People v. Chapman

Ruth Elizabeth Chapman appeals from a judgment imposing concurrent life sentences, after a jury found her guilty of the first degree murder and first degree robbery of Billy Dean Adcock. Mrs. Chapman and a codefendant, Thomas Teale, had been tried together in San Joaquin County in April 1963 and found guilty of Adcock’s murder, robbery and kidnaping. Their convictions were affirmed by the California Supreme Court in July 1965 and set aside by the federal Supreme Court for trial error in February 1967. (People v. Teale, 63 Cal.2d 178 [ 45 Cal.Rptr. 729 , 404 P.2d 209 ]; Chapman v. California, 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 ].) After the remand to the California courts, separate trials were ordered and the kidnaping charge dropped. In response to Mrs. Chapman’s motion, a change of venue to Sacramento County was ordered and her second trial occurred in the latter county.

Bight to Speedy Trial

Shortly before her second trial in 1967 defendant moved to dismiss the proceeding on the ground that delays in her first trial in 1963 had deprived her of her constitutional right to a speedy trial. She renews the claim here.

Federal and state constitutional guaranties of a speedy trial in criminal cases are implemented by Penal Code, section 1382, which makes dismissal mandatory when a felony defendant is not brought to trial within 60 days after the information or indictment is filed, except where the defendant has consented or good cause for delay is shown, Mrs. Chapman had been found and arrested in Missouri on October 26, 1962, and brought to California. On November 13, 1962, the public defender of San Joaquin County was appointed to represent her and Teale. The two defendants were jointly indicted on November 16, 1962. They were not brought to trial, however, until April 16, 1963, approximately three months after expiration of the 60-day period following their indictment.

A condensed history of the proceedings antedating the April 16 trial appears in People v. Teale, supra, 63 Cal.2d at

Sufficiency of the Evidence

Although the trial court’s instructions to the jury included a definition of premeditated murder, the prosecution’s prime theory was felony murder, that is, first degree murder committed in the perpetration of robbery. The jury found Mrs. Chapman guilty of robbery as well as first degree murder. Defendant claims lack of substantial evidence of her participation in robbing and shooting Adcock and of her specific intent to participate in the robbery

To establish a felony murder the prosecution must prove that the defendant had a specific intent to commit the felony, in this case the robbery of Adcock. (People v. Anderson (1965) 63 Cal.2d 351 , 358 [ 46 Cal.Rptr. 763 , 406 P.2d 43 ].) A principle of California law, known as the Wells-Gorshen or diminished capacity rule, has it that an impairment of volitional powers by a mental defect short of insanity may negate the existence of specific intent to commit

Called upon to review sufficiency of the evidence, appellate courts recognize that a defendant’s guilty participation in a crime may be established by circumstantial evidence; that the fact trier, not the appellate court, must be convinced of guilt beyond a reasonable doubt; that the test on appeal is whether there is substantial evidence to support the verdict or finding; that the reviewing court will not reweigh the evidence but “ ‘will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt.’ ” (People v. Hillery (1965) 62 Cal.2d 692 , 702-703 [ 44 Cal.Rptr. 30 , 401 P.2d 382 ].) Despite these generalizations, several California decisions reviewing first degree murder verdicts demonstrate a tendency toward close appellate scrutiny of conflicting evidence of mental capacity, particularly where a jury’s finding of capacity for premeditated murder has been made in the face of evidence in precarious balance. (See, e.g., People v. Nicolaus (1967) 65 Cal.2d 866 , 876-878 [ 56 Cal.Rptr. 635 , 423 P.2d 787 ]; People v. Goedecke (1967) 65 Cal.2d 850 , 857-858 [ 56 Cal.Rptr. 625 , 423 P.2d 777 ].) For present purposes at least, we assume that the same kind of scrutiny devolves upon the reviewing court when specific intent to rob, rather than intent to kill, provides the foundation for a first degree murder verdict.

In summary, the prosecution evidence showed the following: Mrs. Chapman and Thomas Teale had been living together in Lake County. On October 10, 1962, they loaded Mrs. Chapman’s automobile, a 1961 Ford Fairlane sedan, and left for Reno. On October 12 Mrs. Chapman purchased a .32 caliber automatic pistol in one Reno pawnshop and a .22 caliber “Vestpocket” revolver in another. In registering the purchases she signed her name, Ruth E. Chapman, and with one she gave her former Eureka address. From Reno the pair drove to Las Vegas where they gambled and lost money. During this time Mrs. Chapman was cashing bad checks on her overdrawn account at a Eureka bank.

