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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Thomas POTTS, Defendant and Appellant.

Cr. 13438.

Decided: March 19, 1985

John K. Cotter, Sacramento, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Eddie T. Keller, Lisa Lewis Dubois and Thomas Y. Shigemoto, Deputy Attys. Gen., for plaintiff and respondent.

Thomas Potts appeals from a judgment of conviction of one count of robbery (Pen.Code, § 211) with a finding that he had suffered a prior conviction of a serious felony.  (Pen.Code, §§ 667, 1192.7, subd. (c)(19).)   He contends that the trial court erred in giving aiding and abetting instructions declared erroneous in People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318.   We will reverse the conviction on the ground that it was error to submit the matter to the jury on two theories of criminal liability without instruction on the necessity of unanimous agreement on the issues of fact material to a single theory of culpability.1


Sometime between 3 and 4 p.m. on September 17, 1983, Anna LaFreniere, age 74, the robbery victim, was sitting at a bus stop near 9th and K Streets in Sacramento.   The bus stop was sheltered with a roof and sides and had a bench inside.   Robin Baunach and her boyfriend Brian Baker, both age 15, were sitting on another bench at an adjacent bus stop 20 to 30 feet away.   Baker saw two black men near the enclosure where LaFreniere was waiting.   One was standing outside the enclosure;  he wore a red bandana tied around his head.   The other man was inside the enclosure sitting on the bench.   Baker looked away.   A few minutes later he heard Baunach say “Oh my God!”   Baker saw LaFreniere struggling with one of the men.   The other man “took off running.”   Moments later the man struggling with LaFreniere wrested her purse away and ran away using the same route as the other had.   Baker had no opinion on the age of the man sitting inside the enclosure but thought the man with the red bandana looked about 19 years old.   He could not say whether the man with the red bandana had been the one struggling with LaFreniere.

Baunach testified she saw two black men yanking on LaFreniere's purse, both of them pulling, and that they ran off “together.”   Baunach believed both of the men were 19–20 years old.

LaFreniere testified that the person who snatched her purse was walking up and down in front of where she sat in the bus stop shelter.   He ducked in and grabbed her purse.   She hung on until they reached the curb at which point her assailant jerked the purse out of her hand.   He then ran away down an alley.   She said he was a black man wearing a white T-shirt and had some kind of a hat with his hair sticking out on both sides.   She told police he was of slender build and looked between 20 and 22.   His face was covered with hair but not a full beard.

On the day of the robbery LaFreniere selected defendant's photo from a five person photo line-up as the robber.   A month later, at a live line-up she selected, in lieu of defendant, another line-up participant.   At the time of this misidentification, she said:  “Although I am not sure, I think [a participant other than defendant] is the person.”   At trial she was positive that defendant, the only black male in the courtroom, was the robber.

About an hour after the robbery Officers Moore and Beach of the Sacramento Sheriff's Department made a traffic stop of a car that lacked a current registration tag.   Three black men got out of the other vehicle.   The driver, Napolean Elder, was six feet tall, weighed 195 pounds, was 19 years old and wearing a black cap, a gray sweatshirt and blue jeans.   The front seat passenger, Sheldon Newsome, was five feet eight inches tall, weighed 195 pounds, was 18 years old and wearing a blue T-shirt with green pants.   The rear seat passenger, defendant, was six feet tall, weighed 160 pounds, was 35 years old and wearing a white T-shirt, blue jeans, and a black felt cap with a red bandana wrapped underneath it.   As a consequence of the stop a check guarantee card and a Visa card were removed from defendant's left rear pocket and a key ring with house keys, several medallions, and one dice attached were removed from defendant's right front pocket.   LaFreniere identified the key ring and the other items bearing her name as property that had been taken in the robbery.

In the opening segment of closing argument the prosecutor said that the only issue before the jury was who was the perpetrator of the robbery.   The bulk of his address sought to persuade the jurors that LaFreniere had not misidentified defendant as her assailant despite the live line-up.   He suggested it was “conceivable” that the witnesses to the robbery were all reading accurately and that LaFreniere's testimony could be reconciled with Robin Baunach's assertion she saw two men pulling the purse from the victim's grasp.   He also asserted the bare conclusion that the evidence showed there was more than one person involved in the robbery.

The theme of defendant's closing argument was that the People had not met their burden of proof to show that he was the person who had taken LaFreniere's purse.   He argued misidentification, exploited perceived discrepancies in the victim's identification, and claimed her testimony of the appearance of the robber was more consistent with that of Elder than that of defendant.

