People v. Kelly

Opinion

ASHBY, J. This case has been remanded to us by the California Supreme Court for reconsideration in light of Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862], and People v. Garcia (1984) 36 Cal.3d 539 [205 Cal.Rptr. 265, 684 P.2d 826],

By information appellant Kelly was charged with the murder of Peter Kleeman in violation of section 187 of the Penal Code. It was further alleged that the murder was committed while appellant was engaged in or was an accomplice in the commission or attempted commission of robbery, in violation of Penal Code section 211, within the meaning of Penal Code section 190.2, subdivision (a)(17)(i). A jury found appellant guilty of murder in the first degree and found true the special circumstance allegation. Since the prosecutor had elected not to seek the death penalty, appellant was committed to state prison for life without possibility of parole. (Pen. Code, § 190.2.)

[621]On the night of March 9, 1979, appellant and two other men beat and robbed the victim in a parking lot. The victim was beaten and kicked in the head, became unconscious, and died thereafter of his head injuries.

It is clear from the record that the fact the killing was committed in the course of a robbery or attempted robbery was the basis for both the finding that the murder was of the first degree under the felony-murder rule (Pen. Code, § 189) and the finding of special circumstances pursuant to Penal Code section 190.2, subdivision (a)(17)(i). The prosecutor expressly told the jury he was proceeding on a felony-murder theory. The jury was instructed upon first degree felony murder but not upon deliberate and premeditated first degree murder. The instructions to the jury on the special circumstance allegation stated in pertinent part that “ [t]o find that the special circumstance, referred to in these instructions as murder in the commission of robbery, is true, it must be proved: . . . That the murder was committed while the defendant was engaged in or was an accomplice in the commission or attempted commission of a robbery.” No instruction required the jury to find, in order to support either a first degree verdict or a special circumstance finding, that the defendant actually intended to kill the victim.

In Carlos v. Superior Court, supra, 35 Cal.3d at pages 153-154, the Supreme Court held that in order to subject a defendant to a sentence of death or life imprisonment without possibility of parole pursuant to Penal Code section 190.2, subdivision (a)(17), the prosecution must prove that the defendant intended to kill.