PEOPLE v. JOHNSON (1984)

A jury found appellant Ralph Cornelius Johnson guilty of attempted murder (Pen.Code, §§ 664/187;  count I), attempted robbery (Pen.Code, §§ 664/211;  count II), burglary (Pen.Code, § 459;  count III), and assault with a deadly weapon (Pen.Code, § 245, subd. (a)(2);  count IV) and further found true the allegations contained in all counts that during commission or attempted commission of the crimes charged appellant used a firearm (Pen.Code, §§ 12022.5 and 1203.06(a)(1)) and a principal was armed with a firearm (Pen.Code, § 12022(a)).   Appellant was sentenced to state prison, and this appeal followed.

CONTENTIONS

Appellant contends (1) that reversal is required because the trial court abused its discretion in denying his motions to reopen his case and present crucial defense witnesses;  (2) that the trial court erred in disallowing the polygraph results into evidence;  (3) that the convictions must be reversed because the trial court failed to instruct the jury that they had to unanimously agree on a victim in counts I, II and IV;  (4) that the trial court erred by giving CALJIC No. 2.06 as there was no evidence to support that instruction;  (5) that he was denied due process of law by the trial court's instruction that appellant would be liable for crimes which were the natural and reasonable consequences of the acts he knowingly aided or encouraged even if he had no knowledge of the perpetrator's wrongful crimes;  (6) that the evidence is insufficient to sustain the finding that appellant personally used a gun during the commission of the attempted murder;  (7) that the trial court failed to state reasons for imposing a consecutive sentence;  and finally (8) that the trial court improperly imposed two use enhancements for a single act of firearm use.   No appeal is taken from the burglary conviction.

FACTS

At approximately 1:25 a.m. on August 25, 1982, Raymond Gonzales (Gonzales) and Phil Espinoza (Espinoza) were working at the In-N-Out Burger located in the City of Pomona.   At that time, which was about one-half hour after the restaurant had been closed to the public, appellant and codefendant Lloyd Farrell (Farrell) entered the premises carrying guns.

Farrell demanded the money from the restaurant.   Gonzales told Farrell that the money was in a time-locked safe and that there was no way they could get into it.   Appellant told Gonzales to break the safe open if necessary.

Farrell and appellant walked Gonzales to the safe at gunpoint.   When Gonzales emphasized that it would not do any good for him to try and open the safe because it was time-locked, appellant repeatedly stated, “Blow him away, he's just stalling” and “Let's just blow him away and get out of here.”

Appellant then walked outside.   Farrell moved back toward the door which he rested on his shoulder.   Something distracted Farrell, and when he turned his head to look outside, the hand holding the gun turned with him.   Gonzales ran to the door.   When he was halfway there, Farrell turned around and pointed his gun at Gonzales.   The latter ran behind the door, pushed on it, and forced Farrell out.   The gun went off as Gonzales shoved the door.

Appellant and Farrell ran from the In-N-Out Burger and were arrested by police shortly thereafter.

I

Appellant first contends that the trial court abused its discretion in denying his two motions to reopen his case and present further evidence.   We shall hold that it did not.

 The trial court has discretion to order a case reopened for good cause even after the jury has commenced deliberations.  (Pen.Code, § 1094;  People v. Green (1980) 27 Cal.3d 1, 42, 164 Cal.Rptr. 1, 609 P.2d 468.)   “Factors to be considered in reviewing the exercise of such discretion include the stage the proceedings had reached when the motion was made [citation], the diligence shown by the moving party in discovering the new evidence [citation], the prospect that the jury would accord it undue emphasis [citation], and the significance of the evidence.  [Citation.]”  (People v. Newton (1970) 8 Cal.App.3d 359, 383, 87 Cal.Rptr. 394.)

