Gay

I concur fully in the majority opinion, which I have signed. I write separately to emphasize that the rationale of our decision is logically inconsistent with remarks this court made in In re Gay (1998) 19 Cal.4th 771 [ 80 Cal.Rptr.2d 765 , 968 P.2d 476 ] on the irrelevance of lingering doubt evidence. Today’s decision thus effectively overrules In re Gay on this point.

The evidence defendant offered at the penalty retrial in this case to raise doubts as to whether he personally shot the victim was excluded partly on the basis of this court’s statements in In re Gay that lingering doubt evidence is “not relevant to the circumstances of the offense” and constitutes a prohibited attempt to “retry the guilt phase of the trial.” (In re Gay, supra, 19 Cal.4th at p. 814 .) As the majority explains, however, lingering doubt evidence is in fact relevant to “the nature and circumstances of the present offense” within the *1229 meaning of Penal Code section 190.3 and “the circumstances of the crime” within the meaning of that section’s factor (a). (Maj. opn., ante, at pp. 1219-1220, 1221.) If evidence going to the degree or nature of the defendant’s criminal participation is not otherwise…

After a joint trial before separate juries in the Los Angeles County Superior Court, Raynard Paul Cummings and defendant Kenneth Earl Gay were convicted of the June 2, 1983, murder of Paul Verna, a Los Angeles police officer. The juries found that Officer Verna was intentionally killed while engaged in the performance of his duties (Pen.Code, § 190.2, subd. (a)(7)), that the murder was committed for the purpose of preventing a lawful arrest ( id., § 190.2, subd. (a)(5)), and that a principal was armed ( id., § 12022, subd. (a)) and that each principal personally used a firearm in the commission of the murder ( id., §§ 12022.5, subd. (a), 1203.06, subd. (a)(1)). Each jury returned a penalty verdict of death.

On direct appeal, we reversed Gay's convictions for robbery, attempted robbery, and conspiracy to commit robbery because of instructional error but otherwise affirmed the judgments against both Gay and Cummings, including the death judgments. ( People v. Cummings (1993) 4 Cal.4th 1233 , 18 Cal.Rptr.2d 796 , 850 P.2d 1 .) While that appeal was pending, defendant Gay filed a petition for writ of habeas corpus. After issuing an order to show cause on the claim of…

After a joint trial before separate juries in the Los Angeles County Superior Court, Raynard Paul Cummings and defendant Kenneth Earl *1198 Gay were convicted of the June 2, 1983, murder of Paul Verna, a Los Angeles police officer. The juries found that Officer Verna was intentionally killed while engaged in the performance of his duties (Pen. Code, § 190.2, subd. (a)(7)), that the murder was committed for the purpose of preventing a lawful arrest (id., § 190.2, subd. (a)(5)), that a principal was armed (id., § 12022, subd. (a)) and that each principal personally used a firearm in the commission of the murder (id., §§ 12022.5, subd. (a), 1203.06, subd. (a)(1)). Each jury returned a penalty verdict of death.

On direct appeal, we reversed Gay’s convictions for robbery, attempted robbery, and conspiracy to commit robbery because of instructional error but otherwise affirmed the judgments against both Gay and Cummings, including the death judgments. (People v. Cummings (1993) 4 Cal.4th 1233 [ 18 Cal.Rptr.2d 796 , 850 P.2d 1 ].) While that appeal was pending, defendant Gay filed a petition for writ of habeas corpus. After issuing an order to show cause on the claim of…