Montiel

In 1979, a jury convicted defendant Richard Galvan Montiel of the first degree murder (Pen. Code, §§ 187, 189) 1 and robbery (§ 211) of Gregorio Ante, the robbery of Eva Mankin, and the burglary (§ 459) of Ms. Man kin’s residence. Both the Mankin and Ante episodes occurred on January 13, 1979. With respect to the Ante crimes, the jury found true allegations that defendant personally used a deadly weapon, a knife, in the murder (§ 12022, subd. (b)) and that the robbery was committed against an aged person (§ 1203.09, subds. (a), (b)(i), (iii)), with great bodily injury (§ 12022.7), and by personal use of a deadly weapon. Under the 1978 death penalty law, the jury also sustained special circumstance allegations that the murder was committed in the course of a robbery (§ 190.2, subd. (a)(17)(i)) and intentionally for financial gain (id., subd. (a)(1)).

When the jury was unable to reach a penalty verdict, a penalty mistrial was declared, a new jury was empanelled, and the issue of penalty was retried. The second jury sentenced defendant to death.

*898 We affirmed the guilt judgment, the various enhancements, and the robbery-murder special-circumstance finding. However, we…

I dissent.

On retrial of the issue of penalty after we reversed a judgment of death in People v. Montiel (1985) 39 Cal.3d 910 [ 218 Cal.Rptr. 572 , 705 P.2d 1248 ] (hereafter Montiel I), the question whether defendant’s life was to be taken or spared turned largely on the extent of his use of drugs and alcohol around the time of the offenses in question and on the degree of his resulting mental impairment. It was undisputed, as even the prosecutor’s expert witness had to admit, that defendant was then “obviously grossly intoxicated.”

In my view, defense counsel provided defendant with ineffective assistance in violation of his rights under the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution.

To begin with, the trial was tainted by pervasive and serious deficiencies on the part of defense counsel related to pervasive and serious misconduct on the part of the prosecutor.

For example, the prosecutor improperly rested his case for death in part on the financial-gain special circumstance found by the jury at the original trial—which he urged weighed against any impairment on defendant’s part —in spite of the fact that he…

In 1979, a jury convicted defendant Richard Galvan Montiel of the first degree murder (Pen. Code, งง 187, 189) [1] and robbery (ง 211) of Gregorio Ante, the robbery of Eva Mankin, and the burglary (ง 459) of Ms. Mankin's residence. Both the Mankin and Ante episodes occurred on January 13, 1979. With respect to the Ante crimes, the jury found true allegations that defendant personally used a deadly weapon, a knife, in the murder (ง 12022, subd. (b)) and that the robbery was committed against an aged person (ง 1203.09, subds. (a), (b)(i), (iii)), with great bodily injury (ง 12022.7), and by personal use of a deadly weapon. Under the 1978 death penalty law, the jury also sustained special circumstance allegations that the murder was committed in the course of a robbery (ง 190.2, subd. (a)(17)(i)) and intentionally for financial gain ( id., subd. (a)(1)).

When the jury was unable to reach a penalty verdict, a penalty mistrial was declared, a new jury was empanelled, and the issue of penalty was retried. The second jury sentenced defendant to death.

We affirmed the guilt judgment, the various enhancements, and the robbery-murder special-circumstance finding.…