P. v. Anderson
A jury convicted defendant of first degree murder. (Pen. Code, 187, subd. (a).)[1] The jury found true the special circumstances that the victim had been killed (1) to prevent her from testifying in a criminal proceeding ( 190.2, subd. (a)(10)) and (2) during a burglary ( 190.2, subd. (a)(17)(G)). Defendant was sentenced to prison for life without the possibility of parole. He appeals, claiming the jury was misinstructed as to one of the theories of first degree murder and the during-a-burglary special circumstance. The People agree. However, the parties part company on the consequences of these errors. Defendant contends that his conviction for first degree murder must be reversed, which necessarily vacates the special circumstance findings, and because substantial evidence supporting a proper during-a-burglary special circumstance was lacking at trial, he may not be retried for that circumstance. The People assert that we may affirm his conviction for first degree murder, despite the instructional error, and uphold the special circumstance that the victim was killed to prevent her from testifying in a criminal proceeding. Court reverse the first degree murder verdict and conclude that defendant may be retried for the during a burglary special circumstance.
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