leavall complied, defendant took his wallet.

Defendant then ordered Hunt to lie down on the floor and to throw his wallet on the ground. According to Hunt, after defendant picked up the wallet, defendant took aim at Hunt’s head. As Hunt ducked, he heard a pop and then a click and then felt “a sensation in [his] head.” He rolled over onto his side and played dead.

Twenty to thirty seconds later, Hunt heard another pop in the area where Leavall had been. He next heard the running of feet and the click of the buzzer near the door. He opened his eyes and saw that he was bleeding. Hunt went over to the cash register, tripped the silent alarm, examined Leavall briefly and went to the bar next door for help. Eventually the police were called.

Leavall died a few weeks later from a gunshot wound to the head. Hunt survived, but required surgery on his jaw.

The police investigation produced abundant evidence tying defendant to the Glendora crimes. The police obtained the gun which defendant had returned to Angela Bryce after the shootings; bullet fragments removed from Leavall and Hunt were identified as having been fired by that gun. A search of defendant’s bedroom, pursuant to a warrant, uncovered Hunt’s and Leavall’s wallets.

After his arrest, defendant admitted the shooting to the police but told them that the gun had gone off accidentally as he was reaching for Hunt’s wallet. After that, he said, he had to shoot the other man. In addition, defendant’s brother, Michael, told the police that shortly after the incident, he overheard defendant say that he had “just shot two white dudes in the head.’’

3. The Defense.

Defendant presented a diminished capacity defense with respect to the Glendora offenses. Benton, one of the accomplices in the Glendora incident, testified that he was with defendant from 9 or 10 a.m. on the day of the incident. He stated that during that day, defendant drank several cans of Old English Malt Liquor and smoked two or three PCP cigarettes, lighting the last one around 5 p.m. Benton testified that defendant was acting unusual around the time of the robbery and shootings, in that his head was bowed and he kept grabbing his head. Although defendant did not testify at trial, in his statement to the police, which had been introduced by the prosecution and thus was before the jury, defendant said that on the day in question, he drank four cans of malt liquor and had been “mentally drunk,” not knowing half the time where he was.

Dr. Bemd Schulze, a clinical pharmacist at the Los Angeles County Drug Information Center, testified to the effects of PCP ingestion. Along with two colleagues, Schulze had conducted a study of approximately 1,000 PCP-related admissions to the Los Angeles County Medical Center Jail Ward. He found that there was no single typical effect produced by PCP ingestion. PCP commonly produced various types of bizarre behavior, including violent behavior.

4. Rebuttal.

The prosecution produced several witnesses to rebut the contention that defendant had been suffering from the effects of PCP and alcohol on the night of the incident. Hunt, the store clerk, testified that at no time in the liquor store did defendant slur his words or stagger. Jennifer Moller and Dody Allen, two bystanders who saw defendant and two others run out of the liquor store, testified that defendant was running fast and not stumbling or weaving as the three ran to Hill’s car. Finally, Wayne Reed, who was at Angela Bryce’s house when defendant returned the gun on the night of the incident, testified that defendant appeared normal.

5. Verdict.

After considering the foregoing evidence, the jury convicted defendant of all the charged crimes and enhancements, and found true the robbery-murder special circumstance allegation.

B. Penalty Phase Evidence.

1. Prosecution’s Evidence.

After the initial penalty trial, the jury deliberated for five days but was unable to agree on sentence. Pursuant to the provisions of the 1978 death penalty law, a new jury was empaneled to consider penalty.

At the second penalty trial, the prosecution presented the testimony of Cynthia Lopez and Keith Hunt, who described the two liquor store robberies and the shooting of Hunt and Leavall; this testimony in substance paralleled the evidence that had been presented at the initial guilt/special circumstance phase.

In addition, the prosecution introduced evidence of two earlier incidents of violent criminal activity committed by defendant. In October 1975, when he was 15 years old and already a ward of the juvenile court, defendant snatched the purse of an elderly woman, pulling her to the ground and bloodying her knee. The following year, after he had been committed to and released from juvenile camp following the purse snatching, defendant and a friend entered a van which was parked in a drive-in theater and raped the lone woman occupant at gunpoint. Defendant was committed to the Youth Authority as a result of the rape.

The prosecution also called a psychiatrist and a number of probation officers who had examined and supervised defendant at various times during his juvenile court wardship. These witnesses generally characterized defendant as a self-centered individual, who was lacking in moral judgment and felt no remorse for actions which hurt others.

2. Defense Evidence.

Benton and Dr. Schulze, who had testified in support of defendant’s diminished capacity defense at the guilt/special circumstance phase, gave similar testimony at the second penalty trial.

Defendant also called his mother, who testified to his family background. Defendant was bom in March 1960, and was 18 years old at the time of the offenses at issue in this casé. He is one of eight children; three of his brothers have also been involved in serious criminal activity. His mother testified that she and defendant’s father separated when defendant was three months old, reconciled fourteen months later, but then permanently broke up several months thereafter. Defendant lived with his mother until he was 12 years old; she testified that while he was living with her, he did well in school, frequently earning A’s. In 1972, however, he went to live with his father, and thereafter defendant lost interest in school and began to get into trouble.

Defendant also called two law enforcement officials—a probation officer and a parole agent—who had supervised and treated him while he was a ward. The probation officer testified that over a five-month period in 1975, while defendant was in a juvenile camp, defendant had had no disciplinary problems, had done well academically and, overall, had performed satisfactorily. The parole agent, who had counseled him for several months in the early part of 1978, testified that during that period of time he was at the top of the juvenile facility’s “honor roll,” which meant that he was performing well in school, in his trade, and in everything else that was expected of him. She reported that though he had frequent opportunities to escape from the facility he made no attempt to do so, and, in fact, had been instrumental in preventing two other YA wards from escaping. She stated that in her opinion defendant performs well in a structured setting, when he has rules to follow and people to enforce them. Finally, she noted that although she had recommended that defendant be kept at a re-entry program in San Diego for a substantial period of time and not be sent home, defendant had in fact been released and returned home more quickly than she had suggested.

After counsel gave their closing arguments and the trial court instructed the jury, the jury retired to consider the issue of penalty. After a day of deliberation, the jury returned a verdict of death. This appeal followed.

II.

