People v. Whitt10/25/1990
70]; People v. Malone (1988) 47 Cal. 3d 1, 25 [252 Cal. Rptr. 525, 762 P.2d 1249]; People v. Keenan (1988) 46 Cal. 3d 478, 503-504 [250 Cal. Rptr. 550, 758 P.2d 1081]; People v. Melton (1988) 44 Cal. 3d 713, 747 [244 Cal. Rptr. 867, 750 P.2d 741].) Because intent to kill was not clearly an element of the felony-murder special circumstance for actual killers at the time of defendant's crimes, Anderson applies.
Defendant argues, however, that our prior decision applying Carlos 's intent-to-kill requirement to his crimes is "law of the case." (See Whitt I, supra, 36 Cal. 3d 724, 734-736.) He relies on the general notion that where an appellate court states a rule of law necessary to its decision, such rule "'must be adhered to'" in any "'subsequent appeal'" in the same case, even where the former decision appears to be "'erroneous.'" (People v. Shuey (1975) 13 Cal. 3d 835, 841 [120 Cal. Rptr. 83, 533 P.2d 211], citation omitted.)
"The primary purpose served by the law-of-the-case rule is one of judicial economy." (Searle v. Allstate Life Ins. Co. (1985) 38 Cal. 3d 425, 435 [212 Cal. Rptr. 466, 696 P.2d 1308].) It prevents the parties from seeking appellate reconsideration of an already decided issue in the same case absent some significant change in circumstances. (See, e.g., People v. Shuey, supra, 13 Cal. 3d at pp. 840-841.) In criminal cases, the prosecution and defense are both bound by the rule. (Id., at p. 845.) Capital defendants are no exception. (See, e.g., People v. Keenan, supra, 46 Cal. 3d 478, 505-507; People v. Ghent (1987) 43 Cal. 3d 739, 758-759 [239 Cal. Rptr. 82, 739 P.2d 1250].)
Contrary to defendant's suggestion, the doctrine is not intended to protect parties from unfavorable changes in the law. Indeed, one well-settled
exception exists where there has been a "controlling" change in the law between the time of the first and second appellate decisions. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal. 3d 1279, 1291 [265 Cal. Rptr. 162, 783 P.2d 749]; People v. Ramos (1984) 37 Cal. 3d 136, 146 [207 Cal. Rptr. 800, 689 P.2d 430]; People v. Shuey, supra, 13 Cal. 3d at pp. 845-846; DiGenova v. State Board of Education (1962) 57 Cal. 2d 167, 179-180 [18 Cal. Rptr. 369, 367 P.2d 865]; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 756, pp. 724-725.)
Just as the law-of-the-case rule applies equally to both sides in a criminal case, so do its exceptions. (See, e.g., People v. Ramos, supra, 37 Cal. 3d at p. 146.) Obviously, Anderson is an intervening, controlling change in the law. It corrected prior mistaken assumptions about the 1978 state statute and federal case law, and concluded that intent to kill is not an element of the felony-murder special circumstance for actual killers. (See Anderson, supra, 43 Cal. 3d 1104, 1143.)
Defendant insists it is "unjust" and "arbitrary" to preclude a capital defendant from asserting the law-of-the-case doctrine in his favor. However, the cases belie any such claim. (See
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