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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Clarence MITCHELL, Jr., Defendant and Appellant.


Decided: February 19, 1985

Phillip I. Bronson, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Carol Slater Frederick and David F. Glassman, Deputy Attys. Gen., for plaintiff and respondent.

Defendant Clarence Mitchell, Jr. appeals from judgment entered on a jury verdict of guilty of robbery (Pen.Code, § 211) with a prior felony conviction.1  He contends there was insufficient evidence to sustain his conviction and that the jury was improperly instructed as to the intent necessary for aiding and abetting.



After a lucky night at Hollywood Park race track, Joseph Araman cashed in his final winning ticket, pulled his money from his pocket and counted $3,000.   Returning the money to his pocket, he proceeded to the down escalator at the entrance to which he noticed a group of four males, including Mitchell, and a female talking together.   Just before he entered the escalator, the female stepped in front of him onto the escalator;  two of the men got on the escalator on the step directly behind him, and Mitchell and the remaining man stood two steps behind him.   At the bottom of the escalator the woman dropped her open purse onto the floor then turned to pick up her belongings blocking the exit from the escalator.   Araman was unable to move whereupon the two men directly behind him took his arms by force;  the man on the left put his hand in Araman's pocket and pulled out the money, and Araman's ring was removed from his finger.   The victim attempted to recover his money from one of the men, saying “You stole my money.   I want my money, $3,000”;  the woman moved to the right, and all four men fled to the left.   Araman shouted at the woman, accusing her of being a part of the group who stole his money;  she screamed back and a security guard, alerted by the commotion, took them both to the police substation at the track.   Meanwhile, an off-duty track employee standing behind the four men on the escalator, saw the robbery and followed the men as they ran through the main gate toward a car in the parking lot;  he alerted a security officer who observed the men run to the vehicle and enter it.   When the engine was started, the officer blocked the vehicle and ordered the occupants to turn off the ignition.   He approached and observed defendant Mitchell in the driver's seat and three other males in the car.   He ordered the men out of the car, detained and then arrested them.   The security officer searched the vehicle and recovered $3,000.

Defendant did not testify at trial.   Codefendant Hill, after pleading guilty to the robbery, testified for the defense that defendant was not present on the escalator and did not participate in the theft from Araman;  that defendant Mitchell's only involvement in the incident occurred several minutes later outside the terminal when he (Hill) and the other two robbers offered him money to give them a ride into town;  and that defendant agreed to drive them and was apprehended in his vehicle in which they all were seated.



 Appellant contends that the evidence is insufficient to show that he aided and abetted the robbery.   Whether a person has aided and abetted in the commission of a crime is ordinarily a question of fact, and on appeal all conflicts in the evidence and reasonable inferences therefrom must be resolved in favor of the judgment.  (In re Jessie L. (1982) 131 Cal.App.3d 202, 217, 182 Cal.Rptr. 396;  In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094, 126 Cal.Rptr. 898.)   Among the factors which may be considered in making the determination of aiding and abetting are:  presence at the scene of the crime, companionship, conduct before and after the offense and flight.  (People v. Chagolla (1983) 144 Cal.App.3d 422, 429, 193 Cal.Rptr. 711;  In re Jessie L., supra, 131 Cal.App.3d 202, 217, 182 Cal.Rptr. 396;  People v. McDaniels (1980) 107 Cal.App.3d 898, 904, 166 Cal.Rptr. 12;  In re Lynette G., supra, 54 Cal.App.3d 1087, 1094–1095, 126 Cal.Rptr. 898.)   Although mere presence at the scene of the crime is not sufficient to make an accused a participant, his presence and his failure to attempt to prevent the commission of the crime are circumstances which may be considered by the jury in passing on his guilt or innocence.  (In re David K. (1978) 79 Cal.App.3d 992, 998, 145 Cal.Rptr. 349;  see also People v. Jones (1980) 108 Cal.App.3d 9, 15, 166 Cal.Rptr. 131.)

 Our review of the record reveals all of the probative factors to be present in this case.   Defendant was identified at trial by the victim as one of the group of four men talking with a woman near the escalator;  when the woman got on the escalator in front of the victim and the four males got on just behind him, defendant remained with his companions as two of them directly in front of him took the victim's money and ring;  defendant fled in the same direction as did his companions, to his car;  defendant entered the driver's side and started the engine at which time the security officer detained the men;  $3,000 was found in the vehicle.   Defendant was present at the scene of the crime;  he was in the company of the actual perpetrators of the crime prior to its commission, during its commission and during the attempted escape.   He took no steps to attempt to prevent the commission of the crime and fled immediately following the theft.   This evidence is probative of his role as an aider and abettor.  (People v. Jones, supra, 108 Cal.App.3d 9, 15, 166 Cal.Rptr. 131.)

