PEOPLE v. LOUD

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Dana Maurice LOUD, Defendant and Appellant.

B003575.

Decided: March 14, 1985

Glen H. Schwartz, Encino, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Susanne C. Wylie and Beverly K. Falk, Deputy Attys. Gen., for plaintiff and respondent.

Dana Maurice Loud appeals from the judgment entered following a jury trial in which he was convicted of robbery in which a principal was armed with a firearm.  (Pen.Code, §§ 211, 12022, subd. (a).)  He contends:  “I.   The trial court erred in not granting the motion to suppress the gun as evidence, and further erred in not granting the motion for new trial based thereon.   II.  The trial court erred in not granting the motion to exclude evidence of the photographic lineup.”   III.  Our review of the record disclosed a third issue on which we requested briefing:  the trial court's giving of CALJIC Nos. 3.00 and 3.01 in the form which was found inadequate in People v. Beeman (1984) 35 Cal.3d 547, 562, 199 Cal.Rptr. 60, 674 P.2d 1318, and People v. Caldwell (1984) 36 Cal.3d 210, 224, 203 Cal.Rptr. 433, 681 P.2d 274.   We affirm.

In the late afternoon of August 12, 1983, Tiofile Ruiz was lying on the grass near Santa Monica pier listening to his radio.   Terry Solez approached, asked what was happening, and grabbed the radio.   Mr. Solez handed the radio to appellant.   When Mr. Ruiz requested that the radio be returned, Mr. Solez displayed a pistol.   Appellant and Mr. Solez ran from the scene, with appellant still in possession of the radio.

On August 15, 1983, Santa Monica Police Officer Paul Schindler conducted field interviews of appellant and Mr. Solez, who were in each other's company at the time.   When appellant was arrested the next day, he was carrying a gun that Mr. Ruiz identified as the one used in the robbery.   Mr. Ruiz, who had not been previously acquainted with appellant or Mr. Solez, identified both individuals from photographic and corporeal lineups.

In appellant's defense it was asserted that although appellant was near the scene of the robbery, it was someone else who participated in the robbery with Mr. Solez.

Prior to testimony, appellant moved in limine to exclude evidence of the gun, on the ground that it had not been sufficiently connected to the robbery.   He further sought to exclude Mr. Ruiz's identification testimony on the theory that although Mr. Ruiz spoke limited English, he was admonished in English, only, prior to viewing the photographic display, and the subsequent identification was tainted in some way by the lack of an admonition in Spanish.   In proceedings on the motion, however, Mr. Ruiz testified that the gun with which appellant was arrested was the same one Mr. Solez displayed during the robbery.   Santa Monica Police Officer Ray Cooper testified that although Mr. Ruiz was admonished in English, the admonition was read to him very slowly, and Mr. Ruiz indicated that he understood each sentence.

Appellant's motions were denied, the trial court finding “there has been a sufficient identification of the weapon by [Mr. Ruiz] so that it can be received as far as identification is concerned” and “its probative value outweighs any danger of undue prejudice.”   With respect to the lineup, the trial court concluded:  “There was nothing that took place which was in the nature of an impermissible suggestive photographic identification procedure.”

I

 Appellant's first contention is without merit.   A trial court ruling admitting evidence under Evidence Code section 352 may be reviewed only to determine whether the court abused its discretion.   Here, the gun found in appellant's possession at the time of arrest was unequivocally identified by Mr. Ruiz as the weapon used in the robbery.   Accordingly, the gun was properly admitted to corroborate Mr. Ruiz's identification testimony and to further establish that a principal was armed with a firearm.  (People v. Spencer (1972) 22 Cal.App.3d 786, 798, 99 Cal.Rptr. 681;  cf. People v. Rinegold (1970) 13 Cal.App.3d 711, 720–721, 92 Cal.Rptr. 12.)

II

 Appellant's second contention is equally unavailing.   The record establishes that Mr. Ruiz understood the admonition read to him by Officer Cooper.   Appellant has therefore failed to sustain his burden of showing that pretrial identification procedures were impermissibly suggestive.  (People v. Hunt (1977) 19 Cal.3d 888, 893–894, 140 Cal.Rptr. 651, 568 P.2d 376.)

III

Under the forms of CALJIC Nos. 3.00 and 3.01 which were given,1 the jury was informed that an aider and abettor needed knowledge of the unlawful purpose of the perpetrator of the crime.   Those instructions were found inadequate in People v. Beeman, supra, 35 Cal.3d 547, 562, 199 Cal.Rptr. 60, 674 P.2d 1318, and People v. Caldwell, supra, 36 Cal.3d 210, 224, 203 Cal.Rptr. 433, 681 P.2d 274, which require that an aider and abettor have the “intent or purpose of committing, encouraging, or facilitating the commission of the offense, ․”  (People v. Beeman, supra, 35 Cal.3d at p. 561, 199 Cal.Rptr. 60, 674 P.2d 1318.)

