Eaker

Appellants Carl Baker and Ronald Sagin were convicted after trial by jury of first degree murder (Pen. Code, § 187) and first degree burglary (Pen. Code, § 459). The jury found that appellant Sagin had used a firearm in the perpetration of the murder (Pen. Code, § 12022.5). Both appellants were sentenced to prison.

In the early morning hours of February 11, 1977, after each appellant had consumed a fifth of wine and injected a quarter spoon of heroin, they drove to an apartment building in Santa Clara, forced their way into an apartment, and proceeded to load their car with stolen goods. During the loading process appellants were approached by three men, one of whom, Zemke, the manager of the apartment building, told appellants to return the stolen items. Sagin drew a handgun, with which he shot and killed Zemke. Appellant Sagin testified that he and appellant Baker committed the burglary, but that the shooting of Zemke was done in self-defense.

Appellant Sagin contends that the court erred in its instructions on the felony-murder doctrine (CALJIC No. 8.21) because the court failed to define malice, a necessary element of murder. The contention is without merit. The…