PEOPLE v. STEEG (1989)

Defendant Norman Lee Steeg appeals after a jury convicted him of first degree murder (Pen.Code, §§ 187, 189) ¹ and robbery (§ 211) with a felony-murder special circumstance finding (§ 190.2(a)(17)(i)).   Allegations that Steeg was armed with (§ 12022(a)) and used (§ 12022.5) a firearm were found to be true.   The jury also found Steeg guilty of the theft of a firearm.  (§ 498(3).)   Following the penalty phase hearing, the jury fixed Steeg's punishment at life imprisonment without the possibility of parole.

This is our second review of this case.   In 1985, we reversed the special circumstance finding and struck the section 12022.5 enhancement but otherwise affirmed Steeg's conviction.   The Supreme Court granted review pending its consideration of the automatic appeal of Steeg's codefendant, Michael Williams, who was tried separately and received the death penalty.   That court, 252 Cal.Rptr. 276, 762 P.2d 440, has now retransferred Steeg's appeal to us to reconsider in light of People v. Williams (1988) 45 Cal.3d 1268, 248 Cal.Rptr. 834, 756 P.2d 221.   After such review, we reach the same result as our earlier opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On the night of September 29, 1981, defendant Steeg met Michael Williams and Kevin Finckel, with whom he was previously acquainted, on the boardwalk in Mission Beach.   Earlier in the day, Steeg had stolen a loaded .38 calibre revolver and some Rolling Stones concert tickets from the residence of his girlfriend's mother.   He was in Mission Beach attempting to sell the stolen property when he encountered Williams and Finckel.

After several hours of drinking and socializing, the trio encountered Gregory Lock, an off-duty sailor who was having trouble starting his car, a white 1978 Oldsmobile Starfire hatchback.   They offered their help to Lock and when the car started, they asked Lock if he could give them a ride to North Park.   Lock agreed, and after leaving Mission Beach, he drove south on Interstate 5.  Williams sat in the front passenger seat next to Lock.   Steeg and Finckel sat in the back seat, with Steeg seated directly behind Lock.

Shortly after they got on the freeway, Steeg pulled out the gun and placed it to Lock's neck.   As Lock continued to drive south, Williams removed Lock's wallet from his pocket, but returned to Lock his military identification card.   During the drive, Williams and Steeg repeatedly disagreed over where they were going and who was giving orders to Lock regarding their destination.   Steeg indicated he wanted to stop the car and “let [Lock] out here” but Williams instructed Lock to “keep going.”

When they arrived in National City, it was agreed Steeg would drive the car.   Steeg ordered Lock off the freeway and they drove to an adjacent warehouse area.   According to Finckel, Williams “seemed kind of edgy, he was getting on everybody's case, you know, telling them to shut up, stuff like that.”   Steeg ordered Lock out of the car.   Williams also got out and came around to the driver's side.   Steeg then handed the gun to Williams so he could climb out of the back seat.   Williams ordered Lock to lean up against a telephone pole, approximately five to ten feet from the car.   As Steeg climbed into the driver's seat, Williams suddenly shot Lock twice with the revolver.   As Lock started to run away, Williams shot him a third time, causing him to fall.   Williams then fired two more shots.

Finckel testified that when Steeg handed the gun to Williams, Finckel suspected Williams would shoot Lock “from past experience.”   He also testified, however, that when Williams shot Lock, Steeg turned to Finckel and said “something like ‘I didn't know he was going to do that.’ ”   Steeg's testimony in his own defense was consistent with Finckel's trial testimony.   According to Steeg, he had no idea Williams would shoot Lock.   He claimed he had his back to Williams and Lock when he heard the first shots being fired and turned to Williams yelling, “No!   Why in the hell did you do that?”   Steeg testified that when Williams got back in the car, he told Steeg and Finckel that “if we said anything, that he would shoot and kill me and Kevin.   That us three were not going nowhere until he got rid of the evidence.”

Finckel's testimony at trial was impeached with prior inconsistent statements he made to National City police officers shortly after his arrest.   He told the officers that when Williams shot Lock, Steeg exclaimed, “Oh, shit, I knew he was going to do it.”   In the National City interview, Finckel also stated that Steeg chided Williams for firing the gun five times, because “we could have used the rest of the shots.”

