Opinion
F073905
01-07-2020
THE PEOPLE, Plaintiff and Respondent, v. RAFAEL APOLINAR, Defendant and Appellant.
Dale Dombkowski, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Ross K. Naughton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F11904538)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge. Dale Dombkowski, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Ross K. Naughton, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Rafael Apolinar was convicted by jury of first degree murder. He appeals the judgment contending his statement to detectives was erroneously admitted because it was taken in violation of Miranda v. Arizona (1966) 384 U.S. 436 and Edwards v. Arizona (1981) 451 U.S. 477 (Edwards). He also contends the jury was misinstructed on aiding and abetting. We affirm.
FACTUAL BACKGROUND
Appellant worked at a mattress company where James B. was plant manager. Appellant was disrespectful to supervisors and on one occasion got into a shoving match with another employee. James fired appellant. A few months later, on June 30, 2011, at approximately 7:00 p.m., appellant encountered James's brother, Harvey B., and got into a verbal confrontation with him. Appellant told Harvey that James was "a punk and a bitch"; that James "acts like his shit don't stink"; and that appellant was going to "tell it to [James's] face" by going to James's house. Harvey said that appellant was "filled with anger ... as if he was just holding this grudge for a long time and just did not want to let it go."
All further references to dates are to dates occurring in 2011.
That night, at approximately 11:45 p.m., James was shot in his home while taking a shower and died. Eight fresh shell casings were found outside James's bathroom window. There were four holes consistent with a bullet shape in the bathroom window screen, and some of them had "halos," which indicated the gun was fired from a close distance. The screen was peeled up on one side. Another spent shell casing of the same type was found under James's body. It was determined that for this to have happened, the shooter would have had to put his entire arm inside the bathroom past the threshold of the window before firing. Harvey gave police appellant's name as a possible suspect because of the conversation he had with him earlier that day.
Neighbors gave descriptions of a vehicle they saw leaving James's house after the shooting that matched appellant's truck. On July 1, Fresno County Sheriff's Detective Falls called appellant to speak with him. Appellant hung up on Falls after Falls told appellant he was investigating an injury of appellant's coworker and asked about appellant's whereabouts. On July 2, Falls and Detective Grajeda conducted a pretext stop of appellant's vehicle. Falls asked appellant if he would agree to voluntarily go to police headquarters to provide a statement, and appellant agreed. Falls and Grajeda recorded an interview with appellant that day, and appellant denied knowing anything about James's death.
On August 3, appellant was brought to the Fresno Sheriff's Department headquarters for more questioning. Grajeda interviewed appellant with Detective Toscano and gave appellant a Miranda admonition. Appellant agreed to speak with Grajeda and Toscano and denied involvement with James's murder. The detectives asked appellant about an acquaintance of his named A.M. and suggested that A.M. saw appellant kill James. Appellant said if A.M. said he saw appellant commit the murder, A.M. would be lying, and appellant continued to deny involvement. Appellant was then placed under arrest for James's murder and taken to a holding cell.
A.M. did not testify at trial.
Before being transported to jail, appellant told the detectives he wanted to speak to them again. Appellant then explained that on the night of James's death, he obtained a gun to "not necessarily kill ... but maybe fuckin' shoot" James. Appellant said his intent was not to kill James but to shoot him in the "leg or the arm or something." Appellant then called A.M. and said, "'Hey, you wanna go do something?'" When A.M. said he did, appellant immediately picked up A.M. Upon picking up A.M., appellant gave A.M. the gun because appellant did not want it found on him in case he got pulled over.
When appellant and A.M. arrived at James's house, appellant saw a car he did not recognize in James's driveway and changed his mind about shooting James. Appellant told A.M., "'Fuck, I don't know whose car that is, Fool. I don't know about this.'" Appellant passed James's house, made a U-turn, turned his headlights off, and slowly began to approach James's house again, and as he did, A.M. said, "'Well, let's at least scare 'em.'" A.M. then got out of the truck, and appellant thought "there's no sense in both of us getting out the car and fuckin' you know somebody had to drive, so I fuckin' I stayed in the fuckin' car." A.M. then shot through James's window. Appellant heard a couple of bangs. Appellant did not get out of the truck. A.M. then got back into the truck, and appellant "peeled off" and left the vicinity.
