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
MOSK, J., Concurring and Dissenting.
I concur in the judgment and also in the lead opinion on the issues of guilt and death eligibility. After review, I have found no reason to do otherwise.
I dissent, however, on the issue of penalty. Pursuant to People v. Deere (1985) 41 Cal.3d 353, 360-368 [ 222 Cal.Rptr. 13 , 710 P.2d 925 ], I would set aside the sentence of death as unreliable under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution because defense counsel failed to introduce available evidence in mitigation. Such evidence was real and substantial—as the record of the guilt phase strongly suggests and the People in this court essentially concede. But evidence of that sort was not presented. Hence, the sentence of death must fall. 1
Appellant’s petition for a rehearing was denied October 21, 1992, and the opinion was modified to read as printed above. Mosk, J., was of the opinion that the petition should be granted.
Compare People v. Howard (1992) 1 Cal.4th 1132, 1197 [ 5 Cal.Rptr.2d 268 , 824 P.2d 1315 ] (cone. & dis. opn. of Mosk, J.) (finding a verdict of death constitutionally unreliable when available mitigating evidence was not introduced); People v. Sanders (1990) 51 Cal.3d 471, 531-533 [ 273 Cal.Rptr. 537 , 797 P.2d 561 ] (dis. opn. of Mosk, J.) (same); People v. Lang (1989) 49 Cal.3d 991, 1059-1062 [ 264 Cal.Rptr. 386 , 782 P.2d 627 ] (cone. & dis. opn. of Mosk, J.) (same); and People v. Williams (1988) 44 Cal.3d 1127, 1158-1061 [ 245 Cal.Rptr. 412 , 751 P.2d 470 ] (cone. & dis. opn. of Mosk, J.) (same).