PEOPLE v. MENDOZA

Reset A A Font size: Print

Court of Appeal, Sixth District, California.

 The PEOPLE, Plaintiff and Respondent, v. Jose Luis MENDOZA et al., Defendants and Appellants. IN RE: Jose Luis MENDOZA. On Habeas Corpus.

Nos. H012195, H013887.

Decided: November 18, 1996

 Eric S. Multhaup, Mill Valley, Under Appointment by the Court of Appeal, for Appellant Jose Luis Mendoza. William M. Robinson, San Francisco, Under Appointment by the Court of Appeal, for Appellant Juan Manuel Valdez. Mark D. Greenberg, Oakland, Under Appointment by the Court of Appeal, for Appellant Edgar Raul Valencia. Daniel E. Lungren, Attorney General of the State of California, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, and Sharon G. Birenbaum, Deputy Attorney General, for Respondent.

Defendants Jose Luis Mendoza, Edgar Paul Valencia and Juan Manuel Valdez were each convicted in a joint trial of one count of second degree murder, five counts of attempted murder and one count of shooting at an occupied building, and it was found true that all three defendants had been armed with a firearm (Pen.Code, § 12022, subd. (a)(1)) and Valencia had personally used a firearm (Pen.Code, § 12022.5) in the commission of these offenses.   On appeal, defendants Mendoza and Valdez assert that the rule that aiders and abettors are liable for any offenses which are the natural and probable consequences of the “target” offense violates due process.   All three defendants assert that the trial court made numerous instructional, evidentiary and sentencing errors.   In a petition for a writ of habeas corpus, Mendoza seeks a referral for an evidentiary hearing on the issue of whether his trial counsel was prejudicially ineffective.   We modify and affirm the judgment as to Valencia.   Although I would reverse the  judgment as to Valdez for retrial of the murder and attempted murder counts due to prejudicial instructional error, my colleagues find no prejudicial error and reverse and remand the judgment as to Valdez solely for resentencing.   We reverse and remand the judgment as to Mendoza solely for resentencing.   In addition, we issue an order to show cause directing the superior court to hold an evidentiary hearing on Mendoza's claim that his trial counsel was prejudicially ineffective.

FACTS

On April 9, 1993, 22–year–old Mary Plell held a party at a rented warehouse in Watsonville.   She invited her friends and their friends.   She asked her twenty-four-year-old brother David Plell, a tall and large man who had previously served as a military policeman, to serve as the doorman for her party to ensure that no one entered the party who was under the influence of alcohol.   A $10 cover charge was collected at the door to help cover Mary's expenses.   Chuck Christ and Kirk DeHaan, two older friends of Mary who were in their forties, came to the party to supply and set up the sound system.   The party began at about 10 p.m., and more than a hundred people attended it.   Most of the partygoers were under the age of 21.   A few minutes after 1 a.m., law enforcement officers arrived at the warehouse in response to complaints about the noise.   In compliance with their requests, Mary turned the music down somewhat though it remained loud.

Earlier in the evening, defendants Mendoza and Valdez and their good friends Gabriel Gonzalez and Scott Smith had decided to obtain some beer, drive out into the hills and drink the beer.   Smith was to be the “designated driver” and not drink.   Because they were under age, they got someone else to purchase a case (24 cans) of beer for them.   They went up into the hills and began drinking between 10 p.m. and 10:30 p.m.   They drank all but three of the beers in about three hours.   Valdez had eight to ten beers.   As they drove back into town, they opened the last three beers.   Then, Gonzalez noticed the party at the warehouse.   They “decided to stop and check out the party.”

Ten to twenty minutes after the music was turned down in response to the visit of the law enforcement officers, Mendoza, Valdez and Gonzalez approached the warehouse with beer cans in their hands.   Smith stayed in the car.   Mary did not know these defendants or Gonzalez.   She noticed immediately that they were “very drunk” and “belligerent,” and she indicated to her brother David that she did not want them admitted to the party.   Mendoza, Valdez and Gonzalez approached David “standing shoulder to shoulder” and attempted to gain admittance to the party.   David had a flashlight in his hand which he was using to check backpacks for alcohol.   David noticed that  Mendoza, Valdez and Gonzalez were intoxicated, and he asked them to step aside for a minute so that other people could be admitted to the party.   A contentious verbal exchange followed which led to a physical confrontation between David and Gonzalez and Mendoza.   David and Gonzalez struggled, and David struck Gonzalez at least once with the hand in which he held the flashlight.   Then, David tossed or dropped the flashlight to the ground.   Gonzalez sustained a head injury in this altercation which bled profusely.   Mendoza was also injured.   David, Mary and their friends asked Valdez, Mendoza and Gonzalez to leave.

Jerimiah McDonald picked up the flashlight that had fallen from David's hand.   Gonzalez said “Somebody hit me with a flashlight.”   Valdez said in a “very angry and loud” manner:  “Look what you did to my brother, motherfucker.   We're going to get you.   We're going to kill you.”   Valdez looked “mean,” and he was challenging people to fight.   He spoke “viciously” and clearly “wanted some revenge.”   Valdez seemed to believe that McDonald had used the flashlight to hit Gonzalez during the physical confrontation.   Valdez challenged McDonald to fight.   McDonald refused to fight him.   Valdez threatened that “I'm going to fucking kill you.   I know who you are.   I'm going to get a gun and come back here and fucking kill you.”   He also threatened that “I'll be back with the gun to kill you motherfuckers.”   Mendoza and Gonzalez then said “Yeah we'll be back with a gun.   We're going to kill you.”   All three men declared that “We're brown and proud” and threatened that they would be back to kill “all of us white motherfuckers.”   The three men then got into a car and left.   This entire incident had taken between five and ten minutes.

Valdez and Mendoza took Gonzalez to the hospital, about five minutes away from the warehouse, and left him there with Smith.   On the way to the hospital, Gonzalez asked Valdez “[w]here were you when we were getting our ass kicked.”   Valdez and Mendoza were already mad, and this statement made Valdez even more mad because it indicated to Valdez that Gonzalez felt that Valdez had not been there to help him.   Valdez insisted that he wanted to return to the warehouse and fight the “bouncer.”   Gonzalez arrived at the hospital at 1:36 a.m.   His scalp laceration was treated and stitched up.   It was not a serious injury.

