PEOPLE v. PARKER

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Court of Appeal, First District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Morris PARKER, Defendant and Appellant.

AO17919.

Decided: May 23, 1984

Manuel E. Nestle, Berkeley, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., Criminal Div., William D. Stein, Asst. Atty. Gen., Herbert F. Wilkinson, Martin S. Kaye, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Statement of the Case

Defendant Ronald Parker appeals from a judgment convicting him of first degree murder, in violation of section 187 of the Penal Code;  robbery, in violation of section 211 of the Penal Code;  and first degree burglary, in violation of section 459 of the Penal Code.   He contends that (1) the trial court erred in refusing to exclude his confession as involuntary;  (2) the trial court committed reversible error in several of its instructions to the jury;  and (3) this court should abandon the felony-murder rule and reverse defendant's murder conviction.1

Facts 2

On November 29, 1980, defendant accompanied two women, Terry Owens and Isetta Ligones, to the residence of an 87-year-old man named Selma Randall.   Owens, who was defendant's girlfriend, intended to rob Randall, and defendant claimed that he accompanied the women only in order to protect Owens.   After entering Randall's home, defendant beat him about the head with a chair leg, rendering him unconscious.   Defendant and the two women then ransacked the apartment and left with money and various property of Randall and Randall's roommate.   Isetta Ligones was granted immunity and testified against defendant, asserting that she was already at the apartment when defendant and Owens arrived and that she did not participate in the crimes.

Randall entered the hospital on November 30, 1980, and died there at 2:30 a.m. on December 14.   An autopsy was performed on the day of his death.

Dr. Tschetter, the pathologist conducting the autopsy, testified that it revealed six scalp lacerations of one to one and one-half inches.   Randall had suffered a skull fracture, two fractured vertebrae at the back of the neck, and a fracture of the right forearm near the wrist.

Randall had a history of heart disease.   In the opinion of Dr. Tschetter, Randall died from acute bronchial pneumonia as a result of being bedridden due to his head and neck injuries.   The injuries suffered from the blows to the head were a contributing cause of death but did not directly cause the death.   The heart condition also contributed to the death as part of the weakening process.

Dr. Turner, a specialist in internal medicine, was Randall's physician since 1957 and visited him on a daily basis during his hospitalization.   Dr. Mitgang, a neurosurgeon, and Dr. Hilliard, a cardiologist, were the treating physicians for Randall's head and heart problems.   Dr. Turner testified that after Randall entered the hospital, his prognosis was guarded:  his condition was considered grave, although not critical, and his recovery was in doubt.   Dr. Turner noted that Randall had a history of congestive heart failure and kidney impairment.   Turner testified that congestive heart failure causes the body tissues to become waterlogged due to the heart's failure to adequately pump blood.   As a result, the lungs can become wet and congested and pneumonia may occur.

Testifying from reports which were prepared by himself and Drs. Hilliard and Mitgang, and which contained the various physicians' opinions, Dr. Turner noted that Randall suffered a heart attack about the time of his entry into the hospital on November 30.   The precise time could not be ascertained.   His head wounds subsequently seemed to be healing, and on December 4 Randall was able to get up to go to the bathroom.

A second heart attack occurred on or shortly before December 10.   Randall's condition improved and he regained consciousness the same day.   Prior to the second heart attack, Randall suffered from rapid and irregular heartbeats.

On December 10 a subdural hematoma was detected.   This is a collection of blood on the brain caused by a blockage.

According to Dr. Turner's discharge summary dated March 18, 1981, it was Dr. Mitgang's opinion that the subdural hematoma was chronic rather than acute and had been in existence for months or possibly longer.

Dr. Turner could not say with medical certainty that the head injuries which Randall received on November 29 led to a heart attack at or about that time.   He also could not say with medical certainty that the subsequent heart attack on or about December 10 was caused by the injuries.   According to Dr. Turner, it was possible that Randall's heart attacks were totally unrelated to his head injuries.

Dr. Turner testified that he and the other physicians who had treated Randall believed that Randall's death was the result of cardiac failure.

I.

Defendant claims that the totality of the circumstances surrounding his interrogation require this court to conclude that his confession was involuntary as a matter of law.   We disagree.

At the hearing on the voluntariness of his confession, the following facts were presented:  On February 23, 1981, at 10:39 p.m. defendant was advised of his Miranda rights at the Oakland Police Station, waived them, and signed a statement to that effect.   A tape recorder was activated.   Defendant was again admonished and waived his rights on tape, agreeing to talk with the police.   He then gave his first taped statement, denying any complicity in the crimes.

With this taped statement completed and the tape recorder turned off, Officer Matthews informed defendant that Terry Owens and Isetta Ligones had implicated him in the crimes.   This statement was true.   Matthews played a small portion of a tape recording of Owens' statement in which she claimed that defendant was at Randall's house.   Matthews also told defendant that his fingerprints had been found at the scene.   This statement was false.

