Hernandez

A jury convicted defendant Jesus Cianez Hernandez of one count of murder (Pen. Code, § 187). 1 The jury found that defendant had personally used a firearm in the commission of the offense (§ 12022.5), and it found true a special circumstance allegation that the murder was intentional and committed for financial gain (§ 190.2, subd. (a)(1)). The jury also convicted defendant of conspiracy to commit murder (§ 182), and it found true a special circumstance allegation that the object of the conspiracy was murder for financial gain. At the penalty phase, the jury returned a verdict of death. Defendant’s appeal to this court is automatic. (§ 1239, subd. (b).)

As we shall explain, we affirm the murder and conspiracy convictions as well as the financial gain special circumstance based on the murder conviction, but we strike the special circumstance based on the conspiracy conviction. We also conclude that numerous errors at the penalty phase of trial require reversal of the judgment of death.

I. Facts

A. Guilt Phase—Prosecution’s Case

Alfredo Padilla and Brenda Prado were heroin and cocaine dealers who lived in a house in Grayson, a small town in Stanislaus County. Also…

I agree with affirming the murder and conspiracy convictions, affirming the weapon and special circumstance findings for the murder, but reversing the murder penalty judgment. I accept the majority’s analysis of those issues.

I also agree that we should vacate the special circumstance finding as to the conviction for conspiracy to commit murder (Pen. Code, § 182, subd. (a); hereafter section 182(a)), 1 and the resulting sentence of life without parole on that count. For various reasons to which the majority allude, it is unclear that the voters, when adopting the 1978 initiative death penalty law, intended to apply its special capital punishment provisions not only to actual first degree murder, but also to the separate crime of conspiracy to commit murder.

I am particularly influenced by the disparity that would otherwise have arisen between the maximum punishment for conspiracy to commit murder on the one hand, and that provided in 1978 for attempted willful and premeditated murder on the other. (See maj. opn., ante, at pp. 867-868.) Under these circumstances, and particularly where the ultimate penalty of death is at stake, we should, as the majority suggest, apply the rule…

A jury convicted defendant Jesus Cianez Hernandez of one count of murder (Pen. Code, § 187). [1] The jury found that defendant had personally used a firearm in the commission of the offense (§ 182), and it found true a special circumstance allegation that the murder was intentional and committed for financial gain (§ 190.2, subd. (a)(1)). The jury also convicted defendant of conspiracy to commit murder (§ 12022, subd. (b)), and it found true a special circumstance allegation that the object of the conspiracy was murder for financial gain. At the penalty phase, the jury returned a verdict of death. Defendant's appeal to this court is automatic. (§ 1239, subd. (b).)

As we shall explain, we affirm the murder and conspiracy convictions as well as the financial gain special circumstance based on the murder conviction, but we strike the special circumstance based on the conspiracy conviction. We also conclude that numerous errors at the penalty phase of trial require reversal of the judgment of death.

Alfredo Padilla and Brenda Prado were heroin and cocaine dealers who lived in a house in Grayson, a small town in Stanislaus County. Also living in the house (hereafter the…