Jones

I dissent.

Defendant is an African-American. He was tried by a jury from which all prospective jurors of his own race had been excluded by the prosecutor, and was convicted, found sane, and sentenced to death in accordance with that jury’s verdicts and findings. If supported by a good reason on the prosecutor’s part or at least not by a bad one, such exclusion would be unobjectionable under the law. If not, it would amount to a reversible-per-se violation of defendant’s right to trial by a jury drawn from a representative cross section of the community under article I, section 16 of the California Constitution, as construed in People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ], and it would also amount to a separate and independent reversible-per-se violation of his right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution, as construed in Batson v. Kentucky (1986) 476 U.S. 79 [ 106 S.Ct. 1712 , 90 L.Ed.2d 69 ]. Regrettably, the exclusion in question shows itself to fall in the latter category.

Under both Wheeler and Batson , there is a presumption that a prosecutor exercises his peremptory challenges without…

I concur in the reasoning of the plurality opinion except for its analysis of two issues.

First, I conclude, contrary to the plurality, that the prosecutor violated defendant’s constitutional right to remain silent by presenting evidence of defendant’s invocation of that right. As Justice Werdegar notes in her concurring and dissenting opinion, the prosecutor’s purpose in eliciting the *197 fact that defendant had invoked his right to remain silent on the day of his arrest was not simply to negate the use of defendant’s silence as evidence of insanity, but to use it affirmatively as evidence of defendant’s sanity by showing that his silences were calculated and not the product of mental illness. The prosecutor said so when arguing for the admission of defendant’s invocation of his rights: “[T]here is evidence from day one where he was lucid, where he tells these people, ‘My lawyer told me not to talk to you. I’m not going to talk to you.’ ” In questioning Dr. Mertz, the prosecutor preceded the question concerning defendant’s invocation of his rights with more general questions concerning the possibility that defendant’s silences were part of a calculated attempt to malinger, thus…

I concur in the plurality’s affirmance of the judgment of guilt and most of its reasoning. I write separately concerning the sanity phase of trial only to address defendant’s claim of Doyle-Greenfield error (see Doyle v. Ohio (1976) 426 U.S. 610 [ 96 S.Ct. 2240 , 49 L.Ed.2d 91 ] (Doyle); Wainwright v. Greenfield (1986) 474 U.S. 284 [ 106 S.Ct. 634 , 88 L.Ed.2d 623 ] (Greenfield)), which I believe the plurality incorrectly rejects, although I conclude the error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [ 87 S.Ct. 824 , 17 L.Ed.2d 705 , 10 A.L.R.3d 974 ].)

I respectfully dissent, however, from the plurality’s affirmance of the death sentence, because I conclude the trial court committed significant error in ruling on the automatic application to modify the verdict. (Pen. Code, § 190.4, subd. (e); further undesignated statutory citations are to this code.) In my view, remand is necessary to permit the trial court to rule on the application anew, having a correct understanding of the statutory aggravating and mitigating factors (§ 190.3).

Doyle-Greenfield

Defendant argues the prosecutor, over defense objection, violated the principles…

*134 Opinion

Defendant Jeffrey Gerard Jones was convicted, following a jury trial, of two counts of first degree murder (Pen. Code, §§ 187, 189) 1 and one count of attempted first degree murder (§§ 664/187). The jury found true the allegations that defendant personally had used a deadly or dangerous weapon (a hammer) in the commission of each offense (§ 12022, subd. (b)) and found, as special circumstances, that defendant had been convicted in this proceeding of multiple murders (§ 190.2, subd. (a)(3)). The jury further found that defendant, who had pleaded not guilty by reason of insanity, was sane when he committed the charged offenses. Following the penalty phase of the trial, the jury set the penalty at death. This appeal from the resulting judgment of death is automatic. (§ 1239, subd. (b).) For the reasons that follow, we affirm the judgment in its entirety.

I

Competency Hearings

On January 25, 1985, a felony complaint was filed charging defendant with the present offenses. On March 1, 1985, the municipal court suspended the criminal proceedings and transferred the case to the superior court under section 1368 for a determination of defendant’s mental competence to stand…