PEOPLE v. FRANKLYN (1984)

Defendant Jeffrey Anthony Franklyn was convicted, by a jury, of four felony offenses arising out of the robbery of a grocery market.   These offenses included first degree murder (Pen.Code, § 187;  count I),¹ robbery (§ 211;  count II), and two counts of attempted murder (§§ 664/187;  counts III and IV).

The special circumstances that the murder of Kenneth Bolan was committed by the defendant while he was an accomplice in the commission of the crime of robbery in violation of section 211 within the meaning of section 190.2, subdivision (a)(17), in connection with count I was found true by the jury.   In addition, the jury found defendant had used a firearm in the commission of each of the offenses.

Defendant was sentenced to life in prison without possibility of parole on the felony-murder conviction.   Sentences on the other offenses were stayed, with the stay to become permanent upon completion of the sentence on the felony-murder conviction.   This appeal followed.

On appeal, defendant contends:  (1) the trial court improperly instructed the jury on the mens rea required of an aider and abettor;  and (2) the jury instructions on the requisite malice of attempted murder are contradictory and require a reversal of the convictions for attempted murder.²

We have concluded, in light of People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318, that the convictions for first degree felony murder and robbery must be reversed.   Furthermore, in view of the contradictory jury instructions defining the mental element essential to the crime of attempted murder, we have concluded the convictions for attempted murder must also be reversed.

Facts

Viewed in accordance with the usual rule governing appellate review (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738), the evidence established that on September 15, 1981, at approximately 2 p.m., Randy Otsuji, store manager of Frank's Market located at 250 North La Brea in Inglewood, was shelving products when he first observed from about 20 feet away two young black men in maroon/red jackets walking at a fast pace through the store.   Otsuji became suspicious and went to observe the men from the office's one-way mirror.   From the office area, elevated 10 to 15 feet above the store, Otsuji continued to watch the men.   When Kenneth Bolan, a liquor clerk, went upstairs to the office to retrieve some cash, Otsuji advised him of the two men.   Before leaving the office to return to the liquor department, Bolan pointed out, through the one-way mirror, the two men to storeowner Donald Yasuda.   After Bolan left the office, Donald Yasuda watched the men for a minute or two.   When Donald Yasuda saw that the two men appeared to be waiting in line to be served at the liquor department, he proceeded to the produce department which was located at the opposite end of the store.

Serving customers at the liquor counter that afternoon were three employees:  Bolan, Mary Yasuda and Ralph Vengas.   Venegas waited on a woman at the far end of the liquor counter while Bolan, who had just returned from the office, and Mary Yasuda waited on customers at the register at the opposite end of the liquor counter.   Bolan reached into the drawer beneath the register for a bag of money just as one of the men in a red jacket stepped behind the counter and grabbed the bag from Bolan.   When Bolan jerked back suddenly, grabbing the bag, the man shot Bolan in the head.   At that instant Bolan released his grip on the bag and fell down wounded while the man fell back into some liquor bottles.   The man hastily ran from behind the counter, knocking down Mary Yasuda as he rushed toward the door.   The other jacketed man, who had been standing on the customer's side of the counter, also ran with the shooter, and together they exited the market's automatic middle doors.

Several market employees heard the shots and screams, and they either ran toward the liquor department or turned their eyes in that direction in time to see the two men fleeing.   Among those employees who witnessed the escape were Mary Yasuda and clerk Jeffrey Mueting.   Mueting, from his post at register 4, which was located three registers away from register 1 in the liquor department, saw the two men's profiles as they ran past him.

Once outside the market which faces La Brea Avenue, the two men made a sharp right turn and ran east on Beach Boulevard along the side of the market.   One of the fleeing pair fired several .22 caliber bullets in the general westerly direction of the market employees who ran after them.

Meanwhile, Mr. Gonzalo Lizarraga, a UPS driver, had double parked at 200 East Beach in preparation to make several pickups at Del-Kay Plastics.   A 1969 Datsun car was parked between his truck and the curb and it was to this parked and unoccupied car that the two jacketed men ran.   The UPS driver first heard shots and then observed from a distance of about 15 feet the two men reach the Datsun.   He saw one of the men fire a shot before entering the passenger side of the car.   The other man entered the car on the driver's side and then took about 10 seconds to start the car.   Once the car's engine started, the two men sped away, traveling east on Beach Boulevard.

