Gates

I concur in affirming the judgment of guilt and the finding of special circumstances. However, I dissent from the affirmance of the penalty, for I cannot agree that the errors committed by the trial court in instructing the jury were harmless under any standard. In my view they seriously misled—or at best, confused—a jury desperately seeking guidance.

The judge began his penalty phase instructions with commendable prescience. He somewhat anticipated our opinion in People v. Brown (1985) 40 Cal.3d 512 [ 230 Cal.Rptr. 834 , 726 P.2d 516 ], by using the permissive “may” instead of the mandatory “shall” in describing the duty of the jurors if they found aggravating outweighed mitigating factors. So far so good. But unfortunately it was all downhill from there.

When the jury asked for explanation of the use of “may” by the judge, he lapsed into a discourse on the discredited “shall” language of the misguided statute. Included in his circular remarks was the statement that “the statute, itself, says it in a mandatory way. It does say ‘shall.’ ” It is difficult to understand why the judge, after giving a permissive instruction, felt it necessary to advise the jury about the text of a…

Defendant was convicted of the first degree murder of Lonnie Stevenson (Pen. Code, § 187) 1 with findings of use of a firearm and being on parole at the time of the offense (§§ 12022.5, 1203.08); assault with a deadly weapon on Maurice Stevenson with findings of use of a firearm and infliction of great bodily injury (§§ 245, 12022.5, 12022.7); robbery of Lonnie Stevenson with findings of use of a firearm, infliction of great bodily injury, and being on parole (§§ 211, 12022.5, 12022.7, 1203.08); robbery of Maurice Stevenson with findings of use of a firearm, great bodily injury and *1176 being on parole (§§ 211, 12022.5, 12022.7, 1203.08); possession of a concealable firearm by an ex-felon (§ 12021); and escape with force and violence (§ 4532, subd. (b)). A special circumstance allegation under the 1978 death penalty law was found true: that the murder was committed while the defendant was engaged in the commission or attempted commission of robbery. (§ 190.2, subd. (a)(17)(i).) The jury fixed the punishment at death; the appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)

For reasons set forth hereafter, we affirm the judgment in its entirety.

I.…

Defendant was convicted of the first degree murder of Lonnie Stevenson (Pen. Code, § 187) [1] with findings of use of a firearm and being on parole at the time of the offense (§§ 12022.5, 1203.08); assault with a deadly weapon on Maurice Stevenson with findings of use of a firearm and infliction of great bodily injury (§§ 245, 12022.5, 12022.7); robbery of Lonnie Stevenson with findings of use of a firearm, infliction of great bodily injury, and being on parole (§§ 211, 12022.5, 12022.7, 1203.08); robbery of Maurice Stevenson with findings of use of a firearm, great bodily injury and being on parole (§§ 211, 12022.5, 12022.7, 1203.08); possession of a concealable firearm by an ex-felon (§ 12021); and escape with force and violence (§ 4532, subd. (b)). A special circumstance allegation under the 1978 death penalty law was found true: that the murder was committed while the defendant was engaged in the commission or attempted commission of robbery. (§ 190.2, subd. (a)(17)(i).) The jury fixed the punishment at death; the appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)

For reasons set forth hereafter, we affirm the judgment in its…