PEOPLE v. KERR

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

The PEOPLE, Plaintiff and Respondent, v. John Michael KERR, Defendant and Appellant.

D002641.

Decided: October 22, 1986

John K. Van de Kamp, Atty. Gen., Frederick P. Miller, Jr., Supervising Deputy Atty. Gen., Leslie B. Fleming, Deputy Atty. Gen., for plaintiff and respondent. George C. Boisseau, Chula Vista, for defendant and appellant.

John Michael Kerr appeals from judgments of conviction entered upon jury verdicts of guilty on count 1 robbery (Pen.Code, § 211),1 count 2 assault with a deadly weapon by means likely to produce great bodily injury (§ 245(a)(1)) and count 4 receiving stolen property (§ 496, subd. 1).   Upon sentencing, Kerr was granted formal probation conditioned upon a stayed commitment of 120 days local custody.   Kerr contends it was reversible error for the trial court to fail to instruct sua sponte on the effect of voluntary intoxication on the issue of specific intent necessary for robbery and on the intent necessary to aid and abet (the perpetrator of the assault in count 2).   He also claims of instructional error in defining “commission of the crime” and asserts the “receiving” conviction must be reversed.

FACTS

Eighty-four-year-old Anna Stevens was walking with a friend in the Midway-Rosecrans area of San Diego.   She carried her purse containing some cash.   She felt something forceful at her back and was knocked to the ground.   A few moments later she realized her purse had been taken.   Two of her vertebrae were injured as a result of her fall.   She had to spend two days and nights in the hospital.  (RT 154).

Kerr was the driver of a white Datsun vehicle which sped away fishtailing, tires screaming, from the scene of the robbery.   Passenger Littleton had seized her purse and pushed the elderly lady to the ground.   He ran, jumped in the car and the car sped away;  the passenger door still open as the car departed.

Stevens' friend, Ann Olsen, saw a man identified as Littleton “running away and jumping into the car.”   She screamed and civilians came to her aid, running after the robber Littleton and the departing car.   Another car passenger, Marshall Wrenn, and Littleton quickly departed the scene on foot running when a citizen's car blocked the exit of the fleeing white Datsun.   Both were shortly thereafter apprehended by the pursuers.   Wrenn testified Littleton said something to Kerr, opened the door, got out and was gone for less than 90 seconds.   He came back to the car and the car immediately drove off.   The car was spinning all around with Littleton directing Kerr to go this way, go that way.

Kerr knew Wrenn and met him on the morning of the robbery.   Littleton also knew Wrenn but had not met Kerr before that morning.   There is much testimony describing the ride together in Kerr's car before the robbery.   Kerr was driving.   They were all drinking wine, consuming as much as a gallon of wine.   They stopped at two liquor stores for wine, snacks, beer, vodka and orange juice.

Following the pursuit, Kerr stayed with the car;  he did not flee the car which was surrounded by curious civilian onlookers.   He took the empty wine jug (gallon) out of the car and carried it across the street, putting it into a supermarket shopping cart.   He appeared to be intoxicated according to several witnesses' statements.   His speech was slurred.   He spent much of the time before his arrest at the scene looking for his keys in and under the car seat.  (A civilian had reached over in front of him and had taken the car keys out to prevent any further driving of the car.)

We examine (infra, see II) in greater detail the extent and nature of Kerr's drinking and its effect upon him and its required evidentiary presence in the trial of this case.  (CALJIC No. 4.21.) 2  The Attorney General contends sua sponte instructions on the subject of voluntary intoxication were not required because there is “insubstantial evidence of intoxication.”

DISCUSSION

I

Kerr contends it was reversible error for the trial court to fail sua sponte to instruct (CALJIC No. 4.21) relating voluntary intoxication to the intent required for the crime of robbery.   This contention is correct insofar as it pertains to the crime of robbery (count 1), for robbery is a specific intent crime.  (See People v. Page, 104 Cal.App.3d 569, 575, 163 Cal.Rptr. 839;  People v. Hamilton, 80 Cal.App.3d 124, 125, 145 Cal.Rptr. 429.)   And the trial court properly instructed as to the specific intent required for this crime.

