Brief Bank # B-689 (Re: F 8.21a Felony Murder: After-Acquired Intent Of Aider And Abetter (PC 189 & PC 459); F 8.21g No Felony Murder Liability Based On After-Acquired Intent To Commit Felony.)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs. H00000
JOHN DOE, ET AL.,
Defendant and Appellant.
______________________________________/
APPELLANT’S OPENING BRIEF
Appeal from the Judgment of the Superior Court
of the State of California for the County of Santa Clara
Superior Court No. 000000
Honorable Robert P. Ahern, Judge
Sixth District Appellate Project
In Association with:
RICHARD J. INGRAM
(State Bar No. 85014)
HARRINGTON & INGRAM
2500 Vallejo Street, Ste. 200
Santa Rosa, CA 95405
(707) 573-8123
Attorney for Appellant
JOHN DOE
ARGUMENT
I. THE TRIAL COURT ERRED BY SUBMITTING TO THE JURY AN IMPROPER THEORY OF MURDER
A. Introduction
The jury was presented with instructions by which they were told that it was required to find John Doe guilty of murder, even if they believed he did no more than aid and abet Mr. S after Mr. S, alone, killed Mr. P. Doe conceded that he had helped Mr. S remove Mr. P’s property after the killing. He denied having any knowledge or forewarning of Mr. S’s assault on Mr. P or any intent to aid and abet Mr. S in a robbery before the killing. The trial court erred by allowing the jury to convict Doe of murder even if he didn’t aid and abet Mr. S until after the killing. The error caused Doe the denial of his right to confrontation, trial by jury and due process (5th, 6th and 14th Amendments of the U. S. Constitution), and reversal of his conviction is mandated.
B. Facts [Footnote 1]
Doe’s defense at trial was that, though he was present at the time Mr. S assaulted Mr. P, he had no knowledge or forewarning of Mr. S’s intent to assault prior to it. Doe denied participating in the assault on Mr. P or intending to rob him or aid and abet Mr. S in robbing him. Doe conceded that following the assault he helped Mr. S remove Mr. P’s property. Doe testified that the assault began after Mr. S and Mr. P argued, possibly about drugs. Doe observed parts of the struggle, which he believed was just a fight between the two men, but he did not see Mr. S strangle or stab Mr. P. Doe did not even know that Mr. P had died until the following evening.
It was only after the assault was over, when Mr. S told Doe to help him carry away Mr. P’s electronic equipment, that Doe became involved in any criminal activity at all. Doe did help carry the equipment, making two trips, and storing some, and eventually all of the equipment at the apartment where he was staying.
C. If the Jury Believed Doe’s Defense He Was Guilty Of Robbery, But Not Murder
1. Under California Law Doe Was an Aider and Abettor to Robbery
Pursuant to People v. Cooper (1991) 53 Cal.3d 1158, Doe aided and abetted Mr. S in the robbery of Mr. P by virtue of the fact that he joined in the robbery prior to cessation of all acts which constituted the offense. (Id. at 1164.) Doe’s assistance in the asportation of the loot fulfilled the requirements for conviction of aiding and abetting a robbery.
2. Aiding and Abetting a Robber, Who Killed Before the Aider and Abettor Joins the Robbery, Does Not Impose Vicarious Liability For Felony Murder
In this case where Doe aided and abetted a robber, Mr. S, who had killed Mr. P before Doe joined with him to commit robbery, Doe could not be found guilty of aiding and abetting felony murder. This presents a situation similar to that found in conspiracies where “a person who joins a conspiracy after its formation is not liable or bound by the acts of the co-conspirators or for any crime committed by the co-conspirators before such person joins and becomes a member of the conspiracy.” [Footnote 2] (1 Witkin & Epstein, California Criminal Law (2d ed.) sections 183, 184.)
