Kimble

Derek Kimble was convicted by a jury of attempted second degree murder (Pen. Code, §§ 664, 187) and robbery (Pen. Code, § 211), both acts committed with great bodily injury (Pen. Code, § 12022.7). We reverse the attempted murder conviction because the trial court improperly instructed the jury that it could find defendant guilty upon a theory other than express malice and we are unable to conclude that this error was harmless beyond a reasonable doubt. The robbery conviction is affirmed.

On April 26, 1984, at about 11:15 p.m., the victim, Shawn Roberts, was approached and asked if he wanted to buy a “joint.” Roberts asked what kind; the man replied, “Thai.” Roberts identified the man as Black, about five feet, nine inches, wearing “dark clothes, possibly a tan jacket, maybe blue jeans.” Roberts later identified him as the defendant. About 30 to 45 seconds later, another man arrived whom Roberts could not see clearly. Suddenly, Roberts was punched in the face, by whom he could not tell. The two men proceeded to beat Roberts. One of them said, “You’d better shut up or we’re going to break your neck, and then you’ll be dead.” They took Roberts’s wallet, his bank book,…