Valdez told Mendoza to drive from the hospital to a house where defendant Valencia, one of Valdez's best friends, was staying.   Valdez was still intoxicated.   Valdez awakened Valencia and told him that they had gone to a party, and Gonzalez had been beaten with a flashlight and was in the hospital.   Valdez told Valencia that he wanted to go back to the party and fight with “some people.”   Valencia responded immediately to Valdez's  request for his assistance.   Valdez told Valencia that they would need protection because “the people at the party were very big.”   Either Mendoza or Valdez suggested that they go to Valencia's mother's house to get “sticks” for their protection.   Both Valdez and Mendoza were still mad.   Mendoza drove them to Valencia's mother's house where Valencia and Valdez both obtained “sticks.”   Then they went to the warehouse.

Mary asked her brother to leave the party after Mendoza, Valdez and Gonzalez left because she was concerned about his safety.   He did.   She considered stopping the party, but instead she decided to lock all the doors and not let anyone else in.   The doors were locked at 1:30 a.m.   Some potential party-goers arrived after the doors were locked and banged on the warehouse's metal door for a few minutes to try to gain admittance.   They did not kick the door too hard because the door seemed so thin that they were afraid of bending it.   No one answered.   Gonzalez's brother came to the warehouse looking for the person who had injured his brother.   He too knocked on the door, but he was unable to attract any attention.

A few minutes later, Valdez, Mendoza and Valencia arrived at the warehouse.   They could hear the music from the warehouse immediately.   Each of them had a weapon in his hand.   Valdez had a tire iron, Mendoza had a metal tool shaped like a cross, and Valencia had what appeared to be a wooden stick.1  Both Valdez and Mendoza were visibly mad.   Valdez and Mendoza went up to the large 16 feet by 10 feet metal rollup warehouse door and began banging on it with their metal weapons, kicking it, throwing their bodies against it and demanding to be let in.   Valencia observed this.   Valdez said “Open the fucking door.   Let us the fuck in.   You'd better let us in.   We're going to fucking kill you all.   Come on out, you chickenshits.”   Valdez challenged the occupants of the building to fight and said “We're going to kill you white fuckers” and “We're going to smash all your fucking cars.”   Valdez was very angry, violent and “obviously intoxicated.”   Mendoza also seemed angry, but more reserved.   Valdez struck the door several more times, and he said “[w]e're going to come back and kill you all.”   Valencia generally stayed back by the street and made no threats.   However, at some point, he too banged on the door.2

Valdez continued to beat on the door with the tire iron.   The door rattled a lot, and the music inside went off.   Someone inside said “Go home.”   This  angered Valdez even more, and he banged on the door some more and repeated his threats.   He also went over to a BMW parked in front of the warehouse and punctured its tires.   Valdez struck another vehicle with his tire iron.   Valencia and Mendoza urged Valdez to leave.   As the three men were leaving, Gonzalez's brother, who had been watching their assault on the rollup door, suggested that Mendoza “ram your fucking car” into the warehouse door.   Mendoza declined to do so, and the three men left.

A little after 2 a.m., the partygoers inside the warehouse heard defendants banging on the large metal rollup door to the warehouse.   This banging was even louder than the music.   The banging was strong enough to cause the door to move and shake.   Voices could be heard yelling from outside, but it was difficult to tell what they were saying.   It sounded like someone said “Open the fucking door.”   The music was turned off while the banging continued.   The banging lasted for about four minutes.

After leaving the warehouse, Valdez was still mad and wanted to return to the warehouse.   Valdez and Mendoza mentioned Valencia's rifle, and Valencia decided to get his rifle “for protection.”   Mendoza drove Valencia and Valdez back to Valencia's mother's house, a journey of about six to seven minutes.   Valencia and Valdez went into the house.   Valencia took his loaded .22 caliber semi-automatic rifle from his bedroom and they returned to the car.   Valencia asked Mendoza for the keys to the trunk so that he could put the rifle into the trunk.   Mendoza gave him the keys, he put the rifle in the trunk, and he returned the keys to Mendoza.

About five minutes after the banging on the rollup door stopped, the music resumed inside the warehouse.   A few minutes later, Christ and DeHaan went outside.   They had heard that vehicles outside were being vandalized, and they were concerned for the safety of their vehicles.   They left the warehouse by a back door.   They remained behind the warehouse for about ten minutes until they were satisfied that the commotion outside had abated.   Then they grabbed some metal tubing and went to the front of the warehouse.   DeHaan threw away the tubing he had grabbed and got a flashlight out of his vehicle to use to check for damage.   Christ continued to hold a three foot long piece of metal pipe in his left hand.   They checked their vehicles and found them unscathed.   The two men noticed that another vehicle had had its tires punctured.   While DeHaan was kneeling beside this vehicle examining the punctured tires, Christ saw three men approaching them.   Christ informed DeHaan.   These three men were defendants.   It had been about half an hour since the banging on the door had stopped.

After Mendoza drove them back to the warehouse, Valencia again obtained the keys from Mendoza and retrieved his rifle from the trunk.   He put  it in the backseat of the car.   Music could still be heard coming from the warehouse.   At least Valdez and Mendoza and possibly Valencia had three foot long sharp sticks or pipes in their hands as they approached Christ and DeHaan, and they seemed to be trying to provoke a fight.   Defendants “spread out” in front of Christ and DeHaan.   Valencia was in front of DeHaan, and Valdez was in front of Christ.   Valencia spoke to DeHaan in an agitated manner.   They said “you hurt my friend” and asked Christ and DeHaan to “come out in the street and fight with them.” 3  Christ and DeHaan started to back away.

Valdez made a motion with his hand towards Valencia.   It appeared that Valdez was pointing in the direction from which defendants had come.   Valencia returned to Mendoza's car and retrieved his rifle.   He was gone for about 30 seconds and returned holding the rifle down by his right side.   Valdez was hitting his stick-like weapon against his hand.   Mendoza remained at the bottom of the driveway near the road, about a car length behind Valdez.   Christ told them that the bouncer had gone home and asked them to leave.   Valencia approached DeHaan and pointed the rifle at his chest.   Valencia said nothing more.   Two or three times, he lowered the rifle and then raised it again.4  After doing this, he pointed the rifle at DeHaan steadily.   DeHaan raised his hands “in a passive surrendering motion.”   Valdez poked his stick at DeHaan about a foot away from DeHaan's face.   DeHaan backed away from Valdez, Christ opened the gate through which he and DeHaan had come, which led to the back door to the warehouse, and Christ guided DeHaan through the gate behind him.   Christ and DeHaan then ran towards the back of the warehouse.   Their entire confrontation with defendants had taken about a minute.

