PEOPLE v. PULIDO

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

The PEOPLE, Plaintiff and Respondent, v. Michael Robert PULIDO, Defendant and Appellant.

No. A065850.

Decided: April 25, 1996

C. Elliot Kessler, Palo Alto, for Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Jeremy Friedlander, San Francisco, for Respondent.

Michael Robert Pulido was convicted of first degree murder, with a finding that the special circumstance allegation pursuant to Penal Code section 190.2, subdivision (a)(17)(i) was true.   He was also convicted of robbery, auto theft, and receiving stolen property.   The jury was unable to reach a verdict on the personal gun use and personal infliction of great bodily injury enhancement allegations, and they were dismissed on the prosecution's motion.   The court sentenced appellant to life without possibility of parole, and stayed imposition of sentence on the remaining counts pending completion of the life sentence.

FACTS

In the early morning of May 24, 1992, Ramon Flores, a cashier in a gas station convenience store, was shot in the face with a .45 caliber bullet.   The bullet lodged at the back of the neck and killed Flores within seconds.   Appellant's fingerprints were found on the cash register that had been removed from the store at the time of the killing.   His fingerprints were also found on a Coke can left on the counter of the convenience store.

That day appellant told his stepgrandfather that he had $50 or $60 in his wallet.   Later in the day, appellant joined his uncle Michael Aragon, and his girlfriend, Laura Moore, for a picnic.   On the way home, appellant, who was driving a Honda Accord, crashed the vehicle on highway 280, and abandoned it.   Michael Aragon stopped and picked appellant up.   Appellant displayed a handgun, stating he had grabbed it just in time.   In the abandoned Honda Accord, the police found four bullets with the same ejector marks as the cartridge found in the gas station.   At Moore's insistence, Aragon helped appellant dismantle the gun and dispose of it.

Aragon repeatedly asked appellant whether he had committed the robbery and murder.   Appellant had previously commented to Aragon that the gas station would be easy to rob.   Appellant finally said he did it, but Aragon did not believe his story.   Later when appellant was in juvenile hall he wrote Moore a letter stating, “If [unc] is reading this, tell him I didn't kill that guy, I was just messing with him.”

On June 6, appellant was arrested for auto theft after the police ran a registration check on another Honda Accord appellant parked at a mall, which showed that it was stolen.   Appellant, hoping to avoid jail, volunteered to tell the police what he knew about a robbery.   In a series of interviews, he gave at least three different versions of the crimes at the gas station, changing the details each time he was confronted with conflicting pieces of incriminating evidence.   First, he told the police the robbery and murder were committed by Carlos Vasquez, who he could not identify.   Next, he implicated Eduardo Alarcon, his mother's husband, and specifically denied the police suggestion that Aragon was involved.   After being arrested for murder, appellant claimed he was at the gas station when a Tongan male shot the cashier and stole some money.   Appellant left, but later returned to the scene, out of concern for the cashier, and accidentally touched the cash register.   Fearing he would be blamed for the crime, he took the register and disposed of it where the police later found it.

At trial he acknowledged all these versions were lies.   He admitted that the gun was his, and claimed to have found it in an old Honda he burglarized to  get some money.   Aragon knew where appellant kept the gun, and could get it himself.   On May 24, while appellant was driving with Aragon, Aragon stopped at the gas station, and went into the store.   Appellant waited outside thinking his uncle was getting matches or cigarettes.   He heard a gun go off, and ran into the store to see what happened.   He feared Aragon had been shot.   Appellant saw that Flores had been shot in the face.   He yelled at his uncle, while running out of the store.   Aragon carried out the register and threw it in appellant's lap.   While driving away, Aragon held the gun at appellant, and ordered him to open the register and give Aragon the money.   At Aragon's command appellant disposed of the register in some bushes in a wealthy neighborhood.

He asserted he was unaware of his uncle's purpose, until he saw Flores shot, and his uncle threw him the cash register.

I.

Sua Sponte Duty to Instruct That Defendant Must Form Intent to Aid and Abet Underlying Felony before Killing To be Guilty of Felony Murder

 The sole basis for the murder conviction was felony murder based upon appellant's role as a principal in the underlying robbery.   The prosecution's theory was that appellant either acted alone, and was the killer and perpetrator of the robbery, or aided and abetted Aragon, knowing full well what Aragon intended to do as appellant waited outside the gas station convenience store.   Appellant's defense was that Aragon was the perpetrator of the robbery and the killer, and that appellant was merely an innocent bystander, subsequently coerced by his uncle into assisting in opening the register and disposing of it.   He argued to the jury that he could only be convicted as an accessory after the fact with respect to the robbery.

