Filed 12/17/15 P. v. Lawrence CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

DERYKE LAWRENCE,

Defendant and Appellant.

 B259517

 (Los Angeles County

 Super. Ct. No. BA410507)

APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa B. 

Lench, Judge. Affirmed in part, reversed in part, and remanded.

Tanya Dellaca, under appointment by the Court of Appeal for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, 

Supervising Attorney General, Timothy M. Weiner and Eric J. Kohm, Deputy Attorneys 

General for Plaintiff and Respondent.
2

A jury convicted defendant and appellant Deryke Lawrence (defendant) of the first 

degree murder of Anita Henderson in violation of Penal Code section 187,1subdivision 

(a); he was also convicted on a separate charge of grand theft for unauthorized use of an

ATM card. There were no witnesses at trial who saw or heard defendant kill Henderson, 

his next-door neighbor. The circumstantial evidence allowed the jury to infer that 

defendant entered Henderson’s house without permission and to conclude that at some 

point while on the property he struck her head with such force as to fracture her skull and 

kill her. We consider whether the circumstantial evidence is sufficient to support the first 

degree murder conviction on either a felony murder theory or as a willful, deliberate, and 

premeditated killing. We also decide claims of related instructional error, and error in 

finding a prior “strike” conviction true for sentencing purposes.

BACKGROUND

Trial of defendant on the murder and grand theft charges took place over nine days 

in June and July of 2014. The jury deliberated for three and a half hours and returned

guilty verdicts on both charged offenses. The evidence at trial established the following 

facts.

Defendant worked as a handyman for Ray Ector for approximately two years. 

Ector lived with Henderson (the victim) in a house at 2121 South Redondo Boulevard in 

Los Angeles. Ector was also the temporary caretaker of a vacant house next door at 2115 

South Redondo Boulevard (2115 Redondo). In the fall of 2012, defendant told Ector he 

was homeless and didn’t have a place to live. Ector allowed defendant to live at 2115 

Redondo. 

Defendant knew Henderson for as long as he had been working for Ector. 

According to Ector, during the time that defendant lived next door, Henderson and 

defendant became friendly. They would talk together in Henderson’s home. Defendant 

also ran errands for her.

 

1 Undesignated statutory references that follow are to the Penal Code.
3

On November 1, 2012, defendant’s car was impounded and defendant sought and 

obtained the temporary use of a pickup truck from Ector.

2

 Defendant’s stated reason for

borrowing the truck was to move some furniture for his girlfriend, Arlene Anderson. 

After getting the truck, defendant met Anderson. She gave defendant her ATM card and 

permission to withdraw $40 for gas. Over the next several days, defendant withdrew 

about $1,200 from Anderson’s bank account without her knowledge or permission. 

These withdrawals form the basis of defendant’s grand theft conviction.

On November 5, when defendant had not returned the truck to Ector, Ector asked 

where it was. Defendant replied that he would bring it back when he was done with it. 

Two days after that, on November 7, defendant told Ector that the truck had been 

impounded. Ector was scheduled for a medical procedure the next day and he spent the 

evening at the house of a friend who could take him to the procedure early the next 

morning. At some point that evening, Ector called the sheriff’s department and learned 

that his truck had not been impounded as defendant claimed. Ector’s son Michael went 

to defendant’s house, confronted him about the truck, and told him he would have to 

move out of 2115 Redondo if he did not return the truck by the next day. 

Ector returned home around 3:30 the next afternoon, November 8, and 

encountered defendant coming out of the driveway of 2115 Redondo. Ector described 

defendant as looking “clean,” meaning he was not wearing construction clothes. 

Defendant wore jeans and a dark hooded sweatshirt. Ector demanded defendant return 

the truck, and defendant agreed to take him to the truck. Once defendant was in Ector’s 

vehicle, however, defendant convinced Ector to take him instead to an ATM, and then to 

take him back to 2115 Redondo. Ector thereafter went to a neighbor’s house.

 

2 At trial, the prosecution contended the circumstances concerning defendant’s use 

of Ector’s truck provided evidence of a potential motive for Henderson’s murder. 

Accordingly, the prosecution spent significant time during trial introducing evidence 

about the truck and related events that occurred prior to Henderson’s death on 

November 8.
4

Unbeknownst to Ector, defendant put his belongings into the truck, which had 

been hidden in the area, and drove off. He abandoned the truck at about 5:00 p.m., when

it stalled in an intersection. Ector’s son Michael saw the truck later as he drove to Ector’s 

house and alerted law enforcement to the truck’s presence. 

Meanwhile, Ector returned to his own house. When he went inside, he discovered 

Henderson’s dead body on the patio. She was wearing only a bra and socks. A hose was 

positioned so that water was running over her body. There was disarray and blood in 

Ector’s bedroom, but nothing else was out of place in the house and nothing was missing. 

Ector called 911. 

Criminalists from the Los Angeles Police Department (LAPD) arrived at 

Henderson’s house and took many photographs of the crime scene, including of Ector’s 

bedroom. The photographs show substantial blood spatter on the wall. One section of 

blood spatter near the floor was over three feet wide, and a second section was just under 

three feet wide and about five feet above the floor. 

There was no sign of forced entry at Henderson’s house. The door from the den to 

the patio and backyard was open as usual to allow Ector and Henderson’s dogs to come 

and go. The backyard was completely fenced. The front door was double-locked, and 

the gate to the driveway was also locked. Only Ector and Henderson had keys to the 

locks. Ector testified that it was unusual for the doors to be locked. He also testified that 

on November 7—the day before the murder—Henderson said she wanted the front door 

locked because defendant had done “some mean things to her.” Ector was not asked to 

elaborate about what the “mean things” were. 

An investigator with the coroner’s office placed Henderson’s time of death at 

1:24 p.m. plus or minus two hours. The deputy medical examiner who performed the 

autopsy did not believe that the time of death could be so precisely pinpointed, stating 

that he would rely on the timeline of events established by the investigation of the crime 

as the most precise way to determine the window of time in which Henderson died. 

The deputy medical examiner determined that Henderson died from blunt force 

trauma to the head. The examiner explained that there was an H-shaped fracture across
5

the left side of her skull, a large bruise over the eye and cheek area on the left side of her 

face, and a large laceration over her left eyebrow. Henderson also suffered contusions on 

the surface of the right side of her brain. The examiner observed small bruises on 

Henderson’s arm and her legs that he believed were consistent with finger pressure. 

