P. v. Davison

Filed 2/28/07 P. v. Davison CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, William Lee Evans, Judge. Reversed and remanded.

Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.

* * *

Defendant Rebecca Ann Davison (defendant) was charged by information with second degree robbery in violation of Penal Code sections 211 and 212.5, subdivision (c). Defendant pled not guilty. A jury found defendant guilty, as charged, of second degree robbery. The court sentenced defendant to state prison for the midterm of three years. Defendant appeals.

Substantial evidence supports the finding that defendant drove the getaway car at the gas station robbery. However, the court erred in instructing the jury on the elements of aiding and abetting. It gave conflicting instructions that would have permitted the jury to find that defendant committed an act of aiding and abetting a robbery without finding that she had the requisite intent. It has not been shown beyond a reasonable doubt that the error did not contribute to the jurys verdict. Accordingly, we reverse and remand.

I

BACKGROUND

A. Testimony of Paul Garcia and Officer Brian Perez:

Paul Garcia (Garcia) testified that he was working at a gas station on August 14, 2004, when a robbery took place at about 4:00 a.m. A car drove up and the male driver asked Garcia whether or not he was on the correct side of the gas pumps. Garcia told the man that he was on the wrong side of the pumps for his gas tank. Garcia noticed at the time that there was a woman in the passenger seat of the car. He observed that she was white and had red hair.

Garcia testified that the man came into the store, came behind the counter, and demanded cash. Garcia said that the man swung at him and pushed him a little bit. The man departed with about $40. Garcia ran out after him. He observed that the man got into the passenger side of the car and that the woman was in the drivers seat. According to Garcia, when the car drove away, it went kind of fast and the tires screeched a little bit.

Garcia was interviewed about 10 minutes after the robbery. According to the testimony of Officer Brian Perez (Perez), Garcia told him that he saw both the man and the woman get out of the car after the man had driven the car to a different side of the gas pumps. Perez said that Garcia was unsure about what the woman was wearing. Garcia nonetheless attempted to give Perez a description of her clothing and an estimate of her height and weight. Garcia also told Perez and Detective Tim Walker (Walker) that the woman had red hair with brown roots.

By the time of trial, Garcia could not recall having seen the woman get out of the car and did not remember what she was wearing. When asked how he could have given Perez a description of the womans height, weight and clothing if he did not see her get out of the car, Garcia explained that the descriptions were either based on what he in fact saw at the time or based on assumptions he made from what he could see of the woman while she was seated in the car.

Garcia also testified that around September 16, 2004, Walker came to his house to have Garcia look at a group of photographs. Walker wanted to see if Garcia could recognize the woman who drove the getaway car. Garcia knew that he was not obligated to select any of the photographs, but had the impression that he could pick two of the pictures that most resembled the woman. He selected picture No. 2 in the photographic lineup and identified the person in that photograph as the getaway driver. He also picked another woman, shown in picture No. 4, as a possibility. At the time of trial, Garcia thought he had probably told the investigator that he was 70 or 80 percent sure about the identification as reflected in picture No. 2. The parties agree that picture No. 2 was a photograph of defendant.

B. Testimony of Brandon Rose:

Brandon Rose (Rose) was serving a prison sentence for the robbery in question. He had pled guilty, and admitted taking money from Garcia by force. At defendants trial, Rose also admitted to having committed the robbery together with a female getaway driver. Rose admitted to having had a romantic relationship with defendant, but he claimed that the two of them had broken up at least a month before the robbery. However, he admitted to having had telephone contact with defendant during the period between the break up and the robbery. In addition, Rose admitted that about a month after the robbery, he and defendant were arrested together.

With respect to the robbery, Rose testified that he had informed the getaway driver in advance that he was going to shoplift a pack of cigarettes. He said he told her, I need you to be ready to drive out of there quick. Rose said that the getaway driver, the woman in the surveillance tape, was not defendant, but rather was a woman named Maria Hofner, a woman he had only met two days before the robbery. He admitted that he had told Investigator Victor Peluso that Maria Hofner and defendant looked sufficiently similar that one could be mistaken for the other.

