the burden on 18 the party offering the evidence is to show it is reasonably certain that there was no alteration
How later courts described this case
- the burden on 18 the party offering the evidence is to show it is reasonably certain that there was no alteration
- conc. & dis. opn. of Mosk, J.
- cone, and dis. opn. of Mosk, J.
- conc. and dis. opn. of Mosk, J.
Written by the judges who cited it.
The opinion
PANELLI, J., Concurring.
I concur in the result reached by the court. However, I believe People v. Memro (1985) 38 Cal.3d 658 [ 214 Cal.Rptr. 832 , 700 P.2d 446 ] was wrongly decided and should be overruled insofar as it purports to require a “separate” waiver of the right to jury trial of special circumstance allegations.
There are two phases of a capital trial: guilt and penalty. Findings as to the defendant’s guilt and any special circumstance allegations generally are made on the basis of the evidence adduced during the first phase. (Pen. Code, § 190.1, subd. (a) [“If the trier of fact finds the defendant guilty of *577 first degree murder, it shall at the same time determine the truth of all special circumstances” charged, except as to an allegation under § 190.2, subd. (a)(2); italics added.], and § 190.4, subd. (a).) The sole exception relates to charged prior-murder special-circumstance allegations. (§§ 190.1, subd. (b), 190.2, subd. (a)(2).) Apart from that limited exception, a valid waiver of jury trial in the guilt phase, in my view, suffices to waive jury trial of special circumstance allegations. In fids case, defendant validly waived his right to a jury as to both phases of trial. No more was required.
Arabian, J., and George, J., concurred.