Brief Bank # B-924 (Re: F 3.02b [No Aider And Abettor Liability When Perpetrator Acquitted (PC 31)].)
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IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
–o0o–
PEOPLE OF THE STATE OF CALIFORNIA No. S087893
Plaintiff/respondent,
v.
JOHN DOE AND ROBERT ROE,
Defendants/appellants.
__________________________________/
APPELLANT ROBERT ROE’S BRIEF ON THE MERITS
___________________________________
An appeal from the Superior Court of California
San Joaquin County Case No. SC059733B
Honorable Terrence Van Oss, Judge Presiding
____________________________________
David McNeil Morse, #66923
Attorney at Law
600 Harrison Street
Suite 535
San Francisco, CA 94107
(415) 777-9644
Attorney for Appellant
ROBERT ROE
STATEMENT OF ISSUES PRESENTED FOR REVIEW
Was the Court of Appeal correct in reversing appellant Roe’s convictions for the following two independent reasons:
1. Under California law, a defendant who is tried as an aider and abettor cannot be convicted of an offense greater than that of which the actual perpetrator is convicted, where the aider and abettor and the perpetrator are tried in the same trial upon the same evidence; and
2. On this record, it cannot be concluded with reasonable certainty that any participant acted with malice in connection with counts 1, 2, and 4, so it cannot be said that the crimes of murder and attempted murder have been committed.
STATEMENT OF THE CASE AND FACTS
Appellant accepts respondent’s statement of the case and facts as accurate.
ARGUMENT
INTRODUCTION
Appellant and Doe were jointly charged and convicted in counts 1, 2, and 4, with the murder of Mr. W, and the attempted murders of Ms. M and Mr. M. As recognized by the Court of Appeal, other findings by the jury strongly suggest that appellant was convicted of these counts on the theory that he aided and abetted Doe rather than that he was the actual perpetrator. (Slip Opn. at pp. 20-21.) As to count 1, the evidence indicated that Mr. W was struck only by bullets fired by Doe, and the allegation of having inflicted great bodily injury and death to Mr. W as a result of discharging a firearm from a motor vehicle was found true only as to Doe, and found not true as to appellant. As to count 2, again the allegation of having inflicted great bodily injury to Ms. M as a result of discharging a firearm from a motor vehicle was found true only as to Doe, and found not true as to appellant. As to count 4, although the jury’s reasoning cannot be inferred from additional findings as with the other two offenses, it is unlikely that the jury would have found that appellant was an actual perpetrator since such a finding would have been inconsistent with its findings on the other two counts, and there was no evidence that appellant fired his gun in the direction of Mr. M (or any other person).
The Court of Appeal found that Doe was entitled to, but did not receive, a legally accurate instruction on imperfect self defense. Under the Chapman [Footnote 1] standard of prejudice which applies to such instructional error (reversal required unless the prosecution can prove the error harmless “beyond a reasonable doubt”), the court determined that Doe’s murder conviction must be reversed.
A majority of the court went on to conclude that appellant’s convictions must be reversed as well. The majority based its conclusion on two independent reasons:
(1) under California law, a defendant who is tried as an aider and abettor cannot be convicted of an offense greater than that of which the actual perpetrator is convicted, where the aider and abettor and the perpetrator are tried in the same trial upon the same evidence; and (2) on this record, we cannot conclude with reasonable certainty that any participant acted with malice in connection with counts 1, 2, and 4, so we cannot say that the crimes of murder and attempted murder have been committed.
(Slip Opn., p. 21.)
As will be seen below, the majority was correct in its analysis. When an aider and abettor is tried jointly with a perpetrator “on the same evidence” (i.e., where there is no evidence that the aider and abettor had an independent and more culpable mens rea than that of the perpetrator), the liability of the aider and abettor is entirely derivative and vicarious, and he cannot legally be convicted of a greater offense than that of which the actual perpetrator is convicted. In addition, even if this were not so as a matter of law, in order to convict the aider and abettor of the greater offense the jury would have to find on proper instructions that the greater offense was actually committed by someone, and in order to find this the jury would have to properly find that either the perpetrator or the aider and abettor harbored the mens rea required for the greater offense. Where the reviewing court cannot determine with reasonable certainty that this finding has been made, reversal is required as to both the perpetrator and the aider and abettor.
