Hamilton

Defendant Bernard Lee Hamilton was convicted of first degree murder, burglary, robbery and kidnapping (Pen. Code, §§ 187, 459, 211, 207). 1 Special circumstance allegations that the murder was committed while defendant was engaged in or was an accomplice in the commission of robbery (§ 190.2, subd. (a)(17)(i)), burglary (§ 190.2, subd. (a)(17)(vii)), and kidnapping (§ 190.2, subd. (a)(17)(ii))—all under the 1978 death penalty law—were found to be true. The jury fixed the punishment at death. The appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)

For reasons hereafter stated, we affirm the judgment of guilt, but set aside the special circumstance findings and reverse the penalty judgment.

I. Facts

1. Prosecution Case

On May 31, 1979, about 1 p.m., the body of Eleanore Frances Buchanan was discovered in the grass near a cul-de-sac off Pine Valley Road, near San Diego. Harry Piper noticed it while walking back to his car from target shooting. The body had no head or hands and was clothed only in a bra, underpants and socks.

*414 The body appeared to be in full rigor mortis when a deputy sheriff arrived at the scene between 1:30 and 2 p.m. Two strings…

I concur fully in Justice Kaus’s fine opinion.

Since the special circumstance findings and penalty judgment must be reversed as a result of the trial court’s error under Carlos v. Superior Court (1983) 35 Cal.3d 131 [ 197 Cal.Rptr. 79 , 672 P.2d 862 ], the majority correctly decline to note the existence of other special circumstance or penalty phase issues which might require reversal of those verdicts.

*437 In this case, the trial court gave the so-called “Briggs commutation instruction” that this court has held invalid on state due process grounds in People v. Ramos (1984) 37 Cal.3d 136 [ 207 Cal.Rptr. 800 , 689 P.2d 430 ]. In addition, the trial court failed to exercise its discretion to strike the special circumstance findings under People v. Williams (1980) 30 Cal.3d 470 [ 179 Cal.Rptr. 443 , 637 P.2d 1029 ]. Since these issues might require reversal, the final vote in this case does not reflect the views of the justices on these errors.

LUCAS, J., Concurring and Dissenting. — I concur in the majority opinion to the extent it affirms defendant’s conviction of first degree murder, burglary, robbery and kidnapping. I respectfully dissent, however, to the setting aside of…

Defendant Bernard Lee Hamilton was convicted of first degree murder, burglary, robbery and kidnapping (Pen. Code, §§ 187, 459, 211, 207). [1] Special circumstance allegations that the murder was committed while defendant was engaged in or was an accomplice in the commission of robbery (§ 190.2, subd. (a)(17)(i)), burglary (§ 190.2, subd. (a)(17)(vii)), and kidnapping (§ 190.2, subd. (a)(17)(ii)) — all under the 1978 death penalty law — were found to be true. The jury fixed the punishment at death. The appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)

For reasons hereafter stated, we affirm the judgment of guilt, but set aside the special circumstance findings and reverse the penalty judgment.

On May 31, 1979, about 1 p.m., the body of Eleanore Frances Buchanan was discovered in the grass near a cul-de-sac off Pine Valley Road, near San Diego. Harry Piper noticed it while walking back to his car from target shooting. The body had no head or hands and was clothed only in a bra, underpants and socks.

The body appeared to be in full rigor mortis when a deputy sheriff arrived at the scene between 1:30 and 2 p.m. Two strings of white cord…

I concur in the majority opinion to the extent it affirms defendant’s conviction of first degree murder, burglary, robbery and kidnapping, but I dissent to the setting aside of the special circumstances finding and the penalty.

I cannot join in Justice Lucas’ criticism of Carlos v. Superior Court (1983) 35 Cal.3d 131 [ 197 Cal.Rptr. 79 , 672 P.2d 862 ]. Even if one be disillusioned by the number of penalty reversals required by that decision and by People v. Garcia (1984) 36 Cal.3d 539 [ 205 Cal.Rptr. 265 , 684 P.2d 826 ], stare decisis and respect for the judicial process require adherence to decisions rendered so recently by a substantial majority of this court. A petition for certiorari in the United States Supreme Court was sought by the Attorney General in Garcia , and review in the high court was denied. ( 469 U.S. 1229 [ 84 L.Ed.2d 366 , 105 S.Ct. 1229 ].) Thus Carlos-Garcia remains the law in California.

I agree with Justice Lucas, however, that even under Carlos , we need not set aside the special circumstance finding in this case. Intent to kill was manifest from the facts and no evidence was introduced by defendant that might raise a reasonable doubt on that…