PEOPLE v. SIMONTON

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Court of Appeal, Fourth District, California.

The PEOPLE, Plaintiff and Respondent, v. Paul Gilbert SIMONTON, Defendant and Appellant.

No. D030333.

Decided: March 18, 1999

David M. McKinney, under assignment by the Court of Appeal, San Diego, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Robert B. Shaw, Deputy Attorney General, for Plaintiff and Respondent.

Paul Gilbert Simonton appeals a judgment arising out of his conviction of multiple counts of attempted murder, assault with a semiautomatic firearm, assault with a firearm, conspiracy to commit assault with a firearm, conspiracy to commit assault with a semiautomatic firearm, conspiracy to commit assault with force likely to produce great bodily harm and one count of being an accessory to murder.1  He contends that (1) CALJIC No. 8.67, which requires the jury to make certain findings as a prerequisite to the imposition of an enhanced base term under Penal Code section 664, is erroneous as applied to an aider and abettor and (2) the 1994 revised version of CALJIC No. 9.00, given in this case, fails to accurately describe the intent necessary to support an assault conviction.   We find his first argument unavailing and, although we agree that the CALJIC instruction relating to assault was erroneous, the error was harmless in this case.   Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In March 1996, members of the Oriental Boy Soldiers gang drove in two cars to the Star Billiards Pool Hall to seek revenge against members of a rival gang for vandalism done to an Oriental Boy Soldiers' car.   Three occupants of the cars fired shots at a group of people standing outside the pool hall, although no one was hit.   Simonton, who was driving the lead car, did not fire any of the shots.   The district attorney filed a consolidated information charging Simonton and 7 others with 18 counts of attempted premeditated murder, 18 counts of assault with a semiautomatic firearm, 18 counts of assault with a firearm, and 1 count each of conspiracy to commit assault with a firearm, conspiracy to commit assault with a semiautomatic firearm and conspiracy to commit assault with force likely to produce great bodily harm in connection with the shooting spree.

The jury was unable to reach a verdict on 11 of the 18 counts of attempted murder, but found Simonton guilty of all remaining counts.   It also made findings that each of the seven attempted murders was premeditated.   The court sentenced Simonton to three consecutive life sentences, with the possibility of parole for three of the aggravated attempted murder charges, four concurrent life sentences for the remaining aggravated attempted murder charges and eleven, six-year concurrent terms for eleven of the assault with a semiautomatic weapon charges;  it stayed all other imposed terms pursuant to Penal Code section 654.

DISCUSSION

1. CALJIC No. 8.67A. Introduction:  Aider and Abettor Liability

 At trial, in light of evidence that Simonton did not personally fire any of the shots, the prosecutor argued to the jury that Simonton aided and abetted in attempted murder.   Pursuant to Penal Code section 31, “[a]ll persons concerned in the commission of a crime, ․ whether they directly commit the act constituting the offense, or aid and abet in its commission, ․ are principals in any crime so committed.”   Accordingly, an aider and abettor “shares the guilt of the actual perpetrator.  [Citation.]”  (People v. Prettyman (1996) 14 Cal.4th 248, 259, 58 Cal.Rptr.2d 827, 926 P.2d 1013.)

 The mental state necessary to support a conviction for aiding and abetting, however, is different from the mental state necessary to convict the actual perpetrator.  (People v. Mendoza (1998) 18 Cal.4th 1114, 1123, 77 Cal.Rptr.2d 428, 959 P.2d 735.)   While the perpetrator must have the requisite intent to establish the element of each crime charged, an aider and abettor need not personally harbor such an intent;  rather he is liable as an aider and abettor if he acts with knowledge of the criminal purpose of the perpetrator and with the intent of committing, or of encouraging or facilitating the commission of, the offense.  (People v. Beeman (1984) 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)   Thus, to convict a defendant on an aider and abettor theory, the jury must find that he acted with the intent to encourage and bring about the criminal conduct intended by the perpetrator.  (People v. Prettyman, supra, 14 Cal.4th at p. 261, 58 Cal.Rptr.2d 827, 926 P.2d 1013, citing People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5, 221 Cal.Rptr. 592, 710 P.2d 392.) Once it is established that the aider and abettor had such intent, he is criminally liable not only for the offense the perpetrator intended to commit, but also for any other crime the perpetrator actually commits that is a natural and probable consequence of the intended offense.  (People v. Prettyman, supra, 14 Cal.4th at pp. 260-262, 58 Cal.Rptr.2d 827, 926 P.2d 1013.)

 Applying these principles, to convict Simonton for attempted murder on an aider and abettor theory, the jury was required to find that he acted with knowledge of the perpetrator's intent to kill (as necessary to support the charge of attempted murder (see People v. Guerra (1985) 40 Cal.3d 377, 386, 220 Cal.Rptr. 374, 708 P.2d 1252) and the intent to encourage or facilitate that purpose.

B. Applicability of CALJIC No. 8.67 to an Aider and Abettor

In connection with the attempted murder charges, the court instructed the jury with CALJIC No. 8.67, as follows:

“It is also alleged in counts 1 through 18 that the crime attempted was willful, deliberate, and premeditated murder.   If you find the defendant guilty of attempt to commit murder, you must determine whether this allegation is true or not true.