At this point, defendant told Officer Matthews that he had decided to tell the truth.   He then admitted accompanying the two women to Randall's home, rendering Randall unconscious by hitting him on the head, and removing various items of Randall's property from the home.

On the tape, defendant stated that he had not been threatened or promised anything, that he was not under the influence of drugs, and that his statement was voluntary.

Officer Matthews testified that defendant did not appear to him to be under the influence of anything.   However, Matthews admitted that defendant told him that he had “last shot up with crank the night before.”

Defendant testified that Matthews and his partner, Sergeant Todar, left the room for five or ten minutes following defendant's first statement.   When Matthews returned, he acted like “a vicious animal,” calling defendant a liar and a punk.   According to defendant, Matthews told him that Owens was a witness against him and that he (Matthews) would see that defendant was hung or “fried.”   Defendant testified that Matthews also told him that the district attorney might want to talk to him, and that defendant interpreted this statement as referring to a possible plea bargain.

Officer Matthews denied changing his demeanor toward defendant, yelling or screaming at him, or threatening to hang or “fry” him.   He also denied making any threats or promises to defendant.   Matthews did admit that he told defendant that Owens and Ligones had stated that defendant was present during the alleged crimes at the Randall home.   Matthews also admitted that he played a portion of the Owens tape for defendant and told him, falsely, that his prints had been found at the scene.   The trial court ruled in the prosecution's favor on all conflicting facts and found defendant's statement to be voluntary.

Defendant contends that his incriminating admissions were involuntary because they were induced by psychological coercion.   He contends that the coercion consisted of Officer Matthews' conduct in falsely informing defendant that his fingerprints were found at the scene, playing a portion of the Owens tape placing him at the scene, and telling defendant that Owens' statement could and would be used against him.3  Defendant also emphasizes the fact that he was 18 years old at the time.

“In determining whether or not an accused's will was overborne, an examination must be made of ‘all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.’  [Citation.]   The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were ‘such as to overbear petitioner's will to resist and bring about confessions not freely self determined.’  [Citation.]   Statements which are ‘the product of coercion, either physical or psychological, cannot stand․”  (People v. Hogan (1982) 31 Cal.3d 815, 841, 183 Cal.Rptr. 817, 647 P.2d 93;  In re Cameron (1968) 68 Cal.2d 487, 498, 67 Cal.Rptr. 529, 439 P.2d 633;  People v. Sanchez (1969) 70 Cal.2d 562, 572, 75 Cal.Rptr. 642, 451 P.2d 74.)

 The prosecution must prove that the confession was voluntary beyond a reasonable doubt (People v. Jimenez, supra, 21 Cal.3d 595, 608, 147 Cal.Rptr. 172, 580 P.2d 672;  see People v. Hogan, supra, 31 Cal.3d 815, 835, 67 Cal.Rptr. 529, 439 P.2d 633.)  “This court must examine the uncontradicted facts surrounding the making of the statements to determine independently whether the prosecution met its burden and proved that the statements were voluntarily given without previous inducement, intimidation or threat.  [Citations.]   With respect to the conflicting testimony, the court must ‘accept that version of events which is most favorable to the People, to the extent that it is supported by the record.’  [Citation.]”  (People v. Hogan, supra, 31 Cal.3d 815, 835, 67 Cal.Rptr. 529, 439 P.2d 633;  People v. Thompson (1980) 27 Cal.3d 303, 327–328, 165 Cal.Rptr. 289, 611 P.2d 883;  People v. Jimenez, supra, 21 Cal.3d 595, 609, 147 Cal.Rptr. 172, 580 P.2d 672.)

 It has long been recognized that deception, such as telling a defendant that his fingerprints had been found at the scene, does not render a subsequent confession involuntary, although deception may be one factor in determining voluntariness.  (People v. Connelly (1925) 195 Cal. 584, 597, 234 P. 374 [suspect told fingerprints were on cash register];  People v. Watkins (1970) 6 Cal.App.3d 119, 124–125, 85 Cal.Rptr. 621 [suspect told his fingerprints were on getaway car].)  The general rule throughout the country is that a confession obtained through use of subterfuge is admissible, as long as the subterfuge used is not one likely to produce an untrue statement.  (People v. Felix (1977) 72 Cal.App.3d 879, 885–886, 139 Cal.Rptr. 366.)

 Defendant recognizes that the subterfuge used by Officer Matthews in this case in falsely representing to defendant that his fingerprints had been found at the scene does not in itself compel reversal, but he argues that the totality of the circumstances demonstrates that his incriminating admissions were involuntary.   However, the trial court resolved the credibility issues in favor of the prosecution, finding that under the totality of the circumstances defendant's statements were free and voluntary and were not coerced.   Specifically, the court found that Officer Matthews had not changed his demeanor between the first and second statements made by defendant, had not called him a liar and had not threatened to see him “fry” or hang.   The court also found that defendant was not under the influence of drugs at the time of the statements.   This resolution of the facts in conflict was entirely reasonable and compels the conclusion that the trial court did not err in finding that under the totality of the circumstances defendant's admissions to Matthews were voluntary.