After appellant rested his case, but before the prosecution presented any rebuttal evidence, appellant advised his trial counsel about three potential witnesses, William D. Robinson, Robert Johnson and Frank Felix, who were in the county jail.   Appellant alleged that he had learned of these witnesses the night before and moved the trial court to permit him to reopen his case to present the testimony of these witnesses.   This motion was based on an offer of proof that these witnesses would testify that Farrell told them that appellant was not involved in the incident at the In-N-Out Burger and was innocent of any wrong doing.   The motion was denied.

 Appellant contends that Farrell's statement to Robinson, Johnson, and Felix that appellant was innocent was admissible as a declaration against Farrell's penal interest.  (See Evid.Code, § 1230.) ¹  Appellant did not seek admission of Farrell's statement on this ground below and may not do so for the first time on appeal.   We note, however, that Farrell's statement as set forth in the offer of proof would not have been admissible as a declaration against penal interest.   While Farrell was unavailable because he had asserted his Fifth Amendment privilege and had refused to testify when called by appellant, Farrell's statement merely exculpated appellant.   It did not admit or tend to prove that Farrell was guilty of the incident at the In-N-Out Burger.   His statement, therefore, to the three inmates did not subject him to the risk of criminal liability.

Appellant again moved to reopen his case prior to closing argument seeking to present the testimony of Farrell who had previously asserted his Fifth Amendment privilege against self-incrimination.   Farrell had informed appellant by declaration that he was willing to give testimony exonerating him.   This motion, too, was denied.

Under Evidence Code section 354, no judgment shall be reversed on the ground of erroneous exclusion of evidence unless the error resulted in a miscarriage of justice and “it appears of record that:  [¶] (a) [t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any means.”  “An offer of proof must be specific in its indication of the purpose of the testimony, the name of the witness, and the content of the answer to be elicited.”  (People v. Sperl (1976) 54 Cal.App.3d 640, 657, 126 Cal.Rptr. 907, cert. den., Sperl v. California, 429 U.S. 832, 97 S.Ct. 95, 50 L.Ed.2d 97, emphasis in original;  see also Witkin, Cal.Evidence (2d ed. 1966) Introduction of Evidence at Trial, § 1311, p. 1212.)

 A review of the record discloses that appellant failed to make an adequate offer of proof.   His conclusional and vague assertion that Farrell would give testimony exonerating him was totally insufficient.   Because appellant failed to inform the court of the substance of the testimony to be given by Farrell, consideration of his claimed error is precluded on appeal.   We conclude, therefore, that the trial court did not abuse its discretion in denying appellant's second motion to reopen his case to present the testimony of Farrell.

II

Appellant contends that the trial court erred in denying his motion to admit into evidence the favorable results of a polygraph examination that he had taken.²

Proposition 8 added article I, section 28, subdivision (d) (hereafter section 28(d)) to the California Constitution.   Section 28(d) which is entitled “Right to Truth-in-Evidence” in pertinent part provides:  “[R]elevant evidence shall not be excluded in any criminal proceeding, ․  Nothing in this section shall affect any existing statutory rule of evidence relating to ․ Evidence Code [Section] 352, ․”

Appellant contends “that the ‘truth in evidence’ requirement of Proposition Eight mandates the admission of favorable polygraph test results without the necessity for a lengthy hearing concerning general approval of the polygraph in the particular scientific field.”   We disagree.   This contention incorrectly presupposes that polygraph evidence is presently recognized as having probative value, i.e., relevance.  “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”  (Evid.Code, § 210.)

In 1974, our Supreme Court in People v. Thornton (1974) 11 Cal.3d 738, 764, 114 Cal.Rptr. 467, 523 P.2d 267, certiorari denied, Thornton v. California (1975) 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393, disapproved in part on other grounds People v. Flannel (1979) 25 Cal.3d 668, 684, 160 Cal.Rptr. 84, 603 P.2d 1, footnote 12, noted that “lie detector tests themselves are not considered reliable enough to have probative value.”   Two years later, the state's high court reemphasized “that polygraph evidence is not presently admissible in California courts ․”  (People v. Duck Wong (1976) 18 Cal.3d 178, 189, 133 Cal.Rptr. 511, 555 P.2d 297.)

