Loy

A jury convicted defendant Eloy Loy of the first degree murder of Monique Arroyo under the special circumstance of a murder committed while engaged in the commission of a lewd and lascivious act on a child under the age of 14. (Pen. Code, §§ 187, 190.2, subd. (a)(17).) After a penalty *51 trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict and sentenced defendant to death. (Pen. Code, § 190.4.) This appeal is automatic. (Pen. Code, § 1239, subd. (b).) We affirm the judgment.

I. The Facts

A. Guilt Phase

The evidence showed that during the night of May 8 to 9, 1996, 1 defendant entered the bedroom of his 12-year-old niece, Monique Arroyo, while she was sleeping. He assaulted her sexually, killed her, and dumped her body in a nearby vacant lot, where it was discovered four days later.

1. Prosecution Evidence

On the afternoon of May 8, defendant went to the Wilmington home of his sister, Rosalina Arroyo, and her family. Rosalina’s 12-year-old daughter, Monique Arroyo, also lived at that house. Monique shared an upstairs bedroom with her older sister, Josette. Previously, defendant had lived at that home for a while. At…

Defendant was charged with sexually molesting and murdering a 12-year-old girl. At trial, the prosecution presented evidence of defendant’s two previous sexual assaults. The court instructed the jury that if it found that defendant had committed such offenses, it could infer that defendant “ ‘was likely to commit and did commit the crime of which he’s accused.’ ” (Maj. opn., ante, at p. 71.) The majority upholds this instruction.

The majority concludes there is no reasonable likelihood that this instruction misled the jury: The trial court repeatedly reminded the jury that the prosecution had the burden of proving guilt beyond a reasonable doubt and that the jury had to resolve any reasonable doubt in favor of defendant; in addition, the prosecutor did not argue that the jury could convict defendant of the murder based solely on the prior sexual offenses. (Maj. opn., ante, at p. 76.) I agree that, in light of the other instructions, the prior sexual offense instruction at issue did not prejudice defendant. I disagree with the majority, however, that the instruction was proper.

In People v. Reliford (2003) 29 Cal.4th 1007, 1009, 1012 [ 130 Cal.Rptr.2d 254 , 62 P.3d 601 ], a…

A jury convicted defendant Eloy Loy of the first degree murder of Monique Arroyo under the special circumstance of a murder committed while engaged in the commission of a lewd and lascivious act on a child under the age of 14. (Pen. Code, §§ 187, 190.2, subd. (a)(17).) After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict and sentenced defendant to death. (Pen. Code, § 190.4.) This appeal is automatic. (Pen. Code, § 1239, subd. (b).) We affirm the judgment.

The evidence showed that during the night of May 8 to 9, 1996, [1] defendant entered the bedroom of his 12-year-old niece, Monique Arroyo, while she was sleeping. He assaulted her sexually, killed her, and dumped her body in a nearby vacant lot, where it was discovered four days later.

On the afternoon of May 8, defendant went to the Wilmington home of his sister, Rosalina Arroyo, and her family. Rosalina's 12-year-old daughter, Monique Arroyo, also lived at that house. Monique shared an upstairs bedroom with her older sister, Josette. Previously, defendant had lived at that home for a while. At this time, however, he was residing with his brother…