C. Testimony of Rose Davison:

On October 26, 2004, Investigator Brett Andersen (Andersen) of the district attorneys office went to the home of Rose Davison (Davison), defendants mother. He told Davison that he had a surveillance tape of a robbery that he wanted to show her and that he wanted to ask her if she recognized anyone on the tape. When shown the tape, Davison immediately told the investigator that the woman on the tape was her daughter.

At the time of trial, Davison again was shown a copy of the video that Andersen had shown her at her house. However, with respect to the copy shown to her in court, Davison remarked: This one is blurry. She clarified that the copy was more blurry than the one she had seen at her house. When the prosecutor asked Davison if she recognized the woman on the video, Davison replied, Yes. When asked who the woman was, Davison answered, My daughter. The prosecutor then asked, Do you have any hesitation whatsoever that that is your daughter were seeing in the video? Davison responded, No. The prosecutor then said, In fact, when you spoke with Investigator Andersen you immediately recognized her as your daughter, didnt you? Again, Davison replied, Yes.

Defendants attorney then asked Davison questions about the video. The attorney questioned how Davison could make a positive identification when the video did not provide a good close up shot of the face of the woman in the getaway car. He asked Davison what about what you see in the video leads you to believe its, in fact, your daughter in the video? Davison replied, I am not sure. The attorney pressed Davison, you cant articulate what it is that makes you believe its your daughter? Davison responded: It just appears to be her. I am sorry; I am nervous. Davison also stated that she did not recognize the clothing of the woman in the video and indicated that she had never seen her daughter wearing that particular outfit. After continued questioning about the reasons why she believed the woman in the video was her daughter, Davison ultimately said: I am not sure how certain I am.

When the prosecutor then questioned Davison on redirect examination, Davison indicated with certainty that the woman in the video was her daughter. The prosecutor asked Davison whether it was correct that she had never told the investigator that she was anything other than positive that the woman on the video was her daughter. Davison indicated this was correct. The prosecutor then asked Davison plainly: Is the woman on the video your daughter, Maam? Davison stated simply, Yes. The prosecutor asked Davison whether she understood when the investigator showed her the tape that any identification she made would implicate someone in a robbery, and Davison responded that she did understand. The prosecutor further questioned Davison: And knowing that, if you werent sure it was your daughter wouldnt you let Investigator Andersen know that? Davison responded, Yes. The prosecutor then asked, And you didnt, did you? Davison replied, No. The prosecutor then asked, Because its your daughter, right? Davison answered simply, Yeah.

II

DISCUSSION

A. Getaway Driver Identity:

Defendant argues that there is insufficient evidence to show, beyond a reasonable doubt, that she was the getaway driver. She says that Rose unequivocally testified that she was not the getaway driver. She contends that the only evidence to the contrary was the vague testimony of Garcia and a blurry surveillance tape. Defendant emphasizes that Garcia only got a quick look at the getaway driver and that he could not even accurately describe what she was wearing. She also highlights the fact that Garcia picked out more than one picture from the photographic lineup and did not identify her photograph with certainty. In addition, defendant underscores the portion of Davisons testimony where she indicates she is not sure how certain she is about the identification. Furthermore, she argues that no reasonable juror could have found Davisons identification reasonable, credible and of solid value, because the tape was so blurry the woman in it could not be identified.

In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] (People v. Duran (2001) 94 Cal.App.4th 923, 931.) It is the function of the jury in the first instance and of the trial court after the verdict to determine what facts are established by the evidence and before the verdict of the jury which has been approved by the trial court may be set aside on appeal for insufficiency of the evidence, it must be made to appear that there is no substantial evidence to support the conclusion of the jury and the trial court. [Citations.] A conviction may not be set aside because the evidence is susceptible of two reasonable inferences, one looking to the guilt of the defendant and the other to his innocence. [Citations.] (People v. Green (1939) 13 Cal.2d 37, 42.)

