People v. Green

• Decision Date: 24 March 1982
• Docket Number: Cr. 20727
• Citation: 181 Cal.Rptr. 507,130 Cal.App.3d 1
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Leroy GREEN and Danny Lee Green, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 507

181 Cal.Rptr. 507

130 Cal.App.3d 1

PEOPLE of the State of California, Plaintiff and Respondent, v. Leroy GREEN and Danny Lee Green, Defendants and Appellants.

Cr. 20727.

Court of Appeal, First District, Division 2, California.

March 24, 1982.

Rehearing Denied April 23, 1982.

Hearing Denied May 27, 1982.

Donna M. Veneruso, San Francisco (Court-appointed), for defendant and appellant Danny Green.

Quin Denvir, State Public Defender, Allan H. Keown, Deputy State Public Defender, San Francisco, for defendant and appellant Leroy Green.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, William D. Stein, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

ROUSE, Acting Presiding Justice.

Defendants, Leroy Green and his brother, Danny Green, were each charged by a separate information with two counts of sale of heroin, in violation of section 11352 of the Health and Safety Code. The first sale was alleged to have occurred on June 6, 1978, and the second on July 11, 1978. Following a joint trial, Danny was convicted of both counts charged, and Leroy was convicted of the June 6 sale and acquitted of the July 11 sale. On appeal, Leroy contends that the trial court erred in instructing the jury on aiding and abetting, and each defendant contends that the court erred in denying their joint motion for a new trial, which was based on grounds of newly discovered evidence. We find no error and, accordingly, affirm the judgments.

On June 6, 1978, Clark Edwards, an undercover agent for the federal Drug Enforcement Administration (DEA), and an informant, Reggie Berry, went to Leroy Green's residence where Berry introduced Agent Edwards to Leroy. Edwards asked Leroy about the availability of white heroin. Leroy responded that he had only about three grams of the drug in his possession but that he could obtain brown heroin, a less expensive drug, in one-ounce quantities from his source if Edwards would advance him the money. Edwards declined, suggesting instead that Leroy contact his brother Danny.

At Leroy's request, Agent Edwards and Berry left for about one hour and then rejoined Leroy. Danny arrived some 15 minutes later and was introduced to Edwards who, in Leroy's presence, discussed purchasing heroin from Danny. Upon being alerted by a neighborhood youth to police presence in the area, Edwards and Danny moved the negotiations to another site where Danny ultimately sold slightly less than one ounce of brown heroin to Agent Edwards for $1,400, which sum was paid in prerecorded funds. Leroy was not present at the new site where the transaction took place. ¹

The second heroin sale, for which only Danny was convicted, took place on July 11, 1978, and was similar in many respects to the first sale. As before, Agent Edwards (this time unaccompanied by informant Berry) met Leroy at the same address, declined to accept an alleged offer from Leroy, ² asked for and was taken, by Leroy, to see Danny, and, outside of Leroy's presence, purchased just under one ounce of brown heroin from Danny for $1,200.

The Jury Instructions

Leroy Green was convicted as a co-principal for violating section 11352 of the Health and Safety Code on the theory that he aided and abetted his brother Danny's June 6 sale of heroin to Agent Edwards. At trial, the court instructed the jury on the law of aiding and abetting by reading two CALJIC instructions. The first, CALJIC No. 3.00 (1979 Rev.), defines principals: "The persons concerned in the commission ... of a crime who are regarded by law as principals in the crime thus committed ... and equally guilty thereof include: [p] ... 2. Those who, with knowledge of the unlawful purpose of the one who does directly and actively commit ... the crime, aid and abet in its commission ...." That instruction was followed by CALJIC No. 3.01 (1979 Rev.), which defines aiding and abetting: "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...."

Leroy contends that the trial court erred in giving the quoted instructions because they effectively removed from the jury's consideration the issue of intent, a separate and necessary element of aiding and abetting. Also, he claims that the instructions created a mandatory presumption of intent which violated his due process right under the federal Constitution.

We agree that the court's instructions removed any separate consideration of intent from the factfinder. The CALJIC instructions, when read together, allowed the jury to find Leroy guilty as a principal in the crime once they found that he simultaneously (1) had knowledge of Danny's unlawful purpose and (2) aided, promoted, encouraged or instigated commission of the crime.