Conspiracy and aiding and abetting are conceptually indistinguishable means to impose derivative liability. “A person may be guilty as a conspirator or as an aider and abettor not only of offenses he intended to facilitate or encourage but of offenses that are the foreseeable consequences of the acts he knowingly and intentionally aided and encouraged.” (People v. Brigham (1989) 216 Cal.App.3d 1039, 1060-1061, dis. opn. citing People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.) Doe established, by his defense, that the only offense he intended to facilitate was robbery. A killing which occurred before the robbery could not, by definition, be a “foreseeable consequence” of that robbery.
Hence, if Doe did not form the intent to aid and abet the robbery until after the killing, he could not be found guilty of the murder committed by Mr. S.
D. The Jury Was Improperly Allowed To Convict Doe Of Murder Even If He Didn’t Aid and Abet Until After The Killing
The jury instructions presented an improper theory of murder liability for Doe because they did not require a finding that he aided and abetted Mr. S prior to the killing. Hence the jury was able to convict Doe of murder on the theory that his post-killing aiding and abetting — i.e., helping to remove Mr. P’s property — rendered Doe equally guilty of the murder which Mr. S had already committed.
1. The Standard Aiding and Abetting Instructions Allowed Murder Liability For Post-Killing Aiding and Abetting
The jury was instructed on aiding and abetting pursuant to CALJIC 3.00 and CALJIC 3.01. [Footnote 3] These instructions informed the jury that if Doe intentionally aided and abetted “the crime” committed by Mr. S, then Doe was “equally guilty” of the crime. (CT 563-564.) Similarly the jury was instructed that one who aids and abets a robbery during which a human being is killed [Footnote 4] is guilty of first degree murder.
Nothing in these instructions precluded aider and abettor liability for prior acts of the perpetrator. To the contrary, the “equally guilty” language of CALJIC 3.00 and the plain meaning of CALJIC 8.27 compelled a finding that Doe was liable to the full extent to which Sweeny was liable even if Sweeny committed the murder before Doe aided and abetted.
Hence, even if the jurors concluded that Doe only aided and abetted the robbery after the killing, the instructions required a finding that Doe was guilty of murder.
2. The Special Intent To Rob Instruction Applied Only To The Perpetrator
Nor did the special “intent-to-rob” instruction preclude the improper theory. This instruction provided that “[a]n intent to rob will not support a conviction of felony murder if it arose after the application of force or fear.” (RT 1475.) When considered in light of the instructions taken as a whole, this instruction was obviously directed toward the perpetrator and not the aider and abettor.
First, the jury was instructed that it is the perpetrator who must have the intent to rob.
“The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime of robbery, a violation of section 211 of the Penal Code, is murder of the first degree when the perpetrator had the specific intent to commit such crime.
The specific intent to commit robbery, section 211 of the Penal Code, and the commission or attempted commission of the crime must be proved beyond a reasonable doubt.” [Emphasis added.] (RT 1474-1475, CALJIC 8.21.)
This instruction, read together with the special “intent-to-rob” instruction, required only that the perpetrator form the intent to rob before the application of force or fear.
Second, the instructions properly informed the jury that intent to rob is a requirement of perpetrator liability but not of aiding and abetting liability. The jury was instructed that to be guilty of robbery as a perpetrator, there must be an intent to rob. (CALJIC 9.40; CT 585.) But to be “equally guilty” of a robbery or robbery murder committed by the perpetrator, the aider and abettor need not personally form the intent to rob, only the intent to encourage or facilitate the perpetrator. (CALJIC 3.00 and CALJIC 3.01; see People v. Croy, supra, 41 Cal.3d at 12, fn. 5 (“The requirement that the jury determine the intent with which a person tried as an aider and abettor has acted is not designed to ensure that his conduct constitutes the offense with which he is charged. His liability is vicarious. Like the conspirator whose liability is predicated on acts other than and short of those constituting the elements of the charged offense, if the acts are undertaken with the intent that the actual perpetrator’s purpose be facilitated thereby, he is a principal and liable for the commission of the offense.”].)