As noted, defendant’s sole guilt/special circumstance phase contention relates to the validity of the procedure that was used in the selection of the jury panel. We review the procedural background of his claim.

Jury selection in this case began on October 7, 1980, and was completed on November 7, 1980. On October 23, 1980, the 10th day of jury selection, defendant moved for a mistrial, contending that the procedure by which the jury panel had been selected was unconstitutional. Defendant based his motion on a decision rendered three days earlier, on October 20, 1980, by Judge Fainer of the Los Angeles Superior Court in a separate case, In re Rhymes (Super. Ct. Los Angeles County, No. A.P.H.C. 000042). In Rhymes, the court, after comparing statistics showing the ethnic makeup of jury panels in the Pomona Judicial District with statistics relating to the ethnic makeup of the general population of Los Angeles County and the City of Pomona, concluded in a brief order that “a pool or panel of potential jurors taken only from the voter registration lists cannot meet the constitutional test, at least in the Pomona Judicial District, as to blacks,” and vacated Rhymes’s misdemeanor conviction, remanding the case to the municipal court for a new trial.

Relying on the trial court ruling in Rhymes, defendant claimed that the jury panel in his case had similarly been unconstitutionally selected. He moved for a mistrial and requested that the trial court continue the case until approximately February 1981, when, “at least from the information that I have gleaned from the L.A. Times, there will be a new system used . . . that may rectify the error that the [Rhymes] court has found to presently exist.” The prosecution opposed the motion, contending that the challenge was untimely and that an insufficient showing had been made as to the nonrepresentativeness of the pool.

To support his motion, defendant relied almost entirely on the statistical studies, legal briefs, referee’s report, and order in the Rhymes case; copies of this material were submitted to the trial court. In addition, defendant called a deputy jury commissioner, who testified that in Pomona both the municipal and superior courts draw their jurors from the same jury pool. In her testimony, the commissioner confirmed that at that time Los Angeles County compiled its jury panels solely from voter registration lists, and further explained that in January 1981 the county was planning to begin using Department of Motor Vehicle records to supplement the voter registration lists.

In opposition to the motion, the prosecution relied on the People’s trial brief in the Rhymes case, taking the position that the Rhymes ruling was in error and would be reversed on appeal. The prosecution also pointed out that, as a superior court decision, the Rhymes order was not binding on the trial court in this case. (See King v. Order of Travelers (1948) 333 U.S. 153 [92 L.Ed. 608, 68 S.Ct. 488].)

After reviewing the studies, briefs and Rhymes ruling, the trial court denied defendant’s motion. At the same time, the court stated “for the record” that it did not believe the challenge was untimely.

Defendant asserts that the trial court erred in denying his motion for mistrial.

A.

As a threshold matter, the Attorney General argues that defendant is precluded from challenging the composition of the jury panel on appeal because his challenge to the panel in the trial court came too late. Although the trial court found the claim timely, the Attorney General maintains that, on this point, its ruling was in error. In light of the governing statutes, we agree with the trial court.

Penal Code section 1060 provides in relevant part that “[a] challenge to the panel must be taken before a juror is sworn . . . .” (Italics added.) The Attorney General suggests that the emphasized language refers to the swearing of a juror before voir dire, rather than to the swearing of a juror to try the case after voir dire. Although we have found no case that has addressed this precise question,³ the statutory provisions accompanying section 1060 and the legislative history of the provisions belie the Attorney General’s suggested interpretation. Section 1066, which concerns challenges to individual jurors, rather than a challenge to the jury panel, uses the same language as section 1060, directing the court to inform the defendant “that if he intends to challenge an individual juror he must do so when the juror appears, and before he is sworn.” (Italics added.) Since a defendant obviously could not be required to challenge an individual juror before the voir dire examination, the Legislature apparently used the phrase “is sworn” in this statutory scheme to refer to the swearing of a juror to try the cause. This interpretation also finds support in the statutory predecessors of sections 1060 and 1066, for the earlier statutes also used parallel language to govern the timing of challenges to a jury panel and to individual jurors. (See Stats. 1851, ch. 29, §§ 331, 339, 341; see also Pen. Code of 1872, notes to §§ 1060, 1068.) Thus, while it might well be reasonable—as a matter of policy—to require a defendant to interpose any challenge to a jury panel before the voir dire examination of individual jurors begins,⁴ we conclude that under the governing statutes the trial court properly found the challenge in this case timely.

B.

Turning to the merits, defendant contends that our decision in People v. Harris, supra, 36 Cal.3d 36, establishes that his statistical showing was sufficient to constitute a prima facie case of an unconstitutional jury selection process; because the prosecution failed to come forward with evidence to attempt to justify the disparity, he asserts that the trial court erred in failing to grant a mistrial. In response, the Attorney General maintains (1) that the Harris decision should not be applied retroactively to overturn convictions by juries selected pursuant to well-established procedures before the Harris decision, and (2) that even if Harris is applicable, the trial court’s ruling should in any event be upheld because defendant’s statistics related to the wrong geographical area, i.e., to the entire county rather than to the community within a 20-mile radius of the Pomona courthouse. The question of the proper application of Harris in areas where the 20-mile rule is in effect is currently before our court in another case. (Williams v. Superior Court, L.A. 32206.) We need not reach that issue here, however, because, under the governing authorities and legal principles, we conclude that Harris should not be applied retroactively.

We begin with the Harris decision itself. In Harris, the defendant moved to quash the jury venire, claiming that Los Angeles County’s use of voter registration lists as the single source for jury selection resulted in unconstitutionally unrepresentative jury panels in the Long Beach court in which he was to be tried. In support of his claim, Harris relied on statistics demonstrating a significant disparity between the percentage of Black and Hispanic persons on Long Beach jury panels and the percentage of Black and Hispanic persons in the population of Los Angeles County as a whole. The trial court denied the motion, concluding that defendant’s showing was inadequate to establish a prima facie case because the general-population figures on which defendant relied were not necessarily a reliable indicator of the jury-eligible population pool, and thus defendant’s statistics did not necessarily demonstrate that the makeup of the actual jury panels was unrepresentative of the jury-eligible pool.