On October 17 the pair registered at a Fresno motel, where Mrs. Chapman paid for their room with a bad check for $6.

About 4 a.m. on the morning of Adcock’s death, Mrs. Chapman and Teale checked in at a motel in Woodland. Mrs. Chapman signed the registry giving a false name and a false automobile license number. On October 23 Mrs. Chapman arrived by bus in St. Joseph, Missouri, where she stayed with Teale’s sister. During this time she asked Teale’s sister if she might use the sister’s name and social security card in order to get work. Mrs. Chapman was arrested in St. Joseph. Teale was apprehended in New Orleans. He was in possession of Mrs. Chapman’s automobile and the .32 pistol she had bought in Reno.

Type A blood was found splattered on the interior roof lining of the automobile, on its dome light and clothes hanger. Adcock’s blood was Type A. There was a concentration of this blood on the right-hand side of the automobile interior. Originating in the area of the passenger side of the front seat, the splatter radiated outward and to the rear. Fibers found in the automobile matched those found on Adcock’s shoes. Also on Adcock’s shoes were hairs resembling those of Teale. On the floorboard and floor mat were hairs which appeared to be Adcock’s. On the floor mat of the automobile was red paint, which came from Adcock’s shoes.

A criminalist testified that in his opinion Adcock had been shot once in the back of the head while he was sitting in Mrs. Chapman’s car; that the wounds on the left side of his head were inflicted while he was lying down near the spot where his body was found.

A woman prison inmate told of conversations with Mrs. Chapman which had occurred while the latter was in prison after her first trial. On one occasion Mrs. Chapman said that she had “passed out” in the back seat of the car. In another conversation she said that Teale had been driving the car and that she had been in the back seat, while the victim sat on the passenger side of the front seat. The inmate testified that Mrs. Chapman at all times asserted her innocence.

Defense witnesses testified that Mrs. Chapman had in the past suffered from a nervous breakdown, blackouts, memory losses and had indulged in heavy drinking. Mrs. Chapman took the stand. She testified that she had been drinking

In rebuttal the prosecution called three psychiatrists, who held the view that—although the defendant possibly suffered amnesia which temporarily blocked memory of the incidents— she had not been unconscious and had been capable of forming a specific intent to commit criminal acts.

Under the felony-murder instructions the prosecution had to prove only a specific intent to rob Adcock, not a premeditated shooting or intent to kill. (People v. Coefield (1951) 37 Cal.2d 865 , 869 [ 236 P.2d 570 ].) A killing in the perpetration of a robbery is murder of the first degree, whether wilful and premeditated or only accidental and whether or not it is planned as a part of the robbery. (People v. Lookadoo (1967) 66 Cal.2d 307 , 314 [ 57 Cal.Rptr. 608 , 425 P.2d 208 ].) Whichever of the robbers fired the fatal shot, both are guilty of first degree murder. (People v. Miller (1951) 37 Cal.2d 801 , 805-806 [ 236 P.2d 137 ]; People v. Ellenberg (1958) 165 Cal.App.2d 495 , 500 [ 331 P.2d 1053 ].) Prom the evidence the jury could reasonably infer that Mrs. Chapman had participated in a jointly planned holdup. The pair’s precarious financial situation, Mrs. Chapman’s purchase of two pistols in Reno and her remark as they left Croce’s bar, supplied the basis for the deduction that they had entered Croce’s for the purpose of robbery if it were feasible, had left because too many patrons were there and had entered the Spot Club for the same purpose, waiting until the 2 a.m. closing time when the bartender was alone. This was not a bizarre crime whose very character pointed to dissolution of the accused’s deliberative faculties. (Cf. People v. Goedecke, supra, 65 Cal.2d at pp. 855, 858; People v. Nicolaus, supra, 65 Cal.2d at p. 878; People v. Wolff (1964) 61 Cal.2d 795 , 818-822 [ 40 Cal.Rptr. 271 , 394 P.2d 959 ].) The events logically supported the belief that Mrs. Chapman shared a deliberate design to rob. The jury were at liberty to reject psychiatric opinion to the contrary. The belief that she had adequate awareness of the events at the time of their occurrence was supported both by the psychiatric testimony of the prosecution and by Mrs. Chapman’s ability to recall these events in a tailored, self-protective version. The direction and distance of the first shot (fired from a point 18 inches to the rear of the victim’s head) could reasonably induce the belief that Mrs. Chapman had concocted her description of the parties’ relative positions, which placed her in the driver’s

Evidence Discovered as a Result of Post-Arrest Interrogation by Police.

