People v. Hamilton

MOSK,J.

I concur in the majority opinion to the extent it affirms defendant’s conviction of first degree murder, burglary, robbery and kidnapping, but I dissent to the setting aside of the special circumstances finding and the penalty.

I cannot join in Justice Lucas’ criticism of Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862]. Even if one be disillusioned by the number of penalty reversals required by that decision and by People v. Garcia (1984) 36 Cal.3d 539 [205 Cal.Rptr. 265, 684 P.2d 826], stare decisis and respect for the judicial process require adherence to decisions rendered so recently by a substantial majority of this court. A petition for certiorari in the United States Supreme Court was sought by the Attorney General in Garcia, and review in the high court was denied. (469 U.S. 1229 [84 L.Ed.2d 366, 105 S.Ct. 1229].) Thus Carlos-Garcia remains the law in California.

I agree with Justice Lucas, however, that even under Carlos, we need not set aside the special circumstance finding in this case. Intent to kill was manifest from the facts and no evidence was introduced by defendant that might raise a reasonable doubt on that issue.

Therefore I would affirm the judgment in its entirety.

Respondent’s petition for a rehearing was denied March 13, 1986. Lucas, J., and Panelli, J., were of the opinion that the petition should be granted.