Opinion
BLEASE, J. Defendant Kenneth Roy was convicted of the first degree murder of Archie Mannix (Pen. Code, § 187;1 count II) and his robbery (§211; count IV) after a jury trial and was found to have possessed but not to have used a knife during these offenses (§ 12022, subd. (b); counts II and IV). He was also convicted of the second degree murder of James Clark (§ 187; count I) and of personally using a knife during that killing (§ 12022, subd. (b)), but was acquitted of his robbery (§211; count III). The Mannix murder formed the basis of two special circumstance findings, (1) that it was committed during the commission of a robbery (§ 190.2, subd. (a)(17)(i); count II) and (2) that it was one of two offenses of murder in the first or second degree (§ 190.2, subd. (a)(3); count II).2 Penalties were imposed of life imprisonment without possibility of parole for the murder-robbery of Mannix (count II), 15 years to life for the murder of Clark (count I), plus a one-year enhancement for use of a weapon (count I), and five years for the Mannix robbery (count IV). Defendant appeals contending the court made instructional errors.
We shall strike the special circumstance findings and vacate the sentence predicated upon them. In all other respects we shall affirm the judgment. In the published portion of this opinion3 we find the special [645]circumstance findings infirm for the reason that the jury reasonably could have read the instructions, as given, argued and applied to the evidence, to authorize the aggravated punishment for defendant on the ground he aided and abetted the robbery of Mannix, the natural and probable consequence of which was his killing by another (McHargue). That reading violates section 190.2, subdivision (b), which precludes imposition of the special circumstance for aiders and abettors of a felony murder who intend the commission of the felony but not the killing. (See People v. Anderson (1987) 43 Cal.3d 1104 [240 Cal.Rptr. 585, 742 P.2d 1306].) In the unpublished portion of the opinion we hold (a) it was harmless error to give CALJIC No. 3.01 (1980) as it preceded People v. Beeman (1984) 35 Cal.3d 547 [199 Cal.Rptr. 60, 674 P.2d 1318] and (b) it was harmless error to fail to give CALJIC No. 5.17 sua sponte relating to an honest but unreasonable belief in the necessity of self defense.4
Factual and Procedural Background
On September 13, 1981, defendant and a friend, Jesse McHargue, were hitchhiking near Gridley. In Gridley, they went to a liquor store where they met the victims, Clark and Mannix. The men struck up a conversation and drank beer together near Mannix’s truck.
At approximately 9 p.m. that evening, Gridley Police Officer Stan Massey saw Mannix’s truck backing up near the liquor store, almost hitting a utility pole and some signs. He stopped the truck to talk to the driver, McHargue. The four men were occupants. Defendant and McHargue appeared to be sober, but neither had a driver’s license. Because Mannix and Clark were visibly intoxicated, Officer Massey advised all four men not to drive. Massey noticed two backpacks in the bed of the truck.
At approximately 11:15 p.m. that same night, as Marie Koehler Smart drove through the intersection of Block Road and Evans-Reimer Road near Gridley, she noticed two silhouettes and also saw a truck in the ditch. Smart turned her car around so it was heading south on Block Road and then stopped with her high beams illuminating the area where the truck was resting. She saw two men standing on the ditch bank to the left side of the truck. When she asked if they needed help, the two men approached the car. One of the men, later identified as McHargue, went up to the car window and told Smart they had already summoned help. As Smart made a U-turn to leave, she noticed a man lying on the ground to the left side of the truck at the location she had first observed McHargue and his companion. [646]The man was shirtless and appeared to be hurt; he moved his hands “up towards his stomach, then back down.” Smart saw McHargue and the other man walk back over to where the man was lying and stand over him.
