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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Richard D. PRETTYMAN et al., Defendants and Appellants.

No. D018481.

Decided: April 18, 1994

George L. Schraer, San Diego, under appointment by the Court of Appeal, for appellant Richard D. Prettyman. Neil Auwarter, San Diego, under appointment by the Court of Appeal, for appellant Debra Jane Bray. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Robert B. Shaw and Nancy L. Palmieri, Deputy Attys. Gen., for respondent.

Appellants Debra Jane Bray (Bray) and Richard D. Prettyman (Prettyman) were charged with one count of conspiracy to commit murder and one count of the murder of Gaylord Van Camp, also known as Vance (hereafter “victim”).   It was alleged Prettyman personally used a deadly weapon in committing the offenses.

The jury acquitted appellants of the conspiracy count but convicted them of first degree murder.   It further found true the allegation that Prettyman personally used a deadly weapon in committing the offense.

Appellants raise a series of challenges to the instructions in this case.   Prettyman claims the court erred in (1) denying his request for an instruction that exculpatory statements should not be viewed with caution, and (2) giving an instruction that willfully false statements could be considered in assessing guilt.   Bray, whose conviction rested on the derivative liability of an “aider and abettor,” joins in Prettyman's challenges.   She also raises two separate challenges to the “aiding and abetting” instructions.   She claims it was error (1) to fail to instruct the jury on the “lesser included offense” of involuntary manslaughter and (2) to fail to instruct on the elements of the “target or predicate” crime she aided and abetted.

 1. Facts

On July 20, 1992, the victim was murdered as he lay sleeping in the courtyard of the Pacific Beach Presbyterian Church.   The prosecution sought to show that Prettyman killed the victim by bludgeoning him with a lead pipe, and that Bray aided and abetted the crime.

The evidence showed that Prettyman and Bray, whom witnesses described as having a “boyfriend/girlfriend” relationship, were among the homeless population of Pacific Beach and benefited by the “homeless outreach” program of the Pacific Beach Presbyterian Church.   Among other things, the church provided meals to the homeless and allowed them to sleep in the courtyard of the church.

On Sunday, July 19, Bray had dinner at the church.   Also at that dinner were the victim and another homeless man, Mr. Charette.   After dinner, Bray, Charette and the victim attended the worship services.   Prettyman arrived after the services were finished.

Charette testified that after services he saw Bray and Prettyman arguing.   Bray was yelling at Prettyman to return her papers, which she needed to obtain her check.   Prettyman told her he would return her papers if they could resume their relationship.   She had earlier given her wallet to the victim to prevent Prettyman from getting it, because it contained her license which she could use to replace her papers should Prettyman refuse to return them.

Stephanie Hansen, a church employee, testified that around 9 p.m., after services were over, the victim asked Hansen to intervene and break up an argument between Prettyman and Bray.   Hansen separated Bray and Prettyman, and then spoke to Prettyman for a few minutes in an attempt to defuse his anger.   Prettyman told Hansen he and Bray were arguing because she had accused him of having her papers, and he denied having them.   After a few minutes Hansen spoke to Bray, during which time Prettyman left with the victim.   Bray then told Hansen that Prettyman had the papers she needed to collect her check.

Hansen left the church at approximately 10 p.m.   At that time she saw Bray asleep in the courtyard.

Mr. Eash, who was also homeless, had known Prettyman and Bray for five to six years.   In the early morning hours of July 20, Eash was asleep in his van, which was parked, with all the windows open, next to the parking lot of the church.   He was awakened by loud voices between 3 and 4 a.m.   He heard Bray yelling, looked out his window and saw Prettyman and Bray in the parking lot.   Eash heard Bray angrily state:  “We are going to get that fucker Vance.   He has no idea who he is messing with.   No idea who he is messing with.   He ain't getting away with this shit.”   Bray repeated this several times, and Prettyman nodded in agreement, saying “Yep.   Okay.”  Bray and Prettyman carried on for about five minutes until neighbors shouted at them to be quiet and leave.   The two then left, and Eash returned to sleep.2

At some point in the evening, Charette, who had left the church to drink, returned to the church to retire for the evening.   Charette went to sleep in the presence of Prettyman, Bray and the victim.   Charette awoke between 2 and 2:30 a.m. to urinate, finding that Prettyman, Bray and a third person had left without their belongings.   Only Charette and the victim remained in the courtyard.   Charette soon returned to sleep.