Here, it is clear that the jury disregarded the testimony of Rose, who said that defendant was not the getaway driver. He admitted to having a romantic relationship with defendant. The jury may have found his testimony that he and defendant had broken up a month or more before the robbery and yet were arrested together only a month afterward to be lacking in credibility. This is particularly true when Rose admitted at one point during questioning that he wanted to protect defendant. In any event, it is not the province of this court to reweigh the testimony of the witnesses or to reassess their credibility. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622.) The Court of Appeal is not a second trier of fact . . . . (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.)

While Garcia, on the other hand, picked defendants photo from a lineup and expressed a significant degree of certainty as to her identity, he also picked a second photo as a possibility. It is also true that the statements he made shortly after the robbery and at trial were vague, lacking in some consistency, and at points at odds with the surveillance tape. However, once again, it is up to the jury to determine the weight of the testimony. The fact that Garcia did choose defendants photo from a lineup is evidence of ponderable legal significance for the jury to consider in reaching its decision.

Most importantly, Davison, defendants own mother, gave a positive identification on viewing the surveillance video. Defendant contends that the video was so blurry that no identification of the woman thereon was physically possible, or at least it was inherently improbable, such that Davisons testimony does not constitute evidence supporting the conviction. (See People v. Allen (1985) 165 Cal.App.3d 616, 623 [absent impossibility or improbability, testimony supports conviction].) Yet Davison indicated at trial that the video shown in court was more blurry than the one she had viewed at home. True enough, while on the witness stand, Davison had difficulty articulating exactly what defining characteristics made her certain that the woman on the video was her daughter and even vacillated as to her certainty at one point during questioning. At the same time, she began and concluded her trial testimony with plain and simple statements that the woman on the video was her daughter, just as she had said to the investigator who first showed her the video.

It is well established that an appellate tribunal will not reverse a judgment of conviction upon the ground herein urged unless it be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached by the trier of facts [citation]. (People v. Cuellar (1952) 110 Cal.App.2d 273, 276.) We cannot say that, upon no hypothesis, is there sufficient evidence to support the verdict in the matter before us. Given Davisons identification of her daughter on the video, and Garcias selection of defendants photo from the lineup, there is substantial evidence upon which a reasonable trier of fact could conclude, beyond a reasonable doubt, that defendant was the driver of the getaway car.

B. Intent to Facilitate a Robbery:

Next, defendant claims the conviction must be reversed because there was insufficient evidence of intent to aid and abet the commission of a robbery. As defendant notes, People v. Beeman (1984) 35 Cal.3d 547 (Beeman) provides that a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime. (Id. at p. 561.) Defendant insists that there is no evidence to show the getaway driver either knew of Roses intent to commit robbery or intended to facilitate any robbery. Defendant thus concludes that the requirements of the Beeman test are not met.

The only direct evidence on the point was the testimony of Rose, who said he had told the getaway driver that he intended to shoplift a package of cigarettes, not that he intended to commit a robbery. Defendant says that the shoplifting of a package of cigarettes would amount to an act of mere petty theft, not the commission of a robbery. (Pen. Code,  211, 487, 488.)^[1] She correctly notes that the jurys apparent disbelief of the portion of Roses testimony to the effect that he told the getaway driver he only intended to shoplift a package of cigarettes, does not itself constitute affirmative evidence that he told her instead that he intended to commit robbery. (See People v. Wayne (1953) 41 Cal.2d 814, 823, overruled on another point in People v. Snyder (1958) 50 Cal.2d 190, 197.)

Defendant concedes that an individual may be held liable for aiding and abetting when the crime ultimately committed was not the target crime that had been planned in advance, but was the natural and probable consequence of the target crime. (See People v. Prettyman (1996) 14 Cal.4th 248.) However, she emphasizes that the prosecution neither relied on the natural and probable consequences doctrine nor requested an instruction on it. Therefore, she warns, the natural and probable consequences doctrine cannot be used to find the necessary intent in this case. The Attorney General does not contend otherwise.

