Zaragoza

In February 2001, a San Joaquin County jury found defendant Louis Rangel Zaragoza guilty of the 1999 first degree murder of David Gaines and the robbery of William Gaines. (Pen. Code, §§ 187, 189.) The jury found true the robbery-murder and lying-in-wait special circumstances— making defendant eligible for the death penalty (§ 190.2, subd. (a)(15), (17)(A))—and also concluded that defendant personally used a handgun and caused a death in the commission of the murder and robbery. (Former §§ 12022.5, subd. (a), 12022.53, subd. (d).) Following the penalty phase trial, the jury returned a verdict of death. This appeal is automatic. (§ 1239, subd. (b).) We reverse the death judgment because of error in the death-qualification of the jury, but otherwise affirm.

I. Facts

The judgment of death under review rests on the jury’s finding that defendant murdered David Gaines in the commission of a robbery and while lying in wait. The prosecution’s theory was that defendant and his brother, David Zaragoza, together committed the robbery murder and that defendant was the shooter. The brothers were originally charged in a single information. After David Zaragoza was found incompetent…