PEOPLE v. SIMS

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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Tony L. SIMS, Defendant and Appellant.

Cr. 40314.

Decided: October 25, 1982

Katherine Lerner Lynn, Woodland Hills, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and Donald J. Oeser, Deputy Attys. Gen., for plaintiff and respondent.

INTRODUCTION

Defendant Tony L. Sims appeals from a judgment of conviction after a court trial.   The court found defendant guilty of murder in the first degree (Pen.Code, §§ 187, 189) and robbery (Pen.Code, § 211).   The court further found that the murder was committed during the commission of a robbery in which defendant intentionally aided, abetted and assisted the actual killer in the commission of murder in the first degree (Pen.Code, § 190.2, subd. (b)) in the course of which a principal was armed with a firearm.   (Pen.Code, § 12022, subd. (a)).

Defendant's motion for a new trial and for reduction to a lesser included offense, pursuant to Penal Code section 1181.6, was denied.   Thereafter, defendant was sentenced to state prison for the term prescribed by law.

STATEMENT OF FACTS

At approximately 10:30 p.m. on February 27, 1979, Stanley Williams (Williams), accompanied by an individual named Darryl, visited Alfred Coward (Coward) at his home.   A short time later, the three men left Coward's residence in a station wagon and drove a short distance to a location which Williams alone entered and then immediately rejoined his companions.   They then drove to another location where Williams again left Coward and Darryl for several minutes.

The trio returned to Coward's residence where Coward entered his automobile and in the respective automobiles, they visited friends of Williams and other individuals for brief periods;  at one location, Coward saw Darryl load a shotgun which had been variously in Darryl's and Williams' possession during the course of the evening.

At approximately midnight, the trio went to defendant's residence and Coward invited him to go to Pomona with them;  defendant agreed.   A discussion about obtaining some money ensued, in the course of which Coward asked whether defendant knew any places in Pomona.   Defendant responded that he was somewhat familiar with the city because he knew someone who lived there.

Defendant entered Coward's automobile, while Williams and Darryl reentered the station wagon;  the men then returned to a location the original trio had visited earlier where everyone smoked a “Sherman,” 1 except Darryl.   During this visit, Williams obtained a .22 caliber revolver which he then gave to Darryl.   After this interval, the four men reentered the vehicles enroute to Pomona.

After both automobiles left the freeway and parked in a restaurant parking lot, Darryl went alone into the restaurant, but returned shortly and said the cook had a gun.   The automobiles returned to the 605 Freeway, Coward again following the station wagon, until ultimately they arrived at a Stop-and-Go market.

Parking in the lot in front of the market, the men conversed some time about purchasing cigarettes.   Then Williams told defendant to go into the store with Darryl and “check it out.”   Defendant and Darryl entered the market, remained a few minutes, then returned to the automobiles in which each was riding.   As defendant entered Coward's automobile, Coward asked him what had happened.   Defendant said he did not know, then stated Darryl had pulled out a gun.   Coward had not seen any weapon when the two men returned from the liquor store.

The two automobiles returned to Whittier Boulevard, side by side, occupying adjacent lanes.   The passenger side window in Coward's automobile, next to defendant, was rolled down.   Williams, occupying the passenger seat in the station wagon, asked defendant what had happened in the liquor store.   Coward initially testified that defendant replied, “Darryl didn't pull out the gun”;  but later, he testified that defendant said, “Darryl pull the gun out.”   Williams responded that at the next store, everyone was going in.

After parking briefly on a side street, the men drove to a 7-Eleven store.   During this interval, defendant told Coward more than once that he did not want to go into any more stores.   In Coward's opinion, defendant was acting as if he did not wish to be involved.   At the 7-Eleven store, all four men left the automobiles.

At this point, Coward observed the store clerk in the parking lot near the door of the store, with a broom and some other object in his hand.   Darryl and defendant walked toward the door;  when defendant reached the door, while Coward was still in the parking lot, the man Coward had observed was placing the broom and dustpan on top of an automobile.   The man then walked toward the front of the store;  Coward entered right behind him with Williams, wearing a long coat, following.

