NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F09899
A jury convicted the defendant, Anthony Raymon Gonzales, of various crimes arising out of a robbery-murder he committed, along with simultaneous robberies and attempted robberies in which he participated. On appeal, he raises two claims: that all but one of his nine convictions are invalid because the conspiracy theory of criminal liability is invalid, and that the trial court should have granted his motion for gang enhancement allegations to be tried separately from the substantive criminal charges.
In line with California Supreme Court precedent on the first question, we find no error in the trial court’s giving of instructions on the conspiracy theory of criminal liability. And we find no abuse of discretion in the trial court’s denial of defendant’s motion to try the substantive charges separately from the gang enhancement allegations. Accordingly, we will affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
I. Convictions and Sentence
A fourth amended information charged defendant with conspiracy to commit robbery in violation of Penal Code section 182, subdivision (a)(1) (count 1), murder (§ 187, subd. (a)) (count 2), four counts of second degree robbery (§§ 211, 212.5, subd. (c)) (counts 4, 6, 8, and 9), and three counts of attempted second degree robbery (§§ 211, 212.5, subd. (c), 664) (counts 3, 5 and 7).
All further statutory references are to the Penal Code unless otherwise indicated.
The information alleged that a principal personally and intentionally discharged a firearm and proximately caused great bodily injury or death during the commission of counts two and three (§ 12022.53, subds. (d), (e)(1)), personally and intentionally discharged a firearm during the commission of counts two and three (§ 12022.53, subds. (c), (e)(1)), and personally used a firearm during the commission of counts two through eight (§ 12022.53, subds. (b), (e)(1)). The information further alleged that counts two through eight were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), the murder charged in count two constituted robbery felony murder (§ 190.2, subd. (a)(17)(A)), and defendant had a prior felony conviction that resulted in a state prison term (§ 667.5, subd. (b)).
A jury convicted defendant on all charges and found true all of the allegations (for the section 12022.53 allegations made for counts two and three it found true the most serious variant under subdivisions (d) and (e)(1) thereof and, pursuant to instructions, did not address the less serious allegations under subdivisions (b) and (c) thereof). It found the murder to be in the first degree and also found it to constitute robbery felony murder. By a special verdict, rendered on a fact that was not alleged in the information, the jury found that defendant was the shooter. Thereafter the trial court tried the prior-prison-term allegation and found it to be true.
The trial court sentenced defendant to a term of 50 years to life in prison consecutive to a prison term of 42 years and eight months.
On July 25, 2004, defendant and two other men were driving to the location of a liquor store that they were intending to rob. On the way, they saw a small group of men playing poker in a driveway. They decided to rob people at the scene. They parked, walked into the driveway, and announced their purpose. One was carrying a shotgun and another a handgun. The shotgun-wielding perpetrator ordered one of the card players, Rodolfo Rivas Escobar, to hand over his money. Rivas Escobar refused and the man shot him in the head, killing him instantly. One or more of the assailants stole money from the poker game’s pot and all of them fled.
One witness, however, testified that he thought there were two assailants in total rather than three.
An eyewitness identified defendant in court as the man who killed Rivas Escobar with a shotgun. Another eyewitness testified that she had identified defendant as the shooter in a photograph lineup, though her written statement at the time showed a degree of equivocation. This eyewitness was too afraid to attempt to identify defendant in court.
The witnesses wrote, after identifying defendant as the shooter in the photograph lineup, that “Number 4 [defendant] looks like the one who shot the guy but not really, and it’s because he didn’t have a bottom mustache and the guy who shot him looked like he didn’t have any hair.”
One or more eyewitnesses also testified that the shooter was wearing a black hooded sweatshirt and tan or similarly colored gloves. Defendant’s and the victim’s deoxyribonucleic acid were found on a hooded sweatshirt found nearby and on a tan glove found in the getaway vehicle.
