PEOPLE v. MIDDLETON

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Court of Appeal, Second District, Division 7, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Elizabeth MIDDLETON, Robert Kenneth Benson, and Kevin Michael Davis, Defendants and Appellants.

No. BO17950.

Decided: February 25, 1988

John P. Ward and Thomas F. Coleman, Los Angeles, for defendants and appellants. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Robert F. Katz and Mark Alan Hart, Supervising Deputy Attys. Gen., for plaintiff and respondent.

I STATEMENT OF PROCEDURAL FACTS

On July 6, 1984, an information was filed in the Los Angeles Superior Court, by the District Attorney of Los Angeles County, charging Elizabeth Middleton, Robert Kenneth Benson and Kevin M. Davis (hereinafter referred to as “appellants”) as follows:

In count I appellants were charged with having murdered Jose Casillas on April 27, 1984, in violation of Penal Code section 187; special circumstances under Penal Code section 190.2(a)(17)(i) were alleged as to Davis in connection with this murder (that the murder committed while appellant Davis was engaged in an attempted robbery) in violation of Penal Code sections 664, 211, and with special circumstances that appellant Davis had been previously convicted of second degree murder in violation of Penal Code section 187, within the meaning of Penal Code section 190.2(a)(2). Count I also alleged that appellant Davis personally used a firearm within the meaning of Penal Code sections 12022.5 and 1203.06(a)(1), and that a principal was armed with a handgun within the meaning of Penal Code section 12022(a).

In count II, appellants were charged with attempted robbery in violation of Penal Code sections 664, 211, Count II also charged that appellant Davis personally used a firearm and that a principal was armed with a handgun.

In count III, appellants were charged with the attempted murder of Benjamin Casillas on the same date, in violation of Penal Code sections 664, 187. It was also alleged that appellant Davis personally used a firearm within the meaning of Penal Code sections 12022.5 and 1203.06(a)(1), that appellant Davis inflicted great bodily injury within the meaning of Penal Code sections 12022.7 and 1203.075, and that a principal was armed with a handgun within the meaning of Penal Code section 12022(a).

In count IV, appellants were charged with the attempted robbery of Benjamin Casillas on the same date, in violation of Penal Code sections 664, 211. Count IV also alleged that appellant Davis personally used a firearm and that said appellant inflicted great bodily injury. It was also alleged that a principal was armed with a handgun.

In counts V through VII, appellant Davis was charged with unrelated robberies and attempted robberies on other victims on another date.1

In count VIII, appellant Benson was charged with an unrelated robbery also occurring on another date.2

Appellants pleaded not guilty and denied the special allegations. Thereafter, appellants' motions pursuant to Penal Code section 995, motions to sever counts, motions to exclude hardship as a reason for excusing prospective jurors and motions relating to death-qualified jurors were denied.

Appellant Davis' motion for mistrial during voir dire was also denied. During trial, appellant's motion for mistrial and/or dismissal for failure to disclose a deposition3 was also denied.

A. Change of Plea

Prior to trial, appellant Davis withdrew his not guilty pleas as to counts V through VII (i.e., robbery, assault with a firearm and attempted robbery), and entered guilty pleas thereto and admitted the special allegations contained therein.

Appellant Benson withdrew his not guilty plea to count VIII (robbery) and entered a guilty plea thereto.

Following the trial, appellants were all found guilty as charged in counts I through IV. The jury fixed the degree of murder (charged in count I) as first degree and found allegations in each of said counts that a principal was armed with a firearm to be true as to each of the appellants.

The allegations in counts I through IV, that appellant Davis personally used a firearm and the great bodily injury allegations as to him in Counts III and IV were also found to be true. The special circumstance allegation that appellant Davis committed the murder charged in Count I while engaged in the attempted commission of a robbery was found to be true.

Following a trial on the prior, the prior alleged against appellant Davis in Count I was found to be true.

B. Sentences

Upon the denial of their motions for new trial and for probation appellants were sentenced as follows:

Appellant Middleton: Sentenced to state prison for a term of twenty-eight (28) years and eight (8) months to life as follows:

On count I, the term of twenty-five (25) years to life plus one (1) year enhancement for the armed allegation, for a total term of twenty-six (26) years to life.

On count II, to eight (8) months plus four (4) months for the enhancement (representing one-third of the midterm) to be served concurrently with count I.

On count III, to two (2) years four (4) months, plus four (4) months for the enhancement (representing one-third of the midterm) to be served consecutively to Count I.

On count IV, to eight (8) months plus four (4) months for the enhancement (representing one-third of the midterm) to be served concurrently with count III.

Appellant Middleton was given credit for 503 days served in presentence custody plus two hundred and fifty-one (251) days conduct credit, for a total of seven hundred and fifty-four (754) days credit.

Appellant Benson: Sentenced to state prison for a term of thirty (30) years and four (4) months to life as follows:

On count I, to a term of twenty five (25) years to life, plus one (1) year enhancement for the armed allegation, for a total of twenty six (26) years to life.

On count II, to a term of eight (8) months plus four (4) months enhancement (representing one-third of the midterm) to be served concurrently with count I.

On count III, to a term of two (2) years and four (4) months, with an additional four (4) months for the enhancement (representing one-third of the midterm) to be served consecutively to count I.

On count IV, to eight (8) months plus an additional four (4) months for the enhancement (representing one-third of the midterm) to be served concurrently with count III.

Count VIII, to one (1) year plus eight (8) months for the enhancement pursuant to Penal Code section 667.5 (representing one-third of the midterm) to be served consecutively to count III.

Appellant Benson was given credit for five hundred and three (503) days served in presentence custody plus two hundred and fifty-one (251) days conduct credit, for the total of seven hundred and fifty-four (754) days; which he was ordered to serve in the California Youth Authority pursuant to Welfare and Institutions Code section 1731.5.

Appellant Davis: After two penalty trials resulted in mistrials when the jury was unable to reach a verdict, the People declined to proceed with a third penalty trial and appellant Davis was sentenced to state prison for a term of life without the possibility of parole, plus a consecutive twenty-two (22) years and eight (8) months as follows:

On count I, to life without the possibility of parole, plus two (2) years enhancement for the firearm allegation.

On count II, to eight (8) months (representing one-third of the midterm), plus eight (8) months (representing one-third of the firearm enhancement), to be served consecutively to count I.

On count III, to the high term of nine (9) years, plus two (2) years for the firearm enhancement and three (3) years for the great bodily injury enhancement, to be served consecutively to count I.

On count IV, to eight (8) months (representing one-third of the midterm), plus eight (8) months (representing one-third of the firearm enhancement), plus one (1) year (representing one-third of the great bodily injury enhancement), to be served consecutively to count I.

On count V, to eight (8) months (representing one-third of the midterm), plus two years for the firearm enhancement to be served consecutively to count I.

On count VI, to one (1) year (representing one-third of the midterm), plus eight (8) months (representing one-third of the firearm enhancement), to be served consecutively to Count I.

On count VII, to eight (8) months (representing one-third of the midterm), to be served consecutively to count I, and eight (8) months, (representing one-third of the firearm enhancement) to be served concurrently.

Appellant Davis was given credit for six hundred and forty-five (645) days served in presentence custody plus two hundred and fifteen (215) days conduct credit for a total of eight hundred and sixty (860) days.

Appellants appeal from the judgment of conviction.

II STATEMENT OF FACTS

On April 27, 1984, Patricia Casillas went with her husband, Jose Casillas, and her sons Benjamin, age 20, Gilberto, age 13, Armando, age 12, and her baby, Nancy, to a check cashing service in an automobile driven by husband (Jose). Jose was planning to cash an income tax refund check and a payroll check and Benjamin also had a check to cash.

After cashing the checks, the entire family left the building and started to walk towards the family car. As the family was walking, two men approached them. One of the men pointed a gun at Benjamin, who along with Armando had reached the car first (Benjamin was inside the car but the door was still open). Patricia, who was holding the baby started crying and screaming for help and went back into the building. As that happened, the person pointing the gun at Benjamin shot Patricia's husband, Jose. Patricia identified the man who shot her husband as the appellant Davis. At the time her husband Jose was shot he was walking towards the back of the check cashing business. The same person who shot Jose also shot Benjamin.

After leaving the check cashing establishment, Gilberto noticed a green Pinto automobile parked by the door. He then saw a woman give a gun to a man inside the Pinto whereupon Gilberto ran inside the building to tell someone. Before getting inside, the man with the gun fired it at Gilberto's brother Benjamin. Gilberto heard three gunshots after entering the check cashing establishment. He ran outside and saw his father, Jose, falling. He then saw his brother Benjamin lying on the back seat of their car. Both his father and Benjamin appeared to be injured.

Gilberto then saw three men running in an alley behind the check cashing establishment. One of the men was limping and had blood around his knee area. Gilberto (in court) identified the appellant Davis as the person with the gun.

After leaving the check cashing establishment, Benjamin had gotten into the family car. At that time, a man, identified by Benjamin as the appellant Davis, approached and asked Benjamin for money and put a gun against his stomach. When Benjamin told him to wait and that he would give him the money, the man shot him. When Benjamin was shot by the man, his father, Jose, who was coming around the side of the car was also shot by the same person who had shot Benjamin.

As a result of the shooting, Benjamin was hospitalized in intensive care for approximately 15 days. He suffered a ruptured intestine and a ruptured bladder, and was still experiencing some pain from the gunshot wound at the time of trial.4

Shortly after 3:30 p.m. on April 27, 1984, a witness who lived near the check cashing service heard someone screaming and heard gunshots. She looked out the window and saw three people in the alley. One of the individuals appeared to her to be wounded in the foot and was asking for help and that he not be left behind. She saw another person with a gun (later identified by her in court and in a lineup as the appellant Davis) put his gun into his waistband and pick up the injured person and put him into a vehicle (identified by the witness by way of a photo in court).

