I concur in the judgment and generally in the opinion that Justice George has prepared for the court.
I write separately to make this statement. I have not been persuaded by defendant that the 1978 death penalty law, as it was originally enacted, violated the Eighth Amendment to the United States Constitution, on its face or as applied to him, by failing to properly define the class of persons subject to the ultimate sanction. I do not, however, arrive at a more positive conclusion. Certainly, the law, as it has subsequently been construed (see, e.g., People v. Morales (1989) 48 Cal.3d 527, 554-557 [257 Cal.Rptr. 64, 770 P.2d 244]) and amended (initiative measure (Prop. 114), approved, Primary Elec. (June 5, 1990); initiative measure (Prop. 115), approved, Primary Elec. (June 5, 1990)), has become problematic. Whether it now contravenes the Eighth Amendment in its definition of death-eligibility is a question I need not and do not reach.
Appellant’s petition for a rehearing was denied February 16,1995, and the opinion was modified to read as printed above.