Charette testified that around 5:15 a.m. he was awakened by a thumping sound.   When the thumping stopped he heard the victim gagging on his blood.   During the attack, Charette heard a male voice state:  “Take that.”   He recognized the voice as Prettyman's.   When Charette sat up he saw Prettyman about eight to ten feet away, carrying a three to four-foot-long pipe and walking quickly away from the scene.

Immediately after Prettyman departed, Bray entered the courtyard and told Charette to leave and not look in the victim's direction.   Bray told Charette to wait on the steps, that she would bring him his belongings.   Charette waited on the steps, where he was joined by Bray and a third person.   Prettyman then joined the group, stating they had to leave, but before leaving he went back to where the victim lay.   Prettyman then returned to the group and told Bray the victim had choked on his own blood.   Prettyman also told Bray that the victim deserved it, that it would teach him to threaten them, that it would teach him to steal a wallet, etc.   The group then left the scene.   Bray and Prettyman told Charette not to say anything.3

Mr. Walker, another homeless person who knew Prettyman, Bray and the victim, saw Prettyman, Bray and two other persons at approximately 6 o'clock that morning.   Prettyman separated from the group, approached Walker, and asked if Walker could “keep something under [his] hat.”   When Walker said yes, Prettyman admitted he had used a pipe to kill the victim while he slept and left him gurgling in his own blood.   Prettyman said that after the attack he had looked for his and Bray's belongings, but could not find Bray's wallet until he looked under the victim's head.   A few days later, however, Prettyman told Walker he had just been “bullshitting.”

When Hansen arrived at the church at 6:30 a.m. on July 20, she heard a person moaning but did not investigate, thinking it was simply Bray waking up.   When the custodian alerted Hansen to the victim's condition shortly after 7 a.m., Hansen called 911, then went to investigate and found the bloody body of the victim.

Officers testified there were fresh wounds to the victim's head and a large amount of blood in the area.   The pathologist testified death was caused by blunt blows to the head.   Death occurred 30 to 90 minutes after infliction of the blows.   During the hiatus the victim could have breathed, coughed, and made unconscious sounds or involuntary movements.   There was evidence of inhaled blood.

In addition to attacking the reliability of key percipient witnesses (see fns. 2 and 3, ante ) the defense suggested that another person was the perpetrator.   Mr. Dunner, a transient, was across from the church between midnight and 1:30 a.m. when he saw an Hispanic male emerge from a car carrying a bat or a club.   The Hispanic ran to the patio, began beating what appeared to be a person, and then returned to the car and departed.   When Ms. Boyd, a nurse who attended meetings at the church, arrived at approximately 7:15 a.m., she heard a voice shout, “Let's get out of here, they are coming.”   She looked out the window, saw three fleeing men (two who appeared to be Hispanic and a third who was Caucasian) and then minutes later heard sirens.

 2. & 3.*

 4. The Trial Court Did Not Have an Obligation to Instruct Sua Sponte on the Lesser Included Offense of Manslaughter

 Bray contends the trial court should have instructed sua sponte on involuntary manslaughter as to Bray's “aider and abettor” liability.   Bray's contention rests on the proposition first advanced by the majority in People v. Woods (1992) 8 Cal.App.4th 1570, 11 Cal.Rptr.2d 231, that an aider and abettor can be found guilty of aiding the commission of a crime lesser than the crime the perpetrator was convicted of actually committing, if the lesser crime was foreseeable but the greater crime was not.   Relying on Woods, Bray urges a jury could have found she intended to aid in a non-felonious assault without foreseeing that a killing might result.   Bray claims that since a death occurring without malice in the course of an unlawful act not amounting to a felony is involuntary manslaughter, a “properly instructed” jury might have found her liable for aiding and abetting an involuntary manslaughter.

 We do not accept the basic premise of the Woods majority.   Our conclusion is rooted in the nature of aider and abettor liability.   Because an aider's liability is derivative in nature, his exposure stems not from the lesser included offenses of which the perpetrator might have been convicted, but from those crimes found to have been actually committed.   If the crimes actually committed were foreseeable consequences of the conduct aided and abetted, the aider and abettor is as guilty of those crimes as is the perpetrator, and it matters not that other lesser crimes were also in the realm of foreseeability.