Appellant told the detectives he had work gloves on because he was going to shoot James. Appellant put them on when they started to get close to James's house. After the shooting, appellant took his clothes off and put them in a duffel bag. When appellant dropped A.M. off, he gave A.M. the bag and told A.M. to wash appellant's clothes. Appellant had another layer of clothes on underneath the clothes he took off so that he could avoid detection if he were to be caught. Appellant said the gloves he wore would still be in the bathroom of his home.
On August 10, a search warrant was executed at appellant's home where gloves were found that tested positive for gunshot residue. This suggested the gloves were "in the vicinity of the discharge of a firearm."
The pathologist who performed the autopsy testified that James had two gunshot wounds. One was on the back of the left shoulder above the armpit. The other was higher up on the left back passing upwards. Stippling, burned and unburned gunpowder, was present on James's body, which indicates the muzzle of the weapon was in close proximity to the skin's surface.
Appellant testified in his own defense. Appellant testified to substantially the same events as his most recent statement to the detectives. He testified that after A.M. said, "Let's at least scare him," appellant tried to talk A.M. out of it by saying, "Come on. Let's go. It's not worth it. Let's dip out." At that point, appellant said he had given up and did not want to hurt James. Appellant said that after A.M. got back in the car, A.M. never put the gun away, and the gun was pointed toward appellant. Appellant said that at the end of the night, he shook A.M.'s hand with appellant's gloves on. Appellant insisted he did not shoot James. Appellant said he was not truthful with law enforcement when he denied involvement because he was raised to avoid police contact. Appellant testified he did not like James and felt James was disrespectful toward him and others.
PROCEDURAL BACKGROUND
Appellant was charged by information of murder (Pen. Code, § 187, subd. (a)). It was further alleged he personally discharged a firearm resulting in death (§ 12022.53, subd. (d)), personally used a firearm (§ 12022.5, subd. (a)), and personally discharged a firearm (§ 12022.53, subd. (c)).
All further undesignated statutory references are to the Penal Code, unless otherwise indicated.
The jury found appellant guilty of first degree murder but could not agree on whether he personally used a firearm. The trial court granted the prosecutor's motion to dismiss the firearm allegations.
Appellant was sentenced to a prison term of 25 years to life.
DISCUSSION
I. Admission of Appellant's August 3 Statement
A. Relevant Background
The trial court conducted an Evidence Code section 402 hearing regarding whether appellant's statements to the detectives would be admitted. The statements relative to this appeal took place on August 3.
On August 3, Grajeda explained to appellant that they had further investigated the death of James after speaking with him the first time and the following colloquy occurred:
"[Grajeda:] ...And since [appellant's July 2 interview] based on the evidence that we got at, at the beginning of the investigation to now, since then we've developed a lot more information. And then with the information that we got and then with the statement that, that you gave and that [appellant's girlfriend] gave, we've had time now to compare everything. Alright and so now we're at a point where we need to talk to you again and I'd like to go over you know the whole thing with you. Uh, just so you can lay it out for us again and to see maybe if, if the discrepancies that we see are maybe just a misunderstanding or something, alright? But I wanna give you a chance so you can tell us from the beginning and I think eventually we'll talk to [appellant's girlfriend] again, 'cause some of the things are inconsistent with the evidence that, uh, that we have up to now, alright? But first we're gonna start with you. Before we do though, I'm gonna read you what's called the Miranda Admonition, have you heard that before?
"[Appellant:] Ain't that shit they read every time you get locked up?
"[Grajeda:] Well, you know ... you're being questioned right now and, uh, I don't know if they, if ... people read it every time you get locked up, but ...
"[Appellant:] They're supposed to.
"[Grajeda:] Well, not necessarily, but ... but I'm gonna read it to you now and when I read it I just want you to let me know whether you understand it or not, okay?
"[Grajeda:] Have you heard it before?
"[Appellant:] Yeah, I watch Cops.
"[Grajeda:] (Laughing) so just on TV? [¶] ... Yeah? [¶] ... What about in, in real life, has anybody ever read you the Miranda Admonition?
"[Appellant:] Yeah, every time I get fuck by cops they try to read me my Rights and shit.
"[Grajeda:] Alright. And so do you understand them from what they read them to you before?
"[Appellant:] Well, I ...
