Kelley

Robert Kelley appeals his convictions of conspiracy to commit robbery (Pen. Code, §§ 182, subd. 1, 211) and murder (§ 187) and petitions for a writ of habeas corpus. He contends his convictions must be reversed for insufficiency of the evidence, instructional error, and his counsel’s incompetence. We find instructional error infects Kelley’s conviction for conspiracy to commit robbery and order that conviction reduced to conspiracy to commit theft. In all other respects, we affirm the judgment. We deny the petition for writ of habeas corpus.

Facts

In May 1986, Kelley and Proceso Serrato lived in an abandoned Pacific Bell building in the Pacific Beach area of San Diego. On May 30, 14-year-old Debra Wilson and 16-year-old Bruce Mullee, two transients living “on the streets” in Pacific Beach, stayed with Kelley and Serrato in the Pacific Bell building. Wilson and Mullee had known each other for two or three weeks and had known Kelley and Serrato for one or two weeks. Mullee went by the nickname “Little Stoner.” They knew Kelley as “BK” and Serrato as “Pro.” Kelley and Serrato, in particular Serrato, had talked about sailors having a lot of money. One of them had said “I’d…