Green

I fully concur in that portion of the majority opinion (part I) which upholds defendant’s conviction of first degree murder. I further concur in the majority’s extended discussion and determination (parts II B and C) that although defendant was properly convicted of robbery, the evidence was probably insufficient to demonstrate that the murder occurred during the commission of a robbery. Accordingly, there was no special circumstance *75 permitting the imposition of the death penalty (see former Pen. Code, § 190.2, subd. (c)(3)(i)) on that ground.

I respectfully dissent, however, from the entirety of that portion of the majority’s opinion (parts II D, E, and F) which reverses defendant’s conviction for kidnaping and which further vacates the jury’s finding of special circumstances based upon the commission of a murder during a kidnaping. In my view, the jury had before it overwhelming evidence establishing that the defendant killed his victim while he was kidnaping her. I am further convinced that even had the asserted instructional errors not occurred the jury undoubtedly would have returned a similar conviction of murder during a kidnaping.

Focusing entirely on some statements…

Defendant appeals from a judgment sentencing him to death on his conviction of murder in the first degree, robbery, and kidnaping. 1 In a proceeding consolidated herewith he also petitions for a writ of habeas corpus, alleging principally that he was denied effective assistance of counsel. We have concluded that the judgment must be affirmed as to the convictions of first degree murder and robbery, but reversed as to kidnaping; that the findings of “special circumstances” elevating the murder to a capital offense must be set aside; and hence that the judgment must also be reversed insofar as it relates to penalty.

Defendant was charged by information with murder in violation of section 187 (count I), robbery in violation of section 211 (count II), and kidnaping for the purpose of robbery in violation of section 209 (count III), all committed against his wife Karen Green on October 11, 1977. 2 Count I also charged two “special circumstances,” i.e., that the murder was willful, deliberate and premeditated and was personally committed by defendant (1) during the commission of a robbery in violation of section 211 (former § 190.2, subd. (c)(3)(i)) and (2) during the *12…