Mincey

A jury convicted defendant Bryan Joseph Mincey of first degree murder (Pen. Code, § 187; all statutory references are to the Penal Code unless otherwise indicated), three felony counts of endangering a child (§ 273a, subd. (1)), and two misdemeanor counts of endangering a child (§ 273a, subd. (2)). [1] The jury found to be true a special circumstance allegation that the murder was intentional and involved the infliction of torture. (§ 190.2, subd. (a)(18).) Defendant was sentenced to death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)

We reverse the misdemeanor convictions for endangering a child (counts 5 and 6), but otherwise affirm the judgment, including the death penalty.

Defendant was Sandra B.'s boyfriend. Defendant and Sandra were jointly charged with the murder of Sandra's five-year-old son, James; the special circumstance allegation of torture murder, however, was against only defendant. Defendant and Sandra were also charged with five felony counts of endangering a child. Three of those counts related to the victim; the remaining two counts involved the victim's four-year-old sister, Wendy. The trial court granted…

*426 Opinion

A jury convicted defendant Bryan Joseph Mincey of first degree murder (Pen. Code, § 187; all statutory references are to the Penal Code unless otherwise indicated), three felony counts of endangering a child (§ 273a, subd. (1)), and two misdemeanor counts of endangering a child (§ 273a, subd. (2)). 1 The jury found to be true a special circumstance allegation that the murder was intentional and involved the infliction of torture. (§ 190.2, subd. (a)(18).) Defendant was sentenced to death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)

We reverse the misdemeanor convictions for endangering a child (counts 5 and 6), but otherwise affirm the judgment, including the death penalty.

I. Guilt Phase Facts

Defendant was Sandra B.’s boyfriend. Defendant and Sandra were jointly charged with the murder of Sandra’s five-year-old son, James; the special circumstance allegation of torture murder, however, was against only defendant. Defendant and Sandra were also charged with five felony counts of endangering a child. Three of those counts related to the victim; the remaining two counts involved the victim’s four-year-old sister, Wendy. The trial…

I concur in the judgment as to guilt and death eligibility. After review, I have found no error requiring reversal or vacation on either issue.

I dissent from the judgment, however, as to the sentence of death. As I shall explain, there was prejudicial juror misconduct bearing on that question.

The facts are these. In his summation at the penalty phase, defense counsel urged the jury to spare defendant’s life. “I . . . have a personal *481 belief,” argued counsel, “that the laws of God are very absolute, that the Sixth Commandment which says ‘Thou shall not kill’ is a very absolute rule. It reflects the values of western culture that tell us that human life is very sacred, and I don’t know of any exemption granted to the State of California by the Sixth [Commandment] permitting the state to kill. The . . . laws of God I believe are absolute . . . .” (Internal quotation marks added.)

Soon, the jury commenced deliberations. After excusing the panel for the day, the trial judge, on the bailiff’s mention, noticed that one of the jurors, Glenda Hoffman, was holding a book under her arm. He asked what it was, and she revealed it to be a Bible. He then asked whether she had had it in…