CALCRIM Brief Bank # CCB-002 [Re: CC 1603 Robbery – “Place of Temporary Safety”]
CAVEAT: The file below was not prepared by FORECITE. FORECITE has not made any attempt to review or edit this material and is not responsible for its content or format. FORECITE cannot guarantee the information is complete, accurate or up-to-date. You are advised to conduct your own independent, comprehensive research on all issues addressed in the material below.
INSTRUCTING THE JURY WITH CALCRIM 1603 WAS ERROR INASMUCH AS IT INCORRECTLY STATES THE LAW AS IT RELATES TO AIDER AND ABETTOR LIABILITY AS TO THE INTENT TO AID AND ABET A ROBBERY
A. Facts/Introduction
Appellant contends that instruction with CALCRIM 1603 was erroneous in the instant case, because of its focus on successful escape as a means of defining “place of temporary safety” for purposes of defining the duration of a robbery. This concept is crucial in terms of appellant’s liability as to count one, because, as the evidence in this case suggests, if he was involved at all, his participation was limited to driving the actual perpetrators away from the bank. The escape theory was expressly rejected by the state high court to determine whether a getaway driver is a principle as an accomplice, or guilty of being an accessory after the fact. (People v. Cooper (1991) 53 Cal.3d 1158, 1165-1166.)
The instruction, CALCRIM 1603, was read to the jury as follows:
To be guilty of robbery as an aider and abettor, the defendant must have formed the intent to aid and abet the commission of the robbery before or while a perpetrator carried away the property to a place of temporary safety.
A perpetrator has reached a place of temporary safety with the property if he or she has successfully escaped from the scene, is no longer being pursued, and has unchallenged possession of the property. (5, RT 1293.)
B. The Error Is Reviewable On This Appeal; Standard of Review
Legally erroneous instructions which affect substantial rights are reviewable without requirement of objection below. (§ 1259; see, e.g., People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7; People v. Jones (1998) 17 Cal.4th 279, 312; In re Matthew C. (1993) 6 Cal.4th 386, 396, fn. 10; People v. Croy (1985) 41 Cal.3d 1, 12, fn. 6; People v. Hannon (1977) 19 Cal.3d 588, 600.)
Section 1259 embodies the law that a trial court has ultimate responsibility for fulfilling the judicial duty of correctly instructing in a criminal case. (People v. Maurer (1995) 32 Cal.App.4th 1121, 1127-1128; People v. Tapia (1994) 25 Cal.App.4th 984, 1030-1031.) Review is thus appropriate.
The trial court must instruct even without request on the general principles of law relevant to and governing the case. [Citation.] That obligation includes instructions on all of the elements of a charged offense. [Citation.] (People v. Cummings (1993) 4 Cal.4th 1233, 1311.)
The result is the same without reference to sua sponte instructional requirements. Whenever a court instructs a jury, it must instruct correctly. (People v. Montiel (1993) 5 Cal.4th 877, 942; People v. Malone (1988) 47 Cal.3d 1, 49.) If the trial court gave erroneous instructions on a key matter such as mental state, the error is reviewable. (Ante, p. .) Moreover, with an underinclusive instruction on the elements, there may be no assurance the jury actually found an omitted element, as is required for the state and federal constitutional rights to a jury trial and due process of law. (See, e.g., Sullivan v. Louisiana (1993) 508 U.S. 275, 279-281.)
As is required for all instructional error claims, the evidence is taken in a light most favorable to the claim of instructional error. (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 673-674; Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 643-644.)
A recent opinion by Justice Croskey restated that standard:
With respect to our review of issues relating to . . . an issue [of legal instructional error], as well as the question of their prejudicial impact, we do not view the evidence in a light most favorable to the successful [respondent] and draw all inferences in favor of the judgment. Rather, we must assume that the jury, had it been given proper instructions, might have drawn different inferences more favorable to the [appellant] and rendered a verdict in [appellant’s] favor on those issues as to which it was misdirected. (Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1156; see also Henderson, supra, 12 Cal.3d at p. 673 [contrary claim would be “misconceived and devoid of merit”].)
Thus on an instructional error claim, the facts are construed in an appellant’s favor; that is “the customary rule of appellate review.” (Logacz, 71 Cal.App.4th at p. 1152, fn. 2, and Krotin v. Porsche Motor Cars North America, Inc. (1995) 38 Cal.App.4th 294, 298 [Boren, P.J.], both quoting Sills v. Los Angeles Transit Lines (1953) 40 Cal.2d 630, 633.)
C. The Instruction Was Erroneously Given In The Instant Case
It is well settled law that the trial court has a sua sponte duty to “instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’ (People v. St. Martin (1970) 1 Cal.3d 524, 531).” (People v. Sedeno (1974) 10 Cal.3d 703, 715; emphasis added.)
“[O]ne can legitimately argue that the primary function of the judge in a jury trial is to explain the applicable legal principles in such a way as to focus and define the factual issues the jury must resolve.” (People v. Thompkins (1987) 195 Cal.App.3d 244, 251.) That primary function was not fulfilled in this case.
The court’s breach of its duty to clearly and correctly instruct the jury on the correct mental state deprived him of his right to a fair trial and to have the jury determine each element of the failure to register charge. (Fourteenth Amendment, United States Constitution & Article I, ‘ 15, California Constitution) and to trial by jury (Sixth Amendment, United States Constitution).