On appeal, we noted that “[t]he principal question before us is whether evidence based on total countywide population figures, rather than jury-eligible population, is adequate to make out a prima facie case . . . .” (36 Cal.3d at p. 48.) In addressing that question, we recognized that “[cjriticism has been appropriately leveled at the use of total population figures as the comparison base for showing underrepresentation [citations]” (id., at p. 53), explaining that “[c]omparing the makeup of the actual jury pool with that of the entire population of persons presumptively eligible for jury service would be preferable to comparing with total population because if the cognizable class has a lower percentage of jury eligibles than the general population, a showing that that class’ representation in the jury pool is less than the group’s percentage of the general population does not necessarily show that the group is underrepresented.” (Id., at p. 54.)

At the same time, however, we recognized that it is frequently very difficult to arrive at reliable figures of the jury-eligible population for any particular cognizable class. (Id., at pp. 53-54.) Observing that “[t]he question raised by the difficulty of producing statistics concerning the precise proportion of jury eligibles” (id., at p. 54) comes down to the issue of “who should bear the burden of proof on whether a disparity exists” (ibid.), we concluded that “although more refined statistics would be preferable if available, when they are not, it is sufficient for the defendant to show a significant disparity based on the use of total population figures. The burden then shifts to the state to either show that when the group total population is reduced to jury eligibles, no underrepresentation exists, or to justify the underrepresentation by showing ‘that a significant state interest [is] manifestly and primarily advanced by those aspects of the jury-selection process, such as exemption criteria, that result in the disproportionate exclusion of a distinctive group.’ [Citation.]” (Id., at pp. 54-55.)

Applying this analysis to the Harris case itself, the plurality opinion in Harris concluded that because Harris’s statistical evidence was sufficient to make out a prima facie case under the opinion’s test, and because the prosecution had not attempted to rebut the defense claim “but [had] shortsightedly rested its entire argument on the mistaken claim that defendant failed to present a prima facie case” (id., at p. 59), the judgment should be reversed. A concurring opinion—which provided the crucial fourth vote in Harris—agreed that Harris’s showing “should be regarded as sufficient to trigger further inquiry” (id., at p. 71 (Grodin, J., conc.)), but suggested that a remand to the trial court for such inquiry, rather than reversal of the conviction, was the proper disposition. (Id., at pp. 71-72.) In order to enable the court to enter a dispositive judgment in the case, however, the concurring justice “reluctantly join[ed] in the reversal of the judgment below.” (Id., at p. 72.) Three justices dissented, concluding that Harris had not established a prima facie case. (Id., at p. 72 (Mosk, J., dis., joined by Richardson, J.); id., at p. 75 (Kaus, J., dis.).)

Harris expressly left open the question whether the decision would apply retroactively. The lead opinion stated in this regard: “A majority of the justices of this court... do not agree on whether, and to what extent, the rule announced in this case should be given retroactive effect. We therefore take no position as to the disposition of other cases presenting issues concerning the representative character of juries selected from voter registration lists alone.” (Id., at p. 59.)

Although Harris left the retroactivity question unresolved, we do not write on a clean slate in addressing that issue here. Six months after Harris was filed, the Court of Appeal explicitly addressed the question of the retroactive application of Harris in People v. Cantu (1984) 161 Cal.App.3d 259 [207 Cal.Rptr. 460]. After a thorough analysis of the applicable retroactivity principles and precedents (161 Cal.App.3d at pp. 267-271), the Cantu court concluded that Harris should not apply retroactively. We denied a petition for hearing in Cantu in January 1985, and then subsequently re-transferred two cases presenting Harris issues to the Court of Appeal for . reconsideration in light of the Cantu decision. In both cases, the Courts of Appeal thereafter followed Cantu and held that Harris does not apply to cases in which the jury was selected before the Harris opinion was rendered. See People v. Pendleton (1985) 167 Cal.App.3d 413, 416-418 [212 Cal.Rptr. 524]; People v. Brown (1985) 169 Cal.App.3d 728, 734-735 [215 Cal.Rptr. 465].)⁵

Another Court of Appeal decision also sheds light on the retroactivity question presented here. At the time Harris was decided, we had already granted a hearing in the case of In re Rhymes, the decision which formed the basis for defendant’s trial court motion in the present case. In Rhymes, the Court of Appeal—in a decision filed before Harris—had affirmed the trial court’s ruling in that case, sustaining Rhymes’s challenge to the Pomona jury venire. The Court of Appeal decision in Rhymes, however, had specifically directed that its ruling would not apply retroactively, stating: “Our holding shall apply to this case only, until this case becomes final, and thereafter shall apply prospectively. We so provide because of the extent of reliance on this single source for selection of jury venires and because a retroactive application would have a detrimental effect on the administration of justice. [Citation.]” In June 1985, after Harris was final, we acted on the pending Rhymes matter, retransferring the case to the Court of Appeal, “with directions to refile its opinion.” The Court of Appeal thereafter refiled its original opinion, with the prospectivity discussion intact. (See In re Rhymes (1985) 170 Cal.App.3d 1100, 1114 [217 Cal.Rptr. 439].)

Thus, while we have not yet had occasion to address the Harris retroactivity in one of our own decisions, our actions since Harris with regard to the relevant Court of Appeal decisions uniformly support the conclusion that Harris should not apply retroactively. Although defendant argues that these Court of Appeal decisions were wrongly decided and should be disapproved, we do not agree.

The United States Supreme Court decision in Daniel v. Louisiana (1975) 420 U.S. 31 (42 L. Ed.2d 790, 95 S.Ct. 704] provides perhaps the most direct support for the conclusion that Harris should be applied only prospectively. In Daniel, the Supreme Court was faced with the question whether its then-recent decision in Taylor v. Louisiana (1975) 419 U.S. 522 [42 L.Ed.2d 690, 95 S.Ct. 692]—invalidating a jury selection process which largely excluded women from jury panels—should be applied retroactively or prospectively. The Daniel court, noting that the seminal decision in Duncan v. Louisiana (1968) 391 U.S. 145 [20 L.Ed.2d 491, 88 S.Ct. 1444]— which first held that the Fourteenth Amendment’s due process clause incorporated the Sixth Amendment’s jury trial guaranty—had been given only prospective application in DeStefano v. Woods (1968) 392 U.S. 631 [20 L.Ed.2d 1308, 88 S.Ct. 2093], concluded that Taylor should similarly be applied only prospectively.