Henderson’s body bore no signs of defensive wounds, that is, wounds that she would 

have suffered attempting to fend off an attack. The coroner’s office investigator believed 

that a large bruise on the back of Henderson’s left hand could be consistent with an 

offensive wound, but the examiner saw no definite signs of offensive wounds. The 

deputy medical examiner offered no opinion on whether Henderson died immediately 

from the blunt force trauma or survived for a period of time.

During the course of their investigation, the police searched Ector’s truck that 

defendant had abandoned in the intersection. Investigators found a sweatshirt that

appeared similar to the one worn by defendant during his drive to the ATM with Ector. 

A portion of the left cuff of the sweatshirt tested presumptively positive for blood and 

had DNA consistent with Henderson’s DNA. Defendant and Henderson were major 

contributors to DNA recovered in a general swab of the sweatshirt. Defendant’s DNA 

was not found on any items obtained from the victim or the crime scene, including swabs 

in a sexual assault kit. 

While at the scene of the crime, police photographed a white plastic chair in the 

yard of 2115 Redondo next to the wall separating the property from Henderson’s house. 

According to Ector, the chair was normally on the porch; he acknowledged, however, that 

he last visited 2115 Redondo two weeks before the murder and did not know when the 

chair might have been moved.

3

Defendant did not have phone service at the time of the murder. A witness at trial 

who was working construction next door to Henderson’s house testified that in the 

 

3 During summation, the prosecution argued the presence of the chair near the fence 

permitted the jury to infer that defendant used the chair to climb over the fence and enter 

Henderson’s house through the open den door to use her phone without her permission. 
6

morning on November 8 (before Henderson was killed) defendant asked to use his cell 

phone to make a call. The prosecution admitted into evidence phone records for the two 

landlines at Henderson’s house. The call records indicated that several local calls were 

made on the day of the killing from Henderson’s line to a junk car dealer, beginning at 

12:22 p.m. The phone number called for the junk car dealer matched the phone number 

on a business card in defendant’s possession when he was arrested. Henderson’s landline 

was also used to call the cell phone number for Anderson (defendant’s girlfriend) at 

12:30 p.m. Significantly, the records also showed a 32-second call from Henderson’s 

landline to Ector’s cell phone at 1:11 p.m.4 Beginning at 1:29 p.m., several more calls 

were placed to the junk dealer from Ector’s landline. After 2:07 p.m., there were no 

further outgoing calls until 5:03 p.m. The AT&T representative who testified at trial was 

not asked whether the local calls placed by defendant resulted in any additional charges 

to Henderson’s telephone bill.

Approximately two weeks after Henderson was killed, defendant called Anderson 

and asked if she knew what happened to “Miss Anita” (i.e., Henderson). Anderson said 

no and defendant told her “they”—he did not say who—“beat her up.” Anderson 

reported the conversation to the police, and later that same day, the police arrested 

defendant.

In a recorded post-arrest interview, police detectives told defendant they were 

investigating Henderson’s murder. Defendant said, “I know Anita but I don’t know no 

Henderson.” When detectives again told defendant that Henderson had been murdered,

he responded, “And?” The police told defendant they wanted to know what he knew

about “Anita.” They suggested it was suspicious that defendant “disappeared” after 

being at Henderson’s house earlier that day, and asked defendant if he could explain. 

Defendant told the police that Henderson “was like a sister to me.” He denied knowing 

what happened to her. But he did admit that he used Henderson’s phone on the day of 

 

4 The prosecution focused on this call in closing argument, contending the jury 

could infer Henderson, and not defendant, made this call in an effort to warn Ector of 

something, perhaps that defendant was planning to sell Ector’s truck. 
7

the murder, claiming that he made calls outside on the porch with her permission. 

Defendant told the police that he might have called Anderson and he admitted he was 

“calling people about . . . the car and the truck trying to get . . . a value on that.” 

DISCUSSION

Defendant contends (1) there is insufficient evidence to support his conviction for 

first degree murder; (2) the trial court should have instructed the jury on the lesser 

included offense of involuntary manslaughter; (3) the trial court should not have given a 

jury instruction on alternative theories of murder, CALCRIM No. 548; and (4) the 

evidence introduced of his prior Alabama robbery conviction did not establish the 

conviction qualified as a “strike” conviction under California law. 

Under the applicable standard of review, we conclude there was sufficient 

evidence, although only just, to allow the jury to find first degree murder on a willful, 

deliberate, and premeditated theory. We are nevertheless compelled to reverse because 

we cannot conclude the jury based its first degree finding on that theory rather than the 

prosecution’s felony murder theory—which was legally inadequate. We reject 

defendant’s contention that an involuntary manslaughter instruction was warranted. We 

need not reach the question of whether giving the CALCRIM No. 548 instruction was 

error. Lastly, the People concede, and we agree, that there is insufficient evidence to 

prove defendant’s Alabama conviction was a “strike” conviction.

We therefore reverse the first degree murder finding and the trial court’s true 

finding on the prior conviction allegation. We affirm the grand theft conviction. We

remand for further proceedings. 

I

Murder Conviction

The prosecution urged the jury to find defendant guilty of first degree murder 

under either of two theories: commission of a felony murder in the course of a burglary 

or, alternatively, commission of a willful, deliberate, and premeditated murder. The 
8

primary difference between the two theories was that under the felony murder theory,

defendant’s use of Henderson’s phone on the day of the murder was characterized as a 

theft but under the premeditation and deliberation theory it was not. 

We have no difficulty concluding there was sufficient evidence of malice to 

support a second degree murder conviction. But first degree murder is not so 

straightforward. As to felony murder, the prosecution presented the jury with a theory of 

the underlying felony that was legally inadequate; compounding the problem, the jury 

instruction the trial court gave on the elements of the underlying felony, while legally 

correct, had no application to the facts of the case. As to the prosecution’s alternate 

theory that defendant killed Henderson willfully, deliberately, and with premeditation, 

the evidence was not strong but it was minimally sufficient under the deferential standard 

of review that governs our review. The jury was therefore left with a legally adequate 

and a legally inadequate theory of first degree murder. Applying Supreme Court 

precedent, we conclude reversal is required.

A. Malice Aforethought

Murder is the unlawful killing of another person with malice aforethought. 

