People v. Leach , 41 Cal. 3d 92 ( 1985 )

BROUSSARD, J.

I concur in the plurality opinion of Justice Kaus in all but two matters. First, in my opinion the torture-murder special circumstance falls, not because of incorrect jury instructions, but because the underlying statutory provision violates the Eighth Amendment. (See People v. Davenport (1985) post, 247, 290 [221 Cal.Rptr. 794, 710 P.2d. 861] (cone. opn. of Bird, C. J.), id. at p. 295 (cone. opn. of Broussard, J.).) Second, I would rest reversal of the penalty judgment not only on the “no sympathy” instruction discussed by the plurality, but also on the court’s erroneous instruction respecting the Governor’s power to commute a sentence of life imprisonment without possibility of parole. (See People v. Ramos (1984) 37 Cal.3d 136, 153-159 [207 Cal.Rptr. 800, 689 P.2d 430].)