Opinion
Certified For Partial Publication .
Parts II, III, IV and V do not merit publication as they do not meet the standards for publication contained in California Rules of Court, rule 976(b).
Review Granted and Transferred to Court of Appeal July 13, 1989.
Previously published at 209 Cal.App.3d 1408
Richmond M. Flatland, Under appointment by the Court of Appeal, Fremont, for defendant and appellant (Macedo).
Douglas R. Schmidt, San Francisco, for defendant and appellant (McKenzie).
John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Christopher J. Wei, Brenda P. Reyes, Deputy Attys. Gen., for plaintiff and respondent.
LOW, Presiding Justice.
We hold in this case that the trial court must instruct the jury on the intent necessary to convict a defendant as an aider and abettor to burglary. CALJIC No. 3.01, which defines aiding and abetting, is ambiguous when applied to the crime of burglary since it does not state that a putative aider and abettor may not be convicted solely on the basis of intent to assist the perpetrator after the burglary has occurred. Because of the ambiguity of CALJIC No. 3.01 in this context, a defendant charged as an aider and abettor to burglary is entitled to an instruction clarifying the appropriate definition of the crime. A defendant may not be convicted as an aider and abettor if he assisted the perpetrator only after the burglary has occurred. Defendants Gary Macedo and Roderick McKenzie were convicted by jury trial of first degree burglary. (Pen.Code, §§ 459, 460, subd. (1).) We affirm McKenzie's conviction, but reverse the conviction of Macedo.
Ken Mellor observed two men in a white van driving slowly by his home. The van turned around in the nearby cul de sac and parked. The passenger got out of the van and walked toward the residence while the driver pulled away from the curb and proceeded up the street. Mellor saw the passenger walk into the garage. Shortly thereafter, the passenger rode Mellor's 18-speed mountain bicycle out of the garage.
At that time, Mellor's daughter, Carey, arrived and saw the passenger riding Mellor's mountain bicycle down the street. Her father got her attention, jumped into Carey's car, and the two gave chase. The Mellors forced the driver of the van to pull over. Mr. Mellor detained the driver of the van, Gary Macedo, and Carey telephoned the police. While Mellor and Macedo waited for the police to arrive, the man who rode the bicycle kept calling "Gary" from some nearby bushes. The man disappeared before the police arrived, but both Mellor and Carey identified defendant McKenzie as the bicycle thief.
McKenzie presented an alibi defense, which his mother corroborated. Macedo's defense was that he did not know the passenger in his van intended to burglarize Mellor's garage. Macedo testified that the passenger in his van was Rich Sanders, not McKenzie. The two were supposed to pick up McKenzie on the morning of July 19 to finalize a painting contract. On the way, Macedo noticed a house under construction, which he considered a potential painting job, about a block away from McKenzie's residence. Sanders asked Macedo to pull over. When Macedo asked why, Sanders told Macedo not to worry and that he would only be gone a second. Macedo pulled over to the curb, let Sanders out, and waited for Sanders to return. A minute later, Sanders came out of Mellor's garage riding the mountain bicycle and motioned for Macedo to follow. Macedo testified that he did not realize that Sanders planned to steal the bicycle until he saw Sanders ride out of Mellor's garage. He followed Sanders because he panicked when he discovered that Sanders had stolen the bicycle.
The jury convicted both defendants of first degree burglary. The jury convicted McKenzie as the perpetrator and Macedo as an aider and abettor to burglary.
I
Defendant Macedo, relying on People v. Brady (1987) 190 Cal.App.3d 124, 235 Cal.Rptr. 248, contends that the trial court failed to instruct the jury, sua sponte, that he could not be found guilty as an aider and abettor to burglary unless he knew of the perpetrator's intent to commit burglary prior to or at the time the perpetrator entered the burgled premises. We agree that the court erred in failing to give this instruction, and Macedo's conviction must therefore be reversed.
A
The crime of burglary is complete once the perpetrator enters the premises. (Id., at p. 134, 235 Cal.Rptr. 248.) To be convicted of burglary, the principal must form the intent to commit the burglary prior to or at the time of entry. An aider and abettor to burglary must also form the intent to facilitate the crime prior to or at the time of entry. (Ibid.) Conversely, a defendant may not be convicted as an aider and abettor to burglary if he forms the intent to aid the perpetrator after the premises have been burgled. (Id., at p. 137, 235 Cal.Rptr. 248.)
In Brady, defendant was convicted of aiding and abetting a burglary. The defense theory was that the perpetrator, Arnold, asked defendant to help him move some possessions out of his apartment because of several confrontations between the perpetrator and his roommate. (Id., at pp. 129-130, 235 Cal.Rptr. 248.) Defendant waited outside while the perpetrator retrieved several stereos from inside the apartment. Defendant helped load the stereos into a car and later traded a pocket watch for one of the stereos. In fact, neither the apartment nor the stereos belonged The trial court in Brady instructed the jury on CALJIC No. 3.01, which is the standard instruction defining aiding and abetting. The trial court also instructed the jury on CALJIC No. 14.50, which defines the crime of burglary (id., at p. 135 & fn. 3, 235 Cal.Rptr. 248), and in the language of CALJIC No. 3.31 (id., at p. 137, 235 Cal.Rptr. 248), which requires a concurrence of an act and specific intent. Defendant also unsuccessfully sought a definitional instruction to the effect that he could not be convicted of aiding and abetting a burglary unless he formed the intent to aid the perpetrator prior to or at the time of the perpetrator's entry into the premises to be burglarized. (Id., at p. 135, 235 Cal.Rptr. 248.)
