People v. Miller

A jury convicted appellant of first degree murder (Pen. Code, 1 § 187) and found true a robbery special circumstance (§ 190.2, subd. (a)(17)) and a firearm allegation. (§ 12022, subd. (a)(1).) Financial gain (§ 190.2, subd. (a)(1)) and lying-in-wait (§ 190.2, subd. (a)(15)) special circumstances were found not true. Appellant was sentenced to state prison for life without the possibility of parole.

Appellant contends the trial court erred in refusing to give a grand theft person instruction and in giving the standard reasonable doubt instruction. (CALJIC No. 2.90.) We find no error and affirm the judgment.

Factual Background

Appellant’s claimed errors (an instruction given and an instruction refused) do not require a minute detailing of the evidence. We summarize the evidence with a perspective favoring the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304 [ 228 Cal.Rptr. 228 , 721 P.2d 110 ].)

Appellant and David Wayne Smith 2 (Smith) had worked together in Seattle and were friends. At Smith’s invitation appellant left Seattle in July 1992, came to Southern California, stayed at Smith’s residence, and did work for Smith.

Smith had a business with Stefan…

I respectfully dissent.

The majority takes the position a trial court need not instruct as to the lesser of “grand theft person” in a robbery-murder and robbery special-circumstance case unless the prosecution includes a separately pleaded robbery charge. I have a problem with this analysis. It does not seem to me the courts can allow the prosecution through artful pleading to deny a defendant a lesser instruction as to the predicate felony in a first degree felony-murder prosecution merely by omitting a separate count on that felony from its information. Even more clearly, the prosecution cannot deny a defendant a lesser instruction as to the felony on which the prosecution bases its special circumstance allegation.

The majority concedes, as it must, that the defendant would have been entitled to a lesser instruction on robbery had it been pled as a separate count. Moreover, my colleagues concede that if the trial court had failed to so instruct both the first degree murder and robbery special-circumstance convictions would have had to be reversed under recent California Supreme Court decisions the majority itself cites. (People v. Kelly (1992) 1 Cal.4th 495 [ 3 Cal.Rptr.2d 677…

WOODS (Fred), J.

A jury convicted appellant of first degree murder (Pen. Code, [1] § 187) and found true a robbery special circumstance (§ 190.2, subd. (a)(17)) and a firearm allegation. (§ 12022, subd. (a)(1).) Financial gain (§ 190.2, subd. (a)(1)) and lying-in-wait (§ 190.2, subd. (a)(15)) special circumstances were found not true. Appellant was sentenced to state prison for life without the possibility of parole.

Appellant contends the trial court erred in refusing to give a grand theft person instruction and in giving the standard reasonable doubt instruction. (CALJIC No. 2.90.) We find no error and affirm the judgment.

Appellant's claimed errors (an instruction given and an instruction refused) do not require a minute detailing of the evidence. We summarize the evidence with a perspective favoring the judgment. ( People v. Barnes (1986) 42 Cal.3d 284, 303-304 [ 228 Cal. Rptr. 228 , 721 P.2d 110 ].)

Appellant and David Wayne Smith [2] (Smith) had worked together in Seattle and were friends. At Smith's invitation appellant left Seattle in July 1992, came to Southern California, stayed at Smith's residence, and did work for Smith.

Smith had a business with Stefan…