People v. Brady

• Decision Date: 12 March 1987
• Citation: 190 Cal.App.3d 124,235 Cal.Rptr. 248
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gary Lee BRADY, Defendant and Appellant. Crim. 14268.

Page 248

235 Cal.Rptr. 248

190 Cal.App.3d 124

The PEOPLE, Plaintiff and Respondent, v. Gary Lee BRADY, Defendant and Appellant.

Crim. 14268.

Court of Appeal, Third District, California.

March 12, 1987.

Andrew French Loomis, Oakland, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Shirley A. Nelson, Deputy Atty. Gen., for plaintiff and respondent.

BLEASE, Acting Presiding Justice.

Defendant was convicted by a jury of burglary in the second degree (Pen.Code, §§ 459, 460, subd. 2) on grounds he perpetrated the offense or aided and abetted its commission (Pen.Code, § 31). ¹ Because the jury could have founded its verdict upon the theory of aiding and abetting, we will reverse the judgment for failure of the trial court to instruct the jury that an intent to aid the perpetrator, formed after the perpetrator's entry into the burgled premises, does not satisfy an element of the offense of aiding and abetting a burglary. In the event of retrial, we also hold that second degree burglary, as currently defined (see § 460), is not a serious felony (See §§ 667, subd. (d); 1192.7, subd. (c)(18)) and for that reason cannot support the imposition of an enhancement for a prior serious felony pursuant to section 667.

FACTS

On September 11, 1984, Michael Brummett was walking home to his apartment in Chico sometime after 6 p.m. At the corner he encountered Chris Arnold with three other people, defendant, Teddy Rose, and a female. They appeared to be drunk. Arnold was in the back seat of a car and Brummett entered the car at Arnold's invitation. Arnold and the other three then accompanied Brummett to his apartment. Arnold and Brummett went into the apartment where Arnold tried to persuade Brummett to accept some jewelry in trade for money and drugs. Brummett declined and asked Arnold to leave.

They went outside. Defendant got out of the car and belligerently insisted that Brummett examine his watch which he wished to trade for drugs. Brummett shook off defendant's grasping hand. Defendant acted as if he was going to enter Brummett's apartment and Brummett told him to stay out. A neighbor approached and asked if Brummett would go with her on an errand. He agreed and left with her. When he returned, about 20 minutes later, he went into his apartment and found that his television and his roommates' stereos were missing.

Mark Turnbaugh was in the bedroom of an upstairs apartment in the building. He watched Brummett, Arnold, and defendant arguing outside the apartment. After Brummett left, the car Arnold and defendant were traveling in also left. Five minutes later that car returned. Turnbaugh saw defendant and Arnold get out and walk toward Brummett's apartment. From Turnbaugh's vantage point one cannot see the doorway of Brummett's apartment. There is an eave which projects over the doorway area. Defendant and Arnold passed out of view. When they reappeared defendant was carrying two portable stereos. Defendant and Arnold returned to their car.

The day after the incident Officer Benedetti of the Redding Police arrested defendant's wife at the South City Park in Redding. Defendant was lying nearby on the ground. He got up and staggered toward the police car and attempted to let his wife out. Benedetti placed him under arrest for public drunkeness. Defendant's jacket was on the ground and beneath it a stereo. Benedetti asked if the stereo was defendant's to determine if he should take it along. At this point another officer who had arrived told Benedetti that the stereo looked like one that had been taken in a burglary the day before. Defendant said the stereo was not stolen, that he had had it for a couple of months. The stereo was one of the two that had been taken from Brummett's apartment.

Arnold testified for the defense as follows. He first met defendant about midday on the day of the burglary, September 11, 1984. Later in the day he asked if defendant could give him a ride so that he could get his possessions from his apartment as he was having a controversy with his roommates. Defendant arranged for transportation in Teddy Rose's car. When they arrived at Brummett's apartment Brummett was leaving. They talked for a few minutes and Brummett left. Defendant never left the car during this conversation. When Brummett left Arnold asked defendant to come and help him get his possessions. He invited defendant into the apartment but defendant declined, waiting outside the threshold. He handed defendant the two stereos. They went back to Rose's car and departed. Later defendant traded him a pocket watch for one of the stereos. Arnold admitted that he had pled guilty to burglary for his role in this offense. He did not recall what happened to the other stereo and the television. He was arrested at the bus station at 7 p.m. on September 11, 1984. The custody property receipt for his subsequent booking does not list a pocket watch.