As the Supreme Court recently explained: “‘It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury. (People v. Beeman, supra, 35 Cal.3d 547, 556.)’ ([Citation to Croy]; see People v. Brady, supra, 190 Cal.App.3d 124, 136, and People v. Forte, supra, 204 Cal.App.3d 1317, 1323, fn. 3 [aider and abettor need not share intent to steal but may intend merely to facilitate commission of offense, whether or not sharing in its fruits.” (People v. Montoya (1994) 7 Cal.4th 1027, 1044.
Accordingly, because it referred to an intent required only of the perpetrator, the special “intent-to-rob” instruction was by its terms not applicable to aider and abettor liability. And, no comparable instruction required that the intent to aid and abet precede the killing.
In sum, the instructions, when considered as a whole, improperly permitted the jury to convict Doe of murder based on his testimony that he didn’t aid and abet Mr. S until after the killing when he helped to remove Mr. P’s property.
E. Prejudice
Instruction upon the improper theory compromised appellant Doe’s constitutional rights to a fair trial, to conduct his defense, and to due process of the law, pursuant to the Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution. Because it is impossible to conclude that the jury did not rely on this improper theory, the general verdict of guilty as to first degree murder cannot sustain the conviction. (Suniga v. Bunnell (9th Cir.1993) 998 F.2d 664; People v. Green (1980) 27 Cal.3d 1, 54.) Based on Doe’s testimony, the jury could have concluded that he only aided and abetted the robbery after the killing by Mr. S.
II. EVEN IF AFTER-ACQUIRED INTENT CAN SUPPORT AIDER
AND ABETTOR LIABILITY FOR FELONY MURDER,
KNOWLEDGE OF THE PRIOR KILLING BY THE
PERPETRATOR IS A REQUISITE ELEMENT
In Argument I above, appellant demonstrated that an, aider and abettor should not be subject to felony murder liability if he aids and abets after the perpetrator has committed the killing. (Also, see Argument III below for same proposition as to conspiracy.) However, even if such liability is permissible, at a minimum, a requisite element is the aider and abettor’s awareness that the perpetrator has committed a killing. For example, in People v. Montoya, supra, 7 Cal.4th 1027, 1044-1045, the Supreme Court held that “if an individual happens upon a scene in which a perpetrator unlawfully has entered with intent to commit a felony or theft, and, upon learning of that circumstance, forms the intent to facilitate the perpetrator’s illegal purpose in entering, that individual incurs the liability of an aider and abettor, commensurate with the liability of the perpetrator.” [Emphasis added.) Hence, in a burglary situation, liability for aiding and abetting committed after the entry is permissible but a requisite element of such liability is the aider and abettor’s awareness that an unlawful entry was committed by the perpetrator. If similar liability is permitted for aiding and abetting which occurs after a killing committed by the perpetrator during the felony (but Montoya (7 Cal.4th at 1046, fn. 10) expressly failed to address this question), an essential element would be the aider and abettor’s awareness that a killing had been committed. Otherwise, absurd and unreasonable results would follow, since the aider and abettor would be held liable for offenses about which he had no knowledge. Moreover, such a result would violate the state and federal constitutional principles of substantive due process and procedural/notice due process.
In the present case, the instructions did not require the jury to find the essential element of prior knowledge that a killing had been committed. The jury was only instructed pursuant to CALJIC 3.01 that the aider and abettor had knowledge of the perpetrator’s “unlawful purpose.” Because the perpetrator’s murder liability was based upon felony murder, the unlawful purpose was to rob — not kill. Hence, CALJIC 3.01 did not require any awareness on the part of the aider and abettor of the perpetrator’s intent to kill if indeed the perpetrator did harbor such an intent. More importantly, CALJIC 3.01 — regardless of the awareness of intent — did not require the aider and abettor to be aware that a killing had occurred. Hence, appellant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments of the U.S. Constitution) were violated by the failure to instruct upon this element.