>I. SINCE THERE WAS NO EVIDENCE THAT ROE HAD A MENS REA THAT WAS INDEPENDENT OR DIFFERENT FROM THAT OF DOE, ROE’S LIABILITY AS AN AIDER AND ABETTOR FOR ANY OFFENSES COMMITTED BY DOE WAS ENTIRELY DERIVATIVE. CONSEQUENTLY, THE ERROR REGARDING THE IMPERFECT SELF-DEFENSE INSTRUCTION THAT REQUIRES REVERSAL OF DOE’S CONVICTION FOR MURDER ALSO REQUIRES REVERSAL OF ROE’S CONVICTION FOR MURDER
The first reason advanced by the majority in support of its conclusion that appellant’s convictions cannot stand is merely a logical corollary to this state’s law on aider and abettor liability. As the majority points out, this court has made it clear in numerous decisions that the liability of an aider and abettor is derivative and vicarious. (See, e.g., People v. Croy (1985) 41 Cal.3d 1, 12; People v. Padilla (1995) 11 Cal.4th 891, 920; People v. Zermino (1999) 21 Cal.4th 927, 932.) As this court stated in People v. Mendoza (1998) 18 Cal.4th 1114:
The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. The actual perpetrator must have whatever mental state is required for each crime charged … An aider and abettor, on the other hand, must “act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560, original italics.) The jury must find “the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense ….” (Citations.)
(Id., at pp. 1122-1123.)
In People v. Padilla, supra, 11 Cal.4th 891, for example, the defendant was prosecuted for murder on an aiding and abetting theory. The defendant argued that the jury should have been instructed on lesser offenses to murder on the basis that, because of chronic drug abuse, he lacked the mental state required for first degree murder. This court held:
The argument misapprehends the theory of defendant’s liability for first degree murder on which the case was framed by the information and tried. Defendant was charged in the information with conspiring, soliciting, and aiding and abetting Hernandez in the murder of Esther Alvarado; his criminal liability, if any, was thus derivative, for it depended on Hernandez’s state of mind. The jury was so instructed by the trial court, who told them that they could find defendant guilty of first degree murder only if they found that “the killing was preceded and accompanied by a clear, deliberate intent on the part of Jesse Hernandez to kill, which was the result of deliberation and premeditation ….”
(Id., at p. 920 [emphasis in original].)
Based on this principle, a jury is instructed (as it was in this case) that the specific intent and mental state necessary for the commission of the charged offense must exist “in the mind of the perpetrator” in order for the charged offenses to have been committed. (CALJIC Nos. 3.31, 3.32.) The jury was thus properly focused in this case on the state of mind of Doe as the alleged perpetrator. Under the properly given instructions, unless Doe had the required specific intent and state of mind to make him guilty of murder or attempted murder, then these crimes were “not committed.” (Ibid.) Under these principles, appellant’s derivative and vicarious liability depended completely on the question of what crime was committed by Doe.
In People v. Solis (1993) 20 Cal.App.4th 264, disapproved on other grounds in People v. Prettyman (1996) 14 Cal.4th 248, 266-268 and fn. 7, the court set forth the process by which a jury determines whether a defendant is guilty of an offense on an aiding and abetting theory:
First the jury must determine the crime actually perpetrated by the acting criminal, which determination includes a particular definition of the crime committed and necessitates the giving of instructions as to that crime (including any lesser-included crimes that may be appropriate under the factual circumstances). If the principal actor is found not to have committed the crime, there can be no derivative liability no matter how evil the intentions of the would-be aider and abettor.
(Id., at p. 271.)
It logically follows from this, as the Court of Appeal concluded, that an aider and abettor whose liability is purely derivative cannot be guilty of a greater offense than that actually committed by the perpetrator. Indeed, had appellant requested it, the trial court would have been required to instruct the jury that appellant could not be convicted of a greater crime than Doe. (People v. Parker (1977) 76 Mich.App. 432; 257 N.W.2d 109.) In Parker, the defendant was tried for murder on an aiding and abetting theory. Mitchell, the perpetrator, claimed self-defense. The trial judge instructed the jury to consider the case of each defendant separately, that either or both defendants could be convicted or acquitted, but that “under no circumstances may you find Joseph Parker guilty of a higher offense than Philman Mitchell if you do find him guilty of any offense”. (Parker, supra, 257 N.W.2d at p. 119.) On appeal, defendant Mitchell claimed that the trial judge’s instruction that the jury must consider separately the question of each defendant’s guilt conflicted with his instruction that defendant Parker could be convicted, if at all, of no higher offense than defendant Mitchell. The Michigan court rejected this claim, stating, “In this case, defendant Mitchell admitted the shooting, but claimed self-defense. Accordingly it would have been error for the trial judge to have denied defendant Parker’s request for an instruction to the effect that he could not be convicted of a higher crime than Mitchell.” (Ibid.)
This is merely the logical “other side of the coin” of the principle that once the elements of aiding and abetting have been established, the mens rea of the perpetrator is imputed to the aider and abettor even though he may not have personally harbored the same mens rea. Thus, although this court in People v. Beeman, supra, 35 Cal.3d 547 held that the aider and abettor must “share” the specific intent of the perpetrator, the holding makes clear that this does not mean that the aider and abettor must personally harbor the same specific intent. Whereas in common parlance we might think that if two people “share” the same intent they must necessarily both “have” the same intent, this is not what Beeman holds. On the contrary, as this court explained:
By “share” we mean neither that the aider and abettor must be prepared to commit the offense by his or her own act should the perpetrator fail to do so, nor that the aider and abettor must seek to share the fruits of the crime. (Citation.) Rather, an aider and abettor will “share” the perpetrator’s specific intent when he or she knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.