Concerning the relationship of voluntary intoxication to a specific intent crime, the Supreme Court declared (People v. Hood, 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370)

“The distinction between specific and general intent crimes evolved as a judicial response to the problem of the intoxicated offender.   That problem is to reconcile two competing theories of what is just in the treatment of those who commit crimes while intoxicated.   On the one hand, the moral culpability of a drunken criminal is frequently less than that of a sober person effecting a like injury.   On the other hand, it is commonly felt that a person who voluntarily gets drunk and while in that state commits a crime should not escape the consequences.”  (Id. at p. 455, 82 Cal.Rptr. 618, 462 P.2d 370.)

 Hood holds the trial court must instruct the jury on the general principles of law relevant to the issues raised by the evidence, even when not requested to do so.   General principles are those principles closely and openly connected with the facts before the court which are necessary for the jury's understanding of the case.  (People v. Wade, 53 Cal.2d 322, 334, 1 Cal.Rptr. 683, 348 P.2d 116;  People v. Wilson, 66 Cal.2d 749, 759, 59 Cal.Rptr. 156, 427 P.2d 820;  People v. Saldana, 157 Cal.App.3d 443, 453, 204 Cal.Rptr. 465.)

 Furthermore, “a defendant has a constitutional right to have the jury determine every material issue presented by the evidence;  ․”  (People v. Sedeno, 10 Cal.3d 703, 720, 112 Cal.Rptr. 1, 518 P.2d 913.)   A trial court is required to instruct the jury on these general principles of law relevant to the issue raised by the evidence, even where counsel has failed to make a request for the instructions.  (People v. St. Martin, 1 Cal.3d 524, 531, 83 Cal.Rptr. 166, 463 P.2d 390.)   The purpose of the instructions is to insure that the jury is sufficiently informed of the law in order to arrive at a just and fair verdict.   A material element of the crime of robbery can be negated by proof of the inability of the defendant to form the required intent due to voluntary intoxication.  (People v. Hood, supra, 1 Cal.3d 444, 455–457, 82 Cal.Rptr. 618, 462 P.2d 370;  People v. Vasquez, 29 Cal.App.3d 81, 87, 105 Cal.Rptr. 181.)

If the defendant requests an instruction, where there is “any evidence on that issue deserving of any consideration whatsoever, that failure to so instruct on every material question presented by the evidence is error [citation]․”  (Id. at p. 88, 105 Cal.Rptr. 181;  People v. Tidwell, 3 Cal.3d 82, 86, 89 Cal.Rptr. 58, 473 P.2d 762.)  “[A]nd the error, harmless or not, is prejudicial per se since [the defendant] is thereby denied a jury trial on all the issues presented by the evidence.”  (Id. at pp. 86–87, 89 Cal.Rptr. 58, 473 P.2d 762;  People v. Mosher, 1 Cal.3d 379, 390–391, 82 Cal.Rptr. 379, 461 P.2d 659;  People v. Frierson, 25 Cal.3d 142, 155, 158 Cal.Rptr. 281, 599 P.2d 587;  People v. Vasquez, supra, 29 Cal.App.3d 81, 88, 105 Cal.Rptr. 181.)   Even where there is conflicting evidence on an issue, the law requires “[h]owever incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.”  (People v. Modesto, 59 Cal.2d 722, 729, 31 Cal.Rptr. 225, 382 P.2d 33, quoting People v. Carmen, 36 Cal.2d 768, 772–773, 228 P.2d 281 (italics omitted);  People v. Stevenson, 79 Cal.App.3d 976, 985, 145 Cal.Rptr. 301.)