A few moments earlier inside the market Curtis Ankenberg, who worked at register 6 located farthest from the liquor department, heard two shots and glass break and he hastily ran to the produce room at the extreme back of the store.   Quickly, Ankenberg grabbed the back door key from the produce clerk.   While opening the door which opens onto Beach Boulevard, Ankenberg heard shots being fired from the street.   Upon opening the door, he saw two black males running east on Beach.   He observed as they got into a Datsun and drove east.   Although Ankenberg did not see the men's faces, he was able to write down their license plate number which was ZBB 814.   Ankenberg then returned to the market and called the police.

A radio message alerting area police of the incident was then broadcast.   Police officers and a paramedic unit soon arrived but were unable to save the life of clerk Bolan who sustained a fatal .38 caliber gunshot wound to the head.

Traffic Officer Hoffman was traveling northbound on Prairie Avenue when he received the call concerning the Frank's Market incident and a description of the two suspects.   Almost immediately thereafter he saw the suspects driving south on Prairie near Manhattan Beach boulevard in Los Angeles, wearing what appeared to be red blazer jackets.   As he changed direction himself, Hoffman advised nearby units of the suspect's location.   Hoffman proceeded to follow the suspects when another motorist, unconnected with the robbery, signalled to Hoffman and subsequently detained the officer for about 15 seconds.   During this brief period, Hoffman lost sight of the suspects.

Meanwhile, Mrs. Esme Flowers and her daughter arrived home at 3612 W. 102nd Street.   As they drove into their carport, they observed a small car with two black males pull into a nearby carport.   According to Mrs. Flowers, the men pulled in and out of several carports before parking at the end carport which contained a trash bin.   The two men who emerged from the car were strangers to Mrs. Flowers but she noticed that one man was wearing a light colored shirt and the other had on a red shirt.   She watched as they placed something under the trash bin.   Mrs. Flowers continued to observe the men as they quickly scrambled through a hole in the back fence and disappeared.   Within five minutes, police officers, including Officer Harry Clark, arrived and began to question Mrs. Flowers who pointed to the small car and told the officers what she had just witnessed.

Upon his arrival at the carport area of 3612 W. 102nd Street, Officer Clark located the suspects' vehicle, a 1969 Datsun with the license number ZBB 814.   The officer's search of the carport area uncovered a maroon jacket behind a trash bin and a .22 caliber sawed-off rifle underneath the same bin.

Meanwhile, after having lost sight of the suspects' car on Prairie Avenue, Officer Hoffman proceeded to search the nearby residential areas.   At 102nd street, he joined with other officers who had detained two men matching the physical description of the suspects.   The two detainees were not wearing red jackets.

Shortly thereafter, Officer Arlen Vaselenko escorted market employees Venegas and Otsuji to 104th Street east of Yukon where they were asked to identify the two detainees.   The employees, who remained seated in the police car, were unable to make a positive identification.   However, Thaddeus Paul Daley and Curtis Prentice Wilson were arrested at that time.

Officer Richard Causey, assigned to the Investigation Identification Bureau, arrived at 3612 W. 102nd Street around 3 p.m. that same afternoon.   He observed the 1969 Datsun and a trash bin near the wall.   He also observed a maroon colored shirt wedged between the bin and the wall.   Upon his examination of the jacket, Causey found a wallet, keys, a driver's license, and other identification belonging to defendant Jeffrey Anthony Franklyn.   Causey also noticed a loaded .22 caliber sawed-off rifle underneath the trash bin.   According to Officer Causey, defendant's prints ³ were not found on or inside the car nor were they found on the rifle.

Officer Michael Harvey arrived at 104th Street near Yukon soon after hearing of the Frank's Market incident over his police radio.   Around 2:30 he began stopping several black males in the area.   Defendant Franklyn was one of those whom Harvey stopped.   Harvey observed defendant as he was walking near an apartment building.   When questioned, defendant explained that he was coming from his girl friend's house but was carrying no identification on his person.   Before allowing defendant to leave, Officer Harvey took defendant's picture in which defendant was wearing a black tank-top shirt with white piping and several neck chains.

