Brents

Defendant Gary Galen Brents argued with Kelly Gordon over $100 in proceeds from a methamphetamine sale. Defendant tried to suffocate Gordon, and he choked her. Then he placed Gordon in the trunk of a borrowed car, drove her to a remote location, opened the trunk, poured gasoline on her, closed the trunk, poured gasoline on the outside of the trunk, and lit the gasoline on fire. Gordon burned to death, trapped in the trunk.

Defendant was charged with one count of first degree murder (Pen. Code, § 187, subd. (a)), 1 one count of kidnapping (§ 207, subd. (a)), and one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). Alleged were two special circumstances: that defendant committed the murder while engaged in a kidnapping offense (§ 190.2, subd. (a)(17)(B)), and that the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). It was also alleged that defendant had three prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(e), 1170.12), and also within the meaning of *602 the five-year enhancement statute (§ 667, subd. (a)), and that defendant had served…

I agree with the majority that the jury’s true finding on the kidnapping special circumstance must be set aside and the judgment of death reversed. I disagree that the evidence supporting the special circumstance was sufficient to permit a retrial of the allegation that defendant committed the murder while engaged in the commission of a kidnapping.

As the majority acknowledges and the concurring opinion underscores, the evidence that defendant had a purpose for the kidnapping independent of his intent to murder the victim, as required by law at the time of his offense (People v. Navarette (2003) 30 Cal.4th 458, 505 [ 133 Cal.Rptr.2d 89 , 66 P.3d 1182 ]; People v. Green (1980) 27 Cal.3d 1, 61-62 [ 164 Cal.Rptr. 1 , 609 P.2d 468 ]), was “weak” and “far from overwhelming.” (Maj. opn., ante, at pp. 614, 611; cone. opn. of Liu, J., ante, at p. 619.) I would add that it was, as well, entirely speculative.

Defendant’s intent to kill Kelly Gordon was clear from the beginning. He expressed his intent to Michelle Savidan in the parking lot, stating Gordon “is a snitch. I want to put her out.” When he got into the Cadillac with Gordon and the other women, he put a plastic bag over Gordon’s…

In reviewing the jury’s finding of the kidnap-murder special circumstance, our role is to “examine the evidence in the light most favorable to the prosecution and decide whether a rational trier of fact could find beyond a reasonable doubt that defendant had a purpose for the kidnapping apart from murder.” (People v. Raley (1992) 2 Cal.4th 870, 902 [ 8 Cal.Rptr.2d 678 , 830 P.2d 712 ].) Applying that deferential standard, the court concludes that the evidence that defendant had an independent purpose for kidnapping Kelly Gordon was “minimally sufficient.” (Maj. opn., ante, at p. 614.) At the same time, the court candidly notes that the evidence was “weak” and “far from overwhelming.” (Id. at pp. 614, 611.) I offer one additional observation. Although we typically apply sufficiency-of-the-evidence review to a jury verdict, it is not clear that the jury in this case actually found an independent purpose for the kidnapping because, as our opinion explains (maj. opn., ante, at pp. 611-614), it was never properly instructed to do so. In light of the instructional error, our conclusion that a rational jury could have returned a true finding on the special circumstance *620 does not mean…

Defendant Gary Galen Brents argued with Kelly Gordon over $100 in proceeds from a methamphetamine sale. Defendant tried to suffocate Gordon, and he choked her. Then he placed Gordon in the trunk of a borrowed car, drove her to a remote location, opened the trunk, poured gasoline on her, closed the trunk, poured gasoline on the outside of the trunk, and lit the gasoline on fire. Gordon burned to death, trapped in the trunk.

Defendant was charged with one count of first degree murder (Pen. Code, § 187, subd. (a)), [1] one count of kidnapping (§ 207, subd. (a)), and one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). Alleged were two special circumstances: that defendant committed the murder while engaged in a kidnapping offense (§ 190.2, subd. (a)(17)(B)), and that the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). It was also alleged that defendant had three prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(e), 1170.12), and also within the meaning of the five-year enhancement statute (§ 667, subd. (a)), and that defendant had…