After Mrs. Chapman gave the Lodi police the statement in which she told of having purchased pistols at two Reno pawnshops, a check of Reno pawnshop records resulted in identification of the pistol sellers. Over objection, the two sellers testified as prosecution witnesses at Mrs. Chapman’s second trial. She charges error. Her theory is that the Miranda-Escobedo-Dorado rule would have barred the prosecution from adducing evidence of her 1962 statement, which had not been preceded by a warning of her rights; that the Reno pawnbrokers became known to the police as the result of the inadmissible statement; that their testimony was barred by the “fruit of the poisonous tree” rule, being as inadmissible as the statement itself.

At Teale’s separate retrial he had raised the same objection to the testimony of the Reno pistol sellers. Outside the jury’s presence, the court took evidence for the purpose of ascertaining the relationship between Mrs. Chapman’s statement to the Lodi police and the identification of the pistol sellers. Concluding that the normal processes of police investigation would have uncovered the same information had the police been deprived of her statement, the court overruled Teale’s objection. By stipulation the same objection, the inquiry and the ruling, were incorporated as part of the Chapman trial record.

The exclusionary rule of Miranda v. Arizona, supra, governs retrials, as well as original trials, occurring after June 13, 1966, the date of the Miranda decision. (People v. Doherty (1967) 67 Cal.2d 9 , 17 [ 59 Cal.Rptr. 857 , 429 P.2d 177 ].) Doubtless Mrs. Chapman’s statement would have been inadmissible had it been offered by the prosecution, since she was in custody and the police had, without warning her of her rights, undertaken a process of interrogation lending itself to the elicitation of incriminating statements. (People v. Rollins (1967) 65 Cal.2d 681 , 692 [ 56 Cal.Rptr. 293 , 423 P.2d 221 ].)

Information and physical evidence secured as a

It is said that a system of criminal justice relying on independent police investigation is preferable to one which

Close to Adcock’s body the police had found the $2 check signed by Ruth E. Chapman and drawn on a Eureka bank— hardly a subtle clue. The check was the starting point for an investigation which identified Mrs. Chapman and Teale as suspects; which identified Mrs. Chapman’s automobile; which led to her discovery and arrest at St. Joseph (where she was staying with Teale’s sister) and to Teale’s arrest in New Orleans, where he was found in possession of Mrs. Chapman’s automobile and a .32 caliber automatic pistol.

All these inquiries and resultant information preceded Mrs. Chapman’s interrogation. Thus, quite aside from that interrogation, the police gained awareness of the make, model and serial number of one of the two pistols. The other was partially identified by ballistic examination of the death bullets, which revealed barrel markings pointing to a .22 caliber revolver whose parts were manufactured abroad, which was assembled in this country and sold under the brand name “Vestpoeket. ”

One day after the murder the police had discovered the pair’s visit to Croce’s bar and had interviewed James Brooks, the bartender, and his wife, Marilyn, who had also been at the bar that evening. Both these witnesses identified Teale from pictures supplied by the State Bureau of Criminal Identification and Investigation. On the night of the murder Mrs. Chapman had told Mr. and Mrs. Brooks that she and Teale were returning to Eureka after gambling in Nevada. It is not clear whether she specifically mentioned Reno. Reno and Las Vegas, however, are the most prominent vacation and gambling locales in Nevada and, as it turned out, Teale and Mrs. Chapman had visited both these cities. Both the Reno pistol sellers maintained registries identifying weapons sold by make, model and serial number and designating the date of the sale and the buyer's name and address. Mrs. Chapman had signed the gun registry in each establishment, giving her correct name. Following partial identification of the death