(§ 187.) Malice may be express or implied, or where the felony murder doctrine applies, 

it is necessarily imputed to the defendant. (§ 188; People v. Chun (2009) 45 Cal.4th 

1172, 1184.) A defendant acts with express malice when he intends to kill. A defendant 

acts with implied malice when he willfully commits an act, the natural and probable 

consequences of which are dangerous to human life, knowing the act is dangerous to 

human life and with conscious disregard for human life. (People v. Gonzalez (2012) 54 

Cal.4th 643, 653.)

Defendant hit Henderson in the head with considerable force. The coroner’s 

report shows a large “H” shaped fracture on one side of her skull which caused 

contusions to the opposite side of the brain. In addition, she had a possibly broken nose, 

bruises and cuts on her face, and bruising around her eyes. Photos taken in a bedroom 

show over three feet of blood spatter over one wall, and large amounts of blood on items 
9

on the floor underneath the spatter and on the front of the desk perpendicular to the 

spattered wall. The force required to produce such results was necessarily extreme force. 

The force and resulting injuries are sufficient to demonstrate defendant acted with at least 

implied malice. (People v. Dellinger (1989) 49 Cal.3d 1212, 1222; People v. Toth (1960) 

182 Cal.App.2d 819, 826 [malice may be shown by the extent and severity of the injuries 

inflicted upon the victim]; see People v. Lashley (1991) 1 Cal.App.4th 938, 945.) When 

combined with evidence of motive and the other circumstantial evidence, the jury was 

also entitled to find express malice. (People v. Smith (2005) 37 Cal.4th 733, 742.)

B. First Degree Murder

A murder is first degree murder if it is committed during the commission of 

certain specified felonies, including burglary. (§ 189.) An unlawful killing with malice 

aforethought is also first degree murder if it is willful, deliberate, and premeditated. 

(§ 189.) Here, the prosecutor argued both theories to the jury. Defendant contends the 

first degree murder conviction cannot be sustained under either theory. 

1. Felony murder

A killing committed in the course of a burglary is automatically first degree 

murder under the felony murder rule. (§ 189.) A burglary occurs when a person 

unlawfully enters a building with the intent to commit theft or any felony therein. 

(§ 459.) 

The prosecution’s theory of burglary as the predicate for felony murder was that 

defendant intended to commit a theft when entering Henderson’s house because he 

intended to use Henderson’s phone to make calls without her authorization. During 

summation, the prosecutor stated, “[I]t doesn’t matter what you use in a house. If it’s a 

residence, that makes it first degree. And if you’re using something inside without 

permission, that constitutes theft.” During rebuttal argument, the prosecution returned to 

the same point, arguing, “[U]sing a phone without permission in someone’s house is 

absolutely a theft.” 
10

On appeal, respondent defends the description of theft that the prosecution offered

at trial. Respondent’s brief asserts: “Appellant’s . . . argument that use of a phone to 

make local calls does not constitute theft is . . . preposterous. Entry with the intent to use 

a home’s utilities may form the basis of a burglary conviction. (People v. Martinez

(2002) 95 Cal.App.4th 581, 584-585 [the defendant was found guilty of burglary after he 

entered a home with the intent to take a shower] (Martinez); see also People v. Dingle

(1985) 174 Cal.App.3d 21, 29 [entry for the purpose of making long-distance telephone 

calls] (Dingle).)” 

There was ample evidence at trial that defendant used Henderson’s telephone to 

make local calls. The jury was also entitled to infer that defendant used Henderson’s 

phone without permission (indeed, that he entered Henderson’s home without 

permission) based on Ector’s testimony that defendant had done mean things to 

Henderson and she wanted to keep the doors locked, combined with the placement of the 

plastic chair near the wall separating 2115 Redondo and Henderson’s house. But the 

prosecution’s assertion that the mere use of a phone without permission constitutes theft 

was an oversimplification and invited the jury to convict on a legally inadequate theory of

the predicate burglary.

Defendant’s unauthorized use of Henderson’s phone to make local telephone calls 

was not a theft from her. Theft by larceny requires that a thing taken have some intrinsic 

value, and the thief must intend to deprive the owner permanently of property or to 

deprive the owner of a major portion of the property’s value or enjoyment. (People v. 

Franco (1970) 4 Cal.App.3d 535, 542 [intrinsic value]; see also People v. Avery (2002) 

27 Cal.4th 49, 58 [intent to deprive the owner permanently of the property or to deprive 

the owner of a major portion of the property’s value or enjoyment].) There was no 

evidence at trial that defendant’s use of Henderson’s phone to make local calls resulted in 

any additional charges to Henderson’s phone bill or that defendant intended to 

permanently deprive her of any property.

People v. Martinez (Martinez) therefore provides no support for the prosecution’s 

overbroad theory of theft (“if you’re using something inside without permission, that 
11

constitutes theft”). In Martinez, the defendant entered the home to use “soap, shampoo 

and hot water.” (Martinez, (2002) 95 Cal.App.4th 581, 585-586.) The Court of Appeal 

held that the use and consumption of these items was a permanent taking of personal 

property, albeit property of very slight value, that would qualify as theft by larceny.

5

 

(Ibid.) That is not true based on the evidence the jury had—or more precisely, did not 

have—concerning defendant’s use of the telephone. Martinez does not help respondent.

Respondent also relies on the Fourth District Court of Appeal’s decision in People 

v. Dingle (Dingle) to argue that the prosecution’s articulation of burglary’s theft element 

was correct. Respondent’s reliance on Dingle, however, is similarly misplaced. The case 

stands only for a narrower proposition: unauthorized use of a telephone to make calls 

billed to a subscriber can satisfy the theft element of a burglary charge if a jury is 

properly instructed on what it must find, including an intent to defraud the “person”

providing telephone service.

The defendant in the Dingle case was convicted, among other offenses, of first 

degree burglary with intent to commit theft. (Dingle, supra, 174 Cal.App.3d at p. 24.) 

The theft alleged was a long distance call Dingle made without the victim’s consent. (Id.

at p. 29.) Dingle argued on appeal that the unauthorized call was not a theft, or if it was a 

theft, that the jury instructions omitted an essential element: intent to permanently 

deprive the victim of possession of property. (Id. at pp. 24, 29.) The Court of Appeal 

reversed the judgment of conviction on other grounds but, “for purposes of guiding the 

trial court on retrial,” addressed the issue of whether Dingle’s use of the phone to make a 

long distance call satisfied the intention-to-commit-a-theft element of burglary. (Id. at 

p. 24.)

