People v. Rogers

• Citation: 172 Cal.App.3d 502,217 Cal.Rptr. 809
• Decision Date: 13 September 1985
• Docket Number: Cr. 13126
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Wilbert ROGERS, Joseph Vann, Jr., Defendants and Appellants.

Page 809

217 Cal.Rptr. 809

172 Cal.App.3d 502

The PEOPLE, Plaintiff and Respondent, v. Wilbert ROGERS, Joseph Vann, Jr., Defendants and Appellants.

Cr. 13126.

Court of Appeal, Third District, California.

Sept. 13, 1985.

Certified for Partial Publication.

As Modified Oct. 7, 1985.

Review Denied December 31, 1985.

Chaset & Dumas, Gretchen Dumas and Laurence G. Chaset, San Francisco, under appointment by the Court of Appeal, for defendants and appellants.

John K. Van de Kamp, Atty. Gen., Willard F. Jones and Roger E. Venturi, Deputy Attys. Gen., for plaintiff and respondent.

BLEASE, Associate Justice.

Wilbert Rogers and Joseph Vann, Jr. appeal from convictions of attempted murder of the first degree (Pen.Code, §§ 187, 189, 664), attempted murder of the second degree (Ibid.), and robbery (Pen.Code, § 211); findings of firearm use (Pen.Code, §§ 12022 subd. (a), 12022.5) and, in Rogers' case, intentional infliction of great bodily harm (Pen.Code, § 12022.7). Both defendants claim multiple errors in the trial. We will affirm the judgments of conviction.

The issue we consider in the published portion of this opinion ¹ is whether Beeman error (People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318), as contained in CALJIC No. 3.01 (1980 rev.) (hereafter CALJIC No. 3.01) given here, i.e. the failure to explicitly instruct the jury that the offense of aiding and abetting requires an intent to facilitate the criminal offense aided, compels a reversal of defendant Vann's convictions of attempted murder. As we will explain, the validity of the murder convictions depends upon the validity of the robbery conviction and the validity of the robbery conviction depends upon the aiding and abetting instruction. We hold, for reasons which we will develop, that, as applied to the facts of this case, CALJIC No. 3.01 conveyed the intention required by Beeman. Thus its use in this case, though generally deemed error by Beeman, cannot have been prejudicial to defendant Vann. The convictions predicated upon it will be affirmed.

FACTS

We begin with the account of Carl and Ruby Yerger. The Yergers were at home at about 8:30 p.m. on February 16, 1984. Ruby Yerger was in bed asleep. The Yergers' dog, chained outside the house, began barking. Carl Yerger looked out the kitchen window. He saw Anthony Perkins ² and defendant Rogers. Yerger knew Perkins, who had been by earlier in the day with defendant Vann.

Yerger opened the door. Perkins walked in with Rogers behind him and the trio continued into the living room. Perkins asked to borrow some money. Yerger hesitated because Perkins appeared drunk. Rogers pressed a small caliber pistol hard against Yerger's ribs and demanded that Yerger surrender money, "dope", and any other valuables. Yerger asked Perkins to get Rogers "off of me." Perkins looked at the gun and left the room. Ruby Yerger awoke to see Perkins depart. There was a mirror in her bedroom that permitted a view of a portion of the living room through the partially open door.

Defendant Vann came quickly into the living room. Vann said to Rogers, "Get the gun, man, get the gun." Then he said, "I'll get it." He reached over and removed a .38 caliber pistol from Yerger's pocket. Vann pointed the pistol at Yerger and told him to do what Rogers said.

Rogers threatened Yerger, implying he would be shot if he were not compliant. Rogers ordered Yerger to get down on his After he was shot, Carl Yerger saw Rogers pick up Ruby Yerger's purse that was lying on a couch and open it. Yerger was getting up when Vann hit him on the head with the .38 caliber pistol and shot him in the ear. Vann then left the scene. As Vann was departing, Rogers shot Ruby Yerger, who was still lying in bed, from the bedroom doorway. Rogers then fled. Carl Yerger retrieved another pistol he kept hidden in a boot at the end of his couch and pursued the attackers; but when he got outside they were gone. He has not seen his .38 caliber pistol since. Ruby Yerger testified that the contents of her purse were missing.

knees but Yerger would not. Rogers pointed his pistol at Yerger's head. Carl Yerger testified he moved away from Rogers and that Rogers shot him, once in the jaw and once in the arm. Ruby Yerger described her husband's movement as scuffling or struggling, but said he was not struggling for Roger's gun.

