People v. Asher (273 Cal. App. 2d 876, 1969)

SIMS, J.

William Walter Asher, Victor Franklin Carrafa and William Henry Williams have each appealed from separate judgments of conviction of murder of the first degree, sentencing them to state prison, with varying prior convictions. The judgments were entered after a bifurcated jury trial in which the jury found each defendant guilty of the murder in the first degree of John Kammeyer on December 8,1960, and fixed the penalty at life imprisonment.

The uncontradieted evidence shows that Kammeyer, the manager of a bar, was fatally shot by Williams, and that the three defendants robbed the bar and its patrons. The evidence was conflicting as to whether the intent to rob the establishment was formulated before or after the shooting. Evidence also was introduced to show that Williams was incapable of harboring malice aforethought or the intent to kill or rob because of mental disease, defect and intoxication. Insofar as is material the evidence on these issues is referred to below.

Each of the defendants contends (1) that the evidence is insufficient to sustain the verdicts and judgments, (2) that the court erred in failing to give instructions on manslaughter, and (3) that the court erred in failing to submit separately to the jury the question of whether any defendant could be found guilty of robbery as a lesser included offense. (4) Carrafa and Williams additionally claim that the court’s instructions on the effect of intoxication were erroneous, and (5) that the court erred in admitting evidence of their commission of an earlier offense. (6) Carrafa and Asher each assert error in the findings concerning their respective prior convictions, and (7) Asher complains of irregularities in connection with the hearing and denial of his motion for a new trial.

An examination of these contentions reveals that with, the exception of an error in the designation of a prior conviction found to have been suffered by Asher, there is no prejudicial error in the record, and the judgments must be affirmed with the exception of the finding that Asher suffered a prior felony conviction.

Sufficiency of the Evidence

“Under the felony-murder rule of section 189 of the Penal Code, a killing committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under section 288 is murder of the first degree. This is true whether the killing is wilful, deliberate, and premeditated or merely accidental and whether or not the killing is planned as a part of the commission of the robbery. [Citations.]” (Peoples v. Lookadoo (1967) 66 Cal.2d 307, 314 [57 Cal.Rptr. 608, 425 P.2d 208], See also People v. Willingham (1969) 271 Cal.App.2d 562, 575 [76 Cal.Rptr. 760]; People v. Baglin (1969) 271 Cal.App.2d 411, 416 [76 Cal.Rptr. 863]; People V. Lilliock (1968) 265 Cal.App.2d 419, 431 [71 Cal.Rptr. 434]; People v. Chapman (1968) 261 Cal.App.2d 149, 165 [67 Cal.Rptr. 601]; People v. Fortman (1967) 257 Cal.App.2d 45, 51 and 55 [64 Cal.Rptr. 669]; and People v. Sievers (1967) 255 Cal.App.2d 34, 38-39 [62 Cal.Rptr. 841].)

The testimony shows that the defendants entered the bar about 7 or 7:30 p.m. and first occupied and thereafter spent most of their time in the vicinity of three bar stools at the far end of the bar, away from the entrance and near the rest rooms and rear office. They drank, conversed with other patrons in the bar, moved about the bar, occasionally left the premises and returned, displayed large amounts of cash in big denominations, and shook dice for drinks and music. They ordered mixed drinks, and notwithstanding the duration of their stay, none of them appeared to be intoxicated. The bartender noticed that they appeared nervous. He thought they might do something, and called a friend to come over.

The manager and the owner, who had left the bar together earlier in the evening, returned around 10:30 p.m. or sometime earlier. At the bartender’s request Kammeyer went to the safe in the back office and got some change. After this transaction had been completed one of the defendants asked him if he wanted to shake dice for $100. Kammeyer declined saying he only had $20 of his own money. The bartender heard the manager call the defendants “punks” or “bums” when he was urged to roll the dice. Kammeyer also got into an argument with a patron about a loan. During this altercation the defendants impliedly advised the bartender that they would assist him if he needed help in quieting the altercation. According to the bartender, by 11 o’clock things had quieted down and there was no contact between Kammeyer and any of the defendants after the earlier incident.

At almost the stroke of midnight the defendants opened their coats and withdrew weapons. Williams had a sawed-off shotgun which a patron recognized as a 12-gauge single barrel weapon. Asher and Carrafa had pistols. Williams said, ‘ ‘ This is a holdup. Don’t make a move, and don’t anybody do anything wrong. Put your hands on top of the bar.” Williams walked up to Kammeyer saying, “I’ll show you who to call a punk.” He put the shotgun in Kammeyer’s back, pressed the trigger and the weapon discharged. Kammeyer fell, mortally wounded.

The bartender heard Williams threaten to do the same to anyone who interfered “because you only die once.” Then, apparently to the dying Kammeyer, Williams said, “You didn’t know who you were fooling with, Baby. ’ ’

The owner moved to help Kammeyer but Williams told her to get back. A voice said, “What did you do that for?” Two patrons thought they heard the owner and the bartender say these words. The bartender thought they came from Carrafa. Williams replied, “I’m going to pay for this.” The defendants each cautioned the patrons, “Everybody keep still. Nobody else will get shot. ’ ’

The bartender and the owner heard the announced holdup before Williams shot Kammeyer. Other patrons who testified were apparently unaware of what was happening until their thoughts or conversations were interrupted by the blast of the shotgun.

Kammeyer was moaning, “I’m dying; I’m dying; I’ve been shot.” Williams demanded money from the bartender who complied by giving him bills and- checks, worth about $418. Williams then directed either Asher or Carrafa to empty the cash register of the change. Williams reloaded the shotgun and took a position guarding the entrance door. The bartender asked him if he wanted the front door closed and Williams replied, “No; leave the door open. We want the business operating as normal.”

Carrafa, gun in hand, emptied the cash register. Carrafa or Asher.then sa.id, “Let’s get that safe open." Williams told the bartender that he picked “The New Hearth” for the robbery because they had been there on Friday night and had seen the receipts, which they thought by Sunday would total some $1,200-$!,500.

Asher, armed with a pistol, pulled the owner back toward the office where the safe was located. She did not have a key to the office door and Asher broke down the door. Asher said that they expected to find $2,000 in the safe. The owner explained that she did not know how to open the safe. She. tried to open it while Asher and Carrafa moved in and out of the office. Both also worked on the safe.

About five minutes later, Asher and Carrafa came out and dragged the bleeding and moaning Kammeyer into the office. As they did so they abused him. Asher kicked him in the ribs ; Carrafa kicked him in the stomach. Inside the office Kammeyer, barely conscious, tried to give them the combination. He was kicked and shoved. The bartender went in and offered to help. Kammeyer gave numbers but the bartender could not get the safe open. The owner pleaded that Kammeyer was bleeding to death. Asher replied, “I know. That punk is trigger-happy. He’s going to be sorry he did this.” Picking up some rubber gloves, he wiped off the safe and the combination dial.