The Court of Appeal concluded that an intention to commit any theft offense 

described in section 484, subdivision (a)—not just larceny—can satisfy the elements of 

burglary. (Dingle, supra, 174 Cal.App.3d at p. 30 [“the word ‘larceny’ in section 459

 

5 Theft of electricity, gas, and water services—but not telephone services—are also 

punishable pursuant to section 498, entitled “Theft of utility services; definitions; 

presumptions; penalties.” (§ 498, subd. (a)(2) [definition of “utility”].)
12

[the burglary statute] shall now be read and interpreted as if the word ‘theft’ were 

substituted”]; see also §§ 484, 490a.) The court stated that larceny requires an intent to 

permanently deprive a person of property, but certain other theft offenses do not. 

(Dingle, supra, at p. 30.) Theft by false pretenses is one such form of theft,6and the 

Dingle court held that section 502.7—which punishes theft of telephone service by 

fraud—is akin to theft by false pretenses and therefore sufficient to satisfy the theft 

element in an allegation of burglary. (Ibid.) The Court of Appeal stated that on remand

for retrial of Dingle, “the court need instruct [the jury] only in the language of section 

502.7.” (Ibid.)

The statute cited by the Dingle court, section 502.7, provides: “Any person who, 

knowingly, willfully, and with intent to defraud a person providing telephone or telegraph 

service, avoids or attempts to avoid, or aids, abets or causes another to avoid the lawful 

charge, in whole or in part, for telephone or telegraph service” by any of several specified 

means is guilty of a misdemeanor or a felony.

7

(§ 502.7, subd. (a).) Here, there was no 

 

6 Theft by false pretenses requires proof that “1. The defendant knowingly and 

intentionally deceived a property owner [or the owner’s agent] by false or fraudulent 

representation or pretense; [¶] 2. The defendant did so intending to persuade the owner 

[or the owner’s agent] to let the defendant [or another person] take possession and 

ownership of the property; [¶] AND [¶] 3. The owner [or the owner’s agent] let the 

defendant [or another person] take possession and ownership of the property because the 

owner [or the owner’s agent] relied on the representation or pretense.” (CALCRIM No. 

1804; People v. Wooten (1996) 44 Cal.App.4th 1834, 1842.) Theft by false pretenses 

must also be corroborated by either a false writing or false token, a note signed or 

handwritten by the defendant, or testimony from two witnesses or testimony from one 

witness plus other evidence supporting the conclusion that the defendant made the 

pretense. (CALCRIM No. 1804.) 

7 Under section 502.7, the theft of telephone service by fraud is a theft from the 

service provider, here AT&T, not the subscriber. One means of such theft specified in 

the statute occurs where a person “charge[s] the service to an existing telephone number 

or credit card number without the authority of the subscriber thereto or the lawful holder 

thereof.” (§ 502.7, subd. (a)(1).) Another specified means occurs where a person uses 

“any other deception, false pretense, trick, scheme, device, conspiracy, or means, 
13

evidence, as there was in Dingle, that defendant’s use of Henderson’s phone to make 

local calls resulted in charges billed to the victim. More important, the trial court gave no 

jury instruction on the elements of a section 502.7 theft by fraud. Nor did the prosecution 

argue theft by fraud under section 502.7 or even a general theory of theft by false

pretenses as the basis for the burglary predicate for felony murder. Instead, the 

prosecution made the blanket statement that intending to use the phone was an intention

to commit a theft. 

The instructions the trial court did give on the elements of theft did not cure the 

problem with the prosecution’s oversimplified theory of theft—in fact, the instructions 

could have only served to confuse matters. The court’s instructions correctly informed 

the jury that defendant must have intended to commit a theft when entering a building, 

and that to decide whether defendant intended to commit theft, the jury should refer to the 

separate instructions given by the court. The only jury instruction the trial court gave on 

the elements of theft was CALCRIM No. 1800. That instruction provides that the People 

must prove “1. The defendant took possession of property owned by someone else; [¶] 

2. The defendant took the property without the owner’s consent; [¶] 3. When the 

defendant took the property he intended to deprive the owner of it permanently; [¶] 

AND [¶] 4. The defendant moved the property, even a small distance, and kept it for 

any period of time, however brief.” 

CALCRIM No. 1800 had no application to the facts relevant to felony murder. It 

defines the offense of theft by larceny. (People v. Beaver (2010) 186 Cal.App.4th 107, 

119, 122 [“This instruction applies to situations where a defendant physically takes 

property from another’s actual or constructive possession”].) The trial court correctly

gave this instruction in connection with defendant’s theft of money from Anderson, the 

grand theft offense charged in count two of the information. The theft by larceny 

instruction, however, was not appropriate for the prosecution’s felony murder theory 

 

including the fraudulent use of false, altered, or stolen identification.” (§ 502.7, subd. 

(a)(5).)
14

because no physical property was taken from Henderson’s house nor was there any 

evidence that defendant intended to permanently deprive Henderson of any property. 

“While a general verdict of guilt may be sustained on evidence establishing any 

one of the consolidated theft offenses [citation], the offense shown by the evidence must 

be one on which the jury was instructed and thus could have reached its verdict.” 

(People v. Curtin (1994) 22 Cal.App.4th 528, 531; accord, People v. Kunkin (1973) 9 

Cal.3d 245, 250-251 [because jury instructed only on theft by larceny, court could not 

look to embezzlement theory not before the jury in seeking to reconcile jury verdict with 

the substantial evidence rule]; People v. Beaver, supra, 186 Cal.App.4th at p. 123.) Here, 

the theft instruction given to the jury did not include the elements of a section 502.7 theft, 

so even if there were sufficient evidence to support such a charge, the failure to instruct 

on those elements violated defendant’s right to have the charges decided by the jury. 

(People v. Beaver, supra, at p. 125 [jury was instructed on theft by larceny; if defendant 

committed theft, it was theft by false pretenses].) The jury was accordingly left with a 

legally inadequate theory of burglary and therefore felony murder, uncured by any 

instruction from the trial court.

