[No. S053965. April 08, 1997.]
THE PEOPLE, Plaintiff and Respondent, v.
MICHAEL ROBERT PULIDO, Defendant and Appellant.
Counsel
C. Elliot Kessler, Attorney for Michael Robert Pulido, Defendant and Appellant.
John T. Philipsborn, Amicus Curiae CACJ Attorney on behalf of Michael Robert Pulido, Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, George F. Hindall III, Deputy Attorney General, Allan Yannow, Deputy Attorney General, Attorneys for Plaintiff and Respondent.
OPINION OF THE HONORABLE JANICE R. BRENMAN,
Concurring and Dissenting.
Defendant appeals from a ruling by the Court of Appeals affirming his conviction of first-degree murder (Cal. Penal Code § 187), with a finding of special circumstances as an aider and abettor in a robbery (Cal. Penal Code § 190.2 (West 1997)). We are called upon to decide whether a trial court judge has a sua sponte duty to instruct the jury that a defendant must form the intent to aid and abet a robbery before a killing occurs in order to be found guilty of felony-murder. If the court has such a duty, is its failure to instruct harmless or prejudicial error. We find that the court has no duty to instruct that a defendant cannot be guilty of felony-murder unless he forms the intent to aid and abet the robbery prior to the killing. Furthermore, if such an instruction is found to be appropriate, we find that its omission in this case constitutes harmless error. Judgment of the Court of Appeals affirmed.
FACTS AND PROCEEDINGS
Summary and Proceedings
Defendant was found guilty by a jury of first-degree murder, robbery, automobile theft, and receiving stolen property, in Superior Court, San Mateo County, No. SC 29805, Walter H. Harrington, Jr., J., and he appealed. The Court of Appeal, J. Stein, affirmed in part and reversed in part ruling that: (1) defendant did not have to have knowledge of the perpetrator’s unlawful purpose and form intent to commit, encourage, or facilitate commission of robbery prior to killing to be convicted of felony-murder as an aider and abettor; and (2) defendant could not be convicted of both automobile theft and receiving stolen property based on the same automobile.
Moreover, defendant contends the court had a sua sponte duty to instruct the jury that he could not be guilty of felony-murder as an aider and abettor unless he had knowledge of the perpetrator’s purpose, and formed the intent to commit, encourage or facilitate the commission of robbery prior to the killing. Defendant deduces that if the instruction were given he could only have been found guilty of robbery and thus, he appeals.
Facts
On May 24, 1992, at about 3:00 in the morning, it was most calm before the storm in San Mateo, California. Ramon Flores was murdered in cold blood in the convenience store of the Shell gas station where he was working as a cashier. He was alone when the killer fired a single .45 caliber bullet into Flores’s face, which passed through his brain, severed his spinal cord, lodged at the back of his neck and killed him within seconds. Flores’s body was not discovered until several hours later, at about 5:30 a.m., by a customer.
Defendant’s fingerprints were found on an unopened coke can which was abandoned on the counter adjacent to where the gunman was most likely positioned. His prints also smothered the cash register which was removed from the convenience store at the time of the killing and abandoned in some bushes in an opulent neighborhood of San Mateo. Defendant repeatedly conveyed to his uncle, Michael Aragon, that the Shell store would be an easy place to rob. Ultimately, defendant attempted to shift the blame for the killing onto his uncle, yet no prints of Aragon were found on these items. Defense offered no explanation for this lack of evidence.
Once investigation commenced later the same day, defendant had just departed from attending a picnic with his uncle and his uncle’s girlfriend when he crashed his car on highway 280. Defendant abandoned the vehicle, yet remembered to grab his gun first. He failed however, to grab four bullets with the same ejector marks as the cartridge found in the gas station which police later discovered in the wreckage. Aragon assisted defendant in dismantling and disposing of the weapon.
Defendant was arrested for auto theft on June 06, 1992, after the police ran a check on the car driven by defendant and verified it was the stolen Honda Accord for which they were searching. In an effort to avoid jail, defendant volunteered to share information about a robbery. He advanced many versions of his improvised tale. Initially, defendant denied Aragon’s involvement, yet attempted to displace any and all culpability onto his uncle at a later time. Thereafter, defendant told police the crimes were committed by an unknown Carlos Vasquez, and then implicated Eduardo Alarcon, his mother’s husband. After being arrested for murder, defendant admitted he was at the station when a Polynesian male shot the cashier. He claims he left the station but returned out of concern for the wounded employee, and that it was at that instant when he inadvertently touched the register, leaving a trail of prints. Defendant advances that he disposed of the register for fear of being blamed for the crime.