Respondent argues that the erroneous instructions were superfluous as appellant “was a joint perpetrator of the robbery and not merely an aider and abettor.”   We recognize that after Terry Solez took the radio from Mr. Ruiz and displayed a pistol, it was appellant who actually carried away the radio.   However, we deem it necessary to consider the Beeman issue since (1) the erroneous instructions were given at the request of the prosecutor, and (2) the prosecutor argued to the jury that appellant was an aider and abettor.2

In People v. Beeman, supra, 35 Cal.3d 547, 562–563, 199 Cal.Rptr. 60, 674 P.2d 1318, “the defense centered on the very element as to which the jury was inadequately instructed and the jurors' communication to the court indicated confusion on the same point, ․”  The court found it unnecessary to decide the appropriate standard of prejudice from the failure to correctly instruct on the element of criminal intent, since reversal was required even under the most lenient standard of People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.  (People v. Beeman, supra, 35 Cal.3d at p. 563, 199 Cal.Rptr. 60, 674 P.2d 1318.)

Since Beeman, numerous appellate decisions have conflicted on the question of the correct standard of prejudice from Beeman error.  (See cases summarized in People v. Acero (1984) 161 Cal.App.3d 217, 228, fn. 9, 208 Cal.Rptr. 565.)

 In People v. Caldwell, supra, 36 Cal.3d 210, 210 Cal.Rptr. 433, 681 P.2d 274, the Supreme Court found that although CALJIC Nos. 3.00 and 3.01 inaccurately reflected the intent required of an aider and abettor, the error was harmless.3  The court explained:  “In this case, however, the error did not preclude the jury from considering and determining the question of Caldwell's intent.   The defense was duress, upon which principle the jury was properly instructed in accordance with CALJIC No. 4.40.  [T]he essence of his defense was that because he acted only because he had been threatened he did not have a criminal intent in driving Washington and Belvin away from the scene of the robbery and attempting to elude the pursuit;  i.e. though he intended to facilitate the commission of the robbery, he did so only out of fear for his life.   The jury evidently rejected this defense version of events in which Caldwell allegedly acted without criminal intent.   Hence, the challenged instruction could not have affected the jury deliberation and verdict.  (See People v. Sedeno (1974) 10 Cal.3d 703 [112 Cal.Rptr. 1, 518 P.2d 913].)”  (People v. Caldwell, supra, 36 Cal.3d at p. 224, 210 Cal.Rptr. 433, 681 P.2d 274;  fn. omitted.)

It should be noted that in finding Beeman error to be nonprejudicial, Caldwell did not analyze the appropriate standard of prejudice, but simply looked to the defense which was presented in determining whether the error could have affected the jury.

Two months after Caldwell, the Supreme Court decided People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826.   The issue in Garcia was the standard of prejudice for erroneous instructions on the intent required for the felony murder special circumstance of the 1978 death penalty initiative.  (See Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862.)  Garcia held that because Carlos error denied the defendant his right to have the jury decide each element of the special circumstance beyond a reasonable doubt, the error was necessarily prejudicial unless certain exceptions were present.  (People v. Garcia, supra, 36 Cal.3d at pp. 549–558, 205 Cal.Rptr. 265, 684 P.2d 826.)

The Garcia exceptions were later summarized in People v. Ramos (1984) 37 Cal.3d 136, 146–147, 207 Cal.Rptr. 800, 689 P.2d 430:  “(1) ‘ “[I]f the erroneous instruction was given in connection with an offense for which the defendant was acquitted and if the instruction had no bearing on the offense for which he was convicted,” ’ [citation], (2) ‘ “if the defendant conceded the issue of intent” ’ [citation], (3) if ‘ “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions” ’ [citation], or (4) under limited circumstances, if ‘the record not only establishes the necessary intent as a matter of law but shows the contrary evidence not worthy of consideration.’  [Citations.]”   The “limited circumstances” involved in the fourth exception are where “the parties recognized that intent to kill was in issue, [and] presented all evidence at their command on that issue, ․”  (People v. Garcia, supra, 36 Cal.3d at p. 556, 205 Cal.Rptr. 265, 684 P.2d 826.)

