PEOPLE v. BEEMAN (1981)

Defendant Timothy Mark Beeman appeals from a judgment sentencing him to state prison after a jury found him guilty of robbery (Pen. Code, s 211), burglary (Pen. Code, s 459), false imprisonment (Pen. Code, s 236), destruction of telephone equipment (Pen. Code, s 591), and assault with the intent to commit a felony (former Pen. Code, s 221). The jury found that in the burglary and robbery property of a value in excess of $100,000 was taken. (Pen. Code, s 12022.6, subd. (b).) The trial court struck the enhancement for Penal Code section 12022.6, subdivision (b), and sentenced defendant on the robbery conviction to the middle term of three years. The court ordered that defendant serve the middle term on each of the other counts, the sentences to be served concurrently with the sentence on the robbery conviction.

Defendant contends the trial court erred in refusing to dismiss the information pursuant to Penal Code section 995, and in instructing the jury on aiding and abetting. We reject each of these arguments. We perceive, however, that the trial court erred in imposing concurrent sentences rather than staying the service of sentence on all counts except the robbery, pursuant to Penal Code section 654. Accordingly we modify the judgment and affirm as modified.

FACTS

Defendant was adopted by his maternal grandparents with the result that his biological uncle became his adoptive brother. Defendant lived in Oakland, while his brother lived in Redding. On the morning of February 28, 1980, two friends of defendant, James Gray and Michael Burk, drove to Redding for the purpose of robbing defendant's sister-in-law, Marjorie Thatcher Beeman. They arrived in Redding at about 4 a. m. and had breakfast. Some time before 9 a. m. Gray and Burk telephoned the Beeman home in order to determine whether Mrs. Beeman was at home. Gray asked for “Jack” when Mrs. Beeman answered, and she concluded it was a wrong number. Burk and Gray then proceeded to the Beeman household.

At about 9 a. m. Mrs. Beeman was reading the newspaper in her kitchen when she observed a young man come to the door. That man was identified as Burk. When Mrs. Beeman answered the door Burk told her he was with the Harris Poll and asked if he could enter the house. Mrs. Beeman asked for identification and Burk grabbed her, pushed her into the house, and held her against the wall. Mrs. Beeman screamed and bit Burk's hand. Gray then entered, wearing a ski mask, and helped Burk subdue the victim. Gray and Burk put handcuffs on Mrs. Beeman, taped her mouth and eyes, and took her to the bathroom where she was tied to the toilet. They then ransacked the house and left. After some time passed Mrs. Beeman managed to free herself and attempted to call the police, but her telephone lines had been cut. She then went to a neighbor's house and the police were called.

The robbers made off with an impressive list of valuable personal property including jewelry, jewelry boxes, binoculars, and 197 pieces of silverware in a large oaken box. The most valuable of the items stolen consisted of two rings. One was a 3.5 carat heart-shaped diamond with two smaller stones on each side. That ring was appraised at wholesale between $88,000 and $90,000, and at retail between $95,000 and $125,000. Also among the jewelry removed was a blue sapphire ring with several small diamonds valued at $11,500 wholesale and $15,000 to $25,000 retail.

On March 6, 1980, police investigators received information concerning the crime and two officers proceeded to the Key Club Cardroom in Emeryville which was known to be frequented by defendant in order to arrest him. Defendant was present at the club playing cards, and upon his arrest it was discovered that he had several of the rings taken from his sister-in-law in his pockets. Most, but not all, of the items stolen during the robbery were eventually recovered with the assistance of defendant and Gray.

Both Gray and Burk pled guilty to the robbery of Mrs. Beeman.

At trial Gray testified he had met defendant at the Key Club and that defendant had discussed the concept of the robbery with him. Defendant had mentioned the 3.5 carat diamond ring owned by his sister-in-law and had drawn a layout of the Beeman household for him.