In reliance upon the recent decision in People v. Esquivel (1994) 28 Cal.App.4th 1386, 34 Cal.Rptr.2d 324, appellant contends that the court had a sua sponte duty to instruct the jury that he could not be guilty of felony murder as an aider and abettor of the underlying felony unless he had knowledge of the perpetrator's unlawful purpose, and formed the intent to commit, encourage or facilitate the commission of the robbery prior to the killing.   He argues that it was prejudicial error not to give such an instruction because the jury might have believed that he had no knowledge of his uncle's purpose, or intent to aid him, until after the fatal shot was fired, but concluded that he became an aider and abettor when he opened the cash register, removed the money, and disposed of the register.   Appellant concludes, if the Esquivel instruction had been given he could only have been  found guilty of robbery, but not felony murder.   While conceding this error, the attorney general argues it is harmless.   We decline to accept the concession of error, because we must respectfully disagree with the holding in People v. Esquivel, supra, 28 Cal.App.4th 1386, 34 Cal.Rptr.2d 324, that in order to convict an aider and abettor of felony murder the jury must not only find that the defendant, with knowledge of the perpetrator's unlawful purpose formed the intent to facilitate or encourage the acts of the perpetrator during the commission of the underlying felony, but must also find that the defendant formed that intent prior to the killing.   The instruction required by the Esquivel court, is inconsistent with the definition of felony murder, misapplies the holding in People v. Cooper (1991) 53 Cal.3d 1158, 282 Cal.Rptr. 450, 811 P.2d 742, and interjects principles applicable only to conspiracy into the application of the felony-murder rule to an aider and abettor of the underlying felony.

 The determination as to when the defendant forms the intent to encourage or facilitate the acts of the perpetrator is significant because to be liable as a principal, “the defendant's intent to encourage or facilitate the actions of the perpetrator ‘must be formed prior to or during “commission” of that offense.’ ”  (People v. Montoya (1994) 7 Cal.4th 1027, 1039, 31 Cal.Rptr.2d 128, 874 P.2d 903.)  “It is legally and logically impossible to both form the requisite intent and in fact aid, promote encourage, or facilitate commission of a crime after the commission of that crime has ended.”  (People v. Cooper, supra, 53 Cal.3d 1158, 1164, 282 Cal.Rptr. 450, 811 P.2d 742.)   A defendant who forms the intent to assist the perpetrator after the “commission” of the offense, may instead incur the lesser liability of an accessory who, “after a felony has been committed, ․ aids a principal in such felony.”  (People v. Montoya, supra, 7 Cal.4th 1027, 1039, 31 Cal.Rptr.2d 128, 874 P.2d 903;  Pen.Code, § 32.)

 In People v. Cooper, supra, 53 Cal.3d 1158, 282 Cal.Rptr. 450, 811 P.2d 742, the court explained that the duration of a robbery for the purpose of determining liability of a defendant as an aider and abettor does not terminate at the moment the perpetrator has committed all the elements of the offense.   The court reasoned that, even after property was taken by force or fear, the element of asportation continues.  (Id. at p. 1170, 282 Cal.Rptr. 450, 811 P.2d 742.)   Thus, a defendant who has no knowledge of the perpetrator's intent to commit a robbery until after the perpetrator deprives someone of property by use of force or fear, but then with knowledge and intent to facilitate, assists the perpetrator in carrying the property away to a place of temporary safety, may be found guilty as a principal in the felony of robbery.1  (Ibid.) Cooper established that, “[t]he fixed moment when the elements of a crime have been satisfied and the direct perpetrator may be  found guilty of the substantive offense, rather than just an attempt, is not necessarily synonymous with the commission of that crime for purposes of determining aider and abettor liability.   Instead, the duration of an offense for purposes of aider and abettor liability continues until all acts constituting the offense have ceased.”  (People v. Escobar (1992) 7 Cal.App.4th 1430, 1436, 9 Cal.Rptr.2d 770, original italics;  see also People. v. Montoya, supra, 7 Cal.4th 1027, 1045, 31 Cal.Rptr.2d 128, 874 P.2d 903 [although a burglary is “initially committed” by the perpetrator upon entry with intent to commit a felony, a defendant may be found guilty of aiding and abetting the burglary if he or she forms the intent to aid and abet, while the perpetrator burglar remains inside the structure].) 2

