The opinion
POCHE, Acting P.J.
I dissent.
No decoding is necessary to understand the message from the Supreme Court contained in Carlos v. Superior Court (1983) 35 Cal.3d 131, 134, 153-154 [ 197 Cal.Rptr. 79 , 672 P.2d 862 ]: if the penalty of death is inapplicable (for constitutional or other reasons) to a particular special circumstance then the defendant can neither be charged nor tried on the special circumstance allegation even if the penalty of life imprisonment without possibility of parole would withstand constitutional scrutiny. Thus what the majority finds dispositive—that the defendant will be standing trial on another special circumstance—is not only not dispositive it is not relevant to any determination made below or here. That this defendant might be subject to 100 other special circumstance allegations would not change the rule: he cannot be tried on the special circumstance allegation that he reasonably should have known that his victim was then a police officer engaged in the performance of duty unless the defendant would be subject to the penalty of death were the jury to find the allegation to be true.
We—like the trial court—have the obligation to answer the question presented by demurrer and properly presented by this appeal by the People. The trial court met its duty. It decided the question of law before it. We should, too.
Instead the majority seems upset that since there has been no trial yet we cannot review “instructions given” or “the facts of the offense.” Those *497 matters are irrelevant to the determination of whether the death penalty may be assessed against one who commits first degree murder of a person he, through negligence, did not recognize was a peace officer engaged in the performance of his duty. Neither instructions nor additional facts will help us make that determination. Such is the nature of demurrers.
Thus what happens here is that the judgment of the trial court rendered more than 18 months ago is reversed and the parties are relegated to trial. Neither side has the benefit of what both were entitled to: a determination of whether a large part of the complicated proceedings that now are to unfold are constitutional.
Since only the Supreme Court has appellate jurisdiction if the penalty of death is ordered this court has almost entirely immunized itself from the tough questions and has reversed a trial court for answering those questions. Presumably the trial court would not have been reversed for “prematurity” had it decided to overrule the demurrer and to let the boys fight it out at trial.
In my estimation the majority’s action is contrary to the law (Carlos, supra) and is lamentable policy which unnecessarily avoids our duty to decide tough questions properly presented. This inaction will increase the complexity of a death penalty case and will substantially diminish the chances of disposing of the eventual judgment without the necessity of reversal and retrial.
I would therefore reach the merits.
Respondent’s petition for review by the Supreme Court was denied October 2, 1986. Bird, C. J., and Reynoso, J., were of the opinion that the petition should be granted.