PEOPLE v. YEPEZ (1984)

Defendant Raymond Joseph Yepez, Philip Trujillo, and Louie Pando were charged with the murder of Grace Ostrander (Pen.Code, § 187) ² , robbery (§ 211), and burglary (§ 459).   The information alleged as special circumstances that the murder occurred during the commission of the robbery (§ 190.2, subd. (a)(17)(i)), and the burglary (id., subd. (a)(17)(vii)).   The information further alleged that defendant had personally used a knife during the commission of each crime (§ 12022, subd. (b)), and had inflicted great bodily injury on the victim (§ 12022.7) during the commission of the robbery and the burglary.

Following a jury trial, the jury returned verdicts finding defendant guilty of first degree murder, robbery and second degree burglary, and finding true the two special circumstance allegations.   The jury found that defendant did not use a deadly weapon and did not personally inflict great bodily injury on the victim.   Defendant was sentenced to state prison for the term of life without possibility of parole.

Facts

During the evening of April 7, 1979, Kenneth Baker observed two men leaving his apartment building in Oakland carrying a television set.   He recognized one of them as Philip Trujillo.   Baker also recognized the television set as belonging to his 62 year old neighbor, Grace Ostrander.

Noticing that Ostrander's apartment door was ajar, Baker pushed it open and saw her partially clothed body on the bed.   Baker summoned the police.   The police officers who arrived thereafter discovered that Ostrander had been stabbed a number of times and that a knife was protruding from her body.   Several beer cans and a broken bottle of Thunderbird were scattered about the apartment.   Subsequently the television set bearing Trujillo's fingerprints was recovered in a park near the apartment.   Trujillo's prints were also found on one of the beer cans in the apartment.   None of the prints found in the apartment matched defendant's or Louie Pando's.

The autopsy conducted the following day revealed multiple bruises, abrasions and lacerations about the victim's head and body.   Ostrander's right eye and her face were extensively bruised;  bruises were also found on her neck, chest, buttocks and extremities.   One wound to the head was consistent with a blow with a bottle or a blunt instrument.   The autopsy also revealed eight stab wounds to the head, neck and body, several of which penetrated her brain, heart, stomach and other internal organs.   The examining physician concluded that the stab wounds, rather than the blow to the head, were the probable cause of death.   Finally, analysis of the victim's blood revealed that she was under the influence of alcohol at the time of her death.

Nine days after Ostrander's death defendant was arrested.   After being advised of his constitutional rights and waiving them defendant gave a taped statement to a deputy district attorney which was played to the jury at trial.

In his statement, defendant stated that he arrived at San Antonio Park at about 8 a.m. on April 7 and began to drink alcohol with several friends.   He left the park sometime between 5 and 5:30 p.m. with Louie Pando.   They eventually arrived at the Doggie Dinner at Fruitvale Avenue where they met Philip Trujillo.   After eating dinner and drinking some more wine, the three men went to Sanborn Park.   There Trujillo said that he knew a lady who had some money and a television set and they could “get it.”   Defendant said “okay.”   Trujillo said “we're gonna have to kill the broad” and defendant said “yeah, all right.”   Defendant understood that she might have to be killed, but said “I didn't really think we're gonna have to.”   It was agreed that the three men would split the money.

The men went to the apartment complex and were let in by Ostrander.   Defendant and Trujillo sat on the couch;  Pando sat next to Ostrander on the bed.   Defendant drank from a Thunderbird bottle which they had brought with them;  he decided that Ostrander was a “wino broad” and “didn't have nothing.”   In defendant's words he was “gettin' ready to get up and go” when Pando struck Ostrander on the head with the wine bottle.   When Ostrander began screaming he went into the kitchen to get a knife in order to scare her into being quiet.

When defendant returned with the knife, Ostrander, partially clothed, was lying on the bed;  Pando was on top of her with his pants down and his penis exposed.   Trujillo was standing next to them unzipping his trousers.   While holding the knife defendant told Pando to get off of her;  he did so but she continued to scream.   Defendant waived the knife over Ostrander in order to scare her but she continued to scream.   Defendant stabbed her five or six times in the side.   Trujillo then grabbed Ostrander in a headlock, grabbed the knife from defendant and stabbed her in the head;  the knife blade went all the way into her head.   Defendant and Pando then looked inside her two purses but found nothing “worth taking.”   Defendant and Pando then left the apartment;  Trujillo followed carrying Ostrander's television set.   Trujillo later abandoned the television set in the park.

