PEOPLE v. MURPHY (1985)

Defendants were convicted by a jury of attempted robbery and solicitation to commit robbery.   An allegation that a principal was armed with a firearm during the attempted robbery (Pen.Code, § 12022, subd. (a)) was found to be true.   Defendant Morris admitted, outside the presence of the jury, an allegation that he was on bail or O.R. awaiting trial at the time of the commission of the attempted robbery (Pen.Code, § 12022.1).   Defendant Murphy was sentenced to four years and eight months in prison, namely, consecutive terms of three years for the attempted robbery, one year for the armed allegation, and eight months for solicitation.   Defendant Morris was sentenced to state prison for two years and eight months, namely, consecutive terms of eight months for the attempted robbery, and two years for the 12022 allegation.   An eight month term for the solicitation count was imposed, but ordered to run concurrently with the attempted robbery sentence, and four months for the armed allegation was imposed and stayed.   The two year, eight month sentence was ordered to be served consecutively with a two year term which had been imposed in another case (A 528872).   Both defendants have appealed.

FACTS

Theodore Marshall was employed as a cook working the 3 p.m. to 11 p.m. shift at the McDonald's Restaurant located at the intersection of Amar and Azusa Roads in West Covina.   In 1983, Marshall was contacted by both Murphy and Morris regarding a robbery of this McDonald's.  (Marshall was named in the information as the party solicited to commit robbery.)

Marshall had been acquainted with Murphy for approximately one year prior to February, 1983.   A few days before February 17, 1983, Murphy and Marshall were together, and Murphy jokingly said to Marshall:  “Let's set up a robbery at your Mc Donald's.” ¹  Marshall did not know how to take the comment and just laughed.   Later, on the same day, Marshall was introduced by Murphy to Morris at a basketball court.   However, nothing further was mentioned concerning a possible robbery.

On a second and subsequent occasion, again prior to February 17, Murphy came by Marshall's home, and in the course of their conversation, Murphy stated that he was “low on funds, and was staying at a motel, and needed money to pay for additional rent ․ and how good it would be to take care of Mc Donald's and get some money out of Mc Donald's and pay for some more time in a motel.”   Murphy then asked Marshall where the safe was located, and whether he, Marshall, would open the back door of Mc Donald's for him.   Murphy also indicated that he didn't have a car, but knew a person with a car who would help him.   Marshall told Murphy that he could not help him with the back door, and would not help or assist him steal money from Mc Donald's.²

In the early afternoon of February 17, 1983, codefendants came to Marshall's home in a small white Toyota.   Marshall was out front washing his own vehicle.   Morris stated that his Toyota was ready to go, that he would be driving it, and would be wearing a mask during the robbery.   He further stated that he had just come from court, that he needed $900 to pay his attorney, and that he did not want to pay him out of his pocket or payroll check.   Murphy again stated he needed money for rent.

The planning of the robbery was discussed with Marshall.   It was scheduled to take place on February 17, five minutes before the 11 p.m. closing.   Murphy was going to enter and place an order for food.   Morris was to go into the bathroom, come out, and move people out of the way.   The robbery would then occur.

Murphy stated he had a car and was ready.   He also mentioned he had a gun, indicating to Marshall a shoulder holster, and would bring it that night to Mc Donald's.   Murphy again asked Marshall about the safe, its location, the amount of money that would be on hand, and where the office was in relation to the back door.   He requested Marshall to open the back door for him, and offered him a percentage cut if he would help.

Marshall explained that there was an alarm on the back door, and that the manager was the only person with the key to the alarm.   Further, he told them that one employee was not permitted to open the back door without another employee being present.   Marshall stated that he was not going to open the back door, and therefore did not need a percentage.

In Marshall's presence, Murphy and Morris also discussed a previous robbery of a service station.   Murphy said that they would not have had to go to court that day if Morris had not “screwed up.”   Murphy stated that he had fired two shots in the air during the robbery, to try and get a man to let go of Morris, and he himself had had to run because a dog was coming after him.

On February 17, 1983, West Covina Police Detective David Shively received information regarding the possible robbery of a Mc Donald's at Azusa and Amar in West Covina.   Detective Shively obtained the names of the possible people involved and thereafter obtained photographs of the suspects from the Pomona Police Department.   The pictures were of Murphy and Morris.   Detective Shively also obtained information as to a vehicle, a white Toyota, which was to be used by the suspects, as well as the timing and manner or way in which the robbery would occur.

