Danks

A jury found defendant Joseph Martin Danks guilty of the first degree murder of Walter Holt (Pen. Code, §§ 187, subd. (a), 189), 1 and, based on the same attack, of assault by a person serving a life sentence, with force likely to produce great bodily injury which resulted in death (§ 4500). In a separate proceeding, the jury found true the special circumstance allegations that defendant had been previously convicted of six first degree murders. (§§ 190.1, subd. (b), 190.2, subd. (a)(2).) The jury set the punishment on both counts at death.

The case is before us on defendant’s automatic appeal. (Cal. Const., art. VI, §11, subd. (a); Pen. Code, § 1239, subd. (b).) For the reasons that follow, we affirm the judgment.

I. Facts

A. Guilt Phase 2

1. Prosecution Evidence

On August 23, 1990, defendant entered the California Correctional Institution in Tehachapi serving a sentence of 156 years to life. On September 21, *274 1990, at approximately 1:00 a.m., defendant attracted the attention of Correctional Officer Daniel Escobar, and told Escobar, “I murdered my cellie.” Defendant’s cellmate was Walter Holt. Defendant also said that the murder had occurred approximately three…

I join the majority in upholding defendant’s convictions for murder (Pen. Code, § 187) 1 and for assault by a prisoner serving a life sentence, resulting in great bodily injury or death (§ 4500), as well as the prior-murder special-circumstance allegations (§ 190.2, subd. (a)(2)). Unlike the majority, however, I would reverse the judgment of death because of jury misconduct during the penalty phase deliberations.

*317 I

After the jury’s verdict of a death sentence, defendant moved for a new trial, alleging that two jurors, B.P. and K.A., had engaged in misconduct during the penalty phase deliberations. Because neither party had asked for an evidentiary hearing, the trial court based its ruling entirely on declarations submitted by the parties, most important of which were declarations from B.P. and K.A.

Juror B.P. mentioned that she had voted for death in three straw votes on the first day of deliberations (a Friday). She then described a conversation with her pastor that weekend: “I spoke with my pastor about the difficulty of making the decision. I told him, ‘Pastor, I’m doing jury duty on a murder case. Is there anything in the Bible which speaks against the death penalty?’…

Certiorari Denied November 1, 2004. See 125 S.Ct. 441 .

A jury found defendant Joseph Martin Danks guilty of the first degree murder of Walter Holt (Pen.Code, §§ 187, subd. (a), 189), [1] and, based on the same attack, of assault by a person serving a life sentence, with force likely to produce great bodily injury which resulted in death (§ 4500). In a separate proceeding, the jury found true the special circumstance allegations that defendant had been previously convicted of six first degree murders. (§§ 190.1, subd. (b), 190.2, subd. (a)(2).) The jury set the punishment on both counts at death.

The case is before us on defendant's automatic appeal. (Cal.Const., art. VI, § 11, subd. (a); Pen.Code, § 1239, subd. (b).) For the reasons that follow, we affirm the judgment.

On August 23, 1990, defendant entered the California Correctional Institution in Tehachapi serving a sentence of 156 years to life. On September 21, 1990, at approximately 1 a.m., defendant attracted the attention of Correctional Officer Daniel Escobar, and told Escobar, "I murdered my cellie." Defendant's cellmate was Walter Holt. Defendant also said that the murder had occurred approximately three…