 Mere evidence a defendant consumed some alcohol prior to the commission of the crime without evidence showing the effect of the alcohol on him is not sufficient to warrant an instruction on diminished capacity—even when requested by the defendant.  (People v. Bandhauer, 66 Cal.2d 524, 528, 58 Cal.Rptr. 332, 426 P.2d 900.)  People v. Mills, 73 Cal.App.3d 539, 544, 140 Cal.Rptr. 803, held there was no sua sponte duty on the trial court to instruct on the basis of the proverbial “couple of beers.”

II

The People contend there was no evidence of drinking, that it was “insubstantial.”   A look at the record negates this contention.   Before evidence regarding Kerr's intoxication was presented to the jury, the fact that the defense was relying upon intoxication was first raised during voir dire of prospective jurors and then in later arguments to the court and the jury.

Evidence of Kerr's intoxication came from several sources.   There was evidence from the two passengers in Kerr's car concerning the purchase of a gallon bottle of wine and the drinking of it while driving.   The bottle was empty when Kerr carried it away from the car.   There was also evidence beer and a bottle of vodka were also purchased.   Kerr mixed the vodka with orange juice and drank it while he drove.   One of the passengers in the car—before the robbery occurred—questioned Kerr's capacity to drive.   Kerr responded he was fully capable to drive.   Thereafter the imbibers procured additional alcoholic beverages from two liquor stores.

One of the riders in the car testified he drank so much that when he was running, seeking to escape, “the alcohol ․ was bubbling in my stomach, ․”  One witness-rider in the car told the district attorney:  “[Kerr] was very drunk as he was sitting in the car in that lot.”   When questioned further he answered:

“A I said he was pretty drunk.

“Q Didn't you in fact say that the time that you saw that Mr. Littleton got out of the car and got back in he was nodding off, his head was down against the window;  didn't you say that?

“A I didn't say he was nodding off.   I ․ said he was like, you know, dizzy.”

The evidence is uncontradicted the gallon bottle of wine was empty.   Also in evidence is Kerr's strange actions in regards to the empty bottle.   He took it from the car in the presence of many hostile witnesses, carried it across the street and placed it in a supermarket shopping cart.

The most significant evidence of the effect of the drinking on Kerr came from an independent witness, Mrs. Olson, the friend of the victim.

“Q Now, this attorney had asked you if Mr. Kerr, who is sitting next to me, appeared to you to have been drinking, and you said yes.

“A Yes ma'am.

“Q In fact, he appeared to you to be intoxicated, did he not?

“A Well, he wasn't rolling all over.   He had been drinking.   I could tell he had been drinking.

“Q But did he appear to you to be intoxicated?

“A Yes, ma'am.

“Q Was his speech slurred?

“A Yes ma'am.”

Not only was the intent to use the defense of intoxication raised in argument before the taking of evidence, but evidence was later introduced on the subject.   The question was argued at length as to the degree of Kerr's intoxication and his inability to think clearly.   During closing argument, for example, defense counsel centered her argument about the evidence that Kerr was intoxicated;  that he did not know that Littleton was going to rob Ms. Stevens.   Defense counsel argued because of the heavy drinking when Littleton returned to the car after mugging the elderly lady, Kerr did not know what he was doing and therefore could not have been an aider and abettor in Littleton's robbery.   It is true that defense counsel did not frame her argument in terms of a strict legal defense of intoxication to negate specific intent to deprive the owner of the property.   However, her argument was in substance that Kerr was too intoxicated to know what was going on.   Defense counsel argued Kerr did not have the intent to aid and abet Littleton's criminal activity or the intent necessary to commit robbery.

In the context of defense counsel seeking to argue to the jury in closing argument that the inferences of drunkenness could be drawn from the empty gallon bottle and from witnesses Wrenn and Littleton, the district attorney objected.   In this context the court stated:

“I need to go back to what the specific objection was, ․  There has been an awful lot of talk about how much drinking the man had been doing and the—

“Ms. Roeser:  That's true.