I. Validity of the Conspiracy Charge
Defendant contends that although the Legislature has established a substantive conspiracy law (§ 182) it has never made conspiracy a legal theory on which a conviction may be procured—i.e., conspiracy is not a valid theory of criminal liability. Accordingly, he asserts that his convictions on counts two through nine, which were based on instructions permitting the jury to convict him if it found that he and the other perpetrators conspired to rob people present at the poker game and that Rivas Escobar was murdered during the crime spree, must be reversed because there is no legislative authorization for the convictions. He claims that error occurred under state law and that his due process rights under the Fourteenth Amendment to the United States Constitution were violated. For the latter proposition he cites Martinez v. Garcia (9th Cir. 2004) 379 F.3d 1034, 1038, and Suniga v. Bunnell (9th Cir. 1993) 998 F.2d 664, 667-668. Defendant does not challenge his conviction on the charge brought in count one, i.e., of conspiracy to rob as a substantive offense under section 182.
The trial court instructed the jury: “I have explained that the defendant may be guilty of a crime if he either commits the crime or aids and abets the crime. He may also be guilty if he is a member of a conspiracy.” The instruction then proceeded to discuss only the substantive conspiracy charge brought in count one. The initial language just quoted, however, applied to all of the charges. Moreover, the prosecutor argued at some length that defendant could be convicted as a conspirator on counts three through nine—that is, the counts other than those bringing the substantive conspiracy charge in count one and the murder charge in count two. Regarding count two, the prosecutor emphasized the doctrine that a person is liable for crimes that are the natural and probable consequences of the conspiracy (People v. Prieto (2003) 30 Cal.4th 226, 249-250). It is reasonably likely that the jury understood the instructions in the manner that defendant finds objectionable. (See People v. Ayala (2000) 24 Cal.4th 243, 289; People v. Clair (1992) 2 Cal.4th 629, 663.) The question remains, however, whether they were objectionable.
The trial court said that it would give the jurors copies of the written instructions for use during deliberations and there is no reason to believe it did not follow through. We therefore rely on the version of the instructions contained in the clerk’s transcript. (See People v. Wilson (2008) 44 Cal.4th 758, 803.)
Regarding the conspiracy theory of liability as applied to all of the charged crimes except the murder, the prosecutor told the jury: “[R]obbery are the counts from 3 through and including Count 9. Now, there are different ways that one can be liable for robbery and there are three theories of liability. One is that Anthony Gonzales himself robbed somebody. That Anthony Gonzales was in fact either the shotgun man or the pistol man who picked up the money and participated in that. He took it himself. He actually did the robbery.
With regard to the conspiracy theory regarding the murder charge (count two), the prosecutor told the jury: “Now, a member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if the act is done to further the conspiracy and the act is a natural and probable consequence of the common plan. We’re going to discuss this a little bit later, and when we do we’re talking murder. You can be a member of a conspiracy to commit robbery and if during that robbery somebody commits murder, you are responsible. It’s another theory of criminal liability. I’ll get to it and we’ll talk about the details when we get there.”
Criminal defendants may challenge instructions to the jury on appeal whether or not they objected to them at trial as long as the instructions affect their substantial rights. (§§ 1259, 1469; see People v. Hillhouse (2002) 27 Cal.4th 469, 505-506.) The claim is properly presented here.
We review independently the superior court’s action of instructing the jury on the conspiracy theory of liability. (People v. Cole (2004) 33 Cal.4th 1158, 1217.)
“All crimes in California ‘are statutory and there are no common law crimes.’ ” (People v. Rathert (2000) 24 Cal.4th 200, 215 (conc. opn. of Brown, J.); accord, In re Brown (1973) 9 Cal.3d 612, 624.) This rule is compelled by section 6, which provides that “No act... is criminal or punishable except as prescribed or authorized by this Code....”
Defendant argues as follows:
1. Section 31 sets forth, and does so exclusively, the types of actors who are criminally liable as principals. They are the perpetrators of crimes and those who aid and abet them. “Aside from the person who directly commits a criminal offense, no other is guilty as principal unless he aids and abets. (Pen. Code, [§§] 31, 971.)” (People v. Dole (1898) 122 Cal. 486, 492 (lead opn. of Beatty, C. J.); accord, id. at p. 497 (conc. opn. of McFarland, J.).) Conspirators are not listed as principals in sections 31 or 971.
