Graham

Ernest Graham and Eugene Allen seek a writ of mandate in 1 /Civil 47698 to determine that the mandatory death penalty provision of Penal Code section 4500, effective at the time of the offense with which they are charged, is unconstitutional.

The Supreme Court has recited the facts in an earlier appeal involving these petitioners as follows:

“On November 27, 1973, a state correctional officer was assaulted and stabbed numerous times while on duty in Deuel Vocational Institute, a state prison facility; the officer died the same day as a result of the injuries sustained in the attack. On December 5, 1973, the San Joaquin County Grand Jury returned a two-count indictment against defendants as a result of the incident; the indictment charged both with violation of Penal Code section 187 (murder) and section 4500 (aggravated assault by a life prisoner).

“On October 7, 1974, just prior to the first trial in this matter, the superior court dismissed the murder charge against each defendant upon motion of the district attorney; as a consequence, the two defendants went to trial solely on the section 4500 charges. The jury in the initial trial could not agree on a verdict and a…