"[Grajeda:] It'll make it easier, I mean, I do it that way. I won't spend too much time with it.
"[Appellant:] Like fuck, I just ... it simply fuckin' asks right there to remain silent and shit ... and that I can have an attorney.
"[Grajeda:] Okay, what else?
"[Appellant:] Fuck, I don't know. I mean ...
"[Grajeda:] But basically those are the basics, right? So, you understand that part of it, right?
"[Appellant:] Yeah.
"[Grajeda:] Alright. Alright, I'm gonna read it to you anyway ...
"[Appellant:] Yeah.
"[Grajeda:] ... just briefly and just pay attention to the words and tell me if you understand it. Uh, YOU HAVE THE RIGHT TO REMAIN SILENT. Do you understand?
"[Appellant:] Yeah.
"[Grajeda:] Okay. ANYTHING YOU SAY MAY BE USED AGAINST YOU IN COURT. Do you understand?
"[Appellant:] Yeah.
"[Grajeda:] YOU HAVE THE RIGHT TO AN ATTORNEY PRIOR TO AND DURING ANY QUESTIONING. Do you understand?
"[Appellant:] Yeah.
"[Grajeda:] AND IF YOU CAN NOT AFFORD AN ATTORNEY, ONE WILL BE APPOINTED FOR BEFORE QUESTIONING. Do you understand?
"[Appellant:] Yeah. Do they charge you for that- no, huh? It' just like a Public County shit, right?
"[Grajeda:] Uh ...
"[Appellant:] For the public?
"[Grajeda:] Oh, you mean like ...
"[Toscano:] It depends.
"[Grajeda:] It depends.
"[Appellant:] Okay.
"[Grajeda:] Uh, alright. So ... you, you said you've heard that before and I read it to you again and you understand all that, right? [¶] ... Alright. So, now let's just- what I'd like for you to do is just, uh ... about that night, the night when, uh ... that we were talking about last time when [James] was shot. Do you remember that ... do you remember when that was?" (Italics added.)
Appellant proceeded to answer the detectives' questions, and the interview lasted approximately two hours. Throughout the interview, appellant insisted he was out drinking at a friend's house all afternoon on the day of the murder. Appellant said that after he finished drinking around 9:00 p.m., he went straight home and went to sleep. The detectives told appellant about a statement they had taken from A.M. wherein A.M. said he was with appellant the night appellant shot James. Appellant continued to deny involvement.
At the end of the interview, appellant was placed under arrest for James's murder. As appellant was being handcuffed he said, "Wow. Can I get a lawyer, dude?" Grajeda responded, "Yeah, you can get whatever you want now."
The interview concluded at approximately 3:40 p.m. Grajeda testified at the Evidence Code section 402 hearing that appellant had been taken to a holding cell while the detectives attended to booking paperwork and other work related to the investigation. Grajeda said at approximately 8:50 p.m., Grajeda and Toscano approached appellant at his cell and advised him he would be transported to the jail. Toscano said "do you have anything to add or retract" or "[s]omething along those lines." Appellant then asked for a cigarette. Toscano responded that appellant could get a cigarette from whoever was transporting him. Appellant told the detectives that he wanted to talk to them. Appellant indicated it would not be a waste of the detectives' time and said he "was there, but ... didn't shoot." The detectives got appellant a cigarette from his property and took him outside to make a recorded statement. Grajeda told appellant he would be recording the conversation, and appellant said he understood.
The recording began:
"[Grajeda:] The date today is August 3, 2011 and the time is about 8:53 p.m. Detective Grajeda and Detective Toscano, here with [appellant] and we are here at Headquarters. Uh [appellant] has expressed that he'd like to speak with us again and, and we're here to speaking with him, is that the truth, [appellant]?Appellant then went on to make inculpatory statements describing his involvement in the crime. This interview lasted about an hour.
"[Appellant:] Yeah.
"[Grajeda:] Okay. Alright and when we were just talking with you, you said [you] had some additional things to tell us and you even said, 'I was there, but I didn't do it, is that correct?'
"[Appellant:] That's correct.
"[Grajeda:] Alright, go ahead, talk to us." (Unnecessary capitalization omitted.)
