PEOPLE v. COOPER

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Larry COOPER, Defendant and Appellant.

No. G007284.

Decided: December 15, 1989

Goldfein, Schwartzberg & Stark, and Richard Schwartzberg, Santa Ana, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Michael D. Wellington and Esteban Hernandez, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

Larry Cooper was convicted of robbery on an aiding and abetting theory.   He claims his statutory right to a speedy trial was violated and the jury was misinstructed on a crucial question with respect to the crime of robbery:  When is a robbery complete for purposes of affixing criminal liability for those who aid robbers after the victim has been forced to stand and deliver but before the bandits have reached a place of temporary safety?   Cooper has the better argument on both issues;  but finding no legal prejudice flowing from the speedy trial denial, we reverse only on the latter.

I

Cooper drove codefendants Shawn Meehan and Arnold Parra to the parking lot of a Garden Grove shopping center.   According to witnesses, the three alighted from the vehicle and conversed briefly nearby.   At one point Cooper walked over to a wall bordering a nearby school, peered over the top, and then returned to the car.   Several minutes later, Meehan and Parra bowled over Oral Agilbee, an 89–year–old shopper, and stole his wallet.   The pair fled to Cooper's car, which was moving and had the passenger doors open.   They jumped inside, and Cooper hurriedly drove away.

All three men were charged in a single information with robbery.   It was also alleged that Cooper's codefendants intentionally inflicted great bodily injury upon the elderly victim.   The information was filed on May 5, 1988, the same day the defendants were arraigned.   Trial was set for June 28.   But Meehan's court-appointed counsel was involved in another case;  and the matter trailed to July 5, the 60th and final day for trial per Penal Code section 1382.   The codefendant's attorney was still engaged on that date, and Judge Brown continued the trial for all defendants until July 12 over Cooper's objection.   Cooper offered to plead guilty, but the court apparently would not accept the plea because Parra refused to join.

Cooper did not move for a severance but did seek a dismissal of the information under Penal Code section 1382.   The matter was heard before Judge Fitzgerald.   The prosecutor submitted a declaration advising the court the victim was incapacitated from his injuries and unavailable as a witness, but essentially defended the continuance on the ground that Meehan's lawyer was unavailable.   The court concluded that was sufficient to constitute good cause for the delay and denied the motion.   Cooper petitioned for extraordinary relief, but we declined to intervene.

All three defendants were subsequently convicted of robbery, and Cooper's codefendants were found to have inflicted great bodily injury as well.   The trial court placed Cooper on formal probation for three years on the condition he serve one year in the county jail.

II

 Absent a finding of good cause, Penal Code section 1382, subdivision (b) mandates dismissal of an action if a defendant is not brought to trial within 60 days of the filing of the information.   The record before Judge Brown was inadequate to support such a finding.   The prosecutor's desire to try the defendants together and await the availability of Meehan's counsel did not provide good cause for a continuance:  “We reject the People's contention, which is supported by neither substantive argument nor authority, that the desires of the People and codefendant to avoid needless duplication or to obtain an expeditious disposition are relevant factors in determining whether defendant's right to a speedy trial was violated.  [Citation.]  The law is in fact to the contrary.   The preference for a joint trial of jointly charged defendants does not constitute good cause to delay one defendant's trial beyond the time period set forth in Penal Code section 1382, subdivision 2.”  (People v. Escarcega (1986) 186 Cal.App.3d 379, 386, fn. 4, 230 Cal.Rptr. 638.)

The Attorney General relies heavily on Hollis v. Superior Court (1985) 165 Cal.App.3d 642, 211 Cal.Rptr. 649, where the trial court granted a continuance over defendant's objection because a codefendant's court-appointed counsel did not have sufficient time to prepare for a complex murder trial.   In upholding a finding of good cause, the Court of Appeal observed the delay was not attributable to a commitment to another client, refusal to grant the continuance might force an inadequately represented codefendant to proceed to trial, and petitioner himself “had expressed doubt that a severance would work to his advantage.”  (Id., at p. 647, 211 Cal.Rptr. 649.)