“ ‘Willful’ means intentional.  ‘Deliberate’ means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.  ‘Premeditated’ means considered beforehand.

“If you find that the attempt to commit murder was preceded and accompanied by a clear, deliberate intent to kill which was the result of deliberation and premeditation, so that it must have been formed upon preexisting reflection and not upon a sudden heat of passion or other condition precluding the idea of deliberation, it is [an] attempt to commit willful, deliberate, and premeditated murder.”

The jury was asked to make a finding of whether the attempted murder was premeditated based on a provision in former Penal Code section 664, subdivision (a), which provides:

“Every person who attempts to commit any crime, ․ is punishable ․ as follows:

“(a) If the offense so attempted is punishable by imprisonment in the state prison, the person guilty of that attempt is punishable by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense so attempted;  provided, however, that if the crime attempted is willful, deliberate, and premeditated murder, ․ the person guilty of that attempt shall be punishable by imprisonment in the state prison for life with the possibility of parole․ ” 2  (Stats.1994, ch. 793, § 1.)

Simonton contends that one who aids and abets an attempted murder is not subject to this increased penalty unless the jury finds that the aider and abettor personally premeditated the crime.

There is no dispute that the enhanced penalty would apply to an aider and abettor who himself premeditated the crime.   However, where, as here, the evidence is conflicting on whether the aider and abettor harbored premeditation, does the enhanced penalty under Penal Code section 664, subdivision (a) nonetheless accrue to the aider and abettor based on the perpetrator's premeditation of murder?

 Because an aider and abettor is one who acts “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, supra, 35 Cal.3d at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318), he or she must, at a minimum, know of the perpetrator's intent to commit murder before the Penal Code section 664 penalty applies.3  The question is whether such knowledge, alone, is sufficient.

Faced with this precise issue, Division Two of this court recently concluded that the answer is yes.   In People v. Laster (1997) 52 Cal.App.4th 1450, 61 Cal.Rptr.2d 680, the defendants were convicted of four counts of deliberate and premeditated attempted murder arising out of a drive-by shooting.   Based on the defendants' contention that the shooting was “the unplanned and unforeseen” act of another passenger in the same car, the prosecution argued in part that the defendants were nonetheless criminally liable on an aider and abettor theory.  (Id. at p. 1455, 61 Cal.Rptr.2d 680.)   On appeal, the defendants raised a number of challenges to the jury instructions regarding aiding and abetting, including the argument that the Penal Code section 664, subdivision (a) penalty requires a showing that the aider and abettor premeditated the murder.  (Id. at p. 1469, 61 Cal.Rptr.2d 680.)

The court acknowledged that aider and abettor liability does not generally attach to enhancements or increased penalties based on the conduct of the actual perpetrator:

“ ‘Generally, if a statute is intended to impose a derivative liability on some person other than the actor, there must be some legislative direction that it is to be applied to persons who do not themselves commit the proscribed act.   Such a direction is found in [Penal Code] section 31 which fixes responsibility on an aider and abettor for a crime personally committed by a confederate.   But the statute which defines aiders and abettors as principals in the commission of a criminal offense does not also purport to impose additional derivative punishment grounded on an accomplice's personal conduct, as those statutes which provide for such increased punishment “ ‘do not define a crime or offense but relate to the penalty to be imposed under certain circumstances.’ ”  [Citations.]  Hence the rules which make an accused derivatively liable for a crime which he does not personally commit, do not at the same time impose a derivatively increased punishment by reason of the manner in which a confederate commits the crime.' ”  (People v. Laster, supra, 52 Cal.App.4th at p. 1470, 61 Cal.Rptr.2d 680, quoting People v. Walker (1976) 18 Cal.3d 232, 240-242, 133 Cal.Rptr. 520, 555 P.2d 306.)

However, the court also concluded that “there is no absolute rule against vicarious or derivative application of an enhancement or other penalty provision,” and that determination of the issue was a matter of statutory construction.  (People v. Laster, supra, 52 Cal.App.4th at p. 1471, 61 Cal.Rptr.2d 680.)   Interpreting former Penal Code section 664, subdivision (a), the court concluded that the enhanced penalty clause applied equally to an aider and abettor, without regard to whether he or she personally premeditated the crime.  (Id. at pp. 1472-1473, 61 Cal.Rptr.2d 680.)

We agree with the conclusion of Laster.   The statutory language itself supports the conclusion that the Legislature intended for the increased penalty provision to apply equally to aiders and abettors.   As written, the provision is triggered based on the nature of the crime (“if the crime attempted is willful, deliberate, and premeditated ․”), rather than by specific reference to the persons involved in the offense.   Given this language and the general principles of aider and abettor liability under Penal Code section 31, as described above, it appears that the Legislature intended for the enhanced penalty to apply to an aider and abettor who acts with knowledge of the perpetrator's criminal intent (here, to commit premeditated murder).