While the concepts of relevance and reliability are not necessarily equivalent,³ the Supreme Court has equated these two concepts insofar as polygraph evidence is concerned.   We, of course, follow the path carved by the Supreme Court.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937;  but compare Witherspoon v. Superior Court (1982) 133 Cal.App.3d 24, 34–35, 183 Cal.Rptr. 615.)

 Contrary to appellant's assertion, section 28(d) does not purport to obviate the necessity for a hearing to determine the relevance, reliability, and ultimately the admissibility of polygraph evidence.   Appellant was, in fact, afforded such a hearing in this case.   Therefore, the question we must determine is whether appellant introduced evidence to sufficiently establish that the polygraph has achieved the requisite degree of general scientific acceptance as a reliable method of determining whether a person is being truthful.

In People v. Kelly (1976) 17 Cal.3d 24, 30, 130 Cal.Rptr. 144, 549 P.2d 1240, which involved the admissibility of voiceprint evidence, the Supreme Court stated “that admissibility of expert testimony based upon the application of a new scientific technique traditionally involves a two-step process:  (1) the reliability of the method must be established, usually by expert testimony, and (2) the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject.”  (Emphasis in original.)   The court went on to note that “[t]he test for determining the underlying reliability of a new scientific technique was described in the germinal case of Frye v. United States (D.C.Cir.1923) 293 F. 1013, 1014, involving the admissibility of polygraph tests:  ‘Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define.   Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’  (Italics added.)”  (17 Cal.3d at p. 30, 130 Cal.Rptr. 144, 549 P.2d 1240.)

We have reviewed the evidence adduced at the admissibility hearing and conclude that appellant failed to establish general acceptance of polygraph examinations by the scientific community.

In Kelly, the court stated that “it [is] questionable whether the testimony of a single witness alone is ever sufficient to represent, or attest to, the views of an entire scientific community regarding the reliability of a new technique.   Ideally, resolution of the general acceptance issue would require consideration of the views of a typical cross-section of the scientific community, including representatives, if there are such, of those who oppose or question the new technique.”  (17 Cal.3d at p. 37, 130 Cal.Rptr. 144, 549 P.2d 1240.)

 The only person that appellant called to testify at the admissibility hearing was Michael Listick (Listick), the polygraph examiner who administered appellant's test.   His sole and personal opinion based on his studies, training and experience that polygraph results are reliable was far from sufficient to establish general acceptance by the scientific community.

While Listick undoubtedly qualified as a technician to administer polygraph examinations, he testified that he was not recognized in any scientific community as being a scientist.   Doubt exists, therefore, as to whether Listick is qualified as an expert to render an opinion on the issue of whether polygraph evidence has received general acceptance in the scientific community, for academic and scientific knowledge does not necessarily flow from technical knowledge.  (People v. Kelly, supra, 17 Cal.3d at p. 39, 130 Cal.Rptr. 144, 549 P.2d 1240.)   As the Kelly court noted:  “In considering the position of the scientific community, a court is bound to let scientists speak for themselves.   Nash's undoubted qualifications as a [voiceprint] technician, ․ do not necessarily qualify him as a scientist to express an opinion on the question of general scientific acceptance.  [¶] ․   Although the Frye test may be satisfied by a showing of general acceptance by those scientists who are most familiar with the use of a new technique [citations], such a showing, ordinarily, should be presented by those who are engaged in the scientific fields.”  (17 Cal.3d at p. 40, 130 Cal.Rptr. 144, 549 P.2d 1240.)

Additionally, the reliability of appellant's polygraph results is seriously diminished when the “friendly polygrapher” theory is considered.   In excluding appellant's proffered polygraph evidence, the trial court specifically questioned the validity of test results obtained by a friendly polygrapher.