After DeHaan and Christ had run about 10 to 15 feet, they heard about 10 shots being fired.   Valencia fired his rifle at the large metal rollup door at least 11 times from a distance of between 15 and 30 feet.   Valencia's rifle required a six pound trigger pull for each shot.   At least six shots penetrated the rollup door and reached the crowd of dancers at the party behind the door.   These bullets penetrated the rollup door at heights between 21 inches and 68 inches.   This rollup door was 24 thousandths of an inch thick.   This thickness is referred to as “26 gauge.” 5  Two bullets struck the front wall of the building at about five and a half feet and six and a half feet off the ground.   One bullet struck the back wall of the building.   The music was fairly loud when the shots were fired.   One person who was dancing about ten feet from the door was struck by a bullet in the head and killed.   Five others were struck by bullets and injured.

 Valencia, Mendoza and Valdez ran to the car, and Mendoza drove away from town toward Corralitos.   Valdez took over the driving for a short distance, and then Valencia drove.   He drove them to Smith's house, and he told Valdez to hide the rifle there.   Valdez did so.   Defendants then returned to their homes.   Back at the hospital, Gonzalez and Smith learned about the shooting at the warehouse when the victims were brought to the hospital.   Gonzalez then telephoned Valdez from the hospital and spoke with him.

The tires of the BMW were found punctured.   Valencia's rifle was found hidden in a hedge outside Smith's home.   More than a hundred rounds of ammunition for this rifle were found in Valencia's bedroom.   The wheels of Mendoza's car were changed the day after the shooting, and the old wheels were found hidden in a crawl space.   When initially questioned by the police, Valencia claimed that he had been with his girlfriend the entire night.   Valdez's blood was drawn at 8:30 p.m. on the evening following the shooting and found to contain no evidence of alcohol.

Defendants were each charged by indictment with one count of murder (Pen.Code, § 187), five counts of attempted murder (Pen.Code, §§ 187, 664), five counts of discharging a firearm at an occupied building (Pen.Code, § 246) and two counts of exhibiting a firearm (Pen.Code, § 417.2) and causing serious bodily injury (Pen.Code, § 417.6).   It was further alleged that defendants had been armed with a firearm (Pen.Code, § 12022, subd. (a)(1)) and Valencia had personally used a firearm (Pen.Code, § 12022.5) in the commission of these offenses.   Defendants' severance motions seeking separate jury trials for each defendant were denied after the prosecution indicated that it would not be using statements by any defendant which implicated any other defendant.   Four of the five Penal Code section 246 counts were dismissed on defendants' Penal Code section 995 motion, and the indictment was amended accordingly.   The prosecution's in limine motion to exclude “self-serving hearsay evidence” was granted.   After the prosecution rested, the trial court denied defendants' motions to dismiss but ordered the exhibiting a firearm counts reduced to misdemeanor violations of Penal Code section 417, subdivision (a)(2).   In response, the prosecution dismissed these counts.

Valencia's defense was that he believed that the shots would not penetrate the door.   He presented evidence that in the small village in Mexico where he had grown up there had been a steel rollup door at which he threw rocks.   The rocks made a lot of noise when they hit the rollup door, but they did not dent the door.   He also presented testimony by a friend of his that they had gone shooting, and shots fired at a metal car door with Valencia's rifle would “bounce back” rather than penetrating the door.   Valencia maintained  that on their first visit to the warehouse none of them had made any threats.   Valdez had merely requested that the door be opened.   Valencia claimed that he got his rifle before they returned to the warehouse because he thought he could use it to prevent Valdez getting beat up.   He asserted that when they arrived at the warehouse the second time “we saw that they [Christ and DeHaan] wanted to fight with us.”   He retrieved his rifle because he felt threatened by Christ and DeHaan.   He admitted that he was angry, frustrated and mad because the people at the party would not open the door, but he claimed that he fired his rifle at the rollup door simply “[t]o make a lot of noise” and “ruin the party.”   However, the evidence established that a .22 caliber rifle does not make much noise when it is fired.   Valencia denied having had any intent to hurt anyone.   Valencia admitted that he could hear the music playing behind the door, and he knew that there were many people dancing behind the door.   He thought the door “was a hard door” and the bullets would “get stuck in the door” or bounce off.   He also claimed that he thought that some of the bullets “had hit the ground.”   He admitted that he had continued to fire his rifle until it ran out of ammunition.

Valencia presented evidence that bullets fired into a sample of much thicker 22 gauge steel would usually not penetrate the substance.   However, test firings of bullets into 24 gauge and 26 gauge steel reflected that bullets passed easily through these substances.   The thickness of a metal rollup door cannot be determined by a layperson by merely looking at it.   The warehouse's thin gauge “light duty” steel rollup door was very flexible and gave way to pressure.   Most of the warehouse doors in Watsonville are 26 gauge steel, like the one Valencia shot through.

Valencia also adduced evidence of his good character.   He testified that he had only once been in a fight.   Witnesses testified to their opinions that he was truthful and honest.

Mendoza presented evidence of his good character for non-violence, and Valdez presented evidence of his good character for non-violence, honesty, truthfulness and trustworthiness.   Valdez also testified in his own defense.   He claimed that none of them had ever made any threats on any of their visits to the warehouse.   He admitted that he had become “real mad” because of the injury to Gonzalez and had urged the “bouncer” to fight him.   Valdez testified that he had never been in a fight before.   He obtained Valencia's assistance because he was afraid that other people at the party would interfere with his desire for vengeance on the bouncer.   He wanted Valencia to serve “as a backup” since Valencia “knew how to fight.”   Valdez understood that the rifle was being brought “for protection.”   Valdez testified that he could remember only two visits to the warehouse;  the first visit with  Gonzalez, and a single visit with Valencia.   In his version of the events, the two visits with Valencia were consolidated into a single visit.   He contended that he had banged on the door merely to try to get the “bouncer” to come out and fight him.   Valdez denied having done anything to the BMW's tires.   He claimed that he had believed that Christ was the “bouncer” when he encountered him in front of the warehouse.   Consequently, he challenged Christ to fight.

