Riccardi

*765 Opinion

A jury found defendant John Alexander Riccardi guilty of the first degree murders of Constance (Connie) Navarro and Susan (Sue) Jory by use of a firearm. (Pen. Code, §§ 187, subd. (a), 12022.5, subd. (a).) 1 The jury also found true the special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and that defendant committed Connie’s murder while engaged in the commission of a burglary (§ 190.2, subd. (a)(17)). Subsequently, the jury fixed the penalty at death.

This appeal is automatic. (§ 1239, subd. (b).) We reverse the judgment of death because of the erroneous excusal of a prospective juror during jury selection. We also reverse the burglary special circumstance and one of the two multiple-murder special-circumstance findings, but the judgment is affirmed in all other aspects.

I. Facts and Proceedings

A. Guilt Phase

1. Prosecution’s case

a. Background of the relationship

Defendant and one of the victims, Connie, began dating in 1980. During their relationship, defendant had his own residence, but stayed at Connie’s condominium frequently. Connie had a teenage son, David Navarro, and she shared joint custody of him with his father, her…

We properly reverse the judgment of death based on the holding of Gray v. Mississippi (1987) 481 U.S. 648 [ 95 L.Ed.2d 622 , 107 S.Ct. 2045 ] {Gray). I write separately only to observe that the rationale for Gray’s rule has become somewhat unclear, and to suggest that clarification of the theory underlying the rule would provide guidance in identifying the breadth of circumstances in which the rule applies.

The general rule is that, absent a showing of prejudice, an erroneous excusal of a prospective juror for cause does not mandate the reversal of judgment. This rule is based on the principle that a-“[d]efendant has a right to jurors who are qualified and competent, not to any particular juror.” (People v. Holt (1997) 15 Cal.4th 619, 656 [ 63 Cal.Rptr.2d 782 , 937 P.2d 213 ].) But as noted in the majority opinion, under existing United States Supreme Court precedent, the erroneous excusal of a prospective juror for cause based on that person’s views concerning the death penalty automatically compels the reversal of the penalty phase judgment without any inquiry as to whether the error may have prejudiced defendant’s penalty determination. ( Gray, supra, 481 U.S. at pp. 659-667…

I write briefly in response to the Chief Justice’s concurring opinion.

Gray v. Mississippi (1987) 481 U.S. 648 [ 95 L.Ed.2d 622 , 107 S.Ct. 2045 ] (Gray) was decided 11 years after Davis v. Georgia (1976) 429 U.S. 122 [ 50 L.Ed.2d 339 , 97 S.Ct. 399 ], which summarily reversed a death sentence where the trial court had erroneously excluded a prospective juror for cause based on the juror’s views concerning the death penalty. In Gray , the United States Supreme Court had the opportunity to revisit Davis and apply harmless error review to such erroneous exclusions. A majority of the court declined to do so, with Justice Powell casting the swing vote. (See Gray , at p. 661; id. at p. 670 (cone. opn. of Powell, J.).) Over a thorough and vigorous dissent (see id. at p. 672 (dis. opn. of Scalia, J.)), the five-justice majority agreed that the error required reversal because “we cannot know what effect the excluded juror would have had on the panel as a whole.” (Id. at p. 671 (cone. opn. of Powell, J.); see id. at p. 665 (opn. of the court).)

One year later, after Justice Kennedy succeeded Justice Powell, the court returned to the issue of for-cause excusáls of prospective jurors based…

I. FACTS AND PROCEEDINGS

A. Guilt Phase

1. Prosecution’s case

a. Background of the relationship Defendant and one of the victims, Connie, began dating in 1980. During their relationship, defendant had his own residence, but stayed at Connie‘s condominium frequently. Connie had a teenage son, David Navarro, and she shared joint custody of him with his father, her ex-husband, James ―Mike‖ Navarro. David became close to defendant and regarded him as a trusted friend. In the fall of 1982, defendant‘s relationship with Connie began to unravel, with frequent breakups followed by brief reconciliations. In January 1983, Connie firmly decided to end the relationship and no longer wanted to see defendant. Over the next two months, defendant had difficulty coping with the breakup and began stalking Connie. On March 3, 1983, he killed Connie and her friend, Sue Jory. During the two-month period, defendant appeared uninvited at restaurants where Connie was dining and at dinners at her ex-husband‘s house. Connie received multiple phone calls, but the calling party would hang up after she answered. On some occasions, defendant followed Connie and her friend, Marilyn Young, to a fitness…