At the Evidence Code section 402 hearing, the trial court held that appellant did not at any point invoke his right to have an attorney present during questioning. The trial court found the statement, "Wow. Can I get a lawyer dude?" not to be an unambiguous request for counsel. Rather, the trial court found the body language of appellant, as well as his tone of voice, rendered the question an inquiry rather than an invocation. The court also found the police did not reinitiate the subsequent interrogation with appellant. The trial court said when the detectives went to appellant's holding cell, "an interesting nuance occurred": "[Appellant] did not respond to the officer's question." The trial court goes on to say:
"It's interesting that [appellant] doesn't respond to that with yes or no. He deflects that and says, I want a cigarette. And then, there is that additional dialogue, no, you can ask the transportation officer, and he can supply you a cigarette if he or she is desirous or agreeable to. And then, that's when the defendant then engages in the conversation about he would like to speak some more. Now, interestingly enough, in that [post holding cell interview], there is a spot ... which we listened to yesterday. And I wrote that down on my note pad. And it appears with the comment of [appellant] actually leads up to it by ... Toscano asking him, ... '[a]re you telling us now because you found out that he said something, and you just want to.' Answer, 'Dude, I'm telling you exact.' Toscano, 'Get him back.' [Appellant], 'No, it's not about that. I was—' Toscano, 'No.' [Appellant], 'No.' Toscano, 'I have to ask.' And then, [appellant] says 'Okay. I understand that, but it's just like, you know, what—I mean, fucking thinking about all that shit, you know.' It tells the Court that the time that [appellant] was sitting in these holding cells for the three and a half hour, just under four hour period, that [appellant] was thinking about the situation on his own. There is no evidence that somebody else was in there with him prodding him, expecting him to say anything else. He was—his wheels were turning. He was sitting in a holding cell wondering about the situation. He's thinking about it, and then he wanted to make a statement. That he was prepared to want to talk to the detectives or to whomever after having spent some time thinking it through in his head, that gives credibility to [Grajeda's] statement that [appellant] wanted to talk to the officers when they went to transfer him from the holding cell to the county jail for processing. [¶] ... The Court does not believe that the officers initiated contact with [appellant] on the attempt to have him transferred to the jail. Nor that the questions were being answered by [appellant] because
they were being prodded out of him or coerced. There's no evidence of any type of coercion."The trial court found there was no violation of appellant's Miranda rights and thus all appellant's statements to law enforcement were admissible.
B. Analysis
"In reviewing Miranda issues on appeal, we accept the trial court's resolution of disputed facts and inferences as well as its evaluations of credibility if substantially supported, but independently determine from undisputed facts and facts found by the trial court whether the challenged statement was legally obtained." (People v. Smith (2007) 40 Cal.4th 483, 502.)
1. Asserted Invalid Waiver at the Beginning of the August 3 Statement
"Miranda makes clear that in order for [a] defendant's statements to be admissible against him, he must have knowingly and intelligently waived his rights to remain silent, and to the presence and assistance of counsel. [Citation.] [¶] ... We have recognized that a valid waiver of Miranda rights may be express or implied." (People v. Cruz (2008) 44 Cal.4th 636, 667.) "[U]ltimately the question becomes whether the Miranda waiver was knowing and intelligent under the totality of the circumstances surrounding the interrogation." (Id. at p. 668.) The California Supreme Court has stated, "[a] suspect's expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights." (Id. at p. 667; accord, People v. Medina (1995) 11 Cal.4th 694, 752; People v. Sully (1991) 53 Cal.3d 1195, 1233.) This principle has been upheld by the United States Supreme Court, which explained: "Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." (Berghuis v. Thompkins (2010) 560 U.S. 370, 384, see id. at pp. 384-385 [finding implied waiver of Miranda rights].)
Appellant contends he did not knowingly and intelligently waive his right to have an attorney present at questioning because he did not understand the rights applied at the time he was being admonished. Appellant contends he had the mistaken belief the rights were triggered only upon arrest. Appellant states his confusion was evidenced by his asking, "Ain't that shit they read every time you get locked up," his making reference to the television show "Cops," and his saying, "Wow. Can I get a lawyer, dude?" after being placed under arrest. Appellant's claim fails.