During and after the attempt to open the safe the patrons in the bar were systematically robbed. Williams continued to guard the door and had also armed himself with a “cutting knife.” The bartender told Williams that the police often came in and Williams replied, “From where I am standing I will blow a hole in their back[s]. They won’t have half a chance. I hope they do come in. ” A patron heard him express the same hope, adding, ‘ ‘ I would just like to smoke me one of them.” The same patron fearing that Williams would shoot the first person to enter, exclaimed that a friend was due to arrive. Asher, pointing a gun at the patron’s head, came up and hit him over the head, knocking him off the bar stool.

At about 12:15 a lady called the bartender and Williams answered the telephone. Williams told her that the bartender had gone out for a sandwich. About 15 minutes later she entered the bar only to be grabbed by Williams. The bartender yelled, “That is my wife.” Asher, coming out of the rear office, told Williams to leave her alone.

A patron stepped in at about 12:30 a.m. and he also was jumped by Williams. He was told to put his wallet on the bar “or you’re dead.” Asher, holding a gun, came up and kicked him in the groin. A second customer who came in at 12:45 a.m. to keep his appointment with a patron, received similar treatment.

Williams ordered the bartender to mix drinks for the customers which was done. Later Carrafa told the bartender to wash all the glasses. Then the bartender was directed to break all the glasses which he and the defendants proceeded to do. The defendants, of course, had been handling glasses during the evening. The telephones were ripped out of the bar and the back office.

The defendants left about 1 a.m. Williams warned the victims not to call for help, “We’ll have a man with a 30-30 Savage waiting across the street covering the door.” One of the defendants said, “Just tell them [the police] three niggers held us up. ’ ’

There is no- lack of substantial evidence to sustain the charge. (See People v. Teale (1965) 63 Cal.2d 178, 187 [45 Cal.Rptr. 729, 404 P.2d 209] [reversed on other grounds Chapman v. California (1966) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]] ; People v. Robillard (1960) 55 Cal.2d 88, 93 [10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086]; People v Baker (1954) 42 Cal.2d 550, 563 [268 P.2d 705]; People v. Willingham, supra, 271 Cal.App.2d 562, 570-571; Peoples v. Chapman, supra, 261 Cal.App.2d 149, 160-161; and People v. Fortman, supra, 257 Cal.App.2d 45, 52.)

Defendants’ attack is predicated on the premise that the evidence compels the conclusion that the killing arose solely out of Williams’ mental illness, intoxication, use of drugs and passion and anger at being called a “punk” by the victim. If such were the case and the killing preceded, or was not in furtherance of the robbery, the felony-murder rule would not be applicable to Williams.

In People v. Washington (1965) 62 Cal.2d 777 [44 Cal.Rptr. 442, 402 P.2d 130], the opinion observed and ruled, “The felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. [Citations.] Although it is the law in this state (Pen. Code, §189), it should not be extended beyond any rational function that it is designed to serve. Accordingly, for a defendant to be guilty of murder under the felony-murder rule the act of killing must be committed by the defendant or by his accomplice acting in furtherance of their common design. [Citations.] ” (62 Cal.2d at p. 783.) In People v. Schader (1965) 62 Cal.2d 716 [44 Cal.Rptr. 193, 401 P.2d 665] the court hypothesized, “If Schader did not know that the robbery had occurred or that the police officer was seeking to apprehend either Turner or himself for a robbery, Schader at the time of the killing was not perpetrating or attempting to perpetrate a robbery. If such were the case, it is immaterial, insofar as the felony-murder doctrine is concerned, that Turner had just committed a robbery for which Schader would be liable as a coconspirator or that Schader would also have been guilty of first degree murder if Turner had killed in the commission of the robbery.

“If Schader’s testimony is believed, the killing he committed had no relationship to the planned robbery except that it occurred during the time of the conspiracy’s existence. The killing was not committed in the perpetration of the robbery, just as it would not have been so committed if Schader had killed at a different time and place accidentally or for a purpose personal to himself while, unknown to him, a eoconspirator was engaged in a previously planned robbery.” (62 Cal.2d at pp. 731-732. See also People v. Ford (1966) 65 Cal.2d 41, 55-57 [52 Cal.Rptr. 228, 416 P.2d 132]; People v. Gilbert (1965) 63 Cal.2d 690, 705 [47 Cal.Rptr. 909, 408 P.2d 365]; People v. Jeter (1964) 60 Cal.2d 671, 675 [36 Cal.Rptr. 323, 388 P.2d 355]; and People v. Carnine (1953) 41 Cal.2d 384,388 [260 P.2d 16].)

By the same token, if the killing were not in furtherance of the robbery, the defendants Asher and Carrafa cannot be charged vicariously as accomplices. In People v. Gilbert, supra, 63 Cal.2d 690, the following principles are found among those that may be invoked to convict a defendant of first degree murder for a killing committed by another. “ (3) Vicarious criminal liability. Under the rules defining principals and criminal conspiracies, the defendant may be guilty of murder for a killing attributable to the act of his accomplice. To be so guilty, however, the accomplice must cause the death of another human being by an act committed in furtherance of the common design. (People v. Schader, 62 Cal.2d 716, 731 . . . ; People v. Boss, 210 Cal. 245, 249 . . . ; People v. Ferlin, 203 Cal. 587, 597 . . .)

“(4) The application of Penal Code section 189. When murder is established under Penal Code sections 187 and 188 pursuant to the principles defined above, section 189 may properly be invoked to determine the degree of that murder. Thus, even though malice aforethought may not be implied under section 189 to make a killing murder unless the defendant or his accomplice commits the killing in the perpetration of an inherently dangerous felony (People v. Washington, 62 Cal.2d 777, 780-783 . . . ; People v. Ford, 60 Cal.2d 772, 795 . . .), when a murder is otherwise established, section 189 may be invoked to determine its degree.” (63 Cal.2d at p. 705. In addition to cases cited, see People v. Jeter, supra, 60 Cal.2d at p. 676.)

Asher and Carrafa each testified that there was no plan or intent to rob the bar; that Williams shot Kammeyer as a result of an altercation; and that each only joined in the robbery because of fear of Williams. They revealed that Asher’s girl friend, a minor, had been left in their car in a parking lot during the entire evening. Williams did not remember taking the shotgun into “The New Hearth,” but did recollect being served, to his dissatisfaction, strong drinks in the bar. When the “explosion” occurred he discovered the shotgun in his hands. He. did not remember anything else that happened. On cross-examination, he admitted a prior felony conviction.

