Cudjo

*598 Opinion

In this death penalty case, a jury convicted defendant Armenia Levi Cudjo of the first degree murder of Amelia P. (Pen. Code, §187; all further statutory references are to this code unless otherwise indicated); it found that defendant used a deadly weapon to commit the murder (§ 12022, subd. (b)) and that defendant committed the murder while engaged in the commission of robbery (§ 190.2, subd. (a)(17)(i)) and burglary (§ 190.2, subd. (a)(17)(vii)). The jury also convicted defendant of one count each of robbery (§ 211) with the use of a deadly weapon (§ 12022, subd. (b)) and burglary of an inhabited dwelling (§§ 459, 462, subd. (a)).

The jury fixed the penalty for the murder at death. The trial court denied the automatic motion to modify this penalty verdict (§ 190.4, subd. (e)), stayed the pronouncement of sentence on the noncapital counts, and sentenced defendant to death. Defendant’s appeal from the judgment is automatic. (§ 1239, subd. (b).)

We conclude that the judgment should be affirmed in its entirety.

I. Facts and Proceedings

A. Guilt Phase

1. Prosecution evidence

On March 21, 1986, Los Angeles County sheriff’s deputies found the body of Amelia P. in…

I agree with the majority that the trial court erred when it precluded a defense witness from testifying that defendant’s brother, Gregory Cudjo, had confessed that he, acting alone, committed the capital crimes at issue here. But I do not agree that this error was harmless.

When it refused to permit defendant’s witness to testify, the trial court violated defendant’s rights under the federal and state Constitutions to present a defense. The effect of the federal constitutional error must be measured against the controlling federal standard, which requires reversal unless the error was harmless beyond a reasonable doubt. When applied to the record in this case, the federal standard compels reversal of the judgment as to both guilt and penalty. Therefore, I dissent.

*638 I.

Excluding the Testimony of Defendant’s Witness Violated Defendant’s Constitutional Right to Present a Defense

In an adversary system of adjudication, the right to be heard is essential to due process of law. (Rock v. Arkansas (1987) 483 U.S. 44, 51, fn. 8 [ 97 L.Ed.2d 37, 46 , 107 S.Ct. 2704 ].) In a criminal prosecution, the defendant’s right to be heard includes the right to summon and examine witnesses…

THE COURT.

In this death penalty case, a jury convicted defendant Armenia Levi Cudjo of the first degree murder of Amelia P. (Pen. Code, ง 187; all further statutory references are to this code unless otherwise indicated); it found that defendant used a deadly weapon to commit the murder (ง 12022, subd. (b)) and that defendant committed the murder while engaged in the commission of robbery (ง 190.2, subd. (a)(17)(i)) and burglary (ง 190.2, subd. (a)(17)(vii)). The jury also convicted defendant of one count each of robbery (ง 211) with the use of a deadly weapon (ง 12022, subd. (b)) and burglary of an inhabited dwelling (งง 459, 462, subd. (a)).

The jury fixed the penalty for the murder at death. The trial court denied the automatic motion to modify this penalty verdict (ง 190.4, subd. (e)), stayed the pronouncement of sentence on the noncapital counts, and sentenced defendant to death. Defendant's appeal from the judgment is automatic. (ง 1239, subd. (b).)

We conclude that the judgment should be affirmed in its entirety.

On March 21, 1986, Los Angeles County sheriff's deputies found the body of Amelia P. in the master bedroom of her home in the desert community of…