Defendant took the stand and repudiated the April 16 statement.   He testified that a fourth man, Harvey Guerrero, was involved and that it was Guerrero who had taken the knife from the kitchen and had stabbed Ostrander.   Defendant denied any role in the killing or in the robbery other than merely being present at the scene.   He stated that he went to the apartment with Trujillo and the others expecting to be cut into the take and also for a change of scenery.   He admitted on cross-examination, however, that he went to the apartment knowing that Ostrander was probably going to be robbed of her money.   He stated, however, that there had been no discussion about killing her before they went to her apartment and that he had no idea that that would happen.   He stated that he changed his mind about getting money from her when he learned that she was an older woman.

Once inside the apartment he saw Trujillo and Guerrero go into the kitchen and talk.   He then saw them looking in his direction and saw a knife in Guerrero's hands.   When Trujillo and Guerrero came into the front room, Pando hit Ostrander with a bottle.   Defendant got up and was getting ready to leave when everyone “jumped around her.”   He saw Guerrero's hand “going up and down” stabbing her and saw Trujillo “jumping around, pulling at her.”  “Everything was going so fast” and he was in a hurry to get out of the apartment.   He and Pando left;  the last thing he saw was Trujillo and Guerrero standing over Ostrander making little movements.   He later saw Trujillo carrying away the television set.   Defendant stated that he did not get any money from the incident, that he did not personally plan to steal anything, that he neither robbed nor attempted to rob Ostrander, and that he did not stab or injure her in any way.

Defendant told the jury that he had fabricated his confusion to the district attorney in order to take the “heat off” of Guerrero.   He stated that he had received threats while in custody at Santa Rita and was told that if he confessed he would not be hurt when he went to state prison.

After almost three full days of deliberations the jury returned verdicts finding defendant guilty of first degree murder, robbery and burglary and found the robbery and burglary special circumstances allegations to be true.   The jurors, however, found that the deadly weapon and great bodily injury allegations were not true.

Review

I.The trial court's instructions on aiding and abetting were erroneous

The trial court gave the following instruction on aiding and abetting.  “A person aids and abets in the commission of a crime if he knowingly and with criminal intent aids, promotes, encourages or instigates by act or advice the commission of such crime.   In other words, to aid and abet requires knowledge of the criminal purpose of the perpetrator of the crime but it does not require that the aider and abettor specifically intend the commission of the crime.   And basically an aider and abettor is one who assists another in the accomplishments of a common design or purpose, in other words, one who helps another.”  (Emphasis added.)

Defendant urges that the instruction quoted above is the equivalent of CALJIC No. 3.01 (1979 rev.) which was recently condemned by the California Supreme Court in People v. Beeman (1984) 35 Cal.3d 547, 561, 199 Cal.Rptr. 60, 674 P.2d 1318.   Resolving a long existing conflict among the Courts of Appeal, the high court held “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.”  (Id., at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318, emphasis in original.)   In setting forth that rule of the law, the high court condemned the then existing version of CALJIC No. 3.01 because it failed “to insure that an aider and abettor will be found to have the required mental state with regard to his or her own act.”  (Id., at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318;  accord People v. Caldwell (1984) 36 Cal.3d 210, 224–225, 203 Cal.Rptr. 433, 681 P.2d 274;  People v. Gilman (1984) 156 Cal.App.3d 760, 764–765, 203 Cal.Rptr. 6.)

The instruction used here mirrors the pre-1974 version of CALJIC No. 3.01 ³ which was also condemned by the Beeman court as “sufficiently ambiguous to conceivably permit conviction upon a finding of an intentional act which aids, without necessarily requiring a finding of an intent to encourage or facilitate the criminal offense.”  (Id., 35 Cal.3d at p. 561, 199 Cal.Rptr. 60, 674 P.2d 1318.)   The court held that the only appropriate instruction on aiding and abetting liability is one which informs the jury that “a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator;  and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense;  and (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.”  (Id., at p. 561, 199 Cal.Rptr. 60, 674 P.2d 1318.)