(Id., at p. 560.)
In other words, the mens rea of the perpetrator is imputed to the aider and abettor when the aider and abettor intentionally performs an act to aid, assist or encourage the perpetrator’s commission of the crime with knowledge of the “full extent” of the perpetrator’s criminal purpose. In the instant case, there was no evidence that appellant had any different or more culpable state of mind than Doe. He armed himself and accompanied Doe to Conway Homes. It could be inferred from the evidence introduced at trial that when appellant fired his weapon out the car window, he knew Doe’s “criminal purpose,” and aided Doe’s commission of “the crime” with the intent to facilitate the commission of that crime. The prosecution theory was that Doe’s “criminal purpose” in going to Conway Homes was to commit a murder in retaliation for the earlier incident in which shots were fired at Doe. (RT 5533-5534.) However, if Doe’s testimony was believed, Doe did not go to Conway Homes with the intent to shoot or kill anyone, and he only fired his gun because he believed that he was about to be assaulted. If so, Doe’s “criminal purpose” at the time he fired was to defend himself, perhaps unreasonably. This would make Doe guilty of voluntary manslaughter, and consequently make appellant guilty of the same crime as an aider and abettor if, with awareness of this purpose, he intentionally aided Doe’s commission of the offense.
Justice Hull, despite his criticism of the majority’s position in his dissent, acknowledges “the principle that an aider and abettor cannot be guilty of a greater offense than the actual perpetrator.” (Conc. & dis. opn. at pp. 1-2.) As Justice Hull states:
Under normal circumstances, an accomplice cannot be convicted of an offense where the perpetrator is acquitted in the same proceeding. It logically follows that an accomplice cannot be convicted of an offense in same proceeding in which the perpetrator is convicted of a lesser included offense.
(Conc. & dis. opn. at pp. 2-3 [emphasis added].)
This principle is illustrated by the case of People v. Allsip (1969) 268 Cal.App.2d 830. There, Allsip was charged and convicted with aiding and abetting Barnes in the commission of a rape. Barnes, however, was acquitted. The Court of Appeal reversed Allsip’s conviction, noting that it is impossible to aid and abet a crime that has not been committed. (Id., at p. 831.) As acknowledged by Justice Hull, conviction of a lesser included offense implies acquittal of the greater offense. (Conc. & dis. opn. at pp. 2-3, citing People v. Kurtzman (1988) 46 Cal.3d 322, 324-325, 331-334.) Consequently, if Doe could have been found guilty under proper instructions of voluntary manslaughter only (and thereby acquitted of murder), then Roe could have been convicted of no more than voluntary manslaughter since it would be impossible to aid and abet a crime (murder) which had not been committed. As stated in People v. Solis, supra, 20 Cal.App.4th at p. 270, this remains the case “no matter how evil the intentions of the would-be aider and abettor.”
While acknowledging the logic of the majority’s position, however, Justice Hull argues that homicide is “treated differently” than other offenses for purposes of assessing aider and abettor liability. (Conc. & dis. opn. at p. 3.) According to Justice Hull, “homicide has traditionally been treated as a single offense for purposes of accomplice liability, with the degree of guilt of the individual actors dependent on their respective states of mind.” (Id., at p. 1.) Justice Hull further argues that appellant should not be given “the benefit of Doe’s imperfect self-defense theory but [should be held] responsible on the basis of his own state of mind at the time of the offense.” (Id., at p. 9.) Under Justice Hull’s formulation, the jury should apparently have been instructed that while voluntary manslaughter was a possible verdict for Doe, the only possible verdicts for appellant were guilty of murder or not guilty.
However, as pointed out by the majority, Justice Hull can cites no authority for the proposition that homicide is “treated differently in California.” (Slip opn. at p. 26, fn. 6.) Instead, Justice Hull relies on decisions from other states where the assessment of aider and abettor liability is different than the well-established law of our state.
For example, Justice Hull cites the case of Parker v. Commonwealth (Ky. 1918) 201 S.W. 475 for the proposition that “where the person who fires the shot which produces the death acts in sudden heat and passion or sudden affray, and is guilty only of manslaughter, the aider and abettor who incites the killing may be guilty of willful murder if he at the time aids, abets, and incites the killing, entertains malice aforethought, and his actions are controlled by such malice.” (conc. & dis. opn. at p. 6.) However, examination of the opinion reveals that Kentucky law is very different from California law on the question of how a jury is instructed to determine the liability of an aider and abettor. In Parker, the jury was instructed it should separately determine the state of mind of the defendant as an aider and abettor, and “find the defendant, Clarkie Parker, guilty of murder if the aiding and abetting was done with malice aforethought [and] guilty of manslaughter if the aiding and abetting was done in sudden heat and passion or sudden affray.” (Id. at p. 478.) In this regard, the jury was specifically instructed “to find the defendant Parker guilty of willful murder if the jury believe from the evidence beyond a reasonable doubt that the shooting by Shepherd was done in sudden heat of passion or sudden affray, and that the aiding and abetting by Parker was done with malice aforethought.” (Ibid.) Therefore, unlike the law in California which, as set forth above, does not assess the relative culpability of an aider and abettor according to his or her personal mens rea, the law in Kentucky does. This may not be so much a difference in how homicide is treated as a difference in how aider and abettor liability is determined.