But, assuming it was correctly decided, Hollis is distinguishable.   In this case, the delay was attributable to counsel's commitment to another client and did “implicate the state in a failure to afford adequate defense resources.”  (Id., at p. 646, 211 Cal.Rptr. 649.)   There was no suggestion here that codefendants would have been forced into trial without proper representation, and Cooper never disavowed a severance.

The Attorney General nonetheless asks this court to find the unavailability of codefendant's counsel an “exceptional circumstance [ ]” justifying the continuance.  (See People v. Johnson (1980) 26 Cal.3d 557, 572, 162 Cal.Rptr. 431, 606 P.2d 738.)   As we have explained, however, it was the desire for a joint trial that dictated the outcome below.   Although we realize the superior court's judicial resources have been stretched to the limit and beyond in recent years, People v. Escarcega, supra, 186 Cal.App.3d 379, 230 Cal.Rptr. 638 and Sanchez v. Superior Court (1982) 131 Cal.App.3d 884, 182 Cal.Rptr. 703 make it clear that neither judicial economy nor the prosecutor's convenience can outweigh a defendant's right to a speedy trial under Penal Code section 1382.   There was no reason to believe a joint trial was somehow necessary for the prosecution of the case.   The request for a continuance should have been denied.

 Nevertheless, on appeal a defendant whose trial was unreasonably delayed must establish prejudice.  (People v. Johnson, supra, 26 Cal.3d at p. 574, 162 Cal.Rptr. 431, 606 P.2d 738.)1  To prove that element Cooper argues the delay prevented him from entering into a bargained plea because the trial judge and prosecutor insisted on a package deal and one of his partners in crime would not agree.   He also notes the joint trial allowed the jury to hear the great bodily injury enhancements as they related to his codefendants and Meehan's extrajudicial confession, although it did not implicate him.

We are not persuaded.   Unlike the situation in which the delay results in a loss of evidence or the unavailability of an important witness, the events Cooper cites did not relate to the denial of his right to a speedy trial.   Rather, they were attributable to the joint trial itself.   Cooper fails to cite, and we have not discovered, any authority for the notion that prejudice unrelated to the delay need be considered.

Had the prosecution simply moved to dismiss the information as to all three defendants, refiled, and pursued another joint prosecution, as it was entitled to do (see People v. Johnson, supra, 26 Cal.3d at p. 574, 162 Cal.Rptr. 431, 606 P.2d 738), Cooper would have no cause to complain.   No second dismissal or statute of limitations problem was involved here, nor was Cooper's defense damaged in any way related to the mere passage of time.

The factors Cooper has recited are not related to a denial of the right to a speedy trial.   Even if one ignores that problem, the factors themselves are unpersuasive.   The claimed instances of harm would not, for example, have supplied viable appellate issues had the matter been tried when originally set:  Meehan's confession did not implicate Cooper, the great bodily injury enhancement was proved primarily by stipulation and was not alleged against Cooper anyway, and the denial of whatever right defendant may have had to engage in solo plea negotiations does not appear attributable to the delay.   But, even assuming a severance might have resulted in a plea bargain, it is unlikely Cooper was prejudiced in light of his probationary sentence.   The Penal Code section 1382 violation does not require reversal.

III

Cooper's remaining contention also has merit, and it does require reversal.   In People v. Croy (1985) 41 Cal.3d 1, 221 Cal.Rptr. 592, 710 P.2d 392, the Supreme Court left open the question of “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.”  (Id., at p. 15, fn. 9, 221 Cal.Rptr. 592, 710 P.2d 392.)   The court had previously noted, however, that “aiding in the escape of a principal does not result in liability as a principal, but only as an accessory under Penal Code sections 32 and 33.”  (People v. Hoover (1974) 12 Cal.3d 875, 879, 117 Cal.Rptr. 672, 528 P.2d 760.)

