Matthews

Edmund Arne Matthews is seeking a peremptory writ of mandate directing the respondent court (1) to grant his motion pursuant to Penal Code section 190.3 to require the prosecution to specify the events and witnesses upon which it intends to rely during the penalty phase of his trial for murder (§ 187, subd. (a)) with the special allegation he was engaged in the commission of rape at the time of the murder (§ 190.2, subd. (a)(17)) and for rape (§261, subd. (2)); and (2) to instruct the jury that intent to kill is an element of the felony pursuant to In re Baert (1988) 205 Cal.App.3d 514 [ 252 Cal.Rptr. 418 ]. We stayed the action, notified the parties of our intent to issue a peremptory writ of mandate in the first instance, and requested opposition. (See Cal. Rules of Court, rule 60; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 [ 203 Cal.Rptr. 626 , 681 P.2d 893 ].) Having fully reviewed the record, we hold (1) the defense was improperly denied discovery pursuant to section 190.3; and (2) the trial court is bound by In re Baert. In view of the fact that issuance of an alternative writ would add nothing to the full presentation already made, we conclude…