To understand that the instructions on aiding and abetting given here were not sufficient under Beeman, one needs only to examine the trial court's comments on the doctrine in response to juror questions during deliberations.   For example, one juror was told by the court:  “To aid and abet requires knowledge of the criminal purpose of the perpetrator of the crime, but it does not require that the aider and abettor specifically intend the commission of the crime.   In other words, to aid and abet requires knowledge of the criminal purpose of the perpetrator of the crime, but it does not require that the aider and abettor specifically intend the commission of the crime.”   Later the court said, “The other fellows don't have to give you anything, you don't have to get the spoils.   You have to know that they are going in with the intent to commit the act of theft and permanently keep it.”  (Emphasis added.)

Thus, it is clear that the trial court's instructions, especially when coupled with its explanation of aiding and abetting, failed to satisfy the standard set forth in Beeman.   More difficult is the assessment of the effect of that error.

The initial task is to sort out the juror's verdicts.   Although the jurors were instructed on more than one theory of first degree murder, both defendant and the Attorney General claim that the verdict was premised on felony murder.   This is a fair characterization of the verdict.   The jurors also returned verdicts finding defendant guilty of burglary and robbery.   Obviously the verdicts do not explain whether culpability for those crimes was premised on defendant's status as a perpetrator or upon his being an aider and abettor.   One clue, however, comes from the jury's rejection of the allegations of personal use of a knife and personal infliction of great bodily injury on the victim—allegations which required a finding of violent acts by defendant.   The only conceivable explanation of those verdicts is that the jurors believed at least in part, defendant's testimony in which he recanted his confession.   Had they disbelieved his trial testimony and believed his pretrial statements, they would have necessarily found the allegations to be true.   Other clues are the jury's request for a rereading of the instructions on aiding and abetting and specific questions from the jury regarding that doctrine.   Thus the jury's verdict quite probably was premised on an aiding and abetting theory.

The remaining question is whether the error was prejudicial.  Beeman did not resolve the question of the appropriate standard of review.   Rather, the court found the error prejudicial even under the less demanding standard of People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, and so reversed.  (People v. Beeman, supra, 35 Cal.3d at pp. 561–563, 199 Cal.Rptr. 60, 674 P.2d 1318.)   In so doing, the court focused on two facts:  that the defense had centered on the very element as to which the jury had been inadequately instructed and that the jury had requested a rereading of the instructions on accomplice liability, which indicated to the high court that the jury had not dismissed out of hand the defendant's testimony.  (Id., at pp. 562–563, 199 Cal.Rptr. 60, 674 P.2d 1318.)

In this case, however, the jury could reasonably have found that defendant entered Ostrander's apartment with the requisite criminal intent.   Aside from his confession, which the jury may or may not have believed, defendant's testimony on cross-examination convincingly established that he entered the apartment with the requisite criminal intent for aiding and abetting liability.   The following colloquy from cross-examination is instructive:  “Q.  ․   You wanted to be cut in on the action, that's why you went along;  right?  [¶]  A.   That might be one of the reasons why I went.  [¶]  Q.   And the other one was for a change of scenery?  [¶]  A.   Yes.  [¶]  Q.   You also testified on direct examination that you thought that the lady would give you guys some money;  isn't that correct?  [¶]  A.   Give us some money?  [¶]  Q.  Yes.   A.   I didn't think she was going to give us anything.  [¶]  Q.   That's right, you knew that she wasn't going to give you any money, and any money that was to be had was going to have to be taken from her;  isn't that right?  [¶]  A.   Whatever.  [¶]  Q.   Does ‘whatever’ mean yes?   A.  Uh-huh.  [¶]  Q.   So you went there with the other guys knowing that this lady was going to have to be robbed of her money;  isn't that correct?   A.  (After a pause) Yeah.”  (Emphasis added.)   Thus, even if the jury believed that defendant did not personally stab Ostrander, he admitted at trial that he was aware that Trujillo's purpose in going to her apartment was to rob her, and that he (defendant) intended to share in the money taken.   Thus, defendant's own testimony, if believed, established his liability as an aider and abettor of the burglary.   His criminal liability would therefore have extended to the natural and reasonable or probable consequences of the encouraged act:  the robbery and the felony murder.  (Cf. People v. Beeman, supra, 35 Cal.3d at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318;  People v. Durham (1969) 70 Cal.2d 171, 181, 74 Cal.Rptr. 262, 449 P.2d 198, cert. den., 395 U.S. 968, 89 S.Ct. 2116, 23 L.Ed.2d 755;  People v. Dickerson (1972) 23 Cal.App.3d 721, 728, 100 Cal.Rptr. 533.)

