Rackley

I

Procedural Background

Appellant, Troy Paul Rackley, was charged in a single information with eight felony counts. The first three counts, pertaining to the murder of James Madden in Santa Clara on or about January 29, 1991, alleged as follows: count 1, murder with special circumstances (Pen. Code 1 , § 187); count 2, robbery of James Madden (§§ 211, 212.5, subd. (b)); and count 3, burglary of Lee Wards store (§§ 459, 460, subd. (b)). The remaining five counts, pertaining to two robberies and one burglary committed on January 24, 1991, in San Jose, alleged as follows: count 4, burglary of Sportsmen’s *1662 Supply (§§ 459, 460, subd. (b)); count 5, burglary of Quick Stop Market (§ 459, 460, subd. (b)); count 6, robbery of Ramsis Youssef at Quick Stop Market (§§ 211, 212.5, subd. (b)); count 7, burglary of Cavilan Bottle Shop (§§ 459, 460, subd. (b)); and count 8, robbery of Ben Graber at Cavilan Bottle Shop (§§ 211, 212.5, subd. (b)). As to counts 5 and 6, it was further alleged appellant personally used a deadly or dangerous weapon (§ 12022, subd. (b)).

On April 10, 1991, appellant pleaded guilty to counts 4, 6 and 8. He admitted the personal use enhancement as to…

I concur in the majority opinion with one exception. With respect to the issue presented in section V, I concur in the result only.

Respondent’s petition for review by the Supreme Court was denied July 13, 1995. George, J., was of the opinion that the petition should be granted.

[Opinion certified for partial publication. [*] ]

OPINION

WUNDERLICH, J. —

Appellant, Troy Paul Rackley, was charged in a single information with eight felony counts. The first three counts, pertaining to the murder of James Madden in Santa Clara on or about January 29, 1991, alleged as follows: count 1, murder with special circumstances (Pen. Code [1] , § 187); count 2, robbery of James Madden (§§ 211, 212.5, subd. (b)); and count 3, burglary of Lee Wards store (§§ 459, 460, subd. (b)). The remaining five counts, pertaining to two robberies and one burglary committed on January 24, 1991, in San Jose, alleged as follows: count 4, burglary of Sportsmen's Supply (§§ 459, 460, subd. (b)); count 5, burglary of Quick Stop Market (§ 459, 460, subd. (b)); count 6, robbery of Ramsis Youssef at Quick Stop Market (§§ 211, 212.5, subd. (b)); count 7, burglary of Gavilan Bottle Shop (§§ 459, 460, subd. (b)); and count 8, robbery of Ben Graber at Gavilan Bottle Shop (§§ 211, 212.5, subd. (b)). As to counts 5 and 6, it was further alleged appellant personally used a deadly or dangerous weapon (§ 12022, subd. (b)).

On April 10, 1991, appellant pleaded guilty to counts 4, 6 and 8. He admitted…