The law of aider and abettor liability is well-established in this state, and makes no distinction between homicide and any other crime for purposes of determining what offense, if any, an aider and abettor is guilty of. As set forth above, the jury must first determine what crime was committed by the perpetrator. It must then determine whether the alleged aider and abettor is also guilty of that crime on an aiding and abetting theory. As the majority point out, Justice Hull presents no principled “analytic distinction” that suggests that homicide be treated differently.
At best, Justice Hull presents factual scenarios that have confronted courts in other states where there is independent evidence that the aider and abettor actually had a more culpable state of mind than the perpetrator. In Parker v. Commonwealth, supra, 201 S.W. 475, for example, there was evidence from which a jury could infer that Parker, the aider and abettor, had purposely “precipitated a difficulty” with the victim that caused the perpetrator to shoot and kill the victim while in a heat of passion. In such a situation, it may be logical to assess the relative liability of the perpetrator and the aider and abettor based on their individual mens rea. Another example can be found in Mayfield v. United States (D.C. 1994) 659 A.2d 1249, a case cited by respondent. (Respondent’s Brief on the Merits, hereafter “RBM,” at p. 23.)
In Mayfield, a jury convicted the defendant in a joint trial of premeditated first degree murder under an aiding and abetting theory, but convicted the actual killer only of second-degree murder. The facts were as follows: on the day of the killing, Mayfield walked into a house and stated to those present that he was going to “kill that bastard Michael Ward.” Later that day, Mayfield and codefendant Gene Dudley drove to the apartment building where Ward resided and had a physical altercation with Ward. As they left the scene, Mayfield stated “come on, he’s going to get his gun,” “we going to do him,” and “we’re going to get the burner.” Mayfield and Dudley then went to Mayfield’s house, where Mayfield apparently retrieved a gun, and drove to a recreation center.
Upon arrival, Mayfield got out of the car, carrying the gun, and went with Dudley into the recreation center. Inside the recreation center, Mayfield made further statements that he was going to “fuck Michael up” or “kill” Ward when he saw him. Mayfield and Dudley returned to Ward’s apartment where Mayfield employed what he admitted was a ruse “to get Mike outside.” Dudley was now holding the gun. Ward came out, walked into the middle of the street, and showed Mayfield and Dudley that he was not carrying a gun. After an exchange of some words, Dudley moved his arm in front of Mayfield, who “eased back” in the car seat, out of the gun’s path, and Dudley fatally shot Ward in the back. Mayfield drove back to his mother’s house, and stated “we have [t]o do something with the gun.” Dudley and another person threw the gun down a sewer.
On direct appeal (in which he did not raise any issues concerning aiding and abetting lability), Mayfield’s conviction was affirmed. In a subsequent appeal, Mayfield attempted to raise the issue of a “failure of proof” of one of the elements of the crime of which he was convicted on an aiding and abetting theory, “namely, that someone other than Mayfield committed first degree murder while armed.” (Id., at pp. 1253-1254.) Although the court refused to reach this issue on the merits, it discussed it in dicta, and observed that as a question of sufficiency of the evidence, the analysis should focus “on whether there was sufficient evidence to support the conviction of the aider and abettor, not the outcome with respect to the principal.” (Id., at p. 1254.) While noting that “We are not cited by either party to any case, nor have we found any, where in a joint trial the principal was convicted of a lesser offense than the aider and abettor,” the court concluded that there plainly was sufficient evidence for a reasonable jury to conclude that Mayfield aided and abetted first degree murder. (Ibid.)
In Mayfield, as opposed to the instant case, there was an abundance of evidence based on his repeated statements and conduct that the accomplice Mayfield had an independent and possibly more culpable mens rea than the perpetrator. His intent to kill and premeditation were abundantly clear, and the jury’s act in convicting the perpetrator of second degree murder may have been an exercise of jury nullification or prompted by some feelings of lenity toward Dudley. In fact, even though Dudley was the actual perpetrator, it appeared that Mayfield had the primary motive to kill the victim, and the traditional labels were, in a sense, reversed. There is thus a certain logic to upholding the jury’s decision to convict the “accomplice” Mayfield of first degree murder and the “perpetrator” Dudley of second degree murder.
