476 U.S. 1301
106 S.Ct. 1782
90 L.Ed.2d 170
CALIFORNIAv.Bernard Lee HAMILTON.No. A-805.
May 6, 1986.

Justice REHNQUIST, Circuit Justice.


1
Applicant, the State of California, asks that I stay pending disposition of its petition for certiorari the enforcement of the judgment of the California Supreme Court, which invalidated the death sentence imposed on respondent Hamilton for the 1979 murder of a woman near San Diego.  41 Cal.3d 408, 221 Cal.Rptr. 902, 710 P.2d 981 (1985).  The jury was not instructed that it was required, as a matter of state law under Carlos v. Superior Court, 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862 (1983), to find that Hamilton intended to kill his victim before it could impose the death penalty.  The California Supreme Court held that this failure to properly instruct the jury on the issue of intent violated Hamilton's right to due process under this Court's decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).  41 Cal.3d, at 431, 221 Cal.Rptr. at 914, 710 P.2d, at 993.  The court also held that such rom error was not harmless under the four-part test for harmlessness set forth in People v. Garcia, 36 Cal.3d 539, 554-557, 205 Cal.Rptr. 265, 273-275, 684 P.2d 826, 834-836 (1984), cert. denied, 469 U.S. 1229, 105 S.Ct. 1229, 84 L.Ed.2d 366 (1985).  In particular, the court concluded that the fourth part of the Garcia test, under which a Sandstrom error may be found harmless if "the record not only establishes the necessary intent as a matter of law but shows the contrary evidence not worthy of consideration," Garcia, 36 Cal.3d, at 556, 205 Cal.Rptr. at 274, 684 P.2d, at 835, did not apply to the instant case.  41 Cal.3d, at 432, 221 Cal.Rptr. at 916, 710 P.2d, at 995.


2
The State requests a stay so that it can petition for certiorari, raising the following question:  "What is the proper standard of prejudice under the United States Constitution for errors in jury instructions regarding intent to kill in capital cases?"  The State argues that the California Supreme Court misconstrued this Court's decision in Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983), when it set up in Garcia its four-part harmlessness test for Sandstrom errors, and that under a proper test the Sandstrom error in the instant case would be found harmless.  The State also points out that, under California law, it will be forced to begin a new trial on the issue of Hamilton's sentence by May 12, 1986, or be forever barred from seeking the death penalty.  See Cal.Penal Code Ann. § 1382(2) (West).  On the other hand, since the California Supreme Court affirmed Hamilton's murder conviction, he will remain confined whether or not a stay is granted.


3
This Court currently has before it the case of Rose v. Clark, No. 84-1974, which involves the question whether a Sandstrom error may ever be found harmless and, if so, under what circumstances. Our decision in Rose v. Clark may well affect the outcome of the instant case.  For this reason, I believe that a majority of this Court would not want to dispose of the petition for certiorari in this case before a decision is rendered in Rose v. Clark.  I therefore stay the enforcement of the judgment of the California Supreme Court pending further action by me or by the Court.