Section 31 provides: “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and 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, and all persons counseling, advising, or encouraging children under the age of fourteen years, or persons who are mentally incapacitated, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.” The version of section 31 in effect in 2004, when defendant committed these crimes, was in all material respects the same; a later change in the statute’s text (Stats. 2007, ch. 31, § 4) substituted more modern language referring to people with mental defects and deleted the three-word preamble “who are principals.” (Cf. former § 31 [eff. January 1, 1873].)
2. Nevertheless, California Supreme Court decisions rendered after People v. Dole, supra, 122 Cal. 486, beginning with People v. Kauffman (1907) 152 Cal. 331 and as recent as People v. Prieto, supra, 30 Cal.4th at pages 249-250, went astray and, without due attention to section 31’s description of the categories of principals, held that actors may be convicted as principals to crimes in their role as conspirators. Two other high court cases, In re Hardy (2007) 41 Cal.4th 977, 1025, and People v. Pike (1962) 58 Cal.2d 70, 88, expressly, but mistakenly, stated that conspirators are criminally liable as principals under section 31.
In reHardy, we note, was unequivocal on the point: “One who conspires with others to commit a felony is guilty as a principal. (§ 31.)” (In reHardy, supra, 41 Cal.4th at p. 1025.) We will return to Hardypost, page 9.
People v. Kauffman, supra, 152 Cal. 331, which in defendant’s view began the incorrect imposition of liability on actors as principals if they participated in a conspiracy, stated: “There is no dispute about the rules of law governing the criminal liability of each of several parties engaging in an unlawful conspiracy or combination. An apt statement of them, abundantly supported by authority, is to be found in 8 Cyc. 641, in the following language: ‘The general rule is well settled that where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law the act of one is the act of all. Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan.’ ” (Id. at p. 334.) Kauffman did not cite section 31, but instead “8 Cyc. 641” (ibid.), which is a shorthand reference to a volume of a legal treatise, 8 Cyclopedia of Law & Procedure (1903) page 641. (See People v. Prettyman (1996) 14 Cal.4th 248, 261.) In defendant’s view, Kauffman overlooked section 31, overlooked People v. Dole, supra, 122 Cal. 486, and impermissibly (§ 6) imported a common-law rule of conspiracy liability from a legal treatise into California law in derogation of section 31. Thereafter, other appellate decisions followed Kauffman while giving no thought to the basis for its conclusion, in an example of the well-known inertial problem in legal decision-making that erroneous rules become set in stone and are no longer examined. “It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis.” (Hyde v. United States (1912) 225 U.S. 347, 391 (dis. opn. of Holmes, J.).)
3. People v. Kauffman, supra, 152 Cal. 331, is further called into doubt by People v. Durham (1969) 70 Cal.2d 171, in which our Supreme Court delimited Kauffman by explaining that it stood for the proposition that evidence of conspiracy may substantiate and inform a conviction based on a theory of aiding and abetting. (Durham, at p. 182.) Kauffman, according to Durham, “held that the evidence was sufficient to support a finding that defendant was a member of a ‘combination or conspiracy’... and that the evidence was therefore sufficient to support the judgment against defendant as an aider and abettor.” (Ibid., fn. omitted.) Kauffman and another case, People v. Lapierre (1928) 205 Cal. 470, thus “recognize the function of conspiracy principles within a theory of guilt based on aiding and abetting” (Durham, at p. 184, fn. 11) but do not go so far as to establish a substantive basis for criminal liability—other than for a conspiracy itself, of course, as punishable under section 182 (see Durham, at p. 182, fn. 9; Lapierre, at p. 471)—based solely on a conspiracy.
4. Because only legislative bodies may define crimes (In re Brown, supra, 9 Cal.3d at p. 624; see § 6), any authority defining a conspirator as a principal is ultra vires; it lacks any legal foundation. Therefore, the instructions permitting the jury to convict defendant as a principal on the charges brought in counts two through nine were based in part on an invalid legal theory. Because the record does not disclose the basis on which the jury convicted defendant on those counts defendant’s convictions on counts two through nine must be reversed.