Valdez denied making any “signal” for Valencia to fetch his rifle, and he claimed that he was unaware that Valencia was even holding the rifle until he heard the shots.   Valdez expressly denied having intended for “the building to be shot” or for anyone to be hurt.   He also denied having had any knowledge that Valencia was going to fire the rifle at the building or any person.   He asserted that his sole purpose was to “fight the bouncer.”   An expert on the effects of alcohol testified that intoxication can cause memory lapses, and such memory losses are likely to be incomplete so that the person remembers fragments of the events.   Such a memory loss might involve the blending of two events into one.   However, a memory loss which is self-serving because it eliminates incriminating events is likely to be faked rather than real memory loss.

The court's instructions to the jurors preceded the arguments.   The court instructed the jury that “[i]f anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.”   The jury was also instructed to “[c]onsider the instructions as a whole and each in light of all the others.”   The jurors were provided with a printed copy of the jury instructions to use during their deliberations.   During its deliberations, the jury posed several questions to the court.   On October 28, it asked, in reference to the attempted murder counts, “[i]s the limitation to express malice intentional, or does this element also permit implied malice?”   The court replied that “[t]he perpetrator of the act must harbor express malice.”   On November 2, the jury sent the court the following inquiry.  “Page 72 of the jury instructions make[s] specific reference to the lesser charges in Counts 1 through 7;  however, it ‘also states you may nevertheless convict him of any lesser crime ․’ [¶] Also, bottom paragraph also references crimes charged 1 through 7 or any lesser crimes.  [¶] Question:  Are we able to find for lesser crimes (specifically 2–6) without specifically those lesser crimes in the charge sheet?”   The court responded as follows.  “They are not lessers, only the offense in Counts 2 through 6. That is the attempted murders.   There are no lesser offenses that have been submitted to you.”

Defendants were each convicted of second degree murder, five counts of attempted murder and one count of shooting at an occupied building.   The  arming allegations were found true, and Valencia was found to have personally used a firearm in the commission of these offenses.   Defendants' motions for a new trial were denied, and their requests that the court reduce the charges were also denied.   Defendants were each committed to state prison for an indeterminate term of 15 years to life for the second degree murder count.   All of the remaining terms were run concurrent except for Valencia's four year term for personally using a firearm and Valdez's one year arming enhancement term which were imposed, at least on the abstract of judgment, consecutive to their indeterminate terms.   Defendants filed timely notices of appeal.

DISCUSSION

I. INSTRUCTIONAL ISSUESA.–I.**

J. REFUSAL TO GIVE REQUESTED INTOXICATION INSTRUCTIONS

Valdez presented substantial evidence at trial that he was intoxicated at the time of the charged offenses, and he argued that he had lacked the requisite criminal intent due to his intoxication.   He maintains that the trial court prejudicially erred in denying his request for special instructions specifically relating evidence of his intoxication to the mental state necessary for aiding and abetting.   The trial court instead gave CALJIC 4.21.1, a standard intoxication instruction.   The court also allowed Valdez's counsel to argue the substance of his proposed instructions to the jury.   My colleagues conclude in their separate opinion that there was no prejudicial error.   I respectfully disagree.   I would conclude that the trial court prejudicially erred by giving prejudicially misleading intoxication instructions as to the murder and attempted murder counts.

Valdez asked the trial court to give four special instructions relating Valdez's intoxication to the mental state required for aiding and abetting.   The first of these instructions would have told the jury that “[y]ou may consider evidence of intoxication in evaluating whether Juan Valdez was able to form the specific intent necessary for aiding and abetting a crime.”   The other requested instructions attempted to specifically relate Valdez's intoxication to the mental states required for aiding and abetting attempted murder, second degree murder and first degree murder.   Each of these three  instructions expressly identified the “intent or purpose” element of aiding and abetting as a “specific intent.”   These three proposed instructions were flawed because they failed to take into account Valdez's potential liability for these crimes as reasonably foreseeable consequences of some lesser target offense.18  Valdez's trial counsel urged the trial court to instruct the jury that Valdez's intoxication was relevant to its consideration of whether Valdez had the “specific intent” and “knowledge” required for aiding and abetting the charged offenses.

The prosecutor conceded that “the defendants [sic ] rate a special instruction” and voluntary intoxication instructions should be given, but she objected to the special intoxication instructions requested by Valdez.   She pointed out the flaw in each of the three instructions that attempted to relate the evidence of Valdez's intoxication to his liability for murder and attempted murder.   The prosecutor also claimed that the initial requested instruction was misleading because “aiding and abetting a crime” was ambiguous with regard to the “crime” to which it referred.   She suggested that “[t]his point be clarified.”   The prosecutor asked the court to use CALJIC 4.21 instead of the requested instruction because the CALJIC instruction “more than appropriately covered” the issue.   CALJIC No. 4.21 identifies the specific intent elements of the offense to which intoxication evidence is relevant and instructs the jury that it can use such evidence in determining whether the defendant had such specific intent.  (CALJIC 4.21 (1992 Rev.).)   The prosecutor did not ask the trial court to give CALJIC 4.21.1 because, she conceded, “[u]nfortunately, 4.21.1 misses the point in terms of aiding and abetting.”

The trial court refused to give the requested instructions and instead simply gave CALJIC 4.21.1.   At the urging of Valdez's trial counsel, the trial court substituted the word “knowledge” for the words “mental state” in CALJIC 4.21.1.   The jury was instructed that the murder and attempted murder counts were specific intent offenses, but the shooting at an occupied building offense was not.   The jury was told that “it is the general rule that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of being in such condition.  [¶] Thus, the crime of shooting at an occupied building ․ the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve defendant of responsibility for the crime.   This rule applies in this case only to the crimes  of shooting at an occupied building [and its lesser related offenses]․  [¶] However, there is an exception to this general rule, namely, where a specific intent or knowledge is an essential element of a crime.   In such event, you should consider the defendant's voluntary intoxication in your determination of whether the defendant possessed the required specific intent or knowledge of at the time of the commission of the alleged offense.  [¶] Thus, in the crimes of murder and attempted murder ․ , a necessary element is the existence in the mind of the defendant of a certain a [sic] specific intent or knowledge which is included in the definition of the crimes set forth elsewhere in these instructions.  [¶] If the evidence shows that the defendant was intoxicated at the time of the allege[d] crime, you should consider that fact in determining whether or not such defendant had such specific intent or knowledge.  [¶] ․ [I]f from all the evidence you have a reasonable doubt whether the defendant had such specific intent or knowledge, you must find that the defendant did not have such specific intent or knowledge.”  (Emphasis added.)