The court in People v. Esquivel, supra, 28 Cal.App.4th 1386, 34 Cal.Rptr.2d 324, attempted to apply the principles of Cooper defining the duration of robbery, to a case in which the defendant was accused of felony murder, with robbery as the underlying felony.   The court recognized that under People v. Cooper, supra, 53 Cal.3d 1158, 282 Cal.Rptr. 450, 811 P.2d 742, the defendant could be guilty as a principal in the robbery, even if he formed the intent to aid and abet after the shooting of the victim, because the defendants were still engaged in taking and asporting property.   Nevertheless, the Esquivel court reasoned that “the acts constituting murder” ceased when the victim was killed, even if the robbery was still ongoing.  (28 Cal.App.4th at p. 1395, 34 Cal.Rptr.2d 324.)   The court concluded that, as a matter of law, the defendant could not be guilty of felony murder unless he formed the intent to aid and abet the underlying felony prior to the killing.   It further held that the court had a sua sponte duty to so instruct the jury.  (Ibid.)

 The analytical flaw in Esquivel originates with identification of the killing, as a separate offense the defendant must be found to have aided and abetted, before he can be found guilty of felony murder.   The instruction suggested in Esquivel might apply if the defendant were charged with aiding and abetting a murder, where the felony-murder rule does not apply.   However, felony murder is a unique offense because liability is predicated upon responsibility as a principal in the commission or attempted commission of the underlying felony.  (Pen.Code, § 189;  CALJIC No. 8.21.)   It applies to “ ‘a variety of unintended homicides resulting from reckless behavior, or ordinary negligence, or pure accident;  it embraces both calculated conduct and acts committed in panic or rage ․;  and it condemns alike consequences that are highly probable, conceivably possible, or wholly unforeseeable.’ ”  (People v. Anderson (1991) 233 Cal.App.3d 1646, 1658, 285  Cal.Rptr. 523, quoting People v. Dillon (1983) 34 Cal.3d 441, 477, 194 Cal.Rptr. 390, 668 P.2d 697.)   Unlike other types of murder, felony murder does not require malice or intent to kill, “ ‘the killing is deemed to be first degree murder as a matter of law.’ ”  (People v. Anderson, supra, 233 Cal.App.3d 1646, 1659, 285 Cal.Rptr. 523.)   The only intent required is the intent to commit or to aid and abet the commission of the underlying felony.3  (Id. at p. 1659, 285 Cal.Rptr. 523;  People v. Dillon, supra, 34 Cal.3d 441, 475, 194 Cal.Rptr. 390, 668 P.2d 697.)   The “defendant's state of mind with respect to the homicide ․ in the case of first degree felony murder ․ is entirely irrelevant․”  (People v. Dillon, supra, 34 Cal.3d at p. 477, 194 Cal.Rptr. 390, 668 P.2d 697.)   Thus, the liability of the aider and abettor for felony murder is premised upon acting to encourage or promote the commission of the underlying felony, not the killing, with knowledge of the perpetrator's purpose.4  If he aided and abetted the commission of the underlying felony, he is guilty of felony murder if the killing occurs during the commission of the felony or the immediate escape.  (People v. Cooper, 53 Cal.3d at p. 1166, 282 Cal.Rptr. 450, 811 P.2d 742.)   Therefore, although at the moment of the killing during the commission of a robbery, the perpetrator may have satisfied all the elements of felony murder, the duration of the offense for the purpose of determining the liability of the aider and abettor, cannot logically terminate before all acts constituting the underlying felony have ceased.5  Once the jury determines that the defendant aided and abetted the underlying felony, the only remaining issue is whether the killing occurred during the commission of that  felony or the immediate escape.  (Ibid.)  It is unnecessary for the jury to determine whether the intent to aid and abet the underlying felony preceded the killing.

