In re Lessard

Petitioner seeks a writ of habeas corpus on the ground that he is imprisoned under a sentence of death in violation of rights guaranteed to him by the Fourteenth Amendment to the Constitution of the United States. A jury found petitioner guilty of first degree murder and fixed the penalty at death. We affirmed the judgment. (People v. Lessard (1962) 58 Cal.2d 447 [ 25 Cal.Rptr. 78 , 375 P.2d 46 ].)

*501 To give the factual background for the legal issues which we shall discuss in this opinion we quote in part from our former opinion: “. . . on June 15, 1959, the deceased registered at the Travel Lodge Hotel in San Francisco. He had in his possession approximately $800, the proceeds of a check for his summer pay as a school teacher. On the afternoon of June 16 he met defendant in a tavern directly across the street from deceased’s motel. The two had drinks and some conversation. Thereafter defendant left the tavern shortly before 6 p.m. and returned in approximately 15 minutes. The latter accompanied by the deceased then left the tavern at approximately 6:30 p.m. The deceased’s body was found in his motel room the following morning. Death was caused by knife wounds in his chest…

I concur in the affirmance of the judgment in all respects other than as to penalty, but I dissent from the *514 reversal on the penalty phase for the reason that the record does not support an affirmative finding that in the absence of the subject errors (in the instruction given the jury as to the possibility of a gubernatorial pardon or reduction in sentence and in the argument of the prosecutor to the jury that it should consider the possibility of parole or commutation) a result more favorable to defendant would have been probable and that, therefore, there was a miscarriage of justice.

People v. Morse (1964) 60 Cal.2d 631 [ 36 Cal.Rptr. 201 , 388 P.2d 33 ], relied on by the majority as defining the subject errors, also expressly recognizes the integrity of article VI, section 4%, of the California Constitution. The language of the Morse ruling is (pp. 652-653 of 60 Cal.2d) : “We have no doubt that these errors in directing the attention of the jury to the roles of Adult Authority, judge and Governor, by means of argument, evidence and instruction in the instant ease, prejudicially influenced the jury. . . . [A] fter examination of the entire cause, including the evidence,…