PEOPLE v. GRANT (1980)

Defendant Milton Grant¹ appeals from the judgment entered after a jury found him guilty of robbery. (Pen.Code, § 211.) We affirm the judgment.

FACTS

At about 5 p. m. on June 1, 1978, Swanson's Cleaners at 58th Street and Broadway in Sacramento was itself cleaned of its cash. It was robbed of a number of $1 bills by a 6′3″ or 6′4″, 160 to 170 pound black man with a large “Afro” hairstyle, wearing a black silk—like shirt with white markings and carrying a solid color blue denim jacket from which protruded a gun barrel.

Shortly before the robbery, an employee of the cleaners, Maxine Glass, saw an older model Cadillac, light tan in color with a lighter color top, traveling slowly east on Broadway past the cleaners. It contained two black men and the man on the passenger side stared into the store as the car passed.

Immediately after the robbery she saw, from a window on the 58th Street side of the cleaners, the same car traveling south on 58th Street, without a rear license plate and containing two black men, the driver wearing a large “Afro” hairstyle.

The Sacramento City Police were called and a radio broadcast was made, which was received by Officer Richard Gardella at 5:08 p. m., identifying the getaway vehicle as a white—over—beige Cadillac and the perpetrator as a male Negro, 21, 6′3″ tall with a large “Afro,” wearing a black shirt, black pants, and armed with a pistol concealed by a blue denim jacket.

At about 5:11 p. m., Officer Gardella observed a vehicle matching the broadcast description and without license plates about one and one—half mile from the cleaners, traveling west on Broadway, away from the cleaners, and containing two male Negroes. It turned right onto 38th Street, then left onto 4th Avenue and parked. Gardella stopped behind it, activated his red lights and ordered the driver, Benjamin Hicks, and the passenger, Grant, out of the car and placed them in custody.

Officer Gardella then looked through the window of the car and observed a black fluffed—up shirt on the passenger seat and a two—tone blue jean jacket on the rear floorboard on the passenger side.

Meanwhile, Maxine Glass and Robert Anderson, another witness, were transported to the scene. They could not identify either man in custody as the robber but Anderson looked through the car window and saw the shirt which he said looked like the shirt worn by the perpetrator. Gardella then searched the car and found a large “Afro” wig wrapped in the shirt and underneath them a folded bundle of 51 $1 bills. In the glove box he found the barrel portion of a pistol.

I

Grant first contends that the evidence was insufficient to show that he aided and abetted Benjamin Hicks in the robbery.

The prosecution's theory at trial was that Hicks drove the car and perpetrated the robbery and that Grant was present in the car and aided and abetted the offense. Grant's defense at trial was that he was engaged in playing basketball about the time of the offense and that Hicks merely gave him a ride in his car subsequent to the offense.

On appeal Grant argues that the evidence shows that, at most, he was an accessory after the fact (Pen.Code, § 32), a crime not charged and not a lesser included offense where guilt as a principal is alleged (People v. Markus (1978) 82 Cal.App.3d 477, 480, 147 Cal.Rptr. 151), and that the evidence is insufficient to show he aided and abetted Hicks.

A.

Preliminary to the review of Grant's claim we examine the standard of culpability required for aiding and abetting an offense within the meaning of Penal Code section 31.

The jury was instructed on aiding and abetting in the language of CALJIC No. 3.00 (1976 rev.),² CALJIC No. 3.01 (1974 rev.),³ and CALJIC No. 3.14 (3d ed. 1970).⁴ It was instructed that Grant could be found guilty as a principal if he aided Hicks in the robbery with knowledge of Hicks' criminal purpose.

CALJIC No. 3.01 (1974 rev.) has been supported as proper (People v. Vernon (1979) 89 Cal.App.3d 853, 869, 152 Cal.Rptr. 765; People v. Ott (1978) 84 Cal.App.3d 118, 128-130, 148 Cal.Rptr. 479) and attacked as improper (People v. Yarber (1979) 90 Cal.App.3d 895, 909-917, 153 Cal.Rptr. 875) in recent cases. The crux of the dispute is whether aiding and abetting is accomplished, without more, by aiding the commission of the offense with knowledge of the perpetrator's unlawful purpose, as defined by CALJIC No. 3.01 (1974 rev.), or whether there must be an intent to facilitate the commission of the offense. We conclude that Penal Code section 31 requires an intent to facilitate the commission of the offense and that CALJIC No. 3.01 (1974 rev.)⁵ violates Penal Code section 31 and should not be given without modification. (People v. Yarber, supra, 90 Cal.App.3d at p. 916, 153 Cal.Rptr. 875.)

According to Yarber, “[t]he [CALJIC No. 3.01] instructions were revised in 1974 in accordance with authority⁶ that all that is required to convict a defendant of ‘aiding and abetting’ is that he act with knowledge of the wrongful purpose of the perpetrator. [Citations.]” (People v. Yarber, supra, 90 Cal.App.3d at p. 913, 153 Cal.Rptr. 875.)

As we shall show, CALJIC No. 3.01 (1974 rev.) departs from the historic weight of authority and uniform decisions of the California Supreme Court and from the prior CALJIC No. 3.01 instruction.⁷

An instruction on aiding and abetting must, of course, conform to the requirements of Penal Code section 31. “There are no common law crimes in California; i.e., no act or omission is criminal, except as prescribed by the Penal Code, or other statute, ordinance, or municipal, county, or township regulation. [Citations.] But the common law may properly be looked to for the meaning of words in a criminal statute.” (1 Witkin, Cal. Crimes (1963) § 7, p. 10.)