A warrantless police search of an automobile must meet the Fourth Amendment test of reasonableness before evidence obtained as its result is admissible; reasonableness is measured in relation to the totality of the circumstances surrounding the search; the search is reasonable if it is “incidental to a lawful arrest” of the vehicle’s possessor. (Preston v. United States (1964) 376 U.S. 364 , 367 [ 11 L.Ed.2d 777 , 780, 84 S.Ct. 881 ]; People v. Williams (1967) 67 Cal.2d 226 , 229-230 [ 60 Cal.Rptr. 472 , 430 P.2d 30 ].) A number of decisions place the search outside the category of those incident to the arrest where an unnecessary delay occurs between the arrest and the search (e.g., Preston v. United States, supra; People v. Burke (1964) 61 Cal.2d 575 [ 39 Cal.Rptr. 531 , 394 P.2d 67 ]). Other decisions uphold search of the vehicle if the time lapse between arrest and search is attributable to reasonable police necessities. (People v. Harris (1967) 67 Cal.2d 866 , 871 [ 64 Cal.Rptr. 313 , 434 P.2d 609 ]; People v. Williams, supra; People v. Webb (1967) 66 Cal.2d 107 , 111-112 [ 56 Cal.Rptr. 902 , 424 P.2d 342 ]; People v. Talbot (1966) 64 Cal.2d 691 , 708-709 [ 51 Cal.Rptr. 417 , 414 P.2d 633 ].)

That the police had opportunity to procure a warrant does not invalidate the search, for “ 1 [t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.’ ” (Cooper v. California (1967) 386 U.S. 58 , 62 [ 17 L.Ed.2d 730 , 733, 87 S.Ct. 788 ], quoting from United States v. Rabinowitz (1950) 339 U.S. 56 , 66 [ 94 L.Ed. 653 , 660, 70 S.Ct. 430 ]; see Comment, 52 Minn. L. Rev. (1967) 533-540.)

The Attorney General supports legality of the search on the theory that the car was not mere evidence, but an instrumentality of the crime. The argument is untenable. Both the federal and California Supreme Courts have adopted the view that “. . . there is no viable reason to distinguish intrusions to secure ‘mere evidence’ from intrusions to secure fruits, instrumentalities, or contraband.” (Maryland Peni

As owner of the car Mrs. Chapman doubtless has “standing” to challenge its search. (See Wong Sun v. United States, supra.) The automobile came under police control upon the arrest of Teale, its possessor, not the arrest of Mrs. Chapman, its owner. In the totality of circumstances the former event, not the latter, dominates. Under some circumstances a relatively slight separation in space and time between arrest and search may make the search unreasonable (e.g., Preston v. United States, supra; People v. Burke, supra). Here a unique set of circumstances makes the search reasonable despite a relatively wide separation in space and time. The investigative problem was to connect physical clues found at the crime scene in California with those in the automobile found in New Orleans. Laboratory comparisons were necessary. The FBI agents who made the arrest and impounded the car had neither direct responsibility nor direct involvement in the investigation, which was in the hands of the California authorities, half a continent distant. It was entirely reasonable to ship the vehicle to California for examination. The lapse of two days between Teale’s arrest and shipment of the automobile from New Orleans was justified by the need to await the arrival of the Lodi officers who would simultaneously take charge of the prisoner and the automobile. Once the vehicle arrived at Lodi, there was no delay whatever, for the box car was immediately unsealed and the automobile immediately examined.

The search was made as soon after the arrest as was practicably possible. The geographic factors, the separation of responsibility between the arresting and investigating agencies and the scientific character of the investigative task impel the conclusion that there was reasonable contemporaneity between the arrest and the search. In the totality of the circumstances, examination of the vehicle immediately upon its coming into the hands of the investigating officers was reasonably incidental to its possessor’s arrest. Having been produced by a lawful search, the evidence found in the automobile was admissible.

People v. Conley (1966) 64 Cal.2d 310 , 316-318 [ 49 Cal.Rptr. 815 , 411 P.2d 911 ], describes a concept of voluntary manslaughter covering unjustified killings outside the strict letter of Penal Code, section 192, where malice is negated by intoxication or mental defect. An example occurs when the jury rejects a claim of complete unconsciousness, yet finds the defendant’s mental capacity so reduced as to preclude malice. (People v. Conley, supra, 64 Cal.2d at p. 319.) This kind of manslaughter is sometimes termed “nonstatutory” manslaughter. (See People v. Aubrey (1967) 253 Cal.App.2d 912 , 919 [ 61 Cal.Rptr. 772 ].) Although established in relation to homicide prosecutions outside the felony-murder group, the Conley concept of manslaughter has been extended to felony-murder cases where, as here, the issue of diminished capacity or intoxication is raised as a defense to the felony charge as well as the murder charge. (People v. Ford (1966) 65 Cal.2d 41 , 58, fn. 9 [ 52 Cal.Rptr. 228 , 416 P.2d 132 ] ; People v. Sievers (1967) 255 Cal.App.2d 34 , 38-39 [ 62 Cal.Rptr. 841 ].) The Conley decision refers to this variety of manslaughter as voluntary, not involuntary. (64 Cal.2d at p. 318.)

