I dissent.
I would dismiss the appeal as moot. That is because I would have vacated the underlying judgment on habeas corpus. (See In re Horton (1991) 54 Cal.3d 82, 101-104 [284 Cal.Rptr. 305, 813 P.2d 1335] (dis. opn. of Mosk, J.).) It was not a superior court judge who presided over the trial of this cause and sentenced defendant to death. It was merely a commissioner, who was without authority to do so. I still “find it shocking that one who is not a judge chosen by and responsible to society can merely by inference and implication be given the awesome power of determining life or death for a human being.” (In re Horton, supra, 54 Cal.3d at p. 101 (dis. opn. of Mosk, J.).)
Appellant’s petition for a rehearing was denied January 24, 1996, and the opinion was modified to read as printed above.