Calvin Williams, who was questioned several times by police before trial, testified that he had known the defendant for many years, and that defendant and Williams' sister had had a relationship.   When asked to repeat his out-of-court statement to the police that defendant had confessed to Williams about his involvement in the Frank's Market robbery and murder, Williams claimed he had never told this to the police.   Williams explained how he had lied about defendant's alleged confession because at that time he (Williams) had been angry with defendant when defendant had refused to bail Williams' sister out of jail.   After recanting his out-of-court statement about defendant's confession, Williams testified that defendant had never mentioned anything about the Frank's Market incident to him.   Williams told the court that defendant had told him that someone had “ripped off” his (defendant's) jacket while defendant was in the process of selling marijuana.

Defendant Jeffrey Anthony Franklyn was arrested in Berkeley, California, in December 1981.   At the time of his arrest and at trial defendant denied any involvement in the Frank's Market incident.   He further denied knowing Tyrone Richardson.   Defendant's version of the events of September 14 and 15, 1981, was as follows:

On September 14, he accompanied Calvin Williams by bus to an Inglewood motel where they met one “Jay,” a drug dealer.   While Williams proceeded to purchase some marijuana that day, defendant merely bargained with Jay about a price for a future sale.   The following day, September 15, defendant went by bus to Alvarado and 8th Streets for a scheduled morning appointment with his parole agent.   At trial, defendant admitted to having served time from 1979 to 1981 for armed robbery.   Defendant also admitted that in the 1979–1981 instance he pled guilty because he had done it.   After meeting with his parole agent, defendant took a bus to Jay's Motel where he purchased some marijuana.   Defendant then rode another bus to the area of the Kuli Kos Apartments on 102nd Street where he began selling the drugs.   Defendant took a little time from his sale of drugs on the street to go inside the apartment complex and to participate in a dice game.   When this group of gamblers, including defendant, saw some police units arrive, they quickly abandoned their game, dispersed, and walked outside the apartment building.

At that time defendant and several others were stopped by the officers but the officers did not “pat him down.”   It was then that defendant decided to hide his identification so that if he were stopped a second time he could give the officers a false name.   Defendant explained at trial that he had decided to use the false name plan to avoid having a parole hold placed on him.   Since he was already on parole, defendant knew that a parole hold meant that he would go to jail without the chance of bail.

Defendant walked down to 104th Street and continued to sell drugs.   When stopped a second time by the police, defendant abandoned his false name plan and gave the officers his real name.   This time the officers photographed defendant before allowing him to leave.   Defendant then attempted to retrieve his jacket and identification from behind the trash bin but was unable to do so because of the many police officers in the carport area.   Defendant finally gave up trying to recover his jacket and went home.

Subsequently, defendant received a call from Calvin Williams who informed him that the Herald Examiner had named him (defendant) as a suspect in a robbery and murder case.   Defendant testified he had never been to Frank's Market and he denied any involvement in the robbery.

Defendant explained that between September 16 and December he tried to stay out of the police officers' way in the hope that “they would catch the right guy.”   Defendant was arrested in December at a rally in Berkeley, California.

A lineup was held on January 19, 1982.   Jeffrey Mueting, one of the Frank's Market employees, was able to pick defendant as the man who had accompanied Tyrone Richardson during the Frank's Market robbery and murder.   Mueting so testified.

Discussion

IIn View of the Inadequate Jury Instructions on Aiding and Abetting, the Convictions for Felony-Murder and Robbery Must Be Reversed

Defendant was convicted of first-degree felony murder on the theory that he aided and abetted Tyrone Richardson in the commission of the crime.   Defendant urges reversal of his convictions for the robbery and felony-murder of Kenneth Bolan on the ground that the jury was inadequately instructed on the criminal intent required to convict a defendant as an aider and abettor of the crime.

The record shows that the jury was instructed on aiding and abetting under the 1979 revision of CALJIC Nos. 3.00 ⁴ and 3.01.⁵

Subsequent to the defendant's convictions for felony-murder and robbery, our Supreme Court handed down its decision in People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318, holding that CALJIC No. 3.01, given in the case at bench, erroneously defines aiding and abetting by failing to adequately inform the jury of the criminal intent required to convict a defendant as an aider and abettor of the crime.

The Beeman court explained “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.”  (35 Cal.3d at p. 560, 99 Cal.Rptr. 60, 674 P.2d 1318;  emphasis in original.)

