Ross

Defendant Jeffery Ray Ross and codefendant Lanny Atkins were charged by information with crimes of murder, robbery, burglary and arson; the murder count included a penalty enhancement allegation that it had been committed by means of torture with intent to kill. An arming clause as to defendant Ross was stricken and the cases were severed for trial. A jury returned a verdict of guilty as to all counts, fixing the degree at first degree on the three crimes first mentioned and finding the murder penalty enhancement allegation true. On appeal from the judgment, defendant claims a number of errors related to sufficiency of the evidence, instructions, use of the codefendant’s extrajudicial statements, prosecutorial misconduct, and penalty. Our review of those claims in light of the whole record requires reversal of the arson conviction and affirmance of the remainder of the judgment as modified.

Facts

The essential facts may be summarized as follows:

During the afternoon of February 1, 1977, the Berkeley Fire Department responded to a fire at the scene of the crime where they discovered the body of the 90-year-old victim, Remi L. Dufau, lying next to a smoldering bedroom…