Lanphear

Defendant Ronald Eugene Lanphear appeals from a judgment imposing the death penalty following his conviction of first degree murder. He also seeks a writ of habeas corpus based on allegations of ineffective representation by appointed trial counsel. The proceedings have been consolidated. We find no reversible error affecting the verdict of guilt or the finding of special circumstance. Challenged actions of trial counsel appear to be the product of informed tactical choices within the range of reasonable competence, and the trial court committed no prejudicial error in its evidentiary rulings or instructions to the jury. We conclude, however, that the part of the judgment imposing the death penalty must be reversed. The trial court improperly excluded prospective jurors where the voir dire failed to make it "unmistakenly clear" that the jurors "would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial," or that the jurors' attitudes toward the death penalty "would prevent them from making an impartial decision as to the defendant's guilt. " ( Witherspoon v. Illinois (1968) 391 U.S.…

*821 Opinion

Defendant Ronald Eugene Lanphear appeals from a judgment imposing the death penalty following his conviction of first degree murder. He also seeks a writ of habeas corpus based on allegations of ineffective representation by appointed trial counsel. The proceedings have been consolidated. We find no reversible error affecting the verdict of guilt or the finding of special circumstance. Challenged actions of trial counsel appear to be the product of informed tactical choices within the range of reasonable competence, and the trial court committed no prejudicial error in its evidentiary rulings or instructions to the jury. We conclude, however, that the part of the judgment imposing the death penalty must be reversed. The trial court improperly excluded prospective jurors where the voir dire failed to make it “unmistakenly clear” that the jurors “would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial,” or that the jurors’ attitudes toward the death penalty “would prevent them from making an impartial decision as to the defendant’s guilt.” (Witherspoon v. Illinois (1968) 391 U.S. 510,…

I dissent from the majority opinion insofar as it holds defendant did not waive the Witherspoon 1 error as to jurors Holley and Hayter by failing to object to their excusal. As the majority indicate, the question whether failure to object constitutes waiver of Witherspoon error was recently resolved by this court in People v. Velasquez (1980) 26 Cal.3d 425 [ 162 Cal.Rptr. 306 , 606 P.2d 341 ]. “The decisions of the *845 United States Supreme Court and of the California courts have unanimously ruled that Witherspoon error is not waived by mere failure to object.” (Id., at p. 443.) 2

As will be shown, the cases cited do not support this proposition, Review on appeal is not precluded by failure to object at trial when the law is substantially changed in the interim. (See, e.g., People v. De Santiago (1969) 71 Cal.2d 18, 22-23 [ 76 Cal.Rptr. 809 , 453 P.2d 353 ].) All of the cases cited by the Velasquez majority are examples of the operation of this principle. Witherspoon substantially changed; the law. (In re Anderson (1968) 69 Cal.2d 613, 618-619 [ 73 Cal.Rptr. 21 , 447 P.2d 117 ].) All of the cases cited by the Velasquez majority were tried prior to Witherspoon. Therefore, failure…