How have courts treated the issue of equal protection in cases involving the death penalty?

We next address defendant's claim that he was denied equal protection because the district attorney sought the death penalty in his case, while choosing not to pursue[640 P.2d 788] it in other, assertedly similar cases. Defendant relies by analogy on Furman v. Georgia (1972) 408 U.S. [30 Cal.3d 860] 238, 92 S.Ct. 2726,

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Defendant offers no proof to support his contention that exclusion of two jurors at the guilt phase because of their opposition to capital punishment denied him the right to an impartial jury. We have recently held that absent empirical evidence in support of this contention, we will not declare the existing procedure unconstitutional. (Hovey v. Superior Court (1980) 28 Cal.3d 1, 68-69, 168 Cal.Rptr. 128, 616 P.2d 1301.)