In addition to the evidence which has been summarized above concerning the epithet directed at Williams or at the defendants collectively by Kammeyer, the defendants rely upon testimony concerning Williams’ past history, and expert testimony concerning his mental state. They point to evidence which indicates that Williams was an alcoholic, suffering from sclerosis of the liver, that prior to going to the bar on the day of the killing, Williams had eaten nothing and had been drinking throughout the day, that arriving at the bar, he drank steadily for a period of some five hours and may have consumed as many as three to six drinks per hour, and that he was mentally ill, a sociopath, that he directed his rage and hostility toward persons of authority, that to Williams, the victim, a bar manager, represented a person of authority.

Doctors David R. Kessler, James Mickles, Roland Levy, and Henry R. Werdeg-ar, psychiatrists, examined appellant Williams in April and May 1967. Each doctor spent between one and two hours with defendant.

The testimony of Dr. Werdegar indicated that Williams harbored neither malice aforethought nor intent to kill or rob. The doctor testified that appellant could not consider, reflect, or weigh the rightness or wrongness, advantages or disadvantages, implications or consequences of his actions. As a result of mental illness, he suffered a severely handicapped capacity to premeditate or to form any reasoned intent to commit any complex act. He lacked substantial capacity to form intent to commit murder or robbery. Dr. Werdegar also testified that the defendant shot Kammeyer because Kammeyer represented an authority figure who had provoked him, and that the shooting was not in furtherance of the robbery.

Dr. Mickle testified that while defendant could have carried on purposeful conduct at the time of the robbery the shooting was the acting out of a behavioral pattern, rather than an act done as part of a robbery. Williams’ rages and hostilities were usually directed toward persons in positions of authority ; the bartender, bar manager (the victim) the bar owner represented persons of authority to him; and the shooting of such an individual would be consistent with defendant’s pattern of expressing his hostility to persons in authority. Further, Williams was suffering from a severe sociopathie personality disorder.

Dr. Levy testified that Williams suffered from a sociopathie personality disorder and acted before he thought, and that his use of alcohol and drugs would further aggravate his violent tendencies and impair even further his rather poor controls. While defendant did have the ability to form specific intent to steal, the shooting occurred not as part of a robbery scheme but rather as the result of the earlier altercation between Williams and the victim.

Dr. Kessler testified that Williams’ ability to conform his actions to law-abiding behavior was likely to have been impaired by his intoxication. While Williams could have had intent to rob, it is entirely speculative as to whether he did have such intent.

Dr. Walter Kapaport, a psychiatrist, reviewed the reports of Doctors Levy, Mickles and Werdegar, as well as the grand jury transcript. He further revieAved the transcribed testimony of the aforementioned doctors and that of Dr. Kessler. He did not examine Williams. He reached the opinion that Williams did have the mental capacity to form an intent to rob.

Defendants contend that the conclusion they urge is also supported by the testimony of three witnesses who, in contrast to the bartender and owner, did not hear any mention of a holdup until after the shot. It is equally probable that these patrons were engrossed in their own affairs until startled by the shot. They allege that the killing of the only person who could open the safe could not be in furtherance of the robbery. However, there is nothing to indicate that any of the defendants knew that the manager was the only one who had the combination to the safe. They also point out that the remark attributed to Williams by the bartender, “I’ll show you who to call a punk, ’ ’ supports the views of their experts.

The court instructed the jury fully concerning the prosecution’s burden to establish that the killing was in furtherance of a conspiracy to rob within the principles enunciated in the eases cited above. The court’s instructions concerning diminished capacity are discussed below.

The evidence upon which. the defendants rely merely created a conflict which the jury resolved under proper instructions. The joint action of the defendants at the time of the shooting, and their subsequent conduct were circumstances from which the jury could infer a planned conspiracy to. rob the bar and its patrons. The testimony concerning the acts of Williams before and after the shooting contradicted his testimony of a blackout. The inane shooting of Kammeyer was not necessarily completely detached from the robbery. As noted in People v. Schader, supra, “the fact that the killing occurred in such close proximity in time and space to the robbery easts doubts on the truth of Schader’s testimony that they were unrelated.” (62 Cal.2d at p. 732.) It was a gruesome example to the others present of the consequences that would result from noncooperation. The fact that Williams acted from pique in selecting a victim does not lessen the responsibility of his accomplices if the shooting was also motivated by an intent to further the robbery. Even if Asher and Carrafa (although armed themselves) did not intend that life should be taken in the perpetration of the robbery, or forbade Williams to kill, or regretted his acts, they cannot relieve themselves of responsibility for the homicide committed by their associate in furtherance of the common purpose to rob. (People v. Lawrence (1904) 143 Cal. 148, 157 [76 P. 893, 68 L.R.A. 193].)

“It is the trier of fact, not the appellate court, that must be convinced of a defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Love, 53 Cal.2d 843, 850 . . . ; People v. Newland, 15 Cal.2d 678, 680 . . . ; People v. Daugherty, 40 Cal.2d 876, 885 . . .)” (People v. Robillard, supra, 55 Cal.2d 88, 93. See also People v. Hillery (1965) 62 Cal.2d 692, 702-703 [44 Cal.Rptr. 30, 401 P.2d 382]; People v. Lawrence, supra, 143 Cal. 148,154; People v. Chapman, supra, 261 Cal.App.2d 149,161; and People v. Fortman, supra, 257 Cal.App.2d 45, 52.)

Defendants’ attack on the sufficiency of the evidence cannot be sustained.

Instructions on Manslaughter

In instructing the jury the court defined “homicide” (see CALJIC (1967 Cum. Pocket Part) No. 300 (New)), first and second degree murder as set forth in section 189 of the Penal Code, with the deletion of reference to felonies other than robbery (see CALJIC (rev. ed. 1958) No. 302-A), robbery (see id. No. 210), the intent and asportation necessary for the theft included in robbery (see id., Nos. 221 and 222), ajnd conspiracy (see op.cit. (1967 Cum. Pocket Part) No. 931 (Rev.)). An instruction similar to those found in CALJIC was given concerning the responsibility of one confederate for a murder committed by another (cf. (rev. ed. 1958) No. 317 and No. 317A). The jurors’ attention was again directed to the requirement of a specific intent to permanently deprive the owner of his property as an element of the crime of robbery, or the crime of murder committed in the perpetration or attempt to perpetrate robbery (cf. Committee on CALJIC 11/ 14/68, No. 210 (Rev.)). An instruction was given on the sufficiency of circumstantial evidence to prove the intent to rob. This instruction contained an admonition that the acting defendant had to have the specific intent to rob prior to the firing of the fatal shot (cf. op.cit. (1967 Cum. Pocket Part) No. 27-A (New)). A further instruction predicated on CALJIC No. 26 (Rev.) (1967 Cum. Pocket Part) correctly instructed the jury on the requirements of proof by circumstantial evidence of the issues of intent to rob and the entry into a prior conspiracy to rob. On behalf of Asher and Carrafa an instruction was given on the effect of threats and menace in connection with their aiding or abetting the robbery (cf. id., No. 71-F (Rev.)). There followed the instructions referred to above. (See fn. 2, supra.)

