P. v. Smith

Filed 7/26/06 P. v. Smith CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

A jury convicted Joshua Ron Smith of first degree robbery (Pen. Code,^[1] § 211), assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)), false imprisonment by violence (§ 236), making criminal threats (§ 422), and dissuading a witness (§ 136.1, subd. (c)(1)).

Smith contends the trial court erred in giving CALJIC No. 3.01, and in not giving CALJIC No. 3.02 instructions on the criminal liability of an accomplice. We affirm.

FACTS

Kristen T. met Smith in December of 2003. Smith gave Kristen a rock of cocaine in exchange for a ride to Lancaster and back. Later, Smith contacted Kristen by two-way radio and demanded payment for the drugs. Kristen believed she did not owe Smith any money because she had given him a ride and the cocaine had been of poor quality. Nevertheless, because Kristen feared Smith, she agreed to pay him. They made arrangements to meet in an apartment in Palmdale.

Inside the apartment, Smith demanded $20. Kristen only had $10. Smith told her to sit on the couch in the living room. A friend of Smith's, Michelle Beverly, came into the living room and began to beat Kristen. Kristen was in and out of consciousness. There were three other men in the room. Some of them joined in the beating. During the beating, Smith asked Kristen about bank accounts, and told her to call her mother to bring money. Kristen had told others that the cocaine she got from Smith had been of poor quality. He said she would be taught a lesson for discrediting him. At one point, Smith told the people beating Kristen that they were not done because she had not learned her lesson. Finally, Smith told the people beating Kristen to stop because she was bleeding. Smith warned her not to go to the police. As far as Kristen knew, Smith did not personally participate in the beating.

DISCUSSION

I

Smith contends he was denied due process when the trial court instructed the jury with CALJIC No. 3.01. He claims the instruction fails to inform the jury that a person must both aid and abet in order to be found guilty as a principal.

Section 31 includes as principals in the commission of a crime all persons who "aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . ."

CALJIC No. 3.01 instructs: "A person aids and abets the 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 or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the crime."

The language of the instruction is taken directly from our Supreme Court's opinion in People v. Beeman (1984) 35 Cal.3d 547, 561. Nevertheless, Smith insists the use of the disjunctive in the instruction is improper. Smith argues that aid and abet have different meanings. "Aid" means to assist or supplement the efforts of another; "abet" means to incite or encourage. (Citing People v. Elliott (1993) 14 Cal.App.4th 1633, 1641, fn. 8.) He believes the instruction should read that a person aids and abets a crime when he "(a) promotes, encourages or instigates; and (b) actually aids or assists, the commission of the crime." (Smith's emphasis.)

Smith's contention has been rejected in People v. Campbell (1994) 25 Cal.App.4th 402, 410-414, and People v. Booth (1996) 48 Cal.App.4th 1247, 1254-1256. These cases point out that aiding and abetting do not describe two distinct types of acts. Instead, "aiding" describes an act while "abetting" describes a state of mind. Because a person might innocently aid another to commit a crime, aiding alone is not sufficient for criminal liability. The addition of "abet" emphasizes that a guilty state of mind is an indispensable element of accomplice liability. A person who shares the goal of the perpetrator can be guilty as an accomplice if he does nothing more than instigate or advice another to commit a crime. (People v. Campbell, supra, at p. 411; People v. Booth, supra, at p. 1256.)

The trial court here correctly instructed the jury.

II

Smith contends the trial court erred in failing to instruct the jury with CALJIC No. 3.02.

CALJIC No. 3.02 provides in part: "One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted."

At trial the prosecutor withdrew CALJIC No. 3.02, and Smith's counsel agreed. Smith's counsel no doubt agreed because CALJIC No. 3.02 expands the defendant's liability beyond the crimes he actually intended. The instruction is favorable to the prosecution. Smith suffered no conceivable harm in not having the jury instructed on liability for crimes he did not actually intend.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Christopher G. Estes, Judge

Superior Court County of Los Angeles

______________________________

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] All statutory references are to the Penal Code.