However, the Mayfield situation is distinguishable from the instant case and does not offend the principle that an aider and abettor cannot be convicted of an offense greater than that of which the actual perpetrator is convicted, where the aider and abettor and the perpetrator are tried in the same trial upon the same evidence. (See, e.g., slip opn. at p. 24 [“… here the evidence against Roe and Doe was the same”].) While it is unclear how a California court would deal with a factual scenario like that of Mayfield, it has no bearing on the instant situation. Mayfield is not a case where the perpetrator asserted a mitigating factor that was held to be personal and should not have been extended to the aider and abettor. In any event, as noted above, our state’s system of determining aider and abettor liability is well-established, and looks exclusively to the mens rea of the perpetrator to determine the question of what offense was committed. The mens rea of the aider and abettor is only relevant with regard to whether it satisfies the elements of aiding and abetting under the familiar Beeman formulation, i.e., did the aider and abettor have the necessary specific intent to make him liable as an aider and abettor. The issue of whether, in addition, the aider and abettor harbored the actual mens rea to make him independently and directly liable for the crime is irrelevant under the Beeman definition. To evaluate the guilt or innocence of an aider and abettor based on whether he actually harbored the necessary mens rea for commission of the substantive offense would represent a sea change in the California law of aider and abettor liability, and at the very least would require very different jury instructions. (See, discussion, post, at pp. 17-19.)
Although not stated as clearly, respondent’s position is very similar to Justice Hull’s. Thus respondent also argues that a different rule of aider and abettor liability should apply to the crime of homicide. (RBM, at p. 16 [“at least in homicide cases, an aider and abettor’s liability may … be greater than that of the perpetrator when both are tried together”].) Although respondent characterizes its position as being different than that of Justice Hull (see, e.g., RBM, at p. 28 [“… there is no need to resort to Justice Hull’s alternative argument”]), they appear to be based on the same principle, i.e., that imperfect self-defense is a form of personal “mitigation” that can only apply to the actual perpetrator, and that the presence of imperfect self-defense does not reduce the culpability of an aider and abettor. Respondent can cite no California case, however, that so holds. [Footnote 2] On the contrary, respondent acknowledges that imperfect self-defense is not a “defense” but a separate theory of voluntary manslaughter. (RBM at p. 19.) Respondent argues that it would be “nonsensical to impute a perpetrator’s idiosyncratic behavior to his aider and abettor,” and that “it is within the province of the jury to find differences in the principals’ respective states of mind and to assign guilt accordingly.” (RBM at pp. 19-20.) However, respondent does not explain how its arguments can be reconciled with Beeman and its progeny which, as set forth above, establish beyond question that aider and abettor liability in this state is, in fact, purely derivative and depends on the state of mind of the perpetrator. (See, e.g., People v. Padilla, supra, 11 Cal.4th at p. 920.) Respondent’s position is unsupported by the previous holdings of this court and should be rejected.
In sum, the majority’s position is sound, logical, and firmly grounded in this state’s law of aiding and abetting as announced in the opinions of this court. Neither the dissenting Justice nor respondent suggest any valid reason why the majority’s conclusion should not be upheld. As the majority states, “Where the perpetrator and the aider and abettor are tried in the same trial upon the same evidence, it is nonsensical under California law to convict an aider and abettor of a crime greater than the perpetrator and California authorities so hold.” (Slip opn. at pp. 25-26.) This court should uphold the majority’s conclusion and reverse appellant’s convictions for murder and attempted murder.
II. ROE’S CONVICTION MUST BE REVERSED FOR THE INDEPENDENT REASON THAT IT CANNOT BE CONCLUDED WITH REASONABLE CERTAINTY THAT THE JURY FOUND THAT ANY PARTICIPANT ACTED WITH MALICE IN CONNECTION WITH COUNTS 1, 2, AND 4, AND SO IT CANNOT BE SAID THAT THE CRIMES OF MURDER AND ATTEMPTED MURDER WERE COMMITTED
In stating its second reason for the reversal of appellant’s convictions, the Court of Appeal focused on the instructions given to the jury. It is a fundamental principle of due process under the federal constitution that in order to sustain a conviction in a criminal case the government must provide proof beyond a reasonable doubt of every fact necessary to prove the charged offense. (In re Winship (1970) 397 U.S. 358, 368.) As the majority points out, the crimes of murder and attempted murder require that the element of malice be proven beyond a reasonable doubt and found by the jury upon proper instructions.
As both Justice Hull and respondent acknowledge, malice is “the intent to kill or the intent to do a dangerous act with conscious disregard of its danger plus the absence of both heat of passion and unreasonable self-defense.” (Conc. & dis. opn. at p. 10; RBM at p. 17, both citing People v. Breverman (1998) 19 Cal.4th 142, 189 [Kennard, J., dissenting].) Because of the defective imperfect self-defense instruction, the issue of whether Doe harbored malice was never properly presented to the jury, and so it cannot be said that the jury ever found that Doe harbored malice. As Justice Hull further acknowledges, “Because an accomplice need not himself harbor malice, Roe’s guilt turns on whether it can be said the jury found Doe harbored malice at the time of the offenses.” (Conc. & dis. opn. at pp. 9-10.) Therefore, as the majority correctly concluded, “we cannot say the jury properly found that either Doe or Roe acted with malice aforethought, we cannot say that the crimes of murder or attempted murder have been committed, and Roe’s convictions must be reversed along with Doe’s.” (Slip opn. at p. 30.)