Furthermore, in the recent case of People v. Johnson (1984) 155 Cal.App.3d 241, 258, 201 Cal.Rptr. 908, Division Four of this court held, in light of Beeman, that the last paragraph of CALJIC No. 3.00, which was also given in the case at bench, suffers from the same deficiency as CALJIC No. 3.01.   It failed to adequately inform the jury of the criminal intent required to convict a defendant as an aider and abettor.  (Ibid.)

In view of Beeman, the CALJIC Committee has revised CALJIC Nos. 3.00 and 3.01, which are set forth in the margin.⁶

A. Defendant is Entitled to the Benefit of the Beeman Decision

 We now turn to the issue of Beeman's retroactivity.   Legislatures normally look forward.   Courts normally look back.  (Schaefer, Prospective Rulings:  Two Perspectives (1982) The Sup.Ct.Rev. 1, 2.)   Thus, in applying court decisions, retroactivity is the rule, prospectivity the exception.   (Donaldson v. Superior Court (1983) 35 Cal.3d 24, 37, 196 Cal.Rptr. 704, 672 P.2d 110;  People v. Charles (1967) 66 Cal.2d 330, 335, 57 Cal.Rptr. 745, 425 P.2d 545;  Traynor, Quo Vadis, Prospective Overruling:  A Question of Judicial Responsibility (1977) 28 Hastings L.J. 533, 534–535;  Johnson, The Supreme Court of California (1967–1968) Foreword:  Retroactivity in Retrospect (1968) 56 Cal.L.Rev. 1612, text accompanying fn. 3;  see also Perrello and Golembiewski, Retroactivity of California Supreme Court Decisions:  A Procedural Step Toward Fairness (1981) 17 Cal.Western L.Rev. 403.)

In Donaldson v. Superior Court, supra, 35 Cal.3d 24, 36, 196 Cal.Rptr. 704, 672 P.2d 110, our Supreme Court held that “[i]n determining whether a decision should be given retroactive effect, the California courts undertake first a threshold inquiry, inquiring whether the decision established new standards or a new rule of law.   If it does not establish a new rule or standards, but only elucidates and enforces prior law, no question of retroactivity arises.”  (See also People v. Mutch (1971) 4 Cal.3d 389, 395–396, 93 Cal.Rptr. 721, 482 P.2d 633.)   The Donaldson court also explained that there is no issue of retroactivity when it resolves a conflict between lower court decisions or addresses an issue not previously presented to the courts:  “In all such cases the ordinary assumption of retrospective operation [citations] takes full effect.”  (35 Cal.3d at p. 37, 196 Cal.Rptr. 704, 672 P.2d 110.)

 Our examination of Beeman reveals that the Beeman court resolved a conflict between lower court decisions and did not establish a new rule or standard.   We conclude, therefore, that no issue of retroactivity arises, and Beeman applies to the case at bench.

B. For Purposes of the Felony-Murder Rule, Beeman Applies Only to the Underlying Felony

 Next, we determine whether it is necessary under the Beeman decision when a defendant is charged with felony-murder on the theory of aiding and abetting to show intent to kill in addition to the intent to aid the commission of the underlying felony.

In the recent case of In re Deatrick A. (1984) 155 Cal.App.3d 340, 202 Cal.Rptr. 64, Division Four of this court addressed this problem.   There, in a juvenile proceeding, the trial court found a juvenile defendant had committed robbery and felony murder on the theory of aiding and abetting even though he neither committed a killing nor intended to kill.   The evidence showed that an adult male armed with a shotgun and two boys robbed a group of men at a barbeque.   While the adult held the group of men at bay with the shotgun, after ordering them to throw their money on the ground, the two boys gathered up their money.   Upon leaving the scene of the robbery, the adult male discharged his weapon twice, killing one of the victims.   On appeal, in addressing the application of People v. Beeman, the court in In re Deatrick A. held “that the intent requirement of Beeman applies only to the underlying felony in felony-murder cases, and not to the act of killing itself.”  (Id., at p. 344, 202 Cal.Rptr. 64.)   For the reasons to follow, we agree with the Deatrick holding and find it controlling here, even though it arose in the setting of a juvenile proceeding.

