SERIES 1600 ROBBERY AND CARJACKING
F 1603 ROBBERY: INTENT OF AIDER AND ABETTOR
TABLE OF CONTENTS
F 1603.1 Titles And Identification Of Parties
F 1603.1 Inst 1 Robbery: Intent Of Aider And Abettor—Title
F 1603.1 Inst 2 Identification Of Prosecution And Defendant
F 1603.2 Robbery: Intent Of Aider And Abettor—Tailoring To Facts: Persons, Places, Things And Theories
F 1603.2 Inst 1 (a & b) Robbery: After Acquired Intent Of Aider And Abettor—Element And/Or Pinpoint
F 1603.2 Inst 2 Robbery: When Still In Progress— Temporary Safety Defined (PC 189 & PC 211)
F 1603.2 Inst 3 Robbery: Improper To Allow Aider And Abettor Liability Based On Intent Formed After The Perpetrator Has Carried The Property To A Place Of Temporary Safety (PC 189 & PC 211)
F 1603 Notes
F 1603 Note 1 Temporary Safety Rule When Property Is Not Being Carried
Return to Series 1600 Table of Contents.
F 1603.1 Titles And Identification Of Parties
F 1603.1 Inst 1 Robbery: Intent Of Aider And Abettor—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1603.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1603.2 Robbery: Intent Of Aider And Abettor—Tailoring To Facts: Persons, Places, Things And Theories
F 1603.2 Inst 1 (a & b) Robbery: After Acquired Intent Of Aider And Abettor—Element And/Or Pinpoint
ALERT: [NF] People v. Wilkins (3/7/2013, S190713) 56 CA4th 333 held that the trial court should have instructed the jury, as requested, with CALCRIM 3261, on the theory that a homicide and an underlying felony do not constitute one continuous transaction for purposes of the felony-murder rule if the killer has escaped to a place of temporary safety before the homicide takes place.
Alternative a:
*Add as Element to CC 401:
The defendant formed the intent to aid and abet the commission of the robbery before the perpetrator has reached a place of temporary safety with the property if he or she has not successfully escaped from the scene, is being pursued, and has challenged possession of the property.
Alternative b [CC 3400 Format]:
The defendant contends that (he/she) had no knowledge of the perpetrator’s unlawful purpose and/or did not form the intent to aid and abet the commission of the robbery before _______________ <name of perpetrator> finally left the structure. The prosecution must prove beyond a reasonable doubt that the defendant had the required knowledge and intent before _______________ <name of perpetrator> finally left. The defendant does not need to prove the absence of such required knowledge or intent. If you have a reasonable doubt about whether the defendant had the required knowledge and/or intent before _______________ <name of perpetrator> finally left the structure you must find the defendant not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Instruction—See FORECITE F 315.1.2 Inst 2.
Intent Requirement—See FORECITE F 1600.6 Inst 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1603.2 Inst 2 Robbery: When Still In Progress— Temporary Safety Defined (PC 189 & PC 211)
ALERT: [NF] People v. Wilkins (3/7/2013, S190713) 56 CA4th 333 held that the trial court should have instructed the jury, as requested, with CALCRIM 3261, on the theory that a homicide and an underlying felony do not constitute one continuous transaction for purposes of the felony-murder rule if the killer has escaped to a place of temporary safety before the homicide takes place.
*Add to CC 1603:
A “place of temporary safety” need not be a specific location. Indeed, a “place of temporary safety” may be reached when a suspect is still on the street or in a motor vehicle. In determining whether a suspect has reached a “place of temporary safety,” consider all the circumstances including, but not limited to, the following: (1) the suspect’s subjective belief as to whether [he] [she] has reached a place of temporary safety; (2) the amount of time which has transpired between the commission of the crime and the apprehension of the suspect; (3) whether the suspect has had an opportunity to dispose of some or all of the loot from the crime; (4) whether the suspect exercised continuous control over the victim; (5) whether any crimes committed during the escape were linked by a motive related to the underlying felony; and (6) any other factor which is relevant to a determination of whether the suspect is still fleeing from the scene of the crime or is trying to escape from [his] [her] pursuers.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Temporary Safety—According to the Supreme Court, a “‘place of temporary safety’ can only mean that [the defendant] is still fleeing, still trying to escape.” (People v. Salas (1972) 7 C3d 812, 822.) Importantly, a place of temporary safety may be reached even though the defendant is merely driving around aimlessly. (People v. Ford (1966) 65 C2d 41, 48.) Insofar as a place of temporary safety may be found almost anywhere, it is appropriate to look to the defendant’s subjective belief as to whether he has reached a place of temporary safety. (People v. Johnson (1992) 5 CA4th 552, 560-61; but see People v. Haynes (1998) 61 CA4th 1282, 1292 [temporary safety is not tested based on subjective impressions or recklessness of the robber but on an objective measure of safety following the initial taking]; see also People v. Ramirez (1995) 39 CA4th 1369, 1374-75.) In addition, other appropriate factors include the time interval between the commission of the crime and the defendant’s apprehension and whether or not the defendant has disposed of all or part of the stolen loot. (Ford, 65 C2d at 56-57.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
It may be argued that the term “temporary safety” is a technical term which requires sua sponte definition. (See, e.g., People v. Pitmon (1985) 170 CA3d 38, 52; and FORECITE PG II(B).)
Additional factors which may be relevant to this issue are whether the defendant exercised continuous “control” over the victim and whether any crimes committed during the escape were linked by a motive related to the underlying felony. (See People v. Stankewitz (1990) 51 C3d 72, 101.)
This instruction would also be appropriate as a supplement to CJ 9.40.1 regarding aider and abettor liability for robbery based on after-acquired intent.
CALJIC NOTE: See FORECITE F 8.21.1b.
