Tapia

Statement of the Case

Following jury trial, appellant Robert Alan Tapia was convicted of first degree murder. (Pen. Code, § 187, subd. (a).) 1 The jury found true the special circumstance allegations that he committed the murder during the commission of a robbery and during the commission of a burglary and that he personally used a dangerous and deadly weapon. (§§211, 190.2, subd. (a)(17), 12022, subd. (b).) The jury also found appellant guilty of robbery, and found true the special allegation that he personally used a dangerous and deadly weapon in the commission of this crime, as well as convicting him of two counts of assault with force likely to cause great bodily injury, arson, and of the unlawful driving or taking of a vehicle. (§§ 211, 12022, subd. (b), 245, subd. (a)(1), 451, subd. (b); Veh. Code, § 10851, subd. (a).) The jury fixed the penalty for the murder (count 1) at life imprisonment without possibility of parole.

Appellant was sentenced to life imprisonment without the possibility of parole on the murder to run consecutive to the determinate terms imposed on the remaining counts. On the remaining counts, appellant was sentenced to the additional terms of…

I respectfully dissent. While I concur in the majority’s determination the trial court applied the wrong legal standard in ruling on appellant’s Wheeler motions, I am compelled to dissent from its holding this error mandates reversal. As I shall explain, this precise error was induced by defense counsel’s affirmative conduct. Hence, it was invited and is not cognizable on appeal.

As quoted in detail in part l.a. of the majority opinion, prior to the trial court’s final rulings on defense counsel’s second Wheeler motion and impaneling of the jury, the court made the following request: “I would like the standard, the legal standard which I’m to apply in order to re-evaluate this after I’ve read the Wheeler case but to make sure that I’m applying the right standard. So I’d like that just before—or after we break.” Defense counsel replied, “I’ll supply that to you.” The court acknowledged this offer, “All right. Thank you.” After the lunch break, the trial court asked counsel whether it had used the right standard. The prosecutor stated he “believed” the court had; defense counsel did not reply to the question and changed the subject to another topic. There is no indication in the…

Following jury trial, appellant Robert Alan Tapia was convicted of first degree murder. (Pen. Code, § 187, subd. (a).) [1] The jury found true the special circumstance allegations that he committed the murder during the commission of a robbery and during the commission of a burglary and that he personally used a dangerous and deadly weapon. (§§ 211, 190.2, subd. (a)(17), 12022, subd. (b).) The jury also found appellant guilty of robbery, and found true the special allegation that he personally used a dangerous and deadly weapon in the commission of this crime, as well as convicting him of two counts of assault with force likely to cause great bodily injury, arson, and of the unlawful driving or taking of a vehicle. (§§ 211, 12022, subd. (b), 245, subd. (a)(1), 451, subd. (b); Veh. Code, § 10851, subd. (a).) The jury fixed the penalty for the murder (count 1) at life imprisonment without possibility of parole.

Appellant was sentenced to life imprisonment without the possibility of parole on the murder to run consecutive to the determinate terms imposed on the remaining counts. On the remaining counts, appellant was sentenced to the additional terms of…