Leach

Defendant Michael Todd Leach was convicted of one count of first degree murder (Pen. Code, § 187) [1] and of one count of robbery (§ 211). The jury found that Leach personally used a deadly weapon in the commission of the murder and robbery (§ 12022, subd. (b)). Special circumstance allegations that the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)) and that the murder was committed while Leach was engaged in or was an accomplice in the commission of robbery (§ 190.2, subd. (a)(17)(i)) were found to be true. The judgment of death was entered under the 1978 death penalty law (§ 190.1 et seq.). The appeal is automatic. (Cal.Const., art. VI, § 11, § 1239, subd. (b).)

For reasons hereafter stated, we affirm the judgment of guilt and reverse the penalty.

On October 11, 1979, Michael Messer's body was found in a fig orchard near Fresno. It had suffered 48 stab wounds. The prosecution's case, presented mainly by the testimony of friends of Leach who witnessed or participated in events just before and after the murder, painted the following picture. [2] On October 10, Messer, who was 17 years old, and friends pooled money…

I concur in affirming the judgment of guilt, but dissent from reversal of the penalty.

Although I agree with the majority that the torture-murder special circumstance cannot be sustained, there remains the felony-murder special circum *112 stance which the majority correctly affirm. That leaves only the issue of penalty.

Once again a majority of the court reverse a penalty on the sole ground that the trial judge gave an admonition which they simplistically describe as a “no-sympathy instruction. ”

As I have consistently pointed out (People v. Bandhauer (1970) 1 Cal.3d 609, 619 [ 83 Cal.Rptr. 184 , 463 P.2d 408 ]; People v. Lanphear (1984) 36 Cal.3d 163, 169 [ 203 Cal.Rptr. 122 , 680 P.2d 1081 ]; People v. Easley (1983) 34 Cal.3d 858, 886 [ 196 Cal.Rptr. 309 , 671 P.2d 813 ]) the instruction in question advises the jurors not to be swayed by passion, prejudice, public opinion, and public feeling, among other emotions, all of which are likely to be antagonistic to a convicted murderer. But the inclusion of the word “sympathy” in that instruction is neutral: it can caution against sympathy for the victim and his family, or it can mean sympathy for the defendant. The former is more…

I concur in the plurality opinion of Justice Kaus in all but two matters. First, in my opinion the torture-murder special circumstance falls, not because of incorrect jury instructions, but because the underlying statutory provision violates the Eighth Amendment. (See People v. Davenport (1985) post, 247, 290 [ 221 Cal.Rptr. 794 , 710 P.2d. 861 ] (cone. opn. of Bird, C. J.), id. at p. 295 (cone. opn. of Broussard, J.).) Second, I would rest reversal of the penalty judgment not only on the “no sympathy” instruction discussed by *115 the plurality, but also on the court’s erroneous instruction respecting the Governor’s power to commute a sentence of life imprisonment without possibility of parole. (See People v. Ramos (1984) 37 Cal.3d 136, 153-159 [ 207 Cal.Rptr. 800 , 689 P.2d 430 ].)

Defendant Michael Todd Leach was cohvicted of one count of first degree murder (Pen. Code, § 187) 1 and of one count of robbery (§211). The jury found that Leach personally used a deadly weapon in the commission of the murder and robbery (§ 12022, subd. (b)). Special circumstance allegations that the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)) and that the murder was committed while Leach was engaged in or was an accomplice in the commission of robbery (§ 190.2, subd. (a)(17)(i)) were found to be true. The judgment of death was entered under the 1978 death penalty law (§ 190.1 et seq.). The appeal is automatic. (Cal.Const., art. VI, § 11, § 1239, subd. (b).)

For reasons hereafter stated, we affirm the judgment of guilt and reverse the penalty.

I. Facts

On October 11, 1979, Michael Messer’s body was found in a fig orchard near Fresno. It had suffered 48 stab wounds. The prosecution’s case, pre *98 sented mainly by the testimony of friends of Leach who witnessed or participated in events just before and after the murder, painted the following picture. 2 On October 10, Messer, who was 17 years old, and friends pooled money for…