Having so charged the jury with respect to the felony-murder and conspiracy theories, the court gave further instructions on homicide which it designated as applicable to Williams. One instruction was given on diminished capacity to form the requisite intent for robbery, and one on diminished capacity to premeditate or harbor malice. An instruetioto.' to resolve any doubt as to the degree in favor of the lesser degree (see CALJIC (1958 rev. ed. ) No. 305-A) was followed by instructions reiterating the necessity for the capacity to form the specific intent to rob, and the requirement that killing be in the perpetration, furtherance or cause of the robbery. The jurors’ attention was directed to an alternative theory of a wilful, deliberate and premeditated killing, and instructions were given defining murder and malice (id., No. 301 (Rev.)), and premeditation (id., No. 303 (Rev.)). An instruction on murder of the second degree (id., No. 305 (Rev.); cf. Committee on CALJIC 12/27/68, No. 305 (Re-revised), 305.01 (New), and, particularly 305.02 (New)) set forth as a third type of murder of the second degree (felony-second degree murder), “when the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life, such as thé possession of a firearm by a person who has been convicted of a felony, which is expressly prohibited by Section 12012 of the Penal Code. ’ ’

The foregoing instructions were followed by an instruction on intoxication in the language of section 22 of the Penal Code, and the jurors were expressly admonished to consider the evidence of intoxication on the issue of intent. The court continued by substantially repeating the final sentence of the instruction it had already given on diminished capacity (see fn. 4, supra), and setting forth again the requirements of premeditated murder of the first degree. It then repeated at length the instruction it had given on diminished capacity with respect to non-felony murder (see fn. 4, supra), and followed it with a second instruction on the effect of diminished capacity on the “ability to form the specific mental state that is an essential element of robbery.”

Defendant Williams offered instructions which defined manslaughter, voluntary manslaughter, and which directed the jury to find manslaughter rather than murder in the event of a reasonable doubt as to whether an established homicide was murder or manslaughter. These instructions were rejected by the court.

In People v. Carmen (1951) 36 Cal.2d 768 [228 P.2d 281], the opinion adopted with approval the following passage from People v. Burns (1948) 88 Cal.App.2d 867, 871 [200 P.2d 134] : “It is. elementary that the court should instruct the jury upon eyery material question upon which there is any evidence deserving of any consideration whatever. [Citations.] The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. [Citations.] That is a question within the exclusive province of the jury. However incredible the testimony of a defendant may be he„-is entitled to an instruction based upon the hypothesis that it is entirely true. [Citations.] ” (36 Cal.2d at p. 773. See also, People v. Castillo (1969) 70 Cal.2d 264, 270-271 [74 Cal.Rptr. 385, 449 P.2d 449]; People v. Wilson (1967) 66 Cal.2d 749, 759 and 762-763 [59 Cal.Rptr. 156, 427 P.2d 820]; People v. Conley (1966) 64 Cal.2d 310, 319 [49 Cal.Rptr. 815, 411 P.2d 911] ; People v. Schader, supra, 62 Cal.2d 716, 731-732; People v. Jeter, supra, 60 Cal.2d 671, 674; People v. Modesto (1963) 59 Cal.2d 722, 729 [31 Cal.Rptr. 225, 382 P.2d 33]; People v. Miller (1962) 57 Cal.2d 821, 829-830 [22 Cal.Rptr. 465, 372 P.2d 397] ; People v. Baker (1954) 42 Cal.2d 550, 576 [268 P.2d 705]; People v. Ray (1967) 252 Cal.App.2d 932, 967-971 [61 Cal.Rptr. 1] (cert., denied (1968) 393 U.S. 864 [21 L.Ed.2d 132, 89 S.Ct. 145]); People v. Hudgins (1967) 252 Cal.App.2d 174, 179-181 [60 Cal.Rptr. 176] (cert, denied (1968) 390 U.S. 965 [19 L.Ed.2d 1167, 88 S.Ct. 1073]); and see Pen. Code, § 1093, subd. 6.)

Williams claims that the failure to give his proffered instructions on manslaughter violated the foregoing principle and constitutes prejudicial error requiring a reversal. Asher and Carrafa assert that any error by which the jury was prevented from finding Williams guilty of a lesser offense taints the vicarious criminal liability which was imposed on them. (See People v. Schader, supra, 62 Cal.2d 716, 732; and People v. Jeter, supra, 60 Cal.2d 671, 676.)

In People v. Jeter, supra, as in this case, the perpetrator of the homicide and his companion fled with property of the victim. In fact, their convictions of robbery were affirmed. There was, however, a conflict in the evidence as to whether the fatal shot was fired during the perpetration of a robbery, or as a result of a scuffle arising out of an argument. The court observed, “The crime, if any, could have been second degree murder if the jury found that Jeter fired the first shot with malice aforethought but without wilfulness, deliberation, or premeditation [citations], or it could have been manslaughter if the jury found that, the shooting was done without malice upon a sudden quarrel or in the heat of passion. [Citations.] ” (60 Cal.2d at p. 675.) The court ruled, “. . . the issues of second degree murder and manslaughter are squarely posed, and it was prejudicial error not to instruct thereon. ’ ’ (Id., p. 676. See also People v. Carmen, supra, 36 Cal.2d 768, 773-774; and cf. People v. Hudgins, supra, 252 Cal.App.2d 174,181.)

It is questionable whether the evidence in this case would support a finding that the homicide was committed “upon a sudden quarrel or heat of passion.” (See Pen. Code, § 192, subd. 1.) The evidence concerning the time which elapsed between Kammeyer’s remark to Williams and his companions, and the fatal shooting is conflicting. Nevertheless, both men had returned to their respective stools at opposite ends of the bar, and no scuffle ensued. The subsequent shooting was entirely without warning, and ostensibly deliberate. On these circumstances alone, it was proper to refuse an instruction, on ordinary manslaughter. (People v. Hudgins, supra, 252 Cal.App.2d at p. 181.)