 The Esquivel court relied on principles applicable to conspiracy in support of its proposition that an aider and abettor should not be liable for an act of the principal that precedes the point at which the aider and abettor becomes an accomplice.  (People v. Esquivel, supra, 28 Cal.App.4th at pp. 1395–1396, 34 Cal.Rptr.2d 324.)   The court reasoned, by analogy to the principle that a conspirator is not liable for crimes committed by co-conspirators before he joined the conspiracy, that if the perpetrator commits a killing during the commission of a felony, and the aider and abettor does not form the intent to aid and abet the commission of the felony until after the killing occurs, then the aider and abettor should not be liable for the killing committed by the perpetrator.  “[A]lthough the two doctrines [i.e., conspiracy and aiding and abetting] have many similarities, there are significant differences between the two theories․”  (People v. Anderson, supra, 233 Cal.App.3d 1646, 1655, 285 Cal.Rptr. 523 [rejecting contention that defendant charged with felony murder on the theory that he aided and abetted a robbery is entitled to an instruction on the conspiracy principle that he could not be guilty of felony murder if killing was not in furtherance of common design to commit robbery, or is not an ordinary and probable result of the pursuit of that design.].) 6  The decisions in People v. Montoya, supra, 7 Cal.4th 1027, 31 Cal.Rptr.2d 128, 874 P.2d 903, and People v. Cooper, supra, 53 Cal.3d 1158, 282 Cal.Rptr. 450, 811 P.2d 742, establish that if an aider and abettor forms the intent to aid and abet at any point during the commission of the offense then he or she is liable as a principal for the acts of the perpetrator even if certain elements of the offense were committed before the intent to aid and abet was formed.   For example, the court explained that a defendant who forms the intent to aid and abet a rape after the perpetrator has initially committed the offense is nevertheless liable for the acts of the perpetrator preceding the participation of the aider and abettor:  “[T]he unknowing defendant who happens on the scene of a rape after the rape has been initially committed and aids [and abets] the perpetrator in the continuing criminal acts is an accomplice under this concept of ‘commission,’ because he formed his intent to facilitate the commission of the rape during its commission.”  (People v. Cooper, supra, 53 Cal.3d at pp. 1164–1165, fn. 7, 282 Cal.Rptr. 450, 811 P.2d 742.)   Consequently, if a defendant forms the  intent to aid and abet a robbery, at any point during its “commission,” he is liable as a principal for the acts of the perpetrator in the commission of the robbery, including felony murder.

 The Esquivel court also perceived that an “anomaly,” would follow if it did not impose a sua sponte duty to instruct the jury that the defendant must form the intent to aid and abet the robbery prior to the killing.   The court reasoned that it would be anomalous to hold an aider and abettor liable for felony murder if the killing took place before he or she formed the intent to aid and abet the underlying felony, because the actual killer “cannot be found guilty under the felony-murder doctrine if he does not form the intent to steal until after the victim is dead.”  (People v. Esquivel, supra, 28 Cal.App.4th 1386, 1396, 34 Cal.Rptr.2d 324.)   The perceived “anomaly” does not exist:  If the perpetrator does not form the intent to steal until after the victim has already been killed then “the felony-murder [rule] does not apply,” because the killing did not occur during the commission of another felony.   (Id. at p. 1396, 34 Cal.Rptr.2d 324, [citing cases].)   Neither the killer, nor an aider and abettor of the underlying felony would be guilty of felony murder if the intent to steal is formed after the killing, because the killing did not occur during the commission of a robbery.   Similarly, both the killer and the aider and abettor, are liable under the felony murder rule if the killer forms the intent to steal prior to the killing, because the killing did occur during the commission of a felony, and both the killer and the aider and abettor are principals in the commission of that felony.7  We conclude that the court had no duty to instruct the jury that the defendant could not be guilty of felony murder unless he formed the intent to aid and abet the robbery prior to the killing.

 Even if such and instruction were required, the failure to give it in this case was harmless under the Chapman standard (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705)  applied in People v. Esquivel, supra, 28 Cal.App.4th 1386, 1399, 34 Cal.Rptr.2d 324.   In Esquivel, the prosecution specifically argued to the jury that the defendant was guilty of felony murder even if he did not plan to rob until after the victim was killed, and only participated in carrying away property, so long as the killer planned to rob the victim before he killed her.  (People v. Esquivel, supra, 28 Cal.App.4th 1386, 1399, 34 Cal.Rptr.2d 324.) 8  Appellant asserts that, similarly, the jury in this case might have believed his testimony that he was unaware that Aragon had his gun, or intended to rob the store, yet found that after the killing he formed the intent to aid and abet the robbery when he assisted Aragon in opening and disposing of the register.   Yet, neither the prosecution nor the defense suggested that the jury should base its verdict on such a theory.   Instead, the prosecution argued appellant was either the perpetrator of the robbery, and the killer, or that he drove his uncle to the store fully aware of the plan to commit robbery, either waited outside as a lookout, or entered the store with his uncle, and helped carry away the loot and dispose of the register.   Appellant, on the other hand, claimed he was nothing more than an accessory after the fact based on his admission that he helped dispose of the cash register only after reaching a point of temporary safety.   The guilty verdicts reflect that the jury rejected appellant's claim of ignorance as to his uncle's purpose, and unwilling participation under duress, after the shooting.   The evidence that, even if appellant was not the perpetrator, he was fully aware of the plan to rob, and was either a lookout, or actually entered the store with Aragon was overwhelming:  Aragon used appellant's gun, and appellant offered a complex and inconsistent explanation for how his uncle might have obtained the gun without appellant's knowledge, and why after the murder appellant was carrying the gun in the car he was driving.   Appellant had commented several times that the station would be easy to rob.   He admitted that he and his uncle committed some burglaries together.   When he saw the victim was shot he did nothing to help him, and instead ran out of the store and got in the car with his uncle, and helped carry away and dispose of the register.   The numerous inconsistent stories he told the police all reflect consciousness of guilt, and share the common theme of attempting to exculpate himself by implicating another.   His testimony failed to explain physical evidence such as the presence of his fingerprints on the Coke can found in the store, and on the register, and the absence of Aragon's prints, and his statement to Aragon that he had committed the robbery and the shooting.   Appellant's testimony that he kept none of the money he removed from the register, was inconsistent with other evidence, including appellant's statement to his grandfather that he had a lot of money.9