There is no question from this record that appellant understood his rights to remain silent and to have an attorney present during questioning were triggered at the time the admonition was given and not by his subsequent arrest. Grajeda specifically informed appellant that appellant was being "questioned" in relation to James's death and then goes on to say appellant had the right to have an attorney present during questioning and that if he could not afford an attorney one would be appointed for him prior to questioning. Since Grajeda had just informed appellant he was being questioned, it is not reasonable for one to assume the rights did not apply at that time. Grajeda advised appellant, "you have the right to remain silent." (Capitalization omitted.) As Grajeda's admonition was in the present tense, as opposed to the future tense "will have" or "could have," the reasonable interpretation is that the right existed at the moment it was being given. Appellant clearly acknowledged that he understood all rights explained to him by saying "[y]eah" in response to each right admonished to appellant by Grajeda. Grajeda then immediately asked a question related to James's death, which appellant answered. Appellant's voluntary answering of questions, after clearly expressing he understood his rights, constituted a valid implied waiver.
The relevance of any statement appellant made prior to being admonished and acknowledging he understood his rights to our analysis is low. Even if appellant was confused about when his rights applied at the time he made the comments, his subsequent clear expression of understanding his rights indicates any confusion had been cleared up by the admonition. Appellant stating, "Can I get a lawyer" upon his arrest does not negate his clear expression of understanding of a sufficient admonishment. Appellant's implied waiver of his rights was valid.
Before oral argument, respondent submitted People v. Molano (2019) 7 Cal.5th 620 (Molano) to this court as authority relevant to appellant's Miranda issue. In Molano, law enforcement officers conducted a "ruse" wherein they presented themselves to the defendant as "290 investigators." (Molano at pp. 634 [referring to § 290 et seq., the Sex Offender Registration Act].) The officers indicated they were going to ask appellant about his past crimes before being released into the community and that they needed to read his Miranda rights to him first, but the officers' true goal was to talk to the defendant about a homicide case. (Molano at p. 634.) The defendant appealed, contending his Miranda waiver was not knowing, intelligent, or voluntary. (Molano at p. 648.) The appellate court held that the officers' "ruse" did not invalidate the defendant's waiver of his Miranda rights. (Molano at p. 633.) At oral argument, appellant argued Molano was inapposite because it was exclusively a "ruse case." We do not find Molano is necessarily restricted to "ruse cases," but stands for the long-standing proposition that withholding information from a defendant does not invalidate a Miranda waiver. (Molano at pp. 649-654.) In any event, our conclusion that appellant's waiver was knowing, intelligent, and voluntary is independent of the Molano case.
2. Asserted Invocation of Appellant's Right to Counsel
Appellant contends his statement, "Wow. Can I get a lawyer, dude?" was an invocation of his right to have an attorney present during questioning. For the purpose of our analysis, we assume arguendo appellant's request for counsel was unambiguous and thus an invocation of his right without resolving the issue on its merits. We hold, in any event, that because substantial evidence supports the trial court's finding the detectives did not reinitiate subsequent interrogation at the holding cell, appellant's statements were admissible.
In Edwards, the defendant was informed of his rights as required by Miranda and said he understood his rights and was willing to submit to questioning. (Edwards, supra, 451 U.S. at p. 478.) The defendant denied involvement in the crime, gave a taped statement presenting an alibi defense, and sought to "'make a deal.'" (Id. at p. 479.) When the interrogating officer told the defendant the officer was not authorized to negotiate a deal and provided the defendant with the telephone number of a county attorney, the defendant said, "'I want an attorney before making a deal.'" (Ibid.) Questioning then ceased, and the defendant was taken to county jail. (Ibid.) The next morning at 9:15 a.m., two different detectives than the interrogating officer went to the jail and asked to see the defendant. (Ibid.) When the guard told the defendant the detectives wished to speak with him, the defendant told him he did not want to talk with anyone. (Ibid.) The guard then told the defendant "'he had'" to talk and then took him to meet with the detectives. (Ibid.) The defendant then willingly made incriminating statements to the detectives. (Ibid.)
The Edwards court held "that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." (Edwards, supra, 451 U.S. at p. 484, fn. omitted.) The court went on: "[A]n accused, such as [the defendant], having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." (Id. at pp. 484-485.) Accordingly, the Edwards court held the statements were taken in violation of the defendant's Miranda rights. (Edwards, at p. 487.) The Edwards rule was "in effect a prophylactic rule, designed to protect an accused in police custody from being badgered by police officers in the manner in which the defendant in Edwards was." (Oregon v. Bradshaw (1983) 462 U.S. 1039, 1044.)