[O]utside of the natural and probable consequences doctrine, an aider and abettors mental state must be at least that required of the direct perpetrator. (People v. McCoy (2001) 25 Cal.4th 1111, 1118.) Put another way, [w]hen the charged crime and the intended crime are the same, i.e., when guilt is not predicated on the natural and probable consequences doctrine, the aider and abettor must, indeed, share the actual perpetrators intent.^[2] (Id. at p. 1118, fn. 1.) So, as defendant argues, the People here were required to show that defendant shared the actual perpetrators intent to commit the charged crime of robbery.

Defendant also correctly asserts that [t]he specific intent . . . to commit a robbery cannot be inferred merely because of the fact a robbery occurred at a place where she was present. (People v. Terry (1970) 2 Cal.3d 362, 401-402, italics added, disapproved on another point in People v. Carpenter (1997) 15 Cal.4th 312, 381-382.) However, it is also the case that her presence [is] but one factor which, together with others, would support a finding that she had the specific intent to rob or to assist in robbery. (People v. Terry, supra, 2 Cal.3d at p. 402.) [F]actors for determining aiding and abetting of a robbery include presence at the scene of the crime, companionship, and conduct before and after the crime, including flight. [Citation.] (People v. Haynes (1998) 61 Cal.App.4th 1282, 1294.) Here, defendant was present, in the company of Rose with whom she had been romantically involved, moved from the passengers seat to the drivers seat, and engaged in a quick getaway as soon as Rose got in the car. The evidence is sufficient to support a finding that defendant had the requisite specific intent. The evidence . . . need not be direct nor extend to every fact and detail. It may be circumstantial and is sufficient, even though slight, if it tend[s] to connect the defendant with the commission of the crime. [Citations.] [Citation.] (People v. Wayne, supra, 41 Cal.2d at p. 822.)

Defendant disagrees. She maintains that the circumstantial evidence was insufficient. She cites People v. Yrigoyen (1955) 45 Cal.2d 46 for the proposition that to justify a conviction on circumstantial evidence the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion. [Citation.] (Id. at p. 49.) She insists that a reasonable jury could not conclude that the facts and circumstances before us were inconsistent with any rational conclusion other than that she intended to facilitate a robbery. Defendant says that one could rationally conclude, for example, that she harbored only an intent to facilitate the shoplifting of a package of cigarettes.

We disagree with defendants assertion that no reasonable jury could reach the conclusion it did. The only direct evidence of intent was Roses testimony that he told the getaway driver that he intended to enter the store and commit a crime, albeit the crime of shoplifting, and that she needed to be prepared to drive away quickly on account of his commission of the crime. The jury apparently believed the portion of the testimony wherein Rose said he told the getaway driver that he intended to commit a crime, and disbelieved the portion wherein he said the intended crime was shoplifting. Only a portion of the testimony having been rejected, there remained direct evidence that the getaway driver had knowledge of Roses intent to commit a crime that would require a prompt getaway. The getaway driver prepared for the prompt departure by changing seats and indeed made haste when Rose got back in the car. The jury may reasonably have determined that it would be irrational to conclude that a quick departure would have been necessary if Rose and the getaway driver shared only the intent that he enter the store, quietly slip a package of cigarettes into his pocket while no one was looking, and calmly proceed out the door to the car. The jury may reasonably have determined that the only rational conclusion was that a prompt departure would have been required only if the intended crime were one likely to draw the attention of the gas station attendant something more than the palming of a package of cigarettes.

C. Jury Instructions:

Defendant saves her best argument for last. She says the court gave one correct instruction on aiding and abetting and one incorrect one. Defendant agrees that the court properly gave modified CALJIC No. 3.01 as follows: 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. . . .

However, defendant asserts that the court misdirected the jury by giving the following non-CALJIC instruction in addition: It is not necessary to prove that the aider and abettor shared the same specific intent as the actor. It is only necessary that the aider and abettor be shown, beyond a reasonable doubt, to have shared the actors knowledge of wrongful purpose. It is the knowledge of the wrongful purpose of the actor plus the encouragement provided by the aider and abettor that makes the latter guilty as a principal.