After spending the night with a friend, where Williams burned Lock's wallet and its contents, the trio drove to Riverside in Lock's car, arriving late in the afternoon.   Apparently while Steeg was asleep, Williams and Finckel burglarized the home of David Beardsley, an acquaintance of Finckel's.   The items taken included two cameras, a coin collection, drugs and a .38 caliber pistol.   Finckel testified that all three had previously discussed the possibility of burglarizing Beardsley's residence to obtain items they could sell, and all had agreed it was a good idea.   Steeg testified that he thought Finckel was merely going to Beardsley's apartment to retrieve some things he had left there and had no idea he and Williams intended to steal anything until they returned to the car with the various stolen items.

From Riverside, the trio drove to Long Beach where they met a prior acquaintance of Williams', Shane Magee.   Magee agreed to help them sell some of the items stolen from Beardsley's apartment and suggested they all drive to Las Vegas where Magee had various contacts.   Magee testified that at some point before they left Long Beach, Williams told him that “they shot somebody, and that they had the car for three days so far and they wanted to get rid of it, and if I wanted to come with them it was up to me.”   Finckel testified he never remembered Williams telling Magee about anyone being shot, but he did remember Magee being told that the car was stolen.   In Las Vegas, Magee helped the trio sell some of the stolen property.   With the proceeds, Steeg rented a room for the group at the Villa Inn motel.   Magee introduced the trio to a friend of his, Dana Cowen, who purchased some of the stolen property.   On Friday evening, October 2, all five went drinking at the Golden Nugget Casino.   While at the Golden Nugget, Cowen got in an argument with a drunk at the bar.   Steeg then sent Finckel back to the motel room to get one of the guns.   When Finckel returned and gave Steeg the gun, Magee told him, “This is Las Vegas, and we can't, you know,—we can't be carying [sic] guns around like that.”   Steeg replied, “Yeah, but we are crazy.   How do you think we got the car?   We killed a guy so they wouldn't find out.”   Magee also testified that throughout the entire time in Las Vegas, it was his opinion that Steeg was the dominant person among the three.

At one point, Finckel remained in the motel while Williams, Steeg, and Magee attempted to sell more of the stolen property.   Magee and Williams got into a disagreement over the proceeds of a sale.   Williams warned Magee that “if he would kill a guy for a car, that he would kill anybody for a couple of hundred dollars.”   Following the disagreement, Williams and Steeg returned to the motel, gathered up several items including the stolen guns, and left again.   Williams told Finckel “he was going to go and pull a robbery.”

Magee did not return with Williams and Steeg to the motel.   Instead, now fearing for his own safety, he decided to call the police.   Apparently in an attempt to prevent their departure until the police could arrive, Magee flattened a tire on the stolen car.   He than called the police from a pay phone booth at the motel.

Magee's phone call to the police dispatcher was tape recorded and transcribed.   He told the dispatcher:

“I ain't going to give up my name but I think there is in the Vista Motel in room 28, I heard last night through the wall that there was three guys living there and they're from San Diego and they're driving a stolen car and there was suppose to be something about a murder.”

Magee went on to describe the car as white, “[i]ts like a Vega, you know, it slants in the back and that.”   He also said three guys were trying to “sell some guns.”   Magee explained that he could see two of the guys changing a tire on their car, describing one as having long brown hair, a bushy beard, and wearing a blue jean jacket, and the second as having blond hair and wearing a blue tee-shirt with sleeves cut off.   He stated that both men were wearing blue jeans and red bandannas.   Magee did not describe the third man, who he said remained in room 28.

Four patrol officers (in two cars) and a homicide detective were immediately dispatched to the Vista Motel, which they discovered had no room 28.   They communicated this information to the dispatcher who, coincidentally, had just received another phone call from Magee.   Magee called back to report that the two men had finished fixing the flat tire and had driven off.   In his second phone call, Magee provided the additional information that the stolen white hatchback had Florida license plates.   It was at that point the dispatcher received the call from the officers indicating there was no room 28 at the Vista Motel.   Upon being questioned, Magee checked the sign outside the phone booth and discovered he was calling from the Villa Inn.

On arrival at the Villa Inn, police entered room 28 and questioned Kevin Finckel.   Finckel's statements corroborated much of what Magee had told the dispatcher.   Shortly thereafter, officers outside the motel observed a small white hatchback with Florida license plates returning to the motel parking lot.   The car was stopped and Steeg and Williams were ordered to get out.   After they were patted down and handcuffed, a license plate check revealed that the car had been reported stolen from a homicide victim in National City.

