PEOPLE v. VALENZUELA

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

The PEOPLE, Plaintiff and Respondent, v. Maria Suarez VALENZUELA, Defendant and Appellant.

Cr. 13209.

Decided: April 20, 1982

Quin A. Denvir, State Public Defender, and Jeffrey J. Stuetz, Deputy State Public Defender, and Gary Nelson, Panel Atty., San Diego, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.

Maria Valenzuela appeals from a judgment of conviction on one count of robbery (Pen.Code, § 211), alleging that the jury was inadequately instructed on the necessary intent for her conviction on an aiding and abetting theory, and that the evidence is insufficient to support her conviction.   She also contends instructional error occurred on her co-defendant's intoxication defense and on lesser included offense theories.   Error is also claimed in the trial court's denial of her severance motion and in sentencing.   We find no error save in sentencing.

Facts

Maria Uribe and her week-old son lived in a two-room apartment in San Ysidro.   Uribe had just put her son back to bed after feeding him when Patricia Hinojosa (appellant Valenzuela's co-defendant) came to her door at about 4:30 a. m. and asked if “Guero” or “Wetto” was there.1  Uribe, who did not know Hinojosa, answered that no one by that name lived there, and Hinojosa left, returning 15 minutes later with a request to use the bathroom.   Uribe admitted her, leaving the front door ajar.   Five minutes later, Valenzuela, Hinojosa's roommate appeared at the door dressed in a robe and pajamas and walked in, asking for “Pattie.”   Uribe answered that she was in the bathroom, and Valenzuela also went into the bathroom for a few minutes.   She then came back out and sat down on the couch.   Uribe had been walking back and forth in the apartment but then sat near Valenzuela on a chair, and the two started to talk about their children, as each had recently had a baby.   Hinojosa emerged from the bathroom and appeared to be angry.   She pulled a gun from her waistband, swung it around, and demanded to know where “Wetto” was, as he owed her money.   Uribe again said he was not there and Hinojosa asked if she could look around for him, and did so, looking in the bedroom and closets after she had put the gun back in her waistband.   She also unplugged the phone.   Hinojosa appeared to be intoxicated;  her speech was slurred and she held onto the television stand rail for support.   Hinojosa picked up several items from the bedroom, including a jacket, bracelet, hair dryer, wallet and keys;  Uribe repeatedly told her not to take her things.   Meanwhile Valenzuela kept saying to Hinojosa, “Let's get out of here,” “Let's leave,” and other more profane expressions indicating her desire that they depart.   Uribe was asked at trial if she was fearful of Valenzuela, and she answered, “I didn't trust her.   I was scared,” but said that Valenzuela had not threatened her.   Valenzuela was present and could see and hear when Hinojosa waived the gun and threatened Uribe and picked up “collected” items of Uribe's property.

Hinojosa, swinging while holding onto the television rail, told Valenzuela she was mad, that “We need the money.”   Uribe then unplugged the television set for Valenzuela who carried it out the door.   Uribe did not try to stop Valenzuela.  “She took it.”   She explained, “Hey, if it took two guys to bring it up, and I saw her carry it down, I wasn't about to stop her.”

As Valenzuela left she told Uribe the television would be returned to her.   A minute later, Hinojosa also left with the seized articles.   The whole episode had lasted about an hour.   Uribe immediately called the police.

Valenzuela was identified from a photo lineup and arrested at the apartment shared with Hinojosa.   She admitted to the police she had been at Uribe's apartment and had carried the television set from the apartment.   She admitted she knew “Wetto” did not live at Uribe's apartment.   Hinojosa also made statements to police about her involvement in the incident (see infra).  The stolen hair dryer was recovered from the shared apartment, but Uribe's television was never returned.

Valenzuela's motion to sever her trial from Hinojosa's was denied and a joint trial followed.   Valenzuela did not testify on her own behalf nor did she present other defense evidence.   At the close of the prosecution's case, her motion for acquittal on both counts was denied.   Hinojosa testified in her own defense, relating that she had imbibed alcohol and marijuana several hours before arriving at Uribe's;  Valenzuela had a few drinks with her, but did not become intoxicated.

The prosecution's theory at trial was that Valenzuela had aided and abetted Hinojosa in the commission of a robbery.   Accordingly, the jury was instructed under CALJIC No. 3.01 that:

“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.