Burk testified at trial that prior to the robbery he had been living with the defendant and that defendant had told him about his rich relatives and in particular about Mrs. Beeman's 3.5 carat diamond ring; that defendant told Burk how to rob Mrs. Beeman, including the pretense of being a pollster, and gave Burk the Beeman address in Redding. Burk further testified that defendant told him he did not want to participate because he “wanted nothing to do with robbing his relatives. Another (reason) was his size (and) fear of being spotted.” He also suggested that Burk cover his head and that Gray wear a disguise. Defendant told Burk that Mrs. Beeman's diamond ring would be either on her hand or on the kitchen sink. The night before the robbery defendant drew a diagram of the Beeman residence. Burk testified that defendant told him of the vehicles used by the Beemans so that Burk could determine when Mrs. Beeman might be home alone. (Defendant had given similar information to Gray.)

It was arranged that Burk and Gray would each receive 40 percent of the proceeds and defendant would receive 20 percent (after the robbery defendant demanded that he receive one-third).

Shortly before the robbery defendant and Burk placed a phone call to Gray and they discussed the plans for the robbery. During this conversation defendant told Gray that he agreed with what had been discussed and that while he wanted nothing to do with the robbery, if Gray and Burk went through with it he would sell the ring for a 20 percent share.

After the robbery had been completed, Burk and Gray stopped on the return trip to place a call to defendant and reported that “It's done.” Defendant replied that he would contact “Darrell,” a person who might purchase the large diamond ring. Later that night Gray and Burk arrived at the defendant's home and gave him a watch and some rings to sell, retaining the remainder of the items of stolen property. Defendant became angry that they had taken so much of the Beeman personal jewelry and property and that there was a possibility that Burk could be recognized by Mrs. Beeman.

Defendant denied participation in the robbery. He testified that Burk had lived with him prior to the robbery, and that Burk acquired information about Mrs. Beeman's jewelry from casual conversation. He claimed he had told Burk about the Beemans' ranch and how beautiful it was, and another time had mentioned that Mrs. Beeman had a beautiful diamond ring. He admitted sketching the Beeman home for Burk, but he testified he had done so not that Burk could rob the Beemans' home but rather only to compare floor plans with other homes. He also described the Beeman vehicles, but he said this was only to point out that his one brother shows off by owning Cadillacs while the Redding brother, although wealthy, lives simply, owning simpler vehicles.

Burk and Gray had talked about robbing defendant's sister-in-law, but defendant claimed that he had told them he did not want anything to do with it, because the Beemans were his relatives. Defendant also testified that prior to the robbery Burk wanted to borrow some clothes left at his apartment by a former roommate because he was going to “do this number,” and defendant told him: “If you're going to do a robbery, you can't look like a bum,” and let him take the clothing.

When Burk and Gray committed the robbery defendant claimed to have been upset, and testified he decided he had to find a way to return the stolen articles and since they had talked about a 40-40-20 split if he sold the items he told them to bring them to him, offering to sell the items, believing that he could convince Gray to return them. To make his offer sound reasonable defendant testified he suggested that he receive one-third of the proceeds instead of the offered 20 percent. He took some of the jewelry and left the remainder of the stolen articles with Burk and Gray. Although they did not intend to sell anything he did show the jewelry at the Key Club with offers to sell because he knew that Burk could call people there and find out whether he was offering the jewelry for sale and he had to make Burk believe he was going to sell it. He claims he eventually talked Gray into returning the loot, but before they could do so the police interfered with their plan.

I

Defendant contends the trial court erred in refusing to dismiss the charges against him pursuant to his motion under Penal Code section 995. Defendant argues that the evidence at the preliminary hearing was insufficient to support a belief that he was guilty of criminal activity. The showing that is required at a preliminary hearing is not one of guilt, but rather one of probable cause. (Pen. Code, ss 871, 872.) The prosecution must produce evidence which is sufficient to induce a strong suspicion in the mind of a man of ordinary caution or prudence that a crime has been committed and that defendant is the guilty person. (People v. Dickinson (1976) 59 Cal.App.3d 314, 320, 130 Cal.Rptr. 561.) The credibility of witnesses and the weight of the evidence at the preliminary hearing are matters for the committing magistrate; if there is some evidence to support the charge neither the superior court nor an appellate court may set it aside. (People v. Block (1971) 6 Cal.3d 239, 245, 103 Cal.Rptr. 281, 499 P.2d 961.)

