Heishman

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

I dissent, however, from the affirmance of the judgment as to penalty. I agree with the majority that the trial judge erred when he failed to state his reasons for denying defendant’s automatic application for modification of the verdict of death under Penal Code section 190.4, subdivision (e) (hereafter section 190.4(e)).

But I cannot agree that this error can be held harmless. In People v. Rodriguez (1986) 42 Cal.3d 730 [ 230 Cal.Rptr. 667 , 726 P.2d 113 ], we concluded that “failure to specify reasons for denying modification sufficient ‘to assure thoughtful and effective appellate review[ ]’ ” was fatal. (Id. at p. 794.) The reason is plain: we cannot undertake the kind of review the Constitution requires when a man’s life is at stake if all we can look to in the record is a void.

In holding that the error here is subject to harmless-error analysis, the majority rely on People v. Chi Ko Wong (1976) 18 Cal.3d 698 [ 135 Cal.Rptr. 392 , 557 P.2d 976 ]. Their reliance, however, is misplaced. In Chi Ko Wong—which as the majority themselves recognize was not a capital…

Defendant Harvey Lee Heishman III was convicted, after jury trial, of the first degree murder of Nancy Lugassy, with the special circumstance that she was a witness to a crime who was intentionally killed to prevent her testimony. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(10).) 1 He was also found to have personally used a firearm in committing the crime. (§ 12022.5.) The jury subsequently returned a verdict for imposition of the death penalty; defendant’s motion for new trial and automatic application for modification of the verdict were denied, and he was sentenced to death. (§§ 190.3, 190.4.) This appeal is automatic. (§ 1239, subd. (b).)

We conclude that the judgment of guilt and the special circumstance finding should be affirmed. Moreover, we find no error in the penalty trial requiring reversal of the verdict imposing the death penalty. It is clear that on defendant’s automatic application for modification of the penalty verdict, the trial judge failed to comply with the requirement of section 190.4, subdivision (e), that the judge “state on the record the reasons for his findings” and “set forth the reasons for his ruling on the application and direct that they…

Defendant Harvey Lee Heishman III was convicted, after jury trial, of the first degree murder of Nancy Lugassy, with the special circumstance that she was a witness to a crime who was intentionally killed to prevent her testimony. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(10).) [1] He was also found to have personally used a firearm in committing the crime. (§ 12022.5.) The jury subsequently returned a verdict for imposition of the death penalty; defendant's motion for new trial and automatic application for modification of the verdict were denied, and he was sentenced to death. (§§ 190.3, 190.4.) This appeal is automatic. (§ 1239, subd. (b).)

We conclude that the judgment of guilt and the special circumstance finding should be affirmed. Moreover, we find no error in the penalty trial requiring reversal of the verdict imposing the death penalty. It is clear that on defendant's automatic application for modification of the penalty verdict, the trial judge failed to comply with the requirement of section 190.4, subdivision (e), that the judge "state on the record the reasons for his findings" and "set forth the reasons for his ruling on the application and…