McDowell

Capital defendant Charles McDowell, Jr., comes before this court for the second time. In 1984, a jury convicted defendant of first degree murder (Pen. Code, § 187), attempted murder (§§ 187, 664), attempted rape (§§ 261, 664), and burglary (§ 459). The jury sustained personal use of a knife allegations as to each offense (§ 12022, subd. (b)); in conjunction with the attempted murder, it sustained allegations that defendant inflicted great bodily injury (§ 12022.7) and that his victim was a person over 60 years of age (§ 1203.09). The jury also sustained two special circumstance allegations, felony-murder burglary and felony-murder rape (§ 190.2, subd. (a)(17)), and defendant admitted a prior conviction for lewd, lascivious, and indecent assault on a child. After a penalty trial, the jury set the penalty at death. This court affirmed the judgment in its entirety. (People v. McDowell (1988) 46 Cal.3d 551, 557 [ 250 Cal.Rptr. 530 , 763 P.2d 1269 ] (McDowell I).) However, in 1997, the Ninth Circuit Court of Appeals, while affirming the federal district court’s denial of defendant’s petition for writ of habeas corpus as to the guilt phase, reversed its denial of the writ as to…