Early the next morning, officers found Mannix’s truck “nosed” into a six-foot-deep ditch. Although there were 12 inches of water in the ditch, no part of the truck was submerged because both ends rested on the opposite walls of the steeply sloped ditch. The front end rested against the south bank. Fifty-feet-long skid marks were found on “Block Road south.” Clark’s body was found in an empty field on the south side of the ditch in front of the pickup. His clothing was wet and muddy. One of his pants pockets was turned inside out and his shirt was open. A dime was found about four feet from his foot. Mannix’s body was found in the ditch partially under the truck. His body was partly submerged in the water. The only clothing remaining on his body was a pair of pants pulled down to his thighs. Both men had stab wounds.
Blood was found on the blackberry bushes on the embankment directly behind the truck above the spot where Mannix’s body was discovered. A wallet and some papers were found scattered 10 to 15 feet down the road, east of the truck. The wallet and papers were dry. Mannix’s shirt was later found in the ditch.
After the bodies were discovered, Officers Massey and Dustin commenced a search for defendant and McHargue and found them in a restaurant. Both men were carrying buck knives. McHargue’s pants were completely wet, either from the thighs or the waist down. Defendant’s pantlegs were wet to the calf. After they had been informed of their Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]), defendant and McHargue authorized a search of their backpacks. In McHargue’s backpack, Mannix’s water-soaked moccasins and vest were found. Defendant’s backpack and its contents were also wet.
Defendant at first denied being in the truck with Mannix and Clark, claiming he and McHargue left the two men at the liquor store. During questioning, he admitted being in the truck when McHargue lost control while making a turn. Defendant said that after he and Clark left the truck, Clark began hitting him; defendant then stabbed Clark once in the chest. Defendant said he then told Clark he “was sorry he had to do that.” He retrieved his backpack and crossed the ditch to the place where McHargue was standing. At that point, he said, Mannix was already in the ditch.
After defendant’s arrest, Mannix’s watch was found among defendant’s personal belongings. Defendant also had $170 in his wallet.
[647]The medical examiner testified that Clark died from a single stab wound to the chest and that Mannix had multiple stab wounds and scratches on his body and had drowned. Mannix was stabbed in the left chest, in the upper left portion of his abdomen, and five times on his lower left flank. The cause of death was either the stab wound to the chest or the drowning. The examiner also testified that five wounds to the lower flank were inflicted after death.
Sidney Hall, a county jail inmate with defendant, testified that defendant told him Clark and Mannix “got mad” after McHargue wrecked the truck when he took a turn too quickly and ended up in the ditch. He admitted stabbing Clark after Clark hit him in the head with a stick. Defendant said that Mannix and McHargue were also fighting and, seeing that McHargue “was getting the worst of it,” defendant went over to help him. Defendant did not say in what manner.5
Another jail inmate, William Hudspeth, testified that defendant admitted to him that he and McHargue planned to rob and kill both Clark and Mannix, that they “went on with their plans” and killed Clark first because he was the “easy one.” Defendant then assisted McHargue who was having a “hard time” with Mannix. Hudspeth testified that defendant admitted coming up from behind, stabbing Mannix in the lower part of the body, pulling him off McHargue, stabbing him again in the abdomen, and then shoving his head in the water to make certain he was dead. Defendant said that they took between $150 and $160 from the two men; as well as Man-nix’s vest. After the incident, they got in the pickup and left.
Evidence was presented by the prosecution that a small stain of dried blood found on the base of the blade of defendant’s knife was ABO type A blood, matching that of Mannix’s blood type. Clark’s blood type is ABO type O.
The defense introduced evidence that defendant’s blood type is also ABO type A. Defendant’s witness, a forensic serologist, testified that if the antigens from the saliva or perspiration of an individual with one blood type are mixed with the blood of another, an incorrect reading of the blood type may result.
The jury returned verdicts as previously set forth.
[648]Discussion
I
The prosecution tendered alternative theories of criminal responsibility; that defendant was guilty of the first degree murders of both Mannix and Clark either because (a) the killings were premeditated or (b) they occurred during the commission of a robbery.
