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Statement of the Case

Appellant seeks a reversal of his second degree murder conviction and the jury’s finding that he personally used a firearm.

The sole issue before us relates to the trial court’s refusal to allow appellant 26 peremptory challenges. Appellant contends this ruling forced him to accept a jury with which he was dissatisfied, thereby depriving him of a fair trial.

The information charged appellant with one count of murder in violation of Penal Code section 187. It alleged personal use of a firearm within the meaning of Penal Code section 12022.5. Prior to trial, appellant’s counsel requested 26 peremptory challenges pursuant to Penal Code section 1070. The trial court denied the motion and permitted appellant only 10 peremptory challenges. Appellant concedes he did not exhaust his peremptory challenges; he utilized only nine of the ten peremptory challenges permitted by the court.

This court initially affirmed appellant’s conviction and denied his petition for habeas corpus relief. The California Supreme Court then granted a hearing and decided, in People v. Yates (1983) 34 Cal.3d 644 [ 194 Cal.Rptr. 765 , 669 P.2d 1 ], that persons in appellant’s…