Easley

I respectfully dissent.

The majority continues its trend, lamentable in my view, of reversing death penalty judgments for purported “errors” which reasonably could not have affected the jury’s verdict. (See, e.g., People v. Robertson (1982) 33 Cal.3d 21, 63 [ 188 Cal.Rptr. 77 , 655 P.2d 279 ] [dis opn]; People v. Arcega (1982) 32 Cal.3d 504, 531-534 [ 186 Cal.Rptr. 94 , 651 P.2d 338 ] [dis. opn.]; People v. Hogan (1982) 31 Cal.3d 815, 864 [ 183 Cal.Rptr. 817 , 647 P.2d 93 ] [dis. opn.]; People v. Haskett (1982) 30 Cal.3d 841, 868-869 [ 180 Cal.Rptr. 640 , 640 P.2d 776 ] [dis. opn.]; People v. Ramos (1982) 30 Cal.3d 553, 605 [ 180 Cal.Rptr. 266 , 639 P.2d 908 ] [dis. opn.], judgment vacated and cause remanded sub nom. California v. Ramos (1983) — U.S. — [ 77 L.Ed.2d 1171 , 103 S.Ct. 3446 ]; People v. Murtishaw (1981) 29 Cal.3d 733, 780 [ 175 Cal.Rptr. 738 , 631 P.2d 446 ] [dis. opn.]; People v. Green (1980) 27 Cal.3d 1, 77-78 [ 164 Cal.Rptr. 1 , 609 P.2d 468 ] [dis. opn.]; People v. Velasquez (1980) 26 Cal.3d 425, 447 [ 162 Cal.Rptr. 306 , *887 606 P.2d 341 ] [dis. opn.]; cf. People v. Williams (1981) 29 Cal.3d 392, 415-417 [ 174 Cal.Rptr. 317 , 628 P.2d 869 ] [dis.…

This is an automatic appeal from a judgment imposing a penalty of death. (Pen. Code, § 1239, subd. (b).) 1 We filed an initial opinion in this case on December 10, 1982, but before the opinion became final (Cal. Rules of Court, rule 24(a)), the State Public Defender filed an amicus curiae brief which brought to our attention a number of significant legal issues that had not been raised by defense counsel or the Attorney General and had not been addressed in the court’s opinion. Recognizing that in death penalty cases the provisions of section 1239, subdivision (b) impose “a duty upon this court ‘to make an examination of the complete record of the proceedings ... to the end that it be ascertained whether defendant was given a fair trial’” (italics added) (People v. Stanworth (1969) 71 Cal.2d 820, 833 *864 [ 80 Cal.Rptr. 49 , 457 P.2d 889 ]; People v. Bob (1946) 29 Cal.2d 321, 328 [ 175 P.2d 12 ]; People v. Perry (1939) 14 Cal.2d 387, 392 [ 94 P.2d 559 , 124 A.L.R. 1123 ]; People v. Figueroa (1911) 160 Cal. 80, 81 [ 116 P. 391 ]), we granted a rehearing to give full consideration to the new issues.

When our initial decision was filed, the court was unanimous in concluding…

I concur in the judgment affirming as to guilty and agree that the judgment must be reversed as to penalty because of the serious error of the trial court in instructing the jury under the 1978 death penalty law rather than the 1977 law.

However, I cannot join the majority in its criticism of the instruction barring the jury from being swayed by mere sympathy. On that issue I adhere to the views expressed in my dissenting opinion in People v. Bandhauer (1970) 1 Cal.3d 609, 619 [ 83 Cal.Rptr. 184 , 463 P.2d 408 ]. In the current climate of public opinion, sympathy is more likely to be aroused for the victim and his family than for a defendant who has been found guilty of a brutal first degree murder. Thus cautioning a jury in the penalty phase of the trial not to be swayed by mere sympathy redounds to the benefit, not the detriment, of the defendant.

This is an automatic appeal from a judgment imposing a penalty of death. (Pen. Code, § 1239, subd. (b).) [1] We filed an initial opinion in this case on December 10, 1982, but before the opinion became final (Cal. Rules of Court, rule 24(a)), the State Public Defender filed an amicus curiae brief which brought to our attention a number of significant legal issues that had not been raised by defense counsel or the Attorney General and had not been addressed in the court's opinion. Recognizing that in death penalty cases the provisions of section 1239, subdivision (b) impose "a duty upon this court `to make an examination of the complete record of the proceedings ... to the end that it be ascertained whether defendant was given a fair trial'" (italics added) ( People v. Stanworth (1969) 71 Cal.2d 820 , 833 [ 80 Cal. Rptr. 49 , 457 P.2d 889 ]; People v. Bob (1946) 29 Cal.2d 321, 328 [ 175 P.2d 12 ]; People v. Perry (1939) 14 Cal.2d 387, 392 [ 94 P.2d 559 , 124 A.L.R. 1123 ]; People v. Figueroa (1911) 160 Cal. 80, 81 [ 116 P. 391 ]), we granted a rehearing to give full consideration to the new issues.

When our initial decision was filed, the court was unanimous in…