As to the first theory, the People argued that defendant and McHargue had a plan to take the two victims “out in the boonies, and to kill them, to rob them, take their pickup and proceed north.” Consistent with this plan, defendant pounded Clark to the ground, took money out of his pocket, and then thrust the knife in his chest. The district attorney theorized that, because McHargue was having difficulty with Mannix, defendant came to his assistance and inflicted the fatal thrust to Mannix’s chest. According to the prosecutor, the evidence established that, based on the similarity between the fatal wounds to both victims, they were inflicted by the same person, i.e., defendant.
The prosecutor argued alternatively that the facts supported a finding of first degree murder under a felony murder theory. According to him, defendant and McHargue took Mannix and Clark out in the isolated area in order to rob them, as supported by the fact that defendant was found with $170 and Mannix’s watch and McHargue with Mannix’s vest and moccasins. He argued: “[I]f you find this . . . killing took place while the perpetrator, the defendant . . . was committing a robbery, and intended to rob these people, that is to take their property, and permanently depreive [sic] the people of their property from their immediate possession by force or fear, and a killing resulted, that’s also murder in the first degree.”
It can be inferred that the jury found that defendant did not plan the murder or the robbery of either Clark or Mannix, since it returned a second degree murder verdict in the Clark killing and found defendant not guilty of the robbery charge with respect to Clark. It also can be inferred that the jury concluded that defendant did not kill Mannix by stabbing, since it found that defendant did not use a knife in connection with his murder. Accordingly, it can be inferred that the jury rejected the prosecutor’s argument that defendant planned the robberies or killings. That left the felony murder argument as a likely candidate for the finding of culpability. On this point the jury was instructed that defendant was responsible for the first degree felony murder of Mannix if he aided and abetted his robbery and was liable for the special circumstance if the murder occurred during the commission of the robbery.
[649]The Mannix murder also formed the basis of two special circumstances findings; that it was committed during the commission of a robbery (§ 190.2, subd. (a)(17)(i)) and that it was one of two murders in the first or second degree (§ 190.2, subd. (a)(3)). The jury was not given instructions which distinguished between the scienter required for findings of felony murder and special circumstance. If the jury found, pursuant to the instructions, that defendant was guilty of the felony murder of Mannix on the theory he aided and abetted the robbery of which the Mannix killing was an unintentional but natural and reasonable or probable consequence, it is inconceivable that it separately found that defendant intended that Mc-Hargue kill Mannix, a finding necessary, as we shall show, to the valid imposition of a special circumstance penalty.
For reasons which we next detail, we will conclude that the jury reasonably could have been led by instructional error to fuse the standards of criminal responsibility and liability for the special circumstance resulting in improper special circumstance findings.
A.
People v. Anderson, supra, 43 Cal.3d at pages 1138-1148, upholding Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862] on this point,6 holds that “[t]he court must instruct on intent to kill as an element of the felony-murder special circumstance when there is evidence from which the jury could find (see People v. Flannel (1985) 25 Cal.3d 668, 684-685 [160 Cal.Rptr. 84, 603 P.2d 1]) that the defendant was an aider and abetter rather than the actual killer.” (Anderson, supra, 43 Cal.3d at p. 1147.)
The jury was not so instructed. The special circumstance instruction given here, CALJIC No. 8.80 (1981), preceded the 1984 revision (CALJIC No. 8.80), which, following Carlos, supra, explicitly now provides that the accomplice must have “intended to aid in the killing of a human being . . . .” (Italics added.) Rather, the jury was instructed in terms which invited the fusion of the distinct standards of guilt and special circumstance. [650]That could occur because the guilt and special circumstance issues are tried simultaneously (§ 190.1, subd. (a)) on the same evidence (§ 190.4, subd. (a)).