First, Valdez asserts that the trial court's instructions erroneously precluded the jury from considering Valdez's intoxication with respect to his liability for the shooting at an occupied building count even though his intoxication was relevant to that count since his liability for that offense was based on aiding and abetting which requires a mental state which may be negated by evidence of intoxication.   I find no merit to this contention because evidence of voluntary intoxication was not admissible, at the time of trial, on the issue of the offender's mental state where the charged offense was a general intent crime.  “Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.”  (Former Pen.Code, § 22, subd. (b), emphasis added.)   Accordingly, Valdez's alleged intoxication was not admissible on the issue of his intent with regard to the shooting at an occupied building count because that count did not charge a specific intent crime.19  I conclude that the trial court did not err in instructing the jury that evidence of Valdez's intoxication was not relevant to his liability for the shooting at an occupied building count.

Next, Valdez argues that the court's instructions on intoxication did not adequately inform the jury that evidence of his intoxication was relevant to whether he “lacked the knowledge or intent to aid and abet Valencia's act of  shooting the gun” in connection with his liability for the murder and attempted murder counts.   Like other pinpoint instructions, a defendant is entitled to intoxication instructions upon request when intoxication is relevant to a mental state which the prosecution is required to prove and the evidence supports such instructions.  (People v. Saille (1991) 54 Cal.3d 1103, 1119–1120, 2 Cal.Rptr.2d 364, 820 P.2d 588.)   The prosecution had two alternative theories under which Valdez could have been found liable for the murder and attempted murder counts.   The jury could have found that he aided and abetted the shooting at an occupied building and that the murder and attempted murders were natural and probable consequences of that offense, or the jury could have concluded that Valdez aided and abetted the murder and the attempted murders themselves.

The murder and attempted murder counts charged crimes upon which evidence of intoxication was admissible.   The pre–1995 version of Penal Code section 22, subdivision (b) precluded the jury from utilizing evidence of Valdez's intoxication with respect to Valdez's liability for the shooting at an occupied building count since that count charged a general intent crime.   However, if the jury premised Valdez's liability for the murder and attempted murders on the theory that these offenses were natural and probable consequences of the shooting at an occupied building target offense which Valdez had aided and abetted, the pre–1995 version of Penal Code section 22, subdivision (b) permitted the jury to use evidence of Valdez's intoxication in determining whether Valdez had any specific intent required for aiding and abetting the underlying shooting offense because the murder and attempted murder counts charged Valdez with specific intent crimes.   If the jury concluded that the murder and attempted murders were not the natural and probable consequences of the shooting, but that Valdez was nevertheless liable for the murder and attempted murders as an aider and abettor of those offenses themselves, in my view, evidence of his intoxication was admissible under the pre–1995 version of Penal Code section 22, subdivision (b) as to any required specific intent.

The admissibility of evidence of Valdez's intoxication depended not only on the fact that a specific intent crime was charged but also on the existence of an issue as to whether Valdez harbored “a required specific intent.”  (Former Pen.Code, § 22, subd. (b).)  The offenses of murder and attempted murder are specific intent crimes, but the only theory under which the prosecution sought to hold Valdez liable was as an aider and abettor.   Aiding and abetting requires knowledge and “the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense ․”  (People v. Hardy (1992) 2 Cal.4th 86, 188, 5 Cal.Rptr.2d 796, 825 P.2d 781, citations and quotation marks omitted, emphasis added.)   I believe  the critical question is whether the “intent to encourage and bring about” the target offense is a “specific” intent.  “The distinction between specific and general intent crimes evolved as a judicial response to the problem of the intoxicated offender․  [¶] Specific and general intent have been notoriously difficult terms to define and apply, and a number of text writers recommend that they be abandoned altogether․  When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act.   This intention is deemed to be a general criminal intent.   When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.”  (People v. Hood (1969) 1 Cal.3d 444, 455–459, 82 Cal.Rptr. 618, 462 P.2d 370.)

The intent of an aider and abettor to facilitate the commission of a specific intent crime is necessarily the intent to “achieve a future consequence” because the aider and abettor must intend for the perpetrator to commit the crime.   The aider and abettor's intent that the perpetrator commit the target offense is the intent to achieve a future consequence since the perpetrator's commission of the target offense is a future consequence of the aider and abettor's facilitating conduct.20  I would conclude that the intent of an aider and abettor of a specific intent crime is therefore properly categorized as a specific intent even if it is not the same specific intent 21 as that harbored by the perpetrator.22  “When the definition of the offense includes the intent to do some act or achieve some consequence beyond the actus reus of the crime, the aider and abettor must share the specific intent of the perpetrator.   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.   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.”  (People v. Beeman (1984) 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318, internal citations omitted.)

Because the intent element of aiding and abetting is, in my view, a specific intent, I would conclude that evidence of Valdez's intoxication was admissible and relevant to show that Valdez lacked this intent.23  Valdez requested intoxication instructions relating his intoxication to the requisite mental state required for aiding and abetting, and there was plenty of evidence to support these instructions.   The trial court refused to give these instructions and instead gave CALJIC 4.21.1.   I believe the question is whether CALJIC 4.21.1 adequately informed the jury of the extent to which Valdez's intoxication was relevant to the issue of whether or not he acted “with the intent or purpose of facilitating” Valencia's act of shooting at the warehouse.24  I consider CALJIC 4.21.1 inadequate in this case because of legal technicalities that arose from (1) the fact that Valdez was charged with both specific and general intent crimes, (2) the fact that the mental state required for aiding and abetting has never been expressly defined as “a specific intent,” was not designated in the jury instructions as a “specific intent” and was not described as an “element” of any of the crimes and (3) the impact of the pre–1995 version of Penal Code section 22, subdivision (b).   I cannot pretend that jury instructions correctly informing the jury of the appropriate issues on which it could consider evidence of intoxication could have been simple or even easily understandable.   However, I believe that correct and informative instructions could have been devised and were required once Valdez requested intoxication instructions relating intoxication to the mental state required for aiding and abetting.

 I would find the intoxication instruction given by the trial court defective in at least three respects.   First, although the instruction correctly informed the jury, in accordance with the pre–1995 version of Penal Code section 22, subdivision (b), that evidence of intoxication could be considered as to the murder and attempted murder counts but could not be considered as to the shooting at an occupied building count, the instruction strongly implied that this was true because the mental state required for a determination of guilt of the shooting at an occupied building count was not a “specific intent,” while the mental state required for a determination of guilt of the murder and attempted murder counts was a “specific intent.”   While this implication would have been correct as to the guilt of the perpetrator, it was incorrect as to the guilt of an aider and abettor.

