Graham

The District Attorney of Los Angeles County filed an information against Wallace Graham, Ernest Shepard, and Judy Shepard, charging them with murder and robbery, both of the first degree. At the conclusion of a joint trial, the jury acquitted Judy Shepard but found defendants and appellants Graham and Ernest Shepard guilty of'murder in the first degree and robbery of the first degree. Following a separate trial on the penalty phase for the murder convictions, the same jury fixed Shepard’s penalty at death and Graham’s penalty at life. Shepard’s appeal before this court is automatic. (Pen. Code, §1239, subd. (b).) Graham filed a separate notice of appeal to the Court of Appeal, Second District; we transferred the cause to this court to be heard concurrently with Shepard’s appeal.

We shall point out why we have concluded, as to defendant Graham, that the judgment convicting him of first degree murder must be reversed because the trial court admitted certain prior, inconsistent, extrajudicial statements of a witness as substantive evidence of the truth of the matters asserted therein. (Evid. Code, § 1235.) In People v. Johnson (1968) 68 Cal.2d 646 [ 68 Cal.Rptr. 599 , 441 P.2d 111…

I dissent. I would affirm the judgments of the trial court in their entirety.