Poggi

This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment of death under the 1978 death penalty law (id., § 190.1 et seq.). Defendant was convicted of the robbery (id., § 211), rape (id., § 261, subd. (2)), and murder (id., § 187) of Patricia Musgrove and the burglary of her residence (id., § 459), and of the assault with a deadly weapon (id., § 245, subd. (a)) and rape (id., § 261, subd. (2)) of B. V. Three special circumstances were found true: (1) felony murder-robbery (id., § 190.2, subd. (a)(17)(i)); (2) felony murder-rape (id., subd. (a)(17)(iii)); and (3) felony murder-burglary (id., subd. (a)(7)(vii)).

*315 Defendant pleaded not guilty and not guilty by reason of insanity. Pursuant to Penal Code section 1027, the court appointed two psychiatrists, Saul Faerstein and Kaushal Sharma, to examine defendant and deliver an opinion as to whether he was sane at the time of the crimes charged. After Drs. Faerstein and Sharma filed their reports, finding that defendant was sane, defendant withdrew his plea of not guilty by reason of insanity.

Before trial defendant moved to sever the charges relating to B. V. from those relating to Musgrove. He was…

I concur in the affirmance of the judgment as to guilt and in the sustaining of the special circumstance findings.

I dissent, however, from the affirmance of the judgment as to penalty. I agree with the majority that the state may require defendant to pay, and pay dearly, for the murder of which he stands convicted. But as I shall explain, I cannot agree that the state may constitutionally require defendant to pay for the crime with his life. Accordingly, I would modify the judgment by reducing the penalty from death to life imprisonment without possibility of parole and would affirm the judgment as so modified.

The cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution prohibits the imposition of a penalty that is disproportionate to the defendant’s “personal responsibility and moral guilt.” (Enmund v. Florida (1982) 458 U.S. 782, 801 [ 73 L.Ed.2d 1140, 1154 , 102 S.Ct. 3368 ]; see generally Solem v. Helm (1983) 463 U.S. 277, 284-295 [ 77 L.Ed.2d 637, 645-653 , 103 S.Ct. 3001 ].) Article I, section 17 of the California Constitution separately and independently lays down the same prohibition. (People v. Dillon (1983) 34 Cal.3d 441, 479-482…

This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment of death under the 1978 death penalty law ( id., § 190.1 et seq.). Defendant was convicted of the robbery ( id., § 211), rape ( id., § 261, subd. (2)), and murder ( id., § 187) of Patricia Musgrove and the burglary of her residence ( id., § 459), and of the assault with a deadly weapon ( id., § 245, subd. (a)) and rape ( id., § 261, subd. (2)) of B.V. Three special circumstances were found true: (1) felony murder-robbery ( id., § 190.2, subd. (a)(17)(i)); (2) felony murder-rape ( id., subd. (a)(17)(iii)); and (3) felony murder-burglary ( id., subd. (a)(7)(vii)).

Defendant pleaded not guilty and not guilty by reason of insanity. Pursuant to Penal Code section 1027, the court appointed two psychiatrists, Saul Faerstein and Kaushal Sharma, to examine defendant and deliver an opinion as to whether he was sane at the time of the crimes charged. After Drs. Faerstein and Sharma filed their reports, finding that defendant was sane, defendant withdrew his plea of not guilty by reason of insanity.

Before trial defendant moved to sever the charges relating to B.V. from those relating to…