Finckel consented to a search of room 28 from which certain items were recovered.   Later, a warrant was obtained to search the car and to conduct a second search of room 28.   These searches yielded additional items.

As noted previously, Williams and Steeg were tried separately.   Finckel pled guilty to second degree murder and testified as a witness for the People against both Williams and Steeg.   Williams was tried first and was convicted of robbery and first degree murder while engaged in the robbery.   The jury imposed a sentence of death.   Before a different jury Steeg, like Williams, was found guilty of robbery and first degree murder while engaged in the robbery, but the jury imposed a sentence of life imprisonment without the possibility of parole.

DISCUSSION

Steeg's major contentions are addressed to the court's ruling on his motion to suppress evidence pursuant to section 1538.5.   He challenges both the substance of the ruling and the procedure by which it was arrived at.   He also makes separate contentions of instructional error.

I

Steeg's search-and-seizure contentions involve the Las Vegas police officers' conduct at the Villa Inn, principally their warrantless entry of room 28.   In our first opinion, we concluded that although the warrantless entry was unjustified, the unlawful conduct did not taint the critical items of evidence recovered thereafter, specifically Kevin Finckel's testimony.   Although we found several procedural irregularities in the handling of the section 1538.5 motion, we concluded they were harmless on the facts of the case.

 Our discussion of Steeg's contentions is considerably truncated as a result of the Supreme Court's opinion in Williams, which reached conclusions entirely consistent with our earlier holding.   It would serve no purpose to recanvass either the facts presented at the section 1538.5 motion, the procedural posture of the motion or Steeg's legal contentions.   Because Steeg joined in Williams' motion, the facts and procedural background in the two cases are identical.  (See 45 Cal.3d at pp. 1288–1296, 248 Cal.Rptr. 834, 756 P.2d 221.)   Moreover, each of Steeg's arguments was also raised by Williams and determined by the Supreme Court not to warrant reversal.   As to the admissibility of Finckel's testimony, the court concluded there was no showing it was the tainted product of the unlawful entry into room 28.²  (Id. at pp. 1303–1304, 248 Cal.Rptr. 834, 756 P.2d 221.)   The court also considered Williams' complaints that the trial court improperly shifted the burden of proof to the defense in the section 1538.5 hearing and erroneously denied a continuance of the hearing.   It assumed arguendo that both challenged rulings were error but held that no prejudice resulted.   (Id. at p. 1304, fn. 3, 248 Cal.Rptr. 834, 756 P.2d 221.)   In accord with Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937, we reach the same conclusions here.

II

 By virtue of the operation of the felony-murder rule, the critical issue at trial was Steeg's liability for the robbery of Gregory Lock.   The prosecutor argued that Steeg aided and abetted Michael Williams in that robbery.   The jury was instructed pursuant to the standard instructions at the time, CALJIC Nos. 3.00 and 3.01, on the requirements for aider liability:

“One 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.

“A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice, the commission of such crime.”

These instructions were disapproved by the Supreme Court in People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318 because they fail to specify that the defendant must intend to aid the commission of the crime.   The court explained that criminal liability on an aiding and abetting theory “require[s] proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.”  (Id. at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318, emphasis in original;  see also People v. Caldwell (1984) 36 Cal.3d 210, 223–224, 203 Cal.Rptr. 433, 681 P.2d 274.)   Where instructions suffer from Beeman error, reversal is required unless the reviewing court is convinced beyond a reasonable doubt that the error did not contribute to the guilty verdict.  (People v. Dyer (1988) 45 Cal.3d 26, 64, 246 Cal.Rptr. 209, 753 P.2d 1.)

 There is, to be sure, some evidence indicating Steeg did not intend to aid Williams in the taking of Lock's wallet.³  That evidence, however, is in the form of Steeg's testimony to the effect he did not know Williams was going to take the wallet when he pulled the gun on Lock.   Rather, he displayed the weapon initially in an attempt to force Lock to drive to North Park or to leave Lock and drive himself to North Park.   Steeg specifically testified he had put the gun away before Williams took Lock's wallet, and that it was strictly Williams' idea to take the wallet.