 II.-IV.**

V.

Denial of Motion for a New Trial

 After the verdict, but before sentencing, appellant moved for a new trial based upon a statement Salvador Pulido, appellant's brother, made to the defense investigator.   The investigator had interviewed Salvador prior to the trial, and he mentioned nothing about Aragon's involvement in the robbery.   After the verdict the investigator again interviewed Salvador Pulido at Pelican Bay where he was incarcerated.   Salvador stated that shortly after appellant's arrest, Aragon arrived, intoxicated at Corinne Pulido's home.   Aragon was crying, and told Corinne “you should have seen it.”   Aragon described the blood on the walls, and said the bullet went through the victim's eye, and it came out the back of the victim's head.

The trial court did not abuse its discretion in denying the motion (People v. Dyer (1988) 45 Cal.3d 26, 52, 246 Cal.Rptr. 209, 753 P.2d 1), on the ground that admission of the statement would not render a different result probable on retrial.  (People v. Delgado (1993) 5 Cal.4th 312, 328, 19 Cal.Rptr.2d 529, 851 P.2d 811.)   The court found the jury would not credit Salvador's testimony because it lacked sufficient detail, not otherwise available from newspaper accounts to suggest that Aragon must have been present at the scene.   There were several other reasons why the jury was not likely to credit Salvador Pulido's statement:  He did not come forward until after his brother was convicted.   He was incarcerated in Pelican Bay and therefore was inferably a convicted felon with little to lose by offering perjured testimony.   Also Aragon's statement was allegedly made in the presence of, and directly to, Corinne Pulido, yet the defense did not offer her testimony.

VI.

Failure to Investigate Jury Misconduct

 At the close of jury deliberations on July 1, a substitute judge cautioned the jury not to “make any independent investigation or look up any words in  the dictionary, any legal mention of words in the dictionary.”   The next morning the court stated that, over night, a dictionary had been found in the jury room.   The court refused defense counsel's request to inquire whether the jury had used the dictionary while the jury was still deliberating.   Instead, the court twice admonished the jury that its verdict must be based on the instructions, and not on any definition of a word in the dictionary.   The court added that once a verdict was reached, defense counsel was “free to pursue whatever course you wish to.”

Appellant contends that the court should have conducted an inquiry to determine whether any juror had in fact consulted the dictionary.  (People v. Adcox (1988) 47 Cal.3d 207, 252–253, 253 Cal.Rptr. 55, 763 P.2d 906.)   The mere presence of the dictionary in the jury room, however, does not establish jury misconduct because the jury had been admonished only the night before not to use a dictionary, and the dictionary was discovered overnight, before deliberations resumed the next day.   The record is devoid of affirmative evidence that any juror actually consulted the dictionary, or that it was a juror who brought the dictionary into the room.   Thus, the record fails to provide any basis upon which we could evaluate prejudice, if any misconduct in fact occurred.  (Id. at p. 254, 253 Cal.Rptr. 55, 763 P.2d 906.)   Nor does it contain any information about the specific definitions a juror may have referred to.   Without such information, the presumption of prejudice does not arise, and it is impossible to determine whether the definitions may have conflicted with any of the instructions given, or otherwise contributed to a misunderstanding of the applicable legal principles.   Appellant suggests that the inadequacy of the record is attributable to the court's failure to conduct an inquiry.   The court, however, implicitly invited defense counsel to renew his request to conduct an inquiry of the jury once a verdict was reached, by advising counsel that after the verdicts, he could pursue his claim of jury misconduct.   Appellant also could have made a record of jury misconduct when he filed his motion for a new trial.

