I dissent.
While I agree with most of the rationale of the majority opinion, I am concerned with the effect of a reversal on the administration of justice.
These crimes were committed in early 1978, seven years ago. To require a retrial after this long passage of time casts an unfair burden on the memories of witnesses and on both the prosecution and defense.
Since there is no question of the responsibility of this defendant for three homicides and one assault, I would exercise the power this court has pursuant to Penal Code sections 1260 and 1181, subdivision 7, to modify and reduce the judgment from two counts of first degree murder, one count of second degree murder and one count of assault with intent to commit murder, to three counts of second degree murder and one count of assault with a deadly weapon, and to remand to the trial court for resentencing.
For a discussion of the authority of this court to reduce a judgment and sentence, see my separate opinion in People v. Holt (1984) 37 Cal.3d 436, 462 [208 Cal.Rptr. 547, 690 P.2d 1207].
The Chief Justice’s proposed additional ground for reversal requires little comment. Rubio v. Superior Court (1979) 24 Cal.3d 93 [154 Cal.Rptr. 734, *99593 P.2d 595], remains the prevailing law in California and it properly should be. The exclusion of ex-felons and aliens from participation in governmental functions has been consistently upheld by the United States Supreme Court. As Chief Justice Burger wrote for the court in Foley v. Connelie (1978) 435 U.S. 291, 295 [55 L.Ed.2d 287, 292, 98 S.Ct. 1067], to obliterate all the distinctions between citizens and aliens would “ ‘depreciate the historic values of citizenship.’ ” He explained (at p. 296 [55 L.Ed.2d at p. 292]), “This is not intended to denigrate the valuable contribution of aliens who benefit from our traditional hospitality. It is no more than recognition of the fact that a democratic society is ruled by its people. Thus, it is clear that a State may deny aliens the right to vote, or to run for elective office, for these lie at the heart of our political institutions. See 413 U.S., at 647-649. Similar considerations support a legislative determination to exclude aliens from jury service. See Perkins v. Smith, 370 F.Supp. 134 (Md. 1974), aff’d, 426 U.S. 913 (1976). . . . This is not because our society seeks to reserve the better jobs to its members. Rather, it is because this country entrusts many of its most important policy responsibilities to these officers, the discretionary exercise of which can often more immediately affect the lives of citizens than even the ballot of a voter or the choice of a legislator. In sum, then, it represents the choice, and right, of the people to be governed by their citizen peers.” A jury, of course, performs a vital governmental function.
As indicated above, I would modify the judgment, affirm as modified, and remand to the trial court for resentencing.
Teilh, J.,* concurred.
Assigned by the Chairperson of the Judicial Council.