White

Defendant/appellant Willie L. White appeals from a judgment on a jury verdict convicting him of two counts of first degree murder. (Pen. Code, § 187.) He contends the trial court erred by permitting the prosecution to try the case on the theory that he personally shot the victims, after a jury in a prior trial acquitted him of firearm use in connection with the charged homicides. He also contends the trial court erroneously refused to instruct on accessory after the fact (Pen. Code, § 32) as a lesser related offense. We conclude he is correct on both grounds, and reverse.

I

On March 28, 1979, two bodies were found in a vacant housing project in the Hunters Point district of San Francisco. Each victim had wounds from both a shotgun and a small caliber weapon. At the scene the police recovered a shotgun shell, two .25 caliber shell casings, and two shotgun power pistons.

The victims were identified as Phyllis Lamboy (aka Peanut) and Darryl Charles (aka D.C.); they lived together as husband and wife. The coroner testified that the arms of each victim bore fresh needle marks of approximately six hours or less in age, and toxicological studies on both victims revealed…