Burgener
People v. Burgener
Opinion
lead Opinion
Grodin, J.
Defendant Michael Ray Burgener was convicted on one count of murder (Pen. Code, § 187) 1 with use of a firearm (§ 12022.5), one count of robbery (§ 211) with use of a firearm (§ 12022.5) and infliction of great bodily injury (§ 12022.7), and one count of being an ex-felon in possession of a firearm (§ 12021).
The jury fixed the degree of murder at first degree, found that it was committed during a robbery, and found that it was committed with express malice aforethought and with deliberation and premeditation. Under the 1978 death penalty law, a special circumstance that the murder was committed during a robbery (§ 190.2, subd. (a)(17)(i)) was found true, and defendant was sentenced to death. This appeal is automatic.
Defendant raises several claims of error at the guilt and special circumstance phase of his trial. We find merit in defendant’s contention that the trial judge erred in failing to conduct an inquiry to determine whether one of the jurors was intoxicated during deliberations. However, we conclude *512 that under the circumstances of this case this error does not warrant reversal. At this point, any claim of jury misconduct defendant wishes to make would be…
035concurrenceinpart Opinion
Bird, J.
I cannot agree that in a capital case the guilt and special circumstance verdicts can be upheld where there
*545 is evidence that one of the jurors was intoxicated during deliberations. No fewer than five jurors expressed concern that Juror M. was intoxicated during deliberations.
The record provides ample support for the conclusion that the trial court committed reversible error by failing to conduct a thorough inquiry into the juror misconduct here. It is, therefore, inappropriate to saddle appellant, who bears no responsibility for the trial court’s failings, with the burden of reassembling his jury panel and demonstrating anew, to another court on habeas corpus, the prejudicial effect of the trial court’s error.
I.
The majority correctly hold that the trial court was remiss in its duty to conduct, sua sponte, an inquiry into Juror M.’s ability to continue as a member of the panel. (Majority opn., ante, at pp. 518-521.) However, the majority find this omission insufficient to warrant reversal because they believe the record does not “establish that juror M. had actually used intoxicants or that her ability to deliberate was affected by them. ” (Id., at p. 521.)