After obtaining this information, the West Covina Police Force assigned a task force of ten officers to stake out the McDonald's.   They took up various positions of vantage for observation and apprehension.   The officers, in plain clothes, and their unmarked vehicles, were in place by 10:15 p.m. on February 17.   There was radio communication between the various police vehicles.

Shortly thereafter, a white Toyota pulled into a nearby Chevron station.   Morris exited and put gasoline into the Toyota.   There were two other persons in the car.   Morris got back in the car, and drove onto Azusa Avenue, northbound into the left turn lanes, and then made a left turn onto Amar.   The car then turned south on Witzman and stopped.   Two persons exited and walked towards Mc Donald's through a vacant lot.   The Toyota started up and continued south on Witzman, left on Ashcomb, and then parked.   Morris left the car and walked north on Witzman towards Amar.   Morris was wearing a stocking mask pulled over his head to the eyebrows.

Morris was stopped by Police Officer Long, who identified himself.   Morris threw up his hands, removed the stocking mask, and threw it to the ground.   He was then handcuffed and detained.   Morris was not armed.   The stocking mask was retrieved by the police.

The two persons who had exited the car on Witzman continued through the vacant lot towards Mc Donald's.   They were subsequently identified as Murphy and a Mr. Shaw.   The two appeared nervous and subsequently entered Mc Donald's.   Murphy went directly to the front counter.   Shaw went towards the back center of Mc Donald's where a restroom was located.

Inside the restaurant, Marshall was preparing for closing in the washing area behind the fast food location.   At approximately 10:55 p.m. he walked towards the filet counter to return cleaned items when he saw Murphy walking, as if from the bathroom area, across in front of the counter to the area where customer's paid for their purchases.   Murphy and Marshall exchanged looks.   Murphy then walked out of the store with his order through the front doors.

Upon exiting, Murphy turned north and walked to the corner of the building and appeared to peak around the corner to look towards Amar and the vacant lot.   Shortly thereafter, Shaw exited through the east doors.   Murphy then proceeded west along the rear wall of the Mc Donald's where he was arrested.   Shaw was also arrested at the same time.   Murphy was searched, and a gun loaded with six live rounds was retrieved from a shoulder holster that he was wearing.

At the police station, Morris, after waiving his Miranda rights, explained that he and Shaw had been in Montclair at Shaw's sister's home when he and Shaw decided to go visit his, Morris' sister, who lived in an apartment complex near Mc Donald's.   He further told the police that he and Shaw then drove to West Covina.   He then dropped Shaw off at Mc Donald's because Shaw was hungry, but drove to a nearby park to smoke a joint and relax.   He then purportedly got back in his car to drive to his sister's residence, but a warning signal on the car, indicating overheating, activated, so he parked the car and began to walk towards his sister's apartment.

When asked if he was involved in a robbery, he denied that he was or that he had any knowledge of a robbery.   He denied that he was wearing the stocking on his head.   He stated that his girlfriend had borrowed his jacket and apparently had left the stocking in the jacket pocket.   When the officers told him to freeze, he pulled his hands from his pockets and the stocking came out accidentally and fell onto the ground.

After waiving his Miranda rights and stating that he was willing to talk without a lawyer, Murphy was asked to relate how he happened to be at Mc Donald's.   Murphy did not respond but sat and simply looked at the officer.   Murphy again was asked if he wanted to discuss the robbery.   He replied that he could only say that he did not want to be “here” and had changed his mind.   He said he had been a policeman, that he had a law degree, and the officer could understand why he could not tell him what he wanted to know.   He again was asked to tell what happened, but Murphy then stated he did not want to talk anymore.   The interview was terminated.³

The officers having information that the suspected robbers were known to an employee or employees of Mc Donald's questioned Marshall.   Marshall previously had not reported his conversation with Murphy or Morris to either his employer or the police.   Marshall told the officer that he knew Murphy and Morris, and of their earlier conversations including the “solicitation.”   He was subsequently given immunity by law enforcement authorities in exchange for his testimony.

At trial, neither defendant testified, and no defense witnesses were presented.

APPEAL OF ROBERT MURPHY4

CONTENTIONS

Appellant contends:

1. That the trial court committed reversible error in allowing the prosecution to introduce evidence of appellant's past involvement with the police and a prior robbery that he purportedly committed;  and

2. That the trial court erroneously sentenced appellant on both the attempted robbery and solicitation counts in violation of section 654 of the Penal Code.