In the closing segment of argument the prosecutor sought to rebut the claim of doubt in the identification and, alternately, to persuade the jury that even if defendant had not pulled away the purse he should be convicted of robbery.   The prosecutor argued:  “Utilize your common sense, ladies and gentlemen in assessing who was at the bus stop and who took the purse.  [¶] If you find that the evidence shows that Mr. Potts was at the bus stop in the afternoon of the 17th when Ms. LaFreniere was there, he's guilty of robbery.  [¶] He engaged in the taking of that purse with another person, undoubtedly, but he's up to his ears in this thing, and he's guilty of it.  [¶] If you find that he was there, he's guilty of robbery.”

The case was submitted to the jury without instruction concerning aider and abettor liability.   The sole offense in issue was robbery.   No lesser-related offense instructions were requested.   After an hour and a half of deliberation the jury foreman sent a note to the judge requesting clarification of the jury's authority to convict on the theory defendant was a lookout for the man who snatched the purse.   The trial judge was unavailable and the jury was sent home after declaring it had reached an impasse on this point.   On the next court day the trial court decided to give a sua sponte instruction on aiding and abetting.   The defendant objected that the instruction unfairly permitted the prosecution to shift its ground and requested a mistrial.   The court denied the request and offered defendant the opportunity to reargue its case.   The trial court then gave standard California jury instructions on aiding and abetting, including those deemed erroneous in People v. Beeman, supra, 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318.   Thereafter, defendant urged the jury to conclude there was no evidence from which they could infer complicity of the second black man at the bus stop.   The jury retired and 40 minutes later returned with a verdict of guilty of robbery.   At a subsequent court trial the allegation in the information of a prior conviction of a serious felony was found true.




We do not reach defendant's contention of error predicated upon the failure to instruct the jury on aiding and abetting as required by People v. Beeman, supra.   In the circumstances of this case the People's alternate theory of liability predicated upon aiding and abetting marred the verdict of guilt with error that is reversible regardless of prejudicial effect of the Beeman error.   Because the Beeman error will not recur there is no need to address that point.

The jury was permitted to find defendant guilty on one of two disparate views of the evidence.   He may have been convicted as a perpetrator, as one who took the purse.   He may have been convicted as an aider and abetter, as a lookout for the one who took the purse.   Without an instruction which required the jury to unanimously agree on the acts which constituted the offense there is no assurance that the jury was so agreed.   This flaw is fatal to the judgment and requires a remand for retrial.

 A defendant has a constitutional entitlement to a unanimous jury verdict.  (Cal. Const., art. I, § 16.)   The requirement of unanimity extends to every issue on which a finding is required.  (See, e.g., Witkin, Cal. Criminal Proc. (1963) § 544.)   Where the offense charged is a violation of a statute under which one of several different acts shown by the evidence could constitute the offense, the jury must be instructed sua sponte that their verdict must be supported by a unanimous finding that a particular act or acts were committed.  (People v. Scofield (1928) 203 Cal. 703, 709, 265 P. 914;  see also, e.g., People v. Failla (1966) 64 Cal.2d 560, 567–568, 51 Cal.Rptr. 103, 414 P.2d 39;  People v. Madden (1981) 116 Cal.App.3d 212, 215–219, 171 Cal.Rptr. 897;  People v. McMillan (1941) 45 Cal.App.2d Supp. 821, 829–830, 114 P.2d 440;  Case Comment:  Right to Jury Unanimity on Material Fact Issues:  United States v. Gipson (1977) 91 Harv.L.Rev. 499.)   The principle applies whenever there are separate acts which could constitute the single offense charged, whether or not the acts fall under a single or multiple theories of liability.  (Compare People v. Castro (1901) 133 Cal. 11, 13, 65 P. 13 with People v. Scofield, supra.)