Penal Code section 31 was adopted in its present form in 1872⁸ as part of the act designated The Penal Code of California. (Pen.Code, § 1; see Preliminary Provisions to The Pen.Code, §§ 1-24, Deering's Ann.Pen.Code (1971 ed.) pp. 3-128.) It makes “[a]ll persons concerned in the commission of a crime” including those who “aid and abet in its commission, … principals in any crime so committed.” (Pen.Code, § 31.)

The law of aiding and abetting arose out of the common law of accomplices⁹ and the relationship is preserved in Penal Code sections 31 and 1111.¹⁰ An accomplice, as defined in Penal Code section 1111, is “one who is liable to prosecution for the identical offense charged against the defendant” and is also “[a person] concerned in the commission of a crime,” a phrase also found as the introductory clause to section 31. (People v. Tewksbury (1976) 15 Cal.3d 953, 960, 127 Cal.Rptr. 135, 544 P.2d 1335; People v. Hoover (1974) 12 Cal.3d 875, 879, 117 Cal.Rptr. 672, 528 P.2d 760; People v. Gordon (1973) 10 Cal.3d 460, 466-468, 110 Cal.Rptr. 906, 516 P.2d 298; People v. Shaw (1941) 17 Cal.2d 778, 799-800, 112 P.2d 241, and cases cited therein.) The “test and meaning [of an accomplice], … are expressed in section 31 of the Penal Code.” (People v. Coffey (1911) 161 Cal. 433, 442, 119 P. 901.) Penal Code section 1111 (accomplice) cases are commonly used interchangeably with Penal Code section 31 (principal) cases in defining aiding and abetting. (See, e. g., People v. Tewksbury, supra, 15 Cal.3d at p. 960, 127 Cal.Rptr. 135, 544 P.2d 1335.) It follows that, for purposes of definition, aiders and abettors are accomplices and accomplices, except those acting as perpetrators (People v. Gordon, supra, 10 Cal.3d 460, 468, 110 Cal.Rptr. 906, 516 P.2d 298) are aiders and abettors.

Accordingly, we shall use relevant accomplice cases as authority on the law of aiding and abetting.

The early accomplice cases defined an accomplice as “one who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of the crime” (emphasis added) (People v. Bolanger (1886) 71 Cal. 17, 20, 11 P. 799; the definition comes from Wharton, Criminal Evidence (9th ed. 1884) Accomplices and Co—defendants, § 440, pp. 374-375) a requirement followed in numerous Supreme Court and appellate court cases.¹¹ The required criminal intent in Penal Code sections 31 and 1111 cases has also been variously phrased as a “shared criminal intent,”¹² “guilty knowledge and intent with regard to the commission of the crime”¹³ and as intent to enter into a common or joint undertaking.¹⁴

We shall look at the meaning of the required intent below, but first we examine the reasoning offered as justification for departure from the weight of authority. We take as our primary text the case of People v. Ott (ante, fn. 6), 84 Cal.App.3d 118, 148 Cal.Rptr. 479, the first case to uphold the 1974 revision of CALJIC No. 3.01.

Ott begins by an attempted transmutation of intent into knowledge. It states: “While several California cases have stated that the aider and abettor must share the intent of the one doing the criminal act [citing to Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 287, 42 Cal.Rptr. 676; and other cases but excluding the bulk of the cases in footnotes 11, 12, 13, and 14, ante], an examination of the authority upon which the proposition relies indicates that it is the knowledge of the actor's wrongful purpose—rather than his intent—which must be shared.” (People v. Ott, supra, 84 Cal.App.3d at p. 129, 148 Cal.Rptr. 479; see also People v. Ellhamer (1962) 199 Cal.App.2d 777, 782, 18 Cal.Rptr. 905.)

“Knowledge, of course, is not identical with intent ․” (Morissette v. United States (1952) 342 U.S. 246, 270, 72 S.Ct. 240, 96 L.Ed. 288; People v. Foster (1971) 19 Cal.App.3d 649, 655, 97 Cal.Rptr. 94; People v. Garcia (1967) 250 Cal.App.2d 15, 21, 58 Cal.Rptr. 186.) Ott does not explain the basis for its alchemy. And the cases relied on by Ott,15 with the exception of People v. Ellhamer (1962) 199 Cal.App.2d 777, 781, 18 Cal.Rptr. 905, are opaque as to reason. Ott does have an explanation taken from Ellhamer: “But aside from the cited authorities, appellant's insistence that the definition given in CALJIC No. 3.01 is fatally defective because it omits the element of criminal intent, is also ill founded for the simple reason that aiding in the commission of the crime with knowledge of the wrongful purpose of the perpetrator eo ipso establishes the criminal intent. As stated in People v. Ellhamer, supra, 199 Cal.App.2d at page 782, 18 Cal.Rptr. 905, ‘But it is the knowledge of the wrongful purpose of the actor plus the encouragement provided by the aider and abettor that makes the latter equally guilty. Although the guilt of the aider and abettor is dependent upon the actor's crime, the criminal intent of the aider and abettor is presumed from his actions with knowledge of the actor's wrongful purpose.”’ (People v. Ott, supra, 84 Cal.App.3d at p. 130, 148 Cal.Rptr. 479.)

Ott (as does Ellhamer) here makes a fundamental error “in confusing a mental state with the proof of its existence ․” (Hall, General Principles of Criminal Law (2d ed. 1960) p. 118.)¹⁶ “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 a perpetrator—his knowledge of the perpetrator's purpose will not suffice.” (Fn. omitted.) (People v. Yarber, supra, 90 Cal.App.3d at p. 916, 153 Cal.Rptr. 875.)