At some point, as they approached the store, defendant said to Coward that he did not know why he was going into the store because he had some money.   However, defendant did not appear frightened, either generally or specifically of Williams;  he simply did not say much and appeared reluctant to be involved.   Coward personally did not feel under compulsion from Williams to participate;  he had a choice as to whether to enter the store.

When Coward and Williams entered the store, they moved to each side of the clerk;  Williams told the clerk to keep walking and told Coward to go to the back room.   No gun was visible at this time.   As Coward and Williams walked the clerk to the back room, defendant was standing at the counter in front of one of the cash registers and Darryl was behind the counter, removing money from a cash register.   In the back room, Williams ordered the clerk to lie down;  when the clerk complied, Coward saw that Williams had the shotgun.   He heard the sound of the gun being pumped, heard a shot followed by the sound of breaking glass, then heard the pumping action and two succeeding shots in rapid succession.

At the sound of the first shot, Coward turned around and began walking out of the back room.   He saw defendant walk away from the cash register toward the front door;  Darryl came from behind the counter and also moved toward the door.   Coward followed the two men out of the store and shortly thereafter, Williams emerged.

The men entered their respective automobiles and fled on the 605 Freeway.   Defendant, appearing startled, asked Coward if Williams shot the clerk.   Although Coward believed Williams had done so, he replied, “I don't know;  I didn't look back.”

When they reached defendant's residence, defendant asked Williams, “Is that all you're going to give me is $3?”   Williams handed defendant approximately $10, saying he could not give out more money because he had to have his automobile repaired.

Los Angeles County Deputy Sheriff Barstow arrived at the 7–Eleven store at approximately 4:30 a.m. in response to instructions.   Inside the store, Deputy Barstow noted that one cash register contained no paper money.   He found in the back room a body, lying face down, with no pulse or respiration and an expended shotgun shell.   Another deputy later removed an expended shell from a box to the right of the victim's body and another from the doorway of a storeroom adjacent to the back room.

Myung Lee employed Albert Owens (Owens) as night clerk in the 7–Eleven store.   Arriving in response to a call at approximately 4:30 a.m. on February 28, Mr. Lee found Owens' body in the back room.   Currency was missing from one cash register in the approximate amount of $130, but the other cash register and the back counter safe were untouched.   The glass of a television monitor which permitted surveillance of the front area of the store from the back room was shattered.

It was stipulated that two expended shotgun shells found at the 7–Eleven store came from the weapon which Coward had seen in Williams' possession.

Los Angeles County Deputy Sheriff William Wilson had a tape-recorded conversation with defendant on March 23, 1979, after defendant was advised of and waived his Miranda rights.   In the course of the conversation, defendant admitted he had been asked where the others could obtain some money.   In addition, he knew Williams was acquiring guns before they left Los Angeles.

DEFENSE

Defendant testified in his own behalf that when he went out with Coward, he did not know that Williams and Darryl were coming along or that a robbery was planned.   However, when they left Los Angeles, he did know that Williams had a loaded shotgun and Darryl had a gun;  he realized they intended to commit a robbery, but had no intention of participating therein.   In fact, neither he nor Coward intended to enter the store.   Williams told Coward that after Williams and Darryl committed a robbery, Coward was to drive behind the station wagon to hide its license plate from view.

Defendant was afraid of Williams.   He knew Williams to be a violent person capable of injuring or killing defendant if his commands were disregarded.   Defendant feared that Williams might even attempt to harm his family.   For these reasons, defendant did not feel free to simply get out of Coward's automobile and leave.   Even so, he told Coward to tell Williams that the two of them were not going into the 7–Eleven store.   When Williams asserted they were all going into the store, however, defendant felt compelled to do so.

In his statement to the police, defendant indicated that when he returned to Coward's automobile after entering the Stop-and-Go market with Darryl, he told Coward, “It wasn't cool.”   He explained that he had not wanted to enter the market at all, but was afraid to say so to Coward because he did not know whether Coward would repeat it to Williams.   When defendant entered the 7–Eleven store, he simply stood between the door and the cash register.   At no time while in the store did he see any weapons.   He did not remember telling the police that he saw Darryl pull out a gun.

