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

PEOPLE of the State of California, Plaintiff and Respondent, v. Harry Earl COOKS, Defendant and Appellant.


Decided: August 14, 1985

John K. Van de Kamp, Atty. Gen., Ronald E. Niver and Christopher J. Wei, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. Jaime A. Alcabes and Alameda County Bar Assoc., Oakland, for defendant and appellant.

A jury found defendant Cooks guilty of first degree murder, and of robbery.   He appeals from the judgment which was entered on the jury's verdicts.

We find no merit in the appeal and affirm the judgment;  our reasons follow.

No contention is made by Cooks that the jury's verdicts were unsupported by substantial evidence of his guilt of the charged crimes.

 Instead his only contention is that:  “The court's instructions on aiding and abetting were erroneous and require reversal.”

The trial's evidence tended to establish that Cooks was a member of a group of several persons, one or more of which directly committed the act of murder, and the rest of which aided and abetted in its commission.   Cooks' attorney requested the trial court to give the standard CALJIC instructions 3.00 and 3.01 on “aiding and abetting.”   The court agreed, but undoubtedly influenced by People v. Yarber (1979) 90 Cal.App.3d 895, 153 Cal.Rptr. 875, and out of an abundance of caution, added thereto the words “intentionally” to those instructions, in the manner we now quote and emphasize:

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

“Two, those who, with knowledge of the unlawful purpose of the one who does directly and actively commit or attempt to commit the crime, INTENTIONALLY aid and abet in its commission or attempted commission:  or

“Three, those who whether present or not at the commission or attempted commission of the crime, advise and encourage its commission or attempted commission.

“A person aids and abets the commission of a crime if with knowledge of the unlawful purpose of the perpetrator of the crime, he INTENTIONALLY aids, promotes, encourages or instigates by act or advice the commission of such crime.”

It will be seen that the jury were instructed that one who “with knowledge of the unlawful purpose ” of the criminal act, “intentionally aids, promotes, encourages or instigates” its commission, is liable therefore as an aider and abettor.

Following Cooks' trial, and the jury's verdicts, the state's high court decided People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318.  Beeman, as had Yarber, faulted CALJIC 3.00 and 3.01.  Beeman followed Yarber generally, holding that to be an aider and abettor, one must “act 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.”

We find the instructions here given by the trial court to be in compliance with the holding of Beeman.   The trial court did not err.

 And we find it to be of no consequence that Beeman “suggested ” an “appropriate” instruction in slightly different language.   It is adequate if the jury be properly instructed on the subject, regardless of the wordage used.

The judgment is affirmed.

ELKINGTON, Associate Justice.

RACANELLI, P.J., and HOLMDAHL, J., concur.