 Defendant next contends that the failure of the police to tape the entire interrogation, rather than simply taping the second Miranda warnings, defendant's responses to those warnings, and his statement, denied him of due process and violated his privilege against self incrimination.   He contends that an admission or confession may not be introduced into evidence unless the accused's entire custodial interrogation has been recorded so as to make it available to court and counsel.   Defendant concedes that no case so holds.4

Defendant argues that tape recordings of police interrogations would remove almost all doubt of voluntariness and satisfy the requirements of due process.   However, we believe that the burden of proof placed upon the People in the trial court to demonstrate that a confession is voluntary beyond a reasonable doubt satisfies due process concerns.   Moreover, the courts of this state have consistently refused to require that Miranda warnings be taped and have also refused to require that police testimony regarding confessions be corroborated by tape recordings or other means.  (See e.g. People v. Baxter (1970) 7 Cal.App.3d 579, 582–583, 86 Cal.Rptr. 812;  People v. Johnson (1973) 32 Cal.App.3d 988, 998, 109 Cal.Rptr. 118;  People v. Atkins (1970) 10 Cal.App.3d 1042, 1047, 89 Cal.Rptr. 588.)   Absent any authority so holding, we decline to require that an accused's entire custodial interrogation be recorded and made available to court and counsel.

II.

Defendant contends that the trial court erred in failing to instruct the jurors, pursuant to CALJIC No. 3.19, that they were required to decide whether Isetta Ligones was an accomplice.   The trial court instructed at length on accomplices, giving CALJIC Nos. 3.00, 3.01, 3.10, 3.11, 3.12, 3.14 and 3.18.   However, the court failed to instruct the jury that the question of who was an accomplice was a matter for its determination.   Defendant insists that the trial court had a sua sponte duty to instruct the jury on this matter and that the failure was prejudicial here, since the jurors might somehow have inferred from the instructions given that the judge was sub silentio instructing them that defendant was an accomplice as a matter of law, thus withdrawing his primary defense from their consideration.

Preliminarily, it is not clearly established that such instruction is required sua sponte.   Defendant cites People v. Jones (1964) 228 Cal.App.2d 74, 39 Cal.Rptr. 302 and People v. Duncan (1960) 53 Cal.2d 803, 3 Cal.Rptr. 351, 350 P.2d 103, for the proposition that such an instruction is required sua sponte.   Jones involved a rejection by the trial court of all instructions relating to the definition of accomplice, accomplice testimony, and the necessity for corroboration of such testimony.   In Duncan, the appellate court affirmed the trial court's refusal to instruct that a particular witness was an accomplice as a matter of law.   Neither case explicitly holds that the instruction at issue in this case must be given sua sponte;  however, Jones does state that “where it is for the jury to determine whether or not the witness is an accomplice, the court should so charge, and should instruct as to what constitutes an accomplice.  [Citation.]”  (288 Cal.App.2d 74, 95, 39 Cal.Rptr. 302.)

 Assuming for purposes of argument that in this instance the trial court should have instructed the jurors, sua sponte, that it was for them to determine whether Isetta Ligones was an accomplice, such error is not prejudicial per se and defendant has the burden of showing that it was prejudicial to him (People v. Valerio (1970) 13 Cal.App.3d 912, 925, 92 Cal.Rptr. 82.)   He asserts only that the jurors “somehow” may have inferred that the judge was instructing them that he was an accomplice as a matter of law.   He seeks to bolster this argument by pointing out that the jury requested a rereading of the accomplice instructions together with other instructions in the case.

However, the facts of this case do not support defendant's assertion of prejudice.   The trial court gave extensive instructions regarding accomplice testimony, including the requirement that such testimony be corroborated.   The court also instructed that “[a]n accomplice is one who is subject to prosecution for the identical offense charged against the defendant on trial.”   It is apparent from the language of the instructions given that defendant was not the accomplice to whom they referred and that the only person in the case who could conceivably have been found to be an accomplice was Isetta Ligones.   Also, the Attorney General correctly points out that, during that portion of his closing argument which related to the instructions on accomplice testimony, the prosecutor referred only to Isetta Ligones.

We conclude that on this record the jury could not have been misled into believing that the accomplice instruction referred to defendant rather than Isetta Ligones.   We hold that the error, if any, was harmless.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

III.