The question whether it was the defendant or the police who reinitiated communications of the requisite nature, after the defendant's invocation of the right to counsel, is predominantly factual and therefore reviewed under the substantial evidence standard. (People v. Gamache (2010) 48 Cal.4th 347, 385.)
Here, the trial court's alternative determination that appellant, not the detectives, reinitiated contact is supported by substantial evidence. As an initial matter, we acknowledge the encounter at the holding cell was not recorded, but note the trial court emphasized it found Grajeda's testimony credible. We defer to the trial court's credibility determination regarding what happened at the holding cell. As the trial court points out, appellant ignored Toscano's question about whether he had anything to add or retract, and asked for a cigarette. Toscano's response in kind showed he had in essence abandoned the question, and it was then that appellant told the detectives he wanted to talk to them. This is distinguishable from the facts in Edwards and is a far cry from the type of badgering from which the Edwards rule is meant to protect. Grajeda testified that he did not remember the exact words appellant used, but Grajeda "kn[ew appellant] wanted to talk to us. [Appellant] told us he wanted to talk to us." Grajeda testified appellant indicated "it wouldn't be a waste of our time."
We find appellant's comment that he would not "waste [the detectives'] time" telling. With this comment, appellant appears to be attempting to persuade the detectives to talk with him rather than the other way around. It further supports the inference that Toscano's question was no longer pending, and the subject of conversation had changed.
When the audio recording began, appellant confirmed that it was he who wanted to talk to the detectives and began his statement in narrative form. Further, as the trial court pointed out, when Toscano asked appellant if he was talking to them because he found out A.M. said that he was involved, appellant responded, "No, it's not about that, I was ... [¶] ... [¶] ... it's just like ... you know what I mean, fuckin' thinking about all that shit you know? [¶] ... [¶] ... And fuckin' doing time for some shit I didn't do." We accept the trial court's inference that appellant was contemplating making a statement while sitting in the holding cell.
Appellant argues that Toscano's comment about whether appellant had anything to add or retract to his statement was a reinitiation of the interrogation, and points out that the evidence is uncontroverted that the encounter at the holding cell only lasted three minutes. Our analysis is not based on the passage of time; rather, the course of events which transpired within those three minutes, drawing every inference in favor of the trial court's ruling.
The trial court's alternative finding that appellant reinitiated the questioning is supported by substantial evidence in the record, and accordingly, appellant's subsequent statements were admissible. II. Asserted Misstatement of Law in CALCRIM No. 401
Appellant contends CALCRIM No. 401 erroneously relieved the prosecution from its burden of proving that appellant both "aided" and "abetted."
Section 31 provides, in relevant part: "All persons concerned in the commission of a crime, ... whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission ... are principals in any crime so committed." Appellant's challenge is focused on the following portion of CALCRIM No. 401: "Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime." (Second italics added.) Appellant contends the definition is a misstatement of the law because the disjunctive allows the jury to convict if it found that appellant either aided or abetted the crime.
Appellant bases his argument on the California Supreme Court's comment in People v. Dole (1898) 122 Cal. 486, 492: "Aside from the person who directly commits a criminal offense, no other is guilty as principal unless he aids and abets [citations]." Appellant notes the words "aid" and "abet" have different meanings: "The word 'aids' means 'to assist; to supplement the efforts of another,' while the word 'abet' means merely to incite or encourage." (People v. Elliott (1993) 14 Cal.App.4th 1633, 1641.) Thus, appellant insists that to be convicted of a crime as an aider and abettor, a jury must find a defendant both "assisted" and "encouraged." Appellant contends the alleged error was prejudicial in his case because though the evidence showed he assisted A.M. in the commission of the crime, he had testified he verbally "discouraged" A.M. from committing the crime; in other words, he "aided," but did not "abet," and thus his conviction was unconstitutional.
Appellant's argument has been rejected by the Sixth District Court of Appeal in People v. Campbell (1994) 25 Cal.App.4th 402 (Campbell) and Division Two of the First District Court of Appeal in People v. Booth (1996) 48 Cal.App.4th 1247, following Campbell. Campbell in essence held that "aiding and abetting" did not refer to two separate acts; rather, it was a term of art that referred to one act (aid) done with the requisite mental state (abet). (Campbell, supra, 25 Cal.App.4th at pp. 412-414.)