“Mr. Blair:  You said he drank for two hours.   There is no evidence on that.

“The Court:  Or that he pulled on the lot and he drank.

“Ms. Roeser:  There was evidence on that.

“The Court:  They parked in the lot, and he drank, and then they went on.

“Ms. Roeser:  Well, yeah.   There was testimony.

“Mr. Nageotte:  They described two liquor stores.

“The Court:  Yes, yes.   Okay.

“Ms. Roeser:  That there was drinking going on while he was driving.   Wrenn testified to that.   They both testified they parked on the lot and rank [sic] and then parked on a second lot.   And Wrenn didn't say he drank.”

After this dialogue the court refused to allow defense counsel to argue the evidence showing Kerr was drunk.   The court stated:  “You're getting beyond the bounds.”

The record before us shows there was testimony to the effect that Kerr was drunk;  his actions were most unusual;  his speech was slurred.   This is more than a mere showing that the defendant had consumed some alcohol prior to the commission of the crime.   There was clear evidence showing the effect of the alcohol on him;  effects so dramatic to cause a rider to question his ability to drive the car;  effects sufficient to cause an independent witness to say his speech was slurred and to describe Kerr's strange actions after the car keys were taken from the car.   It could reasonably be inferred Kerr did not realize what had happened.   His placing an empty gallon wine bottle in a supermarket shopping cart is most strange behavior in the context of his car surrounded by unfriendly onlookers.

III

People v. Vasquez, supra, 29 Cal.App.3d 81, 88, 105 Cal.Rptr. 181, held even when there is conflicting evidence the law nevertheless requires that “[h]owever incredible the testimony ․ may be he is entitled to an instruction based upon the hypothesis that it is entirely true.”  (People v. Modesto, supra, 59 Cal.2d 722, 729, 31 Cal.Rptr. 225, 382 P.2d 33, quoting People v. Carmen, 36 Cal.2d 768, 772–773, 228 P.2d 281 (italics omitted).)   In the case of People v. Vasquez, supra, evidence of intoxication consisted of the defendant's testimony he was high.   Conflicting and contradicting evidence came from another witness.   The court there held the defendant had introduced evidence of intoxication worthy of consideration as to require an instruction on diminished capacity due to voluntary intoxication.   While diminished capacity is no longer available as a defense, an instruction is required based upon the showing the crime charged is a specific intent crime.

In People v. Stevenson, supra, 79 Cal.App.3d 976, 145 Cal.Rptr. 301, a witness called by the People testified to the defendant's drinking scotch whiskey and its intoxicating effect on him before the crime.   She saw the defendant drink quite a bit from a fifth of Johnny Walker red label.   When the defendant and others left they “were all jolly.”   The witness noticed that when the defendant returned, “ ‘he looked like he had been drinking’ and also looked sort of ‘like he was kind of under the influence of a little alcohol.’ ”  (Id. at p. 982, 145 Cal.Rptr. 301.)  Stevenson held this sufficient to warrant the giving of CALJIC No. 4.21.

This is not a case where there is just “any evidence.”   There is a plethora of testimony and circumstances much without contradiction indicating Kerr drank a great deal before the robbery and was intoxicated.   The contentions by defense counsel throughout the proceeding, as well as from the evidence before the jury, leave no doubt but this defendant was relying upon the defense of intoxication.

 The trial court on its own motion was required to instruct the jury on the effect of intoxication on crimes requiring specific intent where evidence of intoxication raises a factual issue.  (People v. Baker, 42 Cal.2d 550, 572–573, 576, 268 P.2d 705;  People v. Arriola, 164 Cal.App.2d 430, 434–435, 330 P.2d 683.)   Here the evidence of intoxication was substantial and such instruction was necessary.  (People v. Robinson, 5 Cal.App.3d 43, 48, 84 Cal.Rptr. 796.)   The court erred in failing to give the instruction sua sponte.

