Kelly

This case has been remanded to us by the California Supreme Court for reconsideration in light of Carlos v. Superior Court (1983) 35 Cal.3d 131 [ 197 Cal.Rptr. 79 , 672 P.2d 862 ], and People v. Garcia (1984) 36 Cal.3d 539 [ 205 Cal.Rptr. 265 , 684 P.2d 826 ],

By information appellant Kelly was charged with the murder of Peter Kleeman in violation of section 187 of the Penal Code. It was further alleged that the murder was committed while appellant was engaged in or was an accomplice in the commission or attempted commission of robbery, in violation of Penal Code section 211, within the meaning of Penal Code section 190.2, subdivision (a)(17)(i). A jury found appellant guilty of murder in the first degree and found true the special circumstance allegation. Since the prosecutor had elected not to seek the death penalty, appellant was committed to state prison for life without possibility of parole. (Pen. Code, § 190.2.)

*621 On the night of March 9, 1979, appellant and two other men beat and robbed the victim in a parking lot. The victim was beaten and kicked in the head, became unconscious, and died thereafter of his head injuries.

It is clear from the record that the…