Denney

Statement of the Case

Appellant stands convicted of robbery (Pen. Code, § 211) and first degree felony murder (Pen. Code, § 189) with special circumstances (Pen. Code, § 190.2, subd. (a)(17)(i)). He was sentenced to life imprisonment without possibility of parole.

We first hold that under Carlos v. Superior Court (1983) 35 Cal.3d 131 [ 197 Cal.Rptr. 79 , 672 P.2d 862 ], it was error to sentence appellant to life imprisonment without the possibility of parole, since no evidence was introduced that appellant specifically intended to kill the victim. Although the killing occurred before the effective date of Carlos , we nonetheless determine that Carlos should be given retroactive application to the present case.

We also hold that while other evidence sufficed to support appellant’s conviction of robbery and first degree felony murder, the trial court erred in admitting appellant’s confession which had been obtained in flagrant violation of appellant’s constitutional rights. Reversal is mandated by established law.

Finally, we advise the trial court on an evidentiary issue that may arise on retrial. (Code Civ. Proc., § 43.)

The Facts

On November 24, 1980, appellant,…