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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth Morgan STANCHEL, Defendant and Appellant.

No. A038376.

Decided: August 24, 1989

Francia M. Welker, Oakland, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Sr. Asst. Atty. Gen., Clifford K. Thompson, Jr., and Jeremy Friedlander, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Kenneth Morgan Stanchel was found guilty of the first degree murder and robbery of the Reverend William Coleman, killed by a single gunshot wound.   The jury, however, was unable to reach a verdict on allegations of great bodily injury and personal use of a weapon.


Around noon on Saturday, June 9, 1984, one of his neighbors noticed that Coleman's front door was ajar.   He investigated and found Coleman dead, sitting against the wall in his living room.   Coleman, nearly nude but wearing a watch, a ring and a necklace, had been shot once in his left arm.   The bullet had passed through his arm—which must have been raised at a 35°> angle—and into his chest, severing his pulmonary artery and thereby causing his death.   The exact time of Coleman's death could not be determined, nor could it be determined how long he lived after he was shot, or if the wound rendered him immobile.   He may have lived for up to one hour and may have been able to move around for 15 or 20 minutes after receiving the fatal wound.   Aside from the bullet wound, Coleman had suffered a bruised and bloody lip, probably before death, and an abrasion over his right eye.

An examination of Coleman's apartment revealed that there was no sign of forced entry.   The bed in the bedroom was unmade and there was also a makeshift bed on the floor of the living room.   Although Coleman was known to be a fastidious housekeeper who never delayed in cleaning up his dishes in the kitchen, there were three bowls—one with spaghetti in it—and three glasses in the sink.

Some of Coleman's personal property, including a telephone answering machine which had been in the trunk of his car, and the car itself, were missing.

The police traced Stanchel following the recovery of Coleman's car—found the day after his death.   Stanchel's fingerprints were found on the exterior of the car's trunk and outside its left front window.   His print was also lifted from one of the tall glasses found in Coleman's sink.

Police found Stanchel at his apartment, where they also discovered some of Coleman's papers, including some credit card bills and a bag containing a telephone answering machine.

Stanchel, waiving his Miranda rights, was interviewed by the police.   At first he maintained that he did not know Coleman and had never driven his car.   Informed that his fingerprints had been discovered, Stanchel told the police the following:

Stanchel was gay.   He had been picked up by Coleman on the night, or early morning, of Coleman's death.   He went with Coleman back to Coleman's apartment, arriving around 3 or 4 a.m.   Coleman said that he intended to fix himself some spaghetti and asked if Stanchel would like some.   Stanchel said that he would.   Coleman gave him a bowl of spaghetti and a glass of beer.   The apartment's door buzzer sounded.   Coleman left for approximately five minutes.   He returned to report that it was a friend who wanted to visit but that Coleman told him he had company.   The buzzer sounded again.   Coleman, after a brief discussion over the apartment's intercom, told Stanchel that he had to give his friend some money and went into the next room and then downstairs.   When he returned he asked Stanchel to massage his neck.   The men went into the bedroom where they undressed and lay on the bed.   Stanchel started to fall asleep.   Coleman asked him if he wanted to stay the night and he said that he did and fell asleep.   They did not engage in sex.

Stanchel woke up sometime later, when it was light outside.   He went into the living room and saw Coleman there, with his back against the wall.   He seemed to be asleep although his eyes were partly open.   Stanchel did not think that Coleman was injured or dead.   Stanchel did not see anyone else there, but he noticed that a makeshift bed had been set up in the living room.   Stanchel got dressed and looked around for Coleman's wallet and car keys.   He did not find the wallet, but he did find the keys, a few dollars, and some credit card bill slips.   Because he was afraid that Coleman might be awakened by the sound of the telephone, and wanted to buy some time, Stanchel took the receiver off the hook and stuck it under the mattress.   He then left with the keys, money, bills and a jewelry box.   He took Coleman's car.

Stanchel explained that he had lied in his first statement because he knew he had stolen the car.   Upon learning that Coleman had been killed, he decided he would be better off telling the truth.

Stanchel's defense at trial was that he had nothing to do with Coleman's death.   His trial testimony varied very little from his second police statement, although he stated that he was not sure if he in fact heard Coleman hum or moan when he saw him sitting against the wall.   In support of this defense, Stanchel offered evidence 1 that Coleman was in the habit of having troubled visitors, and further offered evidence that other persons may have visited Coleman on the night or morning in question.

One neighbor stated that she had heard voices outside the apartment building at approximately 4:30–5 in the morning.   One voice she took to be Coleman's.   She thought there were two other persons to whom he was speaking, a man and a woman.   A second neighbor stated that she heard two males, one of whom she believed to be Coleman, speaking in the lobby at around 12:30–1 a.m.   A third neighbor, who shared a common wall with Coleman, stated that he was awakened after midnight, probably by a loud noise from Coleman's apartment, and that he then heard something like conversation or moaning;  it sounded as if two people were being intimate.