“Anthony M.”, a 14–year–old boy (hereinafter referred to as Anthony), who for his role in the Casillas robbery-murder had been sentenced to the California Youth Authority for one murder, two attempted murders, three attempted robberies and three robberies, testified5 that he was with appellants on the morning of April 27, 1984. They were together at appellant Middleton's house talking about “doing jacks” (which was a reference to committing robberies). They decided to go and rob somebody. They got into a green Pinto automobile belonging to the appellant Middleton, and after dropping off another person who had also been at appellant Middleton's house, they all went to the check cashing service for the purpose of robbing someone. Appellant Middleton was driving the car. Appellant Davis said, “Let's go over there and do some jacks,” at which time appellant Middleton drove into the parking lot and Anthony and appellant Benson got out of the car and went inside the check cashing establishment. Their purpose in going there was to see who had some money.

While inside, they observed the Casillas family obtaining money while appellant Benson made inquiries about a bus pass. As the Casillas family left the place, Anthony and appellant Benson pointed them out to appellant Davis so that he would know that they had money. Appellant Davis, who had a gun, went up to the Casillas' car and Anthony went over to help him. Benjamin Casillas told appellant Davis that he did not have any money. Anthony went through Benjamin's pockets. While he was doing this, the gun in Davis' possession was accidently discharged shooting him (Anthony), in the leg. Anthony started running and he heard two more shots. He then saw appellants Benson and Davis running behind him. Benson ran past Anthony. Davis stopped and picked him up and carried him to the Pinto. He described the gun used by Davis in the robbery as having a broken handle. He testified that he had seen the gun Middleton gave to Davis earlier on that day.

The dispatcher at Martin Luther King Hospital on April 27, 1984, saw Anthony arrive at the hospital in a Pinto automobile and identified all of the appellants as being the persons in the car with him when he arrived.

The cause of Jose Casillas death was a gunshot wound to the abdomen. A sheriff's investigator assigned to the case testified that after arresting Middleton her car, which had been impounded, was searched (after a search warrant had been obtained). In the search of the Pinto, he found a .38 caliber gun6 in the rear console of the vehicle. The gun had a broken handle and had only one bullet left in it.7 No fingerprints were obtained from the gun.

Appellant Davis testified in his own defense that on April 27, 1984, he first saw Middleton at about 12:30 p.m. at a mini-market at 87th and Avalon. He testified that Anthony and the appellant Middleton were in a car along with two other people. He (Davis), got in and they went to the check cashing service to do robberies. Middleton drove the car. When they got to the check cashing place, Benson and Anthony went inside. Benson and Anthony pointed out the Casillas family and indicated that he (Davis), should rob them. He denied having a gun when he approached the Casillas car. He further testified that Benson and Anthony approached the car about the same time as he did, that he (Davis) demanded money of Benjamin Casillas and Anthony went through Benjamin's pockets. Benson passed the gun to him (Davis) and the gun fired by mistake hitting Anthony. He further testified that he got nudged and the gun went off causing the bullet to hit Benjamin. He stated that although he shot Jose, who was angry when his son (Benjamin) had gotten shot, he (Davis), did not intend to shoot Jose. After the shootings, he and Anthony ran, and when Anthony slowed down, he picked him up and helped him to the Pinto, which was being driven by the appellant Middleton at the time.

At one point in his testimony, Davis on giving an explanation of the shooting of Jose, admitted pointing the gun at him and admitted that the gun did not go off accidentally, but denied going to the check cashing place for the purpose of robbing anyone or that he had the gun against Benjamin when it went off. He did not recall any conversations (with Anthony, Middleton and Benson) regarding plans to rob anyone.

At the conclusion of Davis' testimony both sides rested.8

III APPELLANTS' CONTENTIONS

All appellants contend that they were denied the right to a fair and impartial jury by “death-qualifying” the jury. Appellants also contend that their sentences were improper.

Appellants Middleton and Benson contend that the trial courts' denial of their request for separate trials constituted prejudicial error; that the trial courts' refusal to permit impeachment of a codefendant (appellant Davis), by use of his prior conviction for murder deprived them of the right of confrontation. They also contend that the trial court committed reversible error in failing to instruct the jury that it must find that both the actual killer and these two appellants harbored specific intent to kill in order to convict them of attempted murder.

Finally, appellant Benson contends that his trial counsel's failure to request a modification of his homicide offense requires a remand for resentencing (in the event of affirmance by this court).

Prior to the commencement of jury voir dire appellants made a motion to prohibit “death-qualification” of prospective jurors.

A hearing was held, at which expert testimony was presented on behalf of appellants in support of the motion. The court took judicial notice that all three defendants were black.

Following argument, the court denied appellants' motion to prohibit “death-qualification” of prospective jurors at the guilt phase. Accordingly, all prospective jurors were “death-qualified” by the court.

IV JUROR DISQUALIFICATION

Appellants contend that the exclusion of persons opposed to capital punishment from the guilt phase of the trial violated their right to a jury trial under the United States and California Constitutions.

The California Supreme Court in Hovey v. Superior Court (1980) 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 P.2d 1301, set forth three possible analyses in challenges to the “death-qualification” process, each with a different burden of proof.

First is Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, where the defendant alleges a sixth Amendment deprivation of due process. There the burden is on the defendant to establish a “substantial doubt” that a “death-qualified” jury is not constitutionally “neutral ” with respect to guilt.9

The second analysis, the “pure” cross-section approach of Taylor v. Louisiana (1975) 419 U.S. 522, 526, 537, 95 S.Ct. 692, 695, 696, 42 L.Ed.2d 690, and Duren v. Missouri (1979) 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579, requires that the jury be selected from a panel representative of the community. Once the defendant has established that the persons excluded compromise a constitutionally cognizable group, the state must demonstrate the constitutionality of the exclusion. (Hovey v. Superior Court, supra, 28 Cal.3d at pp. 13–14, 168 Cal.Rptr. 128, 616 P.2d 1301; People v. Pacheco, (1981) 116 Cal.App.3d 617, 172 Cal.Rptr. 269.)

And finally, the third analysis is the approach of Ballew v.. Georgia (1978) 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234, and Burch v. Louisiana (1979) 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96. The court determines if a particular procedure has had any significant impact on the purpose and function of a jury in a criminal trial to represent both minority viewpoints and groups. If the defendant can demonstrate a “substantial doubt” that this purpose is being achieved through empirical or other evidence, the court must then inquire whether there is any counter-balancing state interest sufficient to sustain the procedure. (Hovey v. Superior Court, supra, 28 Cal.3d at pp. 13–16, 168 Cal.Rptr. 128, 616 P.2d 1301.)

In the case at bar, appellants raise each of the foregoing approaches in challenging “death-qualification” of the jury that tried them.

A. The Neutral Jury Issue

Appellants herein, argue that “death-qualifying” a jury results in an unbalanced jury pool, i.e. eliminates from the pool of fair and impartial jurors that portion of the spectrum of viewpoints or experience which is most likely to be favorable to the accused on the issue of guilt or innocence. Additionally, appellants contend that by excusing such jurors for cause, their right to an impartial jury (used synonymously with the term “neutral” jury) is violated if the “purpose and functioning” of a jury, in a criminal trial, is impaired to a significant degree by a challenged procedure (here, “death-qualifying” a jury).

The right to a fair and impartial jury is an integral part of the right to a trial by jury and is protected by the Sixth Amendment of the United States Constitution and which applies to the states through the Due Process and Equal Protection clauses of the Fourteenth Amendment.

Unlike the Sixth Amendment, the state constitution's jury provision—(Cal. Const., art. I, § 16), does not explicitly guarantee a trial by an “impartial” jury. However, jury impartiality is implicitly guaranteed “by our charter”. (People v. Wheeler (1978) 22 Cal.3d 258, 265, 148 Cal.Rptr. 890, 583 P.2d 748.) Thus the right to an impartial jury is guaranteed by both the federal and state constitutions.

The neutral jury issue in capital cases has been addressed by both the United States Supreme Court and the California Supreme Court. The United States Supreme Court in Witherspoon v. Illinois, supra, 391 U.S. at pp. 517–520, 88 S.Ct. at pp. 1774–1776, like the California Supreme Court, in Hovey was unable to resolve the issue now raised by appellants (due to an inadequate evidentiary showing in the cases presented). However, recently, in Lockhart v. McCree (1986) 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137, and Buchanan v. Kentucky (June 23, 1987) (which adopted the Court's reasoning in Lockhart v. McCree ), 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 the United States Supreme Court resolved the federal legal basis for appellant's neutral jury contention against them (see Buchanan, infra on fair cross section issue).

McCree had been tried and convicted for “capital felony murder” in the Arkansas state court.10 On appeal the United States Supreme Court (reversing a “Fair Cross Section” ruling by the Eighth Circuit Court see fn. 10) in addressing the “impartial jury” argument adopted by the District Court, rejected McCree's argument that “death-qualification” of the jury violated his constitutional right under the Sixth and Fourteenth Amendments to an impartial jury. In doing so, the court said, “․ McCree does not claim that his conviction was tainted by any of the kinds of jury bias or partiality that we have previously recognized as violative of the Constitution. Instead, McCree argues that his jury lacked impartiality because the absence of ‘Witherspoon -excludables' ‘slanted’ the jury in favor of conviction.

“We do not agree. McCree's ‘impartiality’ argument apparently is based on the theory that, because all individual jurors are to some extent predisposed towards one result or another, a constitutionally impartial jury can be constructed only by ‘balancing’ the various predispositions of the individual jurors․ We have consistently rejected this view of jury impartiality, ․ an impartial jury consists of nothing more than ‘jurors who conscientiously apply the law and find the facts.’

“․ it is simply not possible to define jury impartiality, for constitutional purposes, by reference to some hypothetical mix of individual viewpoints.” (Lockhart v. McCree, supra, 106 S.Ct. at pp. 1767, 1770.)

