People v. Smith, Jr.

A jury convicted defendant Paul Gordon Smith, Jr., of the first degree murder of Lora Sinner, with the special circumstance of torture. The jury also found defendant guilty of false imprisonment by violence and conspiracy to commit murder. It determined that he used a deadly weapon and inflicted great bodily injury. The jury decided death was the appropriate penalty, and the court imposed that sentence. This appeal is automatic.

We affirm as to guilt, but reverse the penalty judgment. Defendant’s violent attempt to escape from jail just before his trial began created difficult problems for the court at various phases of the proceedings. We conclude that during the penalty phase, the court improperly excluded expert testimony about prison security measures for those sentenced to life without possibility of parole. The evidence was admissible to rebut the prosecution’s evidence and argument suggesting that defendant would pose a danger in custody. Because we cannot say, beyond a reasonable doubt, that the penalty determination would have been the same had the jury heard from defendant’s expert, we must reverse the penalty judgment.

I. FACTS

A. Guilt Phase

1.…