Martinez

Defendant Michael Matthew Martinez appeals from the judgment of death imposed by the Alameda County Superior Court following his conviction of the first degree murder of Lisa White (Pen. Code, § 187) 1 and the premeditated, attempted murder of Tara R. (§§ 187, 664, subds. (a), (f)). In connection with the murder charge, the jury found true the allegation that defendant personally used deadly weapons, specifically a hammer and a *406 knife. (§ 12022, subd. (b)(1).) In connection with the attempted murder charge, the jury found true the allegation that defendant inflicted great bodily injury. (§ 12022.7.) The jury found true a special circumstance allegation that the murder occurred while defendant was engaged in the commission, attempted commission, or flight after the performance of a lewd act upon a child under the age of 14 years, in violation of section 288. (§ 190.2, subd. (a)(17)(E).) After the penalty phase of the trial, the jury returned a verdict of death and the trial court imposed a sentence of death, also imposing a sentence of life imprisonment for the attempted murder, two one-year terms of imprisonment for the weapons enhancements, and a three-year term for…

Concurring and Dissenting. — I concur in the majority opinion insofar as it affirms the guilt verdict and special circumstance finding. I dissent with respect to the penalty verdict. In my view, Prospective Juror E.H. was improperly excused for cause because of the trial court’s determination that E.H. was unable to realistically impose the death penalty. Notwithstanding the deference appellate courts owe to a trial court’s determination of such matters, I conclude the trial court erred. Although E.H. professed to be against the death penalty, she was also unequivocal in her willingness to impose that penalty in some circumstances, and to do so in a way that was consistent with California death penalty law, and therefore she was able and willing to perform her duties as a juror in a capital case. Moreover, the trial court explicitly stated that it did not doubt her credibility. I therefore conclude that the trial court erred in determining she would be substantially impaired in performing her duty as a juror. Such error requires reversal of the death penalty verdict.

I.

I begin with review of pertinent case law. In Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 ,…

Defendant Michael Matthew Martinez appeals from the judgment of death imposed by the Alameda County Superior Court following his conviction of the first degree murder of Lisa White (Pen. Code, § 187) [1] and the premeditated, attempted murder of Tara R. (§§ 187, 664, subds. (a), (f)). In connection with the murder charge, the jury found true the allegation that defendant personally used deadly weapons, specifically a hammer and a knife. (§ 12022, subd. (b)(1).) In connection with the attempted murder charge, the jury found true the allegation that defendant inflicted great bodily injury. (§ 12022.7.) The jury found true a special circumstance allegation that the murder occurred while defendant was engaged in the commission, or attempted commission of, or flight after the performance of a lewd act upon a child under the age of 14 years, in violation of section 288. (§ 190.2, subd. (a)(17)(E).) After the penalty phase of the trial, the jury returned a verdict of death and the trial court imposed a sentence of death, also imposing a sentence of life imprisonment for the attempted murder, two one-year terms of imprisonment for the weapons enhancements, and a three-year…