CONTENTIONS

I

Defendant contends that there is no substantial evidence that he aided and abetted the robbery;  ergo, his convictions for robbery and murder must be reversed.

II

Defendant further asserts that the felony-murder rule is statutorily unauthorized and creates an unconstitutional conclusive presumption of malice aforethought, thereby mandating reversal of his conviction.

III

Defendant avers that the trial court erroneously denied his motion for a new trial and for reduction to a lesser included offense in that there is no substantial evidence he aided and abetted in the murder with the intent that the victim be killed, as required by subdivision (b) of Penal Code section 190.2.

IV

Finally, defendant contends that the provisions of Penal Code section 190.2 which mandatorily preclude parole are unconstitutional.

DISCUSSION

I

 There is no merit to defendant's contention that there is no substantial evidence he aided and abetted in the robbery.   Defendant's argument is twofold.   Initially, he relies on People v. Yarber (1979) 90 Cal.App.3d 895, 153 Cal.Rptr. 875 for the proposition that knowledge of the purpose of the perpetrator is not sufficient for proof of aiding and abetting without evidence of an intent to aid the criminal enterprise.  Yarber reasons that this is so because one may know the purpose and take an action in aid thereof but possess a state of mind which negates criminal intent, such as mistake of fact or law or belief one's life is endangered by a refusal to act (duress).  (Id., at p. 914, 153 Cal.Rptr. 875.)

The California Supreme Court, however, has held that the guilty intent necessary for aiding and abetting is not the shared specific intent to commit a particular criminal offense such as robbery, but is that manifested by knowledge that the particular criminal enterprise is planned and that one's actions facilitate its commission.  (People v. Tewksbury (1978) 15 Cal.3d 953, 960, 127 Cal.Rptr. 135, 544 P.2d 1335.)   From the language of Tewksbury, it is clear that Yarber takes an erroneous view of the circumstances manifesting intent as those circumstances relate to a claimed mistake of fact or law.   Such a claimed mistake would relate directly to whether an actor knew the criminal nature of the enterprise;  without such knowledge, Tewksbury would not impute the requisite guilty intent.   As to duress, there is no inherent incompatibility between Tewksbury's definition of guilty intent and the interposition of a duress defense.   The function performed by evidence of duress is to demonstrate that one's knowledge was not in truth the guilty knowledge from which Tewksbury imputes intent.   Therefore, insofar as Yarber holds that it is unsound to require as a matter of law that the aider and abettor's guilty intent must be inferred from knowledge of the perpetrator's criminal purpose, we are in agreement.  (90 Cal.App.3d at p. 916, 153 Cal.Rptr. 875.)   However, we consider the conclusion that such an inference cannot be drawn in the presence of evidence which would support a contrary inference to be unsound.

In any event, defendant presented no evidence which would reasonably support an inference that he lacked a guilty intent, other than his bare assertion that this is so.   Duress or compulsion as a defense requires that the accused reasonably have believed that his life was presently and immediately in danger should he refuse to participate in the criminal venture.  (People v. Manson (1976) 61 Cal.App.3d 102, 206, 132 Cal.Rptr. 265.)   Defendant's stated reason for fear was that he knew Williams to be a violent person who might harm or kill defendant were his commands not obeyed.   Yet defendant acknowledged that no one held him at gunpoint and Williams made no threats to him.   Moreover, although defendant took no action to avoid participation, he told Coward that he intended to do so—he was not going into any more stores.   Therefore, even if every word of defendant's testimony were believed, it would establish nothing other than a last-minute vague, subjective, unsubstantiated fear.   That is hardly reflective of a reasonable belief in imminent danger to his life and hence could be deemed inadequate as a matter of law to establish compulsion.   When we consider further that defendant's words and actions as related by Coward cast doubt on the presence of any fear of Williams at all, it is clear the trier of fact reasonably could infer guilty intent from defendant's admitted knowledge of Williams' plan to commit a robbery.

Defendant also argues, however, that there is no evidence he actually participated and aided in the robbery.   The principal flaw in defendant's argument is his narrow view of the manner in which an aider and abettor must participate in the criminal enterprise.   He argues that he made no contribution whatsoever to the robbery in that his mere presence, standing unarmed and observing the action, added nothing to the probable success of the crime.