DISCUSSION

1. The trial court did not commit reversible error in allowing the prosecution to introduce evidence of appellant's past involvement with the police and a prior robbery that he purportedly committed.

 Evidence of other crimes is not admissible unless relevant to some disputed factual issue at trial, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  (Evid.Code, § 1101, subd. (b).)

In this case, the trial judge permitted the receipt of the evidence of the prior robbery and instructed the jury they could only consider the evidence on the limited issue of intent, motive, and existence of a conspiracy (CALJIC No. 2.50 modified).   Thus, our initial inquiry must be one of relevancy.   The defendants rested without presenting any witnesses.   The defense through cross examination sought to attack the credibility of Marshall, and that of the arresting and investigating officers, and argued that the prosecution had not proved its case, and each element of it, beyond a reasonable doubt.   Under these circumstances, the prosecution was put to its proof on all issues.   Each element of each crime charged was in dispute.   The only thing the defense admitted was that the defendants were in fact arrested at the Mc Donald's on the night in question.

 Evidence of other crimes may be received to establish intent.   However, such is limited to situations when the prosecution proof of a defendant's intent is ambiguous or equivocal (People v. Tassell (1984) 36 Cal.3d 77, 88 fn. 7, 201 Cal.Rptr. 567, 679 P.2d 1;  People v. Kelley (1967) 66 Cal.2d 232, 242–243, 57 Cal.Rptr. 363, 424 P.2d 947) or where the defense argues that for various reasons, the prosecution evidence on intent is weak.  (See People v. Thompson (1980) 27 Cal.3d 303, 313, 165 Cal.Rptr. 289, 611 P.2d 883.)   Specific intent to solicit to commit the crimes of robbery, and specific intent to commit robbery are essential elements of the crimes charged.   While Murphy had a gun at the time of his arrest, he did not display it or threaten anyone, at least as of the time of his arrest.   His intent was certainly a disputed fact in issue.

Motive, while not an element of either crime, was relevant to prove why Murphy was at Mc Donald's with a gun.   Again, his need for rent money was highly relevant to the issue of intent required for both crimes charged.   Murphy's association with Morris in a previous robbery was relevant to show that they were again engaged in a conspiracy to commit robbery.   This aspect of the admissibility of the evidence is perhaps more clearly relevant to the prosecution's case against Morris.   The jury was thoroughly instructed on the law of conspiracy, as a basis for finding vicarious criminal responsibility among co-conspirators.   This also became a fact in dispute, and the evidence was clearly relevant to proving these issues.

 Notwithstanding the relevancy of evidence of other criminal conduct by a defendant, the trial judge also must weigh the probative value of such evidence as against its prejudicial impact on a defendant's case.  “Since ‘substantial prejudicial effect [is] inherent in [such] evidence,’ uncharged offenses are admissible only if they have substantial probative value.”  (People v. Thompson, supra, 27 Cal.3d at p. 318, 165 Cal.Rptr. 289, 611 P.2d 883.)

 Appellant argues that the court erred in admitting the evidence because it was only cumulative of Marshall's testimony.   On the other hand, he argues that had the evidence not been received, it is reasonably probable that defendant would have received a more favorable verdict because he could have discredited the prosecution's only witness, Marshall, concerning defendant's intent and reason for being at Mc Donald's, and he could explain the possession of a gun by reason of his “alleged” status as a reserve police officer.

By these inconsistent arguments, appellant has demonstrated the substantial probative value of the evidence of the prior robbery.   Out of one side of his mouth, he alleges the prosecution did not need the evidence, and out of the other, he asserts he could have prevailed without the evidence.   The prosecution's evidence of the attempted robbery is equivocal or weak only because the police, out of obvious concern for the safety of the patrons and employees at Mc Donald's, arrested the defendants before a robbery could occur.   Had the robbery actually occurred, the evidence of the prior robbery charge would have been cumultative and unnecessary.   But since the evidence of what transpired at Mc Donald's could leave jurors with the impression that the defendants did not intend a robbery, the probative value of the disputed evidence is enhanced, and the trial judge properly overruled the defense objections and received the evidence.