On the instructions as given, the jury could not find Steeg guilty of aiding and abetting the robbery unless it concluded he assisted Williams “with knowledge of [Williams'] unlawful purpose.”   Thus, it must necessarily have found that when Steeg pointed the gun at Lock's neck, he knew Williams intended to rob the victim.⁴  Having made this factual finding, it is inconceivable the jury would not also have found that Steeg intended to aid Williams.   As the court explained in People v. Yarber (1979) 90 Cal.App.3d 895, 916, 153 Cal.Rptr. 875, “[F]rom a person's action with knowledge of the purpose of the perpetrator of a crime, his intent to aid the perpetrator can be inferred [and] [i]n the absence of evidence to the contrary, may be regarded as established.”  (Emphasis omitted.)   Because the record contains no evidence to the contrary other than that necessarily disbelieved by the jury, we are comfortable in concluding the Beeman error here was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705;  People v. Dyer, supra, 45 Cal.3d at p. 64, 246 Cal.Rptr. 209, 753 P.2d 1.)

III

 The special circumstance alleged against Steeg was that “[t]he murder was committed while the defendant [ ] [was] engaged in or was an accomplice in the commission of ․ [a] [r]obbery ․” within the meaning of section 190.2(a)(17)(i).   Steeg asserts the trial court erred in failing to instruct the jury that it could return a true finding on this special circumstance allegation only if it determined Steeg intended to kill Gregory Lock.

Much has occurred relevant to this issue since the time of trial.   First, the Supreme Court in People v. Carlos (1983) 35 Cal.3d 131, 153–154, 197 Cal.Rptr. 79, 672 P.2d 862 held that resort to one of the “felony-murder” special circumstance categories listed in subdivision (a)(17) of section 190.2 required a finding that the defendant intended to kill the victim.   In our first opinion in this case, we relied on Carlos in reversing the special circumstance finding.

Then, in People v. Anderson (1987) 43 Cal.3d 1104, 1138–1148, 240 Cal.Rptr. 585, 742 P.2d 1306, the court reconsidered its Carlos holding and concluded that proof of an intent to kill was not required if the defendant was the actual killer.   The Anderson court, however, reaffirmed the substance of Carlos as applied to accomplices of the perpetrator:  “The 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 [citation] that the defendant was an aider and abettor rather than the actual killer.”  (43 Cal.3d at p. 1147, 240 Cal.Rptr. 585, 742 P.2d 1306.)   More recently, the court has suggested that failure to so instruct as required by Anderson will necessitate reversal unless the reviewing court is satisfied beyond a reasonable doubt that the error did not contribute to the verdict.  (People v. Garrison (1989) 47 Cal.3d 746, 789, 254 Cal.Rptr. 257, 765 P.2d 419;  see also People v. Bunyard (1988) 45 Cal.3d 1189, 1242, 249 Cal.Rptr. 71, 756 P.2d 795.)

Here, the evidence is undisputed that Steeg was not the actual killer.   Thus, Anderson mandates an intent-to-kill instruction which was not given here.⁵  The People respond, however, that “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.”  (People v. Sedeno (1974) 10 Cal.3d 703, 721, 112 Cal.Rptr. 1, 518 P.2d 913;  see also People v. Garcia (1984) 36 Cal.3d 539, 555, 205 Cal.Rptr. 265, 684 P.2d 826.)   They point to an instruction given by the trial court which was based on section 190.2, subdivision (b):

“If defendant was not the actual killer, it must be proved beyond a reasonable doubt that he intentionally aided, abetted, counseled, commanded, induced, solicited, requested or assisted 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 as to the defendant.”  (Emphasis added.)

They argue based on this instruction that the jury must have found Steeg intended to kill.

The problem with the People's argument is that the instruction speaks of assistance “in the commission of the [first degree] murder ․”   Yet first degree murder was defined elsewhere consistent with the felony-murder rule to include any “unintentional or accidental, [killing] which occurs as a result of the commission of or attempt to commit the crime of robbery, ․”  This definition necessarily includes killings which take place without the defendant having harbored an intent to kill.   Thus, even assuming the jury focused on this instruction, it could have found that Steeg intentionally assisted Michael Williams in the commission of the first degree murder because he intentionally assisted in a robbery during which a killing took place.