In the instant case, the instruction, a verbatim CALCRIM instruction was incorrect because of its focus on “successfully escaped from the scene,” as a condition of reaching temporary safety for purposes of defining the duration of a robbery. In People v. Cooper, supra, 53 Cal.3d at p., 1165-1166, the state high court held that commission of a robbery continues until the loot is carried away to a place of temporary safety. However, it rejected the idea that the offense continues “through the escape to a place of temporary safety, regardless of whether or not the loot is being carried away simultaneously. . . .” (Cooper, supra, 53 Cal.3d 1158, 1166.) The escape rule, generally relied upon to determine certain ancillary consequences of robbery, like kidnap for robbery under Penal Code section 209, was held inappropriate for aiding and abetting purposes. A getaway driver, for example, could be more appropriately punished as an accessory after the fact if he gained the needed knowledge and assisted only during an escape and after the asportation of the goods was fully completed. (Cooper, supra, 53 Cal.3d at pp. 1166-1170.) As explained by the Cooper court:
A primary rationale for punishing aiders and abettors as principals-to deter them from aiding or encouraging the commission of offenses-is not served by imposing aider and abettor liability on a getaway driver in a robbery if that person was unaware of the robbery until after all of the acts constituting robbery, including the asportation, had ceased. Such a driver is powerless to either prevent the robbery, or end the acts constituting the robbery if such acts have already ceased. Although the law should also deter the getaway driver from helping the robbers escape from justice after commission of the crime has ended, this goal is appropriately served by the threat of liability as an accessory after the fact. Thus, in determining liability as an aider and abettor, the focus must be on the acts constituting the robbery, not the escape….
…[I]t would be illogical to adopt the escape rule for purposes of determining aider and abettor liability. Such a holding would eliminate the distinction between aider and abettor liability and accessory liability in the context of getaway drivers in a manner both contrary to statute, and out of step with reasonable concepts of culpability and practical considerations of deterrence, as discussed above. (citations omitted.) Moreover, the escape, not being an element of robbery, should not be used to define the duration of robbery for purposes of determining aider and abettor liability. Rather, in delineating a crime it is logical to look to the elements that constitute that crime. …
…In the future, courts should instruct that for purposes of determining liability as an aider and abettor to robbery, the commission of the crime of robbery is not confined to a fixed place or a limited period of time and continues so long as the stolen property is being carried away to a place of temporary safety. (Id. at pp. 1169-1170.)
Whether . . . the robber has reached a place of [temporary] safety is ordinarily a question of fact; a jury’s implied finding on the issue will be upheld so long as supported by substantial evidence. [Citations.]” (People v. Carter (1993) 19 Cal.App.4th 1236, 1251.) In the instant case the jury was erroneously instructed, and thus were not able to apply the correct standard in determining whether the perpetrators had reached a place of temporary safety before appellant allegedly entered into an agreement to aid and abet a continuing robbery.
D. The Error Requires Reversal Under Any Standard
The United States Supreme Court has written, “Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364, 25 L.Ed.2d 368, 90 S.Ct. 1068.) Jury instructions which relieve the government of this burden violate a defendant’s due process rights. (See Francis v. Franklin (1985) 471 U.S. 307, 85 L.Ed.2d 344, 105 S.Ct.1965; Sandstrom v. Montana (1979) 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450.)
The incorrect instructions lessened the government’s burden of proof. It eliminated the requirement that appellant intend to aid and abet a robbery during the commission of that robbery. As instructed the jury could have premised appellant’s conviction on facts creating liability for being an accessory after the fact. Since the jury was incompletely and/or incorrectly informed of the pertinent principles relating to the specific intent required under the specifics of this case, the prosecution’s burden of proof on this crucial issue was significantly reduced.
The error impacts the appellant’s constitutional due process rights therefore such error is reversible, unless the state shows beyond a reasonable doubt that the error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24, 17 L.Ed.2d 705, 87 S.Ct.824.) The State cannot meet that burden.
However, even if the court applies the lesser standard that the error is reversible only if it is reasonably probable that a more favorable result would have been reached absent the error, the error is nevertheless prejudicial. (People v. Watson (1956) 46 Cal.2d 818.)
Under Watson, “trial error is usually deemed harmless . . . unless there is a ‘reasonable[e] probable[ility]’ that it affected the verdict.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715 [quoting People v. Watson (1956) 46 Cal.2d 818, 836].)
Our Supreme Court recently clarified that standard: “We have made clear that a ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” (College Hospital, supra, 8 Cal.4th at p. 715 [citing Watson, supra, 46 Cal.2d at p. 837].)
In the instant case, the record supports the finding that under any standard employed by this court, that reversal is required. As discussed above, there was no evidence that appellant was aware that his companions were participating in a robbery at the ATM machine in question; appellant’s statement indicated that one of them wanted to go to an ATM to get some cash, which would not impart to most people a plan to commit an armed robbery. Further, he did not describe a robbery taking place while he waited in his car, but apparently indicated that they had been engaged in some criminal activity. Even assuming that he was referring to the Doe robbery, there is no way to ascertain when he believed that to be true, or whether under the circumstances of the case, the robbery had ceased before he acquired any requisite knowledge. The jury could have concluded, if properly instructed, that appellant’s participation was to help his friends avoid detection by escape, after they had transported the stolen loot to a place of temporary safety.
Based on the foregoing, appellant requests that his count one robbery conviction be reversed.
Author: Janet Gray
Date: March 2008