reiterating that claims based on facts outside the record should be asserted on habeas and not direct appeal
How later courts described this case
- reiterating that claims based on facts outside the record should be asserted on habeas and not direct appeal
- “the proper instruction that one can be guilty of murder on the basis of implied malice not involving an intent to kill, did not state or imply that one could be guilty of a crime which requires a specific intent to commit murder without intending to kill”
Written by the judges who cited it.
The opinion
KENNARD, J., Concurring.
I concur in the judgment affirming the judgment of death. I agree with the majority that no issue raised in defendant’s automatic appeal warrants reversal.
But in the related petition for writ of habeas corpus, which was recently before the court in In re Avena (1996) 12 Cal.4th 694 [ 49 Cal.Rptr.2d 413 , 909 P.2d 1017 ], I expressed the view, which I still hold, that defendant’s convictions and death sentence should have been set aside for ineffective assistance of counsel (id. at pp. 782-783 (dis. opn. of Kennard, J.)). The court’s decision in that case is now final, and is therefore binding under the doctrine of stare decisis.