The jury was given an original and amended version of the instruction on the standards to be applied in determining defendant’s liability for the special circumstance arising from the Mannix murder. The jury was told in the instruction read to it that “[i]f you find the defendant in this case guilty of a willful, deliberate, premeditated murder of the first degree, you must then determine if murder was committed” [inter alia] [i]n the commission of a robbery.” (Italics added.) If that restriction had been allowed to remain, the issue here considered would have been foreclosed. However, the jury instruction was amended after the reading.
In the instructions sent to the jury room, the premeditation restriction was deleted and the jury was told that: “If you find the defendant . . . guilty of murder of the first degree, you must then determine if murder was committed ... in the commission of a robbery and/or [he] was convicted . . . of more than one offense of murder in the first or second degree.
“If . . . Roy, was not the actual killer, it must be proved beyond a reasonable doubt that he intentionally aided, abetted . . . the actual killer in the commission of the murder in the first degree before you are permitted to find the alleged special circumstance of that first degree murder to be true . . . .” (CALJIC No. 8.80 (1981), italics added.) “[T]he murder in the first degree” refers to the Mannix murder and, in the circumstances of this case, necessarily encompasses the felony murder theory of culpability.
The reason for the modification is that the district attorney, Mr. Mattly, wished the instruction to be amended to include the felony murder theory of culpability. This is revealed in the colloquy which followed the reading of the instruction to the jury in the unamended form. “The Court: This was their [the defendant’s] instruction? [fl] Mr. Mattly: Yes. So all you need to do is you can give this [amended] one, send it in [to the jury in printed form] but all you need to do is this: ‘If you find the defendant in this case guilty’ what you would do is you would strike, I think, ‘of a willful, deliberate, premeditated murder.’ ” The court then said: “That is to be included as it is now modified by you gentlemen in the instructions to be delivered to the jury? [fl] Mr. Kenkel: Yes. [j]] Mr. Mattly: Yes.” That was done. The modified form, showing the striking of the “willful” language appears in the record. From these events it is clear that the prosecution was pursuing a felony murder theory and the jury was unmistakably informed by the [651]change in instructions that premeditation was not required for the imposition of the special circumstance.
That was emphasized by a second (unamended) instruction which provided: “To find that the special circumstance, referred to in these instructions as murder in the commission of robbery, is true, it must be proved: [1.] That the murder was committed while the defendant was engaged in or was an accomplice in the commission of a robbery. fl[] 2. That the murder was committed in order to carry out or advance the commission of the crime of robbery .... In other words, the special circumstance referred to . . .is not established if the . . . robbery was merely incidental to the commission of the murder.” (CALJIC No. 8.81.17 (1980).) The fusion of guilt and penalty theories was further emphasized by two other instructions which told the jury, in identical words with respect to guilt and penalty instructions, first, that “first degree felony murder based on robbery ... is not established if the robbery was merely incidental to the commission of any homicide” and, second, that “the special circumstance ... is not established if the . . . robbery was merely incidental to the commission of the murder.” These instructions place the relationship of the robbery to the killing in the identical posture for purposes of culpability, under a felony murder theory, and penalty.
To expand on this point, the first instruction (as amended) refers to “the murder of the first degree,” i.e., the Mannix murder, and informs the jury that if it finds defendant guilty of that murder it must determine whether it “was committed ... in the commission of a robbery and [that] . . .
“[i]f defendant. . . was not the actual killer, it must be proved . . . that he intentionally aided, abetted . . . the actual killer in the commission of [that] murder . . . .” The second instruction tells the jury that if the murder was “in the commission of robbery” “it must be proved [inter alia] the defendant. . . was an accomplice in the commission of a robbery.” (Italics added.) The words “aided, abetted” and “accomplice” are not defined in the special circumstance instructions. The definitions of these terms are to be found only in the instructions on the issue of guilt.