An inference has no independent life apart from the criteria which govern it. (See People v. Carmen (1951) 36 Cal.2d 768, 775-776, 228 P.2d 281; and see People v. Hood (1969) 1 Cal.3d 444, 458-459, fn. 7, 82 Cal.Rptr. 618, 462 P.2d 370.) The criteria which govern the inference here are embedded in the law which explicates the mental state of intent. Put another way, the mental state of intent functions as a necessary element of aiding and abetting and provides criteria by which the evidence is organized into legally relevant form and the resulting characterization of the mental state ascribed to a defendant.

As Yarber points out, the inference of intent from knowledgeable aid is generally found where there is no evidence to the contrary. In such cases the common evidentiary components of the inference may safely substitute for or go proxy for the element of intent. But it is error for CALJIC No. 3.01 (1974 rev.) to focus on the constituent parts of a common inference in preference to an explicit statement of the element to be proved.

Accordingly, the trier of fact should be instructed on the mental state of intent required for aiding and abetting so that it may be properly guided in measuring the inference to be drawn from the evidence.

We turn now to examine the intent which the aider and abettor must share with the perpetrator. We begin with People v. Terry (1970) 2 Cal.3d 362, 85 Cal.Rptr. 409, 466 P.2d 961, which is relied on by Ott and People v. Standifer (1974) 38 Cal.App.3d 733, 113 Cal.Rptr. 653. (People v. Ott, supra, 84 Cal.App.3d at p. 129, 148 Cal.Rptr. 479; People v. Standifer (ante, fn. 6), supra, 38 Cal.App.3d at pp. 743-744, 113 Cal.Rptr. 653.)

In Terry, the court rejected an instruction which, in effect, required that the aider and abettor (charged with a murder committed in the course of a robbery) have the same specific intention (there to take money from the victim) as a perpetrator. (People v. Terry, supra, 2 Cal.3d at pp. 400-402, 85 Cal.Rptr. 409, 466 P.2d 961.) The court said: “One who aids and abets does not necessarily have the intention of enjoying the fruits of the crime. (E. g., People v. Lewis, [(1952)] 113 Cal.App.2d 468, 248 P.2d 461 [[[[[…] [encouraging statutory rape].)” (Id., 2 Cal.3d, at p. 401, 85 Cal.Rptr. 409, 466 P.2d 961.) Ott and Standifer go wrong in assuming that the rejection of one form of intent is the rejection of all forms of intent. Terry clearly rejects that notion for it found error in the failure of the trial court to give another instruction requested by the defendant requiring that the jury find that the aider and abettor have “the specific intent to rob or assist in robbery.” (Emphasis added.) (Terry, at p. 402, 85 Cal.Rptr. 409, 466 P.2d 961.) Terry rejected only the sharing of the intent to take money, not the sharing of an intent to facilitate the offense.¹⁷ Terry thus requires that the aider and abettor either share in the same intent required of the perpetrator or share in the intent to facilitate the offense.

Terry was followed by the accomplice case of People v. Tewksbury, supra, 15 Cal.3d 953, 127 Cal.Rptr. 135, 544 P.2d 1335, in which the issue was whether a witness to the offenses of murder and robbery (Mary) was an accomplice. (Pen.Code, § 1111.) The court said: “Criminal liability as a principal attaches to those who aid in the commission of a crime only if they also share in the criminal intent ([Pen.Code,] § 20;¹⁸ also Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 287 [42 Cal.Rptr. 676]) or, in the language of section 31, abet the crime.” (Emphasis added.) (Tewksbury, 15 Cal.3d, at p. 960, 127 Cal.Rptr. 135, 544 P.2d 1335.) The court related the test to the facts as follows: “Mary was thus an accomplice only if at the time she acted she had ‘guilty knowledge and intent with regard to the commission of the crime.’ (People v. Duncan (1960) 53 Cal.2d 803, 816 [3 Cal.Rptr. 351, 350 P.2d 103].) Although it is undisputed that Mary aided appellant by calling the restaurant, by supplying Sheila with pencil and paper, and by driving some of the principals to a point of rendezvous in the vicinity of the crimes, such actions do not confer upon her accomplice status unless she also acted with the requisite guilty intent. She need not have actually had the specific intent to commit a robbery however; the intent requirement is satisfied if Mary, prior to its commission, realized that a robbery was being planned and that she was facilitating its commission. (People v. Terry (1970) 2 Cal.3d 362, 401 [85 Cal.Rptr. 409, 466 P.2d 961]; People v. Germany (1974) 42 Cal.App.3d 414, 420 [116 Cal.Rptr. 841].)” (Fn. omitted.) (People v. Tewksbury, supra, 15 Cal.3d at p. 960, 127 Cal.Rptr. 134, 544 P.2d 1335.)

Tewksbury makes clear that “guilty knowledge” is not sufficient as a standard of culpability, but that an intent to facilitate the offense is required. As applied to the facts of the case, the “intent requirement [was] satisfied” (emphasis added) by Mary's conduct in aiding the commission of the offense, together with her knowledge that by her conduct “she was facilitating its commission.”

We draw from these cases that to be an aider and abettor one must aid the commission of an offense by sharing in the perpetrator's intent or by intending to facilitate its commission.¹⁹

We conclude that it was error to give CALJIC No. 3.01 (1974 rev.). We turn to examine the effect of the error and Grant's claim that there was insufficient evidence of his guilt.

B.

In reviewing a judgment of conviction, an appellate court must view the evidence in the manner most favorable to the respondent, and presume in support of the judgment every fact the trier could reasonably deduce from the evidence. The reviewing court must affirm the trier's determination if there is substantial evidence to support its conclusion. (People v. Vann (1974) 12 Cal.3d 220, 225, 115 Cal.Rptr. 352, 524 P.2d 824.)

