People v. Garcia CA3

BACKGROUND

During trial, witnesses testified to seeing four men get out of a car and walk towards an apartment, hearing a gunshot, and then seeing the men run back to the car and leave. Two accomplices testified defendant was the “group’s ringleader” and that the group went to the apartment to rob the occupant, Donald Kirby. Defendant struggled with Kirby after he opened the door and the gun fired, striking Kirby in the head, killing him. (People v. Garcia (Mar. 27, 2018, C077082) [nonpub. opn.] (Garcia).)2 On February 24, 2014, the jury found defendant guilty of first degree murder and attempted second degree robbery, and found true the special circumstance defendant was engaged in the attempted commission of robbery during the murder. The jury instructions for the special circumstance finding, under CALCRIM No. 730, required the jury to find defendant committed robbery and that he “did an act that caused the death of another person.” If the jury found defendant “guilty of first degree murder but was not the actual killer,” the jury could still find the special circumstance true, under CALCRIM No. 703, if they also found defendant was a major participant in the crime and “[w]hen…