VII.

Admission of Photographs

Appellant argues that it was an abuse of discretion to admit photographs of the crime scene, the victim when he was alive, and of the autopsy.   The court did agree that two of the autopsy photographs were “particularly grisly” and excluded them.

 “The admission of photographs of a victim lies within the broad discretion of the trial court when a claim is made that they are unduly gruesome or  inflammatory.  [Citations.]  The court's exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect.”  (People v. Crittenden (1994) 9 Cal.4th 83, 133–134, 36 Cal.Rptr.2d 474, 885 P.2d 887.)   The autopsy photographs were relevant both to clarify the pathologist's testimony and to the intent referred to in the special circumstance allegations.  (See People v. Thomas (1992) 2 Cal.4th 489, 524, 7 Cal.Rptr.2d 199, 828 P.2d 101.)   The court reviewed them, excluded the two it found to be particularly grisly, and was within its discretion to allow the others.   Any error in admission of the photographs of the crime scene was harmless because the jury was also shown a videotape of the scene.   Although admission of the photograph of Flores while he was alive may have generated sympathy for the victim, see People v. DeSantis (1992) 2 Cal.4th 1198, 1230, 9 Cal.Rptr.2d 628, 831 P.2d 1210, any error in admitting the photograph was harmless because the circumstances of the shooting alone provoked outrage and sympathy for the victim because they established that the killing was cold-blooded and unprovoked.   Appellant does not identify anything particularly inflammatory about this photograph.  (People v. Raley (1992) 2 Cal.4th 870, 895, 8 Cal.Rptr.2d 678, 830 P.2d 712.)

VIII.

Prosecutorial Misconduct

Appellant was charged in count 3 with unlawful driving or taking of a vehicle, (Veh.Code, § 10851) (count 3) and receiving stolen property (Pen.Code, § 496.1) (count 4).   Both counts referred to a Honda Accord, owned by Kenneth Wardell.   This was the car appellant was driving when he was arrested for auto theft on June 6.   There was also evidence that the Honda Accord, belonging to Beth Wingerd that appellant crashed on Highway 280, the day after the robbery, was stolen.   The court granted appellant's pretrial motion precluding either party from referring to Wingerd's Honda as stolen, because appellant was not charged with theft or any other offense related to that car.

 Appellant contends that the prosecutor committed misconduct by repeatedly referring to Wingerd's Honda as a stolen car, or as a car appellant had stolen, in violation of the court's order.   The prosecutor, however did not refer to the vehicle as stolen until appellant admitted on direct examination that the Honda was a stolen car.   In any event, appellant's claim of misconduct is waived because he made no objection to any of numerous references to this vehicle as stolen.  (People v. Green (1980) 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468.)   Whether contained in a question or answer, any  prejudice caused by the reference could have been cured by a prompt admonition to the jury, and instruction to the prosecutor not to repeat the comment.  (People v. Gordon (1990) 50 Cal.3d 1223, 1256–1257, 270 Cal.Rptr. 451, 792 P.2d 251;  People v. Bell (1989) 49 Cal.3d 502, 535–540, 262 Cal.Rptr. 1, 778 P.2d 129.)

 Appellant also contends that the prosecutor's references to Wingerd's Honda as stolen caused the jury to be confused as to which vehicle counts three and four were based upon, and that it may have convicted him upon evidence of the uncharged theft of Wingerd's vehicle, instead of Wardell's vehicle.   The jury, however, never suggested that it was confused as to which car was involved in count 3.   The information clearly referred to Wardell's vehicle in both counts.   The jury asked only about which item of property count 4 referred to, apparently because it was confused with the concept that appellant could have committed two offenses with respect to the same vehicle.   The court correctly responded that count four referred to a Honda Accord.

IX.

