People v. Perez

• Decision Date: 20 June 2005
• Docket Number: No. S111985.,S111985.
• Citation: 35 Cal.4th 1219,29 Cal.Rptr.3d 423,113 P.3d 100
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gerardo PEREZ, Defendant and Appellant.

29 Cal.Rptr.3d 423

35 Cal.4th 1219

113 P.3d 100

The PEOPLE, Plaintiff and Respondent, v. Gerardo PEREZ, Defendant and Appellant.

No. S111985.

Supreme Court of California.

June 20, 2005.

Michael Ian Garey, Santa Ana, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont, David Delgado-Rucci, Steven T. Oetting and Lise Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

WERDEGAR, J.

A defendant is arrested in possession of methamphetamine precursors he planned to sell. May the defendant be convicted of aiding and abetting the prospective buyer's possession of precursors with the intent to manufacture methamphetamine? We conclude he may not. In the alternative, may the defendant be convicted directly of possessing precursors with the intent to manufacture methamphetamine? (Health & Saf.Code, former § 11383, subd. (c)(2).)¹ Again, we conclude he may not. We therefore affirm the Court of Appeal's reversal of defendant Gerardo Perez's section 11383(c)(2) conviction.

PROCEDURAL AND FACTUAL BACKGROUND

An undercover police officer observed a transaction consistent with drug-related activities between individuals in Perez's car and those in a van. The police initiated a traffic stop. During a consensual search of Perez's car, an officer found a small bag containing marijuana and two plastic shopping bags, one containing approximately 10 pounds of red phosphorus and the other approximately five pounds of powdered iodine. Officers also found a pair of jeans stained with a yellow dye, later determined to be hydrogen iodide, a component of hydriodic acid. Perez had $717 in cash on his person.

At trial, a forensic scientist testified that one method of manufacturing methamphetamine involves combining a common cold medicine, pseudoephedrine, with hydriodic acid. In turn, hydriodic acid can be produced by mixing red phosphorus and iodine with water. When asked why a person would possess red phosphorus and iodine together, the expert replied, "I see no other purpose for it than to make hydriodic acid." An experienced narcotics officer testified that it is the rule, rather than the exception, for each of the ingredients used in methamphetamine manufacturing to be provided by a different source.

Perez did not testify at trial. At the scene, he claimed ownership of the hydrogen-iodide-stained jeans. In a statement to police, he admitted the chemicals found in the car belonged to him. He told officers that he purchased the chemicals for $350 from a woman known to him as "Vicky," intending to take them to Pasadena to sell for $400 to a man known to him as "Antonio." He had purchased these chemicals in similar amounts on one other occasion and knew they were used in the manufacture of methamphetamine.

Perez was charged with possessing hydriodic acid precursors with the intent to manufacture methamphetamine. (§ 11383(c)(2).)² The People proceeded under two theories: that Perez was liable as a direct perpetrator because he possessed the precursors and personally intended to manufacture methamphetamine or, in the alternative, that Perez was liable as an aider and abettor because he possessed the precursors with the intent to sell them to another person to be used in manufacturing methamphetamine. During closing argument, the prosecution argued, over Perez's objection, that aiding and abetting liability required proof only that Perez possessed the hydriodic acid precursors with the knowledge that someone else would use them to manufacture methamphetamine. The trial court prevented defense counsel from arguing that liability for aiding and abetting required proof of a completed attempt or offense, and denied a proposed special instruction on this point, ruling that "[t]here's no need for a completed crime under the statute." Instead, in accordance with the prosecution's theory of the case, the court gave CALJIC Nos. 3.00 and 3.01, standard instructions on aiding and abetting.³ A jury convicted Perez of violating section 11383(c)(2).

The Court of Appeal reversed. It held that aiding and abetting liability required proof that a predicate crime had been committed separate and apart from the actions of the aider and abettor, and that in the absence of proof of such a crime the trial court erred by instructing the jury on aiding and abetting.

We granted review to clarify the scope of aiding and abetting liability, as well as the scope of section 11383. Can conviction on an aiding and abetting theory stand absent proof of a crime by a second party? If not, does section 11383(c)(2) directly criminalize possession of controlled substances with the intent that someone else manufacture methamphetamine? Put differently, is possession of hydriodic acid precursors with the intent that someone else use them to manufacture methamphetamine criminal, under either an accomplice or direct liability theory?