For these reasons we would find the instructional error harmless if it were measured under the Watson standard (People v. Watson, supra, 46 Cal.2d 818, 836, 299 P.2d 243) or the Chapman standard (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705).

Defendant, however, urges that the only appropriate measure of the effect of the instructional error is that set forth in People v. Sedeno (1974) 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913, that is, that the error requires reversal unless the reviewing court can determine that the factual question omitted by the erroneous instruction was necessarily resolved adversely to the defendant under other properly given instructions.  (See also People v. Wickersham (1982) 32 Cal.3d 307, 335, 185 Cal.Rptr. 436, 650 P.2d 311;  People v. Modesto (1963) 59 Cal.2d 722, 730, 31 Cal.Rptr. 225, 382 P.2d 33.)   We agree, for implicit in People v. Caldwell, supra, 36 Cal.3d 210, 203 Cal.Rptr. 433, 681 P.2d 274, is the holding that at a minimum, a Sedeno standard of review applies to Beeman error.

In Caldwell, the trial court erroneously instructed the jury on aiding and abetting, but because the high court was satisfied that the error did not affect the jury's verdict and deliberation, it found the error harmless.   There, the defendant presented a duress defense:  “the essence of his defense was that because he acted only because he had been threatened he did not have a criminal intent in driving Washington and Belvin away from the scene of the robbery and attempting pursuit;  i.e. though he intended to facilitate the commission of the robbery, he did so only out of fear for his life.”  (Id., at p. 224, 203 Cal.Rptr. 433, 681 P.2d 274.)   The Supreme Court after noting that the jury evidently rejected the defense's version of events (i.e., that Caldwell acted without criminal intent) concluded, “Hence, the challenged instruction could not have affected the jury deliberation and verdict.  (See People v. Sedeno (1974) 10 Cal.3d 703 [112 Cal.Rptr. 1, 518 P.2d 913] ․)”  (People v. Caldwell, supra, at p. 224, 203 Cal.Rptr. 433, 681 P.2d 274.)

Here, it cannot be said that the jury necessarily rejected the defendant's version of events because they found that he did not personally use a deadly weapon and did not personally inflict great bodily injury on the victim.   Thus even though the evidence was sufficient for the jury to reasonably infer that defendant acted with criminal intent, the jury did not necessarily do so.   Under Sedeno a reviewing court has no power to decide that a properly instructed jury would have convicted the defendant of the offense.  (Id., at p. 720, 112 Cal.Rptr. 1, 518 P.2d 913.)   Thus we have no choice but to find that since the instructional error could have affected the verdict it is reversible error as to each count.⁴

II–III.5

The judgment is reversed.

FOOTNOTES

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

3.   Prior to 1974 CALJIC No. 3.01 read:  “A person aids and abets the commission of a crime if he knowingly and with criminal intent aids, promotes, encourages or instigates by act or advice, the commission of such crime.”  (See People v. Banks (1983) 147 Cal.App.3d 360, 366, 367, fn. 12, 195 Cal.Rptr. 101.)

4.   In so holding, we need not decide defendant's alternate contention that the instructional error is reversible per se because the effect of the instructional error was to remove the issue of intent from the trier of fact.  (Cf. Connecticut v. Johnson (1983) 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823;  Sandstrom v. Montana (1979) 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39;  In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.)

5.   See footnote 1, ante.

POCHÉ, Acting Presiding Justice.

PANELLI, J., and CALDECOTT, J.*, concur.