Having in mind McCree and Buchanan, supra, we must now determine whether or not appellants in the case now before us are foreclosed in this state from claiming that “death-qualifying ” the jury deprived them of the right to be tried by a “neutral jury”. We think not.

Just as it did when prospective jurors underwent “death-qualifying” voir dire prior to Hovey, “[a] typical death-qualifying voir dire includes repeated explanations of the procedural route the jury will travel if it is to reach the penalty phase․ Potential jurors are asked to assume that the accused has been found guilty of first degree murder and to imagine that the special circumstances allegations have been found true. They are then asked to indicate whether they could fulfill their legal responsibility to choose the appropriate penalty based on the evidence presented․” (Hovey v. Superior Court, supra, 28 Cal.3d at p. 70, 168 Cal.Rptr. 128, 616 P.2d 1301.)

As pointed out by the court in Hovey, the process used focuses attention on penalty before the accused has been found guilty. As a result, some jurors may be more likely to believe the accused is guilty as charged. The court recognizing the “untoward effects of death-qualification”, sought to “minimize ” them by requiring individualized sequestered voir dire. In doing so, the Supreme Court reasoned that, “[s]uch a reduction in the pretrial emphasis on penalty should minimize the tendency of a death-qualified jury to presume guilt and expect conviction.” (Id . at p. 80, 168 Cal.Rptr. 128, 616 P.2d 1301.)

While Buchanan and McCree, supra, are arguably support for the proposition that the justification for the single jury (one that has been death qualified) in a capital case involving one defendant (or where there is more than one, if all are subject to the death penalty), is the legitimate state interest in obtaining a jury that does not contain members who are unable to follow the law with respect to a particular issue and in having a single jury that could properly find the facts and apply the law at both phases of the trial. We do not believe the same proposition to be applicable in a case such as the case now before us, i.e., where there are codefendants who are not themselves subject to the death penalty and the jury does not determine the punishment for the non-capital defendants.

McCree and Buchanan, supra, (both capital cases) are factually and procedurally distinguishable from the case at bar. In McCree, there was only one defendant; and in the case of Buchanan, although there were two defendants, one of whom was subject to capital punishment and the other was not, unlike California, Kentucky's law in effect at the time of Buchanan's conviction, required the jury making the determination of guilt or innocence to make the determination of punishment for both the capital defendant and the felony defendant (i.e., the non-capital defendant). In the case now before us as to the non-capital defendant, there is no such requirement on the part of the jury. Thus the same state interest emphasized in Buchanan and McCree does not apply to the facts of the case before us.

Our high court recognized the fact long before McCree and Buchanan were decided by the United States Supreme Court, that in determining the question of jury neutrality11 it is unnecessary to make any judgment that one viewpoint, attitude, experience, etc. is preferable morally or legally to any other; the California Supreme Court has nevertheless emphasized the point that “[w]hat is essential under this analysis is that none of these viewpoints, attitudes, experiences, etc., are systematically excluded from the jury pool, either directly or by de facto operation of otherwise neutral laws or practices, to the detriment of the accused.” (Hovey at p. 26, 168 Cal.Rptr. 128, 616 P.2d 1301.)

California's Supreme Court has said “[c]learly, the constitutional principle of achieving jury neutrality through diversity is relevant to a determination of guilt as well as penalty. Every juror brings to the guilt phase a number of personal characteristics which will ‘play an inevitable role’ in assessing the accused's guilt or degree of guilt․ [¶] Manifestly, fair and impartial jurors will bring to the determination of guilt a diversity of experience, knowledge, judgment, and viewpoints, as well as differences in their ‘thresholds of reasonable doubt.’ If some of these jurors are systematically removed from the guilt determination, this may result in a disproportionate elimination of persons with characteristics favorable to the accused. If so, the ensuing jury will be ‘less than neutral with respect to guilt,’․” (Emphasis added.) (Hovey at pp. 21–22, 168 Cal.Rptr. 128, 616 P.2d 1301.)

We believe that our high court accurately and correctly analyzed the effect of diversity on the issue of neutrality. Furthermore we can find no reasonable basis upon which to conclude that it did not mean what it said about jury neutrality. “Diversity aids the accuracy of jury decision making by ‘counter-balancing ․ various biases' of the jury members. [Citation.] ․ [¶] Diversity serves to complement as well as neutralize viewpoints and attitudes. Diversity enhances the accuracy of a jury's decision making by improving its ability to recognize and appropriately evaluate evidence․ Human perception is selective, influenced by the very beliefs and attitudes which venirepersons bring into the courtroom․ The members of a homogenously composed jury are more likely to perceive evidence in a similar fashion. Also, they are more likely to filter out any evidence inconsistent with their shared attitudes and values. Insofar as a jury is composed of members whose attitudes, preconceptions, and experiences are diverse, the jury is more likely to perceive and remember all the important evidence and arguments presented at trial. [¶] ․ the human mind often tends to make any new information with which it is confronted logically consistent with its prior conscious beliefs. Thus, if a juror's beliefs do not correspond to the evidence presented at trial, the juror's ‘rational nature’ may tend to impel him or her to distort or exclude the perception so as to protect the apparent reasonableness of the belief. Thus, diversity provides a corrective to the distortions which can occur when the evidence presented at trial is inconsistent with the preconceptions of some members of the jury․ [¶] If a jury is accurately to assess evidence, it should have some expertise both in generating the inferences which may reasonably be drawn from the evidence and in evaluating the relative plausibility of the competing inferences. The greater the diversity of individual viewpoints and experiences on the jury panel, the broader the range of appropriate inferences the jury can draw from the evidence at trial and the more knowledgeable their interpretation and weighing of these inferences one against the other. For example, jurors in criminal cases are often called upon to infer mental states from behavior. In a culturally pluralistic society, particular behavior can have dramatically different meanings to members of different subcultures. A jury with diverse membership will recognize a fuller range of possible meanings or explanations for particular behavior, and it will be able to evaluate those possible meanings in light of the diverse experiences of the panel members regarding values, norms, behavior, motivation, and psychology.” (Hovey at pp. 23–24, 168 Cal.Rptr. 128, 616 P.2d 1301.)

The court in Hovey, although not resolving the issue, did not foreclose the question of whether excusing for cause “guilt-phase includables” from the guilt phase of a capital case affects jury neutrality—or the purpose and functioning of a jury. As previously indicated, both of these issues require empirical proof.

In expressing its inability at the time to resolve the question, the court indicated that the issue could not be resolved “until further research is done” which makes it possible to draw reliable conclusions about its reliability.12

Essentially, there are three and possibly four questions raised by the court in Hovey as needing to be answered in conjunction with the research, before it could arrive at an answer to the neutral jury issue raised by appellants: (1) does an “A.D.P.” group exist; (2) if it does, how large is it; (3) what are its behavioral tendencies (which is the most crucial question) and; (4) depending on what those tendencies are, what is the net result in California for a jury that is “death-qualified” when both the Witherspoon excludables and the A.D.P.'s have been excluded?

At a pre-trial hearing, in the court below, Edward J. Bronson, a Ph.D.13 in political science with an expertise on “death-qualified” jury issues testified for the defense. In an attempt to answer the questions posed by Hovey, Dr. Bronson testified that based on his analysis of a number of studies,14 including his own, and a reanalysis of available data by Joseph Kadane,15 he concluded that the research indicates that the “California-death-qualified” jury is not neutral, for the reason that the “Witherspoon-excludables”16 are a much larger group than the “A.D.P.'s”.17 He therefore concluded that excluding the A.D.P.'s from the jury does not cancel out the effects of eliminating the “Witherspoon-excludables” from a “California-death-qualified” jury. He further explained that in his opinion, Kadane's analysis showed a statistically significant difference in terms of the pro-prosecution attitude of the “death-qualified” jury after the A.D.P.'s are excluded (i.e., in terms of attitude, the “California-death-qualified” jury is prosecution-prone even when the “A.D.P.'s” are excluded.)

Appellants thus contend that the questions posed by Hovey were answered by the evidence presented at the hearing in the court below. We disagree.

As pointed out by the trial judge in the court below at the conclusion of the “Witherspoon–Hovey” hearing, much of what appellant's expert (Dr. Bronson) testified to was presented to the court in the Hovey case;18 with the exception of the four additional studies concerning A.D.P.'s (i.e., the Harris study, the Cowan–Thompson study, the Arkansas Archival and Bronson's study, see fn. 14), and the Kadane Analysis (Kadane's analysis was not a study), of the four studies. Although approximately 3,300 persons were considered in the four “ADP” studies, only 614 of them were Californians.

We decline here to make a constitutional holding based on a single analysis (Kadane's analysis) of the four A.D.P. studies and on a reevaluation of the Hovey studies and statistics by Dr. Bronson. The question is still open. This court is without a sufficient evidentiary basis to conclude that the “death-qualification” process used in this case violated appellants' right to be tried by a constitutionally valid jury.

We therefore hold that appellants have failed to meet the burden of proof required for us to conclude that they were deprived of their right to an impartial jury or that the procedure used had any significant impact on the purpose and function of the jury under the state Constitution or Federal Constitution.

B. Fair Cross Section Issue

Appellants next contend that the exclusion of jurors, who are unalterably opposed to capital punishment, from the guilt phase of a capital trial, deprived them of the right under both the State and Federal Constitutions to a jury drawn from a “representative cross section of the community”. In light of existing case decisions, both by the United States and California Supreme courts, we must disagree.

In state criminal prosecutions the right to trial by a jury drawn from a “representative cross section of the community” is guaranteed equally and independently by the Sixth Amendment to the Federal Constitution and by article I, section 16, of the California Constitution. Such right is violated when a “cognizable group” within the community is systematically excluded from jury service. (People v. Wheeler, supra, 22 Cal.3d 258, 272, 148 Cal.Rptr. 890, 583 P.2d 748.)