In People v. Adams (1975) 53 Cal.App.3d 109, 116–117, 125 Cal.Rptr. 518, Division Five of this court found the comments taken from chapter IX of Legal Admissibility of the Polygraph, subtitled “The Friendly Polygrapher” and written by Martin T. Orne, Ph.D., Harvard University, Professor, Department of Psychiatry, University of Pennsylvania, to be relevant to the issue of reliability of polygraph results.⁴  Those comments addressed the unreliability of polygraph examinations conducted by “friendly polygraphers.”   Appellant offered no evidence to dispel this theory.

Appellant has failed to prove that polygraph evidence has the necessary degree of reliability to render it relevant.⁵  For the foregoing reasons, we conclude that the trial court properly excluded the polygraph evidence.

III

Appellant next contends that his convictions for attempted murder, attempted robbery and assault with a deadly weapon must be reversed because the trial court failed to instruct the jury that they had to unanimously agree on a victim in counts I, II and IV.

In counts I, II and IV of the information, appellant was charged respectively with attempted murder, attempted robbery and assault with a deadly weapon as to victims Gonzales and Espinoza.

 The accusatory pleading was defective insofar as each of these counts alleged multiple offenses—two attempted murders in count I, two attempted robberies in count II and two assaults in count IV.  (See Pen.Code, § 954.)

Appellant failed to demur to the accusatory pleading (Pen.Code, § 1004), and thereby waived any objection that he may have had to the defective pleading.  (Pen.Code, § 1012;  People v. McNeill (1980) 112 Cal.App.3d 330, 334–335, 169 Cal.Rptr. 313.)

While counts I, II, and IV each alleged two separate offenses, the jury was supplied with only one set of verdict forms as to each count.   Neither victim was named on those verdict forms.

“It is fundamental that a criminal conviction requires a unanimous jury verdict [citations].   Where defendant is charged in a single count with several offenses and the evidence tends to show that he committed more than one such offense, the jury must agree upon the particular act committed in order to convict.  [Citation.]”  (People v. McNeill, supra, 112 Cal.App.3d 330, 335, 169 Cal.Rptr. 313.)   In the case before us, the jury was not instructed that they had to unanimously agree on the victim of each of the alleged offenses.   Respondent argues that no such instruction was required as to counts I and II, and that the failure to instruct as to count IV was harmless.

Count I—Attempted Murder

When the information was read to the prospective jurors, both Gonzales and Espinoza were named as alleged victims in counts I, II and IV.   During the trial, the prosecutor's motion to strike Espinoza's name from count I was granted.   The prosecutor expressed the opinion that there was no evidence of an attempt to murder Espinoza.   We agree.

 It is well established that when a defendant is charged with an offense and the evidence establishes more than one act that may constitute the crime charged, the trial court must instruct the jury sua sponte that they must unanimously agree that the accused committed the same act or acts in order to convict him.  (See People v. Kent (1981) 125 Cal.App.3d 207, 213, 178 Cal.Rptr. 28;  People v. Madden (1981) 116 Cal.App.3d 212, 218–219, 171 Cal.Rptr. 897;  see also CALJIC No. 17.01.)

 In the present case, the evidence established only one act of attempted murder committed against Gonzales.   This occurred when Farrell shot at Gonzales when the latter was running to the door in an attempt to push Farrell outside.   Espinoza was not a victim of an attempted murder.   Therefore, the trial court committed no error in failing to give a unanimity instruction as to count I.

Count II—Attempted Robbery

Respondent concedes that the evidence establishes that appellant and Farrell entered the In-N-Out Burger stand and attempted to rob the two victims of the cash in the safe at the hamburger stand.   Respondent contends, however, under the supposed authority of People v. Guerin (1972) 22 Cal.App.3d 775, 99 Cal.Rptr. 573, certiorari denied, Guerin v. California, 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105, and People v. Higgins (1972) 28 Cal.App.3d 771, 104 Cal.Rptr. 925 that there was only one attempted robbery.   Its reliance on those two cases is misplaced.   Insofar as Guerin and Higgins stand for the proposition that a single taking of jointly possessed property from more than one victim constitutes but one robbery, both cases were disapproved in People v. Ramos (1982) 30 Cal.3d 553, 589;  fn. 16, 180 Cal.Rptr. 266, 639 P.2d 908, reversed on other grounds California v. Ramos (1983) 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171.