Defendant contends that by giving the one incorrect instruction, the court in effect negated the central requirement that the getaway driver must have intended to facilitate the commission of a robbery. She also says that the incorrect instruction contradicted the holding in Beeman, supra, 35 Cal.3d 547 to the effect that the aider and abettor must indeed share the perpetrators specific intent. Defendant insists that these errors do not constitute harmless errors beyond a reasonable doubt.

In addressing this issue, we make two observations at the outset. First, there is no indication that the challenged instruction is either a CALJIC instruction or an instruction from any recommended book of instructions. Second, while the record shows that the challenged instruction was Given as Requested, there is no indication which party requested the instruction. Given the nature of the instruction, we may infer that it was requested by the People. Whether or not this is the case, we must consider, even though the parties have not raised the issue, whether defendant may have waived her objections to the instruction through the doctrine of invited error. We conclude not. For the doctrine of invited error to apply, it must be clear from the record that counsel had a deliberate tactical purpose in suggesting or acceding to an instruction, and did not act simply out of ignorance or mistake. [Citations.] (People v. Maurer (1995) 32 Cal.App.4th 1121, 1127-1128.) There is nothing in the record to indicate that defendants counsel suggested the instruction at all, or that defendants counsel had any tactical purpose in acceding to it. Finding no invited error, we turn to defendants substantive arguments.

CALJIC 3.01 addresses the three prong test of Beeman, supra, 35 Cal.3d 547, which provides that a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime. (Id. at p. 561.) The second prong of the Beeman test makes clear, as does CALJIC 3.01, that the requisite intent of the accused must be shown.

The challenged instruction, on the other hand, dispenses with the requirement of intent. First, it says that shared specific intent need not be shown, but does not require that any other type of intent be shown instead. Rather, it says that [i]t is only necessary that the aider and abettor be shown . . . to have shared the actors knowledge of wrongful purpose. It is the knowledge of the wrongful purpose of the actor plus the encouragement provided by the aider and abettor that makes the latter guilty as a principal. (Italics added.) In other words, the challenged instruction may be read to say that there are only two requirements: (1) knowledge of the wrongful purpose, and (2) encouragement by the aider and abettor. It does not say that the aider and abettor must intend to encourage the crime, or to commit it or to facilitate it. It only says that the aider and abettor must provide encouragement. This could go to the third prong of the Beeman test, i.e., to encourage the commission of the crime through ones acts. But it is not enough to simply engage in an act that encourages or facilitates a crime. One may happen to encourage or facilitate the commission of a crime through ones act, for example, pulling away quickly from a gas station, without having the intent to encourage or facilitate the commission of the crime. In short, the challenged instruction may be read to include the first and third prongs of the Beeman test, but to omit entirely the second, with respect to intent. This is error.

In addition, defendant says that the first sentence of the challenged instruction is also erroneous in and of itself, because it contradicts the requirement of Beeman, supra, 35 Cal.3d 547 that [w]hen the definition of the offense includes the intent to do some act or achieve some consequence beyond the actus reus of the crime [citation], the aider and abettor must share the specific intent of the perpetrator.

(Id. at p. 560.) We agree. The Supreme Court reaffirmed this principle in People v. McCoy, supra, 25 Cal.4th 1111, wherein it stated: When the offense charged is a specific intent crime, the accomplice must share the specific intent of the perpetrator

. . . . [Citation.] (Id. at p. 1118, fn. omitted.) So, we conclude that the challenged instruction is faulty on two grounds.