Justice Hull and respondent argue that the jury’s finding that Doe was guilty of murder and attempted murder, even though based on defective instructions, nevertheless provides a basis to uphold appellant’s conviction for the offenses. Justice Hull states that since appellant is not entitled to rely on Doe’s imperfect self-defense to reduce his level of culpability, “the erroneous instruction cannot negate the jury’s finding of malice in this regard.” (Conc. & dis. opn. at p. 10.) Similarly, respondent states that “[i]n light of the jury’s findings that Doe acted with malice, and the inapplicability of Doe’s claimed mitigation to Roe, the record discloses reliable jury findings that Roe aided and abetted murder and attempted murder.” (Supp. RBM at p. 4.)
These arguments are specious. Both Justice Hull and respondent base their arguments on the unsupported notion that imperfect self-defense is a form of affirmative defense that must be asserted individually. According to this argument, the “defense” only applies to the party asserting it, and it cannot apply to the aider and abettor if it is asserted by the perpetrator only. However, imperfect self-defense is not a “defense” but rather “a shorthand description of one form of voluntary manslaughter.” (People v. Barton (1995) 12 Cal.4th 186, 200.) As this court explained in Barton:
… voluntary manslaughter, whether it arises from unreasonable self-defense or from a killing during a sudden quarrel or heat of passion, is not a defense but a crime; more precisely, it is a lesser offense included in the crime of murder.
(Id., at pp. 200-201.)
The instructional error thus precluded the jury from making a reliable finding that Doe committed murder or attempted murder. Since appellant’s potential liability for these offenses was purely derivative, this also precluded the jury from making a reliable finding that appellant had committed either offense. Even assuming that appellant could be found guilty of the offenses if he were found to independently harbor malice (as is apparently the case in some other jurisdictions), the jury would have to be instructed to make that finding. (See discussion of Parker v. Commonwealth, supra, 201 S.W. 475, at pp. 10-11, ante.) Without a reliable finding that either defendant harbored malice, appellant’s convictions for murder and attempted murder cannot stand.
CONCLUSION
For the foregoing reasons, appellant’s convictions on counts 1, 2, and 4 must be reversed.
Dated: 6/25/02 Respectfully submitted,
_________________________
DAVID McNEIL MORSE
Attorney for Appellant
BRIEF ON THE MERITS FOOTNOTES:
Footnote 1: Chapman v. California (1967) 386 U.S. 18, 24.
Footnote 2: Without citing any authorities other than commentators, respondent argues that where a perpetrator presents an “excuse” for his actions as opposed to a “justification,” only the perpetrator may get the benefit of it. (RBM 20-22.) Respondent then argues that imperfect self-defense is classified as an “excuse” rather than a “justification.” As respondent’s sources acknowledge, however, the theoretical distinction between “justifications” and “excuses” is the subject of academic debate, and is not even accepted by many commentators, let alone courts. For example, one of the law review articles relied upon by respondent begins:
Let us now look at the way in which our ubiquitous invocation of the reasonable person enables us to function without the fundamental distinction between justification and excuse. This distinction is basic in German criminal law. It was also indispensable to the common law of homicide as understood by Blackstone. Today, however, only those common law theorists who read and respect the philosophical literature have high regard for the distinction.
(Fletcher, The Right and the Reasonable (1985) 98 Harv.L.Rev. 949, 954 [footnotes omitted; emphasis added].)
In addition, this court has used the terms “justification” and “excuse” interchangeably in discussing the malice-negating effect of an honest belief in the need to defend oneself, stating “… if one man kills another intentionally, under circumstances beyond the scope of innocent homicide, the facts may come so close to justification or excuse that the killing will be classed as voluntary manslaughter rather than murder.” (People v. Flannel (1979) 25 Cal.3d 668, 679-680 [emphasis added].)
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
–o0o–
PEOPLE OF THE STATE OF CALIFORNIA No. S087893
Plaintiff/respondent,
v.
JOHN DOE AND ROBERT ROE,
Defendants/appellants.
__________________________________/
APPELLANT ROBERT ROE’S PETITION FOR REHEARING
___________________________________
An appeal from the Superior Court of California
San Joaquin County Case No. SC059733B
Honorable Terrence Van Oss, Judge Presiding
____________________________________
David McNeil Morse, #66923
Attorney at Law
600 Harrison Street
Suite 535
San Francisco, CA 94107
(415) 777-9644
Attorney for Appellant
ROBERT ROE
APPELLANT ROBERT ROE’S PETITION FOR REHEARING
TO: THE HONORABLE RONALD GEORGE, CHIEF JUSTICE AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT:
Appellant ROBERT ROE (“appellant”) requests a rehearing pursuant to California Rules of Court, rule 27(a). The opinion was filed on June 25, 2001. As set forth below, a rehearing should be granted because, inter alia, the court erroneously held that its unexpected and precedent-breaking interpretation of Penal Code section 31 and the law of aider and abettor liability may be retroactively applied to appellant’s case. Such application results in a violation of appellant’s federal constitutional right to due process.