 In order to establish a defendant's status as an aider and abettor, it must be shown that he acted in a manner which either directly or indirectly increased the probability that the crime would be completed successfully.  (People v. Markus (1978) 82 Cal.App.3d 477, 481, 147 Cal.Rptr. 151.)   Among the factors relevant to aiding and abetting are presence at the scene of the crime, companionship, and conduct before and after the crime.  (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094, 126 Cal.Rptr. 898.)   The evidence clearly establishes defendant's presence in the 7–Eleven store and his flight therefrom in the company of the perpetrators and others.   He did not immediately dissociate himself from the others after fleeing from the store, but remained in their company for some considerable time.   Moreover, he told Coward before entering the store that he did not know why he was going in as he had money, then later requested a share of the proceeds.   While not bound to do so, the trier of fact reasonably could infer that defendant's comment to Coward demonstrated knowledge he was participating in the acquisition of money by robbery and that his conduct subsequent to the robbery ratified his intent to participate therein;  the presence inside the store (if only in a “standby” capacity), rather than outside in the automobile, increased the probability of success.   Accordingly, on the record before us, we cannot say that the evidence is insufficient as a matter of law to show that defendant aided and abetted in the robbery.

II

Defendant further asserts that the California felony-murder rule is not statutorily authorized and creates an unconstitutional conclusive presumption of malice aforethought.   The former assertion is specious and we disagree with the latter.

 In support of the argument that California's felony murder rule is not statutorily authorized, defendant relies on the holding in People v. Aaron (1980) 409 Mich. 672 [299 N.W.2d 304].  In Aaron, the Michigan Supreme Court noted that Michigan decisional law consistently construed the state's first degree murder statute as having the purpose of graduating punishment, rather than establishing a separate offense;  accordingly, the court determined that Michigan's felony-murder rule was of common law rather than statutory origin, thus permitting the court to abrogate the rule.   In direct contrast, California decisional law has consistently recognized the felony-murder provision in Penal code section 189 as establishing a substantive offense, rather than limited to delineating a graduation in punishment.  (See, e.g., People v. Burton (1971) 6 Cal.3d 375, 387–388, 99 Cal.Rptr. 1, 491 P.2d 793;  People v. Washington (1965) 62 Cal.2d 777, 781, 402 P.2d 130.)   Inasmuch as it is settled that California's felony-murder rule is statutory in origin, we must defer to the wisdom of the Legislature and may not abrogate the rule unless it violates a specific constitutional guarantee.

 In arguing that the felony-murder rule violates constitutional guarantees of due process, defendant relies on the principle that due process requires the prosecution to prove each element of a criminal offense beyond a reasonable doubt.  (In re Winship (1970) 397 U.S. 358, 363–364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368;  see also Sandstrom v. Montana (1979) 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39;  Patterson v. New York (1977) 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281.)   It follows, defendant argues, that the conclusive presumption of malice aforethought created by the felony-murder rule is unconstitutional.   If defendant's premises were correct, his conclusion would be also;  however, we conclude defendant's premises are not correct.

Some decisional law has recognized that the felony-murder rule implies malice and premeditation from the intentional participation in enumerated felonies regarded as inherently dangerous to human life.  (People v. Poddar (1974) 10 Cal.3d 750, 755, 111 Cal.Rptr. 910, 518 P.2d 342;  People v. Coefield (1951) 37 Cal.2d 865, 868–869, 236 P.2d 570.)   The implication is thoroughly reasonable and flows naturally from the principle that malice will be implied when one intentionally does an act inherently dangerous to human life and therefore likely to result in a killing with a reckless disregard for the consequences.  (Pen.Code, § 188;  People v. Antick (1975) 15 Cal.3d 79, 88, 539 P.2d 43.)   Other authority characterizes the felony-murder rule as a legislative policy decision that the deterrence of killings, whether accidental or intentional, during inherently dangerous felonies outweighs the interest in weighing fine distinctions in the defendant's mental state (People v. Washington, supra, 62 Cal.2d 777, 781, 402 P.2d 130);  hence, the felony-murder rule dispenses with the requirements of malice and premeditation, the only requisite intent being that of committing the underlying felony.  (People v. Cantrell (1973) 8 Cal.3d 672, 688, 105 Cal.Rptr. 792, 504 P.2d 1256;  People v. Johnson (1974) 38 Cal.App.3d 1, 7–8, 112 Cal.Rptr. 834.)