The trial court here instructed that “an aider and abettor must know the full extent of the perpetrator's criminal purpose and give aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime.”   This language is nearly identical to that in People v. Beeman (1984) 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318.   With slight modification, it is now embodied in CALJIC No. 3.01 (5th ed. 1988).   In the context of crimes such as robbery, where the various elements may be committed at different times, the instruction is ambiguous with respect to when the defined mental state must be formed to establish liability as an aider and abettor.

Over strenuous objection from defense counsel, the court resolved that ambiguity decisively in the prosecution's favor by giving former CALJIC No. 9.15 (4th ed. 1979).   It read as follows:  “The commission of the crime of robbery is not confined to a fixed place or a limited period of time.  [¶ ] A robbery is still in progress after the original taking of physical possession of the stolen property while the perpetrator is in hot flight, that is, while in possession of the stolen property he is fleeing in an attempt to escape.   Likewise it is still in progress so long as he is still being immediately pursued in an attempt to capture him or regain the stolen property.  [¶ ] A robbery is complete when the perpetrator has eluded his pursuers, if any;  has reached a place of temporary safety and is in unchallenged possession of the stolen property after having effected an escape with such property.” 2

Cooper's counsel repeatedly emphasized that his client's only defense to the robbery charge was based on a concession of guilt to the lesser offense of being an accessory after the fact (Pen.Code, § 32); 3 and the court did, somewhat inconsistently, instruct with respect to that crime as well.   The temporary safety language of CALJIC No. 9.15 virtually precluded consideration of the lesser crime because Cooper concededly aided the perpetrators before they reached a place of temporary safety.   The instruction was not merely read;  the prosecutor strenuously argued its application.

In combination with the instruction on aiding and abetting, the challenged instruction allowed the jurors to convict of robbery without ever considering whether Cooper was involved in a scheme to commit that offense before he drove the codefendants from the scene.   Even if the jurors might have resolved the question in his favor, they had been told to convict of robbery if they found he only opted to assist the codefendants after witnessing a completed robbery (in the sense that it had gone beyond an attempt).

 We believe it is improper to give CALJIC No. 9.15 (now No. 9.44), the temporary safety instruction, when determining whether a robbery is complete for purposes of aider and abettor liability;  i.e., as the use note implies, the instruction has no place in most ordinary robbery prosecutions.   If it did, robbery defendants caught after taking the victim's property but before reaching a place of temporary safety in unchallenged possession of the loot could seemingly be entitled to claim they were only guilty of attempted robbery.   That has never been the law.

The relevant case authority is inconsistent, however.   In People v. Jardine (1981) 116 Cal.App.3d 907, 172 Cal.Rptr. 408, the Court of Appeal upheld the trial court's refusal to give accessory after the fact instructions in a robbery prosecution of an accused getaway driver.   The court relied on the kidnap-for-robbery and felony-murder cases, from which CALJIC No. 9.15 was derived.  (People v. Laursen (1972) 8 Cal.3d 192, 104 Cal.Rptr. 425, 501 P.2d 1145;  People v. Salas (1972) 7 Cal.3d 812, 103 Cal.Rptr. 431, 500 P.2d 7.)   The court held a robbery does not end in the context of accomplice liability until the perpetrators reach a place of temporary safety in unchallenged possession of the loot:  “In applying these principles to the present case we follow the ‘policy, as well as logic,’ referred to in Laursen.   The violent crime of robbery creates great physical risks during the escape as well as during the taking.   One who knowingly participates in the second phase is, under the historic concept of the crime of robbery, culpable as a principal.”  (People v. Jardine, supra, 116 Cal.App.3d at p. 920, 172 Cal.Rptr. 408.)