Garcia was based largely on Connecticut v. Johnson (1983) 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823, in which the plurality opinion found that Sandstrom4 error (erroneous instruction that the law presumes a person intends the ordinary consequences of his voluntary acts) was reversible per se unless certain exceptions were shown.   In a footnote, Garcia cited the Beeman holding, and quoted language from Beeman that although Beeman error “ ‘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.’ ”  (People v. Garcia, supra, 36 Cal.3d at p. 554, fn. 9, 205 Cal.Rptr. 265, 684 P.2d 826, quoting People v. Beeman, supra, 35 Cal.3d at p. 562, fn. 4, 199 Cal.Rptr. 60, 674 P.2d 1318.)   That footnote provides strong support for using Garcia as the standard of prejudice for Beeman error.

In People v. Acero, supra, 161 Cal.App.3d at pages 227–228, 208 Cal.Rptr. 565 (hg. den. Jan. 3, 1985), the court utilized Garcia in considering Beeman error, as the error in both situations “results in jury failure to examine evidence which bears on intent, an essential element of the offenses at issue in both cases.”  (Id., at p. 228, 208 Cal.Rptr. 565.)  Acero applied the Garcia standard, found none of the exceptions to be present, and reversed due to the Beeman error.  (Id., at pp. 227–228, 208 Cal.Rptr. 565.)

 We agree with Acero that Garcia should be looked to for guidance on the appropriate standard of prejudice from Beeman error.   Indeed, it appears that in finding such error nonprejudicial in Caldwell, the Supreme Court was utilizing the rationale of the third exception it later set forth in Garcia.

We find that the second Garcia exception, a defense concession of intent, was present in this case.

That exception is derived from the plurality opinion in Connecticut v. Johnson, supra, 460 U.S. 73, 87, 103 S.Ct. 969, 977, 74 L.Ed.2d 823.)   Johnson discussed certain “rare situations in which the reviewing court can be confident that a Sandstrom error did not play any role in the jury's verdict.”  (Id., at p. 87, 103 S.Ct., at p. 977.)   One such example was “if the defendant conceded the issue of intent.  [Citations.]”  (Ibid.)  The court explained:  “In presenting a defense such as alibi, insanity, or self-defense, a defendant may in some cases admit that the act alleged by the prosecution was intentional, thereby sufficiently reducing the likelihood that the jury applied the erroneous instruction as to permit the appellate court to consider the error harmless.  [Citation.]   We leave it to the lower courts to determine whether, by raising a particular defense or by his other actions, a defendant himself has taken the issue of intent away from the jury.”   (Ibid.;  fn. omitted.)

Here, appellant testified that he was at the grassy area near Santa Monica pier using the telephone and never saw a Mexican with a radio in the area.   His brother, Michael, testified in his behalf that while appellant was at least 50 feet away using the telephone, Michael saw a person named “Terry” take the radio from a Mexican on the grass.   Terry handed the radio to a man named Eric Burke, who walked away with it.   Defense counsel argued to the jury that there was no question that a robbery had occurred, that the victim had a radio taken from him by force, and that this was simply a case of misidentification.   The sole issue argued was whether appellant was the person who aided and abetted Terry Solez.

 By admitting that the robbery had occurred, appellant conceded that the aider and abettor had the requisite intent.   The issue of intent having been taken from the jury, the Beeman error was nonprejudicial.

The judgment is affirmed.

FOOTNOTES

1.   The jury received this modified form of CALJIC No. 3.00 (1981 rev.):  “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.”The modified form of CALJIC No. 3.01 (1980 rev.) which was given states:  “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.”

2.   The prosecutor stated:  “Now, Judge Woodmansee will instruct you that anyone who aids and abets in the commission of a crime is equally guilty under the law;  and I don't think there is any question that the man—the black man that was with—Mr. Solis [sic]—Terry—the man that is in People's 2, certainly did aid and abet in the commission of this crime, the robbery.  [¶]  I think the evidence is quite clear that the gun was displayed, the radio was in Mr. Solis's [sic] hands, handed to the other man, and he ran with it.   The robbery was still in progress.   The second man certainly aided and abetted in the commission of the crime.”

3.   As the court recognized in People v. Minichilli (1984) 161 Cal.App.3d 660, 670, footnote 7, 207 Cal.Rptr. 766, Caldwell “retroactively applied Beeman without specifically discussing the issue of retroactivity.”   Respondent argues that Beeman should not be retroactive.   We disagree, since the assumption of retrospective operation applies to a decision like Beeman which resolves a conflict among the lower courts.  (People v. Minichilli, supra, at pp. 669–670, 207 Cal.Rptr. 766, citing Donaldson v. Superior Court (1983) 35 Cal.3d 24, 36–37, 196 Cal.Rptr. 704, 672 P.2d 110.)

4.   Sandstrom v. Montana (1979) 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.

WOODS, Presiding Justice.

KINGSLEY and ARGUELLES, JJ., concur.