People v. Williams

*973MOSK, J.

I concur in the judgment. I am of the opinion that there occurred no prejudicial error going to guilt, that the multiple-murder special-circumstance finding is unquestionably valid, and that there occurred no prejudicial error going to penalty.

I cannot, however, join in the opinion of the court: I disagree with the majority’s conclusion that the felony-murder special-circumstance findings are valid.

To begin with, I believe that advancement of an independent felonious purpose is an element of the felony-murder special circumstance and as such should have been instructed on in connection with each of the felony-murder special circumstances alleged in this case. We held as much in People v. Green (1980) 27 Cal.3d 1, 61-62. The majority choose not to dispute this point and, in my view, simply cannot do so.

Further, contrary to the majority’s conclusion, I believe that failure to instruct on the independent-felonious-purpose element is not subject to general harmless-error analysis, and that on this record the error cannot be held nonprejudicial. My reasons are as follows.

In People v. Kimble (1988) 44 Cal.3d 480 [244 Cal.Rptr. 148, 749 P.2d 803], I demonstrated that failure to instruct on an element of a special circumstance is automatically reversible, subject to the following exceptions: (1) the erroneous instruction was given in connection with a special circumstance allegation that was not found true; (2) the defendant conceded the issue underlying the element; and (3) the issue was necessarily resolved adversely to the defendant under other, properly given instructions. (Id. at pp. 517-526 (conc. opn. of Mosk, J.).)

In my opinion, none of the exceptions is available on this record: first, the erroneous instruction was given in connection with each of the felony-murder special-circumstance allegations found to be true; second, defendant did not concede the issue of independent felonious purpose; third, the issue was not necessarily resolved adversely to him under other, properly given instructions—indeed, it was not even presented for the jury’s consideration.

In summary, I would conclude that the trial court erred by failing to instruct on independent felonious purpose with regard to the felony-murder special-circumstance allegations. I would further conclude that on this record the error cannot be deemed harmless with respect to the allegations found true.

Nevertheless, since the multiple-murder special circumstance is unquestionably valid, death eligibility has been established. In view of that fact and *974in the absence of prejudicial error at the guilt or penalty phase, I am compelled to concur in the judgment.

KAUFMAN, J.

Notwithstanding the numerous trial errors and defects identified in the majority opinion, I have concluded that on the basis of the entire record there is no reasonable possibility that absent these errors and defects, the jury would have reached determinations more favorable to defendant. I therefore concur in the judgment affirming the convictions, the special circumstances findings as modified and the penalty of death.

Broussard, J., concurred.

Appellant’s petition for a rehearing was denied May 9, 1988, and the opinion was modified to read as printed above.