Avena

I concur in the judgment affirming the judgment of death. I agree with the majority that no issue raised in defendant’s automatic appeal warrants reversal.

But in the related petition for writ of habeas corpus, which was recently before the court in In re Avena (1996) 12 Cal.4th 694 [ 49 Cal.Rptr.2d 413 , 909 P.2d 1017 ], I expressed the view, which I still hold, that defendant’s convictions and death sentence should have been set aside for ineffective assistance of counsel (id. at pp. 782-783 (dis. opn. of Kennard, J.)). The court’s decision in that case is now final, and is therefore binding under the doctrine of stare decisis.

*408 Opinion

Carlos Jaime Avena was convicted in 1980 in Los Angeles County Superior Court of the first degree murders of Manuel Solis and Miguel Vasquez. (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated.) Multiple-murder and robbery-murder special-circumstance allegations were also sustained. (§ 190.2, subd. (a)(3) & (17).) In addition, petitioner was convicted of robbery, attempted robbery, two counts of assault with a deadly weapon, and two counts of assault with intent to commit murder. (§§ 211, 664/211, 245, subd. (a), and former § 217.) The jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).)

While the appeal in this matter was pending, defendant filed a petition for a writ of habeas corpus. We thereafter issued an order to show cause and appointed a referee to take evidence on the question of possible ineffective assistance of trial counsel with regard to defendant’s alleged use of phencyclidine (PCP) on the night of the crimes. The appeal was held in abeyance while the habeas corpus matter proceeded. We have since determined that defendant did not…

I dissent.

I would dismiss the appeal as moot. That is because I would have vacated the underlying judgment on habeas corpus for ineffective assistance of *449 counsel in violation of the Sixth Amendment to the United States Constitution. ( In re Avena (1996) 12 Cal.4th 694, 741-782 [ 49 Cal.Rptr.2d 413 , 909 P.2d 1017 ] (dis. opn. of Mosk, J.).) There, on initial consideration, I found the “assistance”—better, the “nonassistance”—that trial counsel furnished defendant to be “shockingly ineffective.” (Id. at p. 741 (dis. opn. of Mosk, J.), italics added.) Here, after revisiting the question, I have regrettably been confirmed in my assessment.

If I were not of the view that the appeal should be dismissed, I would be inclined to set aside defendant’s sentence of death for “Robertson error” (People v. Robertson (1982) 33 Cal.3d 21 [ 188 Cal.Rptr. 77 , 655 P.2d 279 ]), that is, the superior court’s failure to instruct the jury that the prosecution bore the burden of proving other crimes at the penalty phase beyond a reasonable doubt. Asserting that the offenses in question were supported by “overwhelming evidence,” the majority hold the error harmless. Their approach, however, is…