There, the jury was instructed that “[i]f a human being is killed by any one of several persons engaged in the perpetration of, or attempt to perpetrate, the crime of robbery, all persons who . . . with knowledge of the unlawful purpose of the perpetrator of the crime aid ... its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.” (CALJIC No. 8.27 (1979), italics added.) It [652]was also instructed that the “unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a result of the commission of or attempt to commit the crime of robbery, and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the first degree.” (CALJIC No. 8.21.) The jury was further instructed that “[o]ne who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.” (CALJIC No. 3.00 (amended by CALJIC No. 4.25.) These instructions made clear that the aider and abettor of a felony murder need not intend the killing.
It bears repetition that the jury was instructed on the relationship of the Mannix murder to the Mannix robbery in identical terms in both the guilt and penalty instructions, that “first degree felony murder based on robbery ... is not established if the robbery was merely incidental to the commission of any homicide” and that “the special circumstance ... is not established if the . . . robbery was merely incidental to the commission of the murder.”
In sum, the jury was told that it could find defendant guilty of the first degree felony murder of Mannix if he intended his act of assistance to aid the robbery and the killing was the natural and probable product of the robbery, whether he intended that result or not. It was also told that if that murder were committed in the commission of a robbery a special circumstance finding is warranted. By any account of the instructions, a concrete link was forged between the guilt and special circumstance instructions. Indeed it is inconceivable that the jury, having found defendant guilty of the first degree murder of Mannix on the theory that it unintentionally resulted from an intended robbery, would not have concluded that the murder occurred during the commission of a robbery, justifying the imposition of the special circumstance.
The explicit fusion of guilt and penalty instructions permits, indeed invites, the violation of the standard set down in People v. Anderson, supra.
B.
A contrary conclusion is suggested by the recent case of People v. Warren (1988) 45 Cal.3d 471 [247 Cal.Rptr. 172, 754 P.2d 218]. It held that the trial court did not have to instruct the jury that the accomplice must intend the killing because “all the evidence shows that the defendant either actually killed the victim or was not involved in the crime at all . . . .” (Id., at p. 487.)
[653]Notwithstanding this dispositive holding, the court in dictum went on to say that the instruction on special circumstances correctly stated the law and would not have misled a reasonable jury into believing that an intent to rob sufficed for the special circumstance. That instruction provided that the jury could impose the special circumstance if “ ‘the defendant was ... a person who intentionally aided, abetted . . . the actual killer in the commission of murder in the first degree.’” (Warren, 45 Cal.3d at p.487.) The court observed that “in the context of this case the challenged instructions might conceivably be construed in a different manner. In delivering its charge the court defined first degree felony murder: ‘The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a result of the commission of. . . the crime of robbery, and where there was in the mind of the perpetrator the specific intent to commit the crime of robbery, is murder of the first degree.’ ” (Ibid.) The court concluded, however, that “the instructions . . . would not be so construed by a reasonable juror [for] one could understand the charge as requiring an intent to rob and nothing more only if [a jury] parsed it in a hypertechnical manner.” (Id., at p. 488.) We are not told in what manner the jury would correctly “parse” the instruction. We are told that the court was convinced that the jury would not have linked the standards for guilt and special circumstance.
However, that was said in the context of a case in which “all the evidence shows that the defendant either actually killed the victim or was not involved in the crime at all . . . .” (45 Cal.3d at p. 487.) Accordingly, there was no factual predicate by which to reach the issue of reasonableness nor to determine whether the jury could have made the linkage on the facts of the case. That circumstance led three concurring justices to remark that the observation by the majority opinion is dictum. (Id., at p. 490.) Dictum is not binding as a holding. (See, e.g., People v. Milner (1988) 45 Cal.3d 227, 237 [246 Cal.Rptr. 713, 753 P.2d 669].)
In any event, Warren is distinguishable on its facts and instructions. The sole, generalized instruction on the standards for the special circumstance finding considered in Warren did not explicitly link the criteria for that determination to the standards for the felony murder. In this case, the linkage is explicitly made in the instructions. That linkage is supported by the evidence adduced and the manner in which the case was argued and presented to the jury.
