People v. Easter

Opinion

POCHÉ, J.

Subsequent to this court’s initial consideration of this appeal, the California Supreme Court held that the holding of

Carlos

v.

Superior Court

(1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862], applied to all

[185]

cases then pending on appeal and set forth the standard of prejudice to be applied to such an error.

(People

v.

Garcia

(1984) 36 Cal.3d 539 [205 Cal.Rptr. 265, 684 P.2d 826].) Thereafter this cause was retransferred to us for the limited purpose of reconsideration in light of

Garcia.

While this case was pending in the reconsideration stage, the high court decided

People

v.

Anderson

(1987) 43 Cal.3d 1104 [240 Cal.Rptr. 585, 742 P.2d 1306], which overruled

Carlos

to the extent it had held that the trial court must instruct on intent to kill in conjunction with a felony-murder special circumstance allegation where the defendant is the actual killer. Because defendant was the actual killer in this case, we find no instructional error to have occurred and affirm.

I-III

*

(6)

The Carlos issue

Subsequent to the trial in this case, the California Supreme Court held that the 1978 death penalty initiative must be construed to require an intent to kill or to aid in a killing as an element of the felony-murder special circumstance.