In People v. Warren (1988) 45 Cal.3d 471, 247 Cal.Rptr. 172, 754 P.2d 218, however, the Supreme Court rejected this line of analysis in the context of accepting a similar Sedeno-based argument by the Attorney General.   The facts of Warren involved one of two codefendant-robbers who told a second codefendant to shoot the victims, thus implicating the Anderson requirement of an intent-to-kill instruction for defendants other than the actual killer.   Instead, however, the jury was instructed simply in the language of section 190.2(b).   Although acknowledging that the section 190.2(b) instruction “might conceivably be understood to mean that a special-circumstance finding could be made as to an aider and abetter if he acted merely with the intent to commit robbery and not with the intent to kill,” the court concluded that it “would not be so construed by a reasonable juror․  [O]ne could understand the charge as requiring intent to rob and nothing more only if he parsed it in a hypertechnical manner.   A reasonable juror, however, would not undertake such tortuous analysis.”  (Id. at pp. 487–488, 247 Cal.Rptr. 172, 754 P.2d 218.)   Three justices separately concurred, finding it unnecessary to consider the adequacy of the section 190.2(b) instruction but noting a “serious question whether the instructions satisfactorily informed the jury it must find [the defendant] intended to kill․”  (Id. at p. 490, 247 Cal.Rptr. 172, 754 P.2d 218 (conc. opn. of Arguelles, J.).)

Absent from the majority opinion in Warren is any discussion of People v. Murtishaw (1981) 29 Cal.3d 733, 175 Cal.Rptr. 738, 631 P.2d 446.   In Murtishaw, the defendant relied on the principle that the crime of assault with intent to commit murder requires a specific intent to kill.   The jury was given two different instructions on the mental state necessary for the crime, one of which was phrased in terms of “intent to kill” and a second in terms of “intent to murder.”   The defendant argued that the “intent to murder” language coupled with standard felony-murder instructions may have allowed the jury to convict him without finding a specific intent to kill.   The Supreme Court agreed with the defendant:

“[T]aken as a whole, the instructions on assault with intent to commit murder were contradictory.   The court defined the mental element essential to the crime in two different ways—intent to kill and intent to murder—and by implication defined the latter to include forms of murder not requiring an intent to kill.”  (Id. at p. 763, 175 Cal.Rptr. 738, 631 P.2d 446.)  6

It would seem that if “intent to murder” does not mean “intent to kill,” a fortiori intentionally assisting a murder does not mean “intent to kill.”   Fortunately, we need not attempt to reconcile the apparent conflict between Murtishaw and Warren.⁷  Several factors are present in this case which were not present in Warren and in our view mandate reversal.⁸

First, as previously noted, Steeg specifically requested an instruction which would have highlighted the need for an finding that he intended to kill Lock, clarifying any ambiguity in the section 190.2(b) instruction.  (Ante, fn. 5.)   The trial court refused the instruction, not on the theory it was already covered but rather because the trial judge believed an intent to kill was not required to sustain the special circumstance finding.

Further support is provided by the prosecutor's comments to the jury.   Before any evidence was presented, he explained that when a person “aids and abets a robbery wherein a person is killed, whether premeditatedly, as is the case here, or inadvertently or accidentally, that is ․ special circumstances.”   In his closing argument, the prosecutor repeated the same theme on several occasions.⁹  Defense counsel never suggested that the prosecutor's argument was inconsistent with the section 190.2(b) instruction;  indeed, given the court's earlier ruling on Steeg's requested instruction, it would have been futile to do so.

It is well established that a defendant is entitled to “pinpoint” instructions which “direct attention to evidence or amplify legal principles from which the jury may conclude that his guilt has not been established beyond a reasonable doubt.”  (People v. Thompkins, supra, 195 Cal.App.3d at p. 257, 240 Cal.Rptr. 516.)   Here, the trial court erred in refusing Steeg's pinpoint instruction which would have made clear to the jury that a special circumstance finding required a determination that Steeg possessed a specific intent to kill.   Furthermore, the record in this case will not allow us to conclude that the error was harmless.   Notwithstanding the majority opinion in Warren, it would approach the surreal for us to suggest that the section 190.2(b) instruction clarified for the jury what was hidden from an experienced trial judge and two seasoned litigators.¹⁰

IV

 On our own at oral argument before the filing of our first opinion, we raised with counsel our concern regarding the jury's finding that Steeg personally used a firearm in the commission of the murder within the meaning of section 12022.5.   Recognizing that the prosecutor conceded at trial that Williams rather than Steeg was the actual killer, the Attorney General nonetheless attempts to support the jury's finding by arguing the jury undoubtedly found that Steeg premeditated the murder of Gregory Lock.   According to the Attorney General, the jury could properly find that Steeg personally used the firearm if it concluded that he handed the gun to Williams intending that it be used to kill Lock.

