People v. Beeler

MOSK, J., Concurring and Dissenting.

I concur in the judgment as to guilt, death eligibility, and noncapital sentence. After review, I have found no reversible error or other defect.

I dissent, however, from the judgment as to the sentence of death.

I agree with Justice Kennard that, by handling the matter relating to Juror Coley as it did, the superior court committed prejudicial error under the United States Constitution. I join in her persuasive analysis.

I write separately to express my view that reversal is required without regard to the federal charter.

The superior court committed error under California law. Such a conclusion is implicit in Justice Kennard’s discussion.

This error is reversible in and of itself. I do not overlook section 13 of article VI of the California Constitution: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a *1011 miscarriage of justice.” Article VI, section 13, however, was effectively abrogated in In re Carpenter (1995) 9 Cal.4th 634 [ 38 Cal.Rptr.2d 665 , 889 P.2d 985 ]. There, a bare majority of this court reversed a judgment without expressing any opinion whether a “miscarriage of justice” had resulted and indeed without even examining the “entire cause, including the evidence.” I follow that precedent here.

For the foregoing reasons, I would reverse the judgment of death.