Ramos instructs:

“Robbery is not merely the felonious taking of personal property.   Such a taking, without more, is only theft.   To constitute robbery the property must be removed from the possession and immediate presence of the victim against his will, and such removal must be by force or fear.   When two or more persons are in joint possession of a single item of personal property, the person attempting to unlawfully take such property must deal with all such individuals.   All must be placed in fear or forced to unwillingly give up possession․

“We view the central element of the crime of robbery as the force or fear applied to the individual victim in order to deprive him of his property.   Accordingly, if force or fear is applied to two victims in joint possession of property, two convictions of robbery are proper.”  (30 Cal.3d 553, 589;  fn. omitted, 180 Cal.Rptr. 266, 639 P.2d 908.)

We conclude that, since both Gonzales and Espinoza were threatened and placed in fear by the display of weapons during the attempted taking, two convictions for robbery would have been proper had they been properly charged.   They were not.   Moreover, the jury was not supplied with a separate set of verdict forms for each victim.   It was given only one set of verdict forms and neither Gonzales' nor Espinoza's name appeared thereon.   The question remaining for this court, then, is whether the jury should have been instructed that they had to unanimously agree on a particular victim in order to convict appellant of attempted robbery.

We note initially that when there has been but one taking or one attempted taking from two individuals in joint possession of property, instructional problems such as the one presently before us can be avoided in the first instance by proper pleading.

 It is clear from the evidence that Gonzales and Espinoza both had constructive possession over the money in the safe.   Appellant makes no contention to the contrary.   Since there was only one attempted taking from two persons in joint possession of property, the jury would necessarily have had to find unanimously that both Gonzales and Espinoza were victims or that neither were victims.   We therefore conclude that the court committed no instructional error in failing to give a unanimity instruction as to the attempted robbery charged in count II.

Count IV—Assault with a Deadly Weapon

In People v. McNeill, supra, 112 Cal.App.3d 330, 169 Cal.Rptr. 313, defendant fired a series of rapid shots in the direction of four persons.   In count II of the information, defendant was charged with assault with a deadly weapon and by means of force likely to produce great bodily injury.   Each of the four persons was alleged to be a victim of the crime charged.

At the prosecutor's request, the jury was instructed that it was not necessary for them to find that “ ‘defendant committed these acts against each of the four individuals named therein.   It is sufficient if you find that defendant committed these acts on only one of the named individuals.’ ”  (People v. McNeill, supra, 112 Cal.App.3d at p. 335, 169 Cal.Rptr. 313.)   While the McNeill court found that this special instruction was correct as far as it went, it concluded that it did not go far enough, since the “jurors were not instructed that at minimum they must unanimously agree as to a single individual among those alleged in count II as victims upon whom an assault was committed.”  (Id., at p. 335, 169 Cal.Rptr. 313.)   The McNeill court expressed its reasoning in the following words:

“It is fundamental that a criminal conviction requires a unanimous jury verdict (Cal. Const., art. I, § 16;  People v. Wheeler (1978) 22 Cal.3d 258, 265 [148 Cal.Rptr. 890, 583 P.2d 748] ).  Where defendant is charged in a single count with several offenses and the evidence tends to show that he committed more than one such offense, the jury must agree upon the particular act committed in order to convict.  (See People v. Scofield (1928) 203 Cal. 703, 710 [265 P. 914].)  The possibility that the jurors may have come to different conclusions as to the identity of the assault victim vitiates the constitutionally required asurance [sic] of juror unanimity as to the assault conviction.   While it is of course possible that the jurors agreed unanimously as to a particular victim of the assault, such agreement would necessarily be fortuitous in the absence of a proper instruction.   More to the point, on the record before us we have no way to ‘gauge the precise effect’ (People v. Gainer (1977) 19 Cal.3d 835, 854 [139 Cal.Rptr. 861, 566 P.2d 997, 97 A.L.R.3d 73] ) of the instructional lacuna upon the verdict actually rendered.   Since we cannot say that the jurors agreed unanimously upon the act constituting the offense charged in count II, we have no assurance that a miscarriage of justice did not occur.   Therefore, the judgment of conviction under the assault count must be reversed.  (See People v. Gainer, supra, at p. 855 [139 Cal.Rptr. 861, 566 P.2d 997, 97 A.L.R.3d 73].)”  (112 Cal.App.3d at pp. 335–336, 169 Cal.Rptr. 313.)

 Unlike the situation presented in count II (attempted robbery), the evidence discloses several acts that may have formed the basis for an assault with a deadly weapon verdict against each of the named victims.   Since we cannot conclude that the jury unanimously agreed on the act constituting the assault with a deadly weapon, appellant's conviction for that crime must be reversed.   We cannot conclude that there has been no miscarriage of justice.   The trial court should have instructed the jury sua sponte that it had to agree on the particular act committed, and thus the particular victim, before it could find appellant guilty of assault with a deadly weapon.

IV

 Appellant contends that the trial court erred in instructing the jury that “[i]f you find that a defendant attempted to suppress evidence against himself in any manner, such as [by the defendant changing his appearance prior to an in-person lineup] such attempts may be considered by you as a circumstance tending to show a consciousness of guilt.   However, such evidence is not sufficient in itself to prove guilt and its weight and significance, if any, are matters for your consideration.”   That instruction is a modification of CALJIC No. 2.06.   Appellant argues that there was no evidence that he attempted to suppress evidence against himself by changing his appearance.   We disagree.

“It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference.”  (People v. Hannon (1977) 19 Cal.3d 588, 597, 138 Cal.Rptr. 885, 564 P.2d 1203.)

Shortly after the incident at In-N-Out Burger, Gonzales identified appellant in an infield showup.   At that time appellant wore his hair close to his head and had braids in his beard.   At a jail lineup held on September 7, 1982, which appellant himself requested, his hair was combed out in a natural, and the braids had been removed from his beard.   Gonzales testified that appellant's appearance had changed “[a] lot.”

From this evidence, the jury need not have, but reasonably could have, inferred that appellant attempted to evade identification.   We therefore conclude that the trial court did not err in giving the jury CALJIC No. 2.06 as modified.

V

Appellant was convicted of attempted murder on the theory that he aided and abetted Farrell in the commission of the crime.   In accordance with this theory, the trial court instructed the jury by giving them CALJIC Nos. 3.00 (1979 rev.) and 3.01 (1980 rev.).   These instructions define, respectively, principals and aiding and abetting.

CALJIC No. 3.00 (1979 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:  [¶]  ․ [¶]  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, ․ [¶]  ․ [¶]  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.”

CALJIC No. 3.01 (1980 rev.) in pertinent part, and as given by the trial court, 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.”

Appellant cites Sandstrom v. Montana (1979) 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, in support of his contention that that portion of CALJIC No. 3.00 (1979 rev.) which provides that an aider and abetter “is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged” is constitutionally infirm because it creates an improper presumption of intent and therefore deprives him of due process of law.

 In Sandstrom, the United States Supreme Court held that a presumption that relieves or lightens the prosecution's constitutional duty to prove every element of a criminal offense beyond a reasonable doubt violates due process.  (442 U.S. at pp. 520–524, 99 S.Ct. at p. 2457–2459.)   “ ‘[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ ”  (Id., at p. 520, 99 S.Ct. at p. 2457, quoting In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368.)   Moreover, under the due process clause the burden of proof may not be shifted to a criminal accused.  (Patterson v. New York (1977) 432 U.S. 197, 215, 97 S.Ct. 2319, 2329, 53 L.Ed.2d 281.)

