People v. Fuentes CA2/2

I. Facts

A. The underlying crime On the afternoon of December 1, 1980, defendant and an accomplice approached a Brinks guard as he left a department store carrying approximately $85,000 in a Brinks bag. Each defendant and his accomplice was armed with a gun. The Brinks guard was shot, and died from the resulting wounds. Later analysis determined that the gun left at the scene by the accomplice was never fired. However, ballistics tests indicated that the bullets found in the guard’s body had been fired from the gun found beside defendant at the time defendant was arrested. B. Conviction and appeal In 1981, a jury convicted defendant of first degree murder with a finding that the murder was committed while defendant was engaged in the commission of an attempted robbery (§§ 187, subd. (a), 189, 190.2, subd. (a)(17)(i)), attempted robbery (§§ 664, 211), and unlawful driving or taking a motor vehicle (Veh. Code, § 10851). It also found true the allegation that defendant personally used a firearm in the commission of the attempted robbery and the murder (§ 12022.5). (People v. Fuentes (1985) 40 Cal.3d 629, 633.) The jury fixed the penalty at death and the trial court…