P. v. Justice

Filed 8/2/07 P. v. Justice CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor Provost, Judge.

Candace Hale, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

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Jennifer Nadine Justice was convicted of second degree robbery (Pen. Code,  211)^[1]and possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)). She argues (1) the only witness who connected her to the robbery was an accomplice, and (2) the trial court erred in failing to give accomplice instructions. We affirm the judgment because the witness, Georgette Rowden, was not an accomplice.

FACTUAL AND PROCEDURAL SUMMARY

Justice was tried with codefendant Harry Thomas Mitchell II. Kathryn Steffens, the manager of a local discount store, testified that on the night in question she prepared a bank deposit with the proceeds from that days sales. She then proceeded to the local bank to make a night deposit. This was the same procedure used each night. Steffens testified that Justice, the former manager of the store, had trained her how to make the nightly deposits.

Steffens arrived at the bank at approximately 9:15 p.m. As she approached the bank, a man stopped her and demanded the money. He grabbed the deposit bag and ran toward the back of the bank. The deposit bag contained approximately $3,000.

The investigation eventually turned to Mitchell, Justice, and Rowden. Mitchell admitted committing the robbery. Justice denied any involvement in the crime. Rowden provided the key testimony tying Justice to the crime.

Rowden testified that on the day in question she rode with Justice to the Modesto area where they picked up Mitchell. The three then drove back to Sonora to a friends house. Justice drove, Mitchell sat in the front passenger seat, and Rowden sat in the back seat. The trip was made in Justices car.

During the trip Rowden heard portions of a conversation between Justice and Mitchell. Rowden heard Justice tell Mitchell she worked [at the local store] before and I know drop-offs. Justice also mentioned a time of about 9:30 p.m. and said it would be easy to take the money from the lady. Mitchell responded, Lets do it tonight.

The three arrived in Sonora after sunset. Rowden was taken to the friends house because Rowden was on parole. Justice and Mitchell left a few minutes later. They returned about one hour later, each holding money in their hands. Justice and Mitchell began to split the money. Both Mitchell and Justice laughed and bragged about how easy it had been. Rowden was given approximately $600 to have her car repaired.

Rowden agreed to plead guilty to being an accessory to the crime, make restitution, and spend six months in jail. She also agreed to testify truthfully at trial.

An officer testified that when she searched Justice after she was arrested, a small amount of suspected narcotics were discovered. Justice stipulated that the substance discovered during the search was a useable amount of methamphetamine.

The information charged Justice and Mitchell with second degree robbery ( 211) and charged Justice with possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)). The jury found Justice guilty of both charges. Justice was sentenced to a midterm sentence of three years for the robbery, with a concurrent term of two years for the possession count.

DISCUSSION

The only issue presented is the failure to instruct the jury with accomplice instructions. Justice argues the failure to give accomplice instructions requires reversal of the judgment. The People argue there was no evidence that Rowden was an accomplice and therefore the instructions were not required.

It does not appear from the record that accomplice instructions were a topic of discussion in the trial court. No party requested the instructions and the trial court did not raise the issue.

Section 1111 provides the basis for our analysis: A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. The trial court is required to give accomplice instructions sua sponte if the evidence establishes that a witness is an accomplice. (People v. Tobias (2001) 25 Cal.4th 327, 331.)

The pattern accomplice instruction (Judicial Council of Cal. Crim. Jury Instns. (2006-2007), CALCRIM No. 334) warns the jury that the testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. Justice claims this warning was essential to her defense, and its absence led to her conviction. Justice points out that the only substantial evidence tying her to the crime was Rowdens testimony.

As stated in section 1111, a witness is an accomplice if he or she could be charged with the same offense as the defendant, in this case second degree robbery. In order to be chargeable with the identical offense, the witness must be considered a principal under section 31. [Citation.] That section defines principals to include [a]ll 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 . ( 31.) An accessory, however, is not liable to prosecution for the identical offense, and so is not an accomplice. [Citation.] (People v. Fauber (1992) 2 Cal.4th 792, 833-834.)

There was no evidence that Rowden directly participated in the robbery, nor was there any evidence that she advised or encouraged its commission. The issue, therefore, is whether Rowden could be charged as aiding and abetting the robbery. An aider and abettor is one who aids, promotes, encourages or instigates a crime with knowledge of the unlawful purpose of the perpetrator and the intent to assist in the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 560.)

The record is devoid of any evidence that Rowden aided, promoted, encouraged, or instigated the robbery. The undisputed evidence established the Rowden was a passenger in the car in which the robbery was planned. There was no evidence that Rowden participated in the planning of the robbery, or otherwise encouraged Justice and Mitchell to commit the crime. Mere knowledge that a crime may be committed in the future does not amount to aiding and abetting the commission of the crime. (People v. Horton (1995) 11 Cal.4th 1068, 1115.)

Horton provides support for our conclusion. Horton was convicted of killing the illegal drug dealer from whom he bought drugs. The killing was preceded by 10 to 12 hours of drug consumption by Horton and some friends. When the supply of illegal drugs was depleted, Horton suggested robbing his dealer. One of his friends, Donald McLaurin, agreed to assist Horton by driving Horton to the dealer. The plans were abandoned when McLaurin was unable to borrow a vehicle. The following day, Horton murdered his dealer and stole his drug supply. McLaurin shared in the proceeds of the robbery, and ultimately drove Horton to the bus station so Horton could leave town.

The trial court concluded that McLaurin was not an accomplice and refused to give accomplice instructions. The Supreme Court found no error. (People v. Horton, supra, 11 Cal.4th at p. 1115.) McLaurins mere initial agreement to drive defendant to the dealers apartment theprior evening, an arrangement that never was carried out, did not constitute evidence of McLaurins having planned, encouraged, or instigated the commission of a robbery or any other crime committed by defendant at a future time. McLaurins objective apparently was to obtain more drugs on the evening of October 10, but the plan to do so was aborted. His knowledge that a crime might be committed by defendant in the future did not amount to aiding and abetting the commission of that prospective crime. [Citations.] Although the evidence of his conduct subsequent to the commission of the crimes might well have implicated McLaurin as an accessory, his status as accessory would not subject him to accomplice liability. (Id. at pp. 1115-1116.)

Rowdens participation in the robbery is similar to McLaurins participation in the murder. Although Rowden never agreed to participate in the crime, she did receive some of the proceeds. But, as the Supreme Court recognized, this would elevate her to accessory status, not subject her to accomplice liability.

Since the evidence was insufficient as a matter of law to support a finding that Rowden was an accomplice, accomplice instructions were unnecessary.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.

^[1] All further statutory references are to the Penal Code unless otherwise stated.