The opinion
WERDEGAR, J., Concurring.
I concur fully in the majority opinion, which I have signed. I write separately to emphasize that the rationale of our decision is logically inconsistent with remarks this court made in In re Gay (1998) 19 Cal.4th 771 [ 80 Cal.Rptr.2d 765 , 968 P.2d 476 ] on the irrelevance of lingering doubt evidence. Today’s decision thus effectively overrules In re Gay on this point.
The evidence defendant offered at the penalty retrial in this case to raise doubts as to whether he personally shot the victim was excluded partly on the basis of this court’s statements in In re Gay that lingering doubt evidence is “not relevant to the circumstances of the offense” and constitutes a prohibited attempt to “retry the guilt phase of the trial.” (In re Gay, supra, 19 Cal.4th at p. 814 .) As the majority explains, however, lingering doubt evidence is in fact relevant to “the nature and circumstances of the present offense” within the *1229 meaning of Penal Code section 190.3 and “the circumstances of the crime” within the meaning of that section’s factor (a). (Maj. opn., ante, at pp. 1219-1220, 1221.) If evidence going to the degree or nature of the defendant’s criminal participation is not otherwise barred—if it would have been admissible in the guilt trial—it is also admissible in the penalty trial. (Id. at pp. 1220-1221.) 1
The majority acknowledges the “tension” between In re Gay’s statement of irrelevance and our repeated holdings of relevance, but finds it unnecessary to resolve that tension because In re Gay concerned the penalty phase of a unitary trial, while this case involves admission of lingering doubt evidence in a penalty retrial. (Maj. opn., ante, at p. 1221, fn. 5.) The distinction is, of course, factually valid, but it should not mislead future courts into believing that In re Gay’s statement retains any logical force or authority.
Whether in the penalty phase of a unitary trial or in a penalty retrial, Penal Code section 190.3 provides the applicable substantive law. We hold today, as we have in past decisions, that lingering doubt evidence is relevant under that statute. (Maj. opn., ante, at p. 1221.) Our holding today, although made in the context of a penalty retrial, logically applies as well to an ordinary penalty phase. What is relevant in one is equally relevant in the other. No logical room remains for In re Gay’s contrary statement.
Of course, in an ordinary penalty phase, tried before the same jury that recently heard and decided guilt, the defense is far less likely to offer lingering doubt evidence, and the court might legitimately exclude some offered evidence as cumulative and wasteful of court time. (Evid. Code, § 352.) The same is not true in a penalty retrial. We referred to this difference in People v. Terry when we observed that introduction of lingering doubt evidence at a penalty phase would be “unnecessary . . . because the jury will have heard that evidence in the guilt phase,” while a retrial jury, without the evidence, would “deliberate in some ignorance of the total issue.” (People v. Terry (1964) 61 Cal.2d 137, 146 [ 37 Cal.Rptr. 605 , 390 P.2d 381 ], italics added.) But this difference in the two procedural circumstances does not affect the relevance of lingering doubt evidence; under Penal Code section 190.3, such evidence is as relevant in an ordinary penalty phase as in a penalty retrial.
*1230 The majority explicitly distinguishes, rather than overrules, the court’s statement in In re Gay, supra, 19 Cal.4th at page 814 , regarding the irrelevance of lingering doubt evidence. But the rationale of our decision leaves no doubt that the statement is incorrect. Future courts should not follow it.
Kennard, Acting C. J., and Marchiano, J., * concurred.
The In re Gay court’s second rationale, that lingering doubt evidence represents an improper attempt to “retry” the guilt phase, is easily rebutted. Because of differing standards of proof at the two trial phases, no inconsistency arises when a jury considers lingering doubt evidence at the penalty phase. That the same or a different jury found the defendant guilty beyond a reasonable doubt at the guilt trial does not logically preclude the penalty jury from entertaining residual doubt as to the nature or extent of the defendant’s guilt. The trial court below was simply incorrect in holding “[t]here is just no way to reconcile” defendant’s proffered lingering doubt evidence with the previous guilt jury’s finding (made on a beyond-a-reasonable-doubt standard) that he personally used a firearm in the murder.
Presiding Justice of the Court of Appeal, First Appellate District, Division One, assigned by the Acting Chief Justice pursuant to article VI, section 6 of the California Constitution.