In People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697, the Supreme Court held that the only criminal intent required for first degree felony murder is the specific intent to commit the particular felony and, therefore, the defendant's state of mind with respect to the homicide is entirely irrelevant and need not be proved at all.  (Id., at pp. 475–477, 194 Cal.Rptr. 390, 668 P.2d 697.)

We conclude, as the Deatrick court did, that Beeman has not eroded the Dillon holding, despite the statement in Beeman that “[t]he liability of an aider and abettor extends also to the natural and reasonable consequences of the acts he knowingly and intentionally aids and encourages.”  (35 Cal.3d at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)  Beeman was not a felony-murder case and contains no indication that the court meant to overrule Dillon.   Moreover, the substantive statutory definition of the crime of first degree felony murder does not include either malice or premeditation.  (People v. Dillon, supra, 34 Cal.3d at p. 475, 194 Cal.Rptr. 390, 668 P.2d 697.)   Furthermore, in our tripartite system of government, it is the function of the legislative branch to define crime.  (Id., at p. 477, 194 Cal.Rptr. 390, 668 P.2d 697.)

Turning to the underlying felony in the case at bench, it is apparent from the record that defendant was convicted of the robbery of Bolan on the theory he aided and abetted Tyrone Richardson in its commission.   Furthermore, as is apparent from the evidence, defendant did not kill Bolan.   Rather, Tyrone Richardson killed Bolan.   Thus, defendant's conviction for first degree murder was predicated solely on defendant's liability as an aider and abettor for the underlying robbery.

 Here, the trial court instructed the jury by giving them the 1979 Revision of CALJIC No. 3.01.   This instruction informed the jury, in short, that knowledge by an aider and abettor of the perpetrator's criminal purpose is all that is required.   It however failed to inform the jury that in addition to knowledge of the perpetrator's criminal purpose a defendant cannot be found guilty of a crime as an aider and abettor unless he harbors the intent to either commit the crime, encourage commission of the crime, or facilitate its commission.  (People v. Beeman, supra, 35 Cal.3d at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)   This deficiency constitutes error.  (Id., at p. 551, 199 Cal.Rptr. 60, 674 P.2d 1318.)

Moreover, the jury was instructed under the 1979 revision of CALJIC No. 8.27 which provided:

“If a human being is killed by any one of several persons engaged in the perpetration of, or attempt to perpetrate, the crime of robbery, all persons who either directly and actively commit the act constituting such crime or who with knowledge of the unlawful purpose of the perpetrator of the crime aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.”

Under Beeman, this instruction suffers from the same defect as CALJIC No. 3.01.   It failed also to inform the jury of the criminal intent required to convict a defendant of first degree felony-murder as an aider and abettor.⁷

C. Standard of Prejudice

 Having determined that the trial court erred when it failed to instruct the jury as to the intent requirement of an aider and abettor under Beeman, we now turn to the appropriate test of prejudice.

In People v. Beeman, supra, 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318, the Supreme Court concluded that, under the Watson ⁸ standard, the instructional error there required a reversal and therefore refused to “decide whether failure to correctly instruct on the element of criminal intent should as a general rule be reviewed under a stricter rule of harmless error.”  (35 Cal.3d at p. 563, 199 Cal.Rptr. 60, 674 P.2d 1318.)   Thus, the standard for reversal is an open question.

Defendant urges a per se reversal of his convictions for robbery and felony-murder under California law, citing People v. Modesto (1963) 59 Cal.2d 722, 31 Cal.Rptr. 225, 382 P.2d 33, and People v. Sedeno (1974) 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913.   He further urges such a reversal under the standard developed in Sandstrom v. Montana (1979) 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, and Connecticut v. Johnson (1983) 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823.   He contends that the instructional error in this case is of constitutional dimensions and therefore requires a standard of automatic reversal.   In support of this contention, he argues that the failure to instruct on a particular element of a crime removes that element from consideration of the jury and thereby deprives him of due process of law.

