Gutsy. At least relatively.
The California Supreme Court, chastened by the Rose Bird recalls, rarely reverses death sentences. And, as usual, unanimously affirms the death sentence here.
But Justice Moreno, who would also affirm the death sentence here, nonetheless writes a scholarly and very analytical concurrence that discusses the difficult problems with the way at death sentences in California are permissible based solely upon the perpetrator "lying in wait" to commit the crime. Justice Moreno contends that permitting imposition of the death penalty in such cases -- at least as applied by the California Supreme Court -- doesn't appear to constitutionally (or rationally) distinguish between those individuals who deserve the death penalty and those who do not. (Justice Kennard once held a similar view, but recently backtracked on it. And even Justice Werdegar, who writes a separate concurrence, seems a tiny bit concerned about how broad the "lying in wait" doctrine has been applied -- though not enough to change the result here.)
Read the (relatively brief) concurrences, even if you skip the 38-page majority opinion. They definitely add value.