IV

Kerr next contends his intoxication affected his intent to aid and abet and the court's failure to give CALJIC No. 4.21 in this context was also erroneous.   Section 22, subdivision (b), authorizes the admission of voluntary intoxication evidence “ ․ solely on the issue of whether or not the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.”   Here, Kerr was charged with robbery and assault with a deadly weapon by means likely to produce great bodily injury and was prosecuted on the theory he aided and abetted these crimes.   The resolution of Kerr's contention must therefore turn on whether the requisite mental state for aiding and abetting falls within the scope of section 22.   We believe it does.

 The aider and abettor facilitates crime, and for this he or she is held derivatively culpable for the perpetrator's criminal acts and receives identical punishment.   Aiding and abetting culpability is predicated on the concurrence of a prohibited act and a proscribed criminal intent.   Thus, the aider and abettor must act to assist the perpetrator of a crime and must do so “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.”  (People v. Beeman, 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)   Given the nature of aiding and abetting, any technical distinction between it and a substantive crime is a distinction without a difference in regard to application of section 22.   Indeed, we find nothing in logic or precedent which precludes considering voluntary intoxication evidence to determine if an aider and abettor actually formed the intent to aid and abet.   This conclusion, of course, assumes the requisite mental state for aiding and abetting is a specific intent.

Few concepts in criminal law have been as confusing and confused as the distinction between general and specific intent.  (People v. Daniels, 14 Cal.3d 857, 860, 122 Cal.Rptr. 872, 537 P.2d 1232;  see generally Comment, Rethinking the Specific-General Intent Doctrine in California Criminal Law (1975) 63 Cal.L.Rev. 1352.)   In People v. Hood, supra, 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370, Chief Justice Traynor hazarded a distinction which has endured:

“When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act.   This intention is deemed to be a general criminal intent.   When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.”  (Id. at pp. 456–457, 82 Cal.Rptr. 618, 462 P.2d 370;  accord People v. Daniels, supra, 14 Cal.3d at p. 860, 122 Cal.Rptr. 872, 537 P.2d 1232.)

 To be found derivatively culpable for a perpetrator's conduct, the aider and abettor, as previously stated, must knowingly assist or encourage the perpetrator with the intent of either committing or facilitating the commission of the underlying offense.   Thus, the aider and abettor must intend the proscribed aiding act and further intend the underlying offense be facilitated or committed.  (People v. Beeman, supra, 35 Cal.3d at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)   Applying the Hood analysis, the requisite intent to aid and abet is best seen as a specific intent.   This conclusion is consistent with cases in which a would-be accomplice knowingly aided a perpetrator's criminal purpose, but was nevertheless found not guilty of aiding and abetting the resulting crime.   For example, in People v. Bolanger, 71 Cal. 17, 11 Pac. 799, a case approvingly cited in Beeman, an alleged accomplice testified he intended to participate in the underlying theft, but did so not to facilitate the crime, but to detect the thieves.   The Supreme Court held the feigned accomplice did not, and indeed could not, share the perpetrator's criminal intent and therefore did not aid and abet.  (People v. Bolanger, supra, 71 Cal. at p. 20, 11 Pac. 799;  see People v. Rogers, 172 Cal.App.3d 502, 512–513, 217 Cal.Rptr. 809.)