In Sandstrom, the defendant was convicted of “deliberate homicide,” defined by Montana law as a killing which is “purposely or knowingly” committed.   Thus the defendant's state of mind with respect to the killing is an essential element of the crime.   The United States Supreme Court held it a denial of due process in that context to instruct the jury that the law presumes a person intends the ordinary consequences of his voluntary act.   The court reasoned that if the jury understood the challenged instruction to state a conclusive presumption, it would have wholly denied the defendant the benefit of the presumption of innocence on the mental element of the crime, a procedure unconstitutional under Morissette v. United States (1952) 342 U.S. 246, 275, 72 S.Ct. 240, 255, 96 L.Ed. 288.   If, on the other hand, the jury took the instruction to raise a rebuttable presumption, it would have shifted to the defendant the burden of disproving the same element, a procedure unconstitutional under Mullaney v. Wilbur (1975) 421 U.S. 684, 703–704, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (Sandstrom, supra, 442 U.S. at pp. 520–524, 99 S.Ct. at pp. 2457–2459;  see People v. Dillon, supra, 34 Cal.3d at p. 473, 194 Cal.Rptr. 390, 668 P.2d 697.)

In Connecticut v. Johnson, supra, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823, the United States Supreme Court split four to four on the issue of whether Sandstrom error is reversible per se or is to be reviewed under the federal standard of harmless-beyond-a-reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)

Most instructive here is the observation in Beeman as to the effect of the instructional error in this case.   The Beeman court stated:  “While 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 [citation], it is just as effective—if not more effective—in removing the issue of intent from the jury's consideration.”  (35 Cal.3d at p. 561, fn. 4, 199 Cal.Rptr. 60, 674 P.2d 1318.)

Most analogous to the case at bar is the recent case of People v. Johnson, supra, 155 Cal.App.3d 241, 201 Cal.Rptr. 908.   There, in a well-reasoned decision, Division Four of this court held, in reversing a conviction of attempted murder obtained on the theory of aiding and abetting, that a failure to instruct on criminal intent constitutes a violation of due process.   (Id., at p. 259, 201 Cal.Rptr. 908.)   There, as here, the jury had been instructed pursuant to CALJIC Nos. 3.00 and 3.01.

The Johnson court reasoned:

“If the error resulting from a failure to instruct a jury that it must find a defendant guilty beyond a reasonable doubt is reversible per se regardless of the overwhelming nature of the evidence (see Jackson v. Virginia, supra, 443 U.S. [307] at p. 320, fn. 14 [99 S.Ct. 2781 at p. 2789, 61 L.Ed.2d 560 at p. 574] ), it follows logically that reversal is required under the federal Constitution when a defendant is convicted by a jury which has not been advised of all of the elements necessary to convict.   This fact, taken together with the Beeman court's suggestion that the instructional error herein ‘is just as effective—if not more effective—in removing the issue of intent from the jury's consideration’ (35 Cal.3d at p. 561, fn. 4, 199 Cal.Rptr. 60, 674 P.2d 1318) leads us to conclude that Beeman error requires reversal of appellant's attempted murder conviction.8”  (155 Cal.App.3d at p. 260, 201 Cal.Rptr. 908.)

We agree with the holding in People v. Johnson, supra, and conclude that the Beeman error here requires reversal of defendant's convictions for robbery and felony-murder.

III

Contradictory Jury Instructions Defining the Requisite Malice of Attempted Murder Gave Rise to Prejudicial Error

Defendant was convicted of the attempted murder of Ralph Venegas in count III and Don Yasuda in count IV.   The jury instructions relating to this crime pointed to a confusing picture.   The court instructed the jury in the language of CALJIC No. 6.00 which, as modified by the court in the language we have italicized, reads as follows:

“Defendant is charged in counts 3 & 4 of the information with the commission of the crime of attempt[ed] murder, a violation of [sections] 664/18764187 of the Penal Code.

“An attempt to commit a crime consists of two elements, namely, a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.

“In determining whether or not such an act was done, it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the doing of the criminal deed, on the other.   Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt;  but acts of a person who intends to commit a crime will constitute an attempt where they themselves clearly indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design, the progress of which would be completed unless interrupted by some circumstance not intended in the original design.

“Murder and malice are as herein previously defined.”

In connection with murder, the jury was instructed under the 1979 revision of CALJIC No. 8.10, which as given provides:

“Defendant is charged in Count 1 of the information with the commission of the crime of murder, a violation of Section 187 of the Penal Code.

“The crime of murder is the unlawful killing of a human being with malice aforethought.

“In order to prove the commission of the crime of murder each of the following elements must be proved:

“1. That a human being was killed.

“2. That the killing was unlawful, and

“3. That the killing was done with malice aforethought.”