C.
Based on the evidence presented to it, the jury could reasonably have inferred that two simultaneous fights ensued following the wreck of [654]Mannix’s truck by McHargue; defendant fought Clark while McHargue fought Mannix. The jury could have found that the lower part of defendant’s pants became wet when he got out of the truck, when he fought with Clark, and/or when he crossed back across the ditch after killing Clark. The jury could have inferred that Mannix was injured, possibly fatally, but still alive when defendant came over to the location of the Man-nix/McHargue altercation. The jury may have believed that at that point defendant either personally robbed Mannix of some of his personal possessions or assisted McHargue in his taking of Mannix’s property. It is a further permissible inference from the evidence that McHargue then either dragged Mannix to the ditch and drowned him or that Mannix was able to muster up his last bit of strength and continued to fight McHargue in the ditch. The fact that McHargue’s pants were wet up to his thighs or waist would support a conclusion that McHargue personally drowned Mannix. The finding by the jury that defendant did not use a knife during the commission of the offense against Mannix reveals that the jury rejected the theory that defendant inflicted the fatal stab wounds on Mannix. Thus, it is reasonable to conclude that the jury inferred that defendant’s only participation in the offenses relating to Mannix was his taking of Mannix’s personal property while he was still alive or his assistance in McHargue’s taking of the property.
D.
That leads us to consider whether the instructional error was harmless.
As we have observed, Anderson holds that “[t]he court must instruct on intent to kill as an element of the felony-murder special circumstance when there is evidence from which the jury could find (see People v. Flannel (1985) 25 Cal.3d 668, 684-685 [160 Cal.Rptr. 84, 603 P.2d 1]) that the defendant was an aider and abettor rather than the actual killer.” (Anderson, supra, 43 Cal.3d at p. 1147.) This applies to both felony murder and multiple murder grounds of special circumstance. (See Anderson, supra, at pp. 1147 and 1149-1150.)
Until recently the California Supreme Court has had no occasion to discuss the standard for harmless error applicable to a failure to give the intent instruction required by Anderson. That is so because in each case in which the issue was tendered the court determined that the instruction was not required because the issue of aiding and abetting was not before the jury. This determination was variously founded (a), as in People v. Anderson, supra, on the ground there was no evidence warranting a finding that the defendant was an aider and abettor of a felony murder (See People v. [655]Hamilton (1988) 45 Cal.3d 351, 363-364 [247 Cal.Rptr. 31, 753 P.2d 1109]; and People v. Warren, supra, 45 Cal.3d at p. 487; People v. Coleman (1988) 46 Cal.3d 749, 779 [251 Cal.Rptr. 83, 759 P.2d 1260]); (b) it was undisputed or conceded or uncontradicted that the defendant was the actual killer (See People v. Babbitt (1988) 45 Cal.3d 660, 708 [248 Cal.Rptr. 69, 755 P.2d 253]; People v. Keenan (1988) 46 Cal.3d 478, 503 [250 Cal.Rptr. 550, 758 P.2d 1081]; People v. McDowell (1988) 46 Cal.3d 551, 566 [250 Cal.Rptr. 530, 758 P.2d 1060]); (c) the issue did not arise because the jury was not instructed on an aider and abettor theory (People v. Melton (1988) 44 Cal.3d 713, 747, fn. 12 [244 Cal.Rptr. 867, 750 P.2d 741]; see also People v. Bunyard (1988) 45 Cal.3d 1189, 1241 [249 Cal.Rptr. 71, 756 P.2d 795]); and (d) the jury returned a special verdict that the killing was premeditated. (See People v. Miranda (1987) 44 Cal.3d 57, 89 [241 Cal.Rptr. 594, 744 P.2d 1127]; People v. Boyde (1988) 46 Cal.3d 212, 243 [250 Cal.Rptr. 83, 758 P.2d 25].)