Defendant contends that the trial court committed reversible error in failing to instruct the jury on the “foreseeability” of the actual cause of death.   The court instructed the jury in terms of CALJIC No. 8.55 as follows:  “To constitute murder or manslaughter there must be, in addition to the death of a human being, an unlawful act which was a proximate cause of that death.  [¶]  The proximate cause of a death is a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred.  [¶]  There may be more than one proximate cause of a death.   When the conduct of two or more persons contributes concurrently as proximate causes of a death, the conduct of each is a proximate cause of the death regardless of the extent to which each contributes to the death.   A cause is concurrent if it was operative at the moment of death and acted with another cause to produce death.” 5

Relying upon People v. Hebert (1964) 228 Cal.App.2d 514, 39 Cal.Rptr. 539, defendant claims that complex issues of proximate cause in this case required that the court frame its instructions pertaining to this issue in terms of the foreseeability of the victim's death from the blows.   In that case, the Court of Appeal reversed for inadequacy of the instructions on proximate cause, concluding that, under the facts of the case, the instructions given were “unclear and confusing as a statement of the doctrine of proximate cause.”  (P. 520, 39 Cal.Rptr. 539.)   The court held that the issues should have been submitted to the jury upon the test of foreseeability.

Here, the bulk of the language which the Hebert court found to be confusing and unclear was not given.   Defendant concedes, as he must, that the instruction itself is not defective, since the first instruction given in Hebert was held appropriate in People v. Sam (1969) 71 Cal.2d 194, 77 Cal.Rptr. 804, 454 P.2d 700.)   Unlike those in Hebert, the instructions given in this case were not apt to confuse the jury.   Moreover, the additional instruction given by the court in this case regarding defendant's responsibility for the death of a victim where the victim was already in a weakened condition also helped to clarify the proximate cause issue for the jury.6

Defendant recognizes that the instructions given in this case were not the same as those given by the court in Hebert, supra, but argues that Hebert required that the instructions in this case be couched in terms of foreseeability.   A similar contention was rejected by the California Supreme Court in People v. Sam, supra, 71 Cal.2d 194, 77 Cal.Rptr. 804, 454 P.2d 700.   In Sam the trial court refused certain instructions proffered by the defense on foreseeability.   Instead, the court gave the standard instruction on proximate cause (former CALJIC No. 312).  (Id., at pp. 210–211, fn. 7, 77 Cal.Rptr. 804, 454 P.2d 700.)   While the Court of Appeal recognized that the standard instruction given on proximate cause might not have sufficiently covered the concept of an unforeseeable intervening cause, as discussed by Hebert, it concluded that the theories advanced by the defendant did not raise any question of foreseeability.

The facts in this case appear to be closer to those set forth in People v. Sam, than to those in People v. Hebert, since defendant argued below that either the heart attack apparently suffered by the victim during his hospital stay or a preexisting subdural hematoma was the actual cause of death and had in no way resulted from the blows to the head delivered by defendant.

Defendant contends that there does exist a foreseeability issue as to the question of whether he could reasonably have foreseen that the blows would cause the victim to become bedridden, thus developing pneumonia and eventually dying, or that the blows would cause a heart attack which would ultimately cause the victim to aspirate and die.

As in People v. Sam, supra, there was no argument presented below that death was not the foreseeable, albeit indirect, result of the blows.   Rather than arguing that the bed rest and pneumonia or the heart attack were unforeseeable intervening causes of death, the defense chose to argue that there was reasonable doubt as to whether the blows caused the death, since there was evidence that death was caused by the heart attack or by a preexisting subdural hematoma, neither of which was in any way caused by the blows to the head.

Defendant never claimed that death due to pneumonia brought on by prolonged bed rest was not the foreseeable result of the blows inflicted upon this elderly, frail victim.   Instead, he argued that there was reasonable doubt that the blows were a cause in fact of the pneumonia, arguing that the heart attack or subdural hematoma caused the aspiration.   As argued by trial counsel, the heart attack was “totally unrelated to the head injuries.”

 We conclude that the analysis provided by People v. Sam, supra, is applicable to the facts of this case and that additional instructions on foreseeability were not required.7

IV.

Defendant also claims that the failure of the trial court to give instructions on causation in addition to CALJIC Nos. 8.55 and 8.58 constitutes error.

We have already determined that there was no error in the trial court's failure to sua sponte instruct the jury as to the element of foreseeability as a part of proximate cause.   Defendant fails to suggest any other instruction which the trial court should have given in addition to CALJIC Nos. 8.55 and 8.58 to advise the jury on the issues presented.   We believe that the jury in this case was fully instructed on “those principles of law commonly or closely and openly connected with the facts of the case before the court.”  (People v. Wade (1959) 53 Cal.2d 322, 334, 1 Cal.Rptr. 683, 348 P.2d 116, quoted in People v. Bernhardt (1963) 222 Cal.App.2d 567, 591, 35 Cal.Rptr. 401.)

Since we have concluded that there was no error with respect to the instructions on causation given by the trial court, we need not address defendant's contention that his trial counsel was ineffective for failing to request instructions in addition to those given.

V.

In a scholarly brief defendant urges this court to abandon the felony-murder rule on various common law and constitutional grounds.   The California Supreme Court has recently considered these arguments at length and has upheld the validity of the felony-murder rule.  (People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697.)   We view People v. Dillon, supra, to be dispositive on this issue.  (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)

VI.