Next, the jury was instructed under the 1981 Revision of CALJIC No. 8.11.⁹  Here, the court instructed the jury it could find defendant guilty of murder on any of the theories:  express malice, implied malice, or felony murder.   Express malice, it explained, means “an intention unlawfully to kill.”   Malice is implied, it instructed, “when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life or when the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life.”  (CALJIC No. 8.11, 1981 Rev.)

 These instructions, taken as a whole, were contradictory.   The crime of attempted murder requires the specific intent to kill (express malice).   Such intent must be proved.   It cannot be inferred merely from the commission of another dangerous crime (implied malice).  (People v. Collie (1981) 30 Cal.3d 43, 62, 177 Cal.Rptr. 458, 634 P.2d 534;  People v. Martinez (1980) 105 Cal.App.3d 938, 942, 165 Cal.Rptr. 11;  People v. Belton (1980) 105 Cal.App.3d 376, 380, 164 Cal.Rptr. 340.)   In contrast, the crime of felony-murder does not require malice.  (People v. Dillon, supra, 34 Cal.3d at p. 475, 194 Cal.Rptr. 390, 668 P.2d 697.)   Thus, the concept of felony-murder is clearly inapplicable to the crime of attempted murder.

“․ For purposes of the felony-murder rule, a killing is done ‘in furtherance’ of the underlying felony if the killing and felony are parts of one continuous transaction, as when the victim is killed during a continuous integrated attempt to successfully escape after the perpetration of robbery, and before the robbers have reached a place of temporary safety.”  (In re Deatrick A., supra, 155 Cal.App.3d at p. 343, 202 Cal.Rptr. 64;  see also People v. Salas (1972) 7 Cal.3d 812, 821–824, 103 Cal.Rptr. 431, 500 P.2d 7;  People v. Chavez (1951) 37 Cal.2d 656, 670, 234 P.2d 632.) ¹⁰

 Here, the evidence shows that defendant discharged his weapon at the victims outside the grocery market in order to expedite his escape and to further the success of the robbery.   In this setting, instructing the jury on implied malice may have confused the jury by suggesting that they could convict the defendant of attempted murder without a finding of specific intent to kill.  (People v. Murtishaw (1981) 29 Cal.3d 733, 764–765, 175 Cal.Rptr. 738, 631 P.2d 446.)

 We find that the giving of these instructions constitutes prejudicial error.   In People v. Miller (1935) 2 Cal.2d 527, 532–533, 42 P.2d 308, defendant had been convicted of attempted murder.   His challenge to jury instructions on implied malice was found meritorious.   The Supreme Court held that an instruction to the jury that guilty intent may be presumed from an unlawful act is prejudicially erroneous.   We find the Miller holding controls here in contrast to People v. Collie, supra, 30 Cal.3d at page 62, 177 Cal.Rptr. 458, 634 P.2d 534, and People v. Murtishaw, supra, 29 Cal.3d at page 765, 175 Cal.Rptr. 738, 631 P.2d 446, where the courts held the instructional error was harmless.   Both in Collie and Murtishaw the jury had been properly instructed that the verdict required findings of premeditation and deliberation, which entail a specific intent to kill, which was not the case here.   It is impossible to determine in the case at bar whether the verdict rested on express malice, or on the impermissible basis of felony-murder.

We conclude, therefore, that defendant's convictions for attempted murder must be reversed.

We note that, in view of Dillon, the CALJIC Committee has revised CALJIC No. 8.10 ¹¹ defining murder, which is set forth in the margin.

Upon the retrial of this case, we suggest the trial court use the current revisions of the applicable jury instructions and explain their application, if any, to each charged offense.   This approach will avoid confusing the jury upon the applicability, if any, of the concepts of felony-murder and attempted murder.

Conclusion

The judgment is reversed as to each conviction, and the matter is remanded for further proceeding.

FOOTNOTES

1.   Unless otherwise indicated, all statutory references are to the Penal Code.

2.   In view of our reversal, we need not reach defendant's other contentions.

3.   Three latent prints taken from the getaway vehicle did match those of Tyrone Richardson, and it was later found that the 1969 Datsun belonged to the girl friend of Tyrone Richardson.   A few days following the Frank's Market robbery, Richardson surrendered to the police.   Subsequently, he pled guilty.

