People v. Gary CA2/2

FACTS AND PROCEDURAL BACKGROUND

I. Facts2

A. The underlying crimes On a Tuesday morning in June 1989, defendant and Richard Henry Ponton (Ponton) robbed an Arco gas station in Redondo Beach, California. The station manager was shot four to six times, and died from his wounds. Defendant and Ponton made away with $2,500. B. Prosecution, conviction and appeal The People charged defendant and Ponton with (1) the murder of the station manager (§ 187), and (2) second degree robbery (§ 211). As to the murder, the People alleged the special circumstance that defendant and Ponton “were engaged in the commission of the crime of robbery” (§ 190.2, subd. (a)(17)). As to both crimes, the People further alleged that defendant “personally used a firearm” (former § 12022.5) and that “a principal was armed” during those crimes (§ 12022, subd. (a)). The personal use of a firearm enhancement was not alleged as to Ponton.

All further statutory references are to the Penal Code unless otherwise indicated.

We draw these facts from our prior, unpublished appellate opinion affirming defendant’s convictions. (People v. Gary (Mar. 26, 1993, B055726).) The matter proceeded to a joint…