2. Willful, deliberate, and premeditated murder

The prosecution’s alternate theory of the murder was that defendant killed 

Henderson willfully, deliberately, and with premeditation. Because there were no 

witnesses to the killing, the prosecution was forced to rely entirely on circumstantial 

evidence. The prosecution contended the murder was premeditated by focusing on the 

testimony concerning defendant’s deteriorating relationship with Henderson shortly 

before the murder; the events on the day of the murder, including the phone calls from 

Henderson’s telephone line; and the manner in which defendant killed Henderson, as 

established by the forensic evidence.

8

 

8 The prosecution argued in closing: “Was [Henderson’s] murder willful, deliberate 

and premeditated? That bludgeoning. That’s not an accident. The wounds and that wall, 
15

“‘“[W]e review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence—that is, evidence that is reasonable, 

credible, and of solid value—from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.” [Citation.] We determine “whether, after 

viewing the evidence in the light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable doubt.” 

[Citation.] In so doing, a reviewing court “presumes in support of the judgment the 

existence of every fact the trier could reasonably deduce from the evidence.” 

[Citation.]’” (People v. Williams (2015) 61 Cal.4th 1244, 1281; see also People v. 

Combs (2004) 34 Cal.4th 821, 849 [“An appellate court must accept logical inferences 

that the jury might have drawn from the evidence even if the court would have concluded 

otherwise”].) The same standard of review applies where the prosecution relies on 

circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) Where the 

circumstances reasonably justify the jury’s findings, the opinion of the Court of Appeal 

that the circumstances could be reconciled with a contrary finding does not require 

reversal. (Id. at pp. 792-793.)

“In [the context of first degree murder], ‘premeditated’ means ‘considered 

beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result 

of careful thought and weighing of considerations for and against the proposed course of 

action.’ [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 767.) “‘The process of 

 

the blood, it speaks for itself. [¶] Is it deliberate? Yes. You know because the only 

reason he would do this is because she was going to do something he didn’t like. . . . [¶] 

The last phone call is at 1:11. [Defendant]’s going to do something she doesn’t want him 

to do. Like stop him from selling the truck or tell [Ector] what’s going on. He makes a 

decision to stop her from doing it. So he deliberated. Do I let her stop me or do I get rid 

of her? [¶] Hitting her with that amount of force, the amount of force that’s required for 

those injuries, tells you that. Is it premeditated? Well, he let himself into the house. He 

thinks about what he’s doing. He climbs that wall to get into the door that he knows is 

open, and he uses [Ector’s] phone. [¶] It’s a continuous, building intent. What are the 

logical inferences? [Henderson] did not invite [defendant] in to use the phone. She said 

he had done some mean things to her before. [Henderson] told [Ector] she wanted to 

lock those locks. Both locks were locked.” 
16

premeditation and deliberation does not require any extended period of time. “The true 

test is not the duration of time as much as it is the extent of the reflection. Thoughts may 

follow each other with great rapidity and cold, calculated judgment may be arrived at 

quickly. . . . ” [Citations.]’” (People v. Lee (2011) 51 Cal.4th 620, 636.)

The leading case discussing the sufficiency of premeditation and deliberation 

evidence is People v. Anderson (1968) 70 Cal.2d 15 (Anderson). In that case, our 

Supreme Court explained: “The type of evidence which this court has found sufficient to 

sustain a finding of premeditation and deliberation falls into three basic categories: (1) 

facts about how and what defendant did prior to the actual killing which show that the 

defendant was engaged in activity directed toward, and explicable as intended to result in, 

the killing—what may be characterized as ‘planning’ activity; (2) facts about the 

defendant’s prior relationship and/or conduct with the victim from which the jury could 

reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with 

facts of type (1) or (3), would in turn support an inference that the killing was the result 

of a pre-existing reflection and careful thought and weighing of considerations rather than 

‘mere unconsidered or rash impulse hastily executed’; . . . [and] (3) facts about the nature 

of the killing from which the jury could infer that the manner of killing was so particular 

and exacting that the defendant must have intentionally killed according to a 

‘preconceived design’ to take his victim’s life in a particular way for ‘a reason’ which the 

jury can reasonably infer from facts of type (1) or (2).” (Id. at pp. 26-27.)

The Anderson factors do not establish strict rules, and they are not a sine qua non 

to finding deliberation and premeditation. (People v. Sanchez (1995) 12 Cal.4th 1, 32.) 

But they do provide guidelines for a reviewing court’s analysis. (Ibid.; People v. Raley

(1992) 2 Cal.4th 870, 886 [when evidence of all three Anderson factors are not present, 

appellate courts look for either very strong evidence of planning or some evidence of 

motive in conjunction with planning or a deliberate manner of killing].)
17

a. Motive

It is undisputed that defendant and Henderson had a relationship prior to the day 

he killed her. This is not, therefore, a case in which the jury was left to search elsewhere

for a motive because of the absence of any “prior relationship and/or conduct with the 

victim.” (Anderson, supra, 70 Cal.2d at p. 27 [italics omitted]; compare People v. Caro

(1988) 46 Cal.3d 1035, 1050, overruled on another ground by People v. Whitt (1990) 51 

Cal.3d 620, 657, fn. 29 [no evidence of prior relationship, but jury could reasonably infer 

defendant killed victim because she was an actual or potential witness to kidnapping].)

Substantial evidence at trial permitted the jury to conclude the relationship 

between defendant and Henderson became antagonistic before the murder took place. 

Ector provided uncontradicted testimony that defendant had come to Henderson’s house 

and done some mean things to her. Although Ector was not asked by either the 

prosecution or the defense to explain what the “mean things” were, Ector did explain that

Henderson was sufficiently concerned to have asked him—when he left just the day 

before the murder—to make sure the front door to her house was locked because she did 

not want defendant in the house.

9

Defendant, however, did come on Henderson’s property the next day, the day he 

killed her while Ector was away undergoing a medical procedure. The jury could 

properly rely on the placement of the white plastic chair near the wall separating 2115 

Redondo and Henderson’s house, in combination with Ector’s testimony that the chair 

was not normally in that location, to infer that defendant gained access to Henderson’s

property without her permission by hopping over the wall.