Assuming for the purposes of argument that the record would support a finding that Steeg premeditated Gregory Lock's murder, it still does not follow that Steeg personally used a gun to commit the murder.   The concept of personal use “in the commission of” an offense clearly connotes that the defendant personally used the weapon to facilitate the commission of the crime.   While it is true that the concept of “firearm use” is broad enough to encompass the pointing of a gun at a robbery victim to threaten and thereby facilitate the robbery (People v. Chambers (1972) 7 Cal.3d 666, 672, 102 Cal.Rptr. 776, 498 P.2d 1024), the mere threatening of a robbery victim with a gun does nothing to facilitate the murder of the victim at a later time by a different defendant using the same gun.   We think the Legislature plainly intended that a firearm is not ‘used’ in the commission of a murder unless the defendant uses the weapon to kill, i.e., shoots the victim.¹¹ ” .  Any other rule would cause a defendant's liability for the enhancement to turn on the fortuity of whether he had touched the weapon at some point during the criminal enterprise rather than on whether he used the gun to facilitate the crime's commission.¹²

DISPOSITION

The special circumstances finding is reversed.   The section 12022.5 enhancement is stricken.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise specified.   Where appropriate when referring to statutory subparts, we omit repetition of the word “subdivision.”

2.   Although the Supreme Court found it unnecessary to consider the precise basis for our earlier holding, we remain convinced that where, as here, an accomplice on advice of counsel elects to accept a plea bargain and testify against his former codefendants, that testimony is not subject to exclusion if it is later determined that the accomplice was arrested or detained illegally.   In other words, the decision to plead and testify is a sufficiently voluntary act to purge the taint of any prior illegality.  (See United States v. Hoffman (7th Cir.1967) 385 F.2d 501, 504;  United States v. Beasley (10th Cir.1973) 485 F.2d 60, 64;  United States v. Leonardi (2d Cir.1980) 623 F.2d 746, 753.)

3.   The parties focus most of their argument on whether Steeg aided and abetted Williams' taking of Lock's wallet.   Of course, the jury could have found that Steeg was guilty of robbing Lock of his vehicle.   In fact, Steeg admitted during cross-examination that he intended to take the car:“Q Well, what did you want Mr. Lock to do when you put the gun to his neck?“A To pull over and let him out and we would drive the car to T.C.'s house and then we would leave the car.“Q So you didn't—“A That is what was intended.“Q You didn't want to make him drive you there?“A No.”Steeg points to other testimony suggesting that his intent to take the car was formed after his initial display of the weapon.   He later disavowed that testimony but even if it were true, such a fact would not preclude liability for robbery in view of Steeg's testimony that Lock was always aware of the presence of the gun:“A I didn't keep the gun to his head.“Q You put it to his head?“A Yes, and then put it away.   Not—I did not keep it on his head the whole time.   He knew that the gun was there.   And that is all that needed to be known.”As long as Steeg had formed the intent to take the car at the time he applied the force (see post, fn. 4), a robbery could be found to have occurred.Even on these facts, however, Steeg's testimony does not conclusively establish robbery of the car because he explained his intent was to drive the car to a friend's (T.C.'s) house in North Park and leave it there.   It is thus arguable that Steeg did not possess the intent to permanently deprive Lock of the car.   Accordingly, we consider the effect of the aiding and abetting instructions as they relate to the taking of the wallet.

4.   As an additional contention Steeg concedes the jury was instructed, consistent with Penal Code section 20, that as to the crime of robbery,“there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator and unless such specific intent exists, the crime to which it relates is not committed.”Noting, however, that the crime of robbery involves two central elements—i.e., (1) a taking (2) by means of force or fear—he contends the instruction is insufficient because it fails to specify that “not only must the taking and the intent to permanently deprive coincide but the force and the intent must coincide.”  (AOB at p. 121.)   Referring to the facts of the case, Steeg argues that he “had no larcenous purpose when he pointed the gun ․” and thus, there was no concurrence of act and intent.We assume for the purposes of discussion that had Steeg proffered a properly tailored instruction on this point, he may well have been entitled to it.  (See People v. Thompkins (1987) 195 Cal.App.3d 244, 257, 240 Cal.Rptr. 516.)   However, Steeg did not request any such clarifying instruction.   Where an instruction merely amplifies legal principles contained in correct instructions which were given to the jury, absent unusual circumstances we do not believe a sua sponte duty can be imposed on the trial court.  (See People v. Harvey (1984) 163 Cal.App.3d 90, 112–113, 208 Cal.Rptr. 910.)