We disagree, however, with the assertion that removing consideration of such intent from the jury violated Leroy's due process rights as guaranteed by the federal Constitution. Such due process considerations come into play only as to the factfinder's determination of any "fact necessary to constitute the crime" with which the defendant is charged. (In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368; Sandstrom v. Montana (1979) 442 U.S. 510, 520, 99 S.Ct. 2450, 2457, 61 L.Ed.2d 39 ("whether the crime was committed purposely or knowingly is a fact necessary to constitute the crime of deliberate homicide"); People v. Burres (1980) 101 Cal.App.3d 341, 346, 161 Cal.Rptr. 593 ("intent necessary to commit an assault") (emphases added).)

Under California case law, the only facts necessary to convict a person of aiding and abetting are (1) that the person aid in the commission of a crime (2) with knowledge of the perpetrator's unlawful purpose or intent. ³ Section 31 of the Penal Code defines principals in a crime as "[a]ll persons concerned in the commission of a crime, whether it be felony or misdemeanor, and 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 ...." (Emphasis added.) In an early decision, the California Supreme Court examined the requisite intent for aiding and abetting under the statute: "The word 'aid' does not imply guilty knowledge or felonious intent, whereas the definition of the word 'abet' includes knowledge of the wrongful purpose of the perpetrator and counsel and encouragement in the crime." (People v. Dole (1898) 122 Cal. 486, 492, 55 P. 581.) From this we conclude that, in addition to the mere act of aiding, there is an intent requirement necessary to convict but that such intent is implicit in the act of aidingwith knowledge of the perpetrator's guilty state of mind. No further proof of the aider and abettor's intent is required. The California Supreme Court has since reinforced this principle, stating that an aider and abettor need not have had the specific intent to commit a robbery: that the intent requirement is satisfied if the defendant, prior to its commission, realized that a robbery was being planned and that he was facilitating its commission. (People v. Tewksbury (1976) 15 Cal.3d 953, 960, 127 Cal.Rptr. 135, 544 P.2d 1335.) Another court stated the same principle in different terms when faced with the contention, as in this case, that the court erred in failing to instruct the jury that one must have a specific intent to commit the crime which one is charged with aiding and abetting: "This contention is untenable. There is no question that one who does the act constituting the crime [charged] is entitled to an instruction on specific intent. [Citation.] But it is the knowledge of the wrongful purpose of the actor plus the encouragement provided by the aider and abettor that makes the latter equally guilty. Although the guilt of the aider and abettor is dependent upon the actor's crime, the criminal intent of the aider and abettor is presumed from his actions with knowledge of the actor's wrongful purpose. [Citations.]" (People v. Ellhamer (1962) 199 Cal.App.2d 777, 781-782, 18 Cal.Rptr. 905.)

One court has stated the principle in reverse. In People v. Standifer (1974) 38 Cal.App.3d 733, 113 Cal.Rptr. 653, Standifer, a defendant charged with murder as an aider and abettor, was allowed an instruction which told the jury that in order to convict him, they had to find that he had the same intent--intent to kill--as the perpetrator. The court noted, "The instructions gave Standifer more than he was legally entitled to. The only intent the jury was obligated to find in respect of Standifer was his intention to knowingly aid Nicholas in the commission of a felony." (Id., at p. 744, 113 Cal.Rptr. 653.)

Finally, we call attention to a decision of this court, People v. Ott (1978) 84 Cal.App.3d 118, 148 Cal.Rptr. 479, which presents a situation strikingly similar to this case. There, defendant David Wally Ott, who had been convicted of selling drugs in violation of section 11379 of the Health and Safety Code on the theory that he aided and abetted in a drug sale, challenged the court's instructions to the jury. Ott contended that CALJIC No. 3.01 (1974 Rev.) ⁴ was inadequate in that it failed to specify that, in order to be criminally liable as an aider and abettor, one must not only have knowledge of the perpetrator's unlawful purpose but must also share his criminal intent. We noted that, while several California cases contained language to that effect, "an examination of the authority upon which the proposition relies indicates that it is the knowledge of the actor's wrongful purpose--rather than his intent--which must be shared." (Id., at p. 129, 148 Cal.Rptr. 479; emphasis added.) In words equally apposite to the case before us now we further stated: "[A]ppellant's insistence that the...