“Mere presence at the scene of a crime which does not 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.”

The jury also received a modified CALJIC No. 3.00 instruction defining principals to a crime:

“The persons concerned in the commission or attempted commission of a crime who are regarded by law as principals in the crime thus committed or attempted and equally guilty thereof include:

“1. Those who directly and actively commit or attempt to commit the act constituting the crime, or

“2. Those who, with knowledge of the unlawful purpose of the one who does directly and actively commit or attempt to commit the crime, aid and abet in its commission or attempted commission ․”

Valenzuela's counsel's closing argument analyzing the prosecution evidence addressed the issue of his client's intent as follows:

“Certainly there was no intent to specifically deprive.   That television set was moved in an effort to try to get Miss Hinojosa to leave and for no other reason․  [I] think the evidence certainly indicates she came up there for the purpose of getting Miss Hinojosa and leaving.   And it took her some time to convince Miss Hinojosa to leave but she ultimately did․   Well, in this case ․   Miss Valenzuela is not directly or indirectly attempting to commit a crime, any crime.   She's encouraging Miss Hinojosa to leave and discouraging her from doing anything wrong․   We have Miss Valenzuela trying to discourage Miss Hinojosa from doing anything and trying to get her to leave.”  (Italics added.)

The trial court told the jury each defendant could be convicted of either a robbery or a burglary, but not both.2  During deliberation, the jury asked the court for clarification of the instructions on culpability of an aider and abettor and was reinstructed on these matters.   The jury returned verdicts of guilty as to each defendant on the robbery counts.

Discussion

I.

 Valenzuela contends that instructional error here allowed the jury to convict her of robbery without finding that she intentionally aided and abetted Hinojosa in the commission of the robbery.  (People v. Yarber, 90 Cal.App.3d 895, 153 Cal.Rptr. 875.)   Her trial and appellate theory was that her admitted taking of the television from Uribe's apartment was not robbery or theft but instead an attempt to defuse a volatile situation and get the intoxicated Hinojosa away from the scene.

In Yarber, supra, the court held that it was prejudicial error for the trial court to fail to instruct the jury that Bonnie Sue Yarber had aided and abetted the commission by her husband, appellant Wendol Yarber, of the crime of oral copulation of a minor-third person if, with knowledge of Wendol's unlawful purpose, she had intentionally aided or promoted by her act or advice the commission of that crime.   The “peculiar facts” of that case (id., 90 Cal.App.3d at p. 916, 153 Cal.Rptr. 875) revealed that there was “room for doubt” (ibid. ) whether the act (i.e., her own voluntary act of oral copulation of Wendol in the minor's presence) by which Bonnie had “aided or promoted” Wendol's crime was intended by her to promote Wendol's crime, or whether it was performed for her own purposes or gratification.   In its analysis of these facts, the court commented:

“The facts of this case present the unusual situation in which the liability of an aider and abettor [Bonnie] depends not on her aiding by encouraging the perpetrator of the crime but on her aiding the perpetrator by encouraging a third party, who could not be liable either as a perpetrator or as an aider and abettor, to engage in an act in violation of the law.”  (People v. Yarber, 90 Cal.App.3d at p. 910, 153 Cal.Rptr. 875.)

It can readily be seen that this factual matrix (as the Yarber court admitted) “ ‘seems to go to the limit of the law.’ ”  (Id., at p. 911, 153 Cal.Rptr. 875, quoting Williams, Criminal Law (2d ed. 1961) § 121, p. 356.)   Such unusual facts offer no precedential value to the Valenzuela-Hinojosa-Uribe situation.   It is difficult to conceive of an intent motivating Valenzuela's carrying the television out of Uribe's house, distinct from her purpose of helping Hinojosa to rob Uribe of her property.   The Yarber rule is simply not applicable to the facts of this case.

Valenzuela argues she may have committed the acts which led to her conviction, but that in her heart of hearts she did not intend to aid and abet Hinojosa.   This argument failed to persuade the jury.   Counsel argued, essentially, the prosecution's evidence was subject to two inferences as to Valenzuela's intent.   The jury simply rejected one, the unreasonable, inference.