Appellant has also contended that the court erred by permitting the police officer to testify that he had acquired photos of the defendants from the Pomona Police Department.   The prosecution offered this evidence, along with that of the information received from the informant for the purpose of showing why ten police officers were at the scene of the robbery, and also to explain the officer's ability to identify the two defendants, and describe their activities on the night in question.   The relevancy of this was clear.   The probative value of the evidence substantially outweighed any prejudicial impact.   The trial judge carefully limited the officers to a succinct general description of their information and did not permit a detailed narration.   Under these circumstances, the receipt of this evidence did not, from the standpoint of prejudice, add anything to that of the prior robbery, was not error, and did not amount to an abuse of discretion.

 2. The trial judge did not violate section 654 of the Penal Code by sentencing appellant for both solicitation and attempted robbery.   Double punishment for the same criminal act of omission is proscribed by Penal Code section 654.

“Few if any crimes, however, are the result of a single physical act.   ‘Section 654 has been applied not only where there was but one “act” in the ordinary sense ․ but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute․’

“Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.   If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.”  (Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839.)

Appellant contends that defendants engaged in one indivisible course of action and the defendants entertained just one principal object, namely, the robbery of Mc Donald's, and therefore sentence could only legally have been imposed on one or the other of the two counts, not both.   However, we disagree.  Neal v. State of California, supra, 55 Cal.2d at page 20, 9 Cal.Rptr. 607, 357 P.2d 839, points out that when an assault is not the means of perpetrating a robbery, but occurs following the robbery, the accused is guilty of two punishable acts (In re Chapman (1954) 43 Cal.2d 385, 387, 273 P.2d 817), and in People v. Slobodion (1948) 31 Cal.2d 555, 561–563, 191 P.2d 1, separate convictions and sentences were upheld for sex perversion and lewd and lascivious conduct, even though both acts were closely connected in time and a part of the same criminal venture, since the act giving rise to the lewd and lascivious conduct was separate and distinct and was not incidental to or the means by which the act of sex perversion was accomplished.

 The essence of the crime of solicitation is the solicitation itself, and the offense is complete when the solicitation is made.   It is of no matter that the offense is never accomplished or that no overt act towards accomplishment of the solicited offense is made.  (Laurel v. Superior Court (1967) 255 Cal.App.2d 292, 298, 63 Cal.Rptr. 114.)   In the instant case, the solicitation of Marshall was not the means by which the attempted robbery took place.   In fact, Marshall refused to participate.   The evidence indicates that the defendants were going to rob Mc Donald's whether or not Marshall participated.   Applying Slobodion, supra, the act of soliciting Marshall was separate and distinct and was not incidental to or the means by which the act of attempted robbery was accomplished, and Penal Code section 654 has no application.

Respondent has additionally urged that the statute was not violated because different victims were involved.   However, whether there is one or more than one victim, by itself, is not determinative.

“A number of cases have upheld multiple punishment for a single criminal transaction where crimes of violence were committed against different persons․

“Where, however, the offenses arising out of the same transaction are not crimes of violence but involve crimes against property interests of several persons, this court has recognized that only single punishment is permissible.”  (People v. Bauer (1969) 1 Cal.3d 368, 377–378, 82 Cal.Rptr. 357, 461 P.2d 637.

It appears from Bauer, supra, that the subjective intent and objective test of Neal, supra, has been modified or interpreted to incorporate an objective test relating to the significance of the interest sought to be protected by the statute violated by the criminal defendant.⁵  When freedom from personal violence is the interest being protected, each separate act of violence, whether directed against one or more victims, may be separately punished, so long as one offense is not included in the other, or so long as one is not the means by which the second is committed.

The crime of solicitation protects a significant public interest.   The statute is designed, inter alia, to protect against the corruption of the individual.   It is bad enough for a person to commit any crime, but it is equally repugnant to society's interest when that person seeks to induce another person to participate with him.   We conclude that the societal interest in prohibiting solicitations of robbery is equal to its interest in prohibiting robbery itself, and the intent and objective to commit a solicitation should be deemed to be a different objective, capable of being separately punished, from that intent and objective involved in the robbery itself.   Further, robbery is a crime of violence.   An attempt or a solicitation to commit a felony will be a crime of violence if the felony attempted or solicited is so characterized.   Hence, solicitation of a robbery is a crime of violence and punishment for both solicitation and robbery is not proscribed by Penal Code section 654.

