People v. Swaving CA4/3

FACTS

In 1987, a jury convicted Swaving of first degree murder with special circumstance findings he committed the murder during the commission of a burglary and a robbery and used a firearm. (People v. Swaving (June 30, 1989, G005901) [nonpub. opn.] (Swaving).) The jury also convicted him of two counts of attempted murder, second degree burglary, and robbery with firearm use. The trial court sentenced Swaving to a term of life without parole and concurrent sentences on the remaining counts.

2 As relevant here, the trial court instructed the jury as follows: “A special circumstance must be proved beyond a reasonable doubt. [¶] If you have a reasonable doubt as to whether a special circumstance is true, it is your duty to find that it is not true. [¶] If . . . Swaving, was an [aider and abettor] but not the actual killer, it must be proved beyond a reasonable doubt that he intended to aid in the killing of a human being before you are permitted to find the alleged special circumstance of that first degree murder to be true as to . . . Swaving.” We affirmed Swaving’s conviction. (Swaving, supra, G005901.) Admitting the issue was close, the majority found substantial evidence…