If more reason is needed, we find it in the recent case of People v. Flores, 128 Cal.App.3d 512, 180 Cal.Rptr. 368, where an identical contention was made concerning the lack of a Yarber-type modification of CALJIC No. 3.01.   This court said,

“As is said in People v. Ott, 84 Cal.App.3d 118 at page 130, [148 Cal.Rptr. 479] ‘aiding in the commission of the crime with knowledge of the wrongful purpose of the perpetrator co ipso establishes the criminal intent ․ “the criminal intent of the aider and abettor is presumed from his actions with knowledge of the actor's wrongful purpose” (italics added)’ (quoting from People v. Ellhamer, 199 Cal.App.2d 777, 782 [18 Cal.Rptr. 905] ).  We might add to these truths the observation that since our system of justice entrusts to jurors the vast power of drawing any inference that can reasonably be drawn from substantial evidence and we forever bind ourselves to those inferences properly drawn, it would be demeaning of jurors' intelligence to instruct them, in addition, on the clear implication of intent that flows logically and necessarily from the words of the CALJIC No. 3.01 standard instruction.   The standard CALJIC No. 3.01 is all that is required.

“In People v. Yarber, 90 Cal.App.3d 895, at page 916, [153 Cal.Rptr. 875] the following view is expressed:  ‘The Ellhamer/Ott synthesis that intent is inferred from the knowledge by the aider and abettor of the perpetrator's purpose is sound, generally, as a matter of human experience, but we cannot extrapolate therefrom, as a matter of law, that the inference must be drawn.   Intent is what must be proved ;  from a person's action with knowledge of the purpose of the perpetrator of a crime, his intent to aid the perpetrator can be inferred.   In the absence of evidence to the contrary, the intent may be regarded as established.   But where a contrary inference is reasonable—where there is room for doubt that a person intended to aid a perpetrator—his knowledge of the perpetrator's purpose will not suffice.  [Fn. omitted.]  [¶] The jury in the present case should have been instructed that a person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator, he intentionally aids, promotes, encourages or instigates by act or advice the commission of such crime.  [Fn. omitted.]’

“For the reasons stated, we cannot follow this view since we cannot accept its unstated premise that one who actually aids the perpetrator with the requisite knowledge might not intend to aid, again with the requisite knowledge.   To make its analysis, we note, Yarber substitutes ‘action with knowledge’ (emphasis added) for the language of the instruction which requires not a finding of ‘action’ with knowledge only, but rather a finding of aiding and abetting, again with the requisite knowledge.

“Since Yarber says ‘[i]n the absence of evidence to the contrary, his intent to aid the perpetrator can be inferred ’ from a person's action with the requisite knowledge, the case can be viewed as requiring evidence showing the person accused as an aider and abettor did not intend to aid and abet the perpetrator as a prerequisite to its holding requiring the insertion of the word ‘intentionally’ into CALJIC No. 3.01.   No such evidence to the contrary exists here.   Thus, it can be said the instruction given here fulfilled the requirements of Yarber (see People v. Brown, 116 Cal.App.3d 820, 825–827 [172 Cal.Rptr. 221] ).”  (Id., 128 Cal.App.3d at pp. 525–526, 180 Cal.Rptr. 368.)

While Valenzuela now contends the instructions were insufficient, her counsel, in closing argument, used the words of the challenged instructions (CALJIC Nos. 3.00, 3.01) to support his argument.   Counsel at no time asked for additional instructions on aiding and abetting and when the jury was reinstructed with CALJIC Nos. 3.00 and 3.01, Valenzuela's counsel indicated he was satisfied with the instructions given.   Valenzuela cannot now seek additional instructions on aiding and abetting.  (People v. Knight, 111 Cal.App.3d 201, 206, 168 Cal.Rptr. 421.)

Nor do we find that Valenzuela's counsel's closing argument questioning her “intent” mandated a Yarber-style instruction.   Statements made by the attorneys during the trial are not in evidence as the court properly instructed the jury.   In such circumstances the trial court did not have a sua sponte duty to instruct on this issue.  (People v. Flannel, 25 Cal.3d 668, 684, 686, 160 Cal.Rptr. 84, 603 P.2d 1.)