 Appellant has also contended that there must be a remand for sentencing because the court failed to state its reasons for imposing consecutive sentences.   However, a review of the record reflects that the trial court referred to appellant's position of leadership with respect to the other participants, and also to his record as demonstrated in the probation report.   That report reflected Murphy had several adult convictions, had violated probation in one instance, and had another robbery case which was pending at the time of the instant offense.

 California Rules of Court, rule 421, approves consideration of the following, as factors in aggravation:  (1) the defendant's position of leadership with respect to others participating in the commission of the offense (rule 421(a)(5));  (2) numerous or increasingly serious prior adult convictions (rule 421(b)(2));  and (3) prior unsatisfactory performance on probation (rule 421(b)(5)).   Thus, the factors considered by the court were proper factors in aggravation.   One was needed for the upper term for the attempted robbery.   Another different factor was required for the consecutive solicitation sentence.   Where the sentencing court has listed several aggravating factors as to its imposition of sentence, the sentencing court need not repeat those aggravating factors in order to justify imposition of consecutive sentences.  (People v. Powell (1980) 101 Cal.App.3d 513, 518–519, 161 Cal.Rptr. 803.)   Thus, appellant's final contention is rejected.   No remand is required.

The judgment as to appellant Robert Murphy is affirmed.

APPEAL OF CHARLES MORRIS

CONTENTIONS

Appellant contends:

1. The trial court erred in admitting evidence of the previous robbery, a resulting court appearance, a need for money, and the use of police photographs.

2. The trial court erred in denying appellant's motion for a mistrial based upon a police witness's testimony regarding a defendant's invocation of his Miranda rights.

3. The trial judge committed prejudicial error in his instructions to the jury defining aiding and abetting.

4. The evidence was insufficient to sustain the verdict and judgment as to Count I, attempted robbery.

5. The evidence was insufficient to sustain the verdict and judgment as to Count II, solicitation to commit robbery.

6. Should appellant's conviction for robbery and solicitation be reversed on appeal, appellant is entitled to a reversal as to the perjury counts in case No. A 530094.

DISCUSSION

 1. The trial court did not commit prejudicial error in admitting evidence of the previous robbery, the court appearance, the need for money, and the use of police photographs.   This contention and argument was asserted by co-appellant Murphy.   We have already concluded there was no prejudicial error in that regard as to co-appellant Murphy.   The only additional point raised by Morris is that the court should have sanitized or deleted from Morris's statement the reason why he needed the money, i.e., to pay his attorney.   It appears that the trial judge weighed and considered this matter, and concluded the prejudice did not outweigh its probative value.   We find no abuse of discretion.   One of the obvious problems with deleting portions of a statement is that by doing so, the statement may become meaningless or lose its apparent credibility.   Since Marshall's credibility was very much in issue, it was appropriate not to delete the reference by Murphy to his attorney.

In summary, we conclude, as we did with co-appellant's Murphy's appeal, that the evidence was relevant and material to disputed issues of fact, that the probative value was substantial and outweighed any prejudice, and that the trial judge did not commit prejudicial error by receiving the challenged evidence.

2. The trial court did not err by denying appellant's motion for a mistrial based upon a police witness's testimony regarding codefendant's invocation of his Miranda rights.   This argument presupposes that there was a violation of Murphy's Miranda rights, and that this appellant has standing to raise this issue.   To put this contention in perspective, it should be noted that Murphy made no objection at trial, and made no motion to strike the testimony.   The trial judge, at appellant's request, advised the jury the conversation could not be considered as evidence in appellant's case, and at the Deputy District Attorney's request, after the testimony had been given, further told the jury that:  “the fact of an individual indicating he doesn't wish to discuss a matter with a police officer must not be considered by you as any evidence of guilt.”   Thereafter, appellant's counsel made a motion for a mistrial, stating in substance that he did not think he had any standing to raise a Miranda issue, but that the Deputy District Attorney had committed error by putting into evidence a statement, obtained in violation of Miranda, which statement included an assertion by Morris of his privilege against self incrimination, thus tainting the trial.   The same argument is advanced in substance herein.

 Appellant Morris does not have standing to object to a statement, otherwise admissible, based upon an alleged violation of the codefendant's Miranda rights.  (People v. Woodberry (1968) 265 Cal.App.2d 351, 358, 71 Cal.Rptr. 165.)   Furthermore, the statement was relatively innocuous, and the jury was instructed that they could consider the statement only against the codefendant.   While counsel's point might have validity in some cases, it has none in this case.   A motion for a mistrial is addressed to the sound discretion of the trial judge.  (People v. Romero (1977) 68 Cal.App.3d 543, 548, 137 Cal.Rptr. 675.)   There was nothing in Murphy's statement that affected Morris' case or for that matter, Murphy's case.   There was no abuse of discretion.