 Defendant contends that the trial court erred in failing to instruct the jury that aiding and abetting requires that a defendant intentionally aid and abet the crime, as held in People v. Yarber (1979) 90 Cal.App.3d 895, 153 Cal.Rptr. 875.   We agree.

Recently in People v. Beeman (1984) 35 Cal.3d 547, 561–563, 199 Cal.Rptr. 60, 674 P.2d 1318, the California Supreme Court agreed with the Yarber court that CALJIC No. 3.01 (which was given in this case, together with CALJIC No. 3.00), does not adequately inform a jury of the criminal intent required to convict a defendant as an aider and abettor.   The court held that “the 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.  [Citations.]”  (Beeman, at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)   Thus, it is clear that the trial court erred in this case in failing to so instruct the jury.

However, we cannot agree with defendant's contention that, in this instance, such error requires reversal.   In People v. Beeman, supra, 35 Cal.3d 547, 561–563, 199 Cal.Rptr. 60, 674 P.2d 1318, the California Supreme Court made it clear that a trial court's failure to instruct on the intent required of an aider and abettor does not necessarily constitute reversible error.   The Beeman court concluded that the error required reversal of the conviction in that case because “on this record it is impossible to conclude that the jury necessarily resolved the same factual question that would have been presented by the missing instruction.”  (P. 555, 199 Cal.Rptr. 60, 674 P.2d 1318.)   In this instance, however, the record actually compels the conclusion that the jury resolved, in a manner adverse to defendant, the factual question which would have been presented by the missing instruction on aiding and abetting.

Since the prosecution relied upon the felony-murder rule as the sole basis for a first degree murder conviction, the jury was repeatedly reminded, both in argument by counsel and in the trial court's instructions, that defendant could not be found guilty of first degree murder unless he possessed the intent to commit robbery or theft at the time he entered the victim's home.   During his closing argument, the prosecutor stated, “As I said, if you don't have the intent when you enter, it's not burglary.”  “So, when he went into the house, he didn't have the intent to steal or the intent to rob, therefore, no underlying felony.   Therefore, even though you have a homicide, you have no felony murder.   You have no first, and that's why you start talking about Mr. Parker's intent.   It becomes significant when he left 34th and San Pablo what his intent was because, if he had the intent to go commit a robbery or a theft and he had that when he went in, he's automatically now liable for the felony murder ․”   The prosecutor further advised the jurors that if they found that defendant did not enter with the intent to rob or steal, the murder could not be in the first degree and “It's not even an issue.”   In its instructions to the jury, the trial court, likewise, made it very clear that the existence of felonious intent at the time defendant entered the victim's home was essential to a first degree murder conviction.

The jury returned verdicts convicting defendant of first degree murder, robbery and burglary.   The burglary verdict included a specific finding that defendant entered the victim's dwelling house “with the intent to commit theft and felonies.”

Under these circumstances, the only reasonable conclusion one can reach is that the jury totally rejected defendant's claim that he entered the victim's home for the sole purpose of protecting his girlfriend, and found, to the contrary, that he entered with the intent to commit robbery or theft.   It follows that, regardless of whether the standard for review is that set forth in People v. Watson, supra, 46 Cal.2d 818, 836, 299 P.2d 243, or in Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, defendant could not have been prejudiced by the trial court's failure to adequately instruct the jury on aiding and abetting.

The judgment is affirmed.

I concur in the opinion of the majority in all respects save one.   In my view the failure of the trial court to correctly instruct the jury on the intent required of an aider and abettor cannot in this case properly be characterized as harmless error.

Preliminarily, the recent opinion of our Supreme Court in People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318, did not identify the appropriate standard for determining whether the type of error found in that case is prejudicial.   It was unnecessary to do so, the court concluded, because under the facts of that case the error was prejudicial even under the most lenient standard of People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.   The error in Beeman was found manifestly prejudicial due to the presence there of two factors:  first, that the defense centered on the very element as to which the jury was inadequately instructed and, second, that by requesting a rereading of the instructions on accomplice liability the jury indicated that it did not dismiss out of hand the appellant's testimony on the issue of intent.  (Beeman, supra, at p. 562–563, 199 Cal.Rptr. 60, 674 P.2d 1318.)   As will be seen, both of these factors are also present in the case at hand;  indeed, here the jury requested a rereading of the instructions on accomplice liability not once but three times.

