Howard

A jury convicted defendant Albert Cecil Howard of the first degree murder, mayhem, and robbery of Lois (Roy) Fried (Pen. Code, §§ 187, 203, 211) 1 and the attempted murder, attempted mayhem, and robbery of Gladys Fried (§§ 187, 203, 211, 664). As special circumstances, *1149 the jury found that defendant committed the murder during the commission of robbery and burglary and for financial gain. (§ 190.2, subd. (a)(1), (17)(i) & (17)(vii).) The jury also found that defendant personally inflicted great bodily injury on each victim (§ 1203.075, 12022.7) and that each was over the age of 60 (§ 1203.09). At the penalty phase, the jury returned a verdict of death.

As discussed below, we reverse the convictions for attempted murder and attempted mayhem and strike the related enhancement findings. We also strike the finding on the financial-gain special circumstance. In all other respects, the judgment is affirmed.

I. Facts

On May 25, 1982, defendant was visiting friends and relatives in the City of Tulare. Defendant had temporarily left his residence in Compton to avoid retribution from his former employer, whose motorcycle shop he had burglarized.

Early in the afternoon a…

I concur in the judgment as to guilt and death eligibility. After review, I have found no error warranting reversal or vacation on either question.

I dissent, however, as to penalty. Pursuant to People v. Deere (1985) 41 Cal.3d 353, 360-368 [ 222 Cal.Rptr. 13 , 710 P.2d 925 ], I would set aside the verdict of death as unreliable under the Eighth Amendment to the United States Constitution and article I, section 17, of the California Constitution because defendant failed, and indeed refused, to introduce available evidence in mitigation. 1 If an accused is to be permitted to follow such a course—and thereby practically compel the imposition and subsequent affirmance of the ultimate sanction—he may as well be allowed to irrevocably “plead death.” At least in such a situation, we avoid, both at trial and on appeal, the unseemly spectacle of an empty charade.

One issue presented in this case raises a question of general importance and calls for extended discussion—defendant’s admission of a sentence-enhancement allegation.

In Boykin v. Alabama (1969) 395 U.S. 238, 242-244 [ 23 L.Ed.2d 274, 279-280 , 89 S.Ct. 1709 ], the United States Supreme stated the following principles…

I join the majority in affirming defendant’s conviction and death sentence.

Unlike the majority, however, I conclude that defendant did establish a prima facie case, or a strong likelihood, that during jury selection impermissible group bias was the basis for the prosecutor’s use of peremptory challenges to remove the only two African-American jurors. Once defendant made such a showing, the burden shifted to the prosecutor to show that group bias did not form the basis for the jurors’ removal. (People v. Wheeler (1978) 22 Cal.3d 258, 281 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ].) The prosecutor, however, discharged this burden when he gave plausible reasons for the jurors’ exclusion, without any challenge or disagreement by the defense. Thus, there was no reversible error.

I.

Defendant, an African-American, was charged with the murder, mayhem and robbery of Roy Fried, and the attempted murder, attempted mayhem and robbery of Gladys Fried, both White. During jury selection, the prosecutor used two of his first four peremptory challenges to remove the only two African-American jurors called into the jury box. Defendant moved to quash the jury panel under People v. Wheeler, supra, 22…

A jury convicted defendant Albert Cecil Howard of the first degree murder, mayhem, and robbery of Lois (Roy) Fried (Pen. Code, §§ 187, 203, 211) [1] and the attempted murder, attempted mayhem, and robbery of Gladys Fried (§§ 187, 203, 211, 664). As special circumstances, the jury found that defendant committed the murder during the commission of robbery and burglary and for financial gain. (§ 190.2, subd. (a)(1), (17)(i) & (17)(vii).) The jury also found that defendant personally inflicted great bodily injury on each victim (§ 1203.075, 12022.7) and that each was over the age of 60 (§ 1203.09). At the penalty phase, the jury returned a verdict of death.

As discussed below, we reverse the convictions for attempted murder and attempted mayhem and strike the related enhancement findings. We also strike the finding on the financial-gain special circumstance. In all other respects, the judgment is affirmed.

On May 25, 1982, defendant was visiting friends and relatives in the City of Tulare. Defendant had temporarily left his residence in Compton to avoid retribution from his former employer, whose motorcycle shop he had burglarized.

Early in the afternoon a…