3. The trial judge erred in his instructions defining aiding and abetting, but this error was not prejudicial.   At trial, the jury was instructed in substance that a person was guilty of a crime if he were a principal in the crime, or a member of a criminal conspiracy which had as its object the commission of the crime charged.   In defining aiding and abetting, the trial judge gave the jury CALJIC No. 3.01 (1980 revision).⁶

 Following conviction, the Supreme Court in People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318, finally resolved a conflict which had developed at the intermediate Appellate Court level concerning the intent required for aiding and abetting.   In People v. Beeman, supra, 35 Cal.3d at page 560, 199 Cal.Rptr. 60, 674 P.2d 1318, the court held that there must be 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.”  (Emphasis in original.)   Thus, CALJIC No. 3.01 (1980 revision) by hindsight was erroneous.   If Beeman is to be applied retroactively, then the trial judge erred.

Beeman itself did not specifically declare its own retroactivity.   Donaldson v. Superior Court (1983) 35 Cal.3d 24, 36–37, 196 Cal.Rptr. 704, 672 P.2d 110, states:

“In 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.  [Citations.]   Neither is there any issue of retroactivity when we resolve a conflict between lower court decisions, or address an issue not previously presented to the courts.   In all such cases the ordinary assumption of retrospective operation [citations] takes full effect.”

Since Beeman resolves a conflict in appellate opinion between those cases finding knowledge of the perpetrator's criminal purpose sufficient (e.g., People v. Ott (1978) 84 Cal.App.3d 118, 128–130, 148 Cal.Rptr. 479) and those requiring intent to aid or facilitate to support a conviction upon aiding and abetting (e.g., People v. Yarber (1979) 90 Cal.App.3d 895, 153 Cal.Rptr. 875), we conclude Beeman should be given retroactive effect as to those cases not yet final.⁷

 Beeman left open the issue of what standard of prejudice should be applied by the appellate courts.   In People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826, a case dealing with failure to instruct on intent to kill in the context of a special circumstances penalty trial, the Supreme Court concluded after a detailed analysis of federal decisions:  “[t]hat the United States Supreme Court would find the error [in failing to instruct the jury on the requisite intent] reversible per se.”  (People v. Garcia, supra, at p. 554, 205 Cal.Rptr. 265, 684 P.2d 826.)   As it relates to our case, the Garcia opinion in its footnote 9 (Id., at p. 554, 205 Cal.Rptr. 265, 684 P.2d 826) suggests that Beeman error is equally egregious.   Thus, we conclude that the proper test is reversal per se, unless this case falls within one or more of the exceptions to the reversal per se rule identified in Garcia, supra.

“As set forth in Garcia, [supra, at pp. 554–555, 205 Cal.Rptr. 265, 684 P.2d 826] the only instances in which a failure to give a proper intent instruction ․ may not require reversal ․ are (1) ‘ “if the erroneous instruction was given in connection with an offense for which the defendant was acquitted and if the instruction had no bearing on the offense for which he was convicted,” ’ [citations] (2) ‘ “if the defendant conceded the issue of intent” ’ [citations] (3) if ‘ “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions” ’ [citations] 8 or (4) under limited circumstances, if ‘the record not only establishes the necessary intent as a matter of law but shows the contrary evidence not worthy of consideration.’  9  [Citations.]

“In discussing this last exception ․ Garcia explains:  ‘In many cases it will be difficult to apply the Cantrell-Thor[n]ton analysis to Carlos [v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862] error.   If the defendant in a pre-Carlos trial was unaware that intent to kill was an element of the felony-murder special circumstance, he might through ignorance fail to present evidence worthy of consideration on that matter.   We could not in such cases affirm a special circumstance finding on the ground that defendant did not introduce evidence sufficient to raise a material issue.   But there may also be cases where the parties recognized that intent to kill was in issue, presented all evidence at their command on that issue, and in which the record not only establishes the necessary intent as a matter of law but shows the contrary evidence not worthy of consideration.   In such a case the reasoning of Cantrell and Thornton may avoid a meaningless retrial.’ ”  (People v. Ramos (1984) 37 Cal.3d 136, 147, 207 Cal.Rptr. 800, 689 P.2d 430, fn. omitted.)

