I would grant the petition for writ of habeas corpus and vacate the underlying judgment in its entirety. I joined in Justice Kennard’s dissenting opinion in the appeal. (People v. Cudjo (1993) 6 Cal.4th 585, 637-643 [25 Cal.Rptr.2d 390, 863 P.2d 635] (dis. opn. of Kennard, J.).) At that time, I concluded that both the guilt and penalty determinations had to be set aside. I continue to hold that view today.
Even if I did not, there remain sufficient legal and factual problems with the trial and with the judgment that ensued to cast doubt on the propriety of putting petitioner to death. He is probably guilty of the offense charged. But oMy probably. That, I conclude, is not sufficient to justify the ultimate sanction.
Petitioner’s application for a rehearing was denied July 28, 1999. Mosk, J., was of the opinion that the application should be granted.