In re Cudjo

I would grant the petition for writ of habeas corpus and vacate the underlying judgment in its entirety. I joined in Justice Kennard’s dissenting opinion in the appeal. (People v. Cudjo (1993) 6 Cal.4th 585, 637-643 [ 25 Cal.Rptr.2d 390 , 863 P.2d 635 ] (dis. opn. of Kennard, J.).) At that time, I concluded that both the guilt and penalty determinations had to be set aside. I continue to hold that view today.

Even if I did not, there remain sufficient legal and factual problems with the trial and with the judgment that ensued to cast doubt on the propriety of putting petitioner to death. He is probably guilty of the offense charged. But oMy probably. That, I conclude, is not sufficient to justify the ultimate sanction.

Petitioner’s application for a rehearing was denied July 28, 1999. Mosk, J., was of the opinion that the application should be granted.

A jury convicted petitioner Armenia Levi Cudjo, Jr., of the first degree murder (Pen. Code, § 187; all further statutory citations are to this code unless otherwise noted) of Amelia Prokuda. The jury found that petitioner committed this murder with the use of a deadly weapon (§ 12022, subd. (b)) and while engaged in the commission of robbery (§ 190.2, former subd. (a)(17)(i) [now subd. (a)(17)(A)]) and burglary (§ 190.2, former subd. (a)(17)(vii) [now subd. (a)(17)(G)]). The jury also convicted petitioner of one count each of robbery with the use of a deadly weapon (§§211, 12022, subd. (b)) and burglary of an inhabited dwelling (§§ 459, 462, subd. (a)). The jury fixed the penalty for the murder at death. The trial court denied the automatic motion to modify this penalty verdict (§ 190.4, subd. (e)), stayed the pronouncement of sentence on the noncapital counts, and sentenced petitioner to death. On petitioner’s automatic appeal, this court affirmed the conviction and the sentence of death. (People v. Cudjo (1993) 6 Cal.4th 585 [ 25 Cal.Rptr.2d 390 , 863 P.2d 635 ].)

In a petition for a writ of habeas corpus, petitioner now seeks relief from the judgment. He has alleged,…