Obviously, the first two exceptions to reversal per se do not apply to the instant matter.   But it appears that the third “Sedeno” exception as well as the fourth “Cantrell-Thornton” exception do apply, and that therefore the Beeman error does not require reversal.

Criminal responsibility was presented to the jury on three theories.   First, that each defendant was an active participant, i.e., that each possessed the intent to commit robbery, and each committed an act beyond preparation, in furtherance of the robbery.   Secondly, that there was a conspiracy to commit the robbery between Murphy and Morris, and that each defendant was arrested as he was about to accomplish the purpose of the conspiracy.   Thirdly, that defendant Morris was an aider and abettor.   The jury was instructed that attempted robbery required a specific intent to commit robbery, that solicitation to commit robbery required a specific intent to commit robbery, and that a conspiracy to commit robbery required a specific intent to agree to commit a robbery, and with the further specific intent to commit the robbery.   The jury also was instructed on vicarious responsibility through membership in a criminal conspiracy.  (CALJIC No. 6.11.)

Had the solicitation charge not been before the jury, we would be required to reverse.   The jury returned general verdicts, and ordinarily we would not know upon what theory the jury relied in finding Morris guilty.   If the jury could have based its verdict upon the theory of aiding and abetting, reversal would be required.   But this is somewhat of an unusual case.   The aiding and abetting theory was superfluous.   It is obvious the jury found that there was a criminal conspiracy between Morris and Murphy, and that each had the intent to commit robbery.   This is manifest because the only witness who testified that there was a solicitation was Marshall.   His testimony was not seriously discredited, and was corroborated by the observations of the officers, the arrest of the defendants, and the seizure of the gun and stocking mask.   The jury obviously was satisfied beyond any reasonable doubt that Marshall told the truth about his pre-robbery conversations with appellants.   Under those circumstances, the jury had to conclude that there was a conspiracy between Murphy and Morris to rob McDonald's on February 17, 1984.   Marshall was a percipient witness to such agreement.   Morris clearly manifested an intent to participate with Murphy, and an intent to commit robbery.   There was no evidence that either Murphy or Morris withdrew from the conspiracy.   In fact, Morris provided the transportation for the robbery, and was not content simply to drive the getaway car, but left his car and was on foot to join in the robbery with his stocking mask when arrested.   There can be no question but that this case clearly falls within the “Sedeno ” exception, to wit, the factual question, namely the intent to commit robbery, or to aid another to commit robbery, was necessarily resolved adversely to defendant Morris under other properly given instructions.   This rationale applies to the solicitation count as well.   As a co-conspirator to the robbery, Morris was also criminally responsible for Murphy's February 17 solicitation of Marshall.

Applying the Cantrell-Thornton test, we come to the same conclusion.   The appellant knew an intent to commit robbery was an essential part of the prosecution case on both the solicitation and attempted robbery counts, and knew that he would have to meet that issue at trial.   It appears that all evidence bearing on that issue was presented.   It is true that Morris did not testify, but his story, such as it was, came in through the officer's testimony.   His explanations were patently false, and not worthy of consideration.   As we also explained above, the necessary intent was established, on the record before us, as a matter of law.   Consequently, we conclude that the error does not require reversal under the Cantrell-Thornton exception.

 5. The evidence was sufficient to sustain the verdict and judgment as to the charge of attempted robbery.   In making this argument, appellant conveniently overlooks the testimony of Marshall.   Had Marshall not testified, the evidence of appellant's conduct was somewhat equivocal, and the presence of an intent to commit robbery not so clear.   However, looking at the total picture, including Marshall's testimony, the evidence was overwhelming and of palpable legal significance.   There is no need to reemphasize at this point the details of that sufficiency.   The contention is without merit.

6. The evidence was sufficient to sustain the verdict and judgment as to the charge of solicitation to commit robbery.   Appellant here contends that there was no adequate corroboration of the solicitation charge, since only Marshall testified to the solicitation.  Penal Code section 653f, subdivision (d), requires that the crime of solicitation:  “must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances.”   Objection was timely raised at trial by way of motion for defense judgment on the solicitation count.   The motion was denied.   The trial judge found corroboration in the fact that the crime occurred as Marshall had testified that the defendants told him it would, and the other circumstances presented concerning the arrest of appellants and seizure of the gun and stocking.   We agree.