Finally, Valenzuela was not prejudiced in any way.   The uncontradicted evidence showed Valenzuela by acts physically aided and abetted the codefendant in this case.   Valenzuela carried the television out of the victim's house.   Without a Yarber instruction, defense counsel was able to focus the jury on the issue of whether Valenzuela aided and abetted and argued she did not intend to do so all within the context of CALJIC Nos. 3.00 and 3.01.  That issue was squarely before the jury.   The presence or lack of a Yarber instruction would have made no difference.  (People v. Watson, 46 Cal.2d 818, 835–837, 299 P.2d 243.)

The jury could reasonably have concluded from the evidence presented on the robbery elements of a taking through force or fear and from the instruction given that Valenzuela's behavior satisfied this standard.   Their verdict must be upheld because it is supported by substantial evidence, as summarized above, viewed in the light most favorable to the prosecution.  (People v. Johnson, 26 Cal.3d 557, 575–579, 162 Cal.Rptr. 431, 606 P.2d 738.)

II.

 Valenzuela next contends the court was bound to instruct the jury on the lesser included offense of assault with a deadly weapon.   The evidence did not offer any basis for such an instruction.   Valenzuela was not armed and Uribe testified that she did not threaten her.   Her defense theory was that she either committed a theft or no crime at all.   Under these circumstances, the court did not incur a sua sponte duty to instruct on this issue.  (People v. Sedeno, 10 Cal.3d 703, 715–716, 112 Cal.Rptr. 1, 518 P.2d 913 (overruled on other grounds in People v. Flannel, supra, 25 Cal.3d at p. 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1.)

 Next, Valenzuela contends that the trial court's admittedly erroneous ruling that she could only be found guilty of either burglary or robbery under Penal Code section 654, not both, might have caused the jury to reach an improper compromise verdict.   Any prejudice stemming from this ruling could only have operated in Valenzuela's favor, and does not constitute reversible error.  (People v. Watson, supra.)

 Valenzuela argues the trial court erred in defining for the jury voluntary intoxication by giving CALJIC No. 4.22.   Only Hinojosa's intoxication was at issue, not Valenzuela's;  the intoxication and diminished capacity instructions applied only to her.   At worst the challenged instruction was superfluous and any error resulting from it would be very remote as to Valenzuela.  (See People v. Watson, supra.)

III.

 Valenzuela contends the denial of her severance motion, after the prosecutor agreed to edit Hinojosa's statements (People v. Aranda, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265) violated her Sixth Amendment right to confront Hinojosa after Hinojosa denied on cross-examination ever having told a police officer that Uribe's brother owed money to Valenzuela.   On rebuttal the police officer testified Hinojosa told him she went to Uribe's apartment to get money owed on a heroin deal, but she had not said the money was owed to her.   From this testimony Valenzuela argues the jury must have inferred the women went to Uribe's apartment to collect a heroin transaction debt owed to Valenzuela, and consequently prejudicial error and a miscarriage of justice occurred.

Initially, we note that no objections were made to the admission of the testimony complained of;  hence, under Evidence Code section 353, subdivision (a), and People v. Terry, 38 Cal.App.3d 432, 443, 113 Cal.Rptr. 233, the issue is not cognizable on appeal.

 Even if it were cognizable, no violation of Valenzuela's confrontation rights occurred because Hinojosa was available for cross-examination.  (People v. Standifer, 38 Cal.App.3d 733, 742, 113 Cal.Rptr. 653.)   Hinojosa's statements were admissions, not a confession which expressly acknowledged the crime charged.   Therefore, Aranda-Bruton considerations do not apply.  (People v. Mardian, 47 Cal.App.3d 16, 41–42, 121 Cal.Rptr. 269.)   Lastly, the statements are ambiguous and only tangentially implicated Valenzuela.   In view of the other evidence concerning her participation in the crime, their admission did not constitute prejudicial error under People v. Watson, supra.  (See People v. Atkins, 53 Cal.App.3d 348, 357, 125 Cal.Rptr. 855.)

IV.

 Valenzuela next contends that she was subjected to discrimination in sentencing since she was in pretrial and presentence custody.   The trial court, she claims, improperly considered her earned 372 days worth of good time credits in deciding to impose the middle term (three years) rather than the lower term (two years).   The following facts support her claim:  at the sentencing proceedings, the trial court first said it was considering imposing the mitigated term of two years plus a year's enhancement for a prior offense for a total of three years.   The probation officer then reminded the court that the prior had been stricken and no enhancement would be appropriate.