The California Supreme Court in Adams v. Superior Court (1974) 12 Cal.3d 55, 115 Cal.Rptr. 247, 524 P.2d 375, stated that “․ before exclusion may be held improper, there must be a common thread running through the excluded group—a basic similarity of attitudes, ideas or experience among its members so that the exclusion prevents juries from reflecting a cross-section of the community.” (P. 60, 115 Cal.Rptr. 247, 524 P.2d 375.) And in Rubio v. Superior Court (1979) 24 Cal.3d 93, 154 Cal.Rptr. 734, 593 P.2d 595, our high court held that two requirements must be met in order to qualify an asserted group as “cognizable” for purposes of the representative cross-section rule. First, its members must share a common perspective arising from their life experience in the group, i.e., a perspective gained precisely because they are members of that group and second, the party seeking to prove a violation of the representative cross-section rule must also show that no other members of the community are capable of adequately representing the perspective of the group assertedly excluded.

More recently in People v. Fields (1983) 35 Cal.3d 329, 197 Cal.Rptr. 803, 673 P.2d 680 and People v. Ghent (1987) 43 Cal.3d 739, 239 Cal.Rptr. 82, 739 P.2d 1250, our Supreme Court in addressing the issue now raised by appellants said, “[p]ersons who would not be willing to vote for the death penalty come from diverse backgrounds and experiences, and may have diverse views on all other matters. Their unwillingness to vote for death may come from many sources․ They do not comprise a distinctive, self-conscious group; one's identity is defined in part by his or her gender, race, religion, and other matters, but not generally by one's views on the single question of whether one would vote against death if chosen as a juror in a capital case. We conclude that the class of persons united only by their determination to vote automatically against the death penalty ․ is not a cognizable class․”19 (P. 349.)

Our Supreme Court's reasoning that the so called “guilt phase includables” are not a distinct identifiable, cognizable class was similarly expressed by the United States Supreme Court in Lockhart v. McCree, and Buchanan v. Kentucky (id.) as part of the stated basis for rejecting the claim by appellants that “death-qualification” violates a defendant's right to a jury selected from a representative cross section of the community. The United States Supreme Court reasoned in McCree and Buchanan that the fair cross section requirement applies only to venires, not to petit juries; accordingly petit juries do not have to reflect the composition of the community at large. Additionally, the court pointed out that, even if this requirement were applied to petit juries, no fair cross section violation would be established when “Witherspoon excludables” were dismissed from a petit jury, because “they do not constitute a distinctive group for fair cross section purposes.” The court thus concluded that the contention that “death-qualification” prior to the guilt phase of the trial violated appellant's right under the Sixth and Fourteenth Amendments to an impartial jury selected from a representative cross section of the community, must be rejected.

By virtue of the holdings in Lockhart v. McCree, Buchanan v. Kentucky, People v. Fields and People v. Ghent, supra, we must likewise conclude that appellants were not denied a fair cross section jury under the Federal and State Constitutions.

C. Trial Court's Denial of Separate Trial Motion

Appellants Benson and Middleton contend that the trial court committed prejudicial error when it denied their motions to sever their trial from that of Davis (the alleged trigger man).

Penal Code section 109820 places the matter of whether a codefendant is to be tried jointly or separately within the discretion of the court. However, the court should separate the trials of codefendants in the face of (1) an incriminating confession; (2) where there is prejudicial association with codefendants; (3) where there is the likelihood of confusion resulting from evidence on multiple counts; (4) where there are conflicting defenses; or (5) where there is the possibility that at a separate trial a codefendant would give exonerating testimony. (People v. Massie (1967) 66 Cal.2d 899, 916–917, 59 Cal.Rptr. 733, 428 P.2d 869.)

Both appellants Benson and Middleton argue that inasmuch as Davis' defense was that although there was an intent to commit robbery, the shootings were accidental; they were prejudiced by his “antagonistic defense” and by association with him. They also contend that they were denied their right of confrontation because they were unable to impeach Davis with his prior murder conviction.21 Additionally, Middleton urges that he was prejudiced by a change of circumstances that would have justified a mistrial, when Davis elected to testify.

Although our Supreme Court has recognized the importance of the preservation of the procedural safeguard of a separate trial, the legislature through its enactment of Penal Code section 1098, has decreed joint trial to be the rule and separate trials to be the exception. (Id. at p. 923, 59 Cal.Rptr. 733, 428 P.2d 869.) The “question of the erroneous denial of a severance does not rise to jurisdictional magnitude, nor is the right to a separate trial so fundamental that its denial must occasion automatic reversal.” (Id.)

In considering appellants' claims that the trial court's denial of their severance motion was erroneous and thereby warrants a reversal of their convictions, there must be a weighing of the prejudicial impact of all of the significant effects that may reasonably be assumed to have stemmed from the alleged erroneous denial of a separate trial. A reversal of a conviction achieved at a joint trial (for failure to grant separate trials) will not occur in the absence of showing a reasonable probability that the defendant would have obtained a more favorable result at a separate trial. (Id.) Two important considerations are, (1) whether a separate trial would have been significantly less prejudicial to defendant than the joint trial, and (2) whether there was clear evidence of defendants guilt. (People v. Ortiz (1978) 22 Cal.3d 38, 46, 148 Cal.Rptr. 588, 583 P.2d 113; People v. Massie, supra, 66 Cal.2d at pp. 921–922, 59 Cal.Rptr. 733, 428 P.2d 869.)

With the foregoing in mind, we shall now consider appellants' specific contentions.

1. Prejudicial Association Claim

First, appellants contend that they were not only prejudiced by Davis' defense, i.e., his conceding that he intended to commit robbery, and then arguing that the shootings were accidental; additionally, they contend that they were prejudiced by having to stand trial with a defendant (Davis) who would be tried by a “death-qualified jury”.

Although appellants Benson and Middleton did not put on a defense, clearly the testimony of Davis was not in their best interest. His testimony not only implicated them in the robbery, but also in the subsequent death of one of the victims and the serious wounding of the other. Despite this fact, based on the record before us, appellants are unable to meet their burden of proof, i.e., to prove to a reasonable probability, that the granting of separate trials to appellants Middleton and Benson from that of Davis, would have resulted in a decision any more favorable to their case. Even without the testimony of Davis, the evidence produced at trial through the testimony of other persons who witnessed the events giving rise to the charges of which appellants were convicted (including the testimony of Anthony M.), supplied the damaging details of the roles played by each of the appellants in the crimes for which they were prosecuted and convicted. This evidence was more than sufficient to establish their guilt.22

Next, appellants argue that the trial court's denial of their motion for severance, forcing them to trial with Davis, caused them to be associated in trial with a defendant who had, without provocation, shot two persons (one of whom was seriously wounded and the other had died as a result of the wounds received), causing them to come “across as a close associate of a remorseless killer” and was therefore error. In conjunction with this argument they also contend that the foregoing “association,” was “severely exacerbated” by the fact that their being jointly tried with Davis resulted in their being tried by a “death-qualified” jury.

In joint trials involving multiple defendants, one or more codefendants may very well suffer some form of prejudicial association with other codefendants, however, because of the strong preference for joint trials and the matter of severance being within the discretion of the trial court, each case must be individually analyzed to determine whether relief should be granted. There can be no clearly defined rule for determining when a defendant is entitled to a separate trial because the exercise of discretion means that the decision must be based upon a just and proper consideration of the particular circumstances which are presented to the court in each case. (People v. Clark (1965) 62 Cal.2d 870, 833, 44 Cal.Rptr. 784, 402 P.2d 856; People v. Eudy (1938) 12 Cal.2d 41, 46, 82 P.2d 359.) However, no denial of a fair trial results from the mere fact that defendants who are jointly tried have antagonistic defenses or that one defendant gives testimony that is damaging to the other and thus helpful to the prosecution. (People v. Terry (1970) 2 Cal.3d 362, 390, 85 Cal.Rptr. 409, 466 P.2d 961; and People v. Turner (1984) 37 Cal.3d 302, 313, 208 Cal.Rptr. 196, 690 P.2d 669.)

Davis' reasons for testifying in the manner in which he did (which also implicated appellants Benson and Middleton) was as suggested by them, no doubt based on the fact that since he was facing the death penalty, his “overriding aim” at the guilt phase of his trial, was to try to convince the jury that he did not intentionally shoot the homicide victim. Despite this fact, this same evidence would have been admissible had the other two appellants been afforded a separate trial. Davis could have testified essentially the same if he had been called as a witness for the prosecution in such separate trial. There is no reason to doubt that he would have done so.

2. The “Death–Qualified” Jury and the Non–Capital Codefendants

We shall now consider the specific question posed by this case, of whether a codefendant in a capital case who is not himself subject to the death penalty, is entitled to a severance. In People v. Lara (1967) 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202 two defendants, Lara and Alvarez, were jointly tried for murder and kidnapping for the purpose of robbery with great bodily harm. Defendant Alvarez objected to the prosecutor's challenge for cause those prospective jurors who expressed conscientious objection against imposing the death penalty on the ground that such challenges were improper as to him because he was not subject to the death penalty. After being overruled by the trial court (which court also denied his request for additional peremptory challenges), Alvarez moved for a severance which was also denied. The California Supreme Court in upholding the ruling of the trial court said, “[t]he legislative policy in favor of joint trials of jointly charged defendants (Pen.Code, § 1098) is not outweighed by the circumstance that the prosecutor's challenges for conscientious objection to the death penalty may be technically inapplicable to a codefendant immune from that penalty.”23 (Emphasis added.)

Appellants Middleton and Benson are in a different position than appellant Davis. The former are members of a class of defendants (i.e., those not subject to the death penalty) who should have a standing to challenge a classification which distinguishes between them and other defendants i.e., those charged with crimes where no death penalty is involved, compelling only the former to submit to a trial before a jury that excludes the “guilt phase includables” and “death-qualifies” the jury.24 Persons who would automatically vote against the death penalty but who could be fair on the question of guilt or innocence routinely serve on California non-capital cases. Such persons could not be constitutionally excluded for cause as to non-capital defendants were it not for the “death-qualification” of a jury.