If the jury determined that Valdez was liable for the murder and attempted murder counts as the natural and probable consequences of his aiding and abetting of the shooting at an occupied building offense, the actual mental state which the jury was required to find Valdez had harbored would have been the same with respect to the shooting at an occupied building count as it would have been with respect to the murder and attempted murder counts.   The jury would have been required to find that Valdez aided Valencia “with the intent or purpose of facilitating” Valencia's commission of the shooting at an occupied building offense with respect to each count, but, as to the murder and the attempted murder counts, the jury would have also been required to find that murder and attempted murder were the natural and probable consequences of the shooting at an occupied building offense.   In my view, a correctly instructed jury had to be made to understand that it was not permitted to use evidence of Valdez's intoxication in deciding whether Valdez had harbored the intent to facilitate Valencia's commission of the shooting at an occupied building offense with regard to Valdez's guilt on the shooting at an occupied building count, but it was permitted to use evidence of Valdez's intoxication in deciding whether Valdez had harbored precisely the same intent with regard to his guilt on the murder and attempted murder counts if it accepted the theory that murder and attempted murder were the natural and probable consequences of the shooting at an occupied building offense.   I would conclude that the trial court's intoxication instruction was defective because it failed to address this important and narrow distinction.

Second, I believe the instruction given by the trial court set up a dichotomy between those crimes “where a specific intent or knowledge is an essential element of a crime” and other crimes.   The jury was explicitly told that murder and attempted murder were crimes which required “a specific intent.”   The instruction implied that intoxication was not relevant to Valdez's liability for the crime of shooting at an occupied building because this  offense was not a crime “where a specific intent or knowledge is an essential element․”  While it is true that Valdez's intoxication was not admissible under the pre–1995 version of Penal Code section 22, subdivision (b) with respect to Valdez's liability for the crime of shooting at an occupied building because this crime is not a specific intent offense, in my view it is not true that Valdez's liability for this offense did not depend upon a showing that he harbored a required specific intent or knowledge.   The only theory upon which the prosecution sought to hold Valdez liable for the general intent crime of shooting at an occupied building was the theory that he had aided and abetted Valencia's commission of this crime.   This theory of liability required proof that Valdez had harbored the “intent or purpose” that Valencia commit the offense of shooting at an occupied building, and, for reasons I have already discussed above, I consider this intent to be a “specific intent.”   The result is that, in this context, the dichotomy set up by the trial court's instruction was misleading.   Valdez's liability for the general intent offense of shooting at an occupied building, like his liability for the specific intent offenses of murder and attempted murder, depended on proof that he had harbored a specific intent.   The jury simply was not permitted to utilize evidence of intoxication on the issue of Valdez's liability for the shooting at an occupied building count.

Third, the court's intoxication instruction told the jury that it could utilize evidence of intoxication solely on the issue of whether a defendant had the “specific intent or knowledge” which was “an essential element of a crime” and was “included in the definition of the crimes set forth elsewhere in these instructions.”   The jury was properly instructed on the required mental state for aiding and abetting, but it was not informed that this mental state was a “specific intent” nor is it clear that the jury would have understood that the requirements for finding an aider and abettor liable for an offense were “element[s] of a crime” since these requirements were not “included in the definition of the crimes” upon which the jury was instructed.   Because the prosecution sought to hold Valdez liable as an aider and abettor, and Valdez expressly requested instructions relating intoxication to aiding and abetting liability, in my view the intoxication instructions should have explicitly identified the mental state required for finding an aider and abettor liable for murder and attempted murder as one of the mental states to which evidence of intoxication was relevant.   I would conclude that identification of this mental state as one of the mental states to which intoxication evidence was relevant in regard to the murder and attempted murder counts would have overcome the defects in the instruction which failed to identify this mental state as a “specific intent” or as an “element of a crime.”

Finally, I would reject the Attorney General's assertion that Valdez's instructional requests were inadequate to merit proper instructions.   Valdez  repeatedly asked the trial court to give instructions relating his intoxication to the mental state required for aiding and abetting.   His requested instructions expressly identified the mental state required for aiding and abetting as a “specific intent” and would have informed the jury that evidence of his intoxication was relevant in determining whether he had harbored this specific intent with regard to his liability on the murder and attempted murder counts.   I consider this request adequate to trigger the trial court's duty to correctly instruct on this issue.

I would find that, taken as a whole, the defects in the trial court's intoxication instruction were so substantial that it is highly probable that the jury was misled regarding the proper use to which it was permitted to put the evidence of Valdez's intoxication.   Since there was substantial evidence of Valdez's intoxication which could have supported a jury finding that he did not actually form what I have identified as the specific intent required for aiding and abetting murder and attempted murder under either of the prosecution's two aiding and abetting theories of liability, I would conclude that this error necessarily requires reversal of the murder and attempted murder counts as to Valdez.

II.–IV.***

DISPOSITION

The judgment against Valencia shall be modified to reflect that the concurrent term imposed for the shooting at an occupied building count is stayed pursuant to Penal Code section 654.   The trial court is ordered to amend the abstract of judgment accordingly and forward a certified copy to the Department of Corrections.   As modified, the judgment against Valencia is affirmed.

The judgment against Valdez is reversed and remanded.   Although I would reverse Valdez's murder and attempted murder convictions for prejudicial instructional error, my colleagues conclude in their separate opinion that there was no prejudicial error in this respect, and they remand solely for resentencing.   Upon remand, the trial court shall (1) exercise its discretion with respect to whether to strike the one-year Penal Code section 12022, subdivision (a)(1) arming enhancement term attached to the murder count or impose that term consecutively, (2) strike the Penal Code section 12022, subdivision (a)(1) arming enhancement attached to the shooting at an occupied building count since arming is an element of the substantive offense, (3)  stay, pursuant to Penal Code section 654, the concurrent term imposed for the shooting at an occupied building count, and (4) state reasons for its decision to commit Valdez to state prison.   The trial court is ordered to amend the abstract of judgment accordingly and forward a certified copy to the Department of Corrections.