There is no question that the evidence at the preliminary hearing was sufficient to support a belief that the charged crimes took place. Mrs. Beeman's testimony was entirely sufficient for that purpose. Defendant argues, however, that there was no evidence that he participated in the robbery and other crimes. Defendant is in error. The possession of stolen property is so incriminating that there need be, in addition to possession, only slight corroborative evidence in the form of statements or conduct of defendant to establish his guilt. (People v. McFarland (1962) 58 Cal.2d 748, 754, 26 Cal.Rptr. 473, 376 P.2d 449; People v. Citrino (1956) 46 Cal.2d 284, 288, 294 P.2d 32; People v. Stevens (1974) 38 Cal.App.3d 66, 70, 113 Cal.Rptr. 49.) False statements showing consciousness of guilt are sufficient. (People v. Beverly (1962) 200 Cal.App.2d 119, 124, 19 Cal.Rptr. 67; People v. Russell (1939) 34 Cal.App.2d 665, 669, 94 P.2d 400.)

It is unquestioned that upon his arrest defendant was in possession of much of the stolen property. His relationship to the victim and his friendship with the robbers raises some suspicion of his involvement. In addition, defendant made admissions to the police investigator which confirmed his participation. He admitted that he had taken part in the planning of the robbery. Under questioning his story often conflicted with earlier statements. Such evidence is sufficient to induce a strong suspicion of defendant's guilt.

Defendant argues, however, that his admissions must be viewed as a whole, and that in admitting that he had taken part in the planning of the robbery he also stated that he had “backed out” and told the robbers that he did not want to have anything to do with it. In view of the fact that defendant had the stolen property after the robbery the magistrate was not required to accept his claim that he backed out of the scheme beforehand. Moreover, having counseled and advised the commission of the crime a mere “backing out” is insufficient to avoid responsibility; the culprit must advise the other parties of his withdrawal and do everything in his power to prevent the commission of the crime if he is to avoid culpability. (People v. King (1938) 30 Cal.App.2d 185, 204, 85 P.2d 928; People v. Ortiz (1923) 63 Cal.App. 662, 670, 219 P. 1024.) Defendant's claim that he backed out was insufficient to relieve him of criminal responsibility.

II

Defendant contends that the trial court erred in instructing the jury on aiding and abetting. The trial court gave the jury the standard CALJIC instructions on aiding and abetting. (CALJIC No. 3.00 (1979 Revision) and No. 3.01 (1979 Revision).) Specifically the court instructed: “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: (P) One. Those who directly and actively commit or attempt to commit the act constituting the crime, or (P) Two. 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 (P) Three. Those who, whether present or not at the commission or attempted commission of the crime, advise and encourage its commission or attempted commission. (P) 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. (P) 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.”

Defendant contends these instructions are erroneous because they fail to inform the jury that in order to be liable as an aider and abettor a person must, with knowledge of the unlawful purpose of the perpetrator, intentionally aid, promote, encourage or instigate by act or advice, the commission of the crime. Defendant relies upon People v. Yarber (1979) 90 Cal.App.3d 895, at page 916, 153 Cal.Rptr. 875. We reject defendant's argument because we disagree with the court in Yarber that it is reversible error to fail to modify CALJIC Nos. 3.00 and 3.01 to include the word “intentionally.”