The jury instruction handled in both Campbell and Booth is a predecessor to CALCRIM No. 401. "CALJIC No. 3.01, which was given in this case, provides, in relevant part, 'A person aids and abets the commission or attempted commission of a crime when he or she, (1) with knowledge of the unlawful purpose of the perpetrator and (2) with the intent or purpose of committing, encouraging, or facilitating the commission of the crime, by act or advice aids, promotes, encourages or instigates the commission of the crime.' (CALJIC No. 3.01, italics added.)" (Campbell, supra, 25 Cal.App.4th at p. 411.) The parties agree the issue presented in Campbell is substantially the same as the one presented in the present case.
Though appellant urges us not to follow Campbell contending its conclusion is unsupported by authority and incorrectly reasoned, we find Campbell's reasoning is supported by case law that precedes it, including cases cited by appellant that he contends require a contrary result. The Campbell court acknowledges that a conviction under the aiding and abetting theory requires, pursuant to section 31 and the portion of Dole that appellant cites, that a defendant both aids and abets. Campbell points out that though the Dole court concluded it was error to instruct the jury that one may be found guilty as a principal if one aided or abetted, the court's reason was "that one may 'aid in the commission of an offense by doing innocently some act essential to its accomplishment .... The word "aid" does not imply guilty knowledge or felonious intent, whereas the definition of the word "abet" includes knowledge of the wrongful purpose of the perpetrator and counsel and encouragement in the crime.'" (Campbell, supra, 25 Cal.App.4th at p. 413.) The Campbell court explained what the Dole court considered to be legally significant in the terms "aid" and "abet," was not the difference in specific conduct signified by each term "but rather the difference in mental state implied by each term." (Ibid.)
Campbell's analysis is supported by People v. Beeman (1984) 35 Cal.3d 547, wherein the court explained while rejecting a previous version of the instruction on other grounds: "the word 'abet,' which encompasses the intent required by law, ... is arcane and its full import unlikely to be recognized by modern jurors.... '[A]bet' means to encourage or facilitate, and implicitly to harbor an intent to further the crime encouraged." (Id. at p. 560, italics added.) Like in Dole, the Beeman court's focus on the word "abet" is on the mental state it connotes and not a specific act.
Campbell concluded that because the challenged instruction required the jury to find a defendant did some act that aids, facilitates, promotes, encourages, or instigates the perpetrator's commission of the crime with the requisite mental state, it effectively required the jury to find that the defendant both aided and abetted as required by statutory and case law. (Campbell, supra, 25 Cal.App.4th at pp. 413-414.) We agree; Campbell's analysis applies to CALCRIM No. 401. Appellant points to no authority that persuades us that aiding and abetting represent two separate acts and therefore gives us no reason to diverge from the Campbell holding.
Appellant's asserted error would be harmless in nearly all conceivable scenarios, including the facts of this case. In the abstract, when evidence supports that a defendant acts with the requisite mental state as defined by CALCRIM No. 401, we cannot conceive of a scenario where those findings do not at least circumstantially support that he or she "encouraged" the perpetrator to commit the crime. Appellant does not cite nor have we found any cases requiring evidence of some act of express "encouragement" in addition to doing some other act of "aiding" with the requisite intent. Appellant insists his case illustrates the prejudice that could stem from the asserted error because he tried to verbally discourage A.M. from committing the crime. However, the instruction required the jury to find appellant acted with the specific intent to assist, with knowledge of the perpetrator's unlawful purpose. The jury was also instructed they needed to find appellant acted with the specific intent to kill James. (CALCRIM Nos. 252, 520.) Had the jury found appellant's testimony that he "discouraged" A.M. from committing the crime to be credible expressions of his mental state, they would not have found appellant acted with the requisite intent. Appellant does not challenge the sufficiency of the evidence supporting his conviction or the finding that he acted with the requisite intent.
The court did not err by instructing the jury with CALCRIM No. 401.
During the rebuttal portion of appellant's oral argument, he represented that respondent appeared to concede this issue. We did not interpret any of respondent's comments as a concession and did not consider any concession in our analysis of this issue.
DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.