 Whether viewed as invoking as an implication naturally flowing from the nature of the underlying felony or as an artificial concept not dependent upon malice, the felony-murder rule is a rule of substantive law rather than an evidentiary aid in finding malice.  (People v. Stamp (1969) 2 Cal.App.3d 203, 210, 82 Cal.Rptr. 598.)   A presumption is such an evidentiary tool;  that is, in the case of presumption, the law requires that one fact be assumed from the existence of another fact.  (Evid.Code, § 600, subd. (a).)  In whatever manner we view the felony-murder rule under existing authority, the trier of fact is not required to assume malice from the existence of the underlying felony;  it is not required to find malice at all.   First degree felony-murder exists upon a finding beyond a reasonable doubt that the defendant intended to commit a certain enumerated felony and in the course thereof, he or an accomplice killed someone;  hence, the prosecution is not relieved of any particle of its burden of proof and there is no denial of due process.

III

 Defendant avers that the trial court erred in denying his motion for a new trial and for reduction to a lesser included offense in that there is no substantial evidence defendant aided and abetted the robbery with the intent the victim be killed, as is required by subdivision (b) of section 190.2.   We agree.

We note initially that the trial court impliedly construed Penal Code section 190.2, subdivision (a)(17) 1 as applicable solely to the killer, for the court stated:  “In regard to the special circumstances, it's clear ․ defendant was not the actual killer in the sense of handling the shotgun ․;  however, ․ the Court finds the special circumstances true in that the defendant intentionally aided and abetted and assisted the actual killer in the commission of murder of the first degree.”   This finding utilizes, practically verbatim, the language of section 190.2, subdivision (b), which recites in pertinent part:  “Every person whether or not the actual killer found guilty of intentionally aiding, abetting ․ or assisting any actor in the commission of murder in the first degree shall suffer death or confinement in state prison for a term of life without the possibility of parole, in any case in which ․ the special circumstances enumerated in paragraphs ․ (17) ․ of subdivision (a) of this section has been ․ specially found ․ to be true.”

To construe subdivision (a) broadly to encompass any defendant found guilty of first degree murder whether or not the literal slayer is possible, but such a construction would render subdivision (b) largely superfluous contrary to the well-established principle of statutory construction that the courts are not to treat words as surplusage, but are to give effect where reasonably possible to every phrase of a statute.  (J. R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 36–37, 160 Cal.Rptr. 710, 603 P.2d 1306;  People v. Gilbert (1969) 1 Cal.3d 475, 480, 82 Cal.Rptr. 724, 462 P.2d 580.)   Accordingly, we conclude that the trial court's construction was correct and defendant's sentence of life imprisonment without possibility of parole must be based on subdivision (b).

Defendant argues that the language, “intentionally aiding ․ in the commission of murder in the first degree” must be construed as requiring that a defendant act with the intent the victim be killed.   In counterpoint, the People argue that this language reasonably may be construed as referring to the felony-murder rule (Pen.Code, § 189) when based on paragraph (17) of subdivision (a).   Thus, defendant's intentional aiding and abetting in the robbery establishes his intentional aiding and abetting in the commission of the murder.   This argument is facially valid as it applies to subparagraphs (i) [robbery], (iii) [rape], (v) [child molestation], (vii) [burglary], and (viii) [arson]—all of which are enumerated in Penal Code section 189.   On the other hand, a criminal defendant may be guilty of first degree murder pursuant to Penal Code section 189 because a death resulted from his participation in the crime of mayhem, yet not be subject to the penalties prescribed by Penal Code section 190.2, subdivision (b).