Penal Code section 31, which has remained unchanged since the adoption of the Penal Code in 1872, provides in relevant part: “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 ... are principals in any crime so committed.” Prior to their revision in 1974, the CALJIC instructions on aiding and abetting included the word “intent.” In 1974 the instructions were revised to delete the word “intent,” apparently in response to then developing decisional law. (See People v. Yarber, supra, 90 Cal.App.3d at p. 913, 153 Cal.Rptr. 875.)

In People v. Terry (1970) 2 Cal.3d 362, 85 Cal.Rptr. 409, 466 P.2d 961, a defendant charged with aiding and abetting two robbery-murders sought an instruction that would have required acquittal unless the jury believed that she had formed the specific intent to take the property of the victims before the robberies. The Supreme Court affirmed the trial court's refusal to give such instruction, stating: “It is clear that Juanelda could be an aider and abettor without ever forming the intent to take any money or other property from (the victims). She was an aider or abettor if, with knowledge of Terry's criminal purpose, she encouraged, promoted, or assisted in the commission of the crimes. (Citations.) One who aids and abets does not necessarily have the intention of enjoying the fruits of the crime. (Citation.)” (2 Cal.3d at p. 401, 85 Cal.Rptr. 409, 466 P.2d 961.) In People v. Standifer (1974) 38 Cal.App.3d 733, 113 Cal.Rptr. 653, a trial court instructed the jury that an aider and abettor had to have the same criminal intent as the perpetrator. The Court of Appeal held that the instruction gave the defendant more than he was entitled to; for aiding and abetting it is sufficient that the defendant have the intention to knowingly aid and abet in the commission of a felony. (38 Cal.App.3d at p. 744, 113 Cal.Rptr. 653.) It was apparently Terry, and Standifer which provided the support for the revisions of the CALJIC instructions in 1974.

The validity of the revision of the CALJIC instructions was challenged in People v. Ott (1978) 84 Cal.App.3d 118, 148 Cal.Rptr. 479. The Court of Appeal therein upheld the instructions, reasoning that decisional authority only requires that a defendant aid and abet in the commission of a crime with knowledge of the perpetrator's unlawful purpose, and that in any event aiding in the perpetration of a crime with knowledge of the wrongful purpose of the actor eo ipso establishes criminal intent. (84 Cal.App.3d at p. 130, 148 Cal.Rptr. 479.) The revision of the CALJIC instructions was attacked by this court in People v. Vernon (1979) 89 Cal.App.3d 853, 152 Cal.Rptr. 765.) Therein we held the defendant was wrong in his argument there must be a shared criminal intent; the CALJIC instructions correctly state the law. (89 Cal.App.3d at p. 869, 152 Cal.Rptr. 765.)

The revision of the CALJIC instructions was successfully challenged in People v. Yarber, supra, 90 Cal.App.3d 895, 153 Cal.Rptr. 875. Therein the Court of Appeal noted that the language in the decisional law has been conflicting and confusing, both in the Courts of Appeal and in the Supreme Court. (90 Cal.App.3d at pp. 912-913, 153 Cal.Rptr. 875.) The court concluded that while intent may be inferred from knowledge, the inference need not be drawn, and for that reason knowledge alone is not enough for conviction for aiding and abetting. (Id., at p. 916, 153 Cal.Rptr. 875.) The court held that the CALJIC instructions should not be given without modification to include the requirement that the accused intentionally aid and abet the perpetrator. (Ibid.)