The court then reconsidered the sentence term, stating,

“I would consider two years except for the fact that's not possible under the situation.   She has already served one year so I cannot do that.   That's like putting her on probation.   So we are looking at the middle term.”

Valenzuela's attorney then stated:

“[T]here's a lower term available of two years of which she has served, which she now has credit of, approximately, a year or a little over a year so in reality if we applied the lower term ․”

The court interrupted:

“She would be immediately released on parole.   Am I correct on that?”

Valenzuela's attorney agreed, and the probation officer confirmed that, with the imposition of a two-year term, she would be eligible for parole “within the next couple months.”   The court then imposed the middle term of three years, stating as its reasons:

“The circumstances in mitigation are the actual crime itself, the fact she was induced to participate in the crime;  she had minimal involvement, did suggest to the co-partner to put the gun away.

“The circumstances in aggravation are her prior convictions as an adult;  the fact she had served a prior prison term;  she was on parole at the time this offense was committed, and her performance on parole was unsatisfactory.

“Analyzing the prison term, it appears appropriate in this case to impose the middle term of three years, no enhancement.”

The court's statement of its grounds for imposition of the middle term meet the requirements of Penal Code section 1170, subdivision (c), and appear facially sufficient to support the choice of the middle term.   Nevertheless, the record as a whole reveals the court's decision to impose a three-year sentence was at least partially based upon its desire that Valenzuela serve a longer sentence than applicable parole regulations and good time credits would allow.

This mode of use of good time credit is contrary to the purposes of the statutes which create that credit.   The provisions of these statutes are summarized in People v. Sage, 26 Cal.3d 498, 502, 165 Cal.Rptr. 280, 611 P.2d 874:

“Under section 2900.5 a defendant receives credit toward his term of imprisonment for time in custody prior to commencement of sentence.   Subdivision (a) of that section provides in pertinent part:  ‘In all felony and misdemeanor convictions ․ when the defendant has been in custody ․ all days of custody ․ including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to section 4019, shall be credited upon his term of imprisonment․’  (Italics added.)

“Section 4019 authorizes good behavior and work performance credit for certain prisoners confined in city or county jails․”

In re Rojas, 23 Cal.3d 152, 156, 151 Cal.Rptr. 649, 588 P.2d 789, contains this explanation of the purpose of Penal Code section 2900.5:

“The legislative purpose appears to have been to eliminate the unequal treatment suffered by indigent defendants who, because of their inability to post bail, served a longer overall confinement than their wealthier counterparts.  [Citations.]”

The court's clearly expressed determination to select the middle term because a two-year term was “not possible under the situation.   She has already served one year so I cannot do that ․ so we are looking at the middle term,” contravenes the legislative purpose of the use of good time credit to shorten, not lengthen sentences for pretrial confinees like Valenzuela.   Such basis for sentence choice constituted an abuse of the trial court's “specified discretion” (Pen.Code, § 1170, subd. (a)(1).)   The Legislature expressly provided in Penal Code section 1170, subdivision (a)(2):

“In any case in which the amount of preimprisonment credit under Section 2900.5 or any other provision of law is equal to or exceeds any sentence imposed pursuant to this chapter, the entire sentence, including any period of parole under Section 3000, shall be deemed to have been served and the defendant shall not be actually delivered to the custody of the Director of Corrections.”

Judgment of conviction affirmed, cause remanded for sentencing consistent with this opinion.

I respectfully dissent from the majority's holding that the instructions given in this case regarding the liability of an aider and abettor were adequate.

This issue has provoked considerable disagreement among the Courts of Appeal recently.1  While the genesis of the current dispute is undoubtedly the scholarly and well-reasoned opinion in People v. Yarber (1979) 90 Cal.App.3d 895, 153 Cal.Rptr. 875, the question of what mental state is necessary before a defendant may be properly convicted as an aider and abettor is one which has concerned California courts for many years.  (Id., at pp. 912–914, 153 Cal.Rptr. 875.)