The jury was also instructed on an aiding and abetting theory on each count relevant to this discussion.
We do not agree. It suffices to observe that in In re Hardy, supra, 41 Cal.4th at pages 1025-1026, our Supreme Court declared, “One who conspires with others to commit a felony is guilty as a principal. (§ 31.) ‘ “... ” [Citations.]’ [Citation.] Thus, if petitioner conspired with others to kill the victims for financial gain, he is as guilty of their murders as the person who actually stabbed them.” Because the Supreme Court has recently declared without reservation that section 31 forms the basis for criminal liability based on conspiracy, we are constrained to reject defendant’s claim.
In sum, defendant has an intriguing argument based on the plain language of section 31 but one not supported by Supreme Court precedent. In People v. Dole, supra, 122 Cal. at page 492, the court stated, as noted, that “Aside from the person who directly commits a criminal offense, no other is guilty as principal unless he aids and abets. (Pen. Code, [§§] 31, 971.)” As the Dole court’s italicization of the conjunctive “and” hints at, and as the rest of the paragraph containing the quoted language confirms, the court was explaining that a conviction on an aiding and abetting theory may be obtained only if the prosecution proves beyond a reasonable doubt that the actor both aided and abetted the perpetrator—it is not enough to just aid or just abet. (Ibid.) Dole did not consider the point defendant argues here, and, of course, cases are not authority for propositions not considered. (People v. Avila (2006) 38 Cal.4th 491, 567.) As for People v. Durham, supra, 58 Cal.2d 171, we do not think it delimited People v. Kauffman, supra, 152 Cal. 331, as defendant perceives it did. Although putting the theory of the prosecution in Kauffman in context, Durham did not disapprove of Kauffman’s general statements that criminal liability in California for a crime other than conspiracy itself may be predicated on conspiring to commit that crime. (Kauffman, supra, 152 Cal. at p. 334.) The Kauffman case involved a challenge to a substantive murder conviction. (Id. at pp. 332, 336.) To be sure, the relevant passage in Kauffman is not inconsistent with the establishment of criminal liability based on aiding and abetting, but in that passage Kauffman did not specify that it was contemplating the aiding and abetting theory of liability. Our high court itself has observed that “People v. Kauffman, supra, 152 Cal. 331, involved the liability of conspirators for substantive crimes in the course of a conspiracy, not the liability of aiders and abettors....” (People v. Prettyman, supra, 14 Cal.4th at p. 261.)
We realize that Kauffman is an old case. “[T]he authority of an older case may be as effectively dissipated by a later trend of decision as by a statement expressly overruling it.” (Sei Fujii v. State of California (1952) 38 Cal.2d 718, 728 (lead opn.).) But In re Hardy, supra, 41 Cal.4th at pages 1025-1026, shows that the trend sustains Kauffman. Moreover, Kauffman is an older case but not an isolated older one. Certain language of People v. Lapierre, supra, 205 Cal. 470, a manslaughter case, suggests that the California Supreme Court continued to embrace the conspiracy-based theory of criminal liability some 20 years after it pronounced it in Kauffman. In Lapierre, the court stated, “appellant participated in, aided, and abetted the murder..., but the evidence also warrants the finding that appellant, her husband, and brother... were co-conspirators in an agreement or combination to rob victims, and burglarize buildings and places of business and to commit forgeries, even contemplating the resistance of attempts on the part of police officers to apprehend and arrest all or any of them, to the extent of taking human life if necessary. Not only this, but appellant under the evidence actually aided and abetted her said husband at the very time of the shooting....” (Id. at p. 471, italics added.) The foregoing language suggests that the court has for many decades viewed aiding and abetting liability and conspiracy liability as separate grounds for penal liability with regard to substantive crimes.
Between Lapierre and Hardy, moreover, there was People v. Pike, supra, 58 Cal.2d 70, in which the court said that the defendant could not complain of surprise regarding prosecution evidence of a conspiracy despite the prosecution’s failure to bring charges under the conspiracy statute, section 182, given that “the case against him was based on theories of conspiracy and aiding and abetting.” (People v. Pike, supra, at p. 89.) “[T]he jury could reasonably have inferred the existence of a conspiracy between these defendants to commit the crimes with which they are charged. (Pen. Code, § 31.)” (Id. at p. 88.)