F 1603 Note 3 Temporary Safety Rule When Property Is Not Being Carried
F 1603.2 Inst 3 Robbery: Improper To Allow Aider And Abettor Liability Based On Intent Formed After The Perpetrator Has Carried The Property To A Place Of Temporary Safety (PC 189 & PC 211)
ALERT: [NF] People v. Wilkins (3/7/2013, S190713) 56 CA4th 333 held that the trial court should have instructed the jury, as requested, with CALCRIM 3261, on the theory that a homicide and an underlying felony do not constitute one continuous transaction for purposes of the felony-murder rule if the killer has escaped to a place of temporary safety before the homicide takes place.
Alternative A *Modify CC 1603 Para 2 as follows [added language is underlined]:
To be guilty of robbery as an aider and abettor, the defendant must have formed the intent to aid and abet the commission of the robbery:
1. Before or while the perpetrator carried away the property to a place of temporary safety; and
2. Before the perpetrator reached a place of temporary safety with the property.
A perpetrator has reached a place of temporary safety with the property if he or she has successfully escaped from the scene, is no longer being pursued, and has unchallenged possession of the property].
Alternative B *Modify CC 1603. Para 2 and add defense theory language [CALCRIM 3400 format]:
The prosecution must prove the defendant formed the intent to aid and abet the commission of the robbery before the perpetrator has carried the property to a place of temporary safety. The defendant contends (he/she) did not aid and abet the alleged robbery because (he/she) did not form the intent to aid and abet until after the perpetrator had carried the property to a place of temporary safety. The defendant does not need to prove this defense theory, the prosecution must disprove it beyond a reasonable doubt.
If you have a reasonable doubt about whether the defendant formed the intent to aid and abet before the perpetrator carried the property to a place of temporary safety, or about any other essential fact or element necessary to prove the defendant guilty, you must find (him/her) not guilty [of robbery but you may still find him guilty of being an accessory after the fact.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – See CALCRIM Motion Bank # CCM-001.]
Right To Instruction Relating Defense Theory To Burden Of Proof – See FORECITE F 315.1.2 Inst 2.
No Aider and Abettor liability for robbery based on intent formed during escape – In People v. Cooper (1991) 53 Cal.3d 1158, 1165-1166, the California Supreme Court held that commission of a robbery continues until the loot is carried away to a place of temporary safety. A getaway driver, for example, could be more appropriately punished as an accessory after the fact if he gained the needed knowledge and assisted only during an escape and after the asportation of the goods was fully completed. (Cooper, supra, 53 Cal.3d at pp. 1166-1170.) As explained by the Cooper court:
A primary rationale for punishing aiders and abettors as principals-to deter them from aiding or encouraging the commission of offenses-is not served by imposing aider and abettor liability on a getaway driver in a robbery if that person was unaware of the robbery until after all of the acts constituting robbery, including the asportation, had ceased. Such a driver is powerless to either prevent the robbery, or end the acts constituting the robbery if such acts have already ceased. Although the law should also deter the getaway driver from helping the robbers escape from justice after commission of the crime has ended, this goal is appropriately served by the threat of liability as an accessory after the fact. Thus, in determining liability as an aider and abettor, the focus must be on the acts constituting the robbery, not the escape….
…[I]t would be illogical to adopt the escape rule for purposes of determining aider and abettor liability. Such a holding would eliminate the distinction between aider and abettor liability and accessory liability in the context of getaway drivers in a manner both contrary to statute, and out of step with reasonable concepts of culpability and practical considerations of deterrence, as discussed above. (citations omitted.) Moreover, the escape, not being an element of robbery, should not be used to define the duration of robbery for purposes of determining aider and abettor liability. Rather, in delineating a crime it is logical to look to the elements that constitute that crime. …
…In the future, courts should instruct that for purposes of determining liability as an aider and abettor to robbery, the commission of the crime of robbery is not confined to a fixed place or a limited period of time and continues so long as the stolen property is being carried away to a place of temporary safety. (Id. at pp. 1169-1170.)
“Whether . . . the robber has reached a place of [temporary] safety is ordinarily a question of fact; a jury’s implied finding on the issue will be upheld so long as supported by substantial evidence. [Citations.]” (People v. Carter (1993) 19 CA4th 1236, 1251.)
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
Re: Right To Instruction On Accessory Of Fact: See FORECITE F 3310 Inst 1 [Defense Theory That Defendant Committed Uncharged Non-Included Offense And Not The Charged Offense].
For briefing on this issue see CALCRIM Brief Bank # CCB-002 [Re: CC 1603 Robbery – “Place of Temporary Safety”] by Janet Gray. *NOTE: *The Attorney General conceded error in the Respondent’s Brief.
F 1603 Note 1 Temporary Safety Rule When Property Is Not Being Carried
“For purposes of aider-abettor liability, the commission of a robbery continues so long as the property taken is being carried away to a place of temporary safety. [Citation.]” (People v. Harris (1994) 9 CA4th 407, 421.) “A person therefore commits robbery as an aider and abettor if, all other elements being also satisfied, the person ‘form[s] the intent to facilitate or encourage commission of the robbery prior to or during the carrying away of the loot to a place of temporary safety.’ [Citation.]” (People v. Pulido (1997) 15 CA4th 713, 723.)
In People v. Cooper (1991) 53 CA3d 1158, the California Supreme Court held that a robbery continues during a robber’s escape from the scene if, and only if, the robber is still in possession of the loot. (Id. at pp. 1167-1171.) For example, it does not continue during the robber’s escape if the loot has been “abandoned in haste prior to the escape” or “carried away by a second getaway car.” (Id. at p. 1166, fn. 10.)
Accordingly, CC 1603 is not applicable as to the issue of when (or whether) a robber has reached a place of temporary safety if he or she escapes without the property.