The facts here present the rather unusual situation in which the defendant may have aided in the commission of a crime knowing of the perpetrator's illegal purpose but without intending to provide such aid.   In my view, CALJIC No. 3.01 given to the jury allowed them to convict Valenzuela despite the fact she may have acted for a purpose other than that of aiding Hinojosa in committing a robbery.   Relying on the general statistical improbability that a person who knows a crime is being committed will aid the perpetrator without intending to do so, the majority deny Valenzuela the correct statement of the law to which she is entitled.

I believe People v. Yarber, supra, accurately states the rule of substantive law applicable in these cases:  a defendant who does not act with the purpose of promoting or facilitating the crime is not liable as an aider and abettor.   Moreover, nothing in the majority opinion directly takes issue with that statement.   Instead, the majority focus on factual and procedural distinctions:  Are the facts of this case reasonably susceptible of an interpretation that Valenzuela did not intend to aid Hinojosa?   Does CALJIC No. 3.01 adequately explain the substantive law?   Did Valenzuela's counsel have an obligation to request additional clarifying instructions, or is the trial court subject to a sua sponte duty?

In enacting Penal Code section 31, the Legislature sought to hold equally liable “[a]ll persons concerned in the commission of a crime, ․ whether they directly commit the act constituting the offense, or aid and abet in its commission, ․”  The rationale of this section is that all persons who voluntarily contribute to a criminal result should be held responsible for it.   The effect of the rule is that persons who contribute relatively little to the success of a criminal venture suffer the same sanction as the perpetrator of the crime.   If criminal liability is to remain proportionate to moral culpability (see People v. Washington (1965) 62 Cal.2d 777, 783, 44 Cal.Rptr. 442, 402 P.2d 130), it is logical to require not only that a defendant act in aid of the perpetrator, but also that he intend his acts to have that effect.2  (See People v. Petty (1981) 127 Cal.App.3d 255, 263, 179 Cal.Rptr. 413;  United States v. Peoni (2nd Cir. 1938) 100 F.2d 401, 402.)

Accepting Yarber's statement of the substantive law, I believe we all would also agree with Yarber's observation that few factual patterns will present themselves in which the defendant's intent to aid the perpetrator is not almost necessarily inferable from his actions with knowledge of the perpetrator's criminal purpose.  (90 Cal.App.3d at p. 916, 153 Cal.Rptr. 875.)   But rather than admitting that CALJIC No. 3.01 is in error and then proceeding to analyze whether that error was prejudicial (see People v. Patrick, supra, 126 Cal.App.3d at p. 968, 179 Cal.Rptr. 276;  People v. Petty, supra, 127 Cal.App.3d at p. 264, 179 Cal.Rptr. 413), the majority frame their conclusion in terms of why the instruction given in this case was proper.

The opinion begins by noting, “It is difficult to conceive of an intent motivating Valenzuela's carrying the television out of Uribe's house, distinct from her purpose of helping Hinojosa to rob Uribe of her property.”  (Maj. opn., ante, at p. 164 of 182 Cal.Rptr.)   One might then reasonably have expected the court to conclude that any error could not possibly have prejudiced Valenzuela.   Instead, the majority proffer the proposition that an instruction defining a requisite element for criminal liability 3 need not be given if the court has difficulty in conceiving how the jury could find the instruction applicable.  (Compare People v. Flannel (1979) 25 Cal.3d 668, 681, 160 Cal.Rptr. 84, 603 P.2d 1.)   Under that theory, a trial judge could properly refuse to instruct that robbery requires a specific intent to permanently deprive if he in his interpretation of the evidence found it “difficult to conceive of” any other intent which might have motivated the defendant.  (Contra People v. Ford (1964) 60 Cal.2d 772, 793, 36 Cal.Rptr. 620, 388 P.2d 892.)

Although the majority protest “difficulty” imagining what independent purpose might have motivated Valenzuela, the jury acting under correct instructions might not have had that same problem.   The opinion itself four paragraphs earlier quotes from defense counsel's argument which specifies such an independent motivation:  “That television set was moved in an effort to try to get Miss Hinojosa to leave and for no other reason.”  (Maj. opn. ante, p. 163 of 182 Cal.Rptr.;   emphasis in original.)   The unusual facts of this case make defense counsel's explanation wholly believable.   The fact that counsel's explanation did not result in an acquittal under an incorrect instruction (see maj. opn., ante, at 164 of 182 Cal.Rptr.) does not mean Valenzuela was not entitled to a correct one.   Simply stated, the instruction given in this case, like that given in Yarber, would have allowed the jury to convict the defendant despite a finding that she did not act with the purpose of furthering the commission of a crime.