The law of aiding and abetting which Penal Code section 31 codifies provides the definition of a person's responsibility for the criminal acts of another. It has long been held that in the absence of a special duty a person need not act to prevent the commission of a crime by another. (See People v. Woodward (1873) 45 Cal. 293.) But no person may in any manner give assistance to the perpetrator and remain blameless. The point is well illustrated in the early case of Hanauer v. Doane (1870) 79 U.S. (12 Wall.) 342, 20 L.Ed. 439. Therein the United States Supreme Court said: “Can a man furnish another with the means of committing murder, or any abominable crime, knowing that the purchaser procures them and intends to use them for that purpose, and then pretend that he is not a participator in the guilt? Can he wrap himself up in his own selfishness and heartless indifference and say, ‘What business is that of mine? Am I the keeper of another man's conscience?’ No one can hesitate to say that such a man voluntarily aids in the perpetration of the offense and, morally speaking, is almost, if not quite, as guilty as the principal offender.” (79 U.S. at p. 347, 20 L.Ed. at p. 441.) And further: “He cannot be permitted to stand on the nice metaphysical distinction that, although he knows that the purchaser buys the goods for the purpose of aiding the (crime) he does not sell them for that purpose. The consequences of his acts are too serious and enormous to admit of such a plea. He must be taken to intend the consequences of his own voluntary act.” (Ibid.)

Other examples may be cited. In Backun v. United States (1940 4th Cir.) 112 F.2d 635, it was said: “To say that the sale of goods is a normally lawful transaction is beside the point. The seller may not ignore the purpose for which the purchase is made if he is advised of that purpose, or wash his hands of the aid that he has given the perpetrator of a felony by the plea that he has merely made a sale of merchandise. One who sells a gun to another knowing that he is buying it to commit a murder, would hardly escape conviction as an accessory to the murder by showing that he received full price for the gun; and no difference in principle can be drawn between ... a seller who knows that the purchaser intends to use the goods which he is purchasing in the commission of felony.” (112 F.2d at p. 637.)

California cases may be cited as well. In People v. Marty (1922) 59 Cal.App. 503, 210 P. 964, the defendant encouraged and took part in a confrontation and yet when his cohort fatally shot one of the opposition the defendant denied that he aided and abetted a murder. The Court of Appeal disagreed, stating: “If he did not do so we do not see what conduct on his part could have made him an aiding and abetting principal, unless he had actually held the weapon while Guthrie pulled the trigger.” (59 Cal.App. at p. 507, 210 P. 964.) In People v. McLaughlin (1952) 111 Cal.App.2d 781, 245 P.2d 1076, the defendants provided a “wire service” to known bookmakers with knowledge that such service was essential to successful bookmaking. The defendants denied aiding and abetting the bookmaking, however. The Court of Appeal affirmed the convictions on the ground that the provision of the service with knowledge of its unlawful use constituted aiding and abetting the bookmaking. (111 Cal.App.2d at p. 789, 245 P.2d 1076.) In People v. Etie (1953) 119 Cal.App.2d 23, 258 P.2d 1069, the defendant took a rush order for checks to a printer at the request of some acquaintances. When the acquaintances signed fictitious names to the checks the defendant was charged as an aider and abetter. He denied guilt, contending that he had simply ordered the checks and was paid for doing so. The Court of Appeal affirmed the conviction; it was sufficient to establish aiding and abetting that defendant knew that the checks would further a criminal purpose. (119 Cal.App.2d pp. 27-29, 258 P.2d 1069.)

The point we make is that “motive” or “purpose” or “intention” are unnecessary to inculpate one who voluntarily aids in the commission of a crime. It is sufficient that the accused know that his action will aid in the perpetration of a crime and that he act anyway. The only intention which is necessary is the intent to do the act which the accused knows will assist or encourage the criminal. Public policy demands no less and Penal Code section 31 implies no more.

The examples cited in Yarber in support of that court's reasoning are unpersuasive. The normal defenses to criminal charges, such as compulsion, prevention or crime, and other defenses based upon justification or excuse, apply and resolve each of the Yarber examples. Thus a “feigned accomplice” will not be rendered criminally liable where he acts out of compulsion, for purposes of law enforcement or to in fact prevent the crime, or for other reasons which provide justification or excuse. But where there are no such circumstances it is no defense to declare that the assistance provided the perpetrator was only “feigned.” And, of course, the failure of the prosecution to prove that the accused was aware that his actions would aid and abet a criminal purpose would constitute a failure of proof on the issue of aiding and abetting.