 “[T]he weight of authority and sound law require proof that an aider and abettor 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.”  (People v. Beeman (1984) 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318;  original emphasis.)   Whether or not defendant knew of the scheme or plan to commit the robbery before the taking occurred, it is reasonable to infer he had knowledge of the criminal purpose of the perpetrators from evidence of his position immediately behind them during the actual taking, especially since the victim turned and verbally accused one of the men of stealing his money.   As to the requirement of intent, proof of an aider and abettor's intent may be adduced by way of an inference from his volitional acts with knowledge of their probable consequences.  (People v. Beeman, supra, 35 Cal.3d 547, 559–560, 199 Cal.Rptr. 60, 674 P.2d 1318.)   Such an inference finds support in the present case in defendant's subsequent act of starting the car in preparation to leave the scene of the crime with the perpetrators as his passengers and the loot in his car.   Since a robbery is a continuing crime which is not completed until the robbers reach a place of temporary safety, evidence of defendant's assistance in the escape supports the conclusion that he was a participant in the robbery.  (People v. Jardine (1981) 116 Cal.App.3d 907, 919, 172 Cal.Rptr. 408.)

 In reviewing a criminal conviction challenged as lacking evidentiary support, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)   Our examination of the record in accordance with these principles leads to the conclusion that substantial evidence supports the conviction, that is, that a reasonable trier of fact could find defendant guilty beyond a reasonable doubt.



 Appellant contends that the jury instructions on aiding and abetting were defective as they failed to indicate intent as an element of the offense of aiding and abetting, and that such instructional error requires reversal.   Subsequent to the trial in this case, the Supreme Court in People v. Beeman, supra, 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318,2 held that CALJIC 3.01 inadequately defines aiding and abetting because it fails to insure that an aider and abettor will be found to have the required mental state with regard to his or her own act.   In People v. Caldwell (1984) 36 Cal.3d 210, 203 Cal.Rptr. 433, 681 P.2d 274, the Supreme Court held that CALJIC 3.00 is also defective for failing to reflect the intent requirement of an aider and abettor.

 The jury in the present case was instructed on aiding and abetting (CALJIC 3.00 [1981 rev.] ) as follows:  “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:  [¶] 1.   Those who directly and actively commit the act constituting the crime, or [¶] 2.   Those who, with knowledge of the unlawful purpose of the person who directly and actively commits the crime, aid and abet in its commission [or] [¶] 3.   Those who, whether present or not at the commission of the crime, advise and encourage its commission.”   The jury was also instructed (CALJIC 3.01 [1980 rev.] ):  “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 failure to prevent it does not amount to aiding and abetting.”   Both instructions suffer from the defect highlighted in Beeman and Caldwell in failing to inform the jury of the requisite intent for an aider and abettor.   The instructions as given were clearly erroneous under these authorities.



 Less clear, however, is whether the instructional error was prejudicial.   Our Supreme Court in Beeman found prejudicial error in the instructional defect under the most lenient Watson standard (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243) and thus expressly declined to decide whether failure to correctly instruct on the element of criminal intent should as a general rule be reviewed under a stricter rule of harmless error.  (People v. Beeman, supra, 35 Cal.3d 547, 563, 199 Cal.Rptr. 60, 674 P.2d 1318.)   The court also found it unnecessary to set forth the standard for reversible error in Caldwell, inasmuch as the jury had been properly instructed on the issue of intent under the instruction given on duress.   However, the high court has provided us with guidance in its recent opinion in People v. Garcia (1984) 36 Cal.3d 539, 549–551, 205 Cal.Rptr. 265, 684 P.2d 826, in which the standard of prejudice was addressed in the context of the failure to instruct the jury on intent as an element for a finding of special circumstances.   The court concluded that this issue is controlled by a line of United States Supreme Court decisions beginning with In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, and continuing through Sandstrom v. Montana (1979) 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, and Connecticut v. Johnson (1983) 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823:  “The United States Supreme Court decisions make it clear that when intent is an element of a crime, an instruction directing the jury to find or conclusively presume intent denies due process, regardless of the weight of the evidence.   An instruction putting the burden of proof on the defendant is equally infirm.   The reasoning of the opinions, however, goes beyond inquiry into presumptions, burdens of proof, and other procedural analogs to a directed verdict.   That reasoning would invalidate any instruction or failure to instruct which would permit the state to circumvent the requirement that it prove every fact necessary for conviction beyond a reasonable doubt.  (See In re Winship, supra, 397 U.S. 358, 364, [90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375].)  Thus a failure to instruct on the element of intent, because it would permit the jury to find guilt without proof of intent beyond a reasonable doubt, would constitute a denial of due process.”  (36 Cal.3d at 551, 205 Cal.Rptr. 265, 684 P.2d 826.)   On this basis, the court concluded that a jury instruction which takes an issue completely from the jury, either by conclusive presumption, shifting of the burden of persuasion, or failure to submit the issue to the jury, denies a defendant the right to jury trial on the element of the charge, and is reversible per se.  (Garcia, supra, at p. 554, 205 Cal.Rptr. 265, 684 P.2d 826.)