The Daniel court explained: “The three relevant factors, as identified in Stovall v. Denno, 388 U.S. 293, 297 [18 L.Ed.2d 1199, 1203, 87 S.Ct. 1967] (1967), are ‘(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.’ In Taylor, as in Duncan, we were concerned generally with the function played by the jury in our system of criminal justice, more specifically the function of preventing arbitrariness and repression. In Taylor, as in Duncan, our decision did not rest on the premise that every criminal trial, or any particular trial, was necessarily unfair because it was not conducted in accordance with what we determined to be the requirements of the Sixth Amendment. In Taylor, as in Duncan, the reliance of law enforcement officials and state legislatures on prior decisions of this Court, ... in structuring their criminal justice systems is clear. Here, as in Duncan, the requirement of retrying a significant number of persons were Taylor to be held retroactive would do little, if anything, to vindicate the Sixth Amendment interest at stake and would have a substantial impact on the administration of criminal justice in Louisiana and in other States whose past procedures have not produced jury venires that comport with the requirement enunciated in Taylor.” (420 U.S. at pp. 32-33 [42 L.Ed.2d at pp. 792-793].) Accordingly, although the jury that had convicted Daniel had been drawn from a panel that did not comport with the Taylor holding and Daniel had timely raised the issue at his trial, the Supreme Court nonetheless affirmed Daniel’s conviction.

The Daniel court’s reasoning applies fully to the present context. First, like Taylor, our decision in Harris was aimed at furthering Sixth Amendment values by assuring that the procedures used by the state in the selection of juries generally produce jury venires that are fairly representative of the relevant community; Harris, like Taylor, “did not rest on the premise that every criminal trial, or any particular trial, was necessarily unfair” (Daniel, supra, 420 U.S. at p. 32 [42 L.Ed.2d at p. 793]) simply because the jury selection process had not been conducted or evaluated in accordance with the Harris decision.⁶

Second, again like Taylor, the reasonable reliance of local authorities on the pre-Harris precedents appears clear. In the decades before Harris, voter registration lists had been widely used as a source for jury panel selection both in California and throughout the country with repeated judicial approval.⁷ Although pr e-Harris decisions had clearly left open the possibility that the use of such lists could be subject to challenge if they resulted “ ‘in the systematic exclusion of a “cognizable group or class of qualified citizens” ’ ” (see, e.g., People v. Sirhan, supra, 7 Cal.3d 710, 749-750), virtually all the California decisions which had addressed challenges to the use of voter registration lists before Harris had rejected evidentiary presentations which relied on general population, rather than jury-eligible, statistics.⁸ Under the circumstances, we cannot properly fault local officials for failing to alter their jury selection procedures in anticipation of Harris.9

Third, and finally, because of the widespread use of voter registration lists as the source of jury panels,¹⁰ a retroactive application of Harris would likely, as the Rhymes court observed, “have a detrimental effect on the administration of justice.” (Rhymes, supra, 170 Cal.App.3d at p. 1114.) Cantu, supra, 161 Cal.App.3d 259, Pendleton, supra, 167 Cal.App.3d 413, and Brown, supra, 169 Cal.App.3d 728, demonstrate that similar challenges to the single-source procedure were not uncommon in the pre-Harris era.

Indeed, in an important respect, the prospective application of Harris follows a fortiori from the United States Supreme Court’s prospective application of Taylor. Under Taylor, it was, of course, clear that the juries that had tried the Daniel case and the numerous other pre-Taylor matters did not represent a cross-section of the community; by contrast, we do not know whether pre-Harris juries were, in fact, unconstitutionally unrepresentative, for Harris simply created a new standard for determining the existence of a prima facie case, and did not establish the unconstitutionality of prior jury panels. Inasmuch as Daniel held that prospective application of Taylor was warranted even though the prior jury panels were not representative, it would surely be anomalous to apply our Harris decision retroactively to overturn numerous past convictions, when it is not at all clear that the juries in those past cases were in fact unconstitutionally unrepresentative.¹¹

Accordingly, we agree with the decisions in Cantu, supra, 161 Cal.App.3d 259, Brown, supra, 169 Cal.App.3d 728, and Pendleton, supra, 167 Cal.App.3d 413, and hold that Harris should not be applied retroactively to cases in which juries were selected before the Harris decision was rendered. Because the trial court’s rejection of defendant’s challenge to the jury panel in this case was correct under the “pre-Harris” authorities, what ruling provides no basis for reversing defendant’s conviction.¹² Since defendant raises no other challenge to the guilt/special circumstance phase, we affirm the judgment of guilt and the special circumstance finding.

III.

As noted above, at the initial penalty trial the jury was unable to agree on sentence. A new jury was empaneled, and after the second penalty trial, the jury returned a sentence of death.

As we explain, under recent decisions of this court it is clear that the instructions which the jury was given at the penalty phase were improper in a number of significant respects. Because of the nature and extent of the instructional errors, the penalty judgment must be reversed and the case remanded for a new penalty trial before a properly instructed jury. We review the most significant of the instructional errors.

A. Briggs Instruction.

At the second penalty trial, the court instructed the jury, pursuant to the terms of the 1978 death penalty law (Pen. Code, § 190.3, 5th par.), that “under the state Constitution a Governor is empowered to grant a pardon or commutation of a sentence following the conviction of the crime. [H] Under this power a Governor may, in the future, commute or modify a fife sentence without possibility of parole to a lesser sentence that would include the possibility of parole.”

In People v. Ramos (1984) 37 Cal.3d 136 [207 Cal.Rptr. 800, 689 P.2d 430], we examined the validity of this instruction—the so-called “Briggs Instruction”—at some length, and concluded that “when viewed in relation to prior California decisions and to the overwhelming majority of related precedents in other states, the Briggs Instruction is incompatible with [the “due process”] guarantee of ‘fundamental fairness’ both because it is seriously and prejudicially misleading and because it invites the jury to be influenced by speculative and improper considerations.” (37 Cal.3d at p. 153.)