Jardine was discussed in People v. Scott (1985) 170 Cal.App.3d 267, 215 Cal.Rptr. 618, where another alleged getaway driver was acquitted of robbery but convicted of being an accessory after the fact.   In rejecting the argument that Jardine compelled defendant's acquittal on the latter charge as well, the Court of Appeal stated, “The rule that a robbery continues until the perpetrator reaches a place of temporary safety and is in unchallenged possession of the stolen property has traditionally been used to establish liability for a more serious offense in felony-murder and kidnaping-for-robbery cases.  [Citation.]  Jardine, which relied on felony-murder cases, represents an extension of the rule to establish liability for the more serious offense of robbery where the defendant there sought an instruction on the offense of accessory.  [Citation.]  We decline to find the converse of the ‘continuous crime’ rule to be true, that potential liability for a more serious offense precludes liability for a less serious one.”  (Id., at pp. 271–272, 215 Cal.Rptr. 618.)

The Jardine and Scott decisions are irreconcilable in our view.   We are unsure from its wording whether Scott merely distinguished or actually disagreed with Jardine.   But Scott does state the correct rule:  “To establish liability as either a principal or an accessory, the crime of robbery is completed as soon as there has been an asportation, however slight, of the property to the robber's dominion and control.”  (Id., at p. 272, 215 Cal.Rptr. 618, emphasis added;  see People v. Bigelow (1984) 37 Cal.3d 731, 753, 209 Cal.Rptr. 328, 691 P.2d 994.)   Supreme Court decisions extending the duration of the robbery until the perpetrators reach a safe haven have been, as Scott noted, careful to limit that concept to felony-murder and kidnap-for-robbery cases.   Thus, in Bigelow the court described the expansive definition of robbery as “the test used in felony-murder cases to determine when a killing is so closely related to an underlying felony as to justify an enhanced punishment for the killing.”  (People v. Bigelow, supra, at p. 753, 209 Cal.Rptr. 328, 691 P.2d 994.)

In an analogous circumstance for aiders and abettors, the Court of Appeal has refused to extend the duration of a burglary beyond the initial entry, although, as in the case of robbery, felony-murder liability will attach for any killing occurring before the burglars reach a place of temporary safety.   (Compare People v. Brady (1987) 190 Cal.App.3d 124, 133–135, 235 Cal.Rptr. 248 with People v. Fuller (1978) 86 Cal.App.3d 618, 623–624, 150 Cal.Rptr. 515.)   The rule has developed that one who aids in the removal of property from a structure without entering and forms the intent to steal only after others have entered may be guilty of theft but not burglary.  (People v. Macedo (1989) 213 Cal.App.3d 554, 560–561, 261 Cal.Rptr. 754;  People v. Forte (1988) 204 Cal.App.3d 1317, 1321–1322, 251 Cal.Rptr. 855;  People v. Brady, supra, 190 Cal.App.3d at pp. 133–135, 235 Cal.Rptr. 248.)   This is so even though the law, which recognizes the inherent dangers to life created by robberies and burglaries, is willing to extend felony-murder and kidnap-for-robbery treatment to the actual perpetrators of the burglary or robbery should they kill or capture during the getaway.  (People v. Fuller, supra, 86 Cal.App.3d at pp. 623–624, 150 Cal.Rptr. 515;  cf. People v. Jardine, supra, 116 Cal.App.3d at p. 920, 172 Cal.Rptr. 408.)

Consistent with the principles announced in Macedo, Forte, and Brady, we decline to extend the rule enunciated in felony-murder and kidnap-for-robbery cases to the definition of robbery itself.4  The Supreme Court has long focused on the application of force or fear to the victim as the gist of the crime of robbery.  (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 351, 211 Cal.Rptr. 742, 696 P.2d 134;  People v. Ramos (1982) 30 Cal.3d 553, 589, 180 Cal.Rptr. 266, 639 P.2d 908, reversed on other grounds, California v. Ramos (1983) 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171.)   One who forms the intent to aid and abet the perpetrators of a robbery only after they have applied such force has not aided and abetted the robbery, just as an afterthought theft by the perpetrator of an assault is not a robbery.