The jury was instructed that defendant would be guilty as a principal if he aided and abetted the robbery of his sister-in-law, or if he advised and encouraged its commission, with knowledge of the unlawful purpose of the actual robbers. Aiding and abetting was defined for the jury to require that defendant, with knowledge of the unlawful purpose of the robbers, aided, promoted, encouraged, or instigated by act or advice, the commission of the robbery. Each of the words used to define aiding and abetting, and indeed the phrase aiding and abetting itself, are active verbs which imply volition. The performance of any one of these volitional acts, when coupled with a guilty knowledge, is sufficient to establish defendant's guilt as an aider and abettor.

The Yarber instruction is erroneous, for it implies that the defendant must have as his purpose the completion of a criminal act. To the extent that the decision in Yarber may be so construed we reject its reasoning. To the extent that the decision in Yarber holds only that the accused must be shown to have performed a volitional act which he knew would aid and abet the perpetrator we do not disagree; however, in that case the addition of the word “intentionally” to the definition of aiding and abetting is superfluous, for none of the words used to define that phrase permit conviction upon a nonvolitional or passive act which might, in some way, have been used by the perpetrator to further his criminal purpose. We hold that the trial court correctly instructed the jury on the elements that must be proven in order to find defendant guilty as a principal by aiding and abetting.

Turning to the facts of the instant case we find substantial evidence to support the verdicts. Indeed, defendant's own testimony established his guilt. The evidence established that defendant raised the subject of robbery with his cohorts, discussed the method by which it could be committed, informed them of the riches which could easily be taken, gave them the address of the home of victim, described the intended victim's car, drew a floor plan of the house, and agreed to sell the stolen items for a share in the proceeds. Although defendant attempted to cast such actions in an innocent light, he admitted that the subject of robbing his sister-in-law had been raised with him and the suggested split discussed, but claimed to have simply told the robbers that they should do what they wanted, to leave him out. Nevertheless, when Burk attempted to borrow a suit so that he could commit the robbery defendant complied, telling him: “If you're going to do a robbery, you can't look like a bum.” Such evidence establishes defendant's guilt as an aider and abettor. The evidence that he had the stolen property and attempted to sell it after the robbery further confirms that guilt.

III

Although we will affirm the judgment of conviction, we perceive a sentencing error which requires modification of the judgment. Defendant was convicted of five counts arising out of the same transaction. These were robbery (Pen.Code, s 211), burglary (Pen.Code, s 459), false imprisonment (Pen.Code, s 236), destruction of a telephone line (Pen.Code, s 591), and assault with the intent to commit a felony (former Pen.Code, s 221).¹ Each of these offenses was committed pursuant to a single objective in an indivisible course of conduct. Under such circumstances defendant may properly be convicted of each offense, but may be punished for but one. (Pen.Code, s 654; People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 558 P.2d 552.) The trial court imposed sentence for the robbery conviction and ordered that the sentences for the remaining counts be served concurrently with that sentence. It should have stayed the service of sentence on counts two through five, said stay to become permanent upon completion of the service of sentence on the robbery count. The judgment will be so modified, and as modified affirmed.

The judgment is modified in that the service of sentence on counts two, three, four, and five is stayed pending the service of sentence on count one, the stay to become permanent upon completion of the service of sentence on count one. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting this modification. As modified, and in all other respects, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.  Penal Code section 221, assault with the intent to commit a felony, was repealed effective January 1, 1981. (See Stats.1980, ch. 300, s 4.) The repeal was in response to judicial decisions pointing out that an assault with intent to commit a felony is but one form of an attempt to commit the felony, and was not intended to eliminate sanctions against such persons. (See People v. Murtishaw (1981) 29 Cal.3d 733, 762-763, fn. 24, 175 Cal.Rptr. 738, 631 P.2d 446.) Accordingly the repeal of that section provides no relief to defendant. (Ibid.)

PHILLIPS, Associate Justice.* FN* Assigned by the Chief Justice.

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