CALJIC No. 3.01, as given in the instant case, provides: "A person aids and abets the commission of a crime when he or she, [p] (1) with knowledge of the unlawful purpose of the perpetrator and [p] (2) with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, by act or advice aids, promotes, encourages or instigates the commission of the crime. [p] A person who aids and abets the commission of a crime need not be personally present at the scene of the crime. [p] 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. [p] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting." This instruction was modified to comply with our Supreme Court's decision in People v. Beeman (1984) 35 Cal.3d 547, 560-561, 199 Cal.Rptr. 60, 674 P.2d 1318.
CALJIC No. 14.50, as given in the instant case, provides: "Every person who enters any dwelling house with the specific intent to steal, take and carry away the personal property of another of any value and with the further specific intent to deprive the owner permanently of such property is guilty of the crime of burglary. [p] It is immaterial whether the intent with which the entry was made was thereafter carried out. In order to prove the commission of the crime of burglary, each of the following elements must be proved: [p] 1. That a person entered a dwelling house. [p] 2. That at the time of the entry, such person had the specific intent to steal and take away someone else's property and intended to deprive the owner permanently of such property."
The Court of Appeal concluded that CALJIC Nos. 3.01, 14.50, and 3.31 do not adequately inform the jury of the necessary elements for convicting the defendant as an aider and abettor to burglary. (Id., at pp. 135, 137, 235 Cal.Rptr. 248.) Specifically, the court noted that CALJIC No. 3.01 is the "source of ambiguity" (id., at p. 137, 235 Cal.Rptr. 248) because it "does not inform the jury when the 'commission' of the burglary is over; it does not say at what point the putative aider and abettor must gain the knowledge of the perpetrator's unlawful purpose." (Id., at p. 135, 235 Cal.Rptr. 248.) When given with CALJIC No. 14.50, the instruction "is ambiguous precisely because it does not mesh with the burglary instruction so as to specify that the knowledgeable aid must be rendered in connection with the entry of the burglarized structure." (Id., at p. 135, 235 Cal.Rptr. 248, fn. omitted.) The court also concluded that CALJIC No. 14.50 does not cure the ambiguity because "nothing in this instruction ... suggests that the defendant's knowledge of the perpetrator's intent must be gained prior to or at the time of entry." (Id., at p. 137, 235 Cal.Rptr. 248.) Finally, the court found that CALJIC No. 3.31, requiring a concurrence of act and specific intent, likewise does not resolve the ambiguity because it "[does] not inform the jury that it cannot convict defendant as an aider and abettor upon the basis of knowledge gained after [the perpetrator's] entry into [the victim's] apartment." (Ibid.)
On similar facts, the Court of Appeal, in People v. Forte (1988) 204 Cal.App.3d 1317, 251 Cal.Rptr. 855, concluded that the defendant properly sought an instruction on when the defendant must form the intent Here, the trial court instructed the jury in the language of CALJIC Nos. 3.01, 3.31, and 14.50. We agree with the Brady and Forte courts that CALJIC No. 3.01 is the source of the ambiguity, particularly in light of the testimony given in this case. Macedo testified that he first realized that his companion had committed a crime when he saw him peddling the bicycle out of Mellor's garage. The jury could have inferred that this was sufficient "knowledge of the unlawful purpose of the perpetrator" (CALJIC No. 3.01 (1984 rev. ed.)) to find Macedo liable as an aider and abettor, which by itself is not sufficient to convict. Moreover, Macedo testified that he followed the cyclist down the street after he knew that a crime had been committed, apparently in an attempt to allow the cyclist to escape. From this testimony, the jury could easily infer that Macedo's actions were done with the "intent ... of committing, encouraging, or facilitating the commission of the offense." (Ibid.) Thus, the jury could have properly drawn two inferences from the evidence: first, that Macedo drove the perpetrator to the crime scene and dropped him off outside the premises with the specific intent to facilitate the planned burglary; or, alternatively, that Macedo intended merely to assist the burglar's escape without any preentry intent or knowledge. Conviction for aiding and abetting a burglary based on the first inference is proper, but conviction is improper based solely on the second inference.
We conclude that the very language of CALJIC No. 3.01 may have caused the jury to draw improper inferences from the evidence, even when given with the instruction defining burglary (CALJIC No. 14.50). As the Brady court noted, neither CALJIC No. 14.50 nor CALJIC No. 3.31 resolves the ambiguity because these instructions do not "mesh" with CALJIC No. 3.01 to specify that defendant's intent must be formed prior to or at the time of the burglar's entry. (People v. Brady, supra, 190 Cal.App.3d at pp. 135, 137, 235 Cal.Rptr. 248.)
