explaining that if there are several acts on which separate criminal offenses could be found, the jury must agree on the act forming the basis for the conviction
How later courts described this case
- explaining that if there are several acts on which separate criminal offenses could be found, the jury must agree on the act forming the basis for the conviction
- dismissing Davenport error as harmless because of the prior homicide
- stressing the importance of the prior homicide to the outcome
Written by the judges who cited it.
The opinion
BROUSSARD,J.
I concur in the majority opinion with regard to the judgment of guilt and the special circumstance findings, but, for the first reason discussed in Justice Mosk’s opinion, I dissent from the majority’s affirmance of the penalty judgment. As the majority opinion acknowledges, the United States Supreme Court established in Brown v. Illinois (1975) 422 U.S. 590, 603-604 [ 45 L.Ed.2d 416, 427 , 95 S.Ct. 2254 ], that a primary factor to be considered in determining whether subsequently obtained evidence is tainted by a prior illegality is “the purpose and flagrancy of the official misconduct” at issue. (See generally 4 LaFave, Search and Seizure (2d ed. 1987) § 11.4(b), pp. 395-398, and cases cited.) Given “the purpose and flagrancy” of the Missouri police officer’s misconduct in the 1970 Missouri proceedings and the evident causal relationship between that misconduct and defendant’s subsequent admissions in the California proceedings, I believe the trial court erred in admitting evidence of the Missouri offense at the penalty phase of defendant’s trial. Further, as Justice Mosk explains, in light of the substantial mitigating evidence presented on defendant’s behalf at the penalty phase, the erroneous admission of the Missouri evidence was clearly prejudicial. Accordingly, I would reverse the penalty judgment and remand for a new penalty trial, to ensure that the decision whether defendant should live or die is made free of the taint of egregious police misconduct.
Appellant’s petition for a rehearing was denied June 5, 1991, and the opinion was modified to read as printed above. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.