Melendez

Mario Melendez (defendant) and Cirilo E. Guzman were tried jointly for the second degree robbery of Michael Shirher (count I, Pen. Code, § 212.5, subd. (b)) and an assault with a deadly weapon upon Steve Herrera (count II, Pen. Code, § 245, subd. (a)(2)). In addition, defendant was charged with an arming allegation (Pen. Code, § 12022, subd. (a)) in count I. Defendant and Guzman were convicted of second degree robbery. The jury was deadlocked on the arming allegation and count II. A mistrial was declared as to these charges. Defendant appeals, claiming three instructional errors and prosecutorial misconduct. We reverse, finding two separate instructional errors, one of which we discuss in the published portion of this opinion.

Statement of Facts

On November 30, 1988, Michael Shirher was working as the store manager at a Radio Shack in Bakersfield. A Hispanic man (Provencio) wearing a white sweater was in the store. He left and returned a few minutes later. Defendant entered the store and was being helped by Shirher when Provencio returned. Shirher watched Provencio when he was in the store the second time. He left again and returned a third time five minutes later. In…