For these reasons, we are constrained to reject defendant’s claim under the command of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.
II. Denial of Defendant’s Motion to Bifurcate His Trial
Defendant argues that the trial court abused its discretion in denying his motion to bifurcate his trial so as to have the gang enhancement allegations tried separately. We do not agree.
In his motion, brought before trial began, defendant’s main objective was to keep the jury from hearing about another gang-related murder. He contended there would be no evidence that he played a part in the other murder. He maintained that introducing evidence of it in a unified trial would be substantially more prejudicial than probative under state law (Evid. Code, § 352) and would deny him a fair trial, evidently in violation of his due process rights under the Fourteenth Amendment to the United States Constitution. He argued that bifurcating any gang-related aspects of the case was justified because the facts would show few if any gang-related aspects to the charged crimes. He conceded the possible existence of evidence that the alleged perpetrators of the charged crimes belonged to the same gang. But he contended that if so, the evidence would also show that the crimes were not gang-related. The evidence would show that the perpetrators were not operating in an ostentatiously gang-related manner when the crimes occurred and that the victims were not members of a rival gang, so there was no question of gang-related braggadocio, hostility, or retaliation.
The prosecution filed opposition to defendant’s motion in which it argued that the evidence would show that defendant and two other members of the gang to which he belonged were responsible for the robberies and attempted robberies at the scene of the poker game and the murder of Rivas Escobar. The prosecution argued that evidence of the substantive crimes and of gang benefit should be presented in a unified trial because the gang evidence would relate to evidence the prosecution planned to introduce bearing on the motive to commit the robberies and attempted robberies (the need to pay what were, essentially, gang dues). In addition, the gang connection would explain evidence the prosecution also planned to introduce that defendant killed the victim because the victim and he exchanged insults just before the shooting, and the victim’s publicly insulting behavior threatened defendant’s standing in the gang if he did not retaliate violently against the victim.
In denying defendant’s bifurcation motion, the trial court stated: “The Court does have the ability to bifurcate the gang enhancement under [s]ection 186.22[, subdivision (b)(1)], but in looking at this case and determining that the burden is on the defendant to clearly establish that there is a substantial danger of prejudice requiring that the charges be tried separately—in this case the enhancement—the Court does not find that the defendant has met the burden of proof in this regard and finds that this enhancement is intertwined with the charges, certainly the conspiracy to commit robbery charge in Count 1..., as well as the facts that have been summarized in these papers,” meaning the descriptions of possible evidence in defendant’s moving papers and the prosecution’s response in opposition.
A. Standard of Review and Applicable Law
The standard of review of defendant’s claim and the applicable law were set forth in People v. Hernandez (2004) 33 Cal.4th 1040. A trial court has the power to bifurcate the trial of gang enhancement allegations from the trial of substantive criminal charges, and if it chooses to bifurcate the trial, the substantive charges are tried first, as there is no need to try the allegations if the defendant is acquitted. (Id. at pp. 1048, 1049, 1050.) The standard of review is abuse of discretion (id. at p. 1048) and the trial court’s discretion is broad. “[T]he trial court’s discretion to deny bifurcation of a charged gang enhancement is... broader than its discretion to admit gang evidence when the gang enhancement is not charged.” (Id. at p. 1050.) Although it would be too much “to say that a court should never bifurcate trial of the gang enhancement from trial of guilt” (id. at p. 1049), doing so is disfavored. “[M]uch of what we have said about severance is relevant” (id. at p. 1050) to the question, and those considerations include “the increased expenditure of funds and judicial resources which may result” (ibid.) from a bifurcated proceeding, even though bifurcation ordinarily is a more efficient use of judicial resources than is outright severance of charges, which requires trials before separate juries. (Ibid.) It was defendant’s “burden ‘to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’ ” (Id. at p. 1051.)