As a result, the judgment should be reversed since an essential element of the charge was removed from the jury’s consideration. (People v. Cummings (1993) 4 Cal.4th 1233, 1316.) Moreover, the question of whether Doe was aware that a killing had been committed was a disputed material issue since Doe testified that he did not know that Mr. P had died until the following evening.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs. H000000
JOHN DOE, ET AL.,
Defendant and Appellant.
APPELLANT’S REPLY BRIEF
Appeal from the Judgment of the Superior Court
of the State of California for the County of Santa Clara
Superior Court No. 164363
Honorable Robert P. Ahern, Judge
RICHARD J. INGRAM
(State Bar No. 85014)
HARRINGTON & INGRAM
2500 Vallejo Street, Ste. 200
Santa Rosa, CA 95405
(707) 573-8123
By Appointment Of The Court Of Appeal
Under The Sixth District Appellate Project
Independent Case System
Attorney for Appellant
JOHN DOE
C. The Court Had A Sua Sponte Duty To Instruct On All the Elements Of The Offense including The Timing Of Doe’s Intent To Aid And Abet In The Robbery
Respondent, conceding that the timing of the formation of the aider and abettor’s intent is an element of the offense [Footnote 5], argues that “the court’s instructions amply provided that an aider and abettor had to possess the requisite intent before the violence occurred.” [Respondent’s Brief, p. 171.]
In People v. Esquivel (1994) 28 Cal-App.4th 1386, the court found that evidence was presented at trial which justified instruction on the same theory as articulated by appellant in this appeal. In Esquivel the defendant was convicted of felony murder on an aider and abettor theory.
Esquivel found that the defendant could not be retroactively culpable for the killing of the victim if it occurred before his becoming an aider and abettor to robbery. (Id. at 1397.) “The instructions given to the jury predicated liability for murder upon a killing by one person who had the intent to commit a robbery when others aided and abetted him without reference to the time frame of such aiding acts. Thus, the instructions did not require the jury to find that Esquivel had the intent to commit robbery before the victim was killed.” (Id.)
Esquivel held that because no instructions were given regarding the time of formation of the defendants intent to participate in the robbery before the murder was committed, and because the instructions given focused on the perpetrator’s intent, the trial court had failed to sua sponte inform the jury of the relevant legal principles. (Id. at 1399.) In this case, as in Esquivel, the trial court had a sua sponte duty to instruct on the timing of appellant’s intent to aid and abet a robbery. [Footnote 6]
The same instructions discussed in Esquivel, CALJIC 8.21, 8.27 and 9.40, were given in this case. As discussed in the opening brief, there were additional instructions given in this case, not mentioned in Esquivel. Respondent, conceding that the timing of the aider and abettor’s intent is a required element, contends that the special “intent to rob” instruction sufficed to provide the jury with the information necessary to make a proper determination of Doe’s guilt. However, the instruction providing that “[a]n intent to rob will not support a conviction of felony murder if it arose after the application of force or fear” [RT 1475] is patently inapplicable to the aider and abettor’s intent. The aider and abettor’s intent is not to rob but to encourage or aid the perpetrator. The jury was told this by other instructions (CALJIC 3.00 and 3.01) which it is presumed to have followed. (People v. Lawson (1987) 189 Cal.App.3d 741, 748.) Hence, when considered as a whole, the instructions informed the jury that the perpetrator’s intent to rob must precede the killing. (People v. Stewart (1983) 145 Cal.App.3d 967, 975 [correct instruction of jury to be considered from entire charge of court, not one particular instruction].) It was not told that the aider and abettor’s intent to encourage or aid the perpetrator must precede the killing.
