People v. Brown

• Decision Date: 18 February 1981
• Docket Number: Cr. 19514
• Citation: 116 Cal.App.3d 820,172 Cal.Rptr. 221
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Benjamin Jerrel BROWN, Defendant and Appellant.

Page 221

172 Cal.Rptr. 221

116 Cal.App.3d 820

The PEOPLE, Plaintiff and Respondent, v. Benjamin Jerrel BROWN, Defendant and Appellant.

Cr. 19514.

Court of Appeal, First District, Division 1, California.

Feb. 18, 1981.

Quin Denvir, State Public Defender, Mark Fogelman, Deputy State Public Defender, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

ELKINGTON, Associate Justice.

On a jury's verdict, defendant Benjamin Jerrel Brown was convicted of selling heroin in violation of Health and Safety Code section 11352. Judgment was entered upon the verdict and sentence to state prison was thereupon imposed, followed by suspension of execution of the sentence and an order granting probation. His appeal is from an "Order of the Superior Court" which we treat as from the judgment, as was manifestly intended. (See Witkin, Cal. Criminal Procedure (1963) Appeal, §§ 690-691, pp. 673-674.)

We consider the several contentions of the appeal as they are phrased by Brown:

I. Contention: "The evidence of aiding and abetting was insufficient to support the jury's verdict."

"When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence i. e., evidence that is credible and of solid value from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." (People v. Green, 27 Cal.3d 1, 55, 164 Cal.Rptr. 1, 609 P.2d 468, emphasis added.)

Reviewing the whole record in the light most favorable to the judgment we find the following evidence which the jury could reasonably, and presumably did, find to be true.

An undercover officer of the narcotics detail of the San Francisco Police Department was supplied with a recorded $20 bill by the department. He had stationed himself on a selected street corner, and was "looking around to see if anybody was going to approach me, or any potential runners"; a "runner ... is ... a person ... who goes, gets the heroin, brings it back to you." After about five minutes, defendant Brown approached the officer and said, "Are you looking," which generally means, "Do you wish to purchaser heroin?" The officer replied, "Yes, but nothing is happening." Brown said, "Well, what do you want?" The officer's response was, "Dope, man, bags (a bag is "a $10 quantity of rolled balloons of heroin ").... Do you have any quarters?" Brown said "Yeah," and when the officer asked "Give me one," replied "Come on, let's go catch this broad." Brown then led the officer to a woman who was later identified as one Lucille Carson. Brown said to her, "Come on, take care of some business." The woman then asked the officer "how much did (he) need." He responded: "A quarter," meaning "a $25 quantity of heroin," but "you can get it for less if you are poor. Usually the standard price is 25 bucks." The officer then handed her the $20, and she handed him a balloon containing a quantity of heroin. The officer then departed. When he left, the woman and Brown were "walking together right down" the street.

By a radio transmitter the officer relayed information of the incident and a description of the couple and their location to other police officers stationed some distance away. Those officers went to the scene and arrested Brown in the company of Lucille Carson. The two appeared to answer the description furnished. The undercover officer was then called to the scene where he identified Brown and Lucille Carson as the persons instrumental in his purchase of the heroin.

Brown's defense and testimony were to the effect that a moment before he was arrested another man whom he did not know had parted, and he had joined, company with Lucille Carson, and that he had mistakenly been identified as the other person.

"Aid and abet has been established as meaning 'to instigate, encourage, promote, or aid with guilty knowledge of the wrongful purpose of the perpetrator.' ... To assist in or contribute to the commission of the act with guilty knowledge is to aid and abet." (People v. Camarillo, 266 Cal.App.2d 523, 532, 72 Cal.Rptr. 296, cert. den., 395 U.S. 966, 89 S.Ct. 2111, 23 L.Ed.2d 752.)

Brown's instant argument is that there was insufficient evidence "to support a finding beyond a reasonable doubt that (he) intended to aid or encourage the perpetrator in the commission of the crime" or, stated differently, to establish his "guilty knowledge."

We disagree. The evidence we have related abundantly supported the jury's verdict which impliedly found that Brown had the requisite guilty "intent," and "knowledge." (See People v. Green, supra, 27 Cal.3d 1, 55, 164 Cal.Rptr. 1, 609 P.2d 468.)

II. Contention: "The trial court's instructions on aiding and abetting constituted reversible error because they allowed a determination of guilt based on a finding of mere presence."

As to this issue the trial court gave the jury the following instructions (the emphasis is ours):

(1) "All persons concerned in the commission of a crime who either directly and actively commit the act constituting the offense or who with knowledge of the unlawful purpose of the perpetrator of the crime aid and abet in its commission or, whether present or not, who advise and encourage its commission, are regarded by the law as principals in the crime thus committed and are equally guilty thereof." (CALJIC No. 3.00 (1976 rev.).)

(2) "A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime." (CALJIC No. 3.01 (1979 rev.).)

(3) "Mere presence of a person at the scene of a crime and failure to take steps to prevent a crime, of course, is insufficient in itself to show that such person is an aider or abettor."

(4) "The proof must show not only aiding the actor but also sharing the criminal intent. However, the presence is evidence to be considered in determining whether one is an aider or abettor."

(5) "Presence may give encouragement, presence may give companionship, and the conduct both before and after the offense are circumstances from which one's participation in the criminal intent may be inferred."

Brown's complaint is that the latter instruction's language, " 'presence may give encouragement, presence may give companionship' erroneously enabled the jury to find guilt without finding more than mere presence."

The argument is unpersuasive. While we think the criticized language is awkward, and would better be left unsaid, elsewhere the jury were not only told (1) that "mere presence of a person at the scene of a crime ... is insufficient in itself to show that such person is an aider or abettor," but also (2) that the person must have acted "with knowledge of the unlawful purpose," and (3) that he must have shared "the criminal intent." The jury were patently not misled, and the trial court did not err.

III. Contention: "The trial court's instructions on aiding and abetting constituted reversible error because they allowed a determination of guilt without a finding that appellant intentionally aided the perpetrator, i. e., that he had the purpose of aiding Lucille Carson."

Here, Brown's reliance is upon the recent case of People v. Yarber, 90 Cal.App.3d 895, 912-917, 153 Cal.Rptr. 875. That authority holds (p. 916, 153 Cal.Rptr. 875): "The jury in the (circumstances of that case ) should have been instructed that a person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator, he intentionally aids, promotes, encourages or instigates by act or advice the commission of such crime." The trial court's instructions which we have quoted in part II above adequately fulfilled the requirement of People v. Yarber.

IV. Contention: "The trial court's permitting Inspector Corrales to give 'expert' testimony that appellant was guilty was reversible error."

"Although courts have not always used the same language, the decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as...