At trial, defendant gave a different story once again and confessed that his other tales were all lies. He testified he was in the car while Aragon killed Flores and that he remained there, ignorant of the crimes being committed. He also testified he heard voices which prompted him to enter the store only to find Flores with blood spurting out of his face. Defendant would like the court to believe that he did not form the intent to aid and abet robbery until after his uncle shot Flores in cold blood. The jury found him guilty on all counts, and defendant was sentenced to life in prison without the possibility of parole.
DISCUSSION
Felony-murder Liability
The felony-murder doctrine establishes guilt for murder in the first degree where a defendant’s conduct brings about the death of another in the commission, or attempted commission of a specific felony. Each state applies the doctrine differently. Some states emphasize foreseeability of a killing during the commission of the specific underlying felony as the foundation for attributing the rule to a particular crime. Other states emphasize causation of death in relation to the underlying felony, and still others highlight the time frame during which a killing may occur as a consideration in determining liability. Wayne R. LaFave and Austin W. Scott, Jr., Handbook on Criminal Law, West Publishing Company, § 71, p. 545 (1972). If several criminals participate in the commission of a felony, liability often turns on their criminal status. For instance, depending on whether he is an aider and abettor, a co-conspirator, or an accessory after the fact, the law deviates with regards to criminal liability.
In California, an aider and abettor to robbery is subject to felony-murder since murder which is committed in the perpetration of, or attempted perpetration of robbery, is guilty of first-degree murder. (Cal. Penal Code § 189 (West 1997)). In People v. Chavez, the court rejected any “technical inquir[ies] concerning whether there has been completion, abandonment or desistance of the felony before the homicide has been completed.” Chavez, 37 Cal.2d 656, 669 (1951). Further, the court expressed that there are “no requirements that the homicide occur while committing or while engaged in the felony, or that the killing be a part of the [underlying felony], other than that the two acts be part of one continuous transaction.” Id. at 670. Therefore, time is not, and should not, be an issue in determining felony-murder liability when the intent to commit the underlying felony clearly exists regardless of when intent developed as long as it formed during the commission of the robbery. In fact, if the intent arouses immediately after seeing that a potential victim has been removed from the criminal’s sphere of fear, by way of murder committed by the criminal’s partner, liability should be strictly enforced and not pranced around as defense counsel does here.
Aider and Abettor Liability
I respectfully dissent with regard to limiting liability for aiders and abettors to felony-murder, since doing so initiates destruction of the felony-murder rule. I decline to proclaim that the doctrine fails to serve its purpose. On the contrary, felony-murder is a powerful deterrent to criminals desirous of committing felonious acts which carry with them a high probability of killing. An aider and abettor is liable for foreseeable offenses and is directly liable for all events arising out of the crime he aids and abets. (Cal. Penal Code § 31 (West 1997)). Felony-murder liability turns on participation in the underlying crime, thus defendant’s liability is grounded on the fact that he aided and abetted an inherently dangerous felony which is likely to produce an unreasonable risk of death. See People v. Berryman 6 Cal.4th 1085 (1993). Moreover, when defendant witnesses the victim with blood spurting out of his face, lying on the floor dead and subsequently forms the intent to aid and abet, he ratifies all events arising out of the robbery and thereby imputes culpability for murder in the first-degree onto himself.
In defining the scope of liability for aiders and abettors when charged with felony-murder, Cooper requires intent be formed while carrying away the loot. People v. Cooper, 53 Cal.3d 1158 (1991). The murder in this case occurred while carrying away the cash register, and thus defendant is correctly identified as an aider and abettor to robbery. Cooper defines the duration of robbery “for purposes of determining” whether aider and abettor liability continues “until all acts constituting robbery have ceased” and not until all acts constituting murder have ceased. Id. at 1158. “The asportation, the final element of … robbery, continues so long as the stolen property is being carried away to a place of temporary safety.” Id. at 1158 (emphasis added). Therefore according to Cooper, the determinative factor for liability turns on whether the stolen property has been taken to a place of temporary safety. The crime scene is hardly a place of safety.
Defense counsel argues that People v. Esquivel is the proper case to apply for determining liability. Esquivel, 28 Cal.App.4th 1386 (1994). Although it is a robbery-murder case, Esquivel discusses aiders and abettors as akin to co-conspirators which is a misjudged Cooper interpretation. Also, Esquivel states that “Cooper established the extent of an aider and abettor’s liability for a robbery based on his participation at any time before the crime is completed.” Id. at 1395. Cooper addresses liability based on the underlying felony, not the murder. To determine liability based on the murder instead of the underlying crime defies the felony-murder doctrine and is an incorrect interpretation of Cooper. Unfortunately, however, this misinterpretation is precisely where Esquivel’s fault lies when it says that “the acts constituting murder ceased when the victim was killed, even if the robbery was still ongoing.” Id. at 1395. If an aider and