We note at the outset that Grant's defense at trial was alibi and he consequently did not seek to claim that as a passenger in Hicks' car, although knowing of the offense, he did not intend to facilitate the robbery. Nonetheless, defendant claims on petition for rehearing that the failure to instruct the jury that an intent to facilitate the robbery as required “denied [[[[[him] a jury determination of whether the inference of such intent should be drawn.” He cites to civil and criminal cases upholding the function of the jury in drawing inferences. “It is the function of the jury to draw the proper inferences from the proof of the circumstances.” (People v. Cullen (1951) 37 Cal.2d 614, 625, 234 P.2d 1.)

The question before us, however, is not whether the jury should have been instructed on intent but whether on this record it was error not to do so. It is, of course, prejudicial error per se to “[relieve] the People of the burden of proving the intent element of [a] crime․” (People v. Hedrick (1980) 105 Cal.App.3d 166, 171, 164 Cal.Rptr. 169; see also People v. Burres (1980) 101 Cal.App.3d 341, 352, 161 Cal.Rptr. 593) and it is likewise prejudicial to conclusively presume an element of the offense. (Ibid.)

But CALJIC No. 3.01 (1974 rev.) on this record did not remove the element of intent from the jury or conclusively presume its existence. Rather, it permitted the jury to find the required element on proof of Grant's aiding Hicks with knowledge of Hicks' criminal purpose. Had Grant claimed facts or if the record presented facts bringing this case within exceptional circumstances, such as those described in Yarber, the case would be otherwise.

The case here is analogous to that involving the claimed failure of a court to give an instruction required sua sponte upon a lesser included offense. That duty “arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.” (People v. Sedeno (1974) 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 518 P.2d 913.) But Grant did not claim that, notwithstanding evidence of aid with guilty knowledge, he did not intend to facilitate the offense. He claims he was not present at all. Here the jury was instructed on the common evidentiary elements from which an intent to facilitate the offense can be inferred. Accordingly, we are presented with a case in which, “[i]n the absence of evidence to the contrary, …” “from a person's actions with knowledge of the purpose of the perpetrator of a crime, his intent to aid the perpetrator can be inferred.” (First emphasis added.) (People v. Yarber, supra, 90 Cal.App.3d at p. 916, 153 Cal.Rptr. 875.) On the record, CALJIC No. 3.01 (1974 rev.) adequately apprised the jury of the grounds upon which it could infer intent.

We examine the record to determine whether there is substantial evidence that Grant knew of the offense and aided in commission of the offense with knowledge of Hicks' purpose.

The record shows that an older model Cadillac, light tan with a lighter color top, drove slowly past Swanson's Cleaners at 4:45 on the day of the robbery. The car contained two black men; the man in the passenger seat stared into the cleaners as the car passed. Employee Maxine Glass saw a similar or identical Cadillac leaving the scene of the crime; the car contained two black men. Grant was in the front passenger seat of a Cadillac stopped a few miles from the scene of the robbery 15 minutes after the robbery. On the passenger side of the car a black “Afro” wig was discovered wrapped in a black shirt; both were identified by the witnesses as similar to the apparel worn by the robber. Underneath the shirt was a folded bundle of 51 $1 bills. The officers discovered the barrel portion of a pistol in the glove box. When arrested Grant was wearing a solid color blue denim jacket and no shirt; witness Anderson identified it as exactly like the jacket used by the robber to hide the gun.

In support of Grant's contention, Hicks testified that he gave a ride to a man named Skip, but that Skip was not carrying a wig, a gun barrel or a black shirt; he left Skip off at the Red Fox Liquor Store where he picked up Grant. The two were immediately stopped by the police about four blocks from the liquor store. Hicks did not see a black shirt or a wig on the seat. Grant testified that he was playing basketball that afternoon and first saw Hicks at the Red Fox Liquor Store. They drove down Broadway, turned right on 30th Street and left on 4th Avenue. They saw a police car behind them and pulled over. The officer ordered them from the car and arrested them. Grant denied knowledge of the shirt, wig and gun barrel.

The testimony of two men was offered to corroborate Grant's testimony that he was playing basketball that afternoon, however, their estimates of the time they left Grant at the Red Fox Liquor Store varied. One stated a group of men went to the liquor store at 4:30 p. m. and the other stated they arrived at the liquor store at about 5 p. m. Both testified defendant parted with them at the liquor store.

The defense evidence was flawed and the jury could properly conclude that Grant was a passenger in the car at the time of the robbery. From the evidence summarized above it seems impossible for Grant to have been riding in the passenger seat of the Cadillac and not to have been aware of the wig wrapped in a black shirt and the stack of $1 bills underneath. Although Hicks could have picked Grant up at the Red Fox Liquor Store after the robbery, this seems unlikely in light of the facts that two black men were seen immediately driving away from the scene of the robbery and the car was stopped 15 minutes later on 58th Street traveling away from the scene of the robbery. When arrested, Grant was wearing the jacket the robber had used to conceal the gun barrel and was not wearing a shirt. Two black men were seen in the car immediately before the robbery driving past the cleaners, with the passenger staring at the cleaners. The jury could infer from the evidence that Grant had knowledge of Hicks' unlawful purpose and aided him, probably as a lookout.

“The mere presence of the accused at the scene of the crime does not essentially establish his guilt as an abettor. Of course it is elemental that one who keeps watch during the commission of the crime to facilitate the escape of the criminal is guilty as a principal.” (People v. Hill (1946) 77 Cal.App.2d 287, 294, 175 P.2d 45; see People v. Durham (1969) 70 Cal.2d 171, 181, 74 Cal.Rptr. 262, 449 P.2d 198.)

There was substantial evidence to support a jury finding that Grant aided and abetted the robbery.

II

Grant next contends that the sentence enhancement imposed because of a prior federal conviction for possession of stolen mail should be stricken.