Having drawn such an inference, the jury could properly rely on the phone call 

records to make reasonable inferences about what happened once defendant was on 

Henderson’s property. The records established that defendant made five short telephone 

calls (the longest was 47 seconds and the others were all 25 seconds or less) to a junk car 

 

9 Ector’s trial testimony on this point, that Henderson wanted the doors locked to 

keep defendant out of the house, was also what he told police when first interviewed on 

the day of the murder. 
18

dealer using Henderson’s phone, and defendant admitted in his post-arrest interview that 

the purpose of the calls was to “get a value on that,” i.e., Ector’s truck. The next 

outgoing call following the calls to the junk car dealer was the 1:11 p.m. call from 

Henderson’s phone to Ector’s cell phone, and the jury was entitled to conclude 

Henderson made that call to Ector; there was no evidence that suggested any reason why 

defendant would have been calling Ector at the time. After the 1:11 p.m. call, there were 

no further outgoing calls on Henderson’s line until after 5 p.m. Defendant did make three 

additional short calls to the junk car dealer starting at 1:29 p.m., but he switched to using

Ector’s phone line to make those calls.

With Ector’s unrebutted testimony that Henderson did not want defendant in her 

house and undisputed evidence that defendant nevertheless made calls from her 

telephone, the jury could reasonably infer that defendant killed Henderson to prevent her 

from talking to Ector. The investigator for the coroner’s office put the time of death at 

roughly 1:24 p.m., which was between the last call made from Henderson’s phone line

(the 1:11 p.m. call to Ector’s cell phone) and the resumed attempts by defendant to reach 

the junk car dealer that started at 1:29 p.m. The jury could reasonably believe the 

purpose of Henderson’s 1:11 p.m. call to Ector was to warn him about defendant’s plans 

to sell Ector’s truck, as the prosecution argued, or it may have simply been to ask for 

Ector’s help because she had found defendant on her property without her permission or 

because defendant was doing “mean things” to her again. But the motive to kill would be

the same in each scenario: the relationship between Henderson and defendant had 

become antagonistic, Henderson did not want defendant in the house and tried to contact 

Ector, and defendant acted to prevent Henderson from reaching Ector (or anyone else) by 

killing her.

b. Planning and the manner of killing

Under the remaining two Anderson factors, we consider whether there is evidence 

of planning activity that reveals a premeditated intention to kill and whether the manner 
19

of the killing is particular and exacting in a way that suggests an intention to kill 

according to a preconceived design. (Anderson, supra, 70 Cal.2d at pp. 26-27.)

The evidence of planning activity was quite minimal. There was no evidence, for 

example, that defendant brought the murder weapon, whatever it might have been, with 

him. (Compare People v. Young (2005) 34 Cal.4th 1149, 1183 [evidence of planned 

entry with a gun supports inference of plan to kill].) But that is not to say there was no 

evidence whatsoever. In People v. Tully (2012) 54 Cal.4th 952, our Supreme Court 

stated that a defendant’s care in eliminating his fingerprints from the victim’s residence 

was some evidence of planning activity. (Id. at p. 1008, fn. 24.) Here, there was no 

evidence that defendant eliminated fingerprints, but there was evidence that defendant 

took care to eliminate or remove other physical evidence. The testimony from the 

criminalists, the coroner’s investigator, and Ector, along with the exhibits admitted at 

trial, established that defendant dragged Henderson’s dead body to the patio, removed 

most of the clothing she was wearing at the time, positioned a hose so that water was 

running over her body, and used the house’s bathroom or the kitchen to wash her blood 

off him. Like the elimination of fingerprints in People v. Tully, the care taken by 

defendant to eliminate physical evidence gives rise to an inference that he was acting 

according to a plan to kill, not reacting to an unexpected or unconsidered state of affairs.

The manner in which defendant killed Henderson provides further evidence of 

premeditation. The coroner testified that Henderson was killed by blunt force trauma to 

her head. Defendant fractured the left side of Henderson’s skull and there were also other 

non-fatal injuries to Henderson’s head and face. By contrast, the rest of her body was 

nearly wound free, a point the prosecution highlighted during closing argument.

10

 Our 

 

10 There was a bruise on the back of Henderson’s left hand, but there was no 

testimony concerning the cause of that injury. There were also small bruises on 

Henderson’s arm and on her legs, but the medical examiner testified that those bruises 

were consistent with finger pressure.

During closing argument the prosecution called attention to the lack of other 

injuries: “He [the deputy medical examiner] tells you the cause of death is blunt-force 

trauma to the head. There are little to no injuries anywhere else on her body. There are 
20

Supreme Court has found blunt force injuries focused entirely on a victim’s head 

probative of premeditation and the jury could reach the same conclusion on the facts 

here. (People v. Cruz (1980) 26 Cal.3d 233, 245 [“[T]he killings [of the defendant’s wife 

and two child victims] by blows to only the head and by a shotgun blast in his wife’s face 

permit the jury to infer that the manner of killing was so particular and exacting that 

defendant must have killed intentionally according to a preconceived design and for a 

reason”]; see also People v. Hovey (1988) 44 Cal.3d 543, 556.)

To be sure, there is at least one case in which the court appeared to take a contrary 

view. (People v. Lucero (1988) 44 Cal.3d 1006, 1020 [strangulation of one victim was a 

deliberate manner of killing suggestive of premeditation but manner in which another 

victim was killed, multiple blows to the skull from a blunt object, “much less suggestive”

of premeditated murder].) In this case, however, there was evidence not just of 

defendant’s near-exclusive focus on Henderson’s head, but also of defendant’s demeanor 

near in time to when he attacked Henderson. Relying on the phone records and the 

testimony from the coroner’s investigator, the jury could conclude that defendant killed 

Henderson around 1:30 p.m. Only two hours later, around 3:30 p.m., defendant 

encountered Ector outside 2115 Redondo and asked Ector to drive him to an ATM. On 

the way, defendant told Ector, “You have been in control and now I’m in control.” Ector 

also testified on cross-examination that defendant appeared very calm during the drive,

which was just two hours after defendant had killed Henderson, dragged her bleeding 

body outside, and taken steps consistent with an effort to wash away forensic evidence. 

From defendant’s demeanor shortly after the killing and the blows he inflicted only to 

Henderson’s head, the jury could infer his actions that caused her death were not the 

product of an unconsidered or rash impulse but the desired culmination of a preexisting 

intention. (People v. Lee (2011) 51 Cal.4th 620, 636 [manner of killing indicative of 

 

small bruises on her arm. There are small bruises on her leg. About the size of 

fingerprints. From being drug out of the house.”
21

premeditation where defendant was calm when shooting victim multiple times and 

continued to be “calm and collect[ed]” on the way home, after the victim’s death].)

