Silva

Defendant Mauricio Rodriguez Silva appeals from a judgment of death upon his conviction by jury verdict of two counts of first degree murder (Pen. Code, § 187), with the multiple-murder special circumstance (§ 190.2, subd. (a)(3)), and one count of second degree murder (§ 187). After the first jury was unable to reach a verdict on the issue of penalty for the first degree murders with a special circumstance, the case was retried as to penalty, and a different jury returned a penalty verdict of death. The trial court denied the automatic motion to modify penalty (§ 190.4, subd. (e)) and sentenced defendant to death.

This appeal from the judgment of death is automatic. (§ 1239, subd. (b).) We will affirm the judgment as to guilt and special circumstances, but, because of serious error in the selection of the jury that returned the penalty verdict, we will reverse the judgment as to penalty.

Facts and Proceedings

Within three weeks after being paroled from state prison, where he had been serving a sentence for voluntary manslaughter, defendant killed three more people: Walter Sanders, Monique Hilton, and Martha Kitzler. Defendant killed Sanders and Hilton with a shotgun;…