In People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318, our Supreme Court recently held that the definition of aiding and abetting in CALJIC No. 3.01, is erroneous in that it fails to adequately inform the jury of the criminal intent required to convict a criminal accused as an aider and abetter.   We shall conclude that CALJIC No. 3.00 suffers from the same defect.

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.  [Citations.]  [¶]  When the definition of the offense includes the intent to do some act or achieve some consequence beyond the actus reus of the crime [citation], the aider and abettor must share the specific intent of the perpetrator․  [A]n aider and abettor will ‘share’ the perpetrator's specific intent when he or she knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime.  [Citations.]”  (35 Cal.3d at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318, emphasis in original;  see also conc. and dis. opn. of Richardson, J. at p. 563.)

Defendant Beeman urged a reversal of his conviction under California law.   He further urged that Sandstrom mandated automatic reversal of his conviction because CALJIC No. 3.01 created a presumption of intent in violation of due process.  (People v. Beeman, supra, 35 Cal.3d at p. 561, 199 Cal.Rptr. 60, 674 P.2d 1318.)   The Supreme Court concluded that the instructional error therein required reversal even under the most lenient Watson⁶ standard and therefore found it unnecessary to decide if such instructional errors should, as a general rule, be reviewed under the stricter federal standard of harmless-beyond-a-reasonable-doubt standard.⁷  (35 Cal.3d at p. 563, 199 Cal.Rptr. 60, 674 P.2d 1318.)   Nor did the court decide whether reversal was mandated under Sandstrom.   It observed, however, that “[w]hile the error which flows from the giving of CALJIC No. 3.01 is not identical to a conclusive presumption or to placing the burden of persuasion on the defendant [citation], it is just as effective—if not more effective—in removing the issue of intent from the jury's consideration.  [Citation.]”  (35 Cal.3d at p. 561, fn. 4, 199 Cal.Rptr. 60, 674 P.2d 1318.)

 While CALJIC No. 3.00 does not create a conclusive presumption of intent, it is nevertheless deficient under Beeman because it effectively removes the issue of criminal intent from the consideration of the jury.   Beeman expressly states 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;  emphasis added.)   Therefore, CALJIC Nos. 3.00 and 3.01 as given to the jury in this case were erroneous and resulted in a violation of due process since they allowed the jury to find appellant guilty of attempted murder without finding all of the elements necessary for a conviction.

The question remaining for determination, then, is whether the Beeman error mandates reversal of the attempted murder (count I) conviction.   While this case does not involve Sandstrom error, a review of cases discussing the appropriate standard of reviewing such error is helpful in reaching an understanding of the issue we now resolve.

In People v. Burres (1980) 101 Cal.App.3d 341, 354, 161 Cal.Rptr. 593, Division Three of the Court of Appeal for the First District concluded that Sandstrom error was reversible per se.

In People v. Roder (1983) 33 Cal.3d 491, 504–505, 189 Cal.Rptr. 501, 658 P.2d 1302, our Supreme Court noted that “[t]he majority of courts that have faced this issue since Sandstrom have determined that the Chapman standard is applicable,” but did not decide whether Sandstrom error was “invariably prejudicial” or merely subject to the Chapman harmless-beyond-a-reasonable-doubt standard.   It found it unnecessary to reach the issue since it concluded that the error in that case could not even pass the Chapman test.

