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Appellant stands convicted of first degree murder (Pen. Code, §§ 187, 189), [1] conspiracy to commit murder (§ 182), attempted murder (§ 664), robbery (§ 211), and assault with a deadly weapon on a peace officer (§ 245, subd. (b)). In addition, the jury found two special circumstances — committing murder in the course of a robbery and murdering a police officer in the line of duty (former § 190.2, subd. (c)(1) & (c)(3)(i)) — and imposed upon appellant the sentence of death pursuant to the 1977 death penalty statute. This appeal is automatic.

Most of appellant's arguments we find to be without merit. Analysis of the jury instructions in light of recent case law reveals, however, two fundamental errors. First, in connection with the robbery count, the jury was instructed in terms which permitted them to convict appellant of that crime on the prosecution's aiding and abetting theory without necessarily determining appellant acted with requisite intent. In People v. Beeman (1984) 35 Cal.3d 547 [ 199 Cal. Rptr. 60 , 674 P.2d 1318 ], we held that such instructions are erroneous. Here, as we shall explain, the error requires reversal of the murder conviction as well…

Appellant stands convicted of first degree murder (Pen. Code, §§ 187, 189), 1 conspiracy to commit murder (§ 182), attempted murder (§ 664), robbery (§ 211), and assault with a deadly weapon on a peace *6 officer (§ 245, subd. (b)). In addition, the jury found two special circumstances—committing murder in the course of a robbery and murdering a police officer in the line of duty (former § 190.2, subd. (c)(1) & (c)(3)(i))— and imposed upon appellant the sentence of death pursuant to the 1977 death penalty statute. This appeal is automatic.

Most of appellant’s arguments we find to be without merit. Analysis of the jury instructions in light of recent case law reveals, however, two fundamental errors. First, in connection with the robbery count, the jury was instructed in terms which permitted them to convict appellant of that crime on the prosecution’s aiding and abetting theory without necessarily determining appellant acted with requisite intent. In People v. Beeman (1984) 35 Cal.3d 547 [ 199 Cal.Rptr. 60 , 674 P.2d 1318 ], we held that such instructions are erroneous. Here, as we shall explain, the error requires reversal of the murder conviction as well as…

I concur in the judgment to the

extent it affirms defendant’s convictions of conspiracy to commit first degree murder, and of assault with a deadly weapon. For the reasons stated in Justice Mosk’s dissenting opinion, however, I would also affirm the convictions of murder with special circumstances and attempted murder. The evidence of defendant’s guilt of those offenses was overwhelming.

Finally, unlike either the majority or Justice Mosk, I would also affirm defendant’s robbery conviction despite so-called Beeman error. (See People v. Beeman (1984) 35 Cal.3d 547, 560 [ 199 Cal.Rptr. 60 , 674 P.2d 1318 ].) As I will demonstrate, the evidence which indicated that defendant aided and abetted a robbery with an intent to facilitate, or assist in facilitating, that offense was likewise overwhelming.

My colleagues in the majority properly decline to apply a reversible per se standard for measuring the prejudicial effect of Beeman error. (See People v. Garcia (1984) 36 Cal.3d 539 [ 205 Cal.Rptr. 265 , 684 P.2d 826 ] [reversible per se standard for Carlos error in capital cases].) I agree that such a strict standard would be unnecessary in these cases, being compelled by neither logic…

I dissent from the reversal of the convictions of murder and

attempted murder.

On this issue the majority draw some esoteric distinctions that are difficult to comprehend: they uphold defendant’s conviction of conspiracy to commit murder, but reverse his conviction of the murder and attempted murder that he conspired to commit and that actually took place.

At the outset, I concede the evidence is too thin to support the robbery conviction. Despite the melee at the liquor store, events there probably did not rise to the level of a robbery. Thus defendant could not be convicted of robbery and necessarily the felony-murder charge based on the robbery must fall. To that extent the majority opinion is sound. It does not follow, however, that defendant was improperly convicted of first degree murder and attempted murder under this evidence. Indeed, it seems to me that the evidence of guilt is overwhelming.

*27 The majority cannot find an adequate showing of malice to justify the first degree murder and attempted murder convictions, despite the fact that the jury found defendant guilty of conspiracy to commit first degree murder, a conviction that must be bottomed on malice. As I…