“Corroborative evidence is additional evidence of a different character, to the same point․   The corroborative evidence need not be strong nor even sufficient in itself, without the aid of other evidence, to establish the fact.”  (People v. Baskins (1946) 72 Cal.App.2d 728, 731, 165 P.2d 510.)

In the Baskins case, supra, the “solicitee” testified in substance that the defendant solicited him to commit the crime of murder.   It was held that the fact that a defendant solicited another party to kill the same intended victim was sufficient corroboration.   The testimony of the other witness was found to be additional evidence of a different character, but to the same point.

From Baskins we can infer that the corroborating circumstances need only be slight, may consist of circumstantial evidence, and need not prove the fact of the charged solicitation independently of the “solicitee's” testimony.   Under Baskins, supra, we conclude that the circumstantial evidence in this case is “other evidence, different in character, but to the same point,” and constitutes adequate corroboration.

In addition, we find People v. Wayne (1953) 41 Cal.2d 814, 826, 264 P.2d 547, instructive.   In Wayne, supra, defendant was charged with solicitation to offer a bribe and two counts of bookmaking.   His two accomplices to the bookmaking testified to the solicitation as well as the nature and extent of their bookmaking operations.   Under the unusual circumstances of this case, the “solicitees” were accomplices to the “solicitor” and each other.   One accomplice ordinarily cannot corroborate another accomplice, hence additional corroboration was required.   The court, however, found sufficient corroboration in that the guilty verdicts on the bookmaking counts “necessarily imply a finding that the corroborative evidence was true and did tend to connect defendant with the criminal enterprise of which each of the offenses charged in the three counts was a part.”  (Id., at p. 828, 264 P.2d 547.)

In People v. MacEwing (1955) 45 Cal.2d 218, 224, 288 P.2d 257, the Supreme Court speaking through Chief Justice Gibson stated:

“The most recent decisions have in substance phrased the rule as follows:  The corroborating evidence is sufficient if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the witness who must be corroborated is telling the truth.”

Where the only crime a defendant purportedly committed is “solicitation,” the requirement that the corroborating evidence must tend to connect the defendant to the solicitation charged, is reasonable.   Without such, it would just be the “solicitee's” word against the “solicitor.”   Under most circumstances, it would be intolerable to permit a conviction in such a case.   But in the instant case, the solicitation is but one part of a criminal enterprise.   We believe in harmony with MacEwing and Wayne, that the corroboration is sufficient if it tends to connect the defendant with the criminal enterprise of which each offense charged was a part, in such a way as may reasonably satisfy the jury that the witness who must be corroborated is telling the truth.   Applying this test to the instant case, there clearly was sufficient corroboration, and the trial judge did not err in denying defendant's motion for judgment on the charge of solicitation.

7. The convictions in Superior Court case No. A 530094 are not before us.   No notice of appeal was filed.   Hence, it is unnecessary for us to speculate as to what we might have done had the matter properly been before us, and had we ordered reversal of Morris' case.

The judgment, as to Charles Morris, is accordingly affirmed.

FOOTNOTES

FOOTNOTE.  

1.   This conversation was received only as to defendant Murphy.

2.   This conversation was received only as to defendant Murphy.

3.   The evidence concerning Murphy's conversation was admitted only as to the defendant Murphy.

4.   We are treating each appellant's contentions separately for convenience.   However, each appellant has raised at least one issue not raised by his co-appellant which is equally applicable to both.   Our resolution of such an issue is therefore deemed to be equally applicable to both for the same reasons, unless otherwise stated.

5.   See People v. Neder (1971) 16 Cal.App.3d 846, 854–855, 94 Cal.Rptr. 364.

6.   “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 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.   Accordingly:  People v. Minichilli (1984) 161 Cal.App.3d 660, 207 Cal.Rptr. 766.

8.   This is the “Sedeno” exception.  (People v. Sedeno (1974) 10 Cal.3d 703, 721, 112 Cal.Rptr. 1, 518 P.2d 913.)

9.   This is the Cantrell-Thornton exception.  (People v. Cantrell (1973) 8 Cal.3d 672, 685, 105 Cal.Rptr. 792, 504 P.2d 1256;  People v. Thornton (1974) 11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267.)

BRECKENRIDGE, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

KINGSLEY, Acting P.J., and McCLOSKY, J., concur.