Zambrano

An information charged defendant with three 1988 crimes, the attempted murders of Robert and Barbara Mishell (Pen. Code, §§ 21a, 187), 1 and the first degree murder of Luis Reyna (§§ 187, 189). As to the attempted murders, it was alleged that defendant inflicted great bodily injury (§§ 1203.075, 12022.7) and used a dangerous and deadly weapon (§ 12022, subd. (b)). As to the murder, the information alleged a special circumstance of witness killing (§ 190.2, subd. (a)(10)) and included further allegations that defendant inflicted great bodily injury (§ 1203.075) and committed the offense while free on bail (§ 12022.1).

The prosecution’s evidence indicated that defendant, a member of the Berkeley Waterfront Commission, bludgeoned the Mishells, a University of California professor and his wife, because he believed they had made anonymous telephone calls exposing his extramarital affair. The evidence further indicated that defendant then fatally shot Reyna, a fellow waterfront commissioner, to prevent Reyna from testifying against him in the Mishell matter.

Defendant admitted attacking the Mishells, but claimed provocation. He asserted that Reyna’s death was an accident.…

At the guilt phase of defendant’s capital trial, the jury found him guilty of the first degree murder of Luis Reyna, with a special circumstance finding that Reyna was killed to prevent him from testifying as a witness; the jury also found him guilty of the attempted murders of Robert and Barbara Mishell. I agree with the majority’s affirmance of these convictions.

I disagree, however, with the majority’s affirmance of defendant’s sentence of death rendered at the penalty phase. In my view, the trial court erred in refusing defense counsel’s request to ask prospective jurors if they would invariably impose the death penalty in a case involving dismemberment of the murder victim’s body. A second error occurred when, in closing argument at the penalty phase, the prosecutor quoted passages from the Bible as authority for the death penalty. These errors prejudiced defendant, undermining confidence in the fairness of the penalty phase of defendant’s capital trial. Therefore, I would reverse the judgment of death.

*1199 I

Before trial, defense counsel asked the trial court to include in the jury questionnaire a statement to prospective jurors that the murder victim had been…

An information charged defendant with three 1988 crimes, the attempted murders of Robert and Barbara Mishell (Pen.Code, §§ 21a, 187), [1] and the first degree murder of Luis Reyna (§§ 187, 189). As to the attempted murders, it was alleged that defendant inflicted great bodily injury (§§ 1203.075, 12022.7) and used a dangerous and deadly weapon (§ 12022, subd. (b)). As to the murder, the information alleged a special circumstance of witness killing (§ 190.2, subd. (a)(10)) and included further allegations that defendant inflicted great bodily injury (§ 1203.075) and committed the offense while free on bail (§ 12022.1).

The prosecution's evidence indicated that defendant, a member of the Berkeley Waterfront Commission, bludgeoned the Mishells, a University of California professor and his wife, because he believed they had made anonymous telephone calls exposing his extramarital affair. The evidence further indicated that defendant then fatally shot Reyna, a fellow waterfront commissioner, to prevent Reyna from testifying against him in the Mishell matter.

Defendant admitted attacking the Mishells, but claimed provocation. He asserted that Reyna's death was an accident.…