That voluntary intoxication evidence is material in determining whether Kerr actually formed a requisite specific intent to aid and abet also finds some precedential support.   The Court of Appeal in People v. Vasquez, supra, 29 Cal.App.3d 81, 105 Cal.Rptr. 181, determined, without much analysis, the defendant aider and abettor was entitled to a voluntary intoxication defense instruction.   However, the Vasquez court focused on a diminished capacity defense and reached its decision when section 22 had an arguably broader reach than it currently does under its latest amendment.   More recently, this court in People v. Minichilli, 161 Cal.App.3d 660, 207 Cal.Rptr. 766, concluded, again without detailed analysis, the jury was misinstructed when the intent requirement was omitted from the standard aiding and abetting instructions and thereby “deprived [the defendant] of her right to have the jury consider the effect of intoxication upon the ‘intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’  [Citation.]”  (Id. at p. 671, 207 Cal.Rptr. 766;  but see People v. Herrera, 6 Cal.App.3d 846, 852–854, 86 Cal.Rptr. 165.)   Moreover, other state courts, faced with similar aiding and abetting definitions and evidence of voluntary intoxication, have resolved the instruction question much as we do today.   For example, the Kansas Supreme Court in State v. McDaniel (1980) 228 Kan. 172, 612 P.2d 1231, concluded:

“When, as here, the evidence indicates [the defendant] can only be found guilty of aggravated robbery as an aider and abettor, his specific intent is an issue, and voluntary intoxication may indicate an absence of the required intent and be a defense.”  (Id., 612 P.2d at p. 1238.)

(See also State v. Hoffer (Iowa 1986) 383 N.W.2d 543, 547;  State v. White (S.D.1978) 269 N.W.2d 781, 784;  but see People v. Karst (1984) 138 Mich.App. 413, 360 N.W.2d 206, 207–208.)

 Whether charged as a principal or an aider and abettor to the robbery and assault, Kerr was entitled to have the CALJIC No. 4.21 instruction given sua sponte.3

V

 It is next contended that Kerr cannot be convicted of receiving stolen property and robbery of the same property.   The People agree.   The rule is well settled a defendant may not be convicted of theft and of receiving, withholding or concealing the same property based upon the same act.  (People v. Jaramillo, 16 Cal.3d 752, 757–759, 129 Cal.Rptr. 306, 548 P.2d 706.)   The trial court had the duty to instruct the jury sua sponte that they could not find defendant guilty of receiving from himself the property stolen during the commission of the robbery.  (People v. Perez, 40 Cal.App.3d 795, 800, 115 Cal.Rptr. 405.)   The trial court erred in failing to comply with these requirements;  however, reversal is not required as to the robbery charge.   Prosecution's case clearly established if the requisite intent was present Kerr was an aider and abettor in the robbery.   He was the lookout man and the get-away driver in the classic sense (if sober enough to form the specific intent).   He let Littleton out of the car then pulled the car a bit ahead of the two walking ladies.   With the engine running and the passenger door open, he was there as the robbery went down behind him.   As soon as Littleton took the purse and ran to the car, the car sped away, door not yet closed, fishtailing, tires squealing.   The victim's purse was found in the car.   Under these facts, the receiving stolen property conviction only would require reversal.   Upon a retrial, if any, such appropriate instructions should be given to the jury.

VI

Finally, defendant contends that the jury was improperly instructed when defining “in the commission of the crime,” and that this blurred the distinction between guilt as a principal on aiding and abetting theory and guilt as an accessory after the fact.   In this case, a modification of the aiding and abetting definition was requested by the prosecution and opposed by defense counsel.   These charges instructed the jury that the term “ ‘in the commission of the crime’ as used in these instructions means at any time from the commencement of the crime to and including the time when the perpetrator has completed his escape to a place of temporary safety.”   Kerr contends this definition, as applied to an aider and abettor to a robbery, is legally deficient.