Defendants Rogers and Vann testified to a different scenario. They had gone to Carl Yerger's house to buy cocaine. Vann dropped off Perkins and Rogers and drove down the street to park. Rogers said that after he and Perkins entered the house and initiated the drug purchase Carl Yerger became angry. He chastized Perkins for bringing Rogers along. He pulled out a gun and chased Perkins out of the house. Rogers ran into the bedroom, hoping to find another exit. When Carl Yerger came into the bedroom Rogers jumped him. They struggled and one shot was fired in the bedroom. The struggle continued back into the living room.

Vann testified he met Perkins running out of the house. Perkins yelled that Carl Yerger had pulled a gun. Vann ran into the house and saw the struggle. He pulled Yerger's gun from his pocket and set it on the table. Yerger continued to fight so Vann picked up the pistol again and hit him on the head. Vann's finger was on the trigger and the pistol fired. Yerger was falling and Vann yelled to Rogers that they should flee.

Rogers testified that when Vann hit Carl Yerger, Yerger dropped the pistol that he and Rogers had been struggling over. Rogers picked it up. As he was leaving Yerger was getting up with another pistol in his hand. Rogers testified he then shot Yerger twice in self-defense.

DISCUSSION

I-III ³

IV

Vann was tried on the theory that he aided and abetted the robbery and that the attempted murders of the Yergers were the natural and probable consequences of the robbery. Thus, we proceed on the assumption that the jury found Vann guilty on these theories. That makes the validity of the aiding and abetting instruction critical to his convictions for these offenses.

The jury was instructed in the language of CALJIC No. 3.01 that "[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." People v. Beeman, supra, 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318, holds that it is error to give such an instruction because "the weight of authority and sound law require proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (Id., at pp. 556 and 560, 199 Cal.Rptr. 60, 674 P.2d 1318; original emphasis.) ⁷

Vann contends that reversal of his convictions of attempted murder is compelled because the instructional error permitted the jury to convict him without a determination that he intended to facilitate Rogers' attempts to murder the Yergers. The contention has no merit. The validity of the murder convictions does not depend on the intent he poses. It rests on the finding that the murder convictions were the natural and probable consequences of the robbery which he aided and abetted.

However, this conclusion depends upon the validity of the robbery conviction and the validity of the robbery conviction depends upon the effect of the Beeman error, an issue we now address.

A.

We take as a factual predicate for our inquiry that the jury followed the erroneous instruction, applied CALJIC No. 3.01, and found that Vann aided Rogers and that at the time Vann acted he knew that Rogers was perpetrating a robbery. We augment these facts by adopting the most favorable assumption for Vann, that he acquired knowledge of Rogers' criminal purpose after he entered the Yergers' living room.

Vann's undisputed acts aiding the robbery were taking Carl Yerger's pistol from him and subsequently striking him with it. As we will show, this voluntary conduct, occurring during the robbery with knowledge of Rogers' criminal purpose, satisfies a criterion of intention (to facilitate the crime) impliedly recognized by Beeman. (Cf. People v. Tewksbury (1976) 15 Cal.3d 953, 960, 127 Cal.Rptr. 135, 544 P.2d 1335.) Since CALJIC No. 3.01 embodies this criterion (absent certain ambiguities to be examined) it could not have misled the jury to Vann's prejudice.

B.

Beeman left open the question whether the instructional error in CALJIC No. 3.01 is reversible per se. (35 Cal.3d at pp. 561-563, 199 Cal.Rptr. 60, 674 P.2d 1318.) The issue has been the subject of numerous appellate decisions, most of which have been depublished or granted review by the California Supreme Court. (See People v. Acero (1984) 161 Cal.App.3d 217, 228, fn. 9, 208 Cal.Rptr. 565.) In Acero the court held that the error was reversible premised on the holding in People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826. The foundation of the premise is contained in two assertions. Garcia said: "We observed [in Beeman ] that although the error arising from the failure to require intent 'is not identical to a conclusive presumption or to placing the burden of persuasion on the defendant, it is just as effective--if not more effective--in removing the issue of intent from the jury's consideration.' " (Id., at p. 554, fn. 9, 205 Cal.Rptr. 265, 684 P.2d 826.) Garcia also said that "instructions or omissions which deny a defendant his right to have the jury decide each element of a charged offense are necessarily reversible error." (Id., at pp. 549-550, 205 Cal.Rptr. 265, 684 P.2d 826.) It follows that if CALJIC No. 3.01 removes the element of intent from jury consideration, the error is reversible.

Not all instructional error results in removal of intent from jury consideration, as when intent is not put in issue, is conceded, or is covered by other...