Former Penal Code section 3024, subdivision (g),²⁰ provided that an offense punishable as a felony or as a misdemeanor (“wobbler”) was expressly deemed a felony subject to enhancement.

The provision was replaced by Penal Code section 667.5, subdivision (f),²¹ a part of the determinate sentence law, which provides that a prior felony conviction from another jurisdiction may be used to enhance a sentence when the offense, “if committed in California is punishable by imprisonment in state prison provided the defendant served one year or more in prison for such offense in the other jurisdiction.” But the specific reference to wobblers does not appear and Grant concludes from this that wobblers are no longer prior convictions that may be used to enhance a sentence pursuant to section 667.5.

Grant argues that a material change in the phraseology of a statute must be viewed as an intent on the part of the Legislature to change the meaning of the statute. (Sacramento Typographical Union No. 46 v. State of California (1971) 18 Cal.App.3d 634, 638, 96 Cal.Rptr. 194.) He argues that when the Legislature repeals a statute which contained a provision and enacts a law on the same subject with the provision omitted, it is presumed that it intended a substantial change in the law (People v. Valentine (1946) 28 Cal.2d 121, 142-143, 169 P.2d 1) and that when language is susceptible of two constructions, the construction more favorable to the offender will be adopted (People v. Ralph (1944) 24 Cal.2d 575, 581, 150 P.2d 401).

Grant correctly states the rules of construction but they are of no benefit to him. There is no ambiguity in Penal Code section 667.5, subdivision (f). Grant's federal conviction meets the express requirements, for his prior offense, if committed in California, satisfies the elements of receipt of stolen goods (Pen.Code, § 496) and he was punished for it by imprisonment for more than one year.

The Legislature did intend to change the law with respect to enhancements for prior convictions to benefit defendants but not to delete offenses classified as wobblers in California from consideration where the prior offense was actually punished as a felony by imprisonment.

Pursuant to the prior law, a mere conviction for a wobbler without imprisonment sufficed to justify enhancement for the prior offense. Under the new law, imprisonment is additionally required. But imprisonment converts a wobbler under California law into a felony. Accordingly, there was no need—indeed, it would have been confusing—to retain the express provision for wobblers in 667.5.

The enhancement was proper.

III

Grant finally contends that the trial court improperly imposed the aggravated term for robbery. For the reasons discussed below, we believe the case must be remanded for resentencing because of the trial court's improper reliance upon facts already used to enhance defendant's sentence (People v. Roberson (1978) 81 Cal.App.3d 890, 893, 146 Cal.Rptr. 777) and upon factually incorrect information contained within the probation officer's report, the document upon which the trial court solely relied.

The same trial judge presided at all phases of the proceedings against defendant—from pretrial hearing through trial, judgment and sentencing. The judge, therefore, heard all of the evidence, testimony and argument offered at the trial in this matter.

At the time Grant was sentenced, however, the judge chose to place exclusive reliance upon the probation officer's report in setting the upper term of imprisonment. The trial judge, in fact, merely read into the record verbatim the findings of the probation officer and concluded: “Therefore, the Court, in going over the probation report, is going to follow the recommendation of the probation officer.”

The information contained in the probation officer's report is drawn solely from police reports, the preliminary hearing transcript and interviews conducted with the defendants and counsel for both the prosecution and defense.²² As we shall show, not only is the report internally inconsistent (containing facts which do not support the probation officer's recommendations regarding aggravation), but its findings and conclusions are unsupported by the record in the case.

Before turning to a discussion of the specific deficiencies in the probation report, we first examine the statutory requirement that facts and reasons supporting the imposition of an aggravated sentence be set forth on the record. (Pen.Code, § 1170, subds. (b) and (c); Cal.Rules of Court, rules 433(c)(5), 439(c) and 443.)

The establishment of criteria for sentencing and a procedure for explication of their application facilitates a key purpose of the determinate sentencing law and provides the basis for reasoned review by this court. “One of the objectives of the new sentencing law is uniformity of sentences (Pen.Code, § 1170, subd. (a)(1); California Rules of Court, rule 410(g)). In order to assess whether judges are imposing like sentences in like situations (Pen.Code, § 1170.4), it is necessary for them to state on the record why a certain sentence has been selected (Pen.Code, §§ 1170, subd. (c), 1170.3; Cal.Rules of Court, rules 443, 425, 433).” (People v. Walker (1978) 83 Cal.App.3d 619, 622, 148 Cal.Rptr. 66.)

More specifically, at the time of sentencing (Pen.Code, § 1170, subd. (c)), the court must “set forth on the record the facts and reasons for imposing the upper … term.” (Pen.Code, § 1170, subd. (b).) In enforcing these statutory requirements, Penal Code section 1170, subdivision (a)(2), declares that “the court shall apply the sentencing rules of the Judicial Council.” These rules are to be promulgated with the goal of promoting “uniformity in sentencing” clearly in mind. (Pen.Code, § 1170.3, subd. (b).)

The Judicial Council's rules require that, in setting forth reasons for its sentence choice, the court must “state in simple language the primary factor or factors that support the exercise of discretion ․” (Emphasis added.) (Cal.Rules of Court, rule 443.) When enunciating “facts and reasons for selecting the upper … term,” the trial judge must “include a concise statement of the ultimate facts which the court deemed to constitute circumstances in aggravation … justifying the term selected.” (Emphasis added.) (Cal.Rules of Court, rule 439(c).)

Of most importance, the Judicial Council's rules state: “Selection of the upper term is justified only if, considering the entire record of the case, including the probation officer's report, other reports properly filed in the case and other competent evidence, circumstances in aggravation are established by a preponderance of the evidence and outweigh circumstances in mitigation.” (Emphasis added.) (Cal.Rules of Court, rule 439(b).)

