People v. Asbury

Opinion

KINGSLEY, Acting P. J.

The defendant appeals his conviction for first degree murder (Pen. Code, § 187) and robbery (Pen. Code, § 211). We reverse.

Facts

In an earlier proceeding, the defendant was convicted of the robbery and first degree murder of John Jackson. The evidence indicated that the defendant, having been thrown out of a bar, pulled the sleeping Jackson from a car and shattered his skull with several blows from a four by four.

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The defendant then pulled Jackson’s body some 30 feet, took his car keys and wallet, and started Jackson’s car. He managed to back the car up only a few feet, however, before it struck an upright pole.

The jury found the defendant guilty of first degree murder and robbery. The jury, however, rejected the special circumstances that the murder had occurred in the course of the robbery. (Pen. Code, § 190.2, subd. (a)(17).) It also concluded that although the defendant had used a deadly weapon during the murder (Pen. Code, § 12022, subd. (b)), he had not done so during the robbery nor had he inflicted great bodily injury during the robbery (Pen. Code, § 12022.7).

The defendant appealed this conviction. We reversed and remanded for retrial on the grounds that defendant’s long history of mental illness made it improper for the trial court to permit him to waive counsel and appear in propria persona.

The defendant was then retried and again convicted of first degree murder and robbery. This time, however, the case went to the jury on a felony

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murder theory. The court refused to instruct the jury on premeditated murder, sustaining the defense objection that there was an insufficient foundation for the instruction. In finding the defendant guilty of first degree murder, therefore, the jury necessarily adopted the felony-murder theory and determined that the murder had occurred during the course of the robbery— a finding in apparent conflict with the verdict in the earlier proceeding rejecting the robbery special circumstance allegation and the allegations of deadly weapon use and infliction of great bodily injury during the robbery.