On the first point—the misleading nature of the instruction—Ramos explained that while “[u]nder the California Constitution, the Governor’s power of commutation or pardon extends equally to a sentence of death and to a sentence of life without possibility of parole . . . [t]he Briggs Instruction . . . informs the jury only that a sentence of life without possibility of parole may be commuted.” (Ibid.) As such, Ramos found the instruction “a classic example of a misleading ‘half-truth’ . . . [which] would reasonably be understood by the average juror to mean, by negative implication, that while a sentence of life without possibility of parole may be commuted, a sentence of death may not.” (Ibid.) Furthermore, Ramos emphasized that the potential consequence of misleading the jury in this fashion was extremely serious. “[T]he pernicious effect of the Briggs Instruction is that it may lead a jury that does not believe that the death penalty is necessary, but fears a future commutation, to return a death penalty in the mistaken belief that that sentence alone will preclude any possible release. Because an accurately informed jury would at least realize that the possibility of gubernatorial action cannot be avoided in any event, it is less likely to return a death sentence when it is not convinced that death is warranted. The prejudice to the defendant is manifest.” (Id., at p. 154.)

Moreover, Ramos went on to hold that even if the Briggs Instruction were modified to make it totally accurate, “the instruction would still violate the state constitutional due process guarantee because its reference to the commutation power invites the jury to consider matters that are both totally speculative and that should not, in any event, influence the jury’s determination.” (Id., at p. 155.) As Ramos pointed out, by raising the commutation issue, the instruction inevitably leads the jury to attempt to predict not only “what a particular defendant is likely to be like some 10, 15, 20 or more years in the future when commutation may be considered” (id., at p. 156), “but also what some presently unknown person—a future Governor—will do in response to the defendant’s then condition. . . . ‘When a jury’s attention is . . . thrust into speculation about the future action of as yet unknown actors, a serious possibility arises that each death sentence imposed ... is the result of an inteijection of an unquantifiable factor into the deliberation process, thereby rendering the decision arbitrary. . . .’” (Id., at p. 157.) Finally, Ramos makes clear that, beyond the problems of the speculative nature of the inquiry, such an instruction is improper because it is likely to divert the jury from its proper function, either by “diminishing the jury’s appreciation of its personal responsibility for the sentencing decision” (id., at p. 158), or by “invit[ing] the jury to second-guess a future Governor’s exercise of his constitutional authority and to impose a harsher sentence than it might otherwise impose simply out of fear that the Governor and the parole authorities will make a mistake and will release the defendant while he is still dangerous.” (Ibid.) As Ramos concluded, “[t]o permit a jury to act in this fashion is inconsistent with a defendant’s right under the California Constitution to have the commutation decision made by the Governor and undermines the fairness of the jury’s determination.” (Ibid.)

The Attorney General concedes that, in light of Ramos, instructing the jury pursuant to the Briggs Instruction was error, but he contends that we should find the error harmless. The Attorney General, however, has cited no instance, and we are aware of none, in which this type of instructional error has been found nonprejudicial in a death penalty case, and in view of the very serious potential for prejudice emphasized in Ramos, we strongly doubt that we could ever confidently conclude that there was no reasonable possibility that this instruction improperly tainted the jury’s decision-making process. (See, e.g., People v. Montiel (1985) 39 Cal.3d 910, 928 [218 Cal.Rptr. 572, 705 P.2d 1248].)

In any event, we certainly cannot say the error was harmless here. Because the trial court, over defendant’s objection, indicated at the beginning of the second penalty trial that it intended to give the Briggs Instruction, defense counsel—in an attempt to counteract the instruction—introduced evidence at the penalty phase relating to the past practices of California governors with respect to commutation and argued to the jury that it was extremely unlikely that defendant would ever be released if he were sentenced to life without possibility of parole. In addition, the trial court— at defendant’s request—supplemented the normal penalty phase instructions with a lengthy instruction explaining the commutation process.¹³ Although the Attorney General argues that the defense evidence and argument, and the court’s supplemental instruction, “effectively neutralized” any prejudice caused by the Briggs Instruction, in reality the additional focus on commutation in this case had the inevitable and unfortunate effect of highlighting the ostensible importance of the commutation question. As we have seen, Ramos clearly points out the numerous untoward consequences that result when the jury’s attention is improperly directed to the issue of commutation; although the defense evidence and the court’s instruction may have given the jury a more complete and accurate picture of the commutation procedure than it otherwise would have had, the fact remains that the jury was never told “that it would be a violation of [its] duty to consider the possibility of such commutation in determining the appropriate sentence” (see Ramos, supra, 37 Cal.3d at pp. 159-160, fn. 12), but was instead left with the understanding that it would be appropriate to consider commutation. Under the circumstances, we think it clear that this error alone requires a new penalty trial. (See, e.g., People v. Haskett (1982) 30 Cal.3d 841, 861-863 [180 Cal.Rptr. 640, 640 P.2d 776].)

B. Unclarified “Mandatory ” Sentencing Instruction.

In advising the jury as to the appropriate “standard” or “test” it was to apply in determining which penalty—death or life imprisonment without possibility of parole—should be imposed on defendant, the court instructed the jury, in language which paralleled the 1978 statute (§ 190.3, 7th par.), that “[i]f you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death; however, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the State Prison for life without possibility of parole.”

In People v. Brown (1985) 40 Cal.3d 512, 538-545 [220 Cal.Rptr. 637, 709 P.2d 440], we rejected a claim by the defendant that the foregoing language demonstrated that the 1978 enactment had established an unconstitutional “mandatory” death penalty statute. At the same time, however, we acknowledged “that the language of the statute, and in particular the words ‘shall impose a sentence of death,’ leave room for some confusion as to the jury’s role.” (Id., at p. 545, fn. 17.) Explaining that “such confusion [had] occasionally [been] reflected in records before this court” (ibid.), we directed trial courts, in future cases, “[to] instruct the jury as to the scope of its discretion and responsibility in accordance with the principles set forth in [Brown]” (ibid.), rather than simply in the terms of the 1978 statute. With respect to cases—like this one—which were tried before Brown, we explained that “[e]ach such prior case must be examined on its own merits to determine whether, in context, the sentencer may have been misled to defendant’s prejudice about the scope of its sentencing discretion under the 1978 law.” (Ibid.)