Convictions for Vehicle Code Section 10851 and Receiving Stolen Property

 Appellant contends that he could not be convicted of both violating Vehicle Code section 10851 and receiving stolen property with respect to the same vehicle.   Appellant is correct that if the jury based the Vehicle Code section 10851 conviction on the conclusion that he committed theft, and not on evidence of subsequent unlawful driving, unrelated to the initial theft, he could not also be convicted of receiving stolen property.  (People v. Jaramillo (1976), 16 Cal.3d 752, 757, 129 Cal.Rptr. 306, 548 P.2d 706;  People v. Strong (1994) 30 Cal.App.4th 366, 35 Cal.Rptr.2d 494.)   This is so because Penal Code section 496, subdivision (a) provides that “[a] principal in the actual theft of the property may be convicted pursuant to this section [of receiving it].   However, no person may be convicted both pursuant to this section and of the theft of the same property.” 11  In People v. Jaramillo, supra, 16 Cal.3d 752, 129 Cal.Rptr. 306, 548 P.2d 706 the court further held that because it is not only the sentence, but the conviction for both crimes which is unlawful, a stay of punishment is not the appropriate remedy.  (Id. at p. 757, 129 Cal.Rptr. 306, 548 P.2d 706;  but see People v. Bernal (1994) 22 Cal.App.4th 1455, 1458, 27 Cal.Rptr.2d 839 [in dicta the  court held that if burglary premised on intent to steal, the better approach is to apply section 654].)

In People v. Strong, supra, 30 Cal.App.4th 366, 35 Cal.Rptr.2d 494, the court nevertheless upheld convictions for violating Vehicle Code section 10851, and receiving stolen property with respect to the same vehicle because it found that even though there was evidence that the defendant had committed the original theft of the vehicle, there was also evidence that he had committed a separate act of driving the vehicle in violation of section 10851 four days after the original theft.   The court reasoned that no jury could have found that the subsequent driving was still part of the original theft, and therefore the section 10851 conviction was clearly based on the unlawful driving, not the original theft.   The court concluded that the language of section 496, subdivision (a) therefore did not preclude the conviction for receiving stolen property.  (Id. at pp. 375–376, 35 Cal.Rptr.2d 494.)

In this case, there was evidence that Wardell's car had been stolen at least a day before appellant was arrested after being seen driving it.   However, the prosecution advanced only one theory for the section 10851 violation and that was that appellant “stole the car.”   Appellant's counsel actually conceded in closing argument that appellant is “a car thief ․ [and] possessor of stolen property.”   Appellant never argued that the evidence supported any other inference than intent to steal, and devoted the remainder of his argument to the robbery and felony murder.   Consequently, we cannot find that the section 10851 conviction was based on any other finding than that appellant committed the original taking of the Honda Accord, with intent to steal.   The terms of Penal Code section 496, subdivision (a) therefore preclude his conviction for receiving stolen property based upon the same vehicle, and that conviction must be reversed.

CONCLUSION

Appellant's conviction on count four for receiving stolen property is reversed.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   In People v. Cooper, supra, 53 Cal.3d 1158, 282 Cal.Rptr. 450, 811 P.2d 742, the court observed that the duration of an offense is defined even more broadly for the purpose of determining whether a killing has occurred during the commission of a felony, for the purpose of applying the felony-murder rule.   For that purpose, the felony is still in progress during the immediate escape.  (Id. at pp. 1166–1167, 282 Cal.Rptr. 450, 811 P.2d 742.)   In this case, however, because the robbers carried away property there was essentially no difference between the duration of the robbery for purposes of defining liability as an aider and abettor, and the application of the felony-murder rule.  (Id. at p. 1166, fn. 10, 282 Cal.Rptr. 450, 811 P.2d 742.)

2.   The court in People v. Montoya, supra, 7 Cal.4th 1027, 1045–1046, fn. 9, 31 Cal.Rptr.2d 128, 874 P.2d 903, stated that it expressed “no opinion on the issue of an aider and abettor's liability for murder upon a theory of felony murder in which the underlying felony is burglary.”

3.   CALJIC No. 8.27 defines the liability of an aider and abettor for felony murder as follows:  “If a human being is killed by any one of several persons engaged in the commission or attempted commission of the [underlying felony], all persons who ․ with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating of the commission of the offense, [i.e. the underlying felony] aid, promote, encourage ․ its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional or accidental.”  (CALJIC No. 8.27, italics added.)

4.   The Esquivel court suggested that no policy underlying the felony-murder rule is served by applying it to aiders and abettors who do not form the intent to aid and abet until after the killing has occurred.   (People v. Esquivel, supra, 28 Cal.App.4th 1386, 1396, 34 Cal.Rptr.2d 324.)   To the contrary, by aiding and abetting at any point during the commission of the felony the defendant is encouraging and facilitating the felonious acts of the perpetrator.   Without the assistance of the aider and abettor the perpetrator would be less secure in the belief that he may commit the felony successfully and without apprehension.

