People v. Brooks

Filed 5/31/17 (Posted 6/19/17 due to inadvertent omission)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S099274 v. ) ) DONALD LEWIS BROOKS, ) ) Los Angeles County Defendant and Appellant. ) Super. Ct. No. PA032918 ____________________________________)

ORDER MODIFYING OPINION AND DENYING REHEARING

THE COURT: It is ordered that the opinion filed herein on March 20, 2017, and reported in the Official Reports (2 Cal.5th 674), be modified as follows:

1. The last sentence of the first paragraph on page 688, which states “For the reasons that follow, we affirm the judgment,” is modified so that the sentence reads:

For the reasons that follow, we vacate the jury‟s finding that the murder was committed while defendant was engaged in the commission of kidnapping, but affirm the judgment in all other respects, including the sentence of death.

1

2. On page 788, after the third full paragraph, add the following new subpart:

E. Petition for Rehearing

In a petition for rehearing filed after we issued our opinion in this matter, defendant raised a single claim asserting, for the first time, that the true finding on the kidnapping-murder special-circumstance allegation must be reversed because the trial court failed to instruct the jury that it could find the allegation true only if it found defendant had committed the kidnapping for an independent felonious purpose.

Ordinarily, this court will not consider an issue raised for the first time in a petition for rehearing. (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1013; County of Imperial v. McDougal (1977) 19 Cal.3d 505, 513.) As the Attorney General acknowledges, however, we have departed from our usual practice in some circumstances, particularly when the untimely claim arises in a case involving the death penalty. (See, e.g., People v. Malone (1928) 205 Cal. 29, 32-33; People v. Champion (1924) 193 Cal. 441, 450.) For example, in People v. Easley (1983) 34 Cal.3d 858, this court filed an initial opinion in a capital case affirming the judgment in its entirety. Before that opinion was final, however, we received an amicus curiae brief presenting issues that had not been raised by the parties or discussed in the opinion. We granted rehearing to consider the new issues. In our ensuing opinion, we explained that we took that unusual step because section 1239, subdivision (b) imposes on the court a duty “ „to make an examination of the complete record of the proceedings . . . to the end that it be ascertained whether defendant was given a fair trial.” ‟ ” (Easley, at p. 863.) In the circumstances presented here, in which a capital defendant has presented a meritorious claim that can be resolved solely on the basis of the appellate record, we find it appropriate to consider the new claim of instructional error raised in defendant‟s petition for rehearing. For the reasons that follow, we conclude that the trial court prejudicially erred by failing to instruct on the independent felonious purpose rule in connection with the kidnapping-murder special- circumstance allegation, and that the jury‟s true finding on that allegation must be vacated.