As noted in our recent decision in People v. Allen (1986) 42 Cal.3d 1222, 1276-1277 [232 Cal.Rptr. 849, 729 P.2d 115], “we explained in People v. Brown . . . that the statute’s ‘weighing process’ described in former CAL-JIC No. 8.84.2, is the method by which ‘the jury. . . determines under the relevant evidence which penalty is appropriate in a particular case.’ [Citation.] Our concern in Brown was that the unadorned statutory instruction might in two interrelated ways lead the jury to misapprehend its discretion and responsibility. [1[] First, we pointed out that the jury might be confused about the nature of the weighing process. As we observed: ‘[T]he word “weighing” is a metaphor for a process which by nature is incapable of precise description. The word connotes a mental balancing process, but certainly not one which calls for a mere mechanical counting of factors on each side of the imaginary “scale,” or the arbitrary assignment of “weights” to any of them. Each juror is free to assign whatever moral or sympathetic value he deems appropriate to each and all of the factors he is permitted to consider.’ [Citation.] [fl] Second, we were concerned in Brown that the unadorned instruction’s phrase, ‘the trier of fact . . . shall impose a sentence of death if [it] concludes that the aggravating circumstances outweigh the mitigating circumstances’ (emphasis added), could mislead the jury as to the ultimate question it was called on to answer in determining which sentence to impose. Although the quoted phrase could be understood to require a juror (i) to determine whether ‘the aggravating circumstances outweigh the mitigating circumstances’ without regard to the juror’s personal views as to the appropriate sentence, and then (ii) to impose a sentence of death if aggravation outweighs mitigation even if the juror does not personally believe that death is the appropriate sentence under all the circumstances, we concluded in Brown that the statute was not intended to, and should not, be interpreted in that fashion. Instead we stated: ‘By directing that the jury “shall” impose the death penalty if it finds that aggravating factors “outweigh” mitigating, the statute should not be understood to require any juror to vote for the death penalty unless, upon completion of the “weighing” process, he decides that death is the appropriate penalty under all the circumstances. Thus the jury, by weighing the various factors, simply determines under the relevant evidence which penalty is appropriate in the particular case.’ [Citation (italics added).]”

In the present case, the trial court did not give any supplementary instructions to the jury which expanded, or clarified, the potentially ambiguous language of the 1978 law. Nonetheless, with respect to the initial source of potential confusion—the nature of the “weighing” process—we think it is unlikely that the jury was misled into believing that the instruction called for a “mechanical” “counting” of the relevant aggravating and mitigating factors. In closing argument, both the prosecution and the defense indicated to the jury that it was free to “attach whatever weight is appropriate” to each of the relevant factors, and while the prosecutor did, at one point, use a “scale” motif in his argument, he did not suggest that the weighing process was a mechanical or arithmetic operation.

With respect to the second area of potential confusion—the nature of the ultimate question which the jury must answer in determining which sentence to impose—however, there seems no question but that the jury may well have been misled to defendant’s prejudice. Unlike the recent case of People v. Allen, supra, 42 Cal.3d at pages 1278-1280, in which we found that the prosecutor’s argument would have led any reasonable juror to understand that his ultimate task was to determine whether death or life imprisonment without parole was the appropriate penalty for the defendant under all the circumstances, the prosecutor in the present case described the jurors’ task at the penalty phase in the following terms: “Your job is a fact-finding process. The law dictates what the penalty shall be depending upon what weight you give, what the total weight is to each aggravating or mitigating circumstance; and you are instructed . . . that you are to weigh the aggravating factors against the mitigating factors to determine which weighs the most and then the result is determined by that process, [fl] It would not be appropriate for you to determine what result you want to obtain and then seek to shade the factors or the weight to give to the various factors. That would not be fulfilling your duties as a juror, and I am sure each of you will recognize the importance in the jury system of fulfilling your obligation as a juror and doing that which the law instructs you to do.”¹⁴

As we have seen, Brown, supra, 40 Cal. 3d 512, makes it clear that this is not a proper understanding of the jury’s task under the 1978 law. The jury is not simply to determine whether aggravating factors outweigh mitigating factors and then impose the death penalty as a result of that determination, but rather it is to determine, after consideration of the relevant factors, whether under all the circumstances “death is the appropriate penalty” for the defendant before it. In light of the prosecutor’s characterization of the jury’s function—a characterization that was not refuted or corrected by the court’s instructions—there is clearly a reasonable possibility that the jury was misled as to the nature of its ultimate duty at the penalty phase. This error in itself is sufficient to require a new penalty trial.

C. Additional Penalty Phase Contentions.

In addition to the Briggs Instruction and the “mandatory” sentencing question, defendant contends that the penalty judgment must be reversed because (1) the prosecutor introduced some evidence at the penalty phase that is not properly admissible under People v. Boyd (1985) 38 Cal.3d 762 [215 Cal.Rptr. 1, 700 P.2d 782], and (2) the court gave several additional instructions that our decisions establish should not be given at the penalty phase of a capital case. (See, e.g., People v. Lanphear (1984) 36 Cal.3d 163, 165 [203 Cal.Rptr. 122, 680 P.2d 1081] [no-sympathy instruction]; People v. Brown, supra, 40 Cal.3d 512, 538, fn. 7 [“regardless-of-what-the-consequences-may-be” instruction].) Because we have concluded that both the Briggs Instruction and the “mandatory” sentencing error independently require that the penalty judgment be reversed, we need not decide whether the additional matters raised by defendant would in themselves require reversal. Inasmuch as any new penalty trial will be conducted with full awareness of our recent rulings, there is no reason to anticipate that any error will recur.

IV.

Conclusion

The judgment as to guilt, and the finding of a special circumstance, are affirmed. With respect to penalty, the judgment is reversed and the case remanded for a new penalty trial before a properly instructed jury. If the prosecution, for any reason, chooses not to retry the issue of penalty, defendant shall be sentenced to life imprisonment without possibility of parole.

Mosk, J., concurred.

1 All statutory references are to the Penal Code unless otherwise indicated.

2 Lopez was unable to identify defendant as having been involved in the incident. Both defendant and his brother, however, admitted complicity in the incident in statements given to police following their arrests. Defendant admitted to the police that he had carried the gun. At trial, defendant did not deny his participation in the robbery.