In reaching its conclusion that shared intent is required for conviction as an aider and abettor, the Supreme Court recognized in Beeman that “CALJIC No. 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 ․   Thus, as one appellate court recently recognized, the instruction would ‘technically allow a conviction if the defendant knowing of the perpetrator's unlawful purpose, negligently or accidentally aided the commission of the crime.’  (People v. Patrick (1981) 126 Cal.App.3d 952, 967, fn. 10, 179 Cal.Rptr. 276.)”  (Beeman, supra, at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)  Beeman recognizes that the vice of the standard aiding and abetting instruction is similar to that of a mandatory presumption.  “If the jury were instructed that the law conclusively presumes the intention of the accused solely from his or her voluntary acts, it would ‘ “effectively eliminate intent as an ingredient of the offense” ’ and would ‘ “conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime.” ’  (Sandstrom v. Montana (1979) 442 U.S. 510, 522, 99 S.Ct. 2450, 61 L.Ed.2d 39, quoting from Morissette v. United States (1952) 342 U.S. 246, 274–275, 72 S.Ct. 240, 255–256, 96 L.Ed. 288;  original italics omitted.)   Where an appellate court employs the same presumption to support the adequacy of a jury instruction, the reviewing court announces its willingness to permit a conviction to stand regardless of whether the trier of fact has found the required criminal intent.   Thus at the appellate level, the element of criminal intent is effectively eliminated as an ingredient of the offense.”  (Beeman, supra, at p. 559, 199 Cal.Rptr. 60, 674 P.2d 1318.)   The court in Beeman further notes that “[w]hile the error which flows from the giving of CALJIC No. 3.01 is not identical to a conclusive presumption or to placing the burden of persuasion on the defendant (cf. Connecticut v. Johnson [1983] ––– U.S. at p. –––– [103 S.Ct. at p. 973] ), it is just as effective—if not more effective—in removing the issue of intent from the jury's consideration.  (Cf. Connecticut v. Johnson, supra, ––– U.S. at p. –––– [103 S.Ct. at p. 982] dis. opn. of Justice Powell.)”  (People v. Beeman, supra, at p. 561, fn. 4, 199 Cal.Rptr. 60, 674 P.2d 1318.) 1

In the case before us the effect of the instruction was to allow the jury to find that appellant entertained the requisite intent if he entered the apartment with knowledge of the purpose of Owens and Ligones to steal from Randall, even if the jury believed that appellant's actual intent or purpose in entering was solely to protect Owens.   Since in this manner the instruction effectively removed the intent element from the jury's consideration, I believe that Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 provides the appropriate standard of review.2

This case is factually distinguishable from People v. Banks, supra, 147 Cal.App.3d 360, 195 Cal.Rptr. 101, where the court concluded that any error was harmless beyond a reasonable doubt as the jury could not have concluded that appellant was acting without intent under the circumstances of that case.   Here, unlike Banks, it is clear that “the omission relates to a ‘material issue presented by the evidence.’  (People v. Sedeno (1974) 10 Cal.3d 703, 720, 112 Cal.Rptr. 1, 518 P.2d 913 ․, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1 ․;   People v. Modesto (1963) 59 Cal.2d 722, 730, 31 Cal.Rptr. 225, 382 P.2d 33 ․, disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33 ․;  People v. Hamilton [1978] 80 Cal.App.3d [124], 133, 145 Cal.Rptr. 429.)”  (People v. Banks, supra, at p. 367, 195 Cal.Rptr. 101.)   In Banks the court reiterated the rule that “[r]eversal is not required when there is no evidence to the contrary deserving of consideration, and the reviewing court can say the element was established as a matter of law.  [Citations.]”  (Ibid.)   In the instant case, as will be seen, there is evidence to the contrary and it appears such evidence was the source of jury uncertainty.   I therefore cannot agree that, in this case, the element of intent was established as a matter of law.

Nor can I agree with the majority that the jury necessarily resolved the factual issue presented in a manner adverse to defendant.   The majority points out that the jury was properly advised that first degree felony murder could occur as a result of the commission or attempted commission of robbery and burglary “where there was in the mind of the perpetrator the specific intent to commit such a crime.” 3  The jury was also instructed that the defendant must possess the specific intent to steal at the time he entered the residence to be convicted of burglary and the specific intent to permanently deprive the owner of property in order to be convicted of robbery.

It is by no means insignificant, however, that the jury had previously been instructed that it could find defendant guilty of robbery or burglary as an aider and abettor 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 the crime.”   The jurors were additionally advised that “[o]ne who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.”

That the jury was correctly instructed on the definitions of robbery and burglary, and was specifically instructed that such crimes required the specific intent to permanently deprive the victim of the property, does not diminish the impact of the erroneous aiding and abetting instruction;  as by this latter instruction the jury was effectively told it could infer the required specific intent if it found that the defendant acted with mere knowledge.   To be sure, as the majority points out, the jury verdict form prepared in connection with the burglary count contains a finding that defendant entered the victim's dwelling house “with the intent to commit theft and felonies”; 4  but this finding does not reveal whether the jury inferred that intent based upon defendant's acting as an aider and abettor with knowledge of the principal's purpose, or whether the jury instead determined that defendant actually possessed the specific intent to commit, encourage, or facilitate those acts.