DISCUSSION

I. Accomplice Liability: Aiding and Abetting

We consider first whether one can be guilty of aiding and abetting absent proof of criminal conduct by some direct perpetrator. We begin with the plain language of Penal Code section 31, which governs aiding and abetting liability. The statute extends criminal liability as principals in a crime to "[a]ll persons concerned in the commission of a crime," and all those who "aid and abet in its commission." As this language makes plain, the commission of a crime is a prerequisite for criminal liability. If the defendant himself commits the offense, he is guilty as a direct perpetrator. If he assists another, he is guilty as an aider and abettor. It follows, therefore, that for a defendant to be found guilty under an aiding and abetting theory, someone other than the defendant must be proven to have attempted or committed a crime; i.e., absent proof of a predicate offense, conviction on an aiding and abetting theory cannot be sustained.

We analyzed aiding and abetting liability in detail in People v. McCoy (2001) 25 Cal.4th 1111, 108 Cal.Rptr.2d 188, 24 P.3d 1210. There, we explained that an aider and abettor's guilt "is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state." (Id. at p. 1117, 108 Cal.Rptr.2d 188, 24 P.3d 1210, italics omitted.) "`[O]nce it is proved that "the principal has caused an actus reus, the liability of each of the secondary parties should be assessed according to his own mens rea."'" (Id. at p. 1118, 108 Cal. Rptr.2d 188, 24 P.3d 1210, quoting Dressler, Understanding Criminal Law (2d ed.1995) § 30.06[C], p. 450.) Thus, proof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea—knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus—conduct by the aider and abettor that in fact assists the achievement of the crime. (See McCoy, at p. 1117, 108 Cal. Rptr.2d 188, 24 P.3d 1210.)

Consistent with these principles, we have explained that "[a]ccomplice liability [including aider and abettor liability] is `derivative,' that is, it results from an act by the perpetrator to which the accomplice contributed." (People v. Prettyman (1996) 14 Cal.4th 248, 259, 58 Cal.Rptr.2d 827, 926 P.2d 1013, italics added.) This description squares with the historical understanding of the doctrine, recounted by Judge Hand in United States v. Peoni (2d Cir.1938) 100 F.2d 401. As early as the 14th century, English law punished those who "`procured, counselled, commanded or abetted' the felony." (Id. at p. 402, quoting 2 Pollock & Maitland, The History of English Law Before the Time of Edward I (2d ed.1909) p. 509.) But such liability hinged on the commission of a crime; thus, "[t]he man who has commanded or counselled a murder has committed no crime until there has been a murder; but when the murder is committed he is guilty of it." (2 Pollock & Maitland, at p. 509.) Though the subsequent development of the law of attempt has amended this principle by allowing liability for substantial steps that fall short of achieving the criminal end, it has not diluted the requirement that there be a second actor engaged in criminal conduct whom the aider and abettor aids and abets.

The People argue that aiding and abetting liability does not require proof of a completed crime. They further contend the Court of Appeal erred by relying on People v. Parra (1999) 70 Cal.App.4th 222, 82 Cal.Rptr.2d 541, which, they assert, misread our decision in People v. Montoya (1994) 7 Cal.4th 1027, 31 Cal.Rptr.2d 128, 874 P.2d 903.

The first half of this argument is correct: proof of an attempt by a direct perpetrator is sufficient for purposes of aiding and abetting liability. If a direct perpetrator is thwarted and guilty only of an attempt, an aider and abettor may still be guilty of aiding and abetting the attempt. (See, e.g., People v. Lee (2003) 31 Cal.4th 613, 623-624, 3 Cal.Rptr.3d 402, 74 P.3d 176; People v. Mendoza (1998) 18 Cal.4th 1114, 1123, 77 Cal.Rptr.2d 428, 959 P.2d 735.)

The second half of the argument is incorrect: nothing in People v. Parra, supra, 70 Cal.App.4th 222, 82 Cal.Rptr.2d 541, or in the Court of Appeal's decision below required proof of a completed crime. In Parra, at page 227, footnote 5, 82 Cal. Rptr.2d 541, the Court of Appeal rejected the notion that a defendant could be convicted of aiding and abetting possession of cocaine with intent to sell where the defendant possessed cocaine with the intent to transfer it to a second person who would sell it. The Court of Appeal reasoned that aiding and abetting liability could not apply because "the crime of the alleged recipient/seller was never completed and the liability of aider and abettor attaches only...