People v. Woods

• Decision Date: 24 August 1992
• Docket Number: No. C010320,C010320
• Citation: 11 Cal.Rptr.2d 231,8 Cal.App.4th 1570
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Barry Dewayne WOODS and John Willie Windham, Defendants and Appellants.

Page 231

11 Cal.Rptr.2d 231

8 Cal.App.4th 1570

The PEOPLE, Plaintiff and Respondent, v. Barry Dewayne WOODS and John Willie Windham, Defendants and Appellants.

No. C010320.

Court of Appeal, Third District, California.

Aug. 24, 1992.

Certified for Partial Publication ^*

Rehearing Denied Sept. 22, 1992.

Review Denied Nov. 25, 1992.

Central California Appellate Program, Mark E. Cutler, Executive Director, Cynthia Thomas, Staff Atty., Sacramento, under appointment by the Court of Appeal, and Marcia C. Levine, Truckee, for defendant and appellant.

Jeffrey J. Stuetz, San Diego, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Ward A. Campbell and Lisbeth Bellet, Deputy Attys. Gen., for plaintiff and respondent.

SCOTLAND, Associate Justice.

After their friend was shot by rival gang member Mayse Walker, defendants Barry Dewayne Woods and John Windham, along with several accomplices, set out to find Walker in an apparent effort to retaliate for the shooting. Wearing ski masks and armed with guns, they went to the apartment of Susan Allen and Trudy Johnson, two of Walker's acquaintances. After Woods beat up one of the women's neighbors, Woods and his cohorts forcibly entered the apartment. Windham waited outside as a lookout. At gunpoint, the intruders demanded to know Walker's whereabouts. They assaulted both women and shot Johnson, but Allen and Johnson were unable to tell them where they could find Walker. Then, after being warned that "someone said the police is coming," the intruders departed, taking with them two automobile tires Walker had stored at the apartment. Outside a nearby apartment complex, the assailants loaded the tires into their car. A few parking stalls away, Craig Chmelik and James McMahon were preparing to depart in Chmelik's Mustang. Noticing the pair, Woods drew a large handgun, loaded it, and fired six shots into the Mustang. McMahon was wounded, and Chmelik was killed. After the shooting, Woods and Windham went to a friend's house, where Woods hid the murder weapon and he and Windham apparently flushed bullet shells down the toilet.

Defendants were convicted of first degree murder of Chmelik (Pen.Code, § 187), attempted murder of McMahon (Pen.Code, §§ 187, 664), and assaults with firearms on Allen and Johnson (Pen.Code, § 245, subd. (a)(2)). Numerous enhancing allegations were charged and found true, including allegations that Woods used a firearm in the commission of the offenses (Pen.Code, § 12022.5, subd. (a)), Windham was armed with a gun (Pen.Code, § 12022, subd. (a)(1)), and Woods had served a prior prison term (Pen.Code, § 667.5, subd. (b)).

In the published portion of this opinion, we conclude the trial court erred in instructing the jury that Windham could not be found guilty of second degree murder as an aider and abettor if the jury determined that Woods, the perpetrator of the killing, was guilty of first degree murder. As we shall explain, under Penal Code section 31 an aider and abettor is liable vicariously for any crime committed by the perpetrator which is a reasonably foreseeable consequence of the criminal act originally contemplated by the perpetrator and the aider and abettor. It follows that an aider and abettor may be found guilty of a lesser crime than that ultimately committed by the perpetrator where the evidence suggests the ultimate crime was not a reasonably foreseeable consequence of the criminal act originally aided and abetted, but a lesser crime committed by the perpetrator during the accomplishment of the ultimate crime was such a consequence. Accordingly, even when necessarily included offense instructions are not required for the perpetrator because the evidence establishes that, if guilty at all, the perpetrator is Applying these principles to the facts of this case, we conclude the evidence raised a question whether the first degree murder of Chmelik was a reasonably foreseeable consequence of the armed assaults on Allen and Johnson which Windham aided and abetted. However, we find the evidence established beyond question that the necessarily included offense of second degree murder (i.e., an intentional but unpremeditated killing or a killing resulting from conduct inherently dangerous to human life) was a reasonably foreseeable consequence. Thus, the trial court had a duty to inform the jurors they could convict Windham of second degree murder as an aider and abettor even though they found Woods was guilty of first degree murder, but the court was not required to instruct on included offenses less than second degree murder.