If the jury infers specific intent for burglary or robbery based upon defendant's liability as an aider and abettor with knowledge, it is but a short step to finding defendant guilty of felony murder where the killing has occurred as a result of the commission or attempted commission of the robbery or burglary, the specific intent for which has already been supplied inferentially pursuant to the erroneous aiding and abetting instruction.

This possibility is exactly the infirmity of the instruction condemned first in People v. Yarber (1979) 90 Cal.App.3d 895, 153 Cal.Rptr. 875 and again by the Supreme Court in Beeman.  “The subsequent Ellhamer and Ott decisions explain the reasoning process behind the theory that knowledge is all that is required:  ‘․ the criminal intent of the aider and abettor is presumed from his actions with knowledge of the actor's wrongful purpose.  [Citations.]’  (People v. Ellhamer [1962] 199 Cal.App.2d [777] at p. 782, 18 Cal.Rptr. 905;  People v. Ott [1978] 84 Cal.App.3d [118] at p. 130, 148 Cal.Rptr. 479.) ․  [¶]  The reasoning of Ellhamer and Ott has been forcefully and correctly criticized by a number of subsequent Court of Appeal opinions which find that the weight of authority requires an aider and abettor to have an intent or purpose to commit or assist in commission of the underlying offense.   The leading case is People v. Yarber, supra, 90 Cal.App.3d 895, 153 Cal.Rptr. 875, which explained that ‘[t]he Ellhamer/Ott synthesis that intent is inferred from the knowledge by the aider and abettor of the perpetrator's purpose is sound, generally, as a matter of human experience, but we cannot extrapolate therefrom, as a matter of law, that the inference must be drawn.   Intent is what must be proved;  from a person's action with knowledge of the purpose of the perpetrator of a crime, his intent to aid the perpetrator can be inferred.   In the absence of evidence to the contrary, the intent may be regarded as established.   But where a contrary inference is reasonable—where there is room for doubt that a person intended to aid the perpetrator—his knowledge of the perpetrator's purpose will not suffice.’  (Fn. omitted;  original italics.)  (90 Cal.App.3d at p. 916.)”  (People v. Beeman, supra, 35 Cal.3d 547, 557–558, 199 Cal.Rptr. 60, 674 P.2d 1318.)   It bears repeating that intent is the element that must be proved.   Where the evidence is susceptible to an interpretation that the defendant did not act with intent or purpose to commit, encourage, or facilitate the commission of the offense, it cannot be said with certainty that the jury necessarily resolved this issue against the defendant unless the jury has been properly instructed that it cannot infer such intent from defendant's acting with knowledge of the principal's purpose, but that the defendant must share the criminal purpose of the perpetrator.

In the present case the defense placed considerable emphasis upon the claimed absence of intent to steal from Randall.   Appellant testified that he never intended to steal and that he entered the premises simply to protect Owens.   Defense counsel vigorously argued that because appellant did not initially harbor the intent to steal he therefore was not guilty of felony murder.   The prosecutor argued to the contrary, that circumstantial evidence established appellant's intent to commit burglary.  (Cf. People v. Petty (1981) 127 Cal.App.3d 255, 263, 179 Cal.Rptr. 413 [error harmless under both Watson and Chapman standards where appellant made no argument which could gain support from the Yarber instruction and where the prosecution made no arguments which could be weakened by the giving of that instruction].)

In analyzing the evidence, it is important to keep in mind that the defense assertion that appellant lacked the requisite intent was corroborated.   Dr. Joseph Davis, a psychiatrist, testified that in his professional opinion appellant had not at the time of entry formulated an intent to rob, but intended only to protect or rescue his girlfriend, Terry Owens.   The record also indicates that the jury was uncertain or confused on this issue, for on three separate occasions it requested the rereading of the instruction on accomplice liability, including aiding and abetting.  (See People v. Beeman, supra, at p. 562, 199 Cal.Rptr. 60, 674 P.2d 1318.)   Thus, it is certainly possible that the jurors concluded that appellant accompanied Owens knowing her purpose, but only intending to protect her in the event of trouble rather than to assist her in the crime.  “Under these circumstances, where the defense centered on the very element as to which the jury was inadequately instructed and the jurors' communication[s] to the court indicated confusion on the same point” (Beeman, supra, at pp. 562–563, 199 Cal.Rptr. 60, 674 P.2d 1318), I cannot agree that the error was harmless beyond a reasonable doubt.  (Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)   Accordingly, I would reverse the judgment.

FOOTNOTES

1.   In a petition for habeas corpus which was decided separately (In re Parker (May 21, 1984) A019796 [unpub. opn.] 1st Dist., Div. 2), Parker contended that his trial counsel was incompetent because he failed to interview and subpoena certain medical witnesses.

2.   Extensive statements of fact are set forth in the briefs of the parties.   Only a brief summary is presented here to assist understanding.   Additional pertinent facts accompany each argument to the extent required.