Nor do CALJIC 3.00 and 3.01 did not provide the jury with the necessary information given the particular facts of this case. As discussed above, they merely instructed the jury that to be “equally guilty” of robbery, or robbery murder committed by the perpetrator, the aider and abettor need not personally form the intent to rob, but only the intent to encourage or aid the perpetrator. (CALJIC 3.00 and CALJIC 3.01; see People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5 [“The requirement that the jury determine the intent with which a person tried as an aider and abettor has acted is not designed to ensure that his conduct constitutes the offense with which he is charged. His liability is vicarious. Like the conspirator whose liability is predicated on acts other than and short of those constituting the elements of the charged offense, if the acts are undertaken with the intent that the actual perpetrator’s purpose be facilitated thereby, he is a principal and liable for the commission of the offense.”])
Similarly, CALJIC 8.27 addresses only the perpetrator’s intent to commit the crime.
Finally, the accessory instructions are completely irrelevant to this argument. This instruction applied only if Doe was helping Mr. S to avoid arrest after the robbery. However, Doe’s testimony was not that he helped Mr. S escape or avoid arrest but that he actually helped Mr. S take Mr. P’s property. Hence the accessory instructions were inapplicable on their face. The theft instructions were inapplicable because they related to perpetrator liability, not aider and abettor liability. Those instructions had no bearing on the ability of the jury to make a determination of guilt based upon all the elements of the aiding and abetting offense. They in no way precluded the jury from “Predicat[ing] liability for murder upon a killing by one person who had the intent to commit a robbery when others aided and abetted him without reference to the time frame of such aiding acts.” (People v. Esquivel, supra, 28 Cal.App.4th at 1397.)
The Esquivel court “observed that the concept of the duration of an offense for purposes of aider and abettor liability and felony-murder liability is a developing issue in the context of various crimes.” (Id. at 1394-1395, fn. 11, citing People v. Montoya (1994) 7 Cal.4th 1027, 1046-1047, fn. 9 [“We . . . note that this case presents the issue of an aider and abettor’s liability only for burglary. We express no opinion on the issue of an aider and abettor’s liability for murder upon a theory of felony murder in which the underlying felony is burglary.”]) Thus, Esquivel finds the instructions inadequate in this area, and the Supreme Court recognizing that distinctions may be necessary when considering the timing of aiding and abetting in the context of felony murder, declined to comment on the issue.
Evidence supporting several theories of liability was proffered at trial. The jury was instructed on most of those theories. The prosecution bore the burden to prove beyond a reasonable doubt each element of the offenses. charged against appellant. Without proper instruction on the elements of this theory, it is impossible to know if the jury properly considered Doe’s aiding and abetting theory, or in reliance upon an improper theory reached their verdict of guilty as to first degree murder.
D. The Argument Of Counsel Cannot Substitute For Instruction
Respondent refers to several places in the record to support its contention that argument by the prosecutor and/or defense counsel provided sufficient clarification of the element, not instructed upon by the trial court. An examination of the record shows that not one of those references in the Respondent’s Brief, at pp. 19-20, addresses the theory of liability based on Doe’s aiding and abetting a robbery after Mr. S killed the victim. [Footnote 7]
Whether the arguments of counsel distorted the meaning of the instructions given is not at issue here. The question posed by respondent’s argument is whether counsels’ arguments supplied the element missing from the trial court’s instructions. Clearly they did not, either individually or collectively. As stated in People v. Brown (1988) 45 Cal.3d 12471 1256, “[W] hen the issue is not whether erroneous instructions have been cured by argument, but whether the interplay of argument with individually proper instructions produced a distorted meaning, it seems appropriate to evaluate the remarks of both counsel to determine whether the jury received adequate information.” This case exemplifies the former situation described by the Brown Court, although in this case the error was the omission of instruction on an element of the offense.
Even if some connection may be made between counsels’ remarks and the element missing from instruction by the trial court, the remarks in no way sufficed to inform the jury of the necessary legal principles. Furthermore, particularly in this case, they cannot be considered the substitute for instruction by the trial court. This Court should “presume the jurors faithfully followed the trial court’s directions. . . “ . (People v. Lawson (1987) 189 Cal.App.3d 741, 748.)