B. The Trial Court’s Ruling
We find no abuse of discretion in the trial court’s determination that defendant did not meet his burden to justify bifurcation. It must be emphasized that these were pretrial motions and that the court had to act on the basis of the parties’ characterizations of the evidence that might be heard at trial. It was within the court’s discretion to credit the prosecution’s arguments that trying the crimes and the enhancements together would enable the jury to better understand defendant’s motive for the crimes and the way in which the crimes were carried out. In particular, evidence of the other murder might persuade the jury that the gang generally was willing to kill and would help explain the killing of Rivas Escobar if the jurors concluded that the other murder was committed by members of the gang or set to which defendant belonged. (At the time of the People’s opposition to defendant’s motion, proceedings regarding the other murder had passed the preliminary hearing stage and the case was awaiting trial.) “A trial court abuses its discretion only if its ruling falls outside the bounds of reason.” (People v. Burney (2009) 47 Cal.4th 203, 241.) The trial court’s ruling here cannot be said to fall outside the bounds of reason. Defendant argues that the prosecution took advantage of the ruling to introduce inflammatory gang evidence that occupies almost 300 pages of the reporter’s transcript. The court’s ruling, however, was pretrial and did not foreclose evidentiary objections at the time of trial on ground of undue prejudice (Evid. Code, § 352).
In sum, we find no abuse of discretion under state law. Nor do we find any violation of defendant’s due process right to a fair trial. “[T]he trial court did not abuse its discretion... and [defendant’s] derivative claims of constitutional error likewise fail.” (People v. Coffman (2004) 34 Cal.4th 1, 84.) Even if the trial court had erred in applying state evidentiary law, it would have to be a serious violation to rise to the level of denying him a fair trial entirely. In this case, the court committed no such state-law error in the first place.
The judgment is affirmed.
WE CONCUR: Mihara, Acting P. J. McAdams, J.
“The second theory of liability is aiding and abetting. If in fact you help somebody commit a crime, you are equally responsible for the crime. You don’t have to do it yourself. You’re equally responsible.
“The third theory of liability is coconspirator liability. If you are part of a conspiracy to commit a crime, you’re liable for that crime even if you yourself don’t do the actual commission. So three different ways to be responsible for robbery, and it doesn’t matter which way you arrive at that verdict of guilty. It could be any theory of liability.
“So let’s start with the last one; coconspirator liability. A member of a conspiracy is in fact criminally responsible for the crimes you conspire to commit no matter which member actually does it. If you are a member of a conspiracy to commit robbery and in fact somebody in the conspiracy commits the robbery, everybody is responsible for robbery. I don’t have to prove which one did it. You may well be entirely clear that I have proven which one did it, but I don’t have to.”
When the opportunity later presented itself to further discuss the law of conspiracy as it related to the murder charge, the prosecutor stated:
“This is what I touched on before. A member of a conspiracy is criminally responsible for any act of any member of the conspiracy if the act is done to further the conspiracy and that act is a natural and probable consequence of the plan.”
With regard to the murder charge, the trial court instructed the jury: “To prove that the defendant is guilty... the People must prove that: [¶] 1. The defendant conspired to commit one of the following crimes: robbery or attempted robbery; [¶] 2. A member of the conspiracy committed murder to further the conspiracy; [¶] AND [¶] 3. Murder was a natural and probable consequence of the common plan or design of the crime that the defendant conspired to commit.”
Section 971 provides: “The distinction between an accessory before the fact and a principal, and between principals in the first and second degree is abrogated; and all persons concerned in the commission of a crime, who by the operation of other provisions of this code are principals therein, shall hereafter be prosecuted, tried and punished as principals and no other facts need be alleged in any accusatory pleading against any such person than are required in an accusatory pleading against a principal.”
At the time that the California Supreme Court filed its opinion in People v. Dole, supra, 122 Cal. 486, section 971 provided: “The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission; though not present, shall hereafter be prosecuted, tried, and punished as principals, and no other facts need be alleged in any indictment or information against such an accessory than are required in an indictment or information against his principal.” (Codes of Cal. (Acts Amendatory) 1880, ch. 47, § 32.)