4.   CALJIC No. 3.00 (1979 Rev.) as given provides as follows:“The persons concerned in the commission or attempted commission of a crime who are regarded by law as principals in the crime thus committed or attempted and equally guilty thereof include:“1. Those who directly and actively commit or attempt to commit the act constituting the crime, or“2. Those who, with knowledge of the unlawful purpose of the one who does directly and actively commit or attempt to commit the crime, aid and abet in its commission or attempted commission, or“3. Those who, whether present or not at the commission or attempted commission of the crime, advise and encourage its commission or attempted commission.“One 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.”  (Emphasis added.)

5.   CALJIC No. 3.01 (1979 Rev.) as given provides:“A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime.   Mere presence at the scene of a crime and failure to take steps to prevent a crime do not in themselves establish aiding and abetting.”

6.   In defining principals, CALJIC No. 3.00 (1984 Rev.) provides:“The persons concerned in the [commission] [or] [attempted commission] of a crime who are regarded by law as principals in the crime thus [committed] [or] [attempted] and equally guilty thereof include:1.  Those who directly and actively [commit] [or] [attempt to commit] the act constituting the crime, or2.  Those who aid and abet the [commission] [or] [attempted commission] of the crime.[One 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 and intentionally aided or encouraged.]”In defining aiding and abetting, CALJIC No. 3.01 (1984 Rev.) provides:“A person aids and abets the [commission] [or] [attempted commission] of a crime when he or she,“(1) with knowledge of the unlawful purpose of the perpetrator and“(2) with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, by act or advice aids, promotes, encourages or instigates the commission of the crime.“[A person who aids and abets the [commission] [or] [attempted commission] of a crime need not be personally present at the scene of the crime.]“[Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.]“[Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.]”

7.   In light of Beeman, the CALJIC Committee has revised CALJIC No. 8.27.   Its 1984 revision provides:“If a human being is killed by any one of several persons engaged in the perpetration of, or attempt to perpetrate, the crime of _, all persons who either directly and actively commit the act constituting such crime or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.”

8.   People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.

8.   We disagree with People v. Banks (1983) 147 Cal.App.3d 360 [195 Cal.Rptr. 101], wherein Division Four of the Court of Appeal for the First Appellate District held that Chapman [supra] was the proper standard of review for an instruction violating due process.   The Banks court did not discuss or mention Connecticut v. Johnson, [supra] which had been decided seven months previously.  Banks was also decided before Beeman.”

9.   CALJIC NO. 8.11 (1981 Revision) as given provides:“ ‘Malice’ may be either express or implied.“Malice is express when there is manifested an intention unlawfully to kill a human being.“Malice is implied when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, anti-social purpose and with a wanton disregard for human life or when the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life.“When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.“The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.“ ‘Aforethought’ does not imply deliberation or the lapse of considerable time.   It only means that the required mental state must precede rather than follow the act.”

10.   The jury was instructed as to the continuous progress of the robbery in the language of CALJIC No. 9.15, which as given provides:“The commission of the crime of robbery is not confined to a fixed place or a limited period of time.“A robbery is still in progress after the original taking of physical possession of the stolen property while the perpetrator is in hot flight, that is, while in possession of the stolen property he is fleeing in an attempt to escape.   Likewise it is still in progress so long as he is still being immediately pursued in an attempt to capture him or regain the stolen property.“A robbery is complete when the perpetrator has eluded his pursuers, if any;  has reached a place of temporary safety and is in unchallenged possession of the stolen property after having effected an escape with such property.”

11.   CALJIC No. 8.10 (1983 Rev.) provides:“[Defendant is charged in [Count _ of] the information with the commission of the crime of murder, a violation of Section 187 of the Penal Code.]“The crime of murder is the unlawful killing of a human being with malice aforethought or the unlawful killing of a human being which occurs during the commission or attempt to commit a felony inherently dangerous to human life.“In order to prove the commission of the crime of murder, each of the following elements must be proved:“1. That a human being was killed,“2. That the killing was unlawful, and“3. That the killing [was done with malice aforethought] [or] [occurred during the commission or attempt to commit a felony inherently dangerous to human life.  _ is a felony inherently dangerous to human life].”

THOMPSON, Acting Presiding Justice.

JOHNSON and PICKARD *, JJ., concur.