At trial the jury was instructed to base their decision on the facts and the law. (RT 1451.) They were instructed that the statements of counsel were not evidence. (RT 1452.) The jurors were told that if the attorneys said anything concerning the law, in their arguments or at any other time during the trial, that conflicted with the court’s instruction on the law, they were to follow the court’s instruction. (RT 1451.) The jury was given copies of the instructions to take with them into deliberations. (RT 1794, 1797.) They were not, of course, given written copies of arguments by counsel.
The argument of counsel cannot substitute for instructions “which are viewed as definitive and binding statements of the law.” (Wade v. Calderon (9th Cir.5/16/94) F.3d 1 94 DAR 6529, 94 CDOS 3474, citing Boyde v. California (1990) 494 U.S. 370 [108 L.Ed.2d 316].) “[I]nstruction by the trial court would weigh more than a thousand words from the most eloquent defense counsel.” (People v. Mathews (1994) 25 Cal.App.4th 89, 99.) At any rate, “[t]he argument of counsel could not render the [instructional] error harmless.” (United States V. Heyman (4th Cir.1977) 562 F.2d 316, 318.)
In this case where the argument of counsel did not address the issue of the timing of the formation of intent by Doe as an aider and abettor to robbery, or focus on the distinction between the perpetrator’s intent and that of the aider and abettor in these particular facts, they have no bearing whatsoever on the jury’s determination.
E. Prejudice
Instruction upon the improper theory compromised appellant Doe’s constitutional right to a fair trial, to conduct his defense, and to due process of the law, pursuant to the Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution. Because it is impossible to conclude that the jury did not rely on this improper theory, the general verdict of guilty as to first degree murder cannot sustain the conviction. (Sunica v. Bunnell (9th Cir.1993) 998 F.2d 664; People v Green (1980) 27 Cal.3d 1, 54.) Based on Doe’s testimony the jury could have concluded that he only aided and abetted the robbery after the killing by Mr. S.
FOOTNOTES:
Footnote 1: See the Statement of Facts, Part B, John Doe’s Defense, for a full discussion of the facts relevant to this argument.
Footnote 2: This principle is embodied in CALJIC 6.19, which was not given to the jurors in this case. (See Argument II, below.)
Footnote 3: CALJIC 3.00 provided as follows:
“The persons concerned in the commission or attempted commission of a crime who are regarded by law as principals in the crime thus committed or attempted and equally guilty thereof include:
1. Those who directly and actively commit or attempt to commit the act constituting the crime, or
2. Those who aid or abet the commission or attempted commission of the crime.” [Emphasis added.] (CT 563.)
CALJIC 3.01 provided as follows:
“A person aids and abets the commission or attempted commission of a crime when he or she, one, with knowledge of the unlawful purpose of the perpetrator and, two, with the intent or purpose of committing, encouraging or facilitating the commission of the crime, by act or advice aids, promotes, encourages or instigates the commission of the crime.
A person who aids and abets the commission or attempted commission of a crime need not be personally present at the scene of the crime.
Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.
Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.” (CT 564.)
Footnote 4: CALJIC 8.27 provided:
“If a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of robbery, section 211 of the Penal Code, all persons who either directly and actively commit the act constituting such crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.” (CT 579.)
Footnote 5: Respondent concedes that an aider and abettor’s awareness that the perpetrator committed a killing is a required element for aiding and abetting liability for felony murder. For this reason appellant Doe will not discuss the issue raised in argument II in his opening brief.