3 In all of the cases which have held challenges untimely under section 1060, the challenge was made after the voir dire examination had been completed and the jurors had been sworn to try the case. (See, e.g., People v. Sirhan (1972) 7 Cal.3d 710, 751 [102 Cal.Rptr. 385, 497 P.2d 1121]; People v. Oliveria (1899) 127 Cal. 376, 380 [59 P. 772]; People v. Ah Lee Doon (1893) 97 Cal. 171, 176 [31 P. 933]; People v. Flowers (1974) 38 Cal.App.3d 813, 818 [113 Cal.Rptr. 701].) This is apparently the first case in which the challenge was made during voir dire examination, and before any juror had been sworn to try the case.

4 Federal law draws a general distinction between the time for challenging the jury panel and the time for challenging individual jurors, requiring that statutory challenges to the jury panel be made no later than “before the voir dire examination begins.” (See 28 U.S.C. § 1867(a), (b); see United States v. Price (5th Cir. 1978) 573 F.2d 356, 361.) It is not clear, however, that constitutional challenges to a jury panel are subject to the same time limitations. (See, e.g., United States v. De Alba-Conrado (5th Cir. 1973) 481 F.2d 1266, 1269-1270 & fn. 5.)

5 Although the dissent suggests that “Harris itself has been applied both retroactively and prospectively” (post, p. 284) the case which it points to as embodying a retroactive application of Harris—People v. Alexander (1985) 163 Cal.App.3d 1189 [210 Cal.Rptr. 306]—did not involve a challenge to the use of voter registration lists as a source for jury venires and contains no discussion of the retroactivity issue at all. From all appearances, the question of the retroactive or prospective application of Harris was never raised in Alexander. It is well established, of course, that a decision is not authority for propositions that were not considered in the court’s opinion. (See, e.g., McDowell & Craig v. City of Santa Fe Springs (1960) 54 Cal.2d 33, 38 [4 Cal.Rptr. 176, 351 P.2d 344]; People v. Banks (1959) 53 Cal.2d 370, 389 [1 Cal.Rptr. 669, 348 P.2d 102].)

6 Neither Harris nor Taylor involved a claim that the state had engaged in intentional invidious discrimination in the selection of juries in violation of equal protection principles. In cases in which a defendant does establish that the state has engaged in such invidious discrimination in the selection of grand juries, the United States Supreme Court has recently reaffirmed that any resulting conviction cannot stand. (See Vasquez v. Hillery (1986) 474 U.S. 254, 261-266 [88 L.Ed.2d 598, 607-610, 106 S.Ct. 617, 622-624].) Similarly, in other contexts, courts have distinguished the cross-sectional violation of Taylor from improper jury selection practices that threaten the impartiality of juries. (See, e.g., Woodard v. Sargent (8th Cir. 1985) 753 F.2d 694, 697.)

7 See, for example, People v. Sirhan (1972) 7 Cal.3d 710, 749-750 [102 Cal.Rptr. 385, 497 P.2d 1121]; People v. Remiro (1979) 89 Cal.App.3d 809, 839 [153 Cal.Rptr. 89, 2 A.L.R.4th 1135]; People v. Lewis (1977) 74 Cal.App.3d 633, 646 [141 Cal.Rptr. 614]; People v. Cabral (1975) 51 Cal.App.3d 707, 715 [124 Cal.Rptr. 418]; People v. Breckenridge (1975) 52 Cal.App.3d 913, 921 [125 Cal.Rptr. 425]; People v. Powell (1974) 40 Cal.App.3d 107, 126-127 [115 Cal.Rptr. 109]; People v. Newton (1970) 8 Cal.App.3d 359, 389-390 [87 Cal.Rptr. 394]; Foster v. Sparks (5th Cir. 1975) 506 F.2d 805, 816-817, footnote 28 and cases cited.

When Congress established voter registration lists as the basic source of jury panels in the federal Jury Selection and Service Act of 1968, the enactment was widely heralded as a significant reform. As one federal court observed at the time: “ ‘[T]he best thought of all three branches of government points toward voter registration lists as representing “the best cross-section of the community; indeed, they are probably the most broadly based lists available.” ’ . . . No significant improvement in our nation’s federal judicial machinery has ever met such unanimity of opinion as to its importance and propriety as has adoption by the Congress of the system of jury selection at random from voter registration lists.” (Simmons v. United States (5th Cir. 1969) 406 F.2d 456, 463.)

8 See, for example, People v. Powell, supra, 40 Cal.App.3d 107, 128-129; People v. Spears (1975) 48 Cal.App.3d 397, 404 [122 Cal.Rptr. 93]; People v. Lewis, supra, 74 Cal.App.3d 633, 646; People v. Remiro, supra, 89 Cal.App.3d 809, 839-840. Although two earlier decisions—People v. Newton, supra, 8 Cal.App.3d 359, 389-390, and People v. McDowell (1972) 27 Cal.App.3d 864 [104 Cal.Rptr. 181]—did suggest in dicta that a defendant could establish a prima facie case on the basis of general population figures, neither case recognized or discussed the potential problems—identified in the subsequent California cases—attributable to the differences between general-population, and jury-eligible, statistics.

As the dissent notes, there is one more recent, pre-Harris decision—People v. Buford (1982) 132 Cal.App.3d 288, 291 [182 Cal.Rptr. 904]—in which the Court of Appeal did entertain a jury challenge when the defendant relied on general-population, rather than jury-eligible, statistics. Buford, however, did not involve a challenge to a county’s use of voter registration lists, but instead concerned the validity and impact of a county’s informal procedure for excusing prospective jurors. In our view, Buford—which, in any event, was decided after the trial in this case—cannot reasonably be viewed as having put local authorities on notice that the prior decisions relating to voter registration lists were no longer authoritative.

9 It is in this respect that the present case is distinguishable from Lee v. Missouri (1979) 439 U.S. 461 [58 L.Ed.2d 736, 99 S.Ct. 710], where the Supreme Court held that its decision in Duren v. Missouri (1979) 439 U.S. 357 [58 L.Ed.2d 579, 99 S.Ct. 664] should apply retroactively to cases in which juries were sworn after the 1975 decision in Taylor, supra, 419 U.S. 522. In Lee the court evidently concluded that in light of its holding in Taylor, state officials could not reasonably have believed that the practice at issue in Duren—which automatically permitted women, but not men, to be excused from jury service on request—was constitutionally permissible. (Lee, supra, 439 U.S. at p. 462 [58 L.Ed.2d at p. 739].)