The majority also rely on People v. Flores (1982) 128 Cal.App.3d 512, 180 Cal.Rptr. 368 which, like the case before us, articulated several reasons why CALJIC No. 3.01 was properly given.4  Unlike this case, however, the court there correctly determined there was no evidence suggesting the defendant did not intend to aid the perpetrator.  (Id., at p. 526, 180 Cal.Rptr. 368.)   Thus, the error in Flores was not prejudicial.

The majority also suggests that had Valenzuela's counsel asked for clarifying instructions, the result might be different.  (Maj. opn., ante, at p. 165 of 182 Cal.Rptr.)   This approach, however, ignores the fact that intent to aid is an element essential to Valenzuela's liability for the crime.   A trial court is obliged to instruct sua sponte on all “general principles of law governing the case, i.e., those principles relevant to the issues raised by the evidence ․”  (People v. Flannel, supra, 25 Cal.3d at p. 681, 160 Cal.Rptr. 84, 603 P.2d 1.)   This rule is “undoubtedly designed to promote the ends of justice by providing some judicial safeguards for defendants from the possible vagaries of ineptness of counsel under the adversary system.”  (People v. Wade (1959) 53 Cal.2d 322, 334, 1 Cal.Rptr. 683, 348 P.2d 116.)   Given the prosecution's reliance on the aiding and abetting theory, the trial court here was required to correctly instruct the jury on the applicable legal principles, which include all necessary elements of criminal liability.  (People v. Sanchez (1950) 35 Cal.2d 522, 528, 219 P.2d 9;  People v. Peabody (1975) 46 Cal.App.3d 43, 49, 119 Cal.Rptr. 780.)

Finally, it is also the majority's perception Valenzuela suffered no prejudice due to the lack of a correct instruction focusing the jury's attention on whether she intended to aid Hinojosa.  (Maj. opn., ante, at p. 165.)   I respectfully disagree.   The facts of this unique case as presented by the prosecution give rise to two interpretations:  either Valenzuela entered Uribe's apartment intending to aid Hinojosa in carrying off various items of property or, after seeing the dangerous situation created when her intoxicated friend started waving a gun around, she attempted to diffuse the danger by removing the television set which Hinojosa indicated she wanted.   Whether either or both interpretations are reasonable is a question for the jury to decide.  (See CALJIC No. 2.01 (4th ed. 1979).)   Valenzuela was entitled to a correct statement of the applicable rules of law.   The erroneous instruction which the court gave denied to her defense counsel a proper foundation upon which to base his argument that Valenzuela did not act with the purpose of aiding Hinojosa.

Although this case may be one of only a handful in which the absence of a modified instruction will have the effect of depriving a defendant of a meritorious defense, I would suspect the remoteness of injustice is of little solace to the convicted defendant who may be that statistical oddity.   Rather than perpetuating justice by chance, CALJIC No. 3.01 should be modified to assure justice in all cases.

FOOTNOTES

1.   Uribe had a brother not living with her who sometimes went by the nickname Guero, Wetto, which is a common Spanish nickname meaning “blond” or “fair.”   It is unclear from the record whether Hinojosa was in fact looking for Uribe's brother, or if the whole incident was a case of mistaken identity.

2.   This ruling was based on an apparent misreading of the requirements of Penal Code section 654 which prohibits double punishment if two crimes against the same victim are part of a continuous course of conduct.  (See Neal v. State of California, 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839.)   The section does not prohibit double conviction but only double punishment.  (In re Pratt, 66 Cal.2d 154, 156, 56 Cal.Rptr. 895, 424 P.2d 335.)

1.   The Supreme Court has recently granted a hearing in People v. Beeman, 3 Crim. 10991 (hg. granted Mar. 17, 1982) which raised the Yarber issue.   We may therefore look to Beeman to provide appropriate guidance on this question in the near future.