Stanchel's defense was simply that he knew nothing of the circumstances of Coleman's death.   He asserted no defense theory based on knowledge of a third person's presence in the apartment and consistently denied that he had any knowledge or belief that Coleman may have been injured or dead when Stanchel took Coleman's property.   Stanchel insisted that he formed the intention to take Coleman's property upon his belief that Coleman was asleep.


Was the Trial Court Required to Instruct, Sua Sponte, that the Intent to Aid and Abet a Robbery must be Formed before the Fatal Assault in Order to Support a Felony Murder Conviction?

 The court, consistent with CALJIC No. 3.01, instructed the jury, generally, on aiding and abetting.4  The instruction has been criticized, in the context of a burglary, because it does not inform “the jury that it cannot convict defendant as an aider and abettor upon the basis of knowledge gained after [the perpetrator's] entry into [the victim's] apartment.”  (People v. Brady (1987) 190 Cal.App.3d 124, 137, 235 Cal.Rptr. 248;  emphasis in original.)   Stanchel raises a similar argument in the context of robbery and felony murder, pointing out that CALJIC No. 3.01 did not inform the jury that he could not be guilty as an aider and abettor upon the basis of knowledge gained after the infliction of force or fear.   He argues that the jury should have been instructed that he could not be convicted if he lacked the knowledge of the robbery prior to or during the commission of the acts which caused Coleman's death—i.e., if his intent to steal was formed only after Coleman had been disabled by a confederate and without his acquiescence.

Unlike a burglary, a robbery is not completed until the robbers reach a place of temporary safety.   In People v. Jardine (1981) 116 Cal.App.3d 907, 172 Cal.Rptr. 408, it was held that a person whose participation in a robbery was limited to aiding in the escape, aids and abets the robbery and may be held liable as a principal.  (Id. at pp. 919–922, 172 Cal.Rptr. 408.)   The Supreme Court, however, has left the question open:  “[W]e have no occasion here to determine whether an individual who has no prior knowledge of a robbery but who, after the property has been taken, knowingly helps a robber—who has not reached a place of safety—make his escape, may properly be classified as an aider and abettor rather than an accessory after the fact.  (See [Pen.Code] § 32;  People v. Hoover (1974) 12 Cal.3d 875, 879 [117 Cal.Rptr. 672, 528 P.2d 760];  cf. People v. Jardine (1981) 116 Cal.App.3d 907, 916–922 [172 Cal.Rptr. 408].)”  (People v. Croy (1985) 41 Cal.3d 1, 15, fn. 9, 221 Cal.Rptr. 592, 710 P.2d 392.)

There is, of course, no evidence that Stanchel assisted in Coleman's robbery by aiding a confederate to escape, but the same principles are at issue here as were at issue in Jardine and discussed in Croy.   If robbery is considered a continuing crime, Stanchel's participation in the theft aspect of the crime arguably rendered him liable as a principal whether or not he can be charged with prior knowledge of, and thus responsibility for, the force aspect of the crime.   Under such an analysis, the trial court's instructions were correct as they informed the jury that Stanchel would be guilty of robbery if he participated in any aspect of the robbery.

The Attorney General urges this court to adopt such an analysis.   Conceding that the perpetrator of the crime cannot be convicted of robbery, and thus of felony murder where the intent to steal arises only after the death of the victim (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351, 216 Cal.Rptr. 455, 702 P.2d 613;  People v. Green (1980) 27 Cal.3d 1, 54, 164 Cal.Rptr. 1, 609 P.2d 468), the Attorney General in a lengthy and interesting argument contends that the same does not logically hold true for an aider and abettor.   It is pointed out that the aider and abettor who aids in a theft following the commission by the principal of a violent act against the victim, has formed the intent to aid a theft perpetrated by violence and thus has exactly the intent required in robbery.   The argument continues that such an aider and abettor should therefore be liable for robbery and, if the victim dies, for felony murder notwithstanding that the principal cannot be held so liable.   The Attorney General further points out that although criminal liability ordinarily rests on principles of deterrence, and of holding a criminal responsible for the harm caused, those principles are not applied in the arena of felony murder.