The judgment against Mendoza is reversed and remanded for the sole purpose of permitting the trial court to exercise its discretion with regard to whether to strike the one-year Penal Code section 12022, subdivision (a)(1) arming enhancement term attached to the murder count or impose that term consecutively.   The trial court shall amend the abstract of judgment accordingly and forward a certified copy to the Department of Corrections.

With respect to Mendoza's petition for a writ of habeas corpus, let an order to show cause issue returnable before the Superior Court of Santa Cruz County.   The superior court shall hold an evidentiary hearing to consider whether Mendoza's trial counsel was prejudicially ineffective.

We concur in Justice Mihara's lead opinion except insofar as he concludes that defendant Juan Valdez's convictions of murder and attempted murder must be reversed due to what he considers prejudicial instructional error as to intoxication.   We respectfully disagree with that conclusion.

In People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318, the Supreme Court held that to be guilty as an aider and abettor, a defendant must have acted “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.  [Citations.]  [¶] When the definition of the offense includes the intent to do some act or achieve some consequence beyond the actus reus of the crime [citation], the aider and abettor must share the specific intent of the perpetrator.   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.  [Citations.]”  (35 Cal.3d at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)

In the abstract it would be reasonable to conclude that, as defined by the Supreme Court, the intent which is an element of aiding and abetting may be the kind of “particular purpose, motive, or intent” to which evidence of  intoxication might, on balance of policy considerations, be so “pertinent” or “significan[t]” as to be admissible in light of the Supreme Court's landmark decision in People v. Hood (1969) 1 Cal.3d 444, 457, 82 Cal.Rptr. 618, 462 P.2d 370.

But we are no longer at liberty to consider the issue in the abstract.

In 1969, when Hood was decided, Penal Code section 22 provided (as it had since 1872) that “[n]o act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition.   But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act.”  (1872 Pen.Code, § 22.)   But in 1981 section 22 was amended, and in 1982 it was further amended, to provide in its subdivision (b), as it did at the time of trial in this case, that “[e]vidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.”  (Stat.1982, ch. 893, § 2, pp. 3317–3318;  cf. Stats.1981, ch. 404, § 2, p. 1592.)

We agree with Justice Mihara that the admissibility of evidence of Valdez's intoxication, and thus his right to pinpoint instructions as to the significance of such evidence, would necessarily have depended on the meaning of subdivision (b) of section 22 as it read at the time of trial.

 But we disagree with Justice Mihara's conclusion that subdivision (b), as it read at the time of trial, used the term “specific intent” in two quite different senses in the course of its single sentence:  Both as the definitional element of a charged “specific intent crime” and, much more broadly, as any “intent to ‘achieve a future consequence’ ” which is essential to the defendant's guilt on whatever theory, whether or not the intent is an element of the crime charged.  Section 22 was amended, in 1981 and again in 1982, in the context of legislative and electoral abolition of the preexisting defense of diminished capacity and of broader legislative and electoral attempts to curtail the use of evidence of various mental impairments to negate the mens rea element of charged crimes.  (Cf. Pen.Code, §§ 21, 22, 25, 28, 29;  Stats.1981, ch. 404, pp. 1591–1593;  Proposition 8, approved by electorate June 8, 1982;  Stats.1982, ch. 893, pp. 3317–3318;  Stats.1984, ch. 1433, p. 5030;  Note, Selected 1982 California Legislation (1983) 14  Pacific L.J. 357, 577–579;  People v. Whitler (1985) 171 Cal.App.3d 337, 341, 214 Cal.Rptr. 610;  Note, Legislative Attack on Mens Rea Defenses (1983) 17 U.S.F.L.Rev. 307, 308.)   It seems clear to us, on the face of the language of subdivision (b) as well as in the context in which the language was enacted, that the subdivision was intended to limit, and did limit, the use of evidence of voluntary intoxication to proof or disproof of a specific intent 1 which is an element of a charged crime.

The courts have carefully distinguished the specific intent element of a particular specific intent crime from the “intent or purpose either of committing, or of encouraging or facilitating commission of, the offense” which is the intent component of an aiding and abetting theory of criminal liability under Beeman.   Thus, for example, in People v. Croy (1985) 41 Cal.3d 1, 221 Cal.Rptr. 592, 710 P.2d 392 the Supreme Court explained that where a defendant is charged as an aider and abettor “[i]t is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury.”  (41 Cal.3d at p. 12, fn. 5, 221 Cal.Rptr. 592, 710 P.2d 392;  cf. also People v. Olguin (1994) 31 Cal.App.4th 1355, 1379–1380, 37 Cal.Rptr.2d 596.)   Where the charged crime is not the “target offense” the aider and abettor intended to commit, encourage or facilitate, but rather a crime which was a “ ‘ “natural and probable consequence ” ’ ” of the target offense (cf. People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5, 221 Cal.Rptr. 592, 710 P.2d 392), the distinction is even more apparent:  In such a case the aider and abettor need not even have intended to encourage or facilitate the consequent crime.  (Ibid.)

 These considerations satisfy us that subdivision (b) of Penal Code section 22 does not authorize the use of evidence of voluntary intoxication to disprove the intent element of aiding and abetting.   We therefore conclude (1) that evidence of Valdez's voluntary intoxication was not admissible, and should not have been admitted, on the issue of his intent as an aider and abettor;  (2) that it follows that Valdez had no right to instructions as to the significance of the evidence;  and (3) that the evidence that was admitted, and the instructions the court gave concerning the evidence, could not have prejudiced Valdez.

 Our conclusions, and our concurrence with Justice Mihara as to other issues, require that the jury's findings that Valdez was guilty of murder and attempted murder be affirmed.   We must therefore reach three of Valdez's assertions with respect to sentencing that would have been moot had his murder and attempted murder convictions been reversed.

As Justice Mihara points out, Valdez joined Valencia in asserting that (if, as we have concluded, his murder and attempted murder convictions are affirmed) the prison term imposed upon him for shooting at an occupied building must be stayed in light of Penal Code section 654.   The Attorney General has acknowledged, and we agree, that Valdez is correct.

Justice Mihara also acknowledges the propriety of Valdez's argument that with respect to the jury's finding that in the commission of the murder Valdez was armed with a firearm, within the meaning of Penal Code section 12022, subdivision (a)(1), the trial court's only options were to impose a consecutive one-year enhancement term or to strike the finding.   Again the Attorney General acknowledges, and we agree, that the trial court's imposition of a concurrent term for this arming enhancement must be set aside and the matter remanded to permit the trial court to choose between its two available options.

