People v. Superior Court (Harris)
Opinion
Opinion
Arabian, J.
Introduction
May the prosecution seek the death penalty on retrial after reversal of a conviction in which the defendant was sentenced to life in prison without possibility of parole? We answer no.
Factual and Procedural Statement
Lee Edward Harris stands accused of two counts of first degree murder (Pen. Code, § 187). The prosecution has alleged special circumstances which, if found true, would make him eligible for the death penalty (former Pen. Code, § 190.2, subds. (c)(3)(i), (c)(3)(v), (c)(5)). He currently awaits a third trial on these charges.
This case has had a long and tortured history. Harris’s first conviction, wherein he received the death penalty, was reversed by the California Supreme Court due to errors in the composition of the jury venire. (People v. Harris, supra, 36 Cal.3d at pp. 45-59.) On retrial, the jury again found him guilty as charged but determined he should be sentenced to life imprisonment without parole. Harris obtained a second reversal, this time because the trial court erroneously prevented him from testifying. (People v. Harris (1987) 191 Cal.App.3d 819, 824-826 [ 236 Cal.Rptr. 680 ].)