This conclusion is consistent with our previous decisions refusing to treat completed burglaries and robberies as ongoing crimes in cases other than those involving kidnapping or felony murder.   In those situations defendants would have benefited from a continuing offense analysis, either by having separate counts merge or receiving reduced punishment per Penal Code section 654.  (In re William S. (1989) 208 Cal.App.3d 313, 256 Cal.Rptr. 64;  People v. Nguyen (1988) 204 Cal.App.3d 181, 251 Cal.Rptr. 40;  see also People v. Raby (1986) 179 Cal.App.3d 577, 224 Cal.Rptr. 576.)

 Of course, the prosecution's evidence was more than sufficient to support Cooper's conviction for robbery.   His arrival at the shopping center with Meehan and Parra, his conversations with them outside his car, and his apparent cooperation in their escape by waiting with open car doors told a great deal.  (See generally People v. Johnson, supra, 26 Cal.3d at p. 578, 162 Cal.Rptr. 431, 606 P.2d 738.)   But the combination of CALJIC No. 3.01, which is ambiguous with respect to those who aid and abet perpetrators after all the elements of the crime have been committed but before the scofflaws have made their getaway, and the inapplicable CALJIC No. 9.15 effectively prevented the jurors from deciding whether Cooper's conduct constituted the crime of robbery or accessory after the fact.  (Pen.Code, § 32.)   The latter inference was possible, even if not the most compelling construction of the evidence presented.

According to the prosecution's proof, it seems certain Cooper was waiting to assist the codefendants, but for what purpose?   If the original plan, for example, was to snatch the victim's wallet from his shopping cart and run, theft, not robbery, was the contemplated offense and Cooper may be an aider and abettor in a theft and an accessory after the fact of robbery.   But he is not guilty of robbery itself.   For these reasons, we cannot say the instructional error was harmless beyond a reasonable doubt.  (Rose v. Clark (1986) 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460.)

Judgment reversed.

I concur with the majority in the result, but believe the jury was properly instructed on aider and abettor liability.

The majority begins by suggesting CALJIC No. 3.01 is insufficient because it does not specify when the aider and abettor must have formed the necessary intent.   My colleagues conclude the jury, when given CALJIC No. 3.01 with CALJIC No. 9.15, could have believed a defendant who helps a robber after he or she has taken the loot by force or fear could be liable as an aider and abettor.   I disagree and find no ambiguity in CALJIC No. 3.01.

Preliminarily, it is essential to differentiate between the commission of a crime and its completion.   Although the two mean very different things, they are often used interchangeably.

CALJIC No. 3.01 states an aider and abettor must facilitate the commission of the crime;  that is, a crime is committed once the elements have been perfected.   By contrast, a crime is not completed until the perpetrator has reached a place of safety.   One who has entered a house with the intent to steal has perfected, or committed, the crime of burglary but has not completed its execution until he or she has hauled off the loot.   Therefore afriend who comes along after entry and helps the principal haul away the loot is only an accessory.   It should be noted here that Penal Code section 32 provides the accessory's acts must occur “after a felony has been committed. ”  (Emphasis added.)

CALJIC No. 9.15 is also consistent with this reasoning.   It first says “the commission of the crime of robbery is not confined to a fixed place or ․ time․”  (Emphasis added.)   This principle is illustrated by the facts of People v. Estes (1983) 147 Cal.App.3d 23, 194 Cal.Rptr. 909, in which a defendant takes property from a store, leaves the store, is confronted by a security guard, assaults the guard and runs away.   The court held the robbery was not confined to the point at which the loot was taken.   It was actually perfected, or committed, when Estes assaulted the guard.   However, it was not complete until he reached a place of temporary safety, unchallenged.   Notably, the last sentence of CALJIC No. 9.15 does not use the word commission:  “A robbery is complete when the perpetrator has eluded his pursuers, if any;  has reached a place of temporary safety and is in unchallenged possession of the stolen property․”  (Emphasis added.)   Therefore, the distinction between committing a crime and completing it is thoroughly recognized in CALJIC No. 9.15.