One day after Roder was decided, the United States Supreme Court decided Connecticut v. Johnson (1983) 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823.   Therein, the nation's highest court split four to four on the issue of whether Sandstrom error is reversible per se or is to be reviewed under the federal harmless error standard of Chapman.   Justices Blackman, Brennan, White and Marshall concluded that “[s]uch an error deprived respondent of ‘constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error’ Chapman v. California, 386 U.S. at 23, 87 S.Ct. 824, at 827, 17 L.Ed.2d 705.”  (Connecticut v. Johnson, supra, 460 U.S. at p. 88, 103 S.Ct. at p. 978, 74 L.Ed.2d at p. 835.)   Justice Stevens concurred in the judgment.   Justices Powell, Rehnquist and O'Connor and Chief Justice Burger dissented.   It was their opinion that Sandstrom error should be judged by the federal harmless-beyond-a-reasonable-doubt standard.   It was their belief that Sandstrom error “is distinguishable from other instructional errors that prevent a jury from considering an issue.”   The Connecticut v. Johnson dissenters cited Jackson v. Virginia (1979) 443 U.S. 307, 320, footnote 14, 99 S.Ct. 2781, 2790, 61 L.Ed.2d 560, wherein a majority of the court noted “that failure to instruct a jury on the necessity of proof of guilt beyond a reasonable doubt can never be harmless error.”

The instructional error in this case, in effect, prevented the jury from considering whether appellant had the criminal intent necessary to establish his guilt of attempted murder under an aiding and abetting theory.   It allowed the jury to convict appellant of attempted murder without informing it and requiring it to find “every fact necessary to constitute the crime with which he is charged.”  (In re Winship, supra, 397 U.S. at p. 364, 90 S.Ct. at p. 1073.)

 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. at p. 320, fn. 14, 99 S.Ct. at p. 2789), 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

VI

Since we must reverse appellant's conviction of attempted murder, we need not, and do not, decide whether the evidence is insufficient to sustain the finding that appellant personally used a firearm during the commission of the attempted murder within the meaning of Penal Code section 12022.5.

VII

Appellant contends that remand for sentencing is necessary because the trial court failed to state reasons for ordering the sentence on count II to run consecutive to that imposed on count I and because a dual use-of-facts problem is also presented.

Since we reverse as to counts I and IV, and since we assume that on remand the claimed sentencing error will not occur we need not, and do not, discuss appellant's contentions in that regard.

For the same reasons, we do not reach the merits of appellant's contention that the trial court improperly imposed two use enhancements (one for the attempted murder count and another for the attempted robbery count) for a single act of firearm use.

The judgments of conviction as to counts I (attempted murder) and IV (assault with a deadly weapon) are reversed.   The judgments of conviction as to counts II (attempted robbery) and III (burglary) are affirmed.   The matter is remanded for retrial as to counts I (attempted murder) and IV (assault with a deadly weapon) and for resentencing.

FOOTNOTES

1.   Evidence Code section 1230 provides:  “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.”

2.   Trial in this matter took place before the effective date (July 12, 1983) of Evidence Code section 351.1 which provides in pertinent part:  “(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, ․ shall not be admitted into evidence in any criminal proceeding, ․ unless all parties stipulated to the admission of such results.”

3.   Evidence Code section 351 provides:  “Except as otherwise provided by statute, all relevant evidence is admissible.”   The Law Revision Commission's comment to this section explicitly states:  “The Evidence Code contains a number of provisions that exclude relevant evidence either for reasons of public policy or because the evidence is too unreliable to be presented to the trier of fact.”

4.   “[S]cientific and legal articles containing differing forms of opposition to the admissibility of [polygraph] evidence ․ may be considered by courts in evaluating the reliability of new scientific methodology.”  (People v. Kelly, supra, 17 Cal.3d at p. 35, 130 Cal.Rptr. 144, 549 P.2d 1240.)

5.   We need not, and do not, decide whether section 28(d) abrogates Evidence Code sections 801–804.

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

7.   Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

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 was the proper standard of review for an instruction violating due process.   The Banks court did not discuss or mention Connecticut v. Johnson, which had been decided seven months previously.  Banks was also decided before Beeman.

McCLOSKY, Associate Justice.

KINGSLEY, Acting P.J., and RUDOF, J.*, concur.