The defendants do not seriously contend that the homicide falls within the definition of manslaughter in the proffered.instructions. They urge that the issue raised by the evidence of Williams’ diminished capacity necessitated further instructions on manslaughter. In People v. Aubrey (1967) 253 Cal.App.2d 912 [61 Cal.Rptr. 772], the court observed, “What the Conley opinion [People v. Conley (1966) 64 Cal.2d 310 (49 Cal.Rptr. 815, 411 P.2d 911)] teaches is that there is a type of voluntary manslaughter which does not come within any of the three definitions found in Penal Code section 192. . . . The nonstatutory voluntary manslaughter is a homicide which may be intentional, voluntary, deliberate, premeditated, and unprovoked. It differs from murder in that the element of malice has been rebutted by a showing that the defendant’s mental capacity was reduced by mental illness, mental defect or intoxication.” (253 Cal.App.2d at p. 919, quoted with approval in People v. Castillo, supra, 70 Cal.2d at p. 270. See also, People v. Conley, supra, 64 Cal.2d at p. 318; People v. Gorshen (1959) 51 Cal.2d 716, 733-734 [336 P.2d 492]; People v. Baker, supra, 42 Cal.2d 550, 569; People v. Conley (1968) 268 Cal.App.2d 47, 51-52 [73 Cal.Rptr. 673]; and People v. Waters (1968) 266 Cal.App.2d 116, 120-122 [71 Cal.Rptr. 863].)

The failure of a defendant to request an instruction on the type of voluntary manslaughter which has been developed out of the doctrine of diminished capacity will not relieve the trial court of the duty to give such an instruction where it is warranted by the evidence, nor will it preclude the defendant from raising the point on appeal. (People v. Castillo, supra, 70 Cal.2d 264, 271, fn. 5; People v. Wilson, supra, 66 Cal.2d 749, 759-760; People v. Ford, supra, 65 Cal.2d 41, 58, fn. 9; People v. Baker, supra, 42 Cal.2d 550, 576-577; cf. People v. Baglin, supra, 271 Cal.App.2d 411, 416-418.

In Castillo (see 70 Cal.2d at pp. 268-269), as in this case, there were instructions on diminished capacity (see fns. 3 and 4, supra), and instructions on second degree murder (CALJIC No. 305 (Rev.), supra). In each ease the jury found first degree murder. Logically it is difficult to find prejudice because of errors in instructions on an offense of lesser dignity than second degree murder, when the jury rejected the latter charge and found first degree murder. (See People v. Aubrey, supra, 253 Cal.App.2d at p. 919.) In Castillo, however, the court approved and applied (70 Cal.2d at p. 271) the doctrine enunciated in People v. Modesto, supra, as follows: “It is . . . settled that defendant’s right to a manslaughter instruction when there is evidence thereof precludes not only our weighing that evidence to determine the likelihood that a properly instructed jury would have found manslaughter, but also our attempting to determine how the failure to present the issue of manslaughter to the jury may or may not have influenced its choice between first and second degree murder. Since we do not know what effect an instruction that the jury could return a verdict of manslaughter would have had on its deliberations, we cannot conclude that it necessarily rejected the evidence of manslaughter. Defendant was entitled to a jury trial on all of the issues presented by the evidence, and that right he was denied.” (59 Cal.2d at p. 731. See also, People v. Wilson, supra, 66 Cal.2d 749, 764; People v. Conley, supra, 64 Cal.2d 310, 319-320; People v. Conley, supra, 268 Cal.App.2d 47, 52; People v. Coyne (1968) 263 Cal.App.2d 445, 450-451 [69 Cal.Rptr. 736] ; People v. Stephanson (1968) 259 Cal.App,2d 181, 184-188 and cf. 188-190 [66 Cal.Rptr. 155]; and People v. Bowers (1964) 229 Cal.App.2d 590, 598 [40 Cal.Rptr. 435].)

In the light of the principles enunciated in People v. Burns, supra, 88 Cal.App.2d 867, 871, and elucidated in People v. Carmen, supra, 36 Cal.2d 768, 773, the People’s arguments predicated upon the insufficiency of the evidence to show diminished capacity, or intoxication, cannot be sustained. There is some evidence deserving of consideration directed to these issues.

There are several factors, however, which distinguish this case from those discussed above. An analysis of the instructions reveals that the court deliberately removed the reference to manslaughter at the end of the instruction on diminished capacity (see fn. 4 supra), and refused to give the manslaughter instructions because the defendant Williams was an admitted felon in possession of a concealable firearm, in violation of section 12021 of the Penal Code. (See People v. McCullough (1963) 222 Cal.App.2d 712, 717 [35 Cal.Rptr. 591].) In People v. Robillard, supra, the court observed, “. . . at the time defendant was stopped by the officer he was on probation from felony convictions in both the state and the federal courts. Since possession of a concealed firearm by any person who has been previously convicted of a felony is also a felony in this state (Pen. Code, §12021), the death of the officer would also automatically be at least second degree murder on this theory.” (55 Cal.2d at p. 98. See also, People v. Ford, supra, 65 Cal.2d 41, 47; People v. Schader, supra, 62 Cal.2d 716, 732; and People v. Ford, supra, 60 Cal.2d 772, 795; but cf. People v. Dewberry (1959) 51 Cal.2d 548, 554 [334 P.2d 852] ; and People v. Lovato (1968) 258 Cal.App.2d 290, 294-296, and dissent pp. 299-301 [65 Cal.Rptr. 638].) The two Ford cases involved a question of diminished capacity because of the defendant’s intoxication. In response to the contention that it was error to refuse requested manslaughter instructions, the court stated in the second case, “As Justice Schauer pointed out, a homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen. Code, § 189) constitutes second degree murder. [Citation.]” (65 Cal.2d at pp. 57-58.)

Defendant seeks to come within the provisions of the caveat contained in a footnote in Ford reading as follows: “Of course, pursuant to the Conley rule, manslaughter instructions must be given notwithstanding the involvement of the felony-murder rule in those cases where there is any factual dispute as to whether the homicide was committed during the perpetration of a relevant felony or where the issue of diminished capacity or intoxication is raised as a defense to the felony charge as well as to the murder charge.” (Id. p. 58, fn. 9; and People v. Baglin, supra, 271 Cal.App.2d 411, 414-417.) In this case there was a factual dispute as to whether the homicide was committed during the perpetration of robbery, or whether the robbery independently followed the shooting. The jury was, as noted above, fully instructed on the principles necessary for the application of the felony-murder rule. There was no issue concerning the admitted violation of Penal Code section 12021, and the court properly concluded that the homicide, if not a felony-murder, was ‘ ‘ as a matter of law, at least murder in the second degree.” (See People v. Ford, supra, 65 Cal.2d at p. 58.) The issues of diminished capacity and intoxication (see infra) were raised as a defense to the robbery charge, and the jury was fully instructed on those issues. Penal Code section 12021 does not require any specific intent. (People v. Mendoza (1967) 251 Cal.App.2d 835, 842-843 [60 Cal.Rptr. 5]; People v. Nieto (1966 ) 247 Cal.App.2d 364, 368 [55 Cal.Rptr. 546]; People v. McCullough, supra, 222 Cal.App.2d 712, 717-718; People v. Vanderburg (1963) 214 Cal.App.2d 455, 462 [29 Cal.Rptr. 553]; People v. Gonzales (1925) 72 Cal.App. 626, 630 [237 P. 812].) Although an unknowing possession might relieve defendant of criminal responsibility (see People v. Gonzales, supra, at p. 631), Williams’ admissions under oath preclude such a finding in this case.