More importantly, however, section 189 felony murder cannot be the basis upon which a defendant is found to have intentionally aided in the commission of first degree murder committed while he was engaged in or an accomplice in the commission of kidnaping [ii], sodomy [iv], oral copulation [vi] or train wrecking [ix] in that these offenses are not among those enumerated in section 189 as inherently dangerous.   Therefore, malice and premeditation must be found independently from commission of one of those felonies.   As a result, an adoption of the People's construction would assign a different meaning to the key phrase “intentionally aiding ․ in the commission of murder in the first degree” in connection with subparagraphs (i), (iii), (v), (vii) and (viii) than that applied to subparagraphs (ii), (iv), (vi) and (ix) of paragraph (17) of subdivision (a).   Such a construction contravenes a venerable rule of statutory construction:  The scope and meaning of statutory language remains the same in different portions of a law.  (E.g., Stillwell v. State Bar (1946) 29 Cal.2d 119, 123, 173 P.2d 313;  Coleman v. City of Oakland (1930) 110 Cal.App. 715, 719, 295 P. 59.)

Reason dictates that the key language of subdivision (b) have the same meaning with respect to all of the subparagraphs of paragraph (17).   Moreover, an examination of the ballot arguments for and against Proposition 7, which enacted section 190.2, provides additional support for a construction that requires a defendant to act with intent that the victim be killed.   The rebuttal argument on page 35 of the California Voter's Pamphlet for the November 7, 1978 general election contains the following passage:  “The opposition maintains that if someone were to lend a screwdriver to his neighbor and the neighbor used it to commit a murder, the poor lender could get the death penalty, even though ‘he had NO INTENTION’ that anyone be killed”.

 “Please ․ read section 6b ․  It says that a person must have INTENTIONALLY aided in the commission of a murder ․”  In determining the intent of a ballot measure, it is appropriate to consider the ballot arguments.  (Carter v. Seaboard Finance Co. (1949) 33 Cal.2d 564, 203 P.2d 758.)   From the foregoing, it is apparent that subdivision (b) was intended to be limited in application to those persons who, in aiding or assisting another's acts, intend the victim to be killed as a result.   Our analysis comports with the principle that, in construing a penal statute, a defendant is to be given the benefit of every reasonable doubt as to the meaning of the language employed therein.  (People v. Walker (1976) 18 Cal.3d 232, 242, 133 Cal.Rptr. 520, 555 P.2d 306.)

There is not one iota of evidence that defendant aided and abetted Williams with the intention the store clerk be killed.   The evidence most favorable to the prosecution indicates defendant was startled and shocked by the gunshots, apprehensive that Williams might have shot the clerk and anxious for more information from Coward.   While defendant did testify that he knew Williams to be a violent person and feared he would injure or even kill defendant if thwarted, there is no evidence defendant knew it was Williams' intent or practice to kill the victims of his crimes;  at best, he may have surmised Williams would do so in the face of resistance.   Further, it is unclear defendant even knew Williams was carrying the shotgun when he entered the 7–Eleven store.

Our review of statistics compiled by the United States Bureau of Justice Statistics and the State Bureau of Criminal Statistics indicates that the killing of victims in the course of armed robberies committed in commercial establishments is far from an invariable practice.   From 1974 through 1977, 9.1 percent (approximately 4,878) of all California robberies took place in nonresidential buildings.  (Criminal Victimization of California Residents, A National Crime Survey Report (Refer. Tables, Bur. of Justice Stats. March 1981) p. 32.)   A victim or victims suffered injury in 37 percent of all robberies committed, while 63 percent resulted in no injury.  (Id., at p. 38.)   A firearm was used in only 15.7 percent of those robberies which resulted in injury, but was used in 37.6 percent of those which did not so result.   (Id., at p. 35.)   By extrapolation from these figures, we deduce the following:  (1) At least 1,805 (37 percent) of those robberies committed in nonresidential buildings resulted in injury to a victim or victims;  and 3,073 (63 percent) were injury-free;  (2) in at least 283 (15.7 percent) of those 1,805 robberies resulting in injury, a firearm was the weapon employed;  but (3) in at least 541 (37.6 percent) of the 3,073 injury-free robberies in nonresidential buildings, a firearm also was used.