5.   In fact, Steeg specifically requested the following instruction:“To find that the special circumstances, referred to in these instructions as murder in the commission of a Robbery, is true, it must be proved:“That the murder was committed while the defendant was an accomplice in the commission of a robbery and that his acts in aiding or assisting another's acts were with the intent that the victim would be killed as a result.“Without finding that the defendant's actions were with the specific intent which would result in, or had the reasonable expectation of resulting in the death of the victim, you may not find special circumstances in this case.”His request was refused by the trial court on the theory that Enmund v. Florida (1982) 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 only required such an intent to impose the death penalty but not to result in a finding of special circumstances.   Accordingly, the judge ruled he would only give such an intent-to-kill instruction during a subsequent penalty phase hearing, if such occurred.

6.   The situation in Warren is, if anything, more supportive of the defendant's position than that in Murtishaw.   In Murtishaw, the trial court concededly gave one instruction which correctly focused the jury's attention on whether the defendant intended to kill.   In Warren as here, the sole instruction on the applicable mental state was phrased in terms of “intentionally assist[ing] ․ in the commission of the murder.”

7.   Recently in People v. Coleman (1989) 48 Cal.3d 112, 255 Cal.Rptr. 813, 768 P.2d 32 the Supreme Court reaffirmed its Murtishaw holding but concluded on the record in that case that it was “inconceivable” the jury would have understood an “intent to commit murder” instruction as allowing for defendant's conviction on a charge of assault with intent to commit murder without a finding that he intended to kill the victim.   In reaching this conclusion, the court specifically noted that the argument of counsel did not suggest an intent to kill was not required.  (48 Cal.3d at pp. 156–157, 255 Cal.Rptr. 813, 768 P.2d 32;  compare post.)

8.   We note that another recent Court of Appeal decision has attempted to distinguish Warren.   In People v. Roy (1989) 207 Cal.App.3d 642, 653, 255 Cal.Rptr. 214, the court characterized Warren ' s discussion of the 190.2(b) instruction as “dictum” and in any event found the case distinguishable because in Roy, the instructions on felony murder were explicitly linked to the special circumstance instructions.   We confess to some difficulty understanding the Roy court's reading of Warren as indicating that the defendant was the actual killer;  as we have previously noted, there were two defendants in Warren only one of which shot the victims.  (See ante, pp. 93–94.)   Nonetheless, we are comfortable with Roy 's conclusion that the record in a particular case may make the assumptions underlying Warren—and hence Warren 's analysis—inapplicable.

9.   The Attorney General now concedes this was error.

10.   Although not determinative, we take some support from the fact that the retransfer order only asked us to reconsider our earlier conclusions in light of People v. Williams, supra, 45 Cal.3d 1268, 248 Cal.Rptr. 834, 756 P.2d 221.   If the Supreme Court had viewed Warren as necessitating affirmance of the entire judgment, we assume it would have included the citation in the retransfer order.

11.   The court in People v. Johnson (1974) 38 Cal.App.3d 1, 112 Cal.Rptr. 834, appears to reach a contrary conclusion relying on People v. Chambers, supra, 7 Cal.3d 666, 102 Cal.Rptr. 776, 498 P.2d 1024.   Johnson fails to take into account the fact that in Chambers, the Supreme Court specifically tied its holding to the “force or fear” element of robbery:  “In the instant case defendant pointed a gun at the victim and demanded money.   Defendant thus utilized the gun at least as an aid in completing an essential element of the crime of robbery—the taking of personal property ‘accomplished by means of force or fear.’  (§ 211.)”  (7 Cal.3d at pp. 672–673, 102 Cal.Rptr. 776, 498 P.2d 1024.)   Here, in contrast, Steeg did not use a firearm to complete any essential element of the crime of murder.

12.   In any event, the instructions given to the jury regarding the firearm use enhancement in no way indicated the enhancement could only be imposed if the jury found Steeg handed the weapon to Williams intending that it be used to kill Lock.

WIENER, Acting Presiding Justice.

WORK and NARES, JJ., concur.