Lucky

This case arose under the 1978 death penalty initiative, now codified as Penal Code sections 190-190.5. (All statutory references are to the Penal Code unless otherwise indicated.) Defendant was convicted under this statute of two counts of first degree murder and attempted robbery with two special circumstances attaching to each count — murder during the commission of attempted robbery and multiple murder. In addition, defendant was also convicted of six other robbery charges, stemming from three additional incidents which were separate from but related to the principal episode and which were consolidated with the murder charges for purposes of trial.

Following defendant's convictions at the guilt phase, the jury fixed the penalty at death. The appeal to this court is automatic. The appellate record discloses no prejudicial error in the proceedings below. We will therefore affirm the judgment in its entirety. [1]

On January 5, 1981, Robert Randolph and Dwight Ingram were working at a Radio Shack store in Los Angeles. Defendant and a male companion entered the store, and defendant walked directly to the rear. His companion pointed a gun at Ingram and…

This case arose under the 1978 death penalty initiative, now codified as Penal Code sections 190-190.5. (All statutory references are to the Penal Code unless otherwise indicated.) Defendant was convicted under this statute of two counts of first degree murder and attempted *270 robbery with two special circumstances attaching to each count—murder during the commission of attempted robbery and multiple murder. In addition, defendant was also convicted of six other robbery charges, stemming from three additional incidents which were separate from but related to the principal episode and which were consolidated with the murder charges for purposes of trial.

Following defendant’s convictions at the guilt phase, the jury fixed the penalty at death. The appeal to this court is automatic. The appellate record discloses no prejudicial error in the proceedings below. We will therefore affirm the judgment in its entirety. 1

I. Summary of Facts and Proceedings.

(A) The Radio Shack Incident.

On January 5, 1981, Robert Randolph and Dwight Ingram were working at a Radio Shack store in Los Angeles. Defendant and a male companion entered the store, and defendant walked directly to…

I concur in the affirmance of the guilt phase and in the finding of special circumstances. I dissent to the imposition of the death penalty.

In a prior opinion in this case, we identified four penalty phase errors: (1) the court’s failure to instruct the jury specifically to consider and weigh defendant’s mitigating evidence of character and background; (2) its direction that the jury disregard the consequences of its verdict; (3) its instructions permitting the jury to regard the murders as two special circumstances instead of a single circumstance of multiple murder; and (4) the admission of testimony of defendant’s poor performance on parole. The present majority opinion acknowledges all but the first of these errors.

With respect to that error—the failure to instruct the jury to weigh mitigating character and background evidence under factor (k) of the 1978 death penalty law (Pen. Code, § 190.3, factor (k))—the majority rejoin that the jury was instructed to consider “all” the evidence. Our prior opinion explained, however, that “the court directed the jury only to ‘consider’ that evidence as part of the mass of evidence received during both the guilt and penalty phases, but…