Two other witnesses testified that they overheard conversations between defendant and Arnold on the afternoon of September 11, 1984, in which Arnold asked defendant to give him a ride to his house.

Teddy Rose testified for the defense as follows. He agreed to provide tansportation for Arnold to get gasoline for a vehicle that had run out of gas. On the way Arnold said he had to go to the apartment first. When they arrived Arnold went to the door and tried to get in but no one answered. They drove away but met Brummett at the corner. They picked him up and returned to the apartment. Brummett unlocked the door with a key and he and Arnold had a discussion. Eventually defendant got out of the car and took part in the discussion. Brummett then left with his neighbor. Arnold went into the apartment and handed the two stereos or the television to defendant who stood outside the threshold.

Officer Patrick Tennant of the Redding Police testified in rebuttal that he spoke with Rose two days previously. At that time Rose told him that defendant's wife had asked him to testify that defendant had never entered Brummett's apartment. Rose said that he intended to tell the truth which is that defendant had gone into Brummett's apartment. Tennant also testified that, when Rose was interviewed on the day of the burglary, he said defendant had gone into the apartment.

DISCUSSION

I

Defendant was tried as a principal in the crime of burglary on the theories that he was either a perpetrator or an aider and abettor of the offense. Defendant offered two instructions, which together could be read as informing the jury that it could not convict him of aiding and abetting the burglary if he did not know of Arnold's intent to steal from Brummett's apartment until after Arnold entered it. ² The court refused both instructions. Defendant argues that the court erred because the instructions correctly state the law and are necessary to define the offense of aiding and abetting a burglary as applied to the facts in this case. While the proffered instructions are imperfect, defendant's claim has merit.

A.

Defendant takes his theory of culpability from People v. Markus (1978) 82 Cal.App.3d 477, 147 Cal.Rptr. 151. The person charged as the aider and abettor in that case was the driver of a car, parked in front of the burgled residence. The actual burglar, carrying his loot, had just left the residence and entered the car. Defendant claimed that he had no knowledge of his companion's criminal purpose until that moment. (Id., at p. 480, 147 Cal.Rptr. 151.) The jury asked if defendant could be found guilty of aiding and abetting the burglary if this claim were true. The trial court answered yes. The reviewing court reversed the conviction, reasoning: "It is the intent at the moment of entry of the structure which appellant must have shared with his companion in order to be guilty of burglary as a principal. If appellant did not know at that moment what was afoot, there is no way that he could have shared the specific criminal intent required for guilt as a principal. If, as the jury may have believed, appellant did not learn that there had been a burglary until his companion entered the automobile, he could not have shared his companion's criminal intent at the moment of entry; he simply could not have been a principal. A contrary holding would eliminate the statutory distinction between principal and accessory. The trial court's instruction to the contrary was mistaken." (Id., at pp. 481-482, 147 Cal.Rptr. 151.)

Markus points in the right direction. But it overstates the case in implying that the only material distinction "between principal and accessory" is that premised upon timing. As section 32 says, liability as an accessory is premised among other things upon aid which is rendered "after a felony has been committed...." (Emphasis added.) However, not all aid rendered after commission falls into the category of an accessory; the accessory must also act "with the intent that [the] principal may avoid or escape from arrest, trial, conviction or punishment...." Post-offense aid that is not accompanied by such an intent is either not criminal or is culpable only under a statute pertaining to particular conduct, such as receiving stolen property. (See Fletcher, Rethinking Criminal Law (1978) § 8.5.4, pp. 645-646.)

i Markus is correct insofar as it is premised upon distinctions which the Legislature has drawn in grading the culpability of conduct by the separate classification, definition, and punishment of offenses. To state the obvious, the Legislature has, by so grading offenses, declared its purpose that separate crimes should be treated, in fact, as different crimes. That purpose would be violated if one crime could be made into another, either directly, by admixing their elements, or indirectly by transmuting the element of one crime into the element of a different crime by circumstantial reasoning. (See People v. Spann (1986) 187 Cal.App.3d 400, 232 Cal.Rptr....