5.   As the Esquivel court acknowledged, “the primary rationale for punishing aiders and abettors as principals ․ is to deter them from aiding or encouraging the commission of offenses.”  (People v. Esquivel, supra, 28 Cal.App.4th at p. 1397, 34 Cal.Rptr.2d 324.)   It is consistent with this rationale to hold the aider and abettor responsible for the consequences of the commission of a felony he encourages or facilitates, including the application of the felony murder rule.   The fact that an aider and abettor may be guilty of felony murder based only upon marginal participation of the offense such as driving the getaway car in a burglary, has been recognized implicitly in cases that have held that, although guilty of felony murder, additional findings concerning the degree of participation, and the defendant's state of mind, must be made before imposing the death penalty.  (See Tison v. Arizona (1987) 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127;  Enmund v. Florida (1982) 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140.)

6.   The failure to distinguish between liability of conspirators and aiders and abettors contributes to the Esquivel court's misinterpretation of this court's decision in People v. Asher (1969) 273 Cal.App.2d 876, 78 Cal.Rptr. 885.   The Esquivel court suggested that in Asher this court implicitly approved an instruction that an aider and abettor could not be liable for felony murder unless he forms the intent prior to the killing.   We approved the instructions in Asher only as an adequate statement of the of the liability of a conspirator to commit robbery for a killing committed in furtherance of the plan to commit robbery.   There was no issue in that case concerning the instructions on aiding and abetting felony murder.  (Id. at p. 890, fn. 2, 78 Cal.Rptr. 885.)

7.   In People v. Montoya, supra, 7 Cal.4th 1027, 1045, 31 Cal.Rptr.2d 128, 874 P.2d 903, the court pointed out a similar flaw in the decision People v. Brady (1987) 190 Cal.App.3d 124, 235 Cal.Rptr. 248, upon which former CALJIC No. 14.54, requiring the jury to find the intent to aid and abet a burglary was formed prior to entry, was based.   The Brady court had reasoned that “because ․ no burglary has been committed by the perpetrator if his or her intent to commit a felony or theft arose after entry ․ ‘[t]he culpability of the assistant to the thief, whose intent to aid does not arise until after the entry of the thief, must be judged by the same rule.’ ”  (People v. Montoya, supra, 7 Cal.4th at 1044, 31 Cal.Rptr.2d 128, 874 P.2d 903.)   Hence, the Brady court concluded it was necessary to instruct that the aider and abettor could not be guilty of burglary if he did not form the intent to aid and abet until after the perpetrator had entered.   The supreme court explained in Montoya that the anomaly or lack of symmetry, concerning the Brady court did not exist because, “an aider and abettor is not liable for burglary, (just as the perpetrator is not liable) where the perpetrator formed the intent to commit a felony or theft only following the entry.   Contrary to the suggestion in People v. Brady, supra, 190 Cal.App.3d 124, 235 Cal.Rptr. 248, it is this result that ‘preserves the symmetry of culpability of the aider and abettor’ (id. at p. 134, 235 Cal.Rptr. 248) with that of the perpetrator.”  (Id. at p. 1045, 31 Cal.Rptr.2d 128, 874 P.2d 903.)

8.   As we have explained, the prosecutor's argument was a correct statement of the law.

9.   Since we do not rely upon the special circumstance finding in support of our conclusion that the jury did not base its verdict on a finding that appellant only joined the robbery after the victim was killed, we need not address appellant's contention, based upon the recent decision in People v. Mora (1995) 39 Cal.App.4th 607, 46 Cal.Rptr.2d 99, that we cannot infer from the special circumstance finding that the jury found appellant had the intent to aid the robbery prior to the killing.

FOOTNOTE.   See footnote *, ante.

11.   This version of section 496, subdivision (a) reflects a 1992 amendment, effective January 1, 1993 (Stats.1992, ch. 1146), that was in response to some interpretations of section 496, subdivision (a) that a defendant, who also committed the original theft, could not be convicted of receiving stolen property even in a case where there was some bar to prosecution for the theft itself, such as the expiration of the statute of limitations.  (People v. Strong, supra, 30 Cal.App.4th 366, 373, 35 Cal.Rptr.2d 494.)   Appellant does not challenge the application of this amendment to his case.

STEIN, Associate Justice.

STRANKMAN, P.J., and DOSSEE, J., concur.