As noted above, in our view the pr e-Harris California precedents did not provide similarly clear guidance to governmental authorities that the random use of voter registration lists might be invalid if the makeup of actual jury venires departed from general-population figures. Unlike the jury selection practice at issue in Duren—which, on its face, accorded differential treatment to men and women and was clearly suspect under Taylor for that reason—the use of voter registration lists does not apply facially different juror selection standards on the basis of gender, race, ethnicity, or any other “suspect” classification.

10 Harris indicates that at the time of the trial in that case, 17 of the 46 counties in California used voter registration lists as the sole source for the selection of jury venires. (Harris, supra, 36 Cal.3d at p. 46.)

11 Even before Harris, of course, a defendant could have prevailed on a challenge to the county’s use of voter registration lists if he could establish, through the use of the more accurate jury-eligible statistics, that the procedure had resulted in actual jury venires that were not fairly representative of the jury-eligible population in the relevant community. In declining to apply Harris retroactively, we simply hold that the more lenient prima facie standard adopted in Harris should not be applied to pre-Harris cases.

12 Defendant additionally contends that even if we conclude, as we have, that Harris should generally apply only prospectively, he should nonetheless be accorded the benefit of that decision on three separate grounds. First, he claims that but for a delay in the preparation of the record on appeal in his case, the “Harris” issue might have been decided in his case, rather than in Harris, and that it is unfair to withhold the benefit of the ruling on such fortuitous grounds. This “fortuity,” of course, is present any time a decision is applied prospectively; in Daniel, supra, 420 U.S. 31, the Supreme Court affirmed Daniel’s conviction even though he had raised the same issue as Taylor and his case was pending before the court at the time Taylor, supra, 419 U.S. 522, was decided. (See Young v. Zant (11th Cir. 1984) 727 F.2d 1489, 1491.) We note that the defendants in Cantu, Brown and Pendleton could equally complain about unfair treatment if defendant were to be accorded the benefit of Harris despite the fact that we have concluded that the applicable legal principles call for the prospective application of that decision.

Second, defendant alternatively suggests that we ought to adopt a “death penalty” exception to our prospectivity holding, by analogy to an exception we fashioned in People v. Wheeler (1978) 22 Cal.3d 258, 283, footnote 31 [148 Cal.Rptr. 890, 583 P.2d 748], when we adopted the rule outlawing the use of peremptory challenges on the basis of group bias. Unlike Wheeler—which established a means for rooting out the exercise of intentional invidious discrimination in the selection of a jury—Harris simply modified a defendant’s burden in establishing a prima facie case of an unintentional violation of the fair-cross-section requirement. Because even before Harris a defendant was able to pursue a constitutional cross-sectional challenge through the use of more precise jury-eligible statistics, we perceive no comparable unfairness in applying the same rule of prospectivity to death penalty cases as applies to all other criminal cases.

Finally, defendant contends that he is entitled to relief under “collateral estoppel” principles. The claim is manifestly untenable. To begin with, the “issue actually litigated” in Harris—whether the statistical showing made in that case was adequate to demonstrate a prima facie case of underrepresentation in Long Beach jury venires—was plainly not identical to the issue here. More fundamentally, in light of our conclusion that the legal principle on which Harris rests should not be applied retroactively, it clearly follows that that decision’s holding cannot be applied to earlier cases on a collateral estoppel theory. The retroactivity ruling means, of course, that earlier cases are governed by different legal principles, and it is settled that under such circumstances collateral estoppel does not apply. (See generally Rest.2d Judgments, § 28(2) & coms. b, c.)

13 The supplementary commutation instruction read in full:

“Subject to the application procedures provided by statute, the Governor, on conditions the Governor deems proper, may grant a commutation of a sentence.

“The Governor shall report to the Legislature each commutation granted, stating the pertinent facts and the reasons for granting it.

“The Governor may not grant a commutation for a person twice convicted of a felony except on the recommendation of the Supreme Court, four justices concurring.

“In order to obtain a commutation of sentence, the following procedure must be complied with: Persons who have been sentenced to life in prison without possibility of parole and who have suffered more than one felony conviction must make application for commutation of sentence directly to the Governor of the state.

“Upon the request of the Governor, the Community Release Board shall investigate, report on any application for reprieves, commutation of sentence.

“The Board shall consider the application, the transcripts of the judicial proceedings and all documents submitted with the application.

“. . . [Ijvestigators for the Board may take testimony, examine witnesses under oath and take all action necessary to conduct a full and complete investigation of the application.

“The Board may require the Court in which the conviction was had or the district attorney who prosecuted the action to furnish it immediately with a summary of facts proved at the trial, any other facts relevant to the issue or denying of the commutation of sentence and any recommendations, including the reasons concerning granting or denying of the commutation.”

14 The prosecutor reiterated this theme at a later point in his argument: “[Defense counsel] is seeking to inject an element into this matter by saying, remarking that before you kill Mr. Myers, think of this, think of that. [][] Ladies and Gentlemen, the law has been written in a manner and you were voir dired very carefully about this. Your function is a fact-finding function solely, and that has been explained to you very carefully. [][] Once you determine, once you make a determination as to whether or not the aggravating circumstances or factors outweigh those in mitigation or the mitigating circumstances or factors outweigh those in aggravation, then the law says what verdict you shall return. [][] You don’t make up your mind as to your preference for penalties. All you are doing is weighing, a weighing process; and the law is very explicit, [fl] It is your duty as a juror, if you find that mitigating factors outweigh those in aggravation, it shall be your duty then to return a verdict of life without possibitity of parole. [j[] If you find that aggravating factors outweigh those in mitigation, it shall be your duty to affix the verdict of the death penalty. You don’t determine that. The law has determined that for you. [fl] And his statement, ‘before you kill Mr. Myers,’ is completely inappropriate. The law determines as to what the penalty is and it has always been that way. []]] I asked each one of you in one form or another if you would have the courage to return such a verdict if you found this to be an appropriate case. [If] In other words, the aggravating factors outweigh those in mitigation, would you return such a verdict. Each of you said yes. [ft] So I do not feel it appropriate to discuss that any further.”