 We begin the analysis by briefly reiterating the basis for aider and abettor liability.   An aider and abettor is liable not only for the criminal conduct he knowingly encouraged (the “predicate crime”), but also for those crimes committed by his partner which a jury determines were within the realm of foreseeable consequences of the predicate crime.  (People v. Solis (1993) 20 Cal.App.4th 264, 271, 25 Cal.Rptr.2d 184.)   As to those latter crimes, the aider's liability is derivative.   He need not have intended that the ultimate crime be committed, nor have personally foreseen the possibility it might be committed.   It is enough that, objectively, the ultimate crime was a reasonably foreseeable consequence of the encouraged conduct.  (Ibid.)

 Our conclusion in Solis was that the potential for derivative liability was limited solely by whether the crime actually committed was foreseeable.  (People v. Solis, supra, 20 Cal.App.4th at pp. 272–273, 25 Cal.Rptr.2d 184.)   The court in Woods, however, found an additional potential modifying factor.   The Woods majority concluded that if the crime actually committed was not foreseeable but lesser included offenses were foreseeable, the aider and abettor could be convicted of aiding and abetting the lesser offense, even though no one was convicted of actually committing that lesser offense.6  (People v. Woods, supra, 8 Cal.App.4th at pp. 1585–1586, 11 Cal.Rptr.2d 231.)

We believe this analysis misconstrues the nature of an aider's liability.   The courts have repeatedly characterized the aider's exposure as being “everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences” (People v. Kauffman (1907) 152 Cal. 331, 334, 92 P. 861), or “any reasonably foreseeable offense committed by the person he aids and abets.”  (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5, 221 Cal.Rptr. 592, 710 P.2d 392.)

The Woods approach, however, eliminates “derivative” liability by divorcing the aider's liability from that of the principal.   It posits that an aider's liability is partly independent of his principal's crimes, allowing the aider to be acquitted of the level of culpability attributable to the principal by claiming that while the aider could foresee the actus reas, he could not foresee the principal's mens rea.   Under the Woods approach, a jury would have to be instructed on every crime the principal's actus reas might implicate, and every crime and degree thereof which might be implicated depending on the mental state of the principal at the time he committed the various acts.   Against this matrix, the jury would have to decide which acts and mental states were reasonably foreseeable consequences of the originally encouraged conduct.

 We do not believe that this approach is or should be the law.7  The cases on which Bray relies, and those cited by the Woods majority, admittedly involved verdicts where the aider was convicted of perpetrating a different crime from that of which the principal was convicted.   However, as stated by Justice Sparks in his Woods dissent, “these cases are best understood as problems of inconsistent verdicts.”  (People v. Woods, supra, 8 Cal.App.4th at p. 1604, 11 Cal.Rptr.2d 231.)   The fact that aiders in other cases were benefited by convictions more lenient than those which could have been imposed does not provide Bray with a basis for claiming entitlement to the same clemency.

 We thus conclude, contrary to Woods, that Croy meant what it said:  An aider and abettor is liable for “any reasonably foreseeable offense committed by the person he aids and abets.”  (People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5, 221 Cal.Rptr. 592, 710 P.2d 392.)   Here, the offense Prettyman committed was determined to be first degree murder, and it is this crime, not some theoretical lesser crime, for which Bray is liable.

 5. The Trial Court Adequately Instructed on Aider and Abettor Liability

 Bray finally contends the trial court was obliged sua sponte to define the elements of the various crimes which could have constituted the “predicate criminal conduct” Bray agreed to aid and abet, pursuant to People v. Mouton (1993) 15 Cal.App.4th 1313, 19 Cal.Rptr.2d 423.   Bray argues that unless the jury was apprised of the crimes and specific elements thereof she might have been found to have aided, the jury could not discharge its obligation to evaluate whether the homicide was a natural and foreseeable consequence of the predicate conduct.

In People v. Solis, supra, 20 Cal.App.4th 264, 25 Cal.Rptr.2d 184, we expressed our disagreement with Mouton, and concluded the jury need only be instructed, as to this aspect of aider and abettor liability, that the defendant must have aided or encouraged conduct which was criminal, without being given a confusing litany of instructions on elements of “predicate” crimes.

 Bray urges that we reconsider Solis, contending (1) it offends due process by having a class of undefined criminal conduct;  and (2) it transgresses the requirement (under cases such as People v. Croy, supra ) that the aider and abettor be aware of the criminal nature of the originally intended act.   Bray cites no authority for the first argument, and we perceive no due process problem.   A defendant is on notice that if he aids in any criminal activity, his liability will extend to those crimes committed by his cohorts which are reasonably foreseeable consequences of the conduct encouraged, even though he may be unaware of which statutes were offended by, or which CALJIC instructions might apply to, the planned predicate conduct.