3. Summary and Analysis of Prejudice

Viewing the record as a whole, we cannot say that the evidence at trial was so 

deficient as to preclude any rational trier of fact from concluding that defendant had 

committed a deliberate and premeditated murder. We have in this case the second 

scenario contemplated by the Raley court—evidence of motive combined with some 

evidence of planning and/or a manner of killing that is indicative of a preconceived plan 

to kill. That is not to say, however, the evidence of premeditation was strong. It wasn’t, 

and that weighs heavily in the analysis of prejudice we now undertake.

The jury had before it a legally inadequate theory of felony murder advanced by 

the prosecution and uncured by a correct jury instruction, as well as a legally adequate 

theory of premeditated murder. “When one of the theories presented to a jury is legally 

inadequate . . . the jury cannot reasonably be expected to divine its legal inadequacy. The 

jury may render a verdict on the basis of the legally invalid theory without realizing that, 

as a matter of law, its factual findings are insufficient to constitute the charged crime. In 

such circumstances, reversal generally is required unless ‘it is possible to determine from 

other portions of the verdict that the jury necessarily found the defendant guilty on a 

proper theory.’ [Citation.]” (People v. Perez (2005) 35 Cal.4th 1219, 1233; accord, 

Griffin v. United States (1991) 502 U.S. 46, 58-59; People v. Guiton (1993) 4 Cal.4th 

1116, 1121-1122 [“‘[W]hen the prosecution presents its case to the jury on alternate 

theories, some of which are legally correct and others legally incorrect, and the reviewing

court cannot determine from the record on which theory the ensuing general verdict of 

guilt rested, the conviction cannot stand,’” quoting People v. Green (1980), 27 Cal.3d 1]; 

People v. McDonald (2015) 238 Cal.App.4th 16, 27.) Our Supreme Court’s decision in 

People v. Chun, supra, 45 Cal.4th 1172 states that we must be able to conclude, beyond a 

reasonable doubt, that the jury based its verdict on the legally valid theory in order to find 

the error harmless. (Id. at p. 1203 [if other aspects of the jury’s verdict or the evidence 
22

leave no reasonable doubt that the jury made the findings necessary for the legally valid 

theory, the error is harmless]; see also People v. Chiu (2014) 59 Cal.4th 155, 167.)

Felony murder is the theory that the prosecution primarily emphasized when 

urging the jury to convict defendant of first degree murder. Understandably so, because 

that theory was the far easier of the two to prove, particularly with the prosecution’s

oversimplified definition of theft. The prosecutor described the deliberate and 

premeditated theory as an “alternate theory,” in contrast to the felony murder theory that 

was “automatically first degree”: “Is [defendant] guilty of first degree murder? Felony 

murder, yes. That’s pretty clear. Is he guilty of murder under an alternative theory? The 

judge gave you two instructions. . . . [¶] . . . [¶] To get to first degree without felony 

murder, you need willful, deliberate and premeditated.” As we have already explained, 

the case for premeditated murder was sufficient but not strong. Confronted with both a 

relatively weak theory of premeditated murder that would require carefully parsing the 

evidence and drawing multiple inferences, and an apparently stronger (albeit legally 

inadequate) felony murder theory that would “automatically” justify a first degree 

finding, we are convinced the jury likely opted for the straightforward theory and not the 

one that respondent acknowledges was “far from overwhelming.” Although we 

recognize the danger that generally inheres in drawing conclusions based on the amount 

of time a jury deliberates, we believe the short amount of time the jury was out here—

two and a half hours before lunch and one hour after—is some further indication that the 

jury arrived at its decision based on the less complicated felony murder theory rather than 

the weaker and more complicated premeditated murder theory.

We therefore hold reversal is required under the circumstances. There is nothing 

about the jury’s guilty verdicts here, as there was in People v. Chun, supra, 45 Cal.4th at 

p. 1205, that would allow us to reliably conclude the jury rendered its first degree murder 

finding on a legally valid theory.11

 

11 We certainly have no basis to conclude beyond a reasonable doubt that the jury 

based its verdict on the premeditated murder theory. Moreover, on this record, we would 
23

II

Instruction on Alternative Murder Theories (CALCRIM No. 548)

In a supplemental brief, defendant contends that the first degree murder conviction 

must also be reversed because the trial court’s decision to instruct the jury with 

CALCRIM No. 548 on alternate theories of murder was error. The instruction informed 

the jury that it did not need to agree on the same theory of murder in order to convict the 

defendant. Defendant contends jurors may have understood this instruction to permit 

them to convict defendant of first degree murder even though some jurors believed he 

committed only second degree murder. Since we have found the first degree murder 

finding must be reversed, we do not reach this claim.

III

Lesser Included Instruction on Involuntary Manslaughter

Defendant contends the trial court had a sua sponte duty to instruct the jury on the 

lesser included offense of involuntary manslaughter and that the court’s failure violated 

his federal constitutional rights to due process and a fair trial. 

“Instruction on a lesser included offense is required . . . when the record contains 

substantial evidence of the lesser offense, that is, evidence from which the jury could 

reasonably doubt whether one or more of the charged offense’s elements was proven, but 

find all the elements of the included offense proven beyond a reasonable doubt. (People 

 

reach the same result—the conclusion that the first degree murder finding was infected 

by prejudicial error—even if we employed the more permissive standard for 

harmlessness that applies when a court confronts a factually inadequate, rather than a 

legally inadequate, theory of guilt. (People v. Guiton, supra, 4 Cal.4th at p. 1130 [“[T]he 

appellate court should affirm the judgment unless a review of the entire record 

affirmatively demonstrates a reasonable probability that the jury in fact found the 

defendant guilty solely on the unsupported theory”]; cf. People v. Poindexter (2006) 144 

Cal.App.4th 572, 586-587 [affirming conviction where prosecutor spent more time in 

closing arguing the valid premeditation theory of murder and jury deliberated for one full 

day and an hour the next day before returning its verdict].)
24

v. Hughes (2002) 27 Cal.4th 287, 365; People v. Breverman (1998) 19 Cal.4th 142, 

162.)” (People v. Moore (2011) 51 Cal.4th 386, 408-409.)