The state's justification for a single jury to try both phases of a capital defendant in a murder case is the state's legitimate interest insofar as possible, that the decision making process of a death penalty case is a coherent whole. As suggested by Fields 35 Cal.3d at page 352, 197 Cal.Rptr. 803, 673 P.2d 680, “[f]rom the prosecution's point of view, the use of a single jury to determine both guilt and penalty may make it less likely that a juror's belief as to the inappropriateness of the death penalty will improperly skew the determination of guilt or innocence; ․ [and][f]rom [the] defendant's prespective, the use of a single jury may help insure that the ultimate decision-maker in capital cases acts with full recognition of the gravity of its responsibility throughout both phases of the trial and will also guarantee that the penalty phase jury is aware of lingering doubts that may have survived the guilt phase deliberations.” (See also Buchanan and McCree, supra.)

We do not believe however that there is any legitimate state interest that should compel the trial of a non-capital defendant over his or her objection (merely because there are other defendants who are subject to capital punishment), by a “death-qualified” jury where some other reasonable alternative short of a severance is available25 and where such alternative is requested by the non-capital defendant. Nor do we believe this approach to be contrary to the holding of the U.S. Supreme Court in Buchanan and McCree, supra. (See the neutral jury discussion distinguishing those cases from the case at bar.)

Other than their request for a severance, we do not find in the record a request by Benson or Middleton at the time of trial for an alternative to the single jury. We do not conclude as suggested by appellants that the court was required sua sponte to impanel simultaneous juries to try the case. Just as the trial court is not obliged to order a separate trial on its own motion, (People v. Santo (1954) 43 Cal.2d 319, 273 P.2d 249; People v. Eudy, supra, 12 Cal.2d 41, 82 P.2d 359), the trial court is not obliged to order simultaneous juries on its motion.

Also, as in the case of the failure to move for a severance before the commencement of the trial, severance is deemed waived and not subject to review on appeal (see People v. Burns, (1969) 270 Cal.App.2d 238, 251–252, 75 Cal.Rptr. 688; People v. McGautha (1969) 70 Cal.2d 770, 785, 76 Cal.Rptr. 434, 452 P.2d 650); a defendant's failure to request simultaneous juries at the time of trial is deemed to be a waiver. Had such a request (i.e., for simultaneous juries) been made by Middleton and Benson before trial, and had the court refused to grant their motion (for simultaneous juries), we believe such refusal would have been an abuse of the court's discretion.26

3. Prejudicial Change of Circumstances Claim

Finally, as to the argument that at the time Davis elected to testify, there was a prejudicial change of circumstances that would have justified a mistrial (because the motion to sever was denied). We disagree.

Although what transpires at trial determines the prejudicial effect of an erroneous ruling on a motion for separate trials, whether denial of a motion to sever the trial of a defendant from that of a codefendant constitutes an abuse of discretion must be decided on the facts as they appear at the time of the hearing on the motion rather than on what subsequently develops. (People v. Turner (1984) 37 Cal.3d 302, 312, 208 Cal.Rptr. 196, 690 P.2d 669.) In the case now before us, the trial court could not have known prior to trial that Davis would take the stand and present an impeachment problem.27

We conclude that the trial court did not abuse its discretion in refusing to sever the trials. Moreover, on appeal, appellants must show a reasonable probability that they would have obtained a more favorable result in a separate trial. (People v. Massie, supra, 66 Cal.2d at pp. 922–923, 59 Cal.Rptr. 733, 428 P.2d 869.)

Whether separate or joint trials were held, it is hard for us to conceive of any different result.

V. TRIAL COURT'S REFUSAL TO ALLOW PRIOR FOR IMPEACHMENT

Appellants Middleton and Benson next argue that the refusal of the trial court to grant their motion for severance requires reversal because when the trial court ruled that if Davis testified, his prior conviction for murder could not be used against him, they were deprived of their right to confrontation.

Although it follows that by being required to stand trial with Davis, Middleton and Benson were unable to impeach Davis by presenting his prior conviction to the jury; we do not conclude under the circumstances, that the court's refusal to allow his prior conviction to come before the jury was an abuse of its discretion. Article I, section 28 of the California Constitution does not abrogate the traditional and inherent power of the trial court to control the admission of prejudicial matter under an Evidence Code section 352 analysis.

Although considerable latitude must be granted to a cross-examiner, a trial court has sound discretion in determining the extent of cross-examination designed to attack the credibility of a witness. (People v. James (1976) 56 Cal.App.3d 876, 886, 128 Cal.Rptr. 733.) The trial court may still weigh prejudice in deciding whether a defendant may be impeached with a prior if he testifies. (People v. Boyd (1985) 167 Cal.App.3d 36, 45, 212 Cal .Rptr. 873.)

Although both the state and federal constitutions guarantee the right of an accused in a criminal prosecution to be confronted by witnesses against him28 (Pointer v. Texas (1965) 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Davis v. Alaska (1974) 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347) it is a right subject to the trial court's reasonable discretion.29 (Davis v. Alaska, supra, 415 U.S. 308, 94 S.Ct. 1105; Jennings v. Superior Court (1967) 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304; People v. James, supra, 56 Cal.App.3d 876, 128 Cal.Rptr. 733.)

In the case before us, while appellants were not allowed to cross-examine Davis on his prior felony conviction, he was extensively examined on his participation in the criminal acts for which appellants were convicted. Appellants were thus not denied the opportunity to place Davis (as a witness) in the proper perspective. The state's interest in joint trials and the consideration of the prejudicial effect of allowing the use of the prior conviction against Davis, when compared to the probative value of such collateral matter—based on the record before us—we believe warranted the trial court's ruling that Davis could not be impeached by his codefendants in this manner.

Davis' credibility was thoroughly questioned30 and the weight of his testimony was put to a proper test. The jury was afforded full opportunity to appraise Davis and his testimony. (People v. Boehm (1969) 270 Cal.App.2d 13, 75 Cal.Rptr. 590; People v. Mardian (1975) 47 Cal.App.3d 16, 121 Cal.Rptr. 269.)

Based on the record before us, appellants fully achieved the “right” to effectively cross-examine Davis.

VI. INSTRUCTIONS TO JURY ON AIDER AND ABETTOR LIABILITY FOR ATTEMPTED MURDER

We now consider the contentions of appellants Middleton and Benson that the trial court committed reversible error in “failing to instruct the jury that it must find that both the actual killer and appellant[s] harbored specific intent to kill before they could be convicted of attempted murder.”31

Following our high court's decision on People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318, CALJIC No. 3.01 was revised32 so as to bring it into compliance with the holding in Beeman. It was this revised version that was given to the jury in the case at bar. Thus, the trial court told the jury that a person who aids and abets in the commission of a crime must do so with knowledge of the perpetrator's unlawful purpose, and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense in order to be an aider or abettor in the crime.

In addition to the court's giving of the CALJIC 3.01 instruction to the jury, it also instructed them on CALJIC No. 3.31, and No. 6.00,33 thereby informing them that both murder and attempted murder require the specific intent to unlawfully kill a human being and that acts constitute an attempt to commit a crime when they “clearly indicate a certain, unambiguous intent to commit the specific crime.”

Appellants cite People v. Acero (1984) 161 Cal.App.3d 217, 208 Cal.Rptr. 565 as support for their contention that a reversal is required because the court did not instruct the jury that in order to find appellants Benson and Middleton guilty of attempted murder, the jury must find that they, as well as the killer, must harbor the specific intent to kill. In Acero, unlike the case now before us the jury was instructed on CALJIC No. 3.01 as it read before it was revised to comply with Beeman.34 Thus the Acero jury, unlike the jury in the case at bar, were not told about the intent requirement of an aider and abettor.

In the case at bar, the record unmistakeably shows that both Benson and Middleton shared Davis' intent to participate in the attempted robbery at the check cashing establishment; and that the shooting that gave rise to the charge of attempted murder occurred as a natural and reasonable consequence of such occurrence.

When the definition of the offense includes the intention 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. The perpetrator's specific intent is deemed to have been shared by the aider and abettor 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. However, the liability of an aider and abettor extends also to the natural and reasonable consequences of the acts he knowingly and intentionally aids and encourages. (People v. Beeman, supra, 35 Cal.3d at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)

In People v. Croy (1985) 41 Cal.3d 1, 221 Cal.Rptr. 592, 710 P.2d 392, the court in discussing Beeman stated that, “[t]he requirement that the jury determine the intent with which a person tried as an aider and abettor has acted is not designed to ensure that his conduct constitutes the offense with which he is charged. His liability is vicarious. Like the conspirator whose liability is predicated on acts other than and short of those constituting the elements of the charged offense, if the acts are undertaken with the intent that the actual perpetrator's purpose be facilitated thereby, he is a principal and liable for the commission of the offense. Also like a conspirator, he is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aid and abets․ [Citation.]

“It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It 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. [Citation.]” (People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5, 221 Cal.Rptr. 592, 710 P.2d 392.)35

Thus, appellants' arguments are rejected by us. Our review of the record shows that the evidence is more than sufficient to establish Benson and Middleton's intent to assist or facilitate Davis in perpetrating robbery. Both were aware that Davis intended to use a gun in the perpetration of the (attempted) robbery of the check cashing establishment. The attempted murder of one of the victims of the attempted robbery (as well as the actual murder of another) was a natural and probable consequence of the attempted robbery itself. As aiders and abettors, appellants were liable not only for the attempted robbery which they intended to assist but also for any natural and probable consequence thereof. It was not essential that they harbored the specific intent to kill or that they intended to facilitate the offense of attempted murder committed as a foreseeable consequence by Davis. (People v. Hammond (1986) 181 Cal.App.3d 463, 468, 226 Cal.Rptr. 475.)