THIS COURT SHOULD GRANT REHEARING AND MODIFY ITS OPINION TO MAKE APPLICATION OF ITS NEW INTERPRETATION OF AIDING AND ABETTING LIABILITY PROSPECTIVE ONLY
Prior to the decision in this case, this court had repeatedly and uniformly held that in order to be guilty of the charged offense, an aider and abettor need not harbor the specific intent or mental state necessary for conviction of the charged crime. (See, e.g., People v. Croy (1985) 41 Cal.3d 1, 12; People v. Padilla (1995) 11 Cal.4th 891, 920 [“Padilla“]; People v. Zermino (1999) 21 Cal.4th 927, 932.) As this court stated in People v. Mendoza (1998) 18 Cal.4th 1114:
The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. The actual perpetrator must have whatever mental state is required for each crime charged … An aider and abettor, on the other hand, must “act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560, original italics.) The jury must find “the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense ….” (Citations.)
(Id., at pp. 1122-1123.)
This doctrine was applied regardless of whether the charged crime was the same as the “intended crime,” (i.e., the crime that the alleged aider and abettor had the intent or purpose of committing, encouraging, and facilitating), or whether the charged crime was a different crime, not necessarily intended by the aider and abettor, which the aider and abettor was nonetheless liable for under the natural and probable consequences doctrine. (See, e.g., Padilla, supra, 11 Cal.4th 891, 920.)
In Padilla, for example, the defendant was prosecuted for murder on an aiding and abetting theory. Both the charged crime and the intended crime were first degree murder; in other words, there was no allegation that the charged murder was a natural and probable consequence of some lesser crime that the defendant had intended to aid and abet. The defendant argued that the jury should have been instructed on lesser offenses to murder on the basis that, because of chronic drug abuse, he lacked the mental state required for first degree murder. This court held:
The argument misapprehends the theory of defendant’s liability for first degree murder on which the case was framed by the information and tried. Defendant was charged in the information with conspiring, soliciting, and aiding and abetting Hernandez in the murder of Esther Alvarado; his criminal liability, if any, was thus derivative, for it depended on Hernandez’s state of mind. The jury was so instructed by the trial court, who told them that they could find defendant guilty of first degree murder only if they found that “the killing was preceded and accompanied by a clear, deliberate intent on the part of Jesse Hernandez to kill, which was the result of deliberation and premeditation ….”
(Id., at p. 920 [emphasis in original].)
Based on this line of cases, the jury in the instant case was never asked to determine whether appellant harbored the mental states necessary to make him guilty of the charged crimes of murder and attempted murder. Instead, the jury was instructed under well-established law that the specific intent and mental state necessary for the commission of the charged offense must exist “in the mind of the perpetrator” in order for the charged offenses to have been committed. (CALJIC Nos. 3.31, 3.32.) The jury was thus focused in this case on the state of mind of Doe as the alleged perpetrator. Under the properly given instructions, unless Doe had the required specific intent and state of mind to make him guilty of murder or attempted murder, then these crimes were “not committed.” (Ibid.) Under these principles, as incorporated into the instructions to the jury, appellant’s derivative and vicarious liability depended completely on the question of what crime was committed by Doe.
In its decision in the instant case, however, this court has held for the first time that the doctrine of derivative liability set forth in Padilla and other cases, wherein the mental state of the perpetrator is imputed to the aider and abettor, applies only to crimes prosecuted under the natural and probable consequences doctrine. (Slip Opinion, p. 6, fn. 1.) According to its opinion in the instant case, this court now holds that “when guilt is not predicated on the natural and probable consequences doctrine, the aider and abettor must, indeed, share the actual perpetrator’s intent.” (Ibid. [emphasis in original.]) The court also holds, for the first time, that the guilt of the aider and abettor is determined not on the basis of the state of mind of the perpetrator but on the aider and abettor’s “own mens rea.” (Slip Opinion, p. 10.) According to the opinion in the instant case, only the acts of the perpetrator are imputed to the aider and abettor, and the aider and abettor’s level of guilt “is permitted to float free,” tied only to the aider and abettor’s individual state of mind. (Slip Opinion, p. 7 [quoting Dressler, Understanding Criminal Law (2d ed. 1995) § 30.06[C], p. 450].)
While acknowledging that language in such cases as People v. Croy, supra, 41 Cal.3d 1 has “caused some confusion” (Slip Opinion, p. 6, fn. 1), the court fails to cite or discuss Padilla or acknowledge that its opinion in the instant case has sub silentio overruled Padilla and other cases that have applied the doctrine of derivative liability where the charged crime is the same as the intended crime.