“Involuntary manslaughter is a lesser offense of murder, distinguished by its mens 

rea. (People v. Rios (2000) 23 Cal.4th 450, 460.)” (People v. Butler (2010) 187 

Cal.App.4th 998, 1006.) “[T]here are three types of acts that can underlie commission of 

involuntary manslaughter: a misdemeanor, a lawful act, or a noninherently dangerous 

felony. (See [People v. Garcia (2008) 162 Cal.App.4th 18, 27-29].) . . . [F]or all three 

types of predicate acts the required mens rea is criminal negligence.” (Ibid.) 

“If a defendant commits an act endangering human life, without realizing the risk 

involved, the defendant has acted with criminal negligence. By contrast where the 

defendant realizes and then acts in total disregard of the danger, the defendant is guilty of 

murder based on implied malice.” (People v. Guillen (2014) 227 Cal.App.4th 934, 

1027.) Criminal negligence is judged under an objective standard. Thus, a person acts 

with criminal negligence when he “acts in a reckless way that creates a high risk of death 

or great bodily injury” and a “reasonable person would have known that acting in that 

way would create such a risk.” (CALCRIM No. 580.) 

Defendant argues this case involves the first of these predicate acts. He contends 

“gaps in the evidence left considerable room for reasonable doubt that the offense 

committed was murder, and shows nothing more than a simple battery.” We are not 

persuaded. We have already reviewed, ante, the evidence that demonstrates defendant’s 

crime was far more than a simple battery. The injuries and the force required to produce 

such injuries was necessarily extreme force, likely to cause great bodily injury. (See 

People v. Covino (1980) 100 Cal.App.3d 660, 667 [nature and extent of any injury 

inflicted is a relevant and often controlling factor in determining if force used was likely 

to cause great bodily injury].) Thus, defendant committed a serious felony rather than a 

simple misdemeanor battery. (See People v. Moore (1992) 10 Cal.App.4th 1868, 1871 

[battery causing serious bodily injury is a serious felony, within the meaning of section 

1192.7, subdivision (c)(8)].) 
25

Further, the evidence, especially the photos of the blood spatter, is not consistent 

with the hypothetical scenario defendant offers on appeal: that he pushed Henderson and 

she fell and hit her head. Nor was there any substantial evidence at trial offered by the 

defense (or prosecution) to suggest such a scenario occurred. Moreover, we have also 

already detailed the evidence, particularly the evidence as to motive, that allowed the jury 

to infer defendant intended to kill Henderson when using such force. 

Because the jury could not reasonably have found that defendant committed 

involuntary manslaughter but not murder, the trial court did not err in failing to instruct 

the jury on involuntary manslaughter.

IV

Prior Alabama conviction

The trial court found true the allegation that defendant had suffered a conviction in 

Alabama which qualified as a prior serious felony conviction within the meaning of 

section 667, subdivision (a), and the Three Strikes law (sections 667, subdivisions (b) 

through (i) and 1170.12). The court sentenced defendant to a total term of 59 years to life 

in state prison, consisting of a term of 25 years to life in state prison for the murder 

conviction, doubled to 50 years to life pursuant to the Three Strikes law, plus a five-year 

enhancement term pursuant to section 667, subdivision (a), plus a two-year term for the 

theft conviction, doubled to four years pursuant to the Three Strikes law. 

Defendant contends and respondent agrees that the prosecution presented 

insufficient evidence from which the court could find that this prior conviction for 

robbery in Alabama was a strike or serious felony conviction under California law. We 

reach the same conclusion.

A prior conviction from another jurisdiction qualifies as a strike if the out of state 

conviction includes all the elements of a strike offense in California. (§ 667, subd. 

(d)(2).) To determine if the prior conviction so qualifies, the trier of fact “may ‘look 

beyond the judgment to the entire record of the conviction’ . . . ‘but no further.’” (People 

v. Trujillo (2006) 40 Cal.4th 165, 177.) The record of conviction consists of matters in 
26

the record that establish the facts of the offense for which the defendant was convicted. 

(Id. at pp. 179-180 [statements in post-guilty plea probation report not part of record of 

conviction].) 

Defendant’s prior conviction was for first-degree robbery in violation of Alabama 

Code, title 13A, section 13A-8-41 (1975). That statute incorporates the elements of thirddegree robbery under 13A-8-43, and further requires either that a defendant be armed 

with a deadly weapon or dangerous instrument or that the defendant cause serious 

physical injury to another. Our Supreme Court has noted at least one distinction between 

the underlying third-degree robbery statute in Alabama and the California robbery statute, 

section 211. (People v. Nguyen (2000) 24 Cal.4th 756, 763, fn. 4 [California robbery 

statute requires the property to be taken “from the possession” of the victim].) Thus, the 

mere fact of a conviction for robbery in Alabama does not establish all of the elements of 

robbery in California. The prosecution was required to show through the record of the 

Alabama conviction that the Alabama robbery contained all of the elements of a robbery 

in California. (People v. Saez (2015) 237 Cal.App.4th 1177.) 

That did not happen here; all that was presented was an Alabama document 

similar to a California probation report. The trial court erred in relying on the factual 

summary in the report. The trial court’s true finding on the prior conviction allegation is 

reversed, and the matter is remanded for a retrial on the allegation or, if the People elect 

not to retry the allegation, for resentencing. (People v. Monge (1997) 16 Cal.4th 826, 843 

[“federal double jeopardy clause does not apply to the trial of the prior conviction 

allegation”].)
27

DISPOSITION

The conviction for first degree murder is reversed and the matter is remanded for a 

new trial. Unless the People bring defendant to trial within the term prescribed by law 

after issuance of the remittitur, the trial court shall proceed as though the judgment on 

appeal had been reduced on count one to second degree murder.

The judgment is reversed as to the true finding on the prior conviction allegation 

arising out of defendant’s Alabama robbery conviction and the matter is remanded to the 

trial court for further proceedings consistent with this opinion.

The conviction on count two of the information is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

I concur:

TURNER, P.J.
The People v. Deryke Lawrence

B259517

MOSK, J., Concurring

I concur.

I concur in the result. I do not believe there is sufficient evidence of premeditation 

and deliberation. The prosecutor’s theory was based only on speculation. The inferences 

used to support premeditation and deliberation are consistent with second degree murder. 

MOSK, J.