The opinion
GARDNER, P. J.
I dissent.
As the majority correctly states, only one person actually observed the purse snatching—Mrs. Romero—and I will challenge anyone to read Mrs. Romero’s testimony and come to any other rational conclusion but that she testified clearly and unequivocally to a robbery, not to a grand theft from the person.
The rule on requested instructions is clear—such instructions must be given if there is any evidence on the issue deserving of any consideration whatever. (People v. Carmen, 36 Cal.2d 768, 773 [ 228 P.2d 281 ].) But any evidence means some evidence. “It is not error to refuse a request for instructions on self-defense when there is no evidence from which it can be inferred that the defendant feared great bodily harm or death at the hands of the victim, or when the defendant has denied acting in self-defense and claimed the death was accidental. [Citation.]” (Italics added.) (People v. Sedeño, 10 Cal.3d 703, 718 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ].)
*147 Mrs. Romero testified that she saw the defendant “push the elderly lady down ... hit her with such hard force that she fell immediately . . . she kind of made a spindle turn . . . her body actually turned ... he actually pushed her and at the same time she was pushed she spinned and fell. The force was so great she lost her balance.” At the preliminary examination seven months prior to trial, when her memory was even more acute, she had testified, “he grabbed the purse and shoved her at the same time. The woman fell.”
On cross-examination, Mrs. Romero never varied an inch from that version. Of course, not having a photographic memory or being blessed with total recall, there were minor uncertainties such as just which hand the defendant used in the attack. Nevertheless, her testimony is clear, unequivocal and uncontradicted that she saw the defendant knock Mrs. Smith down—that he used the force necessary to render this a robbery, not a grand theft from the person. Admittedly, the jury is not bound to follow uncontradicted testimony if there is any basis for disbelieving it. (People v. Anderson, 243 Cal.App.2d 243 [ 52 Cal.Rptr. 201 ].) However, the majority incorrectly elevates the jury’s prerogative to disbelieve portions of the witness’ testimony into actual evidence. Unless we are to find that Mrs. Romero’s testimony is either inherently improbable or incredible, it stands as the only evidence concerning the actual purse snatching and it clearly established a robbery. 1 She says the defendant knocked Mrs. Smith down. Reading into this record a theory that Mrs. Smith fell over her feet after being accosted by a careless piirse snatcher or bungling pickpocket is pure sophistry.
While it is our duty to search , the record for evidence that may be obscure or indistinct, I doubt that it is our responsibility to read into this *148 record that which is absurd or preposterous. Were we to do so, we could come up with some truly amazing results.
Assume, for example, a liquor store holdup. The clerk testifies that the defendant shoved a gun in his face, demanded money and took money from the cash register. He testifies that the gun was a pistol and that it was loaded because he could see the ends of cartridges in the cylinder. However, on cross-examination it develops that the clerk has some unfamiliarity with guns and in frustration at a badgering cross-examination, finally, says, “Well, it was just a big, black thing with a hole at the end of it.” Also, in an attempt at male braggadocio, he opines that he was not really frightened, only nervous, and that he gave the robber the money only because his employer told him that under. such circumstances he was to give the robber the money and avoid being a hero. From this set of circumstances, assuming requested instructions, we would reverse unless there were an instruction on second degree robbery (it may not have been a gun at all just a big avocado with a hole in it), grand theft from the person (no force or fear), brandishing a weapon (he gave the money away), larceny (the defendant took the money from the cash register, not from the clerk), assault, battery, disturbing the peace, trespass, vagrancy, false imprisonment, a violation of Penal Code, section 650‘/2, and just about any other crime a normally ingenious mind could dream up.
It is clear that the thing that really sticks in the craw of the majority is that the defendant has been convicted of first degree murder for simply pushing an old lady. I must admit that Mrs. Smith, at age 79, probably did not have too many years to live and that the defendant is probably a normal, well-adjusted, well-intentioned, strong arm robber who had no intention of hurting the old lady, let alone kill her. I’ll further admit that the vagaries of our law are such that some odd legal results come from some similar physical acts. Leaving out the robbery, but assuming the death resulted from the pushing, if the defendant knocked Mrs. Smith down because he did not like her, that would, generally speaking, be murder. If he knocked her down just for the hell of it, that would, generally speaking, be manslaughter. If he knocked her down accidentally, that would, generally speaking, be no crime at all. But whatever the courts may think of any extension of the felony-murder rule, the Legislature has made one thing very clear in Penal Code, section 187. One may rob, burgle, rape, burn, maim or molest and only suffer the consequences of that crime as set forth in the particular code section. If, however, during the perpetration of one of those offenses, the victim *149 dies, then, to quote a recent deathless line from Telly Savalas in Kojak, “That’s murder one, baby.”
I find the rest of the contentions made by the defendant unconvincing and could I get one more vote I would affirm.
A petition for a rehearing was denied July 1, 1975, and respondent’s petition for a hearing by the Supreme Court was denied August 6, 1975. McComb, J., Clark,-J., and Richardson, J., were of the opinion that the petition should be granted.
The defendant did not testify. His version as reflected by his statement to the officers was that he had nothing to do with the incident at all. Actually, the case was tried on two theories—identity of the defendant (he fled) and cause of death—the defendant’s strongest defense because of a bungled autopsy. This issue of grand theft from the person amounts to no more than a dropped line in this case. For example, on the public defender’s motion for a new trial. 10 short lines were devoted to this issue out of 13 pages of argument. In his responding comments, the trial judge did not even mention the issue. The other issues—alleged judicial misconduct, alleged juror misconduct, alleged evidentiary error, alleged insufficiency of the evidence—were the gut issues on the motion for new trial and on appeal. While I would not reverse on any of them, each has more meat on its bones than the issue on which the majority reverses. It is true that the public defender requested these instructions. As any good trial lawyer would do, he requested instructions at the beginning of the trial on issues that might arise. However, if after hearing Mrs. Romero’s testimony he was shocked at the failure of the court to give these instructions, he kept his discomfiture at a low level. A reversal on.the grounds chosen by the majority is going to come as quite a surprise to all concerned in this case.