For these reasons, robbery principals caught after taking the victim's property (presumably by force or fear) cannot claim guilt only of attempt, because although the crime is not complete it is perfected (or, committed)—i.e., all the elements for robbery have been satisfied, even before reaching a place of temporary safety.   Therefore, CALJIC No. 9.15 very definitely has a place in robbery prosecutions, especially in Estes-type cases, where it tells the jury the crime is not dependent upon the chronological order or duration of events.

Accordingly, People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318 refers to aiding and abetting the commission of a crime, not its completion, very clearly meaning the point at which a defendant must have become involved.   It follows one can be an accessory after the fact of a committed crime, not just a completed crime.

For these reasons and the reasons stated by the majority, People v. Jardine (1981) 116 Cal.App.3d 907, 172 Cal.Rptr. 408 is wrong.   It merges the principles of committed and completed crimes.   The quoted language in People v. Scott (1985) 170 Cal.App.3d 267, 272, 215 Cal.Rptr. 618, stating that to establish liability as either a principal or an accessory, “the crime of robbery is completed as soon as there has been an asportation, ․” is correct only if the word committed is substituted for the word completed.

I believe CALJIC Nos. 3.01 and 9.15 are correct and the jury was properly instructed.   Nevertheless, it is apparent both counsel and the trial judge incorrectly interpreted these instructions to mean the jury could convict Cooper if it found he formed the intent to assist the perpetrators after they committed the act but before they reached a place of temporary safety.   The jury had the correct legal instruction, but I cannot assume a jury, without legal training or trial court correction, would disregard the consistent interpretations of two attorneys in favor of its own.   The legal principles involved are complex and it is unreasonable to assume the jury understood them.

On that basis alone, I would reverse.

FOOTNOTES

1.   Cooper did unsuccessfully petition this court before trial, when a showing of prejudice was not required;  but that does not obviate the post-trial requirement, even though with hindsight the original petition had merit.   This seemingly anomalous rule derives from the differing standards of review relating to writs and appeals and the seminal Supreme Court decision on the subject, People v. Wilson (1963) 60 Cal.2d 139, 144, 149–154, 32 Cal.Rptr. 44, 383 P.2d 452.

2.   This instruction is now found in CALJIC No. 9.44 (5th ed. 1988).   The Attorney General points out defense counsel eventually said it would satisfy him if the court advised the jury that not all instructions are necessarily applicable, thereby acquiescing in the giving of CALJIC No. 9.15.   This request, however, occurred in the middle of closing arguments after repeated objections to the giving of CALJIC No. 9.15 and the prosecutor's heavy reliance upon it in argument.   The record is clear defense counsel had given up attempting to persuade the court of its mistake and was hoping the jurors would simply ignore an instruction that destroyed his sole defense.   Counsel did not invite error in the giving of the disputed instruction, nor could there have been any tactical basis for doing so.  (See generally People v. Wickersham (1982) 32 Cal.3d 307, 333, 185 Cal.Rptr. 436, 650 P.2d 311;  People v. Garewal (1985) 173 Cal.App.3d 285, 297–299, 218 Cal.Rptr. 690.)

3.   Penal Code section 32 states, “Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.”

4.   We recognize one exception not relevant here.   When the victim of a theft is assaulted while attempting to recover the loot before the perpetrator has reached a place of temporary safety, the crime is robbery, not merely theft followed by assault.   It is immaterial that the taking precedes the violence.  (People v. Estes (1983) 147 Cal.App.3d 23, 28, 194 Cal.Rptr. 909.)   And of course, one who subsequently joins in the application of force or fear to the victim, even belatedly, can be guilty of robbery as a direct perpetrator.  (People v. Underwood (1986) 181 Cal.App.3d 1223, 1235, 226 Cal.Rptr. 840.)

CROSBY, Acting Presiding Justice.

WALLIN, J., concurs.