Such a construction is consistent with the general principles of the law imposing liability on aiders and abettors, who do not harbor the intent to commit the target offense but act to assist someone known to harbor such an intent.   Further, it avoids the anomalous circumstance that would result if the statute was interpreted otherwise:  an aider and abettor would be fully liable to the same extent as the perpetrator if the perpetrator murders the victim, but would receive a lighter penalty than the perpetrator where the perpetrator attempted unsuccessfully to murder the victim, even though the aider and abettor's conduct was exactly the same.   Such a result would be inconsistent with the mandate of the law, that the same criminal liability attaches whether the defendant directly perpetrates the offense or aids and abets in its commission.  (See Pen.Code, § 31;  People v. Beeman, supra, 35 Cal.3d at pp. 554-555, 199 Cal.Rptr. 60, 674 P.2d 1318.)

For these reasons, we conclude that the enhanced penalty provision of former Penal Code section 664, subdivision (a) applies to aiders and abettors without regard to whether such persons personally harbored an intent to commit premeditated murder.

2. CALJIC No. 9.00

 CALJIC No. 9.00 (1994 rev.) provides as follows:

“In order to prove an assault, each of the following elements must be proved:

“1. A person willfully [and unlawfully] committed an act which by its nature would probably and directly result in the application of physical force on another person;  [and]

“․

“[2.][3.] At the time the act was committed, the person had the present ability to apply physical force to the person of another.

“ ‘Willfully’ means that the person committing the act did so intentionally.”

Simonton argues that this instruction erroneously permits a jury to convict for assault based on a criminal negligence standard rather than on a finding that the defendant had criminal intent.   His argument is well-taken, as established in People v. Smith (1997) 57 Cal.App.4th 1470, 67 Cal.Rptr.2d 604 and People v. Williams (1998) 68 Cal.App.4th 519, 80 Cal.Rptr.2d 372.4

 The People suggest that the holdings in Smith and Williams are either wrong or of limited application based on the “peculiar nature of the defendant's conduct.”   We disagree.   The intentional commission of an act from which injury is reasonably foreseeable does not require any unlawful intent on the part of the defendant, but purports to impose liability for what is otherwise imprudent or reckless conduct.  (See CALJIC No. 3.36.)   This is not sufficient to support a conviction for a criminal offense requiring unlawful intent.   Although assault is a general intent crime, such that the defendant need not intend to effectuate a specific harm, he must at least act with knowledge that the harm will or is substantially certain to result from his conduct.  (People v. Smith, supra, 57 Cal.App.4th at p. 1486, 67 Cal.Rptr.2d 604;  see also People v. Colantuono (1994) 7 Cal.4th 206, 217, 26 Cal.Rptr.2d 908, 865 P.2d 704, quoting People v. Lathus (1973) 35 Cal.App.3d 466, 470, 110 Cal.Rptr. 921.)

 Finally, the People contend that any such instructional error was harmless beyond a reasonable doubt, because “none of the instructions given at trial precluded the jury from considering all relevant evidence on the issue of whether [Simonton] acted with the requisite general intent to commit ․ assault with a firearm.”   This argument begs the question of whether the jury might have convicted Simonton for assault without finding that he acted with knowledge that the shootings were at least substantially certain to result.   However, as discussed above, to convict Simonton of aiding and abetting in the attempted murder, the jury had to find that he acted with knowledge of the others' intent to kill rival gang members.   Thus, the jury necessarily determined, in connection with the attempted murder charges, that Simonton harbored the requisite mental state to support the assault convictions.   In these circumstances, the instructional error was harmless beyond a reasonable doubt.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   The accessory to murder charge arose out of an incident separate from the drive-by shooting that was the basis for the remaining charges.   The court sentenced Simonton to a three-year term, to run consecutive to the sentence on the remaining charges.   On this appeal, Simonton does not raise any challenge to his conviction or the sentence for the accessory charge.

2.   The California Supreme Court has held that the italicized portion of the statute sets forth an enhanced penalty provision, specifying a greater base term for an attempted murder that is premeditated, rather than creating a new substantive offense of attempted premeditated murder.   (People v. Bright (1996) 12 Cal.4th 652, 656, fn. 2, 49 Cal.Rptr.2d 732, 909 P.2d 1354, citing People v. Wims (1995) 10 Cal.4th 293, 305, 41 Cal.Rptr.2d 241, 895 P.2d 77 & People v. Jenkins (1995) 10 Cal.4th 234, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)

3.   Where the aider and abettor is aware of the perpetrator's intent to commit murder, the perpetrator must, by definition, have premeditated the crime.  (See People v. Cortez (1998) 18 Cal.4th 1223, 1232, 77 Cal.Rptr.2d 733, 960 P.2d 537.)

4.   As noted in Williams, the 1998 revision to CALJIC No. 9.00 does not remedy the instructional defect, but in fact compounds the problem because it continues to include a criminal negligence standard in one paragraph, while setting forth a contrary standard in the next paragraph.   (People v. Williams, supra, 68 Cal.App.4th at p. 521, fn. 1, 80 Cal.Rptr.2d 372.)

McINTYRE, J.

KREMER, P.J., and NARES, J., concur.