Bray's second objection is that if instructions on the elements of the target/predicate crimes are not given, a jury cannot assess whether the aider had the requisite knowledge or intent to assist criminal conduct, as required by Croy and People v. Beeman (1984) 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318.   We analyzed this contention at length in Solis, and concluded a jury could decide whether an aider had knowingly assisted in a criminal enterprise by focusing on the facts of the predicate acts the aider agreed to assist, rather than on the legal definitions possibly applicable to those facts had the predicate offenses been separately charged as offenses.  (People v. Solis, supra, 20 Cal.App.4th at p. 274, 25 Cal.Rptr.2d 184.)   We are confident that in the ordinary case, of which this is an example, a jury can evaluate whether the predicate acts are criminal in nature, thus satisfying Croy and Beeman, without deciding which precise definitional crime was planned.   Having accepted appellants' request to reconsider our opinion in Solis, we confirm the legal theory set forth therein, and again reject the position espoused in Mouton.


The judgment is affirmed.


2.   The defense sought to discredit Eash by pointing out his prior inconsistent versions given to investigators:  Nine days after the killing, Eash told a prosecution investigator that the conversation occurred at 7 a.m. rather than 3 or 4 a.m.;   and Eash later told a defense investigator that Prettyman was not even present, further stating the conversation had been an argument between Bray and the victim.

3.   The defense attacked Charette's reliability by showing his alcohol abuse, which included drinking the entire day before the killing.   It also attacked his potential prejudice against Prettyman:  Charette had fought with Prettyman a month before the victim was killed, and Charette and the victim were friends.

FOOTNOTE.   See footnote 1, ante.

6.   Despite protestations to the contrary, the Woods analysis seems equally applicable to lesser-related offenses.  Woods concluded an aider's derivative liability was not truly derivative, since (1) the principal could be guilty of first degree murder but (2) if a death (but not a premeditated one) was within the realm of foreseeable crimes, the aider could be liable only for aiding a second degree murder.  (8 Cal.App.4th 1588–1591, 11 Cal.Rptr.2d 231.)   The Woods facts included cohorts joining in an armed excursion to find a rival gang member, and, while departing, the principal gunning down an innocent witness.   We see no rational way of concluding, in this scenario, that the same analysis would not require instructions on lesser-related offenses.   If the aider is not liable for the crimes actually committed but is liable for lesser offenses within the realm of foreseeability, an aider could argue it was not foreseeable that the innocent bystanders would be killed, but only that the weapons would be brandished to instill fear or aid in escape.   In that the offense of assault with a deadly weapon was thus foreseeable, and was actually committed as part of the use of a gun to kill a bystander, Woods would seem to require instructions on this lesser-related offense.   The Woods majority tried to distance itself from such a result by holding that (1) second or first degree murders were foreseeable, but (2) no instructions on any lesser-included or lesser-related offenses were required because, as a matter of law, only those offenses (and no lesser offenses) were foreseeable.  (8 Cal.App.4th at pp. 1592–1595, 8 Cal.Rptr.2d 231.)   However, whether a crime is a foreseeable consequence of the “predicate crime” is for the jury, not the court, to decide.   (People v. Godinez (1992) 2 Cal.App.4th 492, 499–500, 3 Cal.Rptr.2d 325.)   The Woods majority, declaring by fiat what crimes were or were not foreseeable, usurps that function.

7.   If we accepted Bray's argument we would encounter the rather anomalous, if not absurd, result that Bray could be convicted of aiding and abetting a crime of which, on the evidence here, the principal (Prettyman) could not have been convicted.   The evidence showed that this homicide was at least second degree:  an attack on a sleeping man with a deadly weapon.   Under no conceivable view of the evidence could Prettyman have been convicted of involuntary manslaughter, because the “misdemeanor-manslaughter” rule on which Bray relies has no application when the assailant beats the victim about the head with a deadly weapon.  (People v. Rhodes (1989) 215 Cal.App.3d 470, 475–476, 263 Cal.Rptr. 603.)

FROEHLICH, Associate Justice.

BENKE, Acting P.J., and HUFFMAN, J., concur.