3.   Defendant testified that Matthews told him “I have Terry Owens' statement.   She is a witness against you and I'm going to see to it that you fry.”   Matthews denied making this latter statement.   The officer, when asked whether he told defendant that Owens' statement could and would be used against him testified:  “I don't know whether I told him that.   I don't think so.”   Defendant contends that Matthews' response renders defendant's statement uncontradicted.  (See People v. Jimenez (1978) 21 Cal.3d 595, 610, 147 Cal.Rptr. 172, 580 P.2d 672.)   We do not so read the record.   Matthews' statement was not merely a statement that he did not know or failed to recall, but was followed immediately by his statement that he did not think that he had made such a statement.   Moreover, defendant did not testify that Matthews had told him that Owens' statement could and would be used against him.   In fact, what defendant said was that Matthews had told him that he had Owens' statement, that Owens was a witness against him, and that Matthews was “going to see to it that you fry.”   The trial court specifically found that this latter threat was never made.

4.   Although the Attorney General argues that defendant cannot raise such an argument for the first time on appeal, citing People v. Carr (1972) 8 Cal.3d 287, 297, 104 Cal.Rptr. 705, 502 P.2d 513, it appears that there is authority that the court may consider this type of claim raised for the first time on appeal where the right involved is contended to be a constitutional one and the matter appears on the face of the record.  (See Miranda v. Arizona (1966) 384 U.S. 436, 495–496, fn. 69, 86 S.Ct. 1602, 1632, 16 L.Ed.2d 694;  Sobiek v. Superior Court (1972) 28 Cal.App.3d 846, 850–851, 106 Cal.Rptr. 516;  People v. Butler (1980) 105 Cal.App.3d 585, 588, 164 Cal.Rptr. 475.)

5.   The court further instructed the jury that:  “If a person unlawfully inflicts upon another person a physical injury which is a proximate cause of the latter's death, such conduct constitutes an unlawful homicide even though the injury inflicted was not the only cause of the death, and although the person thus injured had been already weakened by disease, injury, physical condition or other cause and although it is probable that a person in sound physical condition thus injured would not have died from the injury, and although it is probable that the injury only hastened the death of the injured person and that he would have died soon thereafter of another cause or other causes.”

6.   Although the jury asked the trial court to reread the instructions on proximate cause, this request does not indicate that the jury was confused by those instructions.   The jury also requested that the court reread several other instructions relating to elements of the substantive offenses of murder and its lesser included offenses, as well as the elements of burglary and robbery, accomplice instructions, and the testimony of various witnesses, including that of the two doctors.

7.   It is worth noting that only three cases have been found which cite People v. Hebert.   Of those three, People v. Sam, supra, and People v. Ray (1967) 252 Cal.App.2d 932, 966, 61 Cal.Rptr. 1, distinguish Hebert and affirm the trial court's failure to mention the element of foreseeability in its proximate cause instruction.   The third, Godwin v. La Turco (1969) 272 Cal.App.2d 475, 479, 77 Cal.Rptr. 305 was a civil case where the trial court refused to give instructions to the jury on proximate cause in terms of BAJI No. 104, thus omitting the only reference in the entire action to proximate cause.

1.   Neither the United States nor the California Supreme Court has decided whether an instruction which creates a mandatory presumption of intent, thus relieving the prosecution of proving each element of the crime beyond a reasonable doubt and thus violating due process, is reversible per se or is subject to the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.”  (See People v. Beeman, supra, 35 Cal.3d 547, at p. 561, fn. 4, 199 Cal.Rptr. 60, 674 P.2d 1318;  People v. Banks (1983) 147 Cal.App.3d 360, 368, 195 Cal.Rptr. 101.)   The Beeman court recognized that in Connecticut v. Johnson, supra, ––– U.S. –––– (103 S.Ct. 969), 74 L.Ed.2d 823, “[T]he United States Supreme Court split four to four on the question of whether Sandstrom error requires reversal per se or may be reviewed for prejudice under the standard applicable to errors of federal constitutional dimension.  (Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].)  (Beeman, supra, at p. 561, fn. 4, 199 Cal.Rptr. 60, 674 P.2d 1318.)

2.   In this regard, I am not persuaded by the recent decision in People v. Darwiche (1984) 152 Cal.App.3d 630, 199 Cal.Rptr. 806 (petn. for hg. pending), which concludes, without discussion, that “Beeman does not address any constitutional issues,” and therefore applies the Watson test for prejudice.  (Id., at p. 640, 199 Cal.Rptr. 60, 674 P.2d 1318.)

3.   The jury was specifically advised that “the unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a result of the commission of or attempt to commit a crime, the crimes of robbery and burglary, and where there was in the mind of the perpetrator the specific intent to commit such a crime, is murder of the first degree.”

4.   Curiously, the verdict form relative to the robbery count contains no such finding.

ROUSE, Associate Justice.

SMITH, J., concurs.