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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gregory SANDERS, Defendant and Appellant.

Cr. 41379.

Decided: March 14, 1983

Joseph F. Walsh, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen.—Criminal Division, S. Clark Moore, Asst. Atty. Gen., William R. Pounders, Susan Lee Frierson, Deputy Attys. Gen., for plaintiff and respondent.

A jury found defendant guilty of first degree murder under special circumstances and first degree robbery.   Sentence was life without possibility of parole.   He appeals from the judgment of conviction entered on the verdicts.

Overwhelming evidence, which included statements made by defendant, established that defendant, in the course of a robbery which netted him $150, beat to death an elderly female proprietor of a fish and chips restaurant.

The only contentions on appeal are (1) that the corpus delicti of the robbery was not established independently of defendant's statements;  (2) the trial court erroneously instructed the jury on the “special circumstances;”  and (3) trial defense counsel was incompetent in failing to request the trial court to strike the special circumstance allegation.   We reject these contentions and affirm the judgment.

Defendant concedes that the evidence clearly establishes that he killed the victim in the commission of a robbery.   His argument concerning the corpus delicti of robbery is directed only to the robbery charge itself and the special circumstance allegation which rested on the robbery aspect of the killing.  (Pen.Code, § 190.2(a)(17).)

 At the outset we deal with the application of the so-called “corpus delicti” rule to the special circumstance allegation.   The fundamental rule is that a person may not be convicted of a crime solely on the basis of his confession or admission of guilt.   There must be independent evidence to establish to a prima facie degree that a crime was in fact committed.   (People v. Amaya (1952) 40 Cal.2d 70, 75–76, 251 P.2d 324;  People v. Wong (1973) 35 Cal.App.3d 812, 838–839, 111 Cal.Rptr. 314.)

 Once that prima facie showing is made the defendant's statements may be introduced.   Those statements may then be used to determine the circumstances and, where appropriate, the degree of the crime.  (See People v. Cullen (1951) 37 Cal.2d 614, 624–626, 234 P.2d 1;  People v. Jackson (1950) 36 Cal.2d 281, 283–286, 223 P.2d 236.)   The sum total of the evidence of course must establish guilt beyond a reasonable doubt.  (Pen.Code, § 1096;  People v. Hudson (1955) 45 Cal.2d 121, 127, 287 P.2d 497.)

 Here, as pertains to the murder charge, the corpus delicti of that crime was clearly established by the evidence concerning the finding of the victim's body and the cause of death which absolutely ruled out accident or suicide.

At that point the defendant's statements that he committed the crime in the course of a robbery were admissible to establish the degree of the crime as well as the existence of the special circumstances that the murder “was committed while the defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit ․ [r]obbery in violation of Section 211.”  (Pen.Code, § 190.2(a)(17).)

 In any event there was more than adequate evidence aside from defendant's statements to establish beyond any doubt that a robbery was committed against the victim.   There was evidence that on the opening for business on the day of the crime, $50 was put into the cash register.   At approximately 4:30 that afternoon the victim was found beaten and strangled to death near the cash register.   The figure “$999.99” was wrung up on the cash register.   Coins were scattered on the cash register and on the floor and there was no money inside the drawer.   This evidence clearly created a reasonable inference that a robbery had been committed.  (See People v. Towler (1982) 31 Cal.3d 105, 181 Cal.Rptr. 391, 641 P.2d 1253;  Jones v. Superior Court (1979) 96 Cal.App.3d 390, 157 Cal.Rptr. 809;  People v. Spencer (1963) 60 Cal.2d 64, 31 Cal.Rptr. 782, 383 P.2d 134.)

In People v. Green (1980) 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468, the Supreme Court held, at page 61, 164 Cal.Rptr. 1, 609 P.2d 468, that the special circumstance allegation of murder committed during a robbery is not established if the primary goal “is not to steal but to kill and the robbery is merely incidental to the murder ․ because its sole object is to facilitate or conceal the primary crime.”

 Defendant contends here that an instruction on that principle should have been given.   The defendant did not request any such instruction on the point.   The defense was alibi.   In view of the evidence concerning the circumstances of the finding of the victim's body, coupled with the fact that defendant and victim were total strangers, there was no requirement that any instruction on that point be given either sua sponte or upon request.   There was simply nothing in the evidence to suggest that the crime was other than a cold blooded killing in the perpetration of a robbery.

The defendant's remaining contentions do not merit discussion.

The judgment is affirmed.

 COMPTON, Associate Justice.

ROTH, P.J., and BEACH, J., concur.