Lucero

Certiorari Denied February 26, 2001. See 121 S.Ct. 1190 .

This is the second time this case is before us. In 1981, defendant Philip Louis Lucero was sentenced to death after a jury found him guilty of two counts of murder (Pen.Code, § 187 [1] and one count of arson (§ 451, subd. (c)), and found true an alleged multiple-murder special circumstance. In 1988, we affirmed the judgment of guilt, including the special circumstance finding, but we reversed the judgment of death, holding that the trial court had improperly excluded certain mitigating evidence at the penalty phase of trial. ( People v. Lucero (1988) 44 Cal.3d 1006 , 245 Cal.Rptr. 185 , 750 P.2d 1342 .) At retrial, the jury again imposed the death penalty. This appeal, like the earlier one, is automatic. (§ 1239.) We affirm the judgment of death.

The prosecution's case-in-chief at the penalty retrial consisted solely of evidence of the two murders of which defendant was convicted.

The murder victims, seven-year-old Linda Christine Hubbard (Chrissy) and 10-year-old Teddy Engilman (Teddy), lived in Yucaipa, a town in San Bernardino County. On April 12, 1980, Chrissy asked her father if she could go with Teddy…

This is the second time this case is before us. In 1981, defendant Philip Louis Lucero was sentenced to death after a jury found him guilty of two counts of murder (Pen. Code, § 187) 1 and one count of arson (§451, subd. (c)), and found true an alleged multiple-murder special circumstance. In 1988, we affirmed the judgment of guilt, including the special circumstance finding, but we reversed the judgment of death, holding that the trial court had improperly excluded certain mitigating evidence at the penalty phase of trial. (People v. Lucero (1988) 44 Cal.3d 1006 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ].) At retrial, the jury again imposed the death penalty. This appeal, like the earlier one, is automatic. (§ 1239.) We affirm the judgment of death.

I. Facts

A. Prosecution’s Evidence

The prosecution’s case-in-chief at the penalty retrial consisted solely of evidence of the two murders of which defendant was convicted.

The murder victims, seven-year-old Linda Christine Hubbard (Chrissy) and 10-year-old Teddy Engilman (Teddy), lived in Yucaipa, a town in San *709 Bernardino County. On April 12, 1980, Chrissy asked her father if she could go with Teddy to a nearby park. He…

I dissent.

For the reasons that I stated when this cause was originally before us (see People v. Lucero (1988) 44 Cal.3d 1006, 1033-1036 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ] (cone. & dis. opn. of Mosk, J.)), I would exercise the authority that we possess under sections 1181, subdivision 7, and 1260 of the Penal Code (see generally People v. Hines (1997) 15 Cal.4th 997, 1081-1082 [ 64 *742 Cal.Rptr.2d 594 , 938 P.2d 388 ] (cone. opn. of Mosk, J.)), and would set aside the multiple-murder special-circumstance finding and the verdict of death, and remand the matter to the superior court for resentencing.

Appellant’s petition for a rehearing was denied August 30, 2000, and the opinion was modified to read as printed above. Mosk, J., was of the opinion that the petition should be granted.