Farley

I. Statement of the Case

Defendant Kelvin Farley appeals from a judgment entered after a jury found him guilty of first degree burglary and escape and also found true an allegation that he had suffered a prior serious felony conviction. On appeal he claims the court erred in giving an aiding and abetting instruction based on People v. Montoya (1994) 7 Cal.4th 1027 [ 31 Cal.Rptr.2d 128 , 874 P.2d 903 ]. He claims the court gave a partially erroneous flight instruction and also failed to limit its scope to the burglary charge. He claims the court erred in denying his request for complete transcripts of his first trial or, in the alternative, counsel was ineffective in failing to request complete transcripts. Finally, he claims he was entitled to more custody and good time/work time credit than the court allowed.

We reverse defendant’s conviction for burglary and remand the matter for further proceedings, including a redetermination of custody credit.

II. Facts

A. The Burglary

At noon on April 11, 1992, Barbara Somers and her family left their home in San Jose to go to a birthday party. When they left, the doors, windows, and side gate were closed and secure. Sometime…