Edwards

Introduction

In In re Baert (1988) 205 Cal.App.3d 514 [ 252 Cal.Rptr. 418 ] (rev. den Jan. 19, 1989), cert. den. sub nom. California v. Baert (1989) _ U.S. _ [ 106 L.Ed.2d 589 , 109 S.Ct. 3242 ], we concluded ex post facto principles require that in all first degree murder cases involving felony-based special circumstances (Pen. Code, § 190.2, subd. (a)(17)) and arising prior to the finality of People v. Anderson (1987) 43 Cal.3d 1104 [ 240 Cal.Rptr. 585 , 742 P.2d 1306 ], the prosecution must prove an intent to kill as mandated by Carlos v. Superior Court (1983) 35 Cal.3d 131 [ 197 Cal.Rptr. 79 , 672 P.2d 862 ]. We now determine that when the trial court has failed to instruct consistent with these holdings, “the appropriate standard [of review] is the ‘harmless beyond a reasonable doubt’ test for federal constitutional errors. (See Chapman v. California (1967) 386 U.S. 18, 21 [].) Applying that test here, we also conclude beyond a reasonable doubt the jury would not have reached a more favorable verdict had it been properly instructed.” (People v. Lee (1987) 43 Cal.3d 666, 669 [ 238 Cal.Rptr. 406 , 738 P.2d 752 ].)

Procedural and Factual Statement

Defendant Dennis…