Hamilton

The cause in Crim. 21958 is before us on remand from the United States Supreme Court. It was last here on automatic appeal from a judgment of death. (Pen. Code, § 1239, subd. (b).) Defendant was convicted of first degree murder ( id., § 187), kidnapping ( id., § 207), robbery ( id., § 211), and burglary ( id., § 459). He was found to have committed the murder in the course of robbery ( id., § 190.2, subd. (a)(17)(i)), kidnapping ( id., subd. (a)(17)(ii)), and burglary ( id., subd. (a)(17)(vii)). He admitted that he had previously suffered convictions for forgery ( id., § 470) and for two counts of burglary ( id., § 459). He was sentenced to death.

When the cause was previously before us we held there was no reversible error at the guilt phase of the trial, but that under the general rule of automatic reversal of People v. Garcia (1984) 36 Cal.3d 539 [ 205 Cal. Rptr. 265 , 684 P.2d 826 ], the court's failure to instruct in accordance with Carlos v. Superior Court (1983) 35 Cal.3d 131 [ 197 Cal. Rptr. 79 , 672 P.2d 862 ], that intent to kill was an element of the felony-murder special circumstances, required the setting aside of the special circumstance findings…

The cause in Crim. 21958 is before us on remand from the United States Supreme Court. It was last here on automatic appeal from a judgment of death. (Pen. Code, § 1239, subd. (b).) Defendant was convicted of first degree murder (id., § 187), kidnapping (id., § 207), robbery (id., § 211), and burglary (id., § 459). He was found to have committed the murder in the course of robbery (id., § 190.2, subd. (a)(17)(i)), kidnapping (id., subd. (a)(17)(ii)), and burglary (id., subd. (a)(17)(vii)). He admitted that he had previously suffered convictions for forgery (id., § 470) and for two counts of burglary (id., § 459). He was sentenced to death.

When the cause was previously before us we held there was no reversible error at the guilt phase of the trial, but that under the general rule of automatic reversal of People v. Garcia (1984) 36 Cal.3d 539 [ 205 Cal.Rptr. 265 , 684 P.2d 826 ], the court’s failure to instruct in accordance with Carlos v. Superior Court (1983) 35 Cal.3d 131 [ 197 Cal.Rptr. 79 , 672 P.2d 862 ], that intent to kill was an element of the felony-murder special circumstances, required the setting aside of the special circumstance findings and hence the…

Concurring and dissenting.I concur in the affirmance of the findings of guilt and special circumstances and in the denials of the petitions for writ of habeas corpus. I dissent from the affirmance of the death penalty.

The majority properly conclude that the trial court erred in giving an instruction in accordance with the so-called Briggs Instruction (former CALJIC No. 8.84.2 (1979)) on the Governor’s power to commute a sentence of life without possibility of parole. (People v. Ramos (1984) 37 Cal.3d 136, 153 [ 207 Cal.Rptr. 800 , 689 P.2d 430 ].) As the majority recognize, the language of the instruction is misleading and invites speculation on irrelevant matters. However, the majority also conclude that subsequent instructions telling the jury to disregard the Governor’s power to commute eliminated any prejudice. I do not agree.

*381 In my view the error was prejudicial. I cannot agree that the later instructions unrung the bell. Far from unringing the bell, the subsequent instructions could only have the effect of reminding the jury again and again of the Governor’s commutation power. Furthermore the prosecutor exploited the error in closing argument. To conclude that, when…