Alcala

I concur in the judgment. I disagree, however, with the majority’s reasoning and conclusions on two issues.

I.

The trial court ruled that because prosecution witness Dana Crappa was “unable ... to testify . . . because of then existing . . . mental illness or *811 infirmity” (Evid. Code, § 240, subd. (a)(3)), she was “unavailable” to testify and therefore the prosecution could introduce transcripts of her testimony from an earlier trial in this case (Evid. Code, § 1291). In upholding the trial court’s ruling, the majority relies solely on Crappa’s testimony at a hearing that was held outside the jury’s presence to determine whether she should be declared unavailable. (Maj. opn., ante, at p. 780.)

In my view, however, Crappa’s testimony was insufficient to support the trial court’s finding that she was an “unavailable” witness. At the unavailability hearing, Crappa testified she could not remember anything connected with the case. This testimony shows only that Crappa’s memory was deficient. Standing alone, this testimony is insufficient to support a conclusion that Crappa suffered from a “mental illness or infirmity” under Evidence Code section 240, subdivision (a)(3).

The…

I dissent.

When this case was before us after defendant’s original trial, I would have affirmed the judgment because there was no “miscarriage of justice” within the meaning of article VI, section 13 of the California Constitution. (People v. Alcala (1984) 36 Cal.3d 604, 637 [ 205 Cal.Rptr. 775 , 685 P.2d 1126 ] (dis. opn. of Mosk, J.).)

Since the matter has returned following retrial, I am compelled to conclude to the contrary. I would reverse the judgment because now there has indeed been a miscarriage of justice. Through several erroneous evidentiary rulings, the trial court improperly disturbed the scales on which guilt or innocence was to be weighed, allowing the People to introduce inadmissible evidence for inculpation and barring defendant from introducing admissible evidence for exculpation. As a result, it denied defendant the fundamental fairness guaranteed, by the due process clause of the Fourteenth Amendment to the United States Constitution.

In the analysis that follows, I shall focus on the four most significant evidentiary rulings.

I

First—and most egregious—the trial judge, on the People’s motion outside the presence of the jury, erroneously allowed the…

This case reaches us again after a retrial following this court’s reversal of defendant’s convictions. At the initial trial in 1980, a jury found defendant Rodney James Alcala guilty of first degree murder, with a kidnapping-murder special circumstance, and other related offenses. Following the jury’s penalty-phase verdict, defendant was sentenced to death. In reversing defendant’s convictions, this court concluded that the trial court committed prejudicial error at the guilt phase of the trial by admitting evidence of defendant’s prior offenses. (People v. Alcala (1984) 36 Cal.3d *755 604, 629-636 [ 205 Cal.Rptr. 775 , 685 P.2d 1126 ] [hereafter Alcala I].) This court rejected defendant’s contention that retrial was barred by the double jeopardy clause (id,., at p. 614), holding that defendant could be retried on all counts.

At the ensuing retrial in 1986, the jury found defendant guilty of one count of first degree murder (Pen. Code, §§ 187, 189), 1 one count of kidnapping (§ 207), one count of false imprisonment (§ 236), and one count of use of a deadly weapon (a knife) (§ 12022, subd. (b)). The jury also found true the special circumstance of murder in the course of…

This case reaches us again after a retrial following this court's reversal of defendant's convictions. At the initial trial in 1980, a jury found defendant Rodney James Alcala guilty of first degree murder, with a kidnapping-murder special circumstance, and other related offenses. Following the jury's penalty-phase verdict, defendant was sentenced to death. In reversing defendant's convictions, this court concluded that the trial court committed prejudicial error at the guilt phase of the trial by admitting evidence of defendant's prior offenses. ( People v. Alcala (1984) 36 Cal.3d 604, 629-636 [ 205 Cal. Rptr. 775 , 685 P.2d 1126 ] [hereafter Alcala I ].) This court rejected defendant's contention that retrial was barred by the double jeopardy clause ( id., at p. 614), holding that defendant could be retried on all counts.

At the ensuing retrial in 1986, the jury found defendant guilty of one count of first degree murder (Pen. Code, §§ 187, 189), [1] one count of kidnapping (§ 207), one count of false imprisonment (§ 236), and one count of use of a deadly weapon (a knife) (§ 12022, subd. (b)). The jury also found true the special circumstance of murder in…