Is section 667.61, subdivision (e)(5) of the California Death Penalty Code applicable to a defendant convicted of more than one murder?

Appellant likens section 667.61, subdivision (e)(5) to the "multiple murder" special circumstance under section 190.2, subdivision (a)(3), which requires a sentence of life without parole or the death penalty when, "The defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree." This special circumstance, which does resemble the multiple victim circumstance under the One Strike law, may only be alleged once per case, rather than as to every individual murder count. (See People v. Champion (1995) 9 Cal.4th 879, 935-936, 39 Cal.Rptr.2d 547, 891 P.2d 93.) But while superficially appealing, the analogy to section 190.2 is ultimately inapt.

The limitation on the number of multiple murder allegations in a death penalty case is necessary to protect the defendant's right to a fair trial. If the jury returned true findings on more than one multiple murder circumstance in a single case, it would inflate the risk they would vote for death during the penalty phase based on the sheer number of special circumstances. (People v. Allen (1986) 42 Cal.3d 1222, 1273, 232 Cal.Rptr. 849, 729 P.2d 115, citing People v. Harris (1984) 36 Cal.3d 36, 67, 201 Cal.Rptr. 782, 679

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