People v. Phillips

BIRD, C. J., Concurring and Dissenting.

—Although I concur in the judgment, I write separately because the lead opinion’s analysis of the errors regarding the admission of “other criminal activity” evidence (see former Pen. Code, § 190.3, subd. (b)1) and the prejudice that ensued raises significant questions.

I

In an attempt to ensure the accused a fair penalty phase trial, my colleagues suggest that in many cases it may be advisable for the trial judge to make a preliminary determination out of the presence of the jury as to whether there is substantial evidence to prove each element of the…