In People v. Lovato, supra, one opinion questions whether the application of the inherently dangerous felony-second degree murder principle should preclude a showing of diminished capacity (Stone, J., 258 Cal.App.2d at p. 299). Two justices concurred that the possession of a concealable weapon by an alien was not inherently dangerous in all cases, and did not preclude a finding of manslaughter. The second justice noted, ”... there is a clear, rational and logical distinction between the nature of the offense when committed by an ex-felon and when committed by an alien. An ex-felon by his felony conviction has demonstrated instability and a propensity for crime. Thus, there is a core of logic in the assumption that if such a person arms himself with a concealable weapon he commits a crime per se dangerous to human life.” (258 Cal.App.2d at pp. 295-296.) So in this case whether Williams knowingly armed himself to commit robbery or to settle any altercations in which he might become engaged, he was committing a felony inherently dangerous to human life, and should be bound by the consequences even though his capacity to form a specific intent was impaired by his mental condition, or voluntary intoxication, or use of drugs, or a combination of any of those factors. (See Pen. Code, § 22.)

Even though it were error to fail to give an instruction on manslaughter to cover the situation if the felony-murder rule were found inapplicable, the record in this case precludes a finding of prejudice. In People v. Modesto, supra (59 Cal.2d at p. 731), and the other cases cited for the principle that the jury’s selection of first degree, rather than second degree murder, does not preclude prejudice in the failure to give appropriate instructions on manslaughter, there was no juxtaposition of felony-murder charges as in this case. In Modesto and Wilson (66 Cal.2d 749) the felony-murder rule was an alternative theory of the prosecution. In neither case did the record indicate on which theory the jury had returned its verdict of first degree murder, and in Wilson there was a failure to properly instruct on factors which would enable the jury to determine whether a felony, burglary, had been committed. In this case, on the other hand, the convictions of Asher and Carrafa indicate that the jurors applied the felony-murder rule against all three defendants as clearly as though they had rendered a special verdict. No other conclusion is permissible under the instructions which were given by the court.

In People v. Sievers (1967) 255 Cal.App.2d 34 [62 Cal.Rptr. 841] (hearing in Supreme Court denied) the defendant was charged with murder and robbery in connection with the death of a victim who was found beaten and robbed. He was found guilty on both counts. Evidence was introduced to show defendant’s diminished capacity to form an intent or indulge in premeditation, and instructions were given on that defense. The trial court refused defendant’s proposed instructions on manslaughter and charged the jury that the defendant was either innocent of the charge of murder or guilty of murder in the first degree. The court stated, . the defense of diminished capacity is applicable to all crimes which require specific intent, including robbery. If in fact appellant did not possess sufficient mental capacity to form an intent to deprive his victim permanently of his property, he could not be guilty of robbery, and hence not guilty of felony murder. Appellant’s defense of diminished mental capacity was raised against both the murder charge and the robbery charge. If the jury had sustained his defense as to the robbery charge and thus found him not guilty of that offense, it would then have been required to consider appellant’s guilt on the murder charge. As to this offense also, diminished capacity was an issue, and if the jury had sustained it they might well have found him guilty of a lesser included offense, such as manslaughter. Under the circumstances of this case, manslaughter instructions were required, notwithstanding the involvement of the felony-murder rule. (See People v. Ford, 65 Cal.2d 41, 58, fn. 9. . . .) ” (255 Cal.App.2d at p. 39.) The court concluded: ‘‘ Despite the error, however, appellant suffered no prejudice. The jury was fully and fairly instructed on the defense of diminished capacity. The court’s instructions ran both to the murder and robbery charges. The jury found appellant guilty of robbery. It thus rejected his claim of diminished capacity as to this offense. Since appellant's victim met his death in the course of the robbery, the felony-murder rule is applicable, and appellant was properly found guilty of first degree murder.” (Id. See also, People v. Teale, supra, 63 Cal.2d 178, 192-193; People v. Chapman, supra, 261 Cal.App.2d 149, 172-174 and 176 ; People v. Fortman, supra, 257 Cal.App.2d 45, 50-52 and 55-56; and cf. People v. Stewart (1968) 267 Cal.App.2d 366, 374 [73 Cal.Rptr. 484].)

No prejudicial or reversible error is found in the failure to give instructions on manslaughter. The foregoing makes it unnecessary to consider, as urged by the People, that Williams’ recantation at the penalty trial (discussed infra) bars the assertion of any error in the instructions on diminished capacity.

Instruction on Intoxication

The court instructed the jury in the language of Penal Code section 22 as follows: “No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent, is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act.” This instruction was followed by the instructions on diminished capacity which have been referred to above. (See fn. 6, supra, and text following. Cf. CALJIC (1967 Cum. Pocket Part) No. 319 (Rev.).)

In People v. Ford, supra, 60 Cal.2d 772, the court observed, “As the issue of intoxication was thus clearly raised by the evidence, it was essential that the jury be correctly instructed regarding the possible effect of that evidence on the state of mind in which defendant did the acts in question and hence as to whether such acts were or were not the product of that specific and deliberately formed and executed intent to kill which constitutes first degree murder.” (60 Cal.2d at p. 798. See also People v. Teale, supra, 63 Cal.2d 178, 193; People v. Spencer (1963) 60 Cal.2d 64, 86-87 [31 Cal.Rptr. 782, 383 P.2d 134]; People v. Baker, supra, 42 Cal.2d 550, 571-573; People v. Conley, supra, 268 Cal.App.2d 47, 52-53; and People v. Graves (1968) 263 Cal.App.2d 719, 726-729 [70 Cal.Rptr. 509].) In People v. Baker, supra, the court ruled that the giving of an instruction embodying only the first sentence of Penal Code section 22 “without adding that defendant’s intoxication could, however, be considered in determining the degree of the offense committed” was error. (42 Cal.2d at p. 573.) In People v. Spencer, supra, the trial court gave an instruction embodying the statutory language followed by an elaboration of the principle embodied in the first sentence. (60 Cal.2d at p. 86, fn. 14. See CALJIC (1958 rev. ed.) No. 78.) The court ruled, “. . . the giving of CALJIC No. 78 in the circumstances of this case could well leave a jury in a state of confusion or even with the impression that as a matter of law a defendant’s voluntary intoxication can have no effect on the criminality of his conduct. The subject instruction is intended to be, and should be, used only where the crime charged does not require specific intent. [Citation.]” (Id., at p. 87.) In People v. Ford, supra, the court followed Spencer in condemning the use of CALJIC 78 under similar circumstances, and further condemned former CALJIC (1958 rev. ed.) No. 319 (60 Cal.2d at p. 796, fns. 12 and 13, and accompanying text). In People v. Graves, supra, this court held that the use of an instruction emphasizing the effect of intoxication on the requisite specific intent (CALJIC (1958 rev. ed.) No. 78-B) would not cure the erroneous use of CALJIC 78 where specific intent is involved. (263 Cal.App.2d at pp. 726-729; but cf. People v. Fortman, supra, 257 Cal.App.2d 45, 52.) Finally, in the latest Conley case the court pointed out that any reference to the idea expressed in the first sentence of Penal Code section 22 in a case involving specific intent created the confusion denounced in Spencer. In Conley the trial court apparently gave CALJIC (1967 Cum. Pocket Part) No. 78 (Rev.) and No. 319 (Rev.). The second sentence of the former elaborates on the first sentence of section 22. The latter instruction is identical with that given in this case. The criticism of CALJIC No. 319 is tempered with the following language: “When there is an issue of diminished capacity due to intoxication, an instruction in the language of Penal Code section 22 is not necessarily error. (People v. Sievers, 255 Cal.App.2d 34, 37. . . .)” (268 Cal.App.2d at p. 53. See also People v. Fain (1969) 70 Cal.2d 588, 596-597 [75 Cal.Rptr. 633, 451 P.2d 65].)

A review of the instructions in this case, as they have been referred to above, reveals that the trial court emphasized and reiterated that intoxication could occasion diminished capacity which would negate the existence of the requisite mental state for either robbery or murder. By no stretch of the imagination could the jury have been confused by the reading of the first sentence of section 22- in connection with the other instructions. No error can be predicated upon the giving of the instruction in the language of CALJIC 319 (Rev.).

Failure to Offer Verdicts on Robbery

Asher and Carrafa each assert, “The trial court erred when it refused to instruct that appellants could be found guilty of robbery as a lesser included offense.” This contention is predicated upon an instruction concerning robbery which was submitted by Carrafa and refused by the court as covered elsewhere. The jury were fully instructed on the elements of the offense of robbery. (See text, supra, under ‘‘ Instructions on Manslaughter. ’ ’)

The gravamen of defendants’ complaint is the failure of the court to submit to the jury verdict forms which would enable the jury to find Carrafa and Asher guilty of robbery. The record suggests, and the People do not deny, that Carrafa’s counsel in fact requested and was denied the submission of such a form of verdict. He so alleged in his argument on his motion for new trial. They claim that a fundamental unfairness exists in a situation where the defendant is guilty of murder, if at all, on a theory of vicarious liability and he is at the same time denied a right to have the jury find him guilty of the less serious offense, which would be the only offense in which he actively participated. This argument fails to recognize the deterrent policy of the law as embodied in the felony-first degree murder rule, and the rule of vicarious responsibility. “The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. [Citations] ” (People v. Washington, supra, 62 Cal.2d 777, 781. See also, People v. Lilliock, supra, 265 Cal.App.2d 419. 431; and cf. People v. Ballentine (1952) 39 Cal.2d 193, 197 [246 P.2d 35].) Defendants’ contention also fails to distinguish the precise issue presented by the homicide charge from other offenses which might have been committed at or about the same time. There were several possibilities, and the jury was correctly instructed as to all of them.

If there was a preexisting plan to rob the bar and the killing occurred while the defendants were engaged in perpetrating that crime and in furtherance of that plan, all of the defendants were chargeable with felony murder of the first degree. The jury so found. It was unnecessary to charge the jnry that they could find one or another of the defendants guilty of the robbery necessary to establish the foregoing offense, because if guilty at all, such a defendant was guilty of the more grievous offense. The following principle applies to Asher and Carrafa: “. . . under Penal Code section 189, the trial court properly instructed the jury that appellants were either guilty of first degree murder or not guilty of murder at all. [Citations.]” (People v. Ketchel (1963) 59 Cal.2d 503, 525 [30 Cal.Rptr. 538, 381 P.2d 394] [disapproved on other grounds People v. Morse (1964) 60 Cal.2d 631, 649 [36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810], vacated People v. Ketchel (1966) 63 Cal.2d 859 [48 Cal.Rptr. 614, 409 P.2d 694].] See also People v. Witt (1915) 170 Cal. 104, 107 [148 P. 928].) Even if it could be said that robbery was included in the general charge of murder (see discussion, infra), the court properly refused the instruction because of the general rule that it is not error to omit or refuse to instruct the jury on their right to convict of lesser offenses included in the offense charged when the evidence shows, or tends to show, that the defendant, if guilty at all, is guilty óf the offense charged. (People v. Thomas (1962) 58 Cal.2d 121, 127 [23 Cal.Rptr. 161, 373 P.2d 97]; People v. McCoy (1944) 25 Cal.2d 177, 187-188 [153 P.2d 315]; People v. Allison (1966) 245 Cal.App.2d 568, 572-574 [54 Cal.Rptr. 148] ; People v. Morrison (1964) 228 Cal.App.2d 707, 712-714 [39 Cal.Rptr. 874]; and see People v. Welborn (1966) 242 Cal.App.2d 668, 679-680 [51 Cal.Rptr. 644].)

A second theory, which the jury was free to adopt under the instructions and the evidence, was that although there was a preexisting conspiracy and plan to rob the bar, Williams’ acts were not performed in the perpetration of that plan or in furtherance of the conspiracy to rob, either because he did.not have the capacity to form the intent to rob, or because the Trilling resulted from an altercation that was unrelated to the planned robbery. The jury rejected this theory, but it is obvious that under it the homicide committed by Williams was not within the felony-first degree murder rule, and the offense of robbery could in no sense be deemed an offense included in the charge of murder.

A third hypothesis was that the intent to rob did not arise until after Williams had shot Kammeyer. Here again the robbery charge would be completely separate from the homicide charge. (See People v. Butler (1967) 65 Cal.2d 569, 574 [55 Cal.Rptr. 511, 421 P.2d 703]; People v. Carnine, supra, 41 Cal.2d 384, 388-389.)

Defendants’ contention is predicated on the general rule referred to above that, "... the court should instruct the jury upon every material question upon which there is any evidence deserving of any consideration whatever”; and upon the particular rule stated as follows: “ It is the duty of the court to instruct the jury in regard to any included offense which the evidence tends to prove.” (People v. Burns, supra, 88 Cal.App.2d 867, 871. See also Pen. Code, §§ 1159 and 1093, subd. 6; People v. Modesto, supra, 59 Cal.2d 722, 727; People v. Miller, supra, 57 Cal.2d 821, 829-830; People v. Dewberry, supra, 51 Cal.2d 548, 555; People v. Carmen, supra, 36 Cal.2d 768, 773; People v. Coyne, supra, 263 Cal.App.2d 445, 450-451; People v. Garcia (1967) 250 Cal.App.2d 15, 17 [58 Cal.Rptr. 186]; People v. Roth, supra, 228 Cal.App.2d 522, 527-531 [39 Cal.Rptr. 582]; and People v. Lewis (1960) 186 Cal.App.2d 585, 596-599 [9 Cal.Rptr. 263].)

