Fuentes

This is an automatic appeal from a judgment imposing a penalty of death under the 1978 death penalty law. (Pen. Code, § 190.1 et seq.; see Pen. Code, § 1239, subd. (b).) [1]

A jury convicted appellant of first degree murder (§§ 187, 189), attempted robbery (§§ 664, 211), and automobile theft (Veh. Code, § 10851). It found true the special circumstance that the murder was committed during the attempted commission of a robbery (§§ 190.2, subd. (a)(17)(i), 664/211) and the allegation that appellant personally used a firearm in the commission of the attempted robbery and the murder (§ 12022.5). Following a penalty phase hearing at which both sides presented evidence, the jury fixed the penalty at death.

Appellant raises three claims of error regarding the guilt and special circumstance phase of his trial. He contends the trial court's refusal to allow him to ask certain questions at voir dire violated the guidelines set out by this court in People v. Williams (1981) 29 Cal.3d 392 [ 174 Cal. Rptr. 317 , 628 P.2d 869 ]. He further argues that the special circumstance finding must be set aside under Carlos v. Superior Court (1983) 35 Cal.3d 131 [ 197 Cal. Rptr. 79…

This is an automatic appeal from a judgment imposing a penalty of death under the 1978 death penalty law. (Pen. Code, § 190.1 et seq.; see Pen. Code, § 1239, subd. (b).) 1

A jury convicted appellant of first degree murder (§§ 187, 189), attempted robbery (§§ 664, 211), and automobile theft (Veh. Code, § 10851). It found true the special circumstance that the murder was committed during the attempted commission of a robbery (§§ 190.2, subd. (a)(17)(i), 664/211) and the allegation that appellant personally used a firearm in the commission of the attempted robbery and the murder (§ 12022.5). Following a penalty phase hearing at which both sides presented evidence, the jury fixed the penalty at death.

Appellant raises three claims of error regarding the guilt and special circumstance phase of his trial. He contends the trial court’s refusal to allow him to ask certain questions at voir dire violated the guidelines set out by this court in People v. Williams (1981) 29 Cal.3d 392 [ 174 Cal.Rptr. 317 , 628 P.2d 869 ]. He further argues that the special circumstance finding must be set aside under Carlos v. Superior Court (1983) 35 Cal.3d 131 [ 197 Cal.Rptr. 79 , 672 P.2d 862 ]…

Without speculating as to what appellant “might have testified,” I agree that the record in this case does not establish the requisite intent as a matter of law. I therefore join in the judgment.

I concur with the majority opinion to the extent it affirms defendant’s conviction of first degree murder and other lesser offenses. I dissent, however, to the setting aside of the special circumstances finding and reversal of the judgment of death.

The majority relies upon People v. Garcia (1984) 36 Cal.3d 539 [ 205 Cal.Rptr. 265 , 684 P.2d 826 ], and Carlos v. Superior Court (1983) 35 Cal.3d 131 [ 197 Cal.Rptr. 79 , 672 P.2d 862 ], in concluding that the failure to instruct the jury regarding intent to kill was prejudicial error requiring us to set aside the special circumstances finding. For reasons I have previously explained, I strongly disagree with the holdings in those cases. (See People v. Whitt (1984) 36 Cal.3d 724, 749 [ 205 Cal.Rptr. 810 , 685 P.2d 1161 ] [dis. opn.].) But even if these cases were correctly decided, they do not require setting aside the special circumstances finding here.

As the majority explains, under the evidence in this case defendant was either the actual killer or an accomplice. If he was an accomplice, the jury was specifically instructed that an intent to kill was a prerequisite to a special circumstances finding, thereby satisfying Carlos’…

I concur in affirming the judgment as to guilt, but dissent from the reversal of the special circumstance finding. I would sustain that finding for the reasons stated in the third and fourth paragraphs of the concurring and dissenting opinion of Justice Lucas in this case.