As suggested by the court in People v. Hammond, “[a]rguably the language of [CALJIC No. 3.00 (1984 Revision) (which was also given by the court in the case at bar)36 ] suggests that the jury should assume—rather than find—that the attempted murder was a natural and probable consequence of the robbery․ [W]hen, as here, a defendant is charged not only with the perpetrator's planned offense but with another offense ultimately committed as a natural and probable consequence thereof, CALJIC No. 3.00 (4th ed.1979 [including the 1984 revision] ) should be supplemented with an instruction clarifying the jury's related responsibility to determine whether the act committed was in fact a natural and probable consequence of the criminal act knowingly and intentionally encouraged.” (Id. at p. 469, 226 Cal.Rptr. 475.)

We conclude however that any error due to the absence of such a clarification was harmless. Our review of the facts in the case before us, leads us to the conclusion that having determined that appellants knew of Davis' plan and intended to facilitate an armed robbery—even though it ultimately resulted only in an attempted armed robbery—the jury would in all likelihood have also found that the attempted murder of Benjamin Casillas, was a natural and probable consequence of the attempted robbery itself. It was not essential that Benson or Middleton harbored the specific intent to kill or that they intended to facilitate the offense of attempted murder committed as a foreseeable consequence by Davis. (People v. Hammond, supra, p. 469, 226 Cal.Rptr. 475.)

VII. SENTENCING ISSUES

Appellants raise various claims regarding the sentences imposed by the court.

A. Consecutive Sentences

Appellant Middleton contends that the court below erred in sentencing him because it failed to state its reasons for imposing consecutive sentences. She also contends that the court improperly increased her sentence in a nunc pro tunc order.

It is uncontradicted that when imposing its sentence on Middleton, (the same is true as to Benson)37 the trial court ordered the sentence on count III (attempted murder), to run consecutively to the sentence imposed on count I (murder), without stating its reasons for imposing consecutive rather than concurrent sentences (People v. Walker (1978) 83 Cal.App.3d 619, 148 Cal.Rptr. 66); and since there is nothing in the record to show why the sentence choice of consecutive terms was selected, Middleton and Benson's case must be remanded for resentencing.38

B. Enhancement of Sentence

Appellant Davis contends that as to count III (attempted murder) the court erroneously imposed two enhancements to the principle determinate term of nine years, i.e., the court imposed two years pursuant to Penal Code section 12022.5 and three years pursuant to Penal Code section 12022.7.

The People concede and we agree that the imposition of both enhancements was erroneous. Section 1170.1, subdivision (e) of the Penal Code, expressly provides that (except in the case of certain enumerated crimes), when two or more enhancements under sections 12022.5 and 12022.7 may be imposed for any signed offense, only the greatest enhancement shall apply.39

Appellant Benson further contends that the two year enhancement imposed pursuant to Penal Code section 12022.5 to his sentence on count V (robbery) was erroneous.

The People concede and we agree that this was also error. Penal Code section 1170.1, subdivision (a) limits the enhancement involved to one-third of the two year enhancement, or eight months.

Accordingly the case will be remanded to the trial court with directions to modify the judgment as indicated as to counts III and V.

C. Conduct Credit

Appellant Davis contends that the judgment should be modified to reflect 323 days of conduct credit pursuant to Penal Code section 4019.

The trial court credited Davis with 645 days in actual custody plus 215 days good time/work time credit.

The credit required by section 4019 of the Penal Code is a deduction of two days of each six-day period of the commitment. This means that for every four days of actual confinement the appellant is entitled to credit for six days where, as here, the record does not establish any loss of credit for work or good conduct. (In re Allen (1980) 105 Cal.App.3d 310, 164 Cal.Rptr. 319.)

The number of days credited on the term should be approximately one and one-half times the number of days spent in actual confinement, whether the confinement is before or after the sentence. Therefore, in order to find the amount of credit to which appellant Davis was entitled to by reason of 645 days in jail between the day of arrest and the day of sentence, the trial court should have added 645 plus a half of 645 for a total of 967 days. (Id.)

The trial court is directed to modify the judgment to reflect 322 days total conduct credits awarded to appellant Davis.

VIII MODIFICATION ISSUE

Finally, appellant Benson contends that trial counsel's failure to request a modification40 of his homicide offense requires a remand for resentencing in the event of affirmance. Appellant contends this is so because of his young age at the time of the occurrence of the crime, his lack of previous criminal convictions and the fact that he was not the “trigger man” or the “ringleader”. We do not conclude that the facts of the case at bar support appellant's contention.

In determining whether the punishment prescribed by law is so disproportionate to the crime for which it is inflicted that it violates the prohibition against cruel and unusual punishment, a court must consider the nature of the offense and/or the offender, with regard to the degree of danger both present to society. In conducting this inquiry the courts are to consider not only the offense as defined by the legislature, but also the facts of the crime in question, i.e., the totality of the circumstances surrounding the commission of the offense, including such factors as motive, the way it was committed, the extent of the defendant's involvement and the consequences of his act. In viewing the nature of the offender, the courts must focus its inquiry on each offender as an individual, and not in the abstract. Thus, the inquiry must focus on the particular person before the court and ask, “whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (People v. Dillon (1983) 34 Cal.3d 441, 479, 194 Cal.Rptr. 390, 668 P.2d 697.)

Although Benson (not unlike the defendant in Dillon ),41 was 17 years old when the offense occurred, and had no record, the court in Dillon specifically found the defendant to be a very immature individual whom it did not consider as a dangerous person. (Id., at p. 486, 194 Cal.Rptr. 390, 668 P.2d 697.) In the case at bar, although appellant Benson was 17 years of age when the offense occurred and even though he was not the “trigger man” he actively participated in the decision to commit a robbery. Furthermore, he knew that one of his codefendants was armed with a gun and he took a very active role in attempting to carry the robbery out. Unlike the defendant in Dillon, Benson's motives were monetary. We do not perceive in the record any evidence that the court or the jury had any reluctance about the verdict as was the case in Dillon.

Although no Dillon evaluation was requested by Benson's counsel in the court below, we are satisfied that the court did consider the appropriate factors including appellant's age, his culpability and the circumstances involved in the particular crime.

IX DISPOSITION

For the foregoing reasons, as to appellants Middleton and Benson, the case is remanded to the trial court with directions to resentence and to modify the judgment as directed herein. As to appellant Davis, the trial court is directed to modify judgment as specified herein.

In all other respects, the judgments against each of the appellants is affirmed.

FOOTNOTES

FOOTNOTE.  

1.  Appellant Davis was charged in counts V through VII as follows:Count V, robbery in violation of Penal Code section 211, with the further allegation that he personally used a handgun within the meaning of Penal Code sections 12022.5 and 1203.06(a)(1).Count VI, assault with a firearm in violation of Penal Code section 245(a)(2), with the further allegation that he personally used a firearm within the meaning of Penal Code sections 12022.5 and 1203.095.Count VII, attempted robbery in violation of Penal Code sections 664, 211, with the further allegation that he personally used a firearm within the meaning of Penal Code sections 12022.5 and 1203.06(a)(1).

2.  Appellant Benson was charged in count VIII with robbery in violation of Penal Code section 211, with the further allegation that he personally used a firearm within the meaning of Penal Code sections 12022.5 and 1203.06(a)(1).

3.  The deposition was that of “Anthony M.”, a 14–year–old accomplice.

4.  The gunshot left Benjamin with a scar beginning at the belt line and extending down approximately 3 to 4 inches. A scar was also left on his right buttock.

5.  “Anthony M.” testified for the prosecution, after being offered immunity and advised of his privilege against self-incrimination and of his right to counsel. At the time of trial he believed that he was scheduled to be released in 1992 and that his CYA time will be shortened in exchange for his testimony at the trial.

6.  The gun found was a five shot weapon and had only one bullet left.

7.  The investigator testified that in his opinion Jose had been shot with a .38 caliber gun.

8.  Appellants Middleton and Benson did not testify; nor did they call any witnesses to testify in their behalf.

9.  A number of prospective jurors were excused for cause, over appellants' objection, because of their death penalty views.

10.  The jury convicted McCree but at the sentencing phase of his trial rejected the state's request for the death penalty and set the punishment as life imprisonment without the possibility of parole.McCree's conviction was affirmed on appeal; following the denial of a petition for post-conviction relief, McCree sought federal habeas corpus relief. The District Court (which held a hearing on the “death-qualification” issue received in evidence numerous social science studies concerning attitudes and beliefs of the “Witherspoon-excludables”, along with the potential effects of excluding them from the jury prior to the guilt phase of a bifurcated trial) ruled that “death-qualification” of the jury violated both the fair cross-section and impartiality provisions of the Sixth and Fourteenth Amendment, and granted habeas relief.The Eighth Circuit (although it did not address McCree's impartiality claim), found “substantial evidentiary” support for the District Court's conclusion that the removal for cause of the “Witherspoon-excludables” resulted in “conviction-prone” juries, and affirmed the grant of habeas corpus relief on the ground that such removal violated McCree's constitutional right to a jury selected from a fair cross-section of the community.In reversing the Eighth Circuit, the United States Supreme Court held that the constitution does not prohibit removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial. The court held this to be so even assuming arguendo that the social science studies introduced in the courts below were adequate to establish that “death-qualification” in fact produces juries somewhat more “conviction-prone” than “non-death-qualified” juries. (Lockhart v. McCree, supra, 106 S.Ct. at pp. 1764–1769.)

