Lawley

Following a trial at which he represented himself with the assistance of advisory counsel, a Stanislaus County jury convicted Dennis Harold Lawley of single counts of murder (Pen. Code, § 187), 1 conspiracy to commit murder (§ 182, subd. (a)(1)) and solicitation to murder (§ 653f, subd. (b)). The jury also found true an arming allegation (§ 12022, subd. (a)) and a financial-gain special-circumstance allegation (§ 190.2, subd. (a)(1)). The same jury subsequently found the appropriate penalty for the murder and conspiracy counts to be death; the trial court imposed sentence accordingly. This appeal is automatic. (§ 1239, subd. (b).)

We shall vacate as unauthorized the special circumstance finding and sentence of death on the conspiracy count; modify the judgment to direct the trial court to amend the abstract of judgment to provide for a sentence of imprisonment for 25 years to life, stayed pursuant to section 654, on the conspiracy count; and otherwise affirm the judgment, including the murder and conspiracy convictions and the sentence of death for the murder count.

Facts

Guilt phase

1. Prosecution evidence

On January 22, 1989, George Silva, Jr., was living on the…

I agree the death sentence for first degree financial-gain murder should be affirmed, and otherwise concur in the judgment as modified on appeal. In so doing, I express no view on whether, as a matter of law, defendant’s conviction for conspiracy to commit murder properly triggered its own special circumstance finding and death verdict below. Nor is it clear that the majority is deciding this significant issue on its merits. Nonetheless, I accept my colleagues’ decision to impose (and to stay) an indeterminate life term for the conspiracy count based solely on pragmatic considerations not fully disclosed by the majority opinion.

Providing no analysis of relevant statutory law, defendant claimed on the last page of his opening brief on appeal that special circumstance allegations *173 can never accompany a charge of conspiracy to commit murder, and that neither death nor life imprisonment without the possibility of parole can ever be imposed for this crime. The Attorney General—focused on upholding the guilt and penalty verdicts entered on the first degree murder count—did not oppose defendant’s effort either to vacate the death sentence for conspiracy or to characterize that…

I disagree with part of the majority’s reasoning in affirming the trial court’s exclusion of hearsay testimony concerning the Aryan Brotherhood’s alleged role in the murder. According to the majority (maj. opn., ante, at pp. 153-154), Brian Seaboum’s statement that the Aryan Brotherhood hired him to kill Kenneth Lawton Stewart did not meet the second prong of the penal interest exception to the hearsay rule because it *174 was not a declaration against his penal interest. (See People v. Duarte (2000) 24 Cal.4th 603, 610-611 [ 101 Cal.Rptr.2d 701 , 12 P.3d 1110 ] [to fit within the penal interest exception, the proponent of the evidence “must show that ... the declaration was against the declarant’s penal interest”].) The majority reasons that: (1) “nothing about who hired Seaboum to kill Stewart made Seaboum more culpable than did the other portions of his statement” (maj. opn., ante, at p. 154); and (2) the identity of Seaboum’s hirer was not an element of the crime of conspiracy (id. at pp. 153-154). The majority’s reasoning is, however, dubious, because its definition of a declaration against penal interest is too narrow.

First, a declarant’s statement may subject him to such…

Following a trial at which he represented himself with the assistance of advisory counsel, a Stanislaus County jury convicted Dennis Harold Lawley of single counts of murder (Pen.Code, § 187), [1] conspiracy to commit murder (§ 182, subd. (a)(1)) and solicitation to murder (§ 653f, subd. (b)). The jury also found true an arming allegation (§ 12022, subd. (a)) and a financialgain special-circumstance allegation (§ 190.2, subd. (a)(1)). The same jury subsequently found the appropriate penalty for the murder and conspiracy counts to be death; the trial court imposed sentence accordingly. This appeal is automatic. (§ 1239, subd. (b).)

We shall vacate as unauthorized the special circumstance finding and sentence of death on the conspiracy count; modify the judgment to direct the trial court to amend the abstract of judgment to provide for a sentence of imprisonment for 25 years to life, stayed pursuant to section 654, on the conspiracy count; and otherwise affirm the judgment, including the murder and conspiracy convictions and the sentence of death for the murder count.

Between 7:30 and 7:45 p.m. that same evening, Kay Spencer was driving in the vicinity of Keyes and…