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People v. Whitt10/25/1990
35, 842.) "Application of the rule is now subject to the qualifications that 'the point of law involved must have been necessary to the prior decision, that the matter must have been actually presented and determined by the court, and that application of the doctrine will not result in an unjust decision.' [Citation.]" (Ibid.)
In some cases, it may be unjust to adhere to the law of the case when there has been an intervening controlling change in the law. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal. 3d 1279 [265 Cal. Rptr. 162, 783 P.2d 749]; People v. Shuey, supra, 13 Cal. 3d at pp. 845-846.) In Arakelian Farms, plaintiff claimed that an intervening change in the law permitted the Agricultural Labor Relations Board to reconsider a rule of law stated in our first decision in the matter. We responded: " efore the Board is free to disregard a lawful order of this court, judicial economy demands that Arakelian demonstrate that failure to apply Dal Porto [the claimed intervening "change"] would be a manifest misapplication of existing legal principles and would result in substantial injustice. [Citation.]" (49 Cal. 3d at p. 1291.)
I can see no substantial injustice in adhering to our decision in Whitt I (supra, 36 Cal. 3d 724) that intent to kill was an element of the felony-murder
special-circumstance finding. All defendants tried under the 1977 law received the benefit of the intent-to-kill instruction. Most defendants tried in the window period between Carlos and Anderson (People v. Anderson (1987) 43 Cal. 3d 1104 [240 Cal. Rptr. 585, 742 P.2d 1306] [overruling Carlos, supra, 35 Cal. 3d 131]) received an intent-to-kill instruction. Since many other persons similarly situated to defendant received the benefit of Carlos, we cannot say it is unjust for defendant to do so, too. Absent a showing of such substantial injustice, I would adhere to the normal rule of law of the case.
My second concern centers on the jury instruction which told the jurors the history of the case, including the information that the jury in the 1981 trial found that the appropriate penalty was death, and that we had reversed the penalty because the jury had not been instructed on intent to kill. Because of defense counsel's participation in the preparation of this instruction, and because of counsel's tactic in arguing that defendant had experienced redemption on death row, I agree with the majority that any error was invited. Nonetheless, I would urge trial courts to use extreme caution when faced with a request for such an instruction. An instruction which informs a jury that a previous jury has found death to be the appropriate penalty tends to lighten the second jury's sense of responsibility for its ultimate decision at the penalty trial. Such an instruction could easily lead the jury to believe, in violation of the Eighth Amendment, "that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." (Caldwell v. Mississippi (1985) 472 U.S. 320, 328-329 [86 L.Ed.2d 231, 239, 105 S.Ct. 2633].)
KENNARD, J., Concurring and Dissenting.
I concur in the majority's affirmance of the jury's special circumstance finding, but I dissent from its affirmance of the judgment of death.
The United States Supreme Court has held that, for a death sentence to comport with the Eighth and Fourteenth Amendments of the federal Constitution, the defendant in a capital case must be permi
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