Footnote 6: Instruction on an element of an offense which impacts substantial rights of the defendant may never be waived by a defendant due to the failure of his counsel to request it. (Penal Code section 1259.) Respondent cites People v. Rodrigues (1994) 8 Cal.4th 1060 for the proposition that counsel had the duty to request the instruction discussed herein. However, the defendant in Rodrigues claimed that the trial court had a sua sponte duty to modify instructions given at trial so as to limit them in a manner inconsistent with the defense. The Supreme Court stated that the trial court was not required to so modify the instructions. (Id.)
Footnote 7: The respondent’s first example refers to the prosecutor’s explanation of aiding and abetting murder. (RT 1571.) The issue in this appeal is not aiding and abetting murder. The issue is whether the jury was instructed upon the element of timing of the formation of Doe’s intent to aid and abet a robbery.
The second example refers to the prosecutor’s explanation that an accidental death which occurs during a robbery, planned by both co-defendants, may be felony-murder. (RT 1586-1587.) The issue raised in this appeal has no relationship whatsoever to an accidental killing.
The third example refers to the prosecution’s argument that if one of the defendant’s did nothing but sit and watch the murder of Mr. P, not realizing it was going to happen, and then helped dispose of the property, that offense would be accessory. (RT 1592-1593.) As discussed above, the accessory instruction was not relevant given the evidence presented at trial. Even if it had some relevance, it in no way supports respondent’s contentions regarding the issue raised herein by appellant.
The fourth example refers to the prosecution’s argument that if the intent to rob is not formed until after the victim was killed then the crime was petty theft. (RT 1594.) As discussed above, the theft instructions related to perpetrator liability, not to the liability of an aider and abettor.
The fifth example refers to Doe’s trial counsels repetition, word for word, of the “intent to rob” instruction. (RT !651.) Trial counsel then argues: “Let’s talk about that [the intent to rob instruction] in relation to whether or not the prosecutor’s theory that this was a planned robbery holds water. This crime, and I believe the physical evidence and the evidence that you have in front of you shows this crime was committed by someone who did not exhibit any amount of pre-planning. As previously indicated, there is no thought to even a weapon being brought in to accomplish this grizzly task. The victim is beaten with whatever weapon of opportunity the heat of the moment would provide. One’s shoes and feet. A mug. A vacuum cleaner cord, still connected to the vacuum. And a screwdriver allegedly retrieved from the kitchen after the assault had started.” (RT 1651.) As discussed above, this instruction is patently inapplicable to the aider and abettor’s intent. Counsel’s argument does nothing to enlighten the jury about the distinction between the intent of an aider and abettor and a perpetrator.
The sixth example refers to Doe’s defense counsels argument that “if you find that the defendant took the property, but that the intent to take arose after the use of force or fear as an afterthought, if you will, as the evidence in this case suggests, the law is such that you cannot find the defendant guilty of murder under a felony murder theory or of robbery.” (RT 1654.) In this statement counsel tells the jurors that if Doe formed the intent to take, that is if he was the perpetrator in the robbery, after he, the perpetrator, killed Mr. P then he was not guilty of felony murder. In fact, he was not even guilty of robbery, according to counsel. Again, the element of the timing of the aider and abettor’s intent is not mentioned.
The seventh example refers to Mr. S’s trial counsel’s criticism of CALJIC 3.01, who says its poorly written and incorrect, but seems to focus on the relationship between “knowledge and purpose” and “intent and purpose.” (RT 1710 1711.) Counsel does not address the element of timing of intent. Furthermore, Mr. S’s counsels remarks would not
logically be interpreted by the jury as applying to Doe. The eighth example refers to Mr. S’s counsels statement that presence at the scene is not enough for aiding and abetting liability. (RT 1711-1712.) The issue raised herein is completely unrelated to any question concerning the effect of presence at the scene of a crime.
And, finally, the ninth example refers to Mr. S’s counsel who says that because the intent to take the property arose after the killing there was no robbery. (RT 1716.) The statement does not refer to the element of timing of the formation of Doe’s intent to aid and abet, but to the perpetrator’s intent and the definition of robbery.
