Pensinger

Defendant Brett Patrick Pensinger was convicted of the first degree murder of Michelle Melander, and the jury found true special circumstance allegations that the murder was committed in the course of a kidnapping and that the murder was intentional and involved the infliction of torture. The jury found not true allegations that the murder was committed during the commission of a lewd act on a child under the age of 14 and that the murder was committed in the course of an oral copulation in violation of Penal Code section 288a. Defendant was also convicted of kidnapping Michelle Melander and Michael Melander, Jr. He was acquitted of committing a lewd act, or oral copulation in violation of Penal Code section 288a, on Michelle Melander. The jury fixed the penalty at death, and this appeal is automatic.

We affirm defendant’s convictions and affirm the special circumstance finding as to the allegation of a murder in the course of a kidnapping. We reverse the torture-murder special-circumstance finding, but affirm the penalty determination.

I. Summary of Facts

On July 31, 1981, defendant left his Orange County, California home and went on an errand in his uncle Thomas…

I concur in the judgment.

I am much disturbed by the fact that the People considered it desirable to call three jailhouse informants to testify against defendant at his trial. Common experience teaches that such persons “may have good reason to lie . . . .” (United States v. Garcia (5th Cir. 1976) 528 F.2d 580, 588 ; cf. On Lee v. United States (1952) 343 U.S. 747, 757 [ 96 L.Ed. 1270 , 1277, 72 S.Ct. 967 ] [stating that “[t]he use of informers, accessories, accomplices, false friends, or any of the other betrayals which are ‘dirty business’ may raise serious questions of credibility”].) Recent events reveal that they may also have effective means—sometimes supplied by governmental authorities, sometimes not—to make their falsehoods appear rational and persuasive. (See Rep. of the 1989-1990 L. A. County Grand Jury: Investigation of the Involvement of Jail House Informants in the Criminal Justice System in L. A. County.)

In spite of the foregoing, review of the record convinces me that the majority’s disposition is sound. Therefore, I agree with the result.

Appellant’s petition for a rehearing was denied April 24, 1991, and the opinion was modified to read as printed above.

Defendant Brett Patrick Pensinger was convicted of the first degree murder of Michelle Melander, and the jury found true special circumstance allegations that the murder was committed in the course of a kidnapping and that the murder was intentional and involved the infliction of torture. The jury found not true allegations that the murder was committed during the commission of a lewd act on a child under the age of 14 and that the murder was committed in the course of an oral copulation in violation of Penal Code section 288a. Defendant was also convicted of kidnapping Michelle Melander and Michael Melander, Jr. He was acquitted of committing a lewd act, or oral copulation in violation of Penal Code section 288a, on Michelle Melander. The jury fixed the penalty at death, and this appeal is automatic.

We affirm defendant's convictions and affirm the special circumstance finding as to the allegation of a murder in the course of a kidnapping. We reverse the torture-murder special-circumstance finding, but affirm the penalty determination.

On July 31, 1981, defendant left his Orange County, California home and went on an errand in his uncle Thomas Meyer's…