guilty of the greater offense, the trial court has a duty to instruct sua sponte on necessarily included offenses for the aider and abettor if the evidence raises a question whether the greater offense is a reasonably foreseeable consequence of the criminal act originally contemplated and abetted, but would support a finding that a lesser included offense committed by the perpetrator was such a consequence. However, the trial court need not instruct on a particular necessarily included offense if the evidence is such that the aider and abettor, if guilty at all, is guilty of something beyond that lesser offense, i.e., if the evidence establishes that a greater offense was a reasonably foreseeable consequence of the criminal act originally contemplated, and no evidence suggests otherwise.

Due to the instructional error, Windham's murder conviction cannot stand. Because the evidence established that Windham's guilt as an aider and abettor was not less than second degree murder, we shall give the People the option of retrying him on the charge of first degree murder or accepting a reduction of the conviction to second degree murder.

In the unpublished portion of this opinion, we dispose of defendants' numerous other contentions. ¹ Only one of them has merit. While the trial judge was called away on military duty, another judge presided over the bifurcated portion of the trial on the allegation Woods had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). Because the replacement judge misinstructed the jury on the elements of said enhancement, the finding thereon must be reversed.

FACTS ^**

DISCUSSION

I

The prosecution's theory was that Windham aided and abetted Woods to commit the criminal acts of assaulting Allen and Johnson with firearms in order to coerce the victims into telling defendants where Walker was located so defendants could find and harm him in retaliation for the gang-related shooting of their friend. The prosecutor argued that, because the evidence was sufficient to establish Woods committed first degree murder when he killed Chmelik following the assaults on Allen and Johnson, and because the jury could find the first degree murder was a reasonably foreseeable consequence of the assaults with firearms on Allen and Johnson committed in an effort to locate Walker, Windham was liable as an aider and abettor for the first degree murder of Chmelik.

The trial court instructed the jury on assault with a firearm, murder in the first and second degree, and aider and abettor liability. Among other things, the court informed the jury that one who by act or advice aids, promotes, encourages or instigates the commission of a crime with knowledge of the unlawful purpose of the perpetrator and with the intent to encourage or facilitate the crime is guilty not only of the crime that to his knowledge the perpetrator contemplated committing, but During deliberations, the jury sent the trial court the following question: "Can a defendant be found guilty of aiding and abetting a murder in the second degree if the actual perpetrator of the same murder is determined to be guilty of murder in the first degree?" After discussing the matter with counsel, the trial court answered, "No."

                also for the natural and probable consequences of any criminal act he knowingly and intentionally aided and abetted.  (CALJIC Nos. 3.01, 3.02.)   The jury was told it had to determine whether the aider and abettor was guilty of the crime originally contemplated and, if so, whether other crimes charged were natural and probable consequences of the originally contemplated crime.  (CALJIC No. 3.02.)   Moreover, the jury was informed the aider and abettor is regarded as a principal in the crime "thus committed" by the person who directly perpetrated the crime and is "equally guilty thereof" provided the crime is a natural and probable consequence of the offense originally contemplated.  (CALJIC Nos. 3.00, 3.02.)
                

Windham contends the court's response misinstructed the jury. According to Windham, an aider and abettor may be convicted "of a different degree or lesser crime than the [perpetrator]" who commits a criminal act beyond that contemplated by the aider and abettor. In his view, the trier of fact may determine the ultimate offense committed by the perpetrator was not a reasonably foreseeable consequence of the criminal act aided and abetted but that an offense subsumed within the ultimate crime was such a consequence. Thus, the trier of fact could find the perpetrator guilty of the ultimate crime and convict the aider and abettor of a lesser offense.

Applied to the facts of this case, Windham's position is that the jurors could have found it was not reasonably foreseeable Woods would commit the premeditated killing of an innocent bystander, but it was reasonably foreseeable that Woods might commit the necessarily included offense of second degree murder, i.e., kill intentionally but without premeditation and deliberation or kill as a result of an intentional act dangerous to human life performed with knowledge of the danger and with conscious disregard for human life. Hence, if permitted to do so, the jurors could have found Windham guilty of second degree murder as an aider and abettor, despite the fact th...