Although our case involves an instruction regarding intent as an aider and abettor, and Garcia involves intent for a finding of special circumstances, the application of the standard of prejudice to our case is made clear by the court's footnote in Garcia referring to its Beeman decision:  “We observed [in Beeman ] that although the error arising from the failure to require intent is not identical to a conclusive presumption or to placing the burden of persuasion on the defendant [citing Connecticut v. Johnson ], it is just as effective—if not more effective—in removing the issue of intent from the jury's consideration.”  (Garcia, supra, at p. 554, fn. 9, 205 Cal.Rptr. 265, 684 P.2d 826.)   Inasmuch as the effect of the error is just as much a denial of the constitutional right to due process as the error in Garcia, we conclude that we are also bound by the conclusion in Garcia that such error is reversible per se.

The standard for reversal in Garcia was based solely on federal authority (Garcia, supra, at p. 555, fn. 10, 205 Cal.Rptr. 265, 684 P.2d 826).  However, a number of California cases, not based on federal authority, have held that failure to instruct on the elements of a crime, a lesser included offense, or an affirmative defense, constitutes a denial of the constitutional right to jury trial, resulting in prejudice per se.  (People v. Mayberry (1975) 15 Cal.3d 143, 157–158, 125 Cal.Rptr. 745, 542 P.2d 1337;  People v. Sedeno (1974) 10 Cal.3d 703, 720, 112 Cal.Rptr. 1, 518 P.2d 913;  People v. Modesto (1963) 59 Cal.2d 722, 730, 31 Cal.Rptr. 225, 382 P.2d 33.)   The instructional error before us would yield the same result under either authority.

Respondent urges that this error could not have violated appellant's right to due process because the question of his intent was not at issue in this case.   This position is without merit.   Codefendant Rickey Earl Hill, after pleading guilty to the robbery, testified for defendant that he (Hill), Bailey and Johnson robbed the victim and that defendant was not there and was in no way involved at that time.   According to Hill, the three robbers first saw defendant several minutes later outside the building when they offered him some money to give them a ride into town.   The evidence is conflicting as to defendant's presence with the three others during the taking, and there is no evidence that he took either the money or the ring from the victim, or that he in any other way participated in the actual taking;  the evidence is uncontradicted that defendant was the driver of the car in which the three other participants attempted to escape.   The trier of fact may have convicted him solely on the evidence of his participation in the parking lot.   Thus an essential point of the defense is that although by driving the car defendant acted in a way which in fact aided the criminal enterprise, he did not act with the intent of encouraging or facilitating the planning or commission of the offense.  (See People v. Beeman, supra, 35 Cal.3d at p. 562, 199 Cal.Rptr. 60, 674 P.2d 1318.)   Despite the weakness of the defense testimony, it nevertheless raised a legitimate issue as to defendant's intent as an aider and abettor.   The removal of this factual question from the consideration of the jury by failure to instruct on the element of intent deprived defendant of his constitutional right to due process of law.   Under the compulsion of People v. Garcia, 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826, we reverse the judgment.


Judgment is reversed and the cause is remanded for a retrial in accordance with the views expressed herein.


1.   Four codefendants were charged with robbery with defendant Mitchell;  they are not parties to this appeal.

2.   The decision in People v. Beeman was issued after appellant's trial.   The Beeman decision resolved conflicting lower court opinions (e.g. People v. Yarber (1979) 90 Cal.App.3d 895, 153 Cal.Rptr. 875;  People v. Ott (1978) 84 Cal.App.3d 118, 148 Cal.Rptr. 479), it did not establish a new rule or standard.   Thus we give the opinion retroactive application.  (People v. Gilman (1984) 156 Cal.App.3d 760, 764–765, 203 Cal.Rptr. 6;  see also People v. Caldwell (1984) 36 Cal.3d 210, 203 Cal.Rptr. 433, 681 P.2d 274, in which, without discussion, Beeman was applied retroactively.)

LILLIE, Presiding Justice.

THOMPSON and JOHNSON, JJ., concur.

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