 The Attorney General's arguments are ingenious and have not specifically been rejected by the case law;  however, we decline to adopt them.   The aider and abettor who aids in taking property only after the victim has been assaulted, while hardly a model citizen, is not guilty of as heinous an act as the aider and abettor who assists from the beginning and either intends or disregards that the victim may be injured or killed.   Further, the Attorney General's reliance on the rationale behind the felony-murder rule as being an exception from the policy of deterrence does not stand up where the victim survives (although such a holding would be in line with People v. Jardine, supra ).   Most significant, however, is the established recognition, alluded to above, that an assault followed by a theft is a lesser crime than the crime of robbery, and a crime which will not support a charge of felony murder.   The principle is unquestionably applied where the person who committed the assault is the same person who committed the theft.  (People v. Ramkeesoon, supra, 39 Cal.3d at p. 351, 216 Cal.Rptr. 455, 702 P.2d 613.)   We see no compelling difference between such a person and an after-the-fact aider and abettor.   Each is aware that the application of force disabled the victim and each—without having had the intent to steal prior to the application of force—then takes advantage of the situation in order to steal.   We find no reason to hold the perpetrator of the violence to be liable for no more than an assault followed by a theft, but to find the after-the-fact aider and abettor—who was not involved in the assault aspect of the crime—guilty of robbery and possibly of felony murder.

We conclude that insofar as CALJIC No. 3.01 does not inform the jury that it cannot convict the defendant as an aider and abettor upon the basis of knowledge gained after the assault on the victim, it is inadequate.

 Having concluded that Stanchel's conviction is tainted by instructional error, we must consider whether that error was prejudicial.

The theory that a third person may have been the perpetrator was placed before the jury under the instructions given, and thus may have been adopted by them.5  Under the circumstances, that the omitted instruction was inconsistent with Stanchel's defense does not excuse the court from instructing sua sponte on the requisite intent of an aider and abettor.   Once the theory was placed before the jury, and where there was evidence from which it might be inferred that Stanchel was involved as an aider and abettor, he was entitled to have them properly instructed on all of that theory's elements.  (People v. Hood (1969) 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370.)   Here, the requisite intent was not the subject of any other jury instruction and was not conceded.   Stanchel consistently argued that his only intent was to steal from Coleman and that he had no desire whatsoever to cause him harm.   Stanchel's intent, therefore, clearly was put into issue.

The failure to instruct on the intent necessary to sustain a felony-murder conviction based on aiding and abetting a robbery removed that issue from the jury's consideration and constitutes federal constitutional error.  (People v. Lee (1987) 43 Cal.3d 666, 672–674, 238 Cal.Rptr. 406, 738 P.2d 752.)   We must therefore measure the effect of this failure to instruct by the “harmless beyond a reasonable doubt” standard of Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.

The jury could have concluded that Stanchel shot Mr. Coleman in order to steal his property.   Alternatively, they could have concluded that someone else was present in the apartment and after they shot Mr. Coleman, appellant removed his property.   It is settled that instructional error is reversible where it cannot be determined whether the jury convicted upon a correct or an incorrect theory.  (People v. Green, supra, 27 Cal.3d at pp. 69–70, 164 Cal.Rptr. 1, 609 P.2d 468;  People v. Robinson (1964) 61 Cal.2d 373, 406, 38 Cal.Rptr. 890, 392 P.2d 970.)   Here, the jury did not find the truth of the allegations that Stanchel had inflicted great bodily injury and had personally used a weapon in the commission of the crime.   We cannot say with certainty that the jury did not find that Stanchel was involved only in the theft portion of the crime and thus incorrectly convicted him of robbery and of felony murder.


The judgment is reversed.


1.   There was evidence that a number of persons, including troubled teenagers, visited Coleman occasionally in the evenings.   Coleman, as the manager of the apartment building, would hire some of these persons to work on or around the building.   Coleman apparently believed that one such person had stolen money from one of the tenants, which he recovered.   It was also determined that Coleman on occasion picked up men for sex, sometimes bringing them back to his apartment for a meal or a drink.   The defendant, Stanchel, was such a man.

4.   “One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing but is also liable for the natural and probable or reasonable consequences of any such act that he knowingly and intentionally aided or abetted.“A person aids and abets in the commission of a crime when he, with knowledge of the unlawful purpose of another, 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 a crime.“A person who aids and abets the commission of the crime need not be personally present at the scene of the crime.“Mere presence at the scene of the crime which does not in itself assist the commission of the crime does not amount to aiding and abetting.“Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.”

5.   Support for this possibility may be gleaned from the question of a juror to the court:  “Let's say, didn't inflict anything.   He was robbing the person and he sees the person hurt and injured and dying and let's [sic] him die so he can go on about with robbing the place.”   The court explained that the hypothesized situation would not support conviction of felony murder.   Nonetheless, the question indicates that at least some point during deliberation the jury was considering if a third party killed Coleman.

STEIN, Associate Justice.

RANCANELLI, P.J., and HOLMDAHL, J., concur.

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