recognizing that unadorned factor (k) had significant potential for jury confusion.
How later courts described this case
- recognizing that unadorned factor (k) had significant potential for jury confusion.
- “In the current climate of public opinion, sympathy is more likely to be aroused for the victim and his family than for a defendant who has been found guilty of a brutal first degree murder. Thus cautioning a jury in the penalty phase of the trial not to be swayed by mere sympathy redounds to the benefit, not the detriment, of the defendant”
- same for search of defendant’s house and apartment
- indicating change should be made to avoid potential misunderstanding over meaning of factor (k)
Written by the judges who cited it.
The opinion
MOSK, J.
I concur in the judgment affirming as to guilty and agree that the judgment must be reversed as to penalty because of the serious error of the trial court in instructing the jury under the 1978 death penalty law rather than the 1977 law.
However, I cannot join the majority in its criticism of the instruction barring the jury from being swayed by mere sympathy. On that issue I adhere to the views expressed in my dissenting opinion in People v. Bandhauer (1970) 1 Cal.3d 609, 619 [ 83 Cal.Rptr. 184 , 463 P.2d 408 ]. In the current climate of public opinion, sympathy is more likely to be aroused for the victim and his family than for a defendant who has been found guilty of a brutal first degree murder. Thus cautioning a jury in the penalty phase of the trial not to be swayed by mere sympathy redounds to the benefit, not the detriment, of the defendant.