11.  It is assumed that a constitutionally “neutral” jury is one which is drawn from the pool of persons eligible to serve in a non-capital criminal trial. An individual's attitude toward capital punishment is irrelevant to his or her eligibility for jury service in a non-capital case. A neutral jury pool will normally include members of each of the five groups on the spectrum of capital punishment attitudes.“A ‘death-qualified’ jury is drawn from a sub-population of this neutral jury pool. Under present law, certain persons are ineligible for a ‘death-qualified’ jury because of their attitudes toward the death penalty. However, many jurors who are unable to be fair and impartial at the penalty phase would be capable of giving a fair hearing as to issues of guilt or innocence. Therefore, it follows that when a ‘death-qualified’ jury pool is used to select jurors for the guilt phase of a trial, prospective jurors are excluded who could be fair and impartial at that phase.” (Hovey v.. Superior Court, supra, 28 Cal.3d at p. 22, fn. 54, 168 Cal.Rptr. 128, 616 P.2d 1301.)Non–Capital Case Jury PoolIn the group of persons from the community who are statutorily competent to act as jurors in a non-capital case are: (1) “automatic death penalty group”, i.e. those who will automatically vote for the death penalty; (2) “favor death penalty group”, i.e., those who favor the death penalty but will not vote to impose it in every case; (3) “indifferent group”, i.e., those who neither favor nor oppose the death penalty; (4) “oppose death penalty group”, i.e., those who oppose or have doubts about the death penalty but will not automatically vote against it in every case; and (5) “automatic life imprisonment group”, i.e., those who will automatically vote for life imprisonment.Capital Case Jury PoolThe pool of jurors eligible to serve in a capital trial in California consists of those persons eligible to serve in a non-capital case who: (1) favor the death penalty but would not vote to impose it in every case; (2) neither favor nor oppose the death penalty; and (3) oppose or have some doubts about the penalty but would not vote against it in every case. In California those who automatically would vote for the death penalty are excluded pursuant to Penal Code section 1074, subdivision 8, as construed by case law. (People v. Hughes (1961) 57 Cal.2d 89, 94–95, 17 Cal.Rptr. 617, 367 P.2d 33; People v. Gilbert (1965) 63 Cal.2d 690, 712, 47 Cal .Rptr. 909, 408 P.2d 365.)

12.  The California Supreme Court in referring to studies, experiments and survey evidence presented said, “The exclusion of ‘fair-minded’ jurors is improper under Witherspoon only if it can be established that such exclusions tended to result in a nonneutral jury, i.e. in the elimination or underrepresentation of those fair and impartial jurors who would tend to draw conclusions favorable to the accused about issues in the trial, and in the overrepresentation of such jurors favorable to the prosecution. Petitioner has failed to make such a showing as to ‘death-qualified’ juries in California. [¶] Therefore, until further research is done which makes it possible to draw reliable conclusions about the nonneutrality of ‘California death-qualified’ juries in California, this court does not have a sufficient evidentiary basis on which to bottom a constitutional holding․” (Hovey at p. 68, 168 Cal.Rptr. 128, 616 P.2d 1301.)In contrast the United States Supreme Court in Lockhart v. McCree, supra, 106 S.Ct. 1758, in ruling that the constitution does not prohibit the removal for cause, prior to the guilt phase of a biffurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of a trial; did not consider the social science studies to be relevant in reaching its decision. The court there, after criticizing the studies presented as “flawed” said, “․ we will assume for purposes of this opinion that the studies are both methodologically valid and adequate to establish that ‘death qualification’ in fact produces juries somewhat more ‘conviction-prone’ than ‘non-death-qualified’ juries. We hold, nonetheless, that the Constitution does not prohibit the States from ‘death qualifying’ juries in capital cases.” (Lockhart at p. 1764.)

13.  Dr. Bronson's qualifications were not put into issue in the court below, nor are they in issue here. He was one of the experts whose opinions were considered in Hovey.

14.  At the pretrial hearing in the court below, four studies and an analysis were concerned with the A.D.P. issue: (1) the Cowan–Thompson study in 1980. This study was of no significance on the A.D.P. issue because of the small percentage sampled; (2) the Arkansas Archival Study in 1980. In this study, all cases appealed to the Arkansas Supreme Court for a several-year period were researched. Of the 68 capital cases appealed, transcripts were available in 41 of them. Each of the cases had a “death-qualification” voir dire. The researchers read every voir dire to identify all persons eliminated for cause because of death penalty views. Out of 1,329 prospective jurors who underwent both Witherspoon and A.D.P. questioning the researchers identified ten A.D.P.'s and 157 Witherspoon excludables; (3) the Harris study, conducted in 1981, was a national sample involving 1,498 interviews. Professional interviewers were used and only persons over 18 years of age were interviewed. Follow-up questions were limited to those who “strongly favor” the death penalty and from this group Harris eliminated the nullifiers. He asked the non-nullifiers (i.e., those persons who indicated that they could be fair and impartial during the guilt phase), an A.D.P. question. The study indicated that only one percent of this national sample of nearly 1,500 were A.D.P.'s; (4) the Bronson, Butte County, California study conducted in 1981. In this study, subjects were taken from the prior year's jury lists of those selected for jury service in the Chico Municipal Court. Using a random method to select people from those lists; persons to be questioned were contacted by telephone. Of those who indicated that they were strongly in favor of the death penalty, a follow-up A .D.P. question was asked. Nullifiers were eliminated, seven out of 365 respondents, or 1.9 percent were found to be A.D.P.'s.

15.  Dr. Bronson testified that Joseph Kadane is a social scientist, who analyzed certain of the available data, including attitude studies, to determine the relative size of the A.D.P.'s in the Witherspoon excludable group in California and to measure the relative impact of adding to the excludable group in California, the A.D.P.'s along with the group that always has been there, the Witherspoon excludables, to see if the resulting conviction proneness is watered down, or eliminated, etc.

16.  “Witherspoon excludables” refers to that group of jurors who are otherwise qualified to serve on a jury but who are excused from serving on a jury in a capital case because they say that they can never vote for the death penalty.

17.  “A.D.P.'s” (automatic death penalty) refers to someone who has been determined by voir dire will always vote for the death penalty and will never vote for life imprisonment. Based on the studies considered by him, Dr. Bronson concluded that the number of “A.D.P.'s” will vary somewhere between zero and two percent, but finally concluded that they constitute approximately one percent of the jury population, while the “Witherspoon-excludables” are between 10 to 15 percent of the jury population. Bronson also indicated that in his opinion, Kadane's analysis showed a statistically significant difference in terms of the pro-prosecution attitude of the “death-qualified” jury after the “A.D.P.'s” are excluded (i.e., in terms of attitude the “California-death-qualified” jury is prosecution prone even when the A.D.P.'s are excluded.)

18.  At the conclusion of the Witherspoon–Hovey hearing in the court below the judge made the following observation:“․ I am faced with the issue that you presented to me, and that issue, as I understand it, is there additional evidence that could be presented to this court on the statistical studies that might have not been presented to the court in Hovey that might then require this court to call a separate panel or use some other method in getting the defendants ․ a fair trial, ․ much that Mr. Bronson has testified to has been presented to the Court in the Hovey decision, conclusively of good Professor Bronson's study that he has given us this afternoon. [¶] The additional item that the Professor's given us, ․ is the A.D.P. study․” [RT 254–255]

19.  Although Fields was a plurality opinion, it has been cited and followed by a majority of California Supreme Court cases, e.g., see People v. Rodriquez (1986) 42 Cal.3d 730, 748, 230 Cal.Rptr. 667, 726 P.2d 113; People v. Leach (1985) 41 Cal.3d 92, 101, 221 Cal.Rptr. 826, 710 P.2d 893; People v. Montiel (1985) 39 Cal.3d 910, 920, 218 Cal.Rptr. 572, 705 P.2d 1248; People v. Chavez (1985) 39 Cal.3d 823, 827, 218 Cal.Rptr. 49, 705 P.2d 372; People v. Frank (1985) 38 Cal.3d 711, 734, 214 Cal.Rptr. 801, 700 P.2d 415.

20.  Penal Code section 1098 reads as follows:“When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials. In ordering separate trials, the court in its discretion may order a separate trial as to one or more defendants, and a joint trial as to the others, or may order any number of the defendants to be tried at one trial, and any number of the others at different trials, or may order a separate trial for each defendant; provided, that where two or more persons can be jointly tried, the fact that separate accusatory pleadings were filed shall not prevent their joint trial.”

21.  We shall discuss appellants' “right to confrontation” argument in our discussion of their claim of error by the court in denying them an opportunity to impeach Davis through the use of his prior conviction.

22.  Appellants do not raise insufficiency of the evidence as a ground of appeal.

23.  People v. Lara is cited in People v. Kelly (1986) 183 Cal.App.3d 1235, 228 Cal.Rptr. 681 as the basis for ruling in a codefendant murder case where only one defendant was subject to the death penalty that the non-capital codefendant is not entitled to a severance.

24.  As indicated by our Supreme Court, in a typical death-qualifying voir dire, “[p]otential jurors are asked to assume that the accused has been found guilty of first degree murder and to imagine that the special circumstances allegations have been found true․ [¶] The process presently used focuses attention on penalty before the accused has been found guilty. As a result, some jurors may be more likely to believe the accused is guilty as charged․ [¶] In a typical death-qualifying voir dire, the judge and the attorneys repeatedly instruct jurors about steps leading to the penalty trial and question each prospective juror, oftentimes at considerable length, concerning his or her attitudes about capital punishment. These repeated displays of concern about the death penalty before any evidence of guilt has been presented may prompt the jurors to infer that the court and counsel assume the penalty trial will occur.” (Hovey v. Superior Court, supra, 28 Cal.3d 1, 70–71, 168 Cal.Rptr. 128, 616 P.2d 1301.)Also the arbitrary exclusion of any person or groups of persons from jury service, whether or not they comprise a cognizable class, the exclusion of members of a diverse, noncognizable group united only by their views on a particular issue will still exclude from the jury that particular viewpoint, and, to that extent, will necessarily diminish the representative character of the jury. (People v. Fields, supra, 35 Cal.3d 329, 350–351, 197 Cal.Rptr. 803, 673 P.2d 680.)