It may be that the challenged instruction is sometimes offered in the context wherein the natural and probable consequences doctrine is employed. However, the Attorney General neither says so nor argues that the people ever raised the doctrine. What the Attorney General says is simply that the instructions were consistent with state law that a getaway driver who has no prior knowledge of a robbery, but who forms the intent to aid in carrying away the loot, may properly be found an aider and abettor in the robbery. (People v. Cooper (1991) 53 Cal.3d 1158, 1161.) We have no quarrel with the assertion that one who is not aware of the purpose before the robbery begins can nonetheless be held liable for aiding and abetting the robbery under certain circumstances. But the point of the matter is that People v. Cooper, supra, 53 Cal.3d 1158 did not abrogate the requirement of intent. As the court therein made clear, in order to fulfill the requirements of Beeman, supra, 35 Cal.3d 547, for conviction of the

. . . offense of aiding and abetting a robbery, a getaway driver must form the intent to facilitate or encourage commission of the robbery prior to or during the carrying away of the loot to a place of temporary safety. (People v. Cooper, supra, 53 Cal.3d at p. 1165, footnote and italics omitted, alternate italics added.) As this language shows, the Beeman requirement of intent must still be met, even when the getaway driver is unaware of the perpetrators plan at the outset.

The Attorney General contends that any error was harmless error. We disagree. Under state law, instructional error that withdraws an element of a crime from the jurys consideration is harmless if there is no reasonable probability that the outcome of defendants trial would have been different had the trial court properly instructed the jury. [Citations.] Under federal law, the Fifth Amendment right to due process and Sixth Amendment right to jury trial . . . require the prosecution to prove to a jury beyond a reasonable doubt every element of a crime. [Citations.] Accordingly, a trial courts failure to instruct on an element of a crime is federal constitutional error that requires reversal of the conviction unless it can be shown beyond a reasonable doubt that the error did not contribute to the jurys verdict. [Citations.] (People v. Cole (2004) 33 Cal.4th 1158, 1208-1209.) As defendant says, the latter, more stringent standard applies because the instruction had the effect of removing the element of intent from the jurys consideration. As stated in People v. Lizarraga (1990) 219 Cal.App.3d 476: Incorrect or inconsistent instructions on the element of specific intent require a reversal unless the error is deemed harmless beyond a reasonable doubt. [Citation.] (Id. at p. 482; see also People v. Maurer, supra, 32 Cal.App.4th at p. 1128-1129.)

Here, as defendant points out, it cannot be ascertained which of the two conflicting instructions the jury followed. The jury may have believed it need only find knowledge of a wrongful purpose combined with an act of encouragement. The Attorney General insists this cannot be the case, because the evidence, i.e., defendants switching from the passengers seat to the drivers seat, demonstrated defendants intent. We cannot say this evidence is so compelling that, beyond a reasonable doubt, the failure to clearly instruct on the requirement of intent did not contribute to the jurys verdict. We reverse and remand.^[3]

III

DISPOSITION

The judgment is reversed and the matter is remanded for a new trial for the reasons stated above.

MOORE, J.

I CONCUR:

OLEARY, J.

I CONCUR IN THE RESULT ONLY.

BEDSWORTH, ACTING P. J.

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^[1] Penal Code section 211 provides: Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. Penal Code section 487 provides in pertinent part that [g]rand theft is committed . . . : [] (a) [w]hen the money . . . taken is of a value exceeding four hundred dollars ($400) . . . . Penal Code section 488 provides: Theft in other cases is petty theft.

^[2] The Attorney General argues that the rule of law is to the contrary. He states: To establish the aider and abettors guilt, it is not necessary that he or she have the intent required to commit the target offense, but rather, only the intent to encourage and bring about conduct that is criminal. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123 [Mendoza], quoting People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5 [Croy].) The Attorney General fails to note that the court in Mendozaquoted footnote 5 of Croy with little analysis and further that the court in People v. McCoy, supra, 25 Cal.4th 1111 later stated that footnote 5 of Croy had resulted in confusion and needed clarification. The court in McCoy then clarified the language of Croy footnote 5 so as to provide the rule of law we discuss in the body of this opinion.

^[3] Inasmuch as we reverse based on the foregoing jury instruction error, we do not need to address defendants additional claim that the court erred in giving an instruction to the effect that it is immaterial whether an aider and abettor may gain in any way on account of the robbery.