 Here, defendant was charged with the robbery of LaFreniere.   That permits a conviction either as a perpetrator or as an aider and abettor.   (Pen.Code, §§ 971, 31;  see e.g., Witkin, Cal. Criminal Procedure, supra, § 201.)   These require different standards of criminal liability and consequently may require that the jury focus on different acts as material to culpability.   When both theories are pursued under the same count in an accusatory pleading, absent careful instruction on jury unanimity, it may be impossible to determine if all of the jurors agreed on the essential and material issues of fact.   When the instruction on aiding and abetting was belatedly given, the issue of defendant's guilt was before the jury on two disparate theories of the acts constituting the offense.   It will be remembered that before the instruction was given, the jury apparently could not agree that the defendant was the perpetrator resulting in the note by the foreman to the judge that read:  “In closing argument defendant's counsel indicated defendant is guilty if he actually pulled the purse away, DA said if defendant was present and part of crime, even if he did not actually take purse, is still guilty.  [¶] Do you convict a person of crime, robbery, if he was part of crime, but did not pull purse away?  [¶] I.e., one, watching for police, one, taking purse.”   This evinces an explicit recognition that different acts might constitute the offense charged.   Thereafter the aiding and abetting instruction was given.

It cannot be determined from the general verdict whether some of the jurors believed that the defendant was a perpetrator of the offense but disbelieved the theory of culpability predicated upon aiding and abetting.   Some jurors may have voted for conviction because they believed he was the man who pulled the purse away from the victim.   Other jurors may have convicted him as the second black man who bolted from the scene, e.g., on the theory that he was acting as a lookout.   But, some of the jurors who voted for defendant's conviction as the perpetrator might have harbored a reasonable doubt concerning the aider and abettor liability of the man who fled but did not grab the purse.

It was not essential that the jurors agree on whether the defendant was the man who took the purse or the man who ran away if they had agreed that both events gave rise to criminal liability.   In that case the defendant would have been liable as a principal either as the perpetrator or the aider and abetter.   However, under the instructions given there is no assurance of this jury convergence.   It is conceivable that the man who fled first may not have been an aider and abettor.   He may have been acquainted with the perpetrator, had no foreknowledge of the robbery, fled when the crime occurred, and later received the stolen property.   That leaves open the possibility that the jury did not agree unanimously on the culpable events and that the defendant did them.

 The Attorney General argues that precedent permits the jurors to convict on different theories of culpability so long as all agree on the ultimate conclusion of guilt.   His chief authority is case law sanctioning a verdict of murder of the first degree when theories of felony murder and premeditated and deliberate murder are pursued.  (See People v. Chavez (1951) 37 Cal.2d 656, 671, 234 P.2d 632.  People v. Nicholas (1980) 112 Cal.App.3d 249, 272–273, 169 Cal.Rptr. 497.)   However, this authority is not apposite.   Where the jury agrees that defendant has accomplished the acteus reus and that he has a state of mind that renders him culpable of murder of the first degree there has been a unanimous verdict of guilt.   This is so despite the potential for divergence of opinion concerning the precise nature of the mens rea.   However, where part of the jury may never have considered the mens rea of the defendant because there are multiple theories of criminal conduct tendered there is no unanimity in the verdict of guilt.   In such a case the apt case law analogy is to cases “which turn on the prosecutorial election as to which of several proven acts occurring during the period charged form the basis upon which a unanimous verdict may be found.”  (Nicholas, supra, at p. 273, 169 Cal.Rptr. 497;  citations omitted.)   The remainder of the case authority proffered by the Attorney General is not on point because it does not consider or resolve the issue of what instructions are necessary to insure unanimity where multiple theories of conduct are tendered.  (Compare e.g. People v. Gonzales (1970) 4 Cal.App.3d 593, 599–602, 84 Cal.Rptr. 863, substantial evidence supported defendant's conviction on alternate theories of conduct as perpetrator or aider and abettor in stabbing murder despite doubt concerning which role has played.)

There is evidence that defendant was at the scene and that he was guilty of some crime, minimally that of receiving stolen property.   There is also sufficient evidence to sustain the conviction of defendant as the man first to flee on a theory of aider and abettor liability.   However, in view of the failure to instruct on the requirement of jury unanimity on the essential facts constituting the offense, reversal of the judgment of conviction is compelled.  (People v. Madden, supra, 116 Cal.App.3d at p. 219, 171 Cal.Rptr. 897.)

The judgment is reversed.   We remand the case to the trial court with directions that if there is a retrial and the case is prosecuted on multiple theories of liability, instruction must be given consistent with this opinion.


1.   Pursuant to rule 976.1 of the California Rules of Court, the Reporter of Decisions shall publish all portions of this opinion except part I.

FOOTNOTE.   See footnote 1, ante.

BLEASE, Associate Justice.

EVANS, Acting P.J., and CARR, J., concur.