Pursuant to Penal Code section 1170.3, the Judicial Council has established criteria for determining circumstances in aggravation justifying the imposition of the upper term. These circumstances are found in California Rules of Court, rule 421.

In summary, the statutory sentencing scheme requires the articulation of the reasons for imposing the upper term by applying the criteria set forth in rule 421 and further requires articulation of the ultimate facts supporting the criteria applied. These ultimate facts must find evidentiary support in the entire record of the case. (Pen.Code, § 1170, subd. (b); Cal.Rules of Court, rule 439(b).)

Where a court (as here) attempts to support its sentence choice by merely reading the probation officer's report into the record while stating neither the “primary factor or factors that support the exercise of discretion” (Cal.Rules of Court, rule 443) nor the “ultimate facts which the court deemed to constitute circumstances in aggravation” (Cal.Rules of Court, rule 439(c)), it falls well short of its statutory duty.

In People v. Turner (1978) 87 Cal.App.3d 244, 150 Cal.Rptr. 807, the court rejected the People's assertion that mere incorporation by reference of the probation officer's report was sufficient to justify imposition of the upper base term. “This argument totally ignores the obvious meaning of Penal Code section 1170, subdivision (b), which requires that the court set forth on the record the facts and reasons for imposing other than the middle term. An incorporation by reference is not a statement of facts and/or reasons by the court and is obviously not on the record. If any doubt existed, rule 443 and the comment thereto refute this argument. As appellant states, ‘A statement of the factors utilized by a judge in imposing the upper term is necessary for meaningful appellate … review.’ The procedure utilized here violates both the letter and spirit of the statute and the court rules.” (Id., at p. 247, 150 Cal.Rptr. 807.) The practice of the trial judge in the instant case—reading portions of the probation officer's report into the record verbatim and then adopting the report wholesale—is no less obnoxious to the letter and spirit of the determinate sentence law.

As Grant points out, the danger of relying exclusively upon the probation officer's report is magnified in a case such as this where the report is itself internally inconsistent and is in conflict with the evidence actually presented at trial.

In reading the probation officer's list of “circumstances in aggravation,” the trial judge stated that “defendant displayed part of a weapon” and that “defendant was described as being armed with a pistol,” thus clearly implying that Grant was the perpetrator of the robbery. In quoting from the probation officer's report, the trial judge described Grant as evincing a “certain degree of leadership.” The trial judge further read the probation officer's report, stating that “defendant's accomplice was viewed as the driver of the vehicle.”

Aside from this internal inconsistency, there is substantial evidence in the record indicating that Hicks—not Grant—was the robber who wielded the detached pistol barrel.

The prosecutor's theory of the case was that Hicks was the perpetrator and Grant the aider and abettor. In his closing argument, the prosecutor told the jury that Hicks was “the robber in this case, the person that actually walked into the Swanson [Cleaners] and held that gun barrel․ We know that because the person with that large Afro was the driver of that car, and he was the driver of that car when he was stopped.” He also told the jury in his closing argument: “Mr. Grant, it is the contention of the People, was the passenger in that car. What was his part? There was only one person that came in. Under the law a person who aides [sic] and abets another individual in the commission of a crime with knowledge of the criminal intent of the full perpetrator is as guilty of that offense as the actual perpetrator.” This theory was supported by the evidence at the trial. For example, Hicks was wearing black pants and Grant was wearing blue jeans when both were arrested shortly after the robbery. The description of the robber broadcast over the police radio stated that the suspect was wearing black pants. The trial court's findings are also contradicted by the testimony of witness Maxine Glass who stated that the perpetrator of the robbery (“the male Negro with the large bushy Afro”) was also the driver of the car.

Grant was tried and convicted as an aider and abettor but sentenced as the perpetrator through the trial judge's selective use of a part of the record before the court.

The trial judge, pursuant to his duty to consider the “entire record” of the case in imposing the upper term (Cal.Rules of Court, rule 439(b)), must consider the record of the trial if that record is tangibly before the court either in the form of the written record or statements relative thereto, or in the form of his participation as the judge presiding at the trial. The trial judge may not close his mind to the facts of the trial simply because they are not before him in written form.

In addition to the trial judge's exclusive reliance upon factually incorrect information contained within the probation officer's report, the court, in imposing the upper term, also improperly relied upon facts already used to enhance defendant's sentence. (Pen.Code, § 1170.2, subd. (b).)

Grant's sentence was enhanced by one year because of a prior felony conviction which he admitted—namely, the 1975 federal conviction of possessing stolen mail (18 U.S.C. § 1708) discussed supra. However, the same prior conviction was also employed as a factor in the trial court's determination to impose the upper base term of imprisonment. As the trial court stated: “Then you were before the U.S. Marshal in federal court. You went to Lompoc for possession of stolen mail matter. That was in '76.”

Such a double use of defendant's prior conviction is clearly proscribed. (Pen.Code, § 1170, subd. (b); Cal.Rules of Court, rule 441(c); People v. Roberson, supra, 81 Cal.App.3d at p. 893, 146 Cal.Rptr. 777.) As the Roberson court stated, such a fact “is to be used to aggravate or to enhance, one or the other, but not both as was done here.” (Ibid.)

Finally, Grant's contention that the trial court erred in basing its aggravated sentence on facts relating to his personal history, rather than to the crime, must be rejected in light of People v. Cheatham (1979) 23 Cal.3d 829, 831, 153 Cal.Rptr. 585, 591 P.2d 1237. (See Cal.Rules of Court, rules 421(b) and 423(b).)