The statistics on homicides in which robbery was the known precipitating factor are even more illuminating.   From 1974 through 1976, all forms of robbery in all locations in California precipitated 812 homicides (Homicide in California, 1974–1976 (Refer. Tables, Bur. of Crim. Stats. 1977) p. 55) and in 1977, 311 (Homicide in California, 1977 (Refer. Tables, Bur. of Crim. Stats. 1978) p. 23), for a total of 1,123 homicides.   By extrapolation, approximately 102 (9.1 percent) of these robbery-related homicides occurred in nonresidential buildings.   Even if we assume that each and every one of these homicides was the result of firearm use, a firearm was also used in approximately 824 nonresidential building robberies where the victims' lives were spared.   From the foregoing, it is clear that the killing of victims during armed robberies of commercial establishments is far from commonplace.   Therefore, it would be wholly unreasonable to infer solely from defendant's knowledge that he was participating in an armed robbery, further knowledge that the clerk was to be killed and an acquiescence therein.   Accordingly, we hold that the evidence is insufficient as a matter of law to support the special circumstance finding.   As a consequence, the finding must be stricken from the judgment.

In view of the foregoing conclusion, we find it unnecessary to reach the issue of the constitutionality of section 190.2's mandatory sentence of life imprisonment without possibility of parole.   Defendant also calls to our attention an arithmetical error in the judgment with respect to the sentence imposed on count VIII [robbery] and argues further that the armed allegation in enhancement thereof should be stricken as an improper dual enhancement.   The trial court stayed execution of sentence as to the above enhancement;  such a stay is an adequate and appropriate remedy.  (See People v. Edwards (1981) 117 Cal.App.3d 436, 449, 172 Cal.Rptr. 652.)

The judgment is corrected to reflect a total sentence of six years as to count VIII—the upper term sentence of five years, plus a one year sentence enhancement pursuant to Penal Code section 12022, subdivision (a).   The judgment is modified to strike the special circumstances finding and the trial court is directed to resentence defendant on count VII (murder), pursuant to Penal Code section 190.   In all other respects, the judgment is affirmed.

I concur in the majority opinion except for that portion which holds that there is not sufficient evidence to support the special circumstance finding 1 from which portion I dissent.   I would affirm the judgment in its entirety.

Reviewing the whole record and viewing the evidence in the light most favorable to the respondent and presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence (People v. Johnson, 26 Cal.3d 557, 576–577, 162 Cal.Rptr. 431, 606 P.2d 738), it is clear to me that defendant aided and abetted Stanley Williams with the intention the clerk would be killed.   I disagree with the majority that “There is not one iota of evidence” to support such finding.

Defendant willingly went to Pomona with Williams, Coward and Darryl knowing all of them were going to commit some robberies.   About midnight Coward came to defendant's house and asked him if he wanted to go to Pomona;  defendant “said yeah, but he had to be back early.”   By defendant's house they discussed “getting money” and, asked if he knew of any places in Pomona defendant answered that he was “kind of familiar with it.”   They used two cars—Coward drove defendant and Darryl drove Williams—according to defendant, the plan was for Coward and him “to follow [Williams] just in case somebody tried to get his license plate” number after a job.   Before entering the freeway they drove to 111th and Normandie where Williams went into a house to get a gun;  defendant testified that Williams said he wanted to stop by one of his friends so he could get a gun because he needed another gun, and “guessed” Williams wanted another gun so he could go out and rob;  defendant and Coward stood by the car and waited for Williams and saw him come out with a gun in his hand.   Williams had a shotgun and a .22 caliber revolver, and defendant admitted in his testimony that when he got on the freeway he knew Stanley Williams had a shotgun and it was loaded and that Darryl had a gun;  admitted to police that the others asked him where they could “make some money” and that he knew Williams went to get guns;  and testified that Williams was a violent type person and he was afraid if he did not do as Williams asked he probably would have “killed me or something,” or hurt members of his family.

On the way to Pomona there was talk about going out to rob.   They got off the freeway and went to a restaurant;  Darryl went in but returned because the cook had a gun.   They then went to a Stop-and-Go market;  Williams told defendant to go with Darryl and “check it out”;  defendant admitted to police that his purpose in going into Stop-and-Go was to rob it;  on the way into the market he saw that Darryl had a gun;  they did not rob it but returned in three minutes;  asked by Williams what happened, defendant said “Darryl didn't pull out the gun.”   Williams said that at the next store everybody was going in.