On Mrs. Chapman’s first appeal the Supreme Court had rejected the possibility of an intermediate verdict such as manslaughter, but that rejection occurred before the Conley decision. In view of that decision and in the light of defense claims of unconsciousness and diminished capacity, the trial judge correctly instructed the jury on voluntary manslaughter of the “nonstatutory” variety.

In claiming entitlement to an instruction on involuntary in addition to voluntary manslaughter, defendant points out that the case went to the jury not only on a felony-murder theory, but as a homicide outside the felony-murder classification. There was no evidence that Adcock’s killing resulted from negligence or from the commission of an unlawful act other than a felony, thus no basis for an involuntary manslaughter instruction corresponding to subdivision 2 of Penal Code, section 192. There is, nevertheless, evidence that Mrs. Chapman was voluntarily intoxicated. In a suggested form of jury instruction for cases outside the felony-murder category, People v. Conley (64 Cal.2d at p. 326, fn.) points to the possibility of a kind of nonstatutory involuntary manslaughter, where the accused killed while unconscious as a result of

Evidence of Mrs. Chapman’s purchase of the two pistols, of her statement as they left Croce’s bar that “We are not going to do anything here, ’ ’ and of the parties ’ subsequent collaboration, justified jury instructions on conspiracy,' even though conspiracy was not alleged in the accusatory pleading. (People v. Teale, supra, 63 Cal.2d at p. 188; People v. Ditson (1962) 57 Cal.2d 415 , 447 [ 20 Cal.Rptr. 165 , 369 P.2d 714 ].) Although the trial court did not specifically instruct the jury that conspiracy required specific intent, it did instruct on specific intent as a necessary element of robbery and felony murder, also on intoxication and unconsciousness as factors militating against specific intent. The jury instructions on the specific intent phase of the case were adequate. (See People v. Seter (1963) 216 Cal.App.2d 238 , 247 [ 30 Cal.Rptr. 759 ].)

The court properly rejected a defense request for instructions drawn from drunk-driving eases, describing the stage at which a person comes under the influence of intoxicating liquor. Its instructions on intoxication and unconsciousness as factors bearing on Mrs. Chapman’s capacity to form the specific intent to rob fully apprised the jury of the governing law. The court properly refused to burden the jury with the confusing and irrelevant instructions drawn from the vehicle cases.

Error is assigned in the rejection of a defense-proposed instruction telling the jury, in effect, that the prosecution was bound by the testimony of its own witness, the woman prison inmate who had related Ruth Chapman’s statement that she had “passed out” in the rear seat of the car.

The defense relies upon the latter notion to support its present contention. The rule appears to be a guide to judicial review, not designed for guidance of the jury. (See People v. Albertson (1944) 23 Cal.2d 550 , 586-588 [ 145 P.2d 7 ].) In any event, it has force only when all the prosecution evidence points to excuse or mitigation. If there is substantial evidence incompatible with the theory of excuse or mitigation, the jury may consider all the evidence and determine whether the act amounted to unlawful homicide. (People v. Acosta (1955) 45 Cal.2d 538 , 541 [ 290 P.2d 1 ]; People v. Mercer, supra, 210 Cal.App.2d at p. 159.) The prosecution is not “bound” by testimony of its own witness indicating excuse where there is other prosecution evidence showing lack of it. (People v. Domingo (1962) 210 Cal.App.2d 120 , 125-126 [ 26 Cal.Rptr. 315 ].)

Over objection, the prosecution adduced evidence of several cheeks which Mrs. Chapman had drawn on an empty bank account in the days preceding the robbery. Although it showed the commission of offenses other than those charged, the trial court had discretion to admit this evidence, since it was relevant to proof of motive for the robbery. (Evid. Code, § 1101, subd. (b).) Error is assigned in an instruction in which the court told the jury that the evidence was received for a limited purpose, not to prove criminality, but “for such bearing, if any. as it might have on the questions of intent or motive. ...” A trial court may properly give a limiting instruction describing the purpose for which evidence of uncharged offenses is admitted. (People v. Carson (1966) 240 Cal.App.2d 477 , 479 [ 49 Cal.Rptr. 653 ]; People v. Demes (1963) 220 Cal.App.2d 423 , 439 [ 33 Cal.Rptr. 986 ]; see CALJIC 33.) The instruction was flawed because it referred to intent and motive as though these were synonymous. They

Evidentiary Rulings

Defendant assails admission in evidence of the .32 automatic pistol found in Teale’s possession when he was arrested in New Orleans. The pistol was relevant evidence that Mrs. Chapman and Teale shared a preconceived design to commit robbery, for it was identified as one of two pistols which she had bought Avhile she and Teale were in Reno. Relevance of the .32 automatic was not dissipated by absence of evidence that it was actually used in the crime. (See People v. Trout (1960) 54 Cal.2d 576 , 586 [ 6 Cal.Rptr. 759 , 354 P.2d 231 , 80 A.L.R.2d 1418 ].)