 There is no question that a robbery continues until the defendant reaches a place of temporary safety.  (See People v. Bigelow, 37 Cal.3d 731, 753, 209 Cal.Rptr. 328, 691 P.2d 994;  People v. Fields, 35 Cal.3d 329, 365, 197 Cal.Rptr. 803, 673 P.2d 680.)   Once the defendant has reached the place of temporary safety, the robbery is at an end.  (People v. Bigelow, supra, 37 Cal.3d 731, 753–754, 209 Cal.Rptr. 328, 691 P.2d 994.)   In People v. Jardine, 116 Cal.App.3d 907, 172 Cal.Rptr. 408, the court held “since a robbery is a continuing crime which is not completed until the robbers reach a place of temporary safety, [a defendant's] assistance in the escape was necessarily a participation in the robbery.”  (Id. at p. 919, 172 Cal.Rptr. 408.)   With regard to the element of prior knowledge on the part of the aider and abettor, the court stated “ ․ knowledge that a robbery is in progress is ‘prior knowledge’ when a person joins in completing that offense by aiding the escape.”  (Id. at p. 920, 172 Cal.Rptr. 408.)   The jury could have found defendant guilty either of a principal under the aiding and abetting theory or as an accessory after the fact based upon the instruction defining robbery.

 It may be conceded (as does defendant), robbery is a continuing offense.   This rule, however, does not apply to an assault with a deadly weapon or receiving stolen property.   Here the primary purpose of Littleton was to commit a robbery.   The pushing of the elderly lady was merely a means to accomplish the robbery and was therefore not divisible from it.   An assault is divisible when it is not the means of perpetrating the robbery, such as an act which follows after the robbery is completed.  (See People v. Hopkins, 44 Cal.App.3d 669, 119 Cal.Rptr. 61.)   There was no error in giving the criticized instruction.   Judgment is reversed.

FOOTNOTES

FOOTNOTE.  

1.   All statutory references are to the Penal Code unless otherwise specified.

2.   CALJIC No. 4.21 revised to reflect the changes as required as a result of Senate Bill No. 54 now reads:  “In the crime of which the defendant is accused [in Count _ of the information], a necessary element is the existence in the mind of the defendant of the [specific intent to _] [mental state of _].  [¶ ] If the evidence shows that the defendant was intoxicated at the time of the alleged offense, the jury should consider his state of intoxication in determining if defendant had such [specific intent] [mental state].  [¶ ] If from all the evidence you have a reasonable doubt whether defendant formed such [specific intent] [mental intent], you must give the defendant the benefit of that doubt and find that he did not have such [specific intent] [mental state].”

3.   We emphasize our conclusion is based on an analysis of Kerr's intent as an aider and abettor.   That the underlying crimes respectively required a specific and general intent is immaterial.   As one noted commentator explained:“It is important to observe that the intention requirement is independent of the mens rea requirement for the underlying crime.   The latter requirement means that to be liable as an accomplice in the crime committed by the principal, the secondary party must act with the mens rea required by the definition of the principal's crime.   Thus, if the principal commits larceny by taking another's property with the required intention of permanently depriving its owner of it without consent or claim of right, the secondary party cannot be held as an accomplice unless he influenced or helped the principal intending (or knowing) that the principal would so deprive another of his property.   If he believed the principal had a rightful claim to the property, for example, he could not be held for larceny.“It might seem, therefore, that the requirement that the secondary party act intentionally to influence or assist the principal is a consequence of the mens rea requirement of the substantive crime.   This view appears plausible, however, only when we focus on cases where the mens rea of the underlying crime is knowledge or purpose.   But consider the case ․ where recklessness satisfies the requirement for the underlying crime.   In lending his car keys to [an] inebriated person, the lender [acts] recklessly, and that is all that is required for the crime of manslaughter committed by the driver.   Yet the lender's recklessness about the likelihood that the driver would drive the car in the wrong direction is not enough to make him an accomplice.   The lender must have intended the very acts that gave rise to the liability.   It may be seen, therefore, that the intentionality requirement is not the same as the mens rea requirement․”  (Kadish, Complicity, Cause and Blame:  A Study in the Interpretation of Doctrine (1985) 73 Cal.L.Rev. 323, 349, fns. omitted.)

STANIFORTH, Associate Justice.* FN* Associate Justice of the Court of Appeals assigned by the Chairperson of the Judicial Council.

KREMER, P.J., and BENKE, J.**, concur.