They drove to a 7–Eleven market;  the clerk, a white male, was outside with a broom;  defendant and Darryl walked in the front door and defendant took his place in front of the counter while Darryl went to the back of the counter and started to clean out the cash register;  defendant saw Williams and Coward escort the clerk through the store into the back room;  Williams carried a loaded shotgun, said something, pumped three shots into the clerk killing him and walked out of the back room.   At that time, defendant was walking away from the register toward the front door and Darryl was walking around from the back of the register.   Defendant was the first one out of the front door followed by Darryl, then Coward and Williams.   They drove to a gas station then to defendant's house where they had a conversation;  defendant said to Williams:  “Is that all you're going to give me is $3?”;   Williams gave him an additional $10 but said he could have no more because he had to get his car repaired.

While Coward testified defendant said he was not going into another store before they drove to the 7–Eleven market and when driving away asked him if Williams shot the gun and why he shot the clerk, and appeared to be “startled,” the evidence shows that defendant was not the fearful, reluctant participant he claimed to be in his testimony and claims here.   As a matter of fact defendant's version of what occurred and his duress defense was rejected by the trial court as was his testimony and that of Coward that he really didn't want to rob anyone.   The record establishes that defendant willingly went with Williams, Darryl and Coward to Pomona to find places to rob, to “make money” by committing robberies knowing that Williams was violent and would kill anyone who got in his way and that Williams carried a loaded shotgun and Darryl a .22 caliber revolver.   This is strong evidence that in participating with Williams in the 7–Eleven robbery defendant knew and intended that Williams would kill anyone who got in his way during the robbery or would be able to identify him.   Use of a gun in the robberies was neither unintended by nor “startling” to defendant.   He knew Williams carried a loaded shotgun and Darryl a .22 caliber revolver;  he went with Darryl to rob the Stop-and-Go market but according to defendant “Darryl didn't pull out his gun.”   This demonstrates that defendant intended and expected Darryl to use the gun in robbing the store but since Darryl did not, he walked out.   Williams told defendant they would all go into the next place, and so they did.   Only a clerk was present at the 7–Eleven market, and the evidence of this robbery establishes a well orchestrated and planned robbery in which each participant had his role—defendant entered first and stationed himself at the front of the counter as a lookout, Darryl went behind the counter to clean out the cash register and Williams armed with a loaded shotgun and Coward took care of the clerk escorting him to the back room where Williams promptly killed him.   Then they all filed out of the store, defendant first, Darryl, Coward and Williams, and drove away;  they rode around for awhile and then divided the proceeds of the robbery.   In my view the foregoing leads to the inescapable conclusion that each participant in the robbery of the 7–Eleven market was a willing participant, each was aware of how the robbery was to be executed and each knew and intended that Williams would kill any person present who interfered or who could possibly be a witness against him.

FOOTNOTES

1.   A cigarette laced with phencyclidine.

1.   Section 190.2, subdivision (a)(17) provides in pertinent part:  “The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in the state prison for a term of life without the possibility of parole in any case in which one or more of the following special circumstances has been ․ specially found ․ to be true:“․“(17) The murder was committed while the defendant was engaged in or was an accomplice in the commission of ․ the following felonies:“(i) Robbery in violation of Section 211.“(ii) Kidnapping in violation of Sections 207 and 209.“(iii) Rape in violation of Section 261.“(iv) Sodomy in violation of Section 286.“(v) The performance of a lewd or lascivious act upon person of a child under the age of 14 in violation of Section 288.“(vi) Oral copulation in violation of Section 288a.“(vii) Burglary in the first or second degree in violation of Section 460.“(ix) Train wrecking in violation of Section 219.”

1.   The trial court found, “In regard to the special circumstances, it's clear in this case that the defendant was not the actual killer in the sense of handling the shotgun that caused the death of the victim in this case;  however, based upon the evidence before this court, the court finds the special circumstances true in that the defendant intentionally aided and abetted and assisted the actual killer in the commission of the murder of the first degree.”

SPENCER, Presiding Justice.

DALSIMER, J., concurs.