Because the trial court merely incorporated the probation officer's report without adequately articulating the ultimate facts underlying its sentencing decision, because that report was internally inconsistent and factually incorrect in light of the testimony at the trial, and because the fact of defendant's prior conviction was already used to enhance his sentence, the case is remanded for sentencing. (People v. Turner, supra, 87 Cal.App.3d at p. 247, 150 Cal.Rptr. 807; People v. Roberson, supra, 81 Cal.App.3d at pp. 893-895, 146 Cal.Rptr. 777.)

The judgment is affirmed. The case is remanded for resentencing.²³

FOOTNOTES

1.  After the filing of the initial opinion in this case affirming the judgments both as to Grant and his codefendant Benjamin Hicks, the court was informed that Hicks had died. Accordingly, the appeal as to Hicks is moot.

2.  CALJIC No. 3.00 (1976 rev.), given as modified: “All persons concerned in the commission of a crime who either directly and actively commit the act constituting the offense or who with knowledge of the unlawful purpose of the perpetrator of the crime aid and abet in its commission or, whether present or not, who advise and encourage its commission, are regarded by the law as principals in the crime thus committed and are equally guilty thereof.” (CALJIC (3d ed. 1976 pocket pt.), p. 55.)

3.  CALJIC No. 3.01 (1974 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.” (CALJIC (3d ed. 1976 pocket pt.), p. 57.)

4.  CALJIC No. 3.14: “Merely assenting to or aiding or assisting in the commission of a crime without guilty knowledge or intent is not criminal, and a person so assenting to, or aiding, or assisting in, the commission of a crime without guilty knowledge or intent in respect thereto, is not an accomplice in the commission of such crime.” (CALJIC (3d ed. 1970), p. 80.)

5.  CALJIC No. 3.01 (4th ed. 1979) continued the error. Moreover, CALJIC No. 3.14 (4th ed. 1979) inserts the error into the instruction on the intent requirements for an accomplice. (Compare ante, fn. 3.)

6.  Yarber cites to “(People v. Terry (1970) 2 Cal.3d 362, 401 [85 Cal.Rptr. 409, 466 P.2d 961]; People v. Ott (1978) 84 Cal.App.3d 118, 130 [148 Cal.Rptr. 479]; People v. Standifer (1974) 38 Cal.App.3d 733, 744 [113 Cal.Rptr. 653]; People v. Scofield (1971) 17 Cal.App.3d 1018, 1026 [95 Cal.Rptr. 405]; People v. Belenger (1963) 222 Cal.App.2d 159, 163 [34 Cal.Rptr. 918]; People v. Ellhamer (1962) 199 Cal.App.2d 777, 782 [18 Cal.Rptr. 905]; People v. Goldstein (1956) 146 Cal.App.2d 268, 273 [303 P.2d 892]; People v. Beltran (1949) 94 Cal.App.2d 197, 206 [210 P.2d 238]; see People v. Holford (1965) 63 Cal.2d 74, 81 [45 Cal.Rptr. 167, 403 P.2d 423].)” (People v. Yarber (1979) 90 Cal.App.3d 895, 913, 153 Cal.Rptr. 875; and see People v. Vernon (1979) 89 Cal.App.3d 853, 869, 152 Cal.Rptr. 765.)

7.  Prior to the 1974 revision, CALJIC No. 3.01 required a criminal intent. “A person aids and abets the commission of a crime if he knowingly and with criminal intent aids, promotes, encourages or institutes by act or advice, or by act and advice, the commission of such crime.” (Emphasis added.) (CALJIC No. 3.01 (3d ed. 1970), p. 71.)

8.  Penal Code section 31 states: “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, lunatics or idiots, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.”

9.  See Perkins on Criminal Law (1957) ch. 6, § 8, p. 560 et seq.

10.  The provisions, of course, perform different functions. Penal Code section 31 concerns criminal liability and section 1111 concerns testimonial integrity.

11.  See, e. g., People v. Perez (1973) 9 Cal.3d 651, 658, 108 Cal.Rptr. 474, 510 P.2d 1026; People v. Westek (1948) 31 Cal.2d 469, 474, 190 P.2d 9; People v. Lima (1944) 25 Cal.2d 573, 578, 154 P.2d 698; People v. Shaw (1941) 17 Cal.2d 778, 798-799, 112 P.2d 241; People v. Cisneros (1973) 34 Cal.App.3d 399, 414, 110 Cal.Rptr. 269; People v. Williams (1968) 260 Cal.App.2d 868, 873, 67 Cal.Rptr. 442; People v. Phillips (1966) 240 Cal.App.2d 197, 202, 49 Cal.Rptr. 480; People v. Jones (1964) 228 Cal.App.2d 74, 94, 39 Cal.Rptr. 302; People v. Horton (1963) 213 Cal.App.2d 185, 188, 28 Cal.Rptr. 666; People v. Freytas (1958) 157 Cal.App.2d 706, 713-715, 321 P.2d 782; People v. Lamb (1955) 134 Cal.App.2d 582, 585, 285 P.2d 941; People v. Walker (1948) 88 Cal.App.2d 265, 268, 198 P.2d 534; People v. Featherstone (1945) 67 Cal.App.2d 793, 796, 155 P.2d 685; People v. Frahm (1930) 107 Cal.App. 253 263, 290 P. 678.

