Brief Bank # B-839 (Re: F 3.00e [Aiding And Abetting: Requirement That Act, Knowledge Intent Elements Occurred Prior To Or During The Commission Of The Offense (PC 31)].)
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[Date of Brief: December, 1999]
NOTE: The text of the footnotes appear at the end of the document.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, H000000
Plaintiff and Respondent, [Monterey Co.
v. SS 000000]
Defendant and Appellant.
APPELLANT’S OPENING BRIEF
From the Judgment of the Superior Court
of the State of California, County of Monterey
The Honorable Wendy C. Duffy, Judge Presiding
KATHY M. CHAVEZ, SBN 121701
TARA MULAY, SBN 193606
Berkeley, CA 94709-0006
FAX (415) 723-7544
Attorney for Appellant
By appointment of the
Court of Appeal under the
Sixth District Appellate
Project’s independent case system
IV. THE TRIAL COURT ERRED AND VIOLATED APPELLANT’S DUE PROCESS AND SIXTH AMENDMENT RIGHTS BY FAILING TO SUA SPONTE INSTRUCT THE JURY THAT IT MUST FIND THAT THE ACT, KNOWLEDGE AND INTENT ELEMENTS OF AIDING AND ABETTING EXISTED PRIOR TO OR DURING THE COMMISSION OF THE OFFENSE
A. Summary of Proceedings Below and Introduction to Argument.
Appellant testified on his own behalf that he lent the truck to two friends; that he shortly thereafter heard gunshots and feared they had gotten into a confrontation; that after a few minutes his friends returned and handed him three guns to hold; and that realizing the guns were connected to the shots he had just heard, he hid the guns in his house, and gave his friends a ride home. (RT 543-50.)
The trial court did not instruct the jury on the general principle of aiding abetting liability that the defendant must have the knowledge and intent elements and commit an act facilitating the crime prior to or during the commission of the offense. This principle of law was closely connected to the facts of the case, as appellant’s entire defense was that he was not guilty as an aider and abettor because he had no knowledge a shooting was going to take place and he did not intend to assist the shooters prior to the killing. Moreover, that appellant intended to facilitate the offense at the requisite time was a factual finding necessary to guilt. Thus, the trial court’s failure to instruct on the timing requirement for aiding and abetting was error and violated appellant’s due process and Sixth Amendment rights.
B. The Trial Court Erroneously Failed to Instruct the Jury that Intent to Aid the Perpetrators Must Have Arisen Before or During the Perpetrators’ Commission of the Offense.
1. The duty to instruct.
It is well-established that the act, knowledge and intent elements of aiding and abetting must either precede or coincide with the perpetrator’s commission of the offense. (See People v. Cooper (1991) 53 Cal.3d 1158, 1164; People v. Hoover (1974) 12 Cal.3d 875, 878-79; see also People v. Pulido (1997) 15 Cal.4th 713, 723.) If the defendant was unaware of a crime until after it occurred, and only then formed the intent to assist the perpetrators in escape, he is not guilty as an aider and abettor and is subject to liability as an accessory after the fact. (Cooper, supra, 53 Cal.3d at 1168.)
It is also black letter law that “’[i]t is the trial court’s duty to see that the jurors are adequately informed of the law governing all elements of the case to the extent necessary to enable them to perform their function.’” (People v. Miller (1999) 69 Cal.App.4th 190, 207, quoting People v. Reynolds (1988) 205 Cal.App.3d 776, 779.) Therefore, “’even in the absence of a request, a trial court must instruct on the general principles of law governing the case, i.e., those principles relevant to the issues raised by the evidence
. . . .’” (Ibid., quoting People v. Flannel (1979) 25 Cal.3d 668, 680-681.)
Based on the foregoing principles, People v. Esquivel (1994) 28 Cal.App.4th 1386, 1399 held that accomplice liability for felony-murder does not extend to defendants who aided and abetted a robbery after a killing occurred, and that trial courts have a sua sponte duty to instruct the jury accordingly where the evidence raises an inference that the defendant was a late-joining aider and abettor to a robbery. In People v. Pulido, supra, 15 Cal.4th at 726, the California Supreme Court agreed with Esquivel’s substantive holding that an aider and abettor who assists in a robbery after a killing occurs is not subject to liability for felony-murder. It did not reach the issue of whether sua sponte instruction was required, because the jury resolved the factual question posed by the omitted instruction adversely to Pulido by returning a true finding on a robbery-murder special circumstance. (See also People v. Hines (1997) 15 Cal.4th 997, 1049 [declining to reach the issue again for the same reason].)
Esquivel’s holding that trial courts have a sua sponte duty to instruct on the timing requirement for aiding and abetting was undoubtedly correct. Both Esquivel and Pulido relied on analogies to conspiracy liability and People v. Marks (1988) 45 Cal.3d 1335, 1345, which held that a conspirator cannot be held liable for a substantive offense committed pursuant to the conspiracy before he or she joined the conspiracy. (Esquivel, supra, 28 Cal.App.4th at 1398-1399; Pulido, supra, 15 Cal.4th at 724.) Pulido agreed with Esquivel that extension of felony-murder liability to late-joining aiders and abettors would create an improper conflict between conspiracy liability and aiding and abetting liability: “For purposes of complicity in a cofelon’s homicidal act, ‘[t]he conspirator and the abettor stand in the same position.’” (Pulido, supra, 15 Cal.4th at 724, quoting People v. Ellenberg (1958) 165 Cal.App.2d 495, 500.) People v. Marks, supra, 45 Cal.3d at 1345 also held that instruction on timing of a defendant’s joinder of conspiracy to murder was required sua sponte, because “[a] trial court has a sua sponte duty to instruct on the general principles of law relevant to the issues raised by the evidence.” Because conspirators and aiders and abettors share complicity in their co-defendants’ acts to the same extent, the rule of sua sponte instruction on the timing elements should be equally applicable to both theories of culpability. (Esquivel, supra, 28 Cal.App.4th at 1395, quoting People v. Luparello (1986) 187 Cal.App.3d 410, 438, fn. 8.)