However, these cases do imply that if there is evidence from which the jury could permissibly have inferred that the defendant was an aider and abettor of the felony murder th& Anderson instruction is mandatory. That is the apparent holding of People v. Garrison (1989) 47 Cal.3d 746 [254 Cal.Rptr. 257, 765 P.2d 419]. It held that because “there was evidence from which a jury could have based its verdict on an accomplice theory, the court erred in failing to instruct that the jury must find that defendant intended to aid another in the killing of a human being.” {Id., at p. 789, fn. omitted.)
Garrison held that such an error is subject to the Chapman standard of harmless error, relying upon People v. Odie (1988) 45 Cal.3d 386, 410-415 [247 Cal.Rptr. 137, 754 P.2d 184]. Under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065], “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” That standard cannot be satisfied, i.e., such a belief cannot be declared, where, as in this case, an inference can be drawn from the record that the jury found that the defendant was liable for the special circumstance on the ground that he intentionally aided a robbery but did not intend the killing that occurred during its commission. If the jury could have made such a finding it (obviously) cannot be said that the error (the failure to preclude such a possibility by a correct instruction) was harmless beyond a reasonable doubt.
In Garrison the court concluded that the error was harmless on the theory that “the failure to instruct on intent was necessarily resolved adversely to defendant under other, properly given instructions. (See People v. [656]Sedeno [1974] 10 Cal.3d 703 [112 Cal.Rptr. 1, 518 P.2d 913].)” (47 Cal.3d at pp. 789-790.) “In such cases the issue should not be deemed to have been removed from the jury’s consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only [in this case] the lesser offense was committed has been rejected by the jury.” (People v. Sedeno (1974) 10 Cal.3d 703, 721 [112 Cal.Rptr. 1, 518 P.2d 913].) In other words, the error is harmless if it cannot be said, viewed from the vantage point of all of the instructions given and the evidence adduced, that the jury could have drawn an adverse inference from the erroneous instruction.
As we have shown in great detail, that is not the case here. Considering all of the instructions the jury could have drawn the conclusion that defendant was liable for the special circumstance on the theory he aided and abetted the Mannix robbery without intending that Mannix be killed.
Accordingly, the special circumstance findings must be reversed.
II, III*
Disposition
The judgment of sentence predicated upon the special circumstance findings is reversed. The judgment is affirmed in all other respects. The case is remanded for resentencing or retrial on the issue of special circumstances at the option of the prosecuting attorney.
Sims, J., concurred.
Unless otherwise noted, all further references will be to the Penal Code.
Defendant was also charged with kidnapping Clark and Mannix for purposes of robbery (counts I and VI, § 209, subd. (b)) and robbing Clark (count III, § 211). Defendant’s motion to strike the two kidnapping charges was granted October 26, 1983, and the jury found him not guilty of the robbery charge.
The Reporter of Decisions is directed to publish the opinion except for parts II and III of the Discussion.
Our dissenting colleague does not disagree with these holdings, although he feels it necessary to discuss them anyway, from his own vantage point, as part of “a homogenized discussion” of the issues tendered in the published portion of this opinion.
Hall said that although defendant at one point told him Mannix had to die because he was a witness and that he was stabbed and drowned, defendant later retracted the statement.
The same standard applies where the special circumstance is predicated upon dual murders. The Penal Code provides that a special circumstance may be found where defendant “has in this proceeding been convicted of more than one offense of murder in the first or second degree.” (§ 190.2, subd. (a)(3).) At least one of the offenses must be murder in the first degree. Anderson holds that in such a case the aider and abettor must intend the killing of the victim in (at least) one of the multiple murders and that must be a first degree murder, as specified in section 190.2, subdivision (b) (and the special circumstance instruction given here). (43 Cal.3d at pp. 1149-1150.) Here, there is only one first degree murder. Accordingly, the instructional defect which attends that finding must also infect the multiple-murder special circumstance finding.
See footnote, ante, page 642.