12.  People v. Terry, supra, 2 Cal.3d at p. 401, 85 Cal.Rptr. 409, 466 P.2d 961; People v. Francis (1969) 71 Cal.2d 66, 72, 75 Cal.Rptr. 199, 450 P.2d 591; People v. Durham (1969) 70 Cal.2d 171, 181, 74 Cal.Rptr. 262, 449 P.2d 198; People v. Yarber, supra, 90 Cal.App.3d at pp. 912-913, 153 Cal.Rptr. 875; People v. Markus (1978) 82 Cal.App.3d 477, 481-482, 147 Cal.Rptr. 151; In re David K. (1978) 79 Cal.App.3d 992, 998, 145 Cal.Rptr. 349; People v. Bohmer (1975) 46 Cal.App.3d 185, 199, 120 Cal.Rptr. 136; People v. Moran (1974) 39 Cal.App.3d 398, 412-413, 114 Cal.Rptr. 413; People v. Drolet (1973) 30 Cal.App.3d 207, 216, 105 Cal.Rptr. 824; People v. Doptis (1969) 276 Cal.App.2d 738, 742, 81 Cal.Rptr. 314; People v. Bryson (1967) 257 Cal.App.2d 201, 205-206, 64 Cal.Rptr. 706; Lavine v. Superior Court (1965) 238 Cal.App.2d 540, 544, 48 Cal.Rptr. 8; People v. Howard (1964) 226 Cal.App.2d 281, 285-286, 37 Cal.Rptr. 918; People v. Allen (1962) 208 Cal.App.2d 537, 541, 25 Cal.Rptr. 351; People v. Villa (1957) 156 Cal.App.2d 128, 134, 318 P.2d 828; Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 287, 42 Cal.Rptr. 676; People v. Wooten (1958) 162 Cal.App.2d 804, 810, 328 P.2d 1040; People v. Hill (1946) 77 Cal.App.2d 287, 293, 175 P.2d 45; see also Witkin, Cal. Crimes (1975 supp.) § 45, pp. 52-55.

13.  People v. Hoover (1974) 12 Cal.3d 875, 879, 117 Cal.Rptr. 672, 528 P.2d 760; People v. Gordon (1973) 10 Cal.3d 460, 466-467, 110 Cal.Rptr. 906, 516 P.2d 298; People v. Duncan (1960) 53 Cal.2d 803, 816, 3 Cal.Rptr. 351, 350 P.2d 103; People v. Killman (1975) 51 Cal.App.3d 951, 956-957, 124 Cal.Rptr. 673; People v. Masters (1963) 219 Cal.App.2d 672, 679-680, 33 Cal.Rptr. 383; People v. Darnold (1963) 219 Cal.App.2d 561, 576-578, 33 Cal.Rptr. 369.

14.  People v. Hoover, supra, 12 Cal.3d at p. 882, 117 Cal.Rptr. 672, 528 P.2d 760; People v. Cisneros, supra, 34 Cal.App.3d at p. 413, 110 Cal.Rptr. 269; People v. Crary (1968) 265 Cal.App.2d 534, 541, 71 Cal.Rptr. 457; People v. Hailey (1957) 149 Cal.App.2d 453, 459, 308 P.2d 517.

15.  “(People v. Tambini (1969) 275 Cal.App.2d 757, 765 [80 Cal.Rptr. 179]; People v. Ellhamer (1962) 199 Cal.App.2d 777, 781 [18 Cal.Rptr. 905]; People v. Williams (1960) 179 Cal.App.2d 487, 490 [3 Cal.Rptr. 782]).”

16.  The same confusion inhabits most of the cases set forth in footnote 6, ante.

17.  “The accomplice's interest … need not be financial; there may be many reasons why he shares in the hope for success.” (LaFave and Scott, Criminal Law, p. 508.)

18.  The citation to Penal Code section 20 suggests that the shared intent required of the aider and abettor partakes of the scienter required for the offense charged and may vary with the intent required of the perpetrator. (See People v. Madison (1966) 242 Cal.App.2d 820, 824-827, 51 Cal.Rptr. 851 [criminal negligence].)

19.  The gravamen of aiding and abetting was captured by Judge Learned Hand. “In order to aid and abet another to commit a crime it is necessary that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.”’ (L. Hand, J., in United States v. Peoni (2d Cir. 1938) 100 F.2d 401, 402, quoted with approval in Nye & Nissen v. United States (1949) 336 U.S. 613, 619, 69 S.Ct. 766 [93 L.Ed. 919, 925].)

20.  Former Penal Code section 3024, subdivision (g), provided: “For the purpose of determining whether or not a conviction for a public offense in another jurisdiction is a previous felony conviction under this section, the word ‘felony’ is defined as a public offense which, if committed in this State, could have been punished as a felony under the laws of this State. Where such an offense is punishable in this State either as a felony or as a misdemeanor, it may be deemed a felony for the purposes of this section.” (Added by Stats.1941, ch. 106, § 15, p. 1110; repealed by Stats.1976, ch. 1139, § 279, p. 5151, operative July 1, 1977.)

21.  Penal Code section 667.5, subdivision (f), provides: “A prior conviction of a felony shall include a conviction in another jurisdiction for an offense which if committed in California is punishable by imprisonment in state prison provided the defendant served one year or more in prison for such offense in the other jurisdiction. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law provided the defendant served one year or more in prison for such offense in the other jurisdiction.”

22.  This is probably the common content of the probation officer's report inasmuch as the trial transcript is not normally prepared until appeal and it is unlikely that the probation officer attended the trial. Consequently, there is in most cases an inherent limitation on the content of the probation report where a trial occurred.

23.  Grant also contends and respondent concedes that he is entitled to credit for seven days spent in presentence custody after his conviction of robbery. If otherwise eligible, defendant's claim of entitlement to behavior and participation credits attributable to his presentence time in local custody is valid. (People v. Sage (1980) 26 Cal.3d 498, mod. 27 Cal.3d 144a, 165 Cal.Rptr. 280, 611 P.2d 874 [as modified].) The credit shall be given on resentencing.

BLEASE, Associate Justice.

REYNOSO, Acting P. J., and JANES, J.,* concur.