To apply this new principle to appellant’s case runs afoul of the federal constitution in two different ways: (1) it violates the fundamental requirement of due process that in order to sustain a conviction in a criminal case, every fact necessary to prove the charged offense must be proven beyond a reasonable doubt and found by the jury upon proper instructions (In re Winship (1970) 397 U.S. 358, 368.); and (2) it violates the rule against ex post facto application of the law. (Bouie v. City of Columbia (1964) 378 U.S. 347, 354.)
As indicated above, appellant’s jury was never instructed that it should determine his level of guilt based on his personal mens rea, and that in order to find him guilty of first degree murder and attempted murder, it necessarily had to find that he personally harbored the required mental states for those crimes. This court states in its opinion that “[a]bsent some mitigating circumstances negating malice one cannot knowingly and intentionally help another commit an unlawful killing without acting with malice.” (Slip Opinion, p. 13.) Based on this, the court apparently holds that appellant can be properly convicted of murder and attempted murder without an express finding on proper instructions that either he or the perpetrator harbored malice. As noted above, this violates the holding of Winship. To the extent that the jury’s verdict was based on Doe’s state of mind, it is vitiated by the improper instruction on unreasonable self-defense. To the extent that the jury’s verdict was based on appellant’s state of mind, it is vitiated by the failure of the jury instructions to require, as this court has now held for the first time, that in order to be guilty as an aider and abettor appellant must be found to have personally harbored malice.
An ex post facto law is one which later punishes an act done before the enactment of the law. The ex post facto law and its evil twin, the bill of attainder (legislation which purports to convict by decree and without the inconvenience of trial), have been anathema to the American legal system from its inception. Although courts traditionally refer to the ex post facto prohibition in the singular, actually two such proscriptions exist in the United States Constitution and a third in the California Constitution. (U.S. Const., art. I, § 9, cl. 3, § 10; Cal. Const., art. I, § 9.) The effect of the ex post facto prohibition is to invalidate: `[(1)] Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. [(2)] Every law that aggravates a crime, or makes it greater than it was, when committed. [(3)] Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. [(4)] Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.’ (Calder v. Bull (1798) 3 U.S. (3 Dall.) 386, 390, italics omitted; Collins v. Youngblood (1990) 497 U.S. 37, 42.)
(People v. Mesce (1997) 52 Cal.App.4th 618, 622.)
As relevant here, any statute ” `which makes more burdensome the punishment for a crime, after its commission’ ” violates the ex post facto prohibition of the United States Constitution (Collins v. Youngblood, supra, 497 U.S. 37, 42, quoting Beazell v. Ohio (1925) 269 U.S. 167, 169-170), and its California counterpart. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 294-297.) While this limitation is specifically directed to the legislative, not judicial, branch, the same principle applies to judicial decisions. (People v. King (1993) 5 Cal.App.4th 59, 79.) Thus, “If a judicial construction of a criminal statute is `unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect. [Citation.]” (Bouie v. City of Columbia, supra, 378 U.S. 347, 354.)
As set forth above, prior to this court’s decision in the instant case, the guilt of an aider and abettor was derivative, and determined on the basis of the mental state of perpetrator. In this case, the court for the first time and in a way “unexpected and indefensible by reference to the law which had been expressed prior” to this time held that the level of guilt of an aider and abettor is determined based on his or her personal mens rea in cases where the doctrine of reasonable and probable consequences does not apply.
In this way, the court’s unexpected change in the well-settled law serves to make “more burdensome the punishment for a crime, after its commission” where a defendant is tried for murder and convicted on an aiding and abetting theory. Under the well-settled and existing law at the time of his offense and trial, appellant’s liability as an aider and abettor was purely derivative, and he could not legally be found guilty of a more serious crime than that committed by the perpetrator. Under the principle of derivative liability, appellant was entitled to a reversal of his convictions as a matter of law based on the reversal of Doe’s convictions. The court’s decision retroactively deprived appellant of that reversal, thereby increasing the punishment for the offense in violation of the due process clause. Appellant’s right to due process was denied by the failure to apply the previously well-settled law of aiding and abetting liability to his case. [Footnote 1]
CONCLUSION
For the foregoing reasons, the court is urged to grant rehearing and reconsider its holding that its unexpected and precedent-breaking interpretation of the law of aiding and abetting can be applied to appellant’s case.
Dated: 6/25/02 Respectfully submitted,
_________________________
DAVID McNEIL MORSE
Attorney for Appellant
PETITION FOR REHEARING FOOTNOTES:
Footnote 1: In addition, appellant would have pursued a different trial strategy had the newly announced law of aiding and abetting been in effect at the time of his trial. (See, e.g., People v. Cuevas (1995) 12 Cal.4th 252, 275-276.) Under the law as now set forth in the instant opinion, appellant could have introduced evidence of his own state of mind and requested instructions on lesser included offenses based on his personal mens rea. Under the law set forth in Padilla, supra, 11 Cal.4th 891, 920, however, appellant was precluded from obtaining such instructions and had no reason to request them because he could not be expected to anticipate the change in the law brought about by this court’s decision in this case.