Finally, the trial court did not state reasons for imposing a prison term on Valdez (and thus, implicitly, for denying him probation).   Valdez argues that the omission requires a remand for the trial court to consider probation or to make a record of the reasons for its sentencing choice.   Valdez asserts that it is apparent from the record that there is a reasonable possibility of a result more favorable to him on remand.   Valdez cites People v. Manriquez (1991) 235 Cal.App.3d 1614, 1 Cal.Rptr.2d 600 to rebut the Attorney General's argument that he was presumptively ineligible for probation under Penal Code section 1203, and that for that reason the court was not required to give a statement of reasons for selecting prison rather than probation.

We conclude that as a practical matter this court need reach neither the question whether it should agree with Manriquez 's analysis of Penal Code section 1203 nor (were it to conclude that Valdez was not presumptively ineligible for probation) the parties' dispute as to whether the trial court's omission of reasons was at most harmless error.   Nor need the court seek briefing or argument on the question whether, by making clear at the sentencing hearing that he assumed he was ineligible for probation, Valdez waived any entitlement to a statement of reasons.   The matter must in any event be remanded with respect to the arming enhancement to the murder count, and the court will direct that at the remand hearing the trial court shall state reasons for its decision to sentence Valdez to prison.

 To implement the court's conclusions as to defendant Juan Valdez, we would:

(A) Modify Valdez's judgment of conviction (1) to stay, pursuant to Penal Code section 654, the prison term imposed for shooting at an occupied building and (2) to strike the arming enhancement to the count for shooting at an occupied building and the term of imprisonment attributable to that enhancement;

(B) Vacate the imposition on Valdez of a concurrent term for the arming enhancement to the murder count;

(C) Remand the proceedings against Valdez to the trial court (1) to exercise its discretion either to strike the arming enhancement finding with respect to the murder count or to impose a consecutive term for the enhancement, (2) to state its reasons for sentencing Valdez to prison rather than admitting him to probation, and (3) to amend Valdez's abstract of judgment as necessary and to forward a certified copy to the Department of Corrections;  and

(D) Affirm Valdez's judgment of conviction in all other respects.

FOOTNOTES

1.   The metal weapons wielded by Mendoza and Valdez were variously described as tire irons, crowbars, car jacks and “cross iron things.”

2.   Valencia denied ever making contact with the door, and most of the witnesses agreed with him.   However, two prosecution witnesses testified that he too had approached and struck the door with his stick.

3.   DeHaan was more than six feet tall, like David Plell, and was holding a flashlight.

4.   Valencia claimed that he did this “to control [DeHaan] with the rifle.”

5.   The higher the gauge, the thinner the metal.

FOOTNOTE.   See footnote *, ante.

18.   “To aid and abet the crime of attempted murder [second degree murder or first degree murder], Juan Valdez must have ․ had the specific intent or purpose to commit, encourage, or facilitate the commission of the offense.”   The erroneous implications arising from these instructions were that Valdez could not be convicted of murder or attempted murder unless he had harbored the intent to facilitate the commission of murder or attempted murder.

19.   Penal Code section 22, subdivision (b) was amended in 1995.   This subdivision now permits the admission of evidence of voluntary intoxication “on the issue of whether or not the defendant actually formed a required specific intent” without regard to whether the charged crime is a specific intent crime or a general intent crime.  (Pen.Code, § 22, subd. (b).)

20.   As this discussion necessarily implies, the intent necessary for aiding and abetting the commission of a general intent crime would also appear to me to be a specific intent.   Two cases have held to the contrary.   These cases held that aiding and abetting a general intent offense does not require a specific intent.  (People v. Olguin (1994) 31 Cal.App.4th 1355, 1380, 37 Cal.Rptr.2d 596;  People v. Torres (1990) 224 Cal.App.3d 763, 770, 274 Cal.Rptr. 117.)   I do not agree.   However, it makes no difference here since the pre–1995 version of Penal Code section 22, subdivision (b) precluded evidence of intoxication from being admitted unless both a specific intent was required and “a specific intent crime is charged.”   If the charged offense was a general intent crime, intoxication evidence was not admissible, under the pre–1995 version of Penal Code section 22, subdivision (b), on the issue of the offender's mental state even if aiding and abetting a general intent crime requires specific intent.

21.   The aider and abettor intends that the perpetrator commit the crime.   The perpetrator harbors the specific intent which is an element of the crime.

22.   I respectfully disagree with the suggestion by Justice Broussard in a 1989 concurring opinion that the intent required of an aider and abettor is a general intent.  (People v. Garrison (1989) 47 Cal.3d 746, 797, 254 Cal.Rptr. 257, 765 P.2d 419 [aider and abettor liability requires only “a general criminal intent”].)

23.   My colleagues conclude that evidence of Valdez's intoxication was inadmissible because the prosecution did not seek to hold Valdez liable for the murder and attempted murder counts on a theory that required that he harbor the specific intent elements which are included in the statutory descriptions of these specific intent offenses.   This analysis creates an anomalous situation where evidence of the intoxication of the perpetrator of a specific intent crime is admissible but evidence of the intoxication of the aider and abettor of a specific intent crime is inadmissible.   I do not believe that the Legislature intended to create such an anomaly.

24.   The jury could have convicted Valdez of the murder and attempted murder counts on either of two theories.   Under the natural and probable consequences theory, Valdez could have been convicted of the murder and attempted murder counts if the jury found that he aided Valencia with the “intent or purpose of facilitating” Valencia's commission of the offense of shooting at an occupied building and the murder and attempted murders were objectively the natural and probable consequences of the shooting at an occupied building offense.   The other theory of liability was that Valdez had aided Valencia with the “intent or purpose of facilitating” Valencia's commission of murder and attempted murder.

FOOTNOTE.   See footnote *, ante.

1.   Or, in an appropriate case, of premeditation, deliberation, or malice aforethought (cf.  People v. Whitfield (1994) 7 Cal.4th 437, 446–454, 27 Cal.Rptr.2d 858, 868 P.2d 272).   In apparent direct response to Whitfield 's holding that section 22 did not preclude evidence of voluntary intoxication on the issue whether a defendant harbored implied malice aforethought, in 1995 the Legislature amended subdivision (b) of section 22 to provide that “[e]vidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.”  (Stats.1995, ch. 793, § 1.)

MIHARA, Associate Justice.