2.   If Yarber can be faulted, it is for failing to cite or discuss People v. Tewksbury (1976) 15 Cal.3d 953, 127 Cal.Rptr. 135, 544 P.2d 1335.   In Tewksbury, the court considered the elements of aiding and abetting in the slightly different context of whether a witness was an accomplice of the defendant such that her testimony required corroboration pursuant to Penal Code section 1111.   The discussion began by noting, “Criminal liability as a principal attaches to those who aid in the commission of a crime only if they also share in the criminal intent ․”  (Id., at p. 960, 127 Cal.Rptr. 135, 544 P.2d 1335.)   The court went on to conclude that this “intent requirement is satisfied if [the accomplice] ․ realized that a [crime] was being planned and that [he] was facilitating its commission.”  (Ibid.)Both Tewksbury and Yarber presume knowledge of the perpetrator's illegal purpose as is referred to in the current draft of CALJIC No. 3.01.  Tewksbury requires additionally that the defendant realize he is facilitating the commission of a crime or, in other words, that he knowingly aid the perpetrator.  Yarber suggests the slightly higher requirement that the defendant intentionally aid the perpetrator.   As the court noted recently in People v. Patrick (1981) 126 Cal.App.3d 952, 967, fn. 10, 179 Cal.Rptr. 276, CALJIC No. 3.01 as currently drafted “would technically allow a conviction if the defendant, knowing of the perpetrator's unlawful purpose, negligently or accidentally aided the commission of the crime.”   Thus under either the Yarber or Tewksbury standard, the instruction as given in this case is defective.  (Ibid.;  see also People v. Green (1982) 130 Cal.App.3d 1, 181 Cal.Rptr. 507 (conc. opn. of Miller, J.).)As to the difference between the two standards, the Yarber court recognized “[i]t is hard to conceive of a case in which a person with such knowledge [Tewksbury] would not have such intent [Yarber].”  (90 Cal.App.3d at p. 916, fn. 9, 153 Cal.Rptr. 875.)   Given the unusual factual and legal contexts of Tewksbury, a resolution of the differences between the two standards was clearly unnecessary to the decision.   I am persuaded by the Yarber court's thorough review of the numerous past cases which bear upon this issue and conclude that “shared criminal intent” requires that the defendant intend to aid in the commission of the crime.   As the First Appellate District noted recently in People v. Petty, supra, 127 Cal.App.3d at p. 263, 179 Cal.Rptr. 413;  “A lesser standard, based upon knowledge of the principal's purpose, or of the likelihood that the purpose will be aided by the particular acts, may be appropriate in states which distinguish among degrees of complicity (cf. People v. Gordon (1973) 32 N.Y.2d 62, 343 N.Y.S.2d 103, 295 N.E.2d 777), but where, as in California, the aider and abettor is guilty of the same crime, and subject to the same punishment, as the principal, the Yarber standard appears to be more compatible with legislative intent.”

3.   I note that neither the majority nor the People suggest that the absence of an intent to aid the perpetrator should be treated as an affirmative defense.

4.   One of those reasons suggests that CALJIC No. 3.01 constitutes a correct explanation of the applicable law because an “implication of intent ․ flows logically and necessarily from the words of the CALJIC No. 3.01 standard instruction.”  (128 Cal.App.3d at p. 525, 180 Cal.Rptr. 368.)   The response to this reasoning is twofold.   First, why rely on the jurors drawing the necessary “implication of intent” when it would be just as easy to instruct them simply and clearly that a person is liable for a crime's commission if, with the purpose of promoting or facilitating the accomplishment of a known criminal objective, he aids the perpetrator in committing the crime?   Second, this argument assumes that it is impossible to “aid, promote, encourage or instigate ․ the commission of [a] crime” (CALJIC No. 3.01, plurals omitted) without intending that result.   I do not find the “implication of intent” flowing from these four words all that logical or necessary.   Moreover, the instruction is phrased in the disjunctive.   Even to the extent that some of the words may imply some volition on the part of the defendant, it seems clear that all four do not.   As the Supreme Court noted some time ago in People v. Dole (1898) 122 Cal. 486, 492, 55 P. 581, “The word ‘aid’ does not imply guilty knowledge or felonious intent ․”  (See also People v. Tewksbury, supra, 15 Cal.3d at p. 960, fn. 4, 127 Cal.Rptr. 135, 544 P.2d 1335.)

STANIFORTH, Acting Presiding Justice.

LEVITT,* J., concurs.

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