We note that defense counsel in the present case did not request an instruction on the specific intent required to convict Macedo of aiding and abetting the burglary. Although the Forte court noted that defense counsel's proposed instruction alerted the trial court to the defense theory, it also concluded that defendant's testimony alone provided substantial evidence to warrant a sua sponte instruction on the requisite intent required to convict him. (People v. Forte, supra, 204 Cal.App.3d at p. 1323, 251 Cal.Rptr. 855.) In light of Macedo's testimony, we conclude that the evidence served to alert the trial court to the necessity of a more precise instruction concerning Macedo's intent. Under the analysis applied by the Forte court, the trial court should have so instructed the jury sua sponte. (Ibid.)
B
Courts invoke two theories to analyze whether the instructional error warrants reversal. The first approach, enunciated in People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826, deems the error The error is not reversible per se under Garcia if (1) other instructions inform the jury of the requisite intent; (2) intent is not put in issue; or (3) intent is conceded. (Ibid.) In Brady, the court concluded that these exceptions did not apply because defendant's proposed instruction put defendant's intent at issue and the ambiguous instructions "denied the jury the opportunity to determine whether the defendant had the requisite preentry intent or ... an immaterial (postentry) intent." (Ibid.) The error, therefore, warranted per se reversal. (Ibid.)
In the instant case, we conclude that the exceptions to the Garcia rule do not apply. Although defense counsel did not request a specific instruction relating to Macedo's intent, the issue of intent was clearly at issue given the nature of the defendant's testimony, his defense theory, and the arguments of counsel to the jury. Moreover, no other instruction adequately informed the jury of the intent required to convict Macedo as an aider and abettor. If, for example, the jury had been instructed on the crime of accessory after the fact, we could conclude that the jury rejected defendant's defense that he held no preentry intent. No such instruction was given. Since the exceptions do not apply to the instant facts, the error warrants reversal.
Even if counsel's failure to propose an unambiguous instruction could be construed as an exception to Garcia, the conviction must be reversed where it is impossible to determine upon which theory the jury convicted defendant and one of the theories is an improper basis for conviction. (People v. Green (1980) 27 Cal.3d 1, 69-71, 164 Cal.Rptr. 1, 609 P.2d 468.) In People v. Forte, supra, 204 Cal.App.3d at page 1324, 251 Cal.Rptr. 855, the court reversed defendant's conviction, finding "there was sufficient evidence for the jury to conclude Forte had the requisite intent before entry; it is equally plausible the jury concluded Forte decided to aid and abet after the burglary was over."
The facts here present a situation nearly identical to the one before the court in Forte. The jury could have inferred from the evidence that defendant assisted his companion prior to the burglary or that he assisted him only after he rode the bicycle out of the garage. No other instruction or finding demonstrates to us that the jury resolved the issue of postentry aid against Macedo. (See People v. Lee (1987) 43 Cal.3d 666, 675, fn. 1, 238 Cal.Rptr. 406, 738 P.2d 752.) A conviction based solely on postentry aid is improper. Since we cannot determine upon which theory the jury convicted Macedo, the conviction must be reversed.
We note that the reversible-per-se standard is inapplicable where a factual question is resolved adversely to the defendant under another instruction (People v. Sedeno, supra, 10 Cal.3d at pp. 720-721, 112 Cal.Rptr. 1, 518 P.2d 913), and where the trial court gives conflicting instructions concerning the element of specific intent (People v. Lee, supra, 43 Cal.3d at pp. 674-676, 238 Cal.Rptr. 406, 738 P.2d 752). It remains reversible error to omit an instruction that deprives a defendant of his right to have the jury determine every material issue presented by the evidence. (People v. Modesto (1963) 59 Cal.2d 722, 730, 31 Cal.Rptr. 225, 382 P.2d 33.) Even if we were to apply the standard enunciated in Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, we would conclude that the failure to give an amplifying instruction on the intent required to convict a defendant of aiding and abetting a burglary is not harmless beyond a reasonable doubt. (See People v. Brady, supra, 190 Cal.App.3d at pp. 138-139, 235 Cal.Rptr. 248.) Under either the Chapman standard or the reversible-per-se standard, defendant's conviction warrants reversal.
See footnote *, ante.
The conviction of McKenzie is affirmed and the conviction of Macedo is reversed.
KING and HANING, JJ., concur.
The comment to CALJIC No. 14.50 (5th ed. 1988) includes the following: "A person cannot be guilty of aiding and abetting a burglary unless he had knowledge, prior to the entry, that the perpetrator had the intent to steal or commit a felony. (People v. Brady [, supra,] 190 C.A.3d [at pp.] 135-139 [235 Cal.Rptr. 248]....) If lack of such knowledge is raised as a defense, the court must instruct sua sponte that the knowledge must be acquired prior to entry and it is reversible error not to do so. [Citation.]"
In order to guide trial judges better, a similar comment or use note should be added to CALJIC No. 3.01.