In sum, Cooper, Pulido, Esquivel and Marks all recognize a general principle of law regarding the timing of elements of aiding and abetting, which was undeniably closely connected to the facts of this case, because it was appellant’s defense that he had no knowledge or intent to assist the shooters prior to the killing. Although Esquivel and Pulido addressed the question in the context of felony murder, the principle that the elements of aiding and abetting must arise prior to or during the actual offense is equally applicable to all aiding and abetting cases. Thus, the trial court had a duty to instruct the jury that it must find the elements of aiding and abetting preceded or coincided with the shooting. Since appellant’s defense was that he was only culpable as an accessory after the fact, the trial court’s duty also arose from its obligation to sua sponte give any defense instruction supported by sufficient evidence that is consistent with the defendant’s theory of the case. (People v. Barton (1995) 12 Cal.4th 186, 195.)
2. The failure to instruct.
Although the instant case does not involve felony murder, it involves an analogous error to those that occurred in Esquivel and Pulido, supra, in that the jury was not instructed that the act and intent elements of aiding and abetting must exist prior to a killing for the defendant to be found guilty under that theory. Prior to People v. Birks (1998) 19 Cal.4th 108, a jury would normally have learned of the aiding and abetting timing requirement through an accessory-after-the-fact instruction. Here, the trial court implemented the new rule that a defendant is not entitled upon request to instructions on a lesser-related offense, leaving a gaping hole in the instructions which allowed the jury to find appellant guilty as an aider and abettor based on his own testimony that he only had knowledge of the shooting and an intent to assist the shooters after the shooting took place. (RT 621-26.)
The trial court instructed the jury pursuant CALJIC No. 3.01 that a person aids and abets a crime if, with the knowledge of the unlawful purpose of the perpetrator, and the intent of encouraging or “facilitating the commission of the crime [he] by act or advice aids” the commission of the crime. (RT 692.) This instruction allowed the jury to return a guilty verdict based on a finding that appellant “facilitated” the commission of the offense by aiding in the getaway, even if he had no knowledge of the shooting prior to its occurrence.
CALJIC No. 3.00 also did not provide the necessary instruction on timing. It provides that “[p]ersons who are involved in committing a crime are referred to as principals in that crime. Each principal regardless of the extent or manner of participation is equally guilty.” (RT 691-92.) Pursuant to CALJIC No. 3.00 as given, appellant’s aiding and abetting liability could have been premised on his “participation” in a getaway. The jury was not informed of the legal requirement that appellant must have intended to assist and actually did assist the perpetrators prior to the shooting.
3. The instructional omission violated federal constitutional guarantees.
Failure to instruct the jury to make a factual determination necessary for guilt violates due process and the Sixth Amendment right to a jury trial. (In re Winship (1970) 397 U.S. 358.) Misleading or ambiguous instructions violate due process where there is a reasonable likelihood that the jurors misunderstood the applicable law. (Boyde v. California (1990) 494 U.S. 370, 381-381.) The instructions essentially removed the issue of whether appellant had the requisite intent for aiding and abetting from the jury, and thus constituted federal constitutional error under both Winship and Boyd, supra.
C. The Trial Court’s Error was Prejudicial.
Since the trial court’s failure to instruct on the aiding and abetting timing requirement violated due process and the Sixth Amendment, review for prejudice under Chapman v. California, supra, 386 U.S. at 24, is required. In Esquivel, supra, the court found the instructional error was prejudicial under Chapman because there was “no way of knowing” if the verdict rested on the permissible theory that the defendant had the requisite intent prior to or during the killing, or the impermissible theory that the intent to aid and abet the perpetrators arose afterwards. A fortiori, reversal is compelled here because of the indications in the record that the jury did rest its verdict on the impermissible theory. The prosecutor urged the jury to find guilt based on appellant’s participation after the shooting, by arguing that appellant could be found guilty even if the jurors found he was not present at the scene of the crime. (RT 641-42.) Furthermore, the verdicts indicate the jurors may very well have found appellant guilty based on his acts after the shooting because they found him guilty of second degree murder and non-premeditated attempted murder, even though knowledge and intent to facilitate the shooting as the driver at the actual shooting would have required some forethought. The jury was not instructed on implied malice second degree murder, and therefore, could not have found appellant guilty based a finding that he committed an intentional act dangerous to human life. (See RT 695 [instructing only on the non-premeditated kind of second degree murder].) Therefore, the verdicts only make sense if the jury believed that appellant did “participate in” and “facilitate” the offense, but had no plan to do so, e.g. he only did so after the offense. Thus, the prosecution cannot prove beyond a reasonable doubt that the error was not prejudicial, and this Court must reverse.
Wherefore, for the foregoing reasons, appellant respectfully requests that this Court reverse his convictions and remand for a new trial; or in the alternative, that this Court strike the vicarious personal use enhancements, and remand for a new trial.
DATED: December ___, 1999 Respectfully submitted,
KATHY M. CHAVEZ
TARA M. MULAY
Attorneys for Appellant