Valencia

Defendant, together with Nick Velasquez, was charged with murder, in violation of section 187 of the Penal Code. A “special circumstance” was alleged against both defendants, to wit, a wilful, deliberate, premeditated murder personally committed in the course of a robbery. As against Velasquez, a second special circumstance was alleged, to wit, a prior murder. Firearm use was alleged against both defendants. After a jury trial, both defendants were found guilty of first degree (felony) murder and the special circumstance allegations were found true. The firearm allegation was found true as to Velasquez and untrue as to this defendant. Velasquez was sentenced to death; defendant was sentenced to life imprisonment without possibility of parole. Defendant has appealed; we affirm the conviction but modify the judgment.

As indicated above, this is a companion case to People v. Velasquez (1980) 26 Cal.3d 425 [ 162 Cal.Rptr. 306 , 606 P.2d 341 ], which case, because of the death penalty imposed, was appealed directly to the Supreme Court. We are asked to, and take, notice of the opinions filed in that case.

The People’s case was that the two defendants had held up a filling…

I concur in the judgment, which in effect reverses the finding of a special circumstance and the portion of the sentence which is based upon that finding. This concurrence is on the ground that the evidencé is insufficient to support the finding.

I deplore the majority opinion placing the decision upon a supposed defect in the language of the information, an omission which could not have been prejudicial in the context of this case. People v. Walker (1976) 18 Cal.3d 232 [ 133 Cal.Rptr. 520 , 555 P.2d 306 ], which the majority invoked sua sponte, has no relevance to what the court has decided here.

Respondent’s petition for a hearing by the Supreme Court was denied February 11, 1981.

Defendant, together with Nick Velasquez, was charged with murder, in violation of section 187 of the Penal Code. A "special circumstance" was alleged against both defendants, to wit, a wilful, deliberate, premeditated murder personally committed in the course of a robbery. As against Velasquez, a second special circumstance was alleged, to wit, a prior murder. Firearm use was alleged against both defendants. After a jury trial, both defendants were found guilty of first degree (felony) murder and the special circumstance allegations were found true. The firearm allegation was found true as to Velasquez and untrue as to this defendant. Velasquez was sentenced to death; defendant was sentenced to life imprisonment without possibility of parole. Defendant has appealed; we affirm the conviction but modify the judgment.

As indicated above, this is a companion case to People v. Velasquez (1980) 26 Cal.3d 425 [ 162 Cal. Rptr. 306 , 606 P.2d 341 ], which case, because of the death penalty imposed, was appealed directly to the Supreme Court. We are asked to, and take, notice of the opinions filed in that case.

The People's case was that the two defendants had held…