25.  While we do not here intend to specify any such alternatives, and although the reasonableness of any requested alternative must be determined on a case-by-case basis, one such possible alternative, would be to impanel simultaneous juries to hear a case. This procedure has been approved in California and would have afforded each defendant in the case at bar a fair trial while at the same time maintaining judicial economy. (People v. Wardlow (1981) 118 Cal.App.3d 375, 173 Cal.Rptr. 500.)In the case at bar, if requested, the trial court could have impaneled two juries, one to decide the guilt or innocence of appellants Benson and Middleton and the other (which would be “death-qualified”), to determine the guilt or innocence of Davis (and if found guilty, his punishment).By the use of simultaneous juries (as distinguishable from a severance), the necessity of two trials would thus be eliminated.While we are aware that impanelling simultaneous juries would incur the delay of double voir dire and the expense of maintaining two juries, these considerations we do not consider as compelling reasons to deny reasonable alternatives to severance.

26.  Assuming that appellants had made a timely request for simultaneous juries, and the court denied their request; just as an erroneous denial of a severance does not rise to jurisdictional magnitude, nor is the right to a separate trial so fundamental that denial must be occasion for automatic reversal (see People v. Massie, supra, 66 Cal.2d 899, 59 Cal.Rptr. 733, 428 P.2d 869), so to, do these principles apply to simultaneous jury requests.

27.  Counsel for appellant Middleton concedes in his trial brief that the trial court had no way of knowing prior to trial that Davis would elect to take the witness stand and the “felony-impeachment problem would become a reality.”Appellant Davis pled to the counts in which he was charged alone, thereby eliminating any possible confusion that might have arisen from evidence on multiple counts; and no evidence was presented to the trial court at the severance motion that he would give exhonorating testimony in a separate trial.

28.  One way of discrediting the witness is to introduce evidence of a prior criminal conviction of that witness. (Evid.Code, § 788.) By so doing the cross-examiner intends to afford the jury a basis to infer that the witness character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness.

29.  While cross-examination to test the credibility of a prosecution witness is to be given wide latitude, its control is within the discretion of the trial court (People v. Benjamin (1974) 40 Cal.App.3d 1035, 1042, 115 Cal.Rptr. 668), and the trial court's exclusion of collateral matter offered for impeachment purposes has been consistently upheld. (People v. Lavergne (1971) 4 Cal.3d 735, 743, 94 Cal.Rptr. 405, 484 P.2d 77.)

30.  The following are examples of transcript references in the cross-examination of Davis on this subject:“Q. Isn't it true you don't really know what happened, because you are not telling the truth?“A. No, that's not true.“Q. Mr. Benson wasn't there handing you that gun. Somebody handed it to you down the alley; isn't that correct?“A. No.“Q. Show you exhibit No. 29, which is a letter. Is that your handwriting?“A. Yes.“Q. You wrote that to send to Mr. Benson, didn't you?“A. Yes.“Q. And an officer saw that and took it away from you, right?“A. He took it from Benson.“Q. By the time Benson had it in his hand, did he open it up and read it?“A. No.“Q. Now, you wrote that letter knowing that I wasn't working with Mr. Crisci [Crisci was the prosecutor in the case], didn't you?“A. No, I didn't write the letter in that respect.“Q. What respect did you write the letter?“A. I wrote it to give him knowledge of D.A.'s and public defenders, in the event that you are a public defender.“Q. Uh-huh. You wrote it to try to get Mr. Benson to believe that I wasn't going to do a professional, credible job in defending him and to get him to distrust me, didn't you?“A. No, because that's not what's stated in the letter.“Q. Well, do you recall saying, in part, ‘our lawyers are working with the D.A.’?“A. Yes.“Q. Did you say that?“A. Yes.“Q. That wasn't true, to your knowledge, was it?“A. I said it assuming that maybe a plea bargain would be mentioned between the D.A. and you and the other attorneys.“Q. You were trying to get everybody to distrust everybody so you could try to blame everthing on them, right, including Tony?“A. No.”“Q. Isn't it true that when you shot Benjamin, Anderson was already down and you shoved Benjamin in that car and shot him? Isn't that what you did?“A. No.“Q. And now you are trying to lay it off on Benson or Anderson; isn't that correct?“A. No, no.”

31.  Our Supreme Court in People v. Beeman, supra, 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318 held that CALJIC No. 3.00 (as it then read), inadequately defined aiding and abetting because it failed to insure that an aider and abettor would be found to have the required mental state with regard to his or her own act. The court went on to point out that while the instruction did include the word “abet”, which encompasses the intent required by law, the word “is arcane” and its full import unlikely to be recognized by modern jurors. Further, the court indicated that even if jurors were made aware that “abet” means to encourage or facilitate, and implicitly to harbor an intent to further the crime encouraged, the instruction (CALJIC 3.01 as it then read) did not require them to find that intent because it defines an aider and abettor as one who “aids, promotes, encourages or instigates.”

32.  CALJIC No. 3.01 as given provides:“A person aids and abets the [commission] [or] [attempted commission] of a crime when he or she, [¶] (1) with knowledge of the unlawful purpose of the perpetrator and [¶] (2) with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, [¶] by act or advice aids, promotes, encourages or instigates the commission of the crime.”

33.  CALJIC No. 3.31 as given provides:“In [each of] the crime[s] charged in [Count[s] 1, 2, 3 and 4 of] the information, [namely,] murder, attempted robbery, attempted murder and attempted robbery, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator and unless such specific intent exists the crime to which it relates is not committed. [¶] [The specific intent required is included in the definition [s] of the crime[s] charged.] [¶] [The crimes of murder and attempted murder require the specific intent to unlawfully kill a human being.] [¶] [And the crime of robbery and attempted robbery require the specific intent to permanently deprive the owner of his property.]”CALJIC No. 6.00 as given provides:“An attempt to commit a crime consists of two elements, namely, a specific intent to commit the crime, and a a direct but ineffectual act done toward its commission. [¶] In determining whether or not such an act was done, it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the doing of the criminal deed, on the other. Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt; but acts of a person who intends to commit a crime will constitute an attempt where they themselves clearly indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design, the progress of which would be completed unless interrupted by some circumstance not intended in the original design.

34.  CALJIC No. 3.01 (1980 rev.) as given in Acero provides:“A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime.” (Parts not pertinent to our discussion have been omitted.)

35.  Appellants argue the trial court's instructions create a new crime—“aiding and abetting a felony-attempted murder”. By this opinion we do not mean to imply these aiding and abetting instructions would be sufficient were there substantial ambiguity in the instructions as to the necessity of finding Davis had a specific intent to kill Benjamin. (See, People v. Lee (1987) 43 Cal.3d 666, 238 Cal.Rptr. 406, 738 P.2d 752, and cases cited therein, holding conflicting instructions as to whether defendant had specific intent to kill can amount to reversible error in attempted murder prosecution.) As there is no such crime as “felony-attempted murder”, there is no crime of “aiding and abetting a felony-attempted murder.” Thus, assume one of the robbers accidently tripped during the robbery and his gun discharged, wounding but not killing a bystander. The other robbers would not be guilty of aiding and abetting an attempted murder even though the possibility of such an accidental shooting of a bystander was a natural and probable consequence of that armed robbery. And in this situation the other robbers would not be criminally responsible for aiding and abetting an attempted murder even though they could have been held responsible for aiding and abetting a felony-murder had the bystander died from his wounds. However, where one person involved in a robbery shoots at someone with the intent to kill that person and a shooting with this intent was a natural and probable consequence of this robbery, those who aided and abetted the robbery with this knowledge and with the intent of facilitating the robbery are criminally responsible for the attempted murder. [¶] In the instant case we find the instructions made it sufficiently clear the jury had to find Davis had a specific intent to kill Benjamin before it could find Middleton and Benson guilty of aiding and abetting the attempted murder of Benjamin. Accordingly, contrary to appellants' argument we are not sanctioning the creation of a new crime of “aiding and abetting a felony-attempted murder.”

36.  CALJIC No. 3.00 as given by the court in pertinent part reads as follows:“One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly and intentionally aided or encouraged.” (Id. at p. 469, fn. 6, 226 Cal.Rptr. 475.)“[W]hile the jury need only find that defendant knowingly and intentionally facilitated or encouraged the planned offense (robbery), whether the crimed charged (attempted murder) was in fact a natural and probable consequence of the planned offense was for the jury to decide.” (Id. at p. 469, 226 Cal.Rptr. 475.)A petition for a rehearing was denied June 18, 1986, and appellant's petition for review by the Supreme Court was denied August 28, 1986.

37.  Although appellant Benson did not raise the issue in his appeal, the court failed to state its reasons for consecutive sentences as to him—other than a reference to what it believed it had to do under Penal Code section 1170.1.

38.  In light of our ruling that the matter is to be remanded for resentencing, appellants' contention with reference to the nunc pro tunc order becomes moot.

39.  Penal Code section 1170.1, subdivision (e) as it read at the time in question provides: “When two or more enhancements under sections 12022, 12022.5 and 12022.7 may be imposed for any single offense, only the greatest enhancement shall apply; however, in cases of robbery, rape or burglary, or attempted robbery, rape or burglary the court may impose both (1) one enhancement for weapons as provided in either section 12022 or 12022.5 and (2) an enhancement for great bodily injury as provided in section 12022.7.”

40.  Appellant Benson contends that the matter should be remanded so that the trial court may consider whether this is an appropriate case in which to modify the judgment and impose sentence for second degree murder or manslaughter.

41.  People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697, was cited by Benson along with People v. Leigh (1985) 168 Cal.App.3d 217, 214 Cal.Rptr. 61, as support for his contention that the offense should have been reduced.

ROBERSON, Associate Justice *. FN* Assigned by the Chairperson of the Judicial Council.

THOMPSON, Acting P.J., and JOHNSON, J., concur.