Dеfendant appeals his convictions of felony murder, aggravated robbery, and conspiracy to commit aggravated robbery. We affirm in part and reversе in part.
The defendant first approached accomplices Charles Saxton and Charles Turner concerning the planning of a robbery of James Jolly’s rаnch in November of 1980. Two unsuccessful robbery attempts were conducted on December 7 and 8. Defendant then turned to Tom Payseno and Richard Bales for help. Payseno, Saxton, Bales, and the defendant met at the defendant’s home on December 10 to plan another attempt.
At this meeting, defendant provided Pay-seno with information as to the location of the Jolly ranch, which was approximately 60 miles away, and told him of the rumor that Jolly kept a safe containing $100,000. The defendant provided duct tape, to be used if they had to “rush” anybody. He also provided surgical gloves. And, when asked to lend his car, he agreed, although he was cоncerned that the tires would later need to be changed so that tire prints could not be traced to him. Saxton brought guns to this meeting, which were distributed among the complicitors.
That evening Payseno, Bales, and Saxton forced their way into Jolly’s ranch house using guns, and, in the course of the robbery, Payseno shot and killed Jolly. Approximately $800 in cash and a few other small items were stolen. Payseno, Bales, and Saxton then returned to defendant’s apartment to divide the money and melt down the guns.
Defendant was arraigned in April 1981 on charges of murder after deliberation, conspiracy to commit murder after deliberation, felony murder during robbery, conspiracy tо commit aggravated robbery, and ag *541 gravated robbery. The trial began in September. Defendant was allowed only ten peremptory challenges pursuant to an amendment to § 16-10-104, C.R.S.1973 (1982 Cum.Supp.) which became effective July 1, 1981.
Shortly after the trial began, a hearing was held during which the prosecution revealed that Bales was gоing to invoke his Fifth Amendment privileges and refuse to testify regarding his activities during a portion of the day of December 10. The trial court ruled that this testimony was not as to a сollateral matter, and that if Bales were to testify regarding any of the events of December 10, a grant of immunity would be necessary.
Bales was granted immunity and testified against defendant at trial. Saxton also testified for the prosecution.
The jury acquitted defendant of murder after deliberation and conspiracy to commit murder after deliberation but found him guilty of felony murder, aggravated robbery, and conspiracy to commit aggravated robbery.
I.
Defendant first contends that application of the felony murder statute to him is unconstitutional because he was 60 miles away when the murder occurred. Defendant contends that the felony murder statute applies only to a participant who is at or near the scene of the underlying felony. We disagree.
“[A] complicitor, being a principal, is included in the felоny murder statute as one who ‘commits or attempts to commit [the underlying felony].’ ”
People
v.
Saiz,
Here, the record reveals that all the elements set out in Thompson, supra, were satisfied. Both Bales and Saxton testified that they, together with Paysеno, robbed Jolly and that Payseno murdered Jolly during the course of that robbery. Defendant clearly knew that an armed robbery was to take place. And, he aided and abetted by supplying information regarding the location of the ranch, by loaning his car, by providing some of the necessary tools, and by making his apartment available for the planning sessions.
Defendant also contends that the acquittals of murder after deliberation and conspiracy to commit murder after deliberаtion are inconsistent with the guilty verdicts because there “was insufficient evidence to prove that [defendant] knew that Payseno intended to kill Mr. Jolly.” However, as еven defendant concedes, our felony murder statute substitutes participation in the underlying felony for the
mens rea
otherwise required to support a murder charge.
See
§ 18-3-102(1)(b), C.R.S.1973 (1978 Repl.Vol. 8);
People v. Morgan,
II.
Defendant also claims that he was entitled to five additiоnal peremptory challenges. We disagree.
Defendant argues that because, at the time he was arraigned, § 16-10-104, C.R.S.1973 (1978 Repl.Vol. 8), provided for fifteen peremptories in capital cases, the trial court erred in restricting him to ten. However, shortly after defendant was arraigned, the statute and the rule were amendеd to allow only ten peremptories in such cases. Section 16-10-104, C.R.S.1973 (1982 Cum.Supp.) (effective July 1, 1981); Crim.P. 24(d) (effective July 16, 1981). Voir dire was conducted in September, two months after thе effective date of these amendments. We hold that the number of peremptory challenges allowed is governed by the statute and rule in effect at the time voir dire is conducted. Thus, the court properly refused to grant fifteen perempto-
*542
ries in this case.
See People v. Fink,
III.
Defendant next argues that the trial court erred in giving the following instruction:
“While you may convict upon the uncorroborated tеstimony of alleged accomplices, still you should act upon their testimony with great caution, subjecting it to a careful examination in light of the other evidenсe in the case. You are not to convict upon such testimony alone, unless clearly convinced beyond a reasonable doubt of its truth.
Uncorroborаted testimony of alleged accomplices means that there is no evidence other than the alleged accomplices’ which tend to establish thе participation of the defendant in the commission of the offense.
Corroboration may come from outside sources or may come from one аccomplice corroborating another.” (emphasis supplied)
The entire instruction, save the emphasized portion, is a model jury instruction.
Colo.JJ.
— Grim. 4:11. The emphasized portion is basеd on Colorado law,
People v. Martinez,
IV.
Defendant’s final contention is that the court erred in permitting Bales to testify, because the prosecution did not disclose Bales’ intention to assert his privilege against self-incrimination and seek immunity until after the trial had begun. We perceive no error.
Although it is clear that the prosecution was under an ongoing discovery order, and should have disclosed information regarding Bales’ intentions аs soon as it knew of them, there is conflicting evidence in the record regarding the time it first gained such knowledge. Thus, the trial court’s finding that there was no abuse of the discоvery rules by the prosecution will not be disturbed on review.
Broncucia v. McGee,
V.
Although defendant has not raised the issue of whether the aggravatеd robbery conviction was improper because aggravated robbery is the lesser included offense of felony murder, we perceive this conviction tо be plain error affecting substantial rights of the defendant, and we address the issue sua sponte on appeal. Crim.P. 52(b).
Our Supreme Court held recently that aggravated robbery is a lesser included offensе of felony murder and that “where the defendant’s conviction for felony murder is based upon the conviction of the robbery victim’s death during the course of the robbery,” the conviction of aggravated robbery must be reversed.
People v. Raymer,
The convictions of felony murder and conspiracy to commit aggravated robbery are affirmed, and the conviction of aggravated robbery is reversed with directions to dismiss the charge of aggravated robbery and to vacate the sentence imposed thereon.