Error is assigned in the exclusion of a statement which Mrs. Chapman gave to the police in St. Joseph, Missouri. On appeal she contends that the statement was relevant to proof of her amnesia on the night of the crime. At the trial, however, the statement was not offered for that purpose. Dr. Sheuerman, the defense psychiatrist, had testified that he based his diagnosis of amnesia and hysteria in part upon Mrs. Chapman’s transcribed statements to the police in St. Joseph and Lodi. At that point the defense offered both statements in evidence for the declared purpose of showing the jury the partial basis for Dr. Sheuerman’s opinion. The court rejected the offer. Although Dr. Sheuerman testified at length, he was not asked to describe the statements which had been submitted to him or to explain their role in his diagnosis. Later in the trial the defense again sought to introduce the two statements. After extensive argument outside the jury’s presence, there was a stipulation that the Lodi statement might be read to the jury. There is no record that such a stipulation was sought as to the St. Joseph statement. At no point did the defense offer the St. Joseph statement as relevant evidence of Mrs. Chapman’s psychological condition on the night of the crime.

An expert witness may express an opinion based on information without regard to the information’s admissibility in evidence. (Evid. Code, § 801, subd. (b); Witkin, Cal. Evidence (2d ed 1966) § 410.) Thus the doctor’s use of Mrs. Chapman’s St. Joseph statement did not open the door to its being read to the jury. Such a statement has limited admissibility. Current California law gives the trial court discretion to weigh its probative value as a partial basis for the expert’s opinion against the risk that the jury might improperly consider it as independent proof of the facts recited

Multiple Punishment

When a series of connected crimes is incident to one objective, the defendant may be punished for the most serious offense but not for more than one. (Pen. Code, § 654; Neal v. State of California (1960) 55 Cal.2d 11 , 19-20 [ 9 Cal.Rptr. 607 , 357 P.2d 839 ].) Mrs. Chapman received separate, concurrent sentences for first degree murder and for robbery. She contends that the dual sentence violates the proscription against multiple punishment.

Whether a course of criminal conduct is divisible, giving rise to separately punishable crimes, depends upon the intent and the objective of the actor. (Kellett v. Superior Court (1966) 63 Cal.2d 822 , 824-825 [ 48 Cal.Rptr. 366 , 409 P.2d 206 ].) A number of decisions involve a completed armed robbery, followed by a separately motivated shooting, each of which is separately punishable (e.g., People v. Massie (1967) 66 Cal.2d 899 [ 59 Cal.Rptr. 733 , 428 P.2d 869 ]; People v. Birdwell (1967) 253 Cal.App.2d 621 [ 61 Cal.Rptr. 536 ]; People v. Houghton (1963) 212 Cal.App.2d 864 [ 28 Cal.Rptr. 351 ].) Others illustrate a robbery and shooting which are incident to the single objective of robbery. (Eg., In re Henry (1966) 65 Cal.2d 330 [ 54 Cal.Rptr. 633 , 420 P.2d 97 ]; People v. Ridley (1965) 63 Cal.2d 671 [ 47 Cal.Rptr. 796 , 408 P.2d 124 ].)

In this case the jury’s verdicts represent an implied finding that the killing had been committed in the perpetra

The evidence pointed to two acts of robbery upon Adcock: a taking of the bar receipts at the Spot Bar and a taking of the victim’s personal funds at the scene of the shooting. The fatal shots were inextricably combined with both takings. There is no evidence that the shooting was motivated by any design or impulse independent of the double robbery. All the offenders’ actions were incident to the single objective of robbery, and only one punishment, for the more serious crime, is lawful.

The robbery sentence is set aside. The judgment is affirmed in all other respects.

Pierce, P. J., and Regan, J., concurred.

A petition for a rehearing was denied May 13, 1968, and appellant’s petition for a hearing by the Supreme Court was denied June 11,1968. Mosk, J., did not participate therein.