“An indictment or information charging murder . . . also charges all lesser offenses necessarily included in the crime of murder, including voluntary and involuntary manslaughter. [Citations.]” (In re McCartney (1966) 64 Cal.2d 830, 831 [51 Cal.Rptr. 894, 415 P.2d 782], See also People v. Marshall (1957) 48 Cal.2d 394, 399, fn. 5 [309 P.2d 456]; People v. Witt, supra, 170 Cal. 104, 107-108; People v. McFarlane (1903) 138 Cal. 481, 484 [71 P. 568, 72 P. 48, 61 L.R.A. 245] ; and People v. Beach (1968) 263 Cal.App.2d 476, 488-489 [69 Cal.Rptr. 394].) The foregoing cases do not indicate whether separate offenses which may be used to establish criminal responsibility for murder under the felony-murder rule as applied to first or second degree murder, or used to establish an unlawful act as a predicate of involuntary manslaughter or manslaughter in the driving of a vehicle, are lesser and included offenses of a homicide charge of which such separate offense is a part.

The general rule concerning included offenses, originally stated in connection with double jeopardy (see Pen. Code, §1023), has often been reiterated and has been applied in cases arising under section 1159 of the Penal Code. " It is clear that where an offense cannot be accomplished without necessarily committing another offense, the latter is a necessarily included offense. If, in the 'commission of acts denounced by one statute, the offender must always violate another, the one offense is necessarily included in the other.” (People v. Krupa (1944) 64 Cal.App.2d 592, 598 [149 P.2d 416], See also People v. Marshall, supra, 48 Cal.2d 394, 397-398; In re Hess (1955) 45 Cal.2d 171, 174 [288 P.2d 5]; People v. Greer (1947 ) 30 Cal.2d 589, 596 [184 P.2d 512]; People v. Kerrick (1904) 144 Cal. 46, 47 [77 P. 711] ; People v. Blunt (1966) 241 Cal.App.2d 200, 204 [50 Cal.Rptr. 440]; and People v. Chandler (1965 ) 234 Cal.App.2d 705, 708 [44 Cal.Rptr. 750], Cf. People v. Gentry (1969) 270 Cal.App.2d 462, 474-475 [76 Cal.Rptr. 336]; People v. Powell (1965) 236 Cal.App.2d 884, 886 [46 Cal.Rptr. 417]; People v. Hensel (1965) 233 Cal.App.2d 834, 838 [43 Cal.Rptr. 865]; and People v. Leech (1965 ) 232 Cal.App.2d 397, 398 [42 Cal.Rptr. 745].)

The principle has been expanded upon by cases which have permitted conviction for other offenses embraced with the facts set forth in the indictment or information, and for offenses consistent with the pleading which, through the evidence adduced at the preliminary hearing or by other means, have been accepted as issues in the ease.

In People v. Marshall, supra, 48 Cal.2d 394, the court concluded, after reviewing existing precedents, “Since the decisions as to included offenses, so far as they relate to choice of a standard to measure what offenses are ‘necessarily included’ within the meaning of section 1159 of the Penal Code, have not expressly considered or decided the question of selection as between the language of the accusatory pleading and the statutory definition, we base our choice of the specific language of the accusatory pleading upon considerations of fairness to both parties.” (48 Cal.2d at p. 405. See also People v. Powell, supra, 236 Cal.App.2d 884, 886; People v. Chandler, supra, 234 Cal.App.2d 705, 708; People v. Hensel, supra, 233 Cal.App.2d 834, 838-839; People v. Troyn (1964) 229 Cal.App.2d 181, 185 [39 Cal.Rptr. 924]; People v. Lewis, supra, 186 Cal.App.2d 585, 600; and cf. People v. Leech, supra, 232 Cal.App.2d 397, 398.)

In People v. Collins (1960) 54 Cal.2d 57 [4 Cal.Rptr. 158, 351 P.2d 326], the court rejected the defendants’ “contention that they could not properly be convicted of . . . statutory rape [Pen. Code, § 261, subd. 1], under an information charging them with forcible rape.” (54 Cal.2d at p. 59.) The court ruled, “The decisive question in the present case is whether the variance was of such a substantial character as to have misled defendants in preparing their defense. There is no indication whatever that defendants were prejudiced in that respect. Not only was it proved at the preliminary hearing that the prosecuting witness was 15 years of age, but the attorney for one of the defendants then expressed the view that the evidence tended to show statutory rape only. ’ ’ (Id., at p. 60. See also People v. Mayes (1968) 262 Cal.App.2d 195, 199 [68 Cal.Rptr. 476]; People v. Chandler, supra, 234 Cal.App.2d 705, 709; People v. Hensel, supra, 233 Cal.App.2d 834, 839; and cf. People v. Leech, supra, 232 Cal.App.2d 397, 399.)

Defendants Asher and Carrafa contend that the foregoing authorities indicate that they could have been convicted of robbery under the indictment as framed, and that therefore it was error to fail to give the requested form of verdict. However, People v. Marshall, supra, distinguished between a simple statutory pleading, and an indictment or information setting out further facts. The opinion states: “A person charged simply with robbery ‘in the words of the statute describing the offense’ [fn. omitted see Pen. Code, § 952] would not be charged with and could not be properly convicted of the offense defined by [former] section 503 [of the Vehicle Code] because the accusatory pleading would not inform the defendant that he must be prepared, at the trial, to contravene evidence that he took a particular kind of personal property, a vehicle. [Citations.]” (People v. Marshall, supra, 48 Cal.2d 394, 399, fn. omitted. See also People v. Lewis, supra, 186 Cal.App.2d 585, 600.)

Some cases have touched on the matter of the offenses included under a general homicide charge. In People v. Mayes, supra, 262 Cal.App.2d 195, the court considered the propriety of sustaining a conviction of battery under a charge of murder. The opinion states, “Manifestly, there are several methods by which a murder can be committed without touching the victim and hence without committing a battery in the technical sense. The starving, frightening or luring of a victim to his death are a few examples. Thus, it is arguable that a battery is not a necessarily included offense of the crime of murder.” (262 Cal.App.2d at p. 199, fn. omitted. See also People v. Welborn, supra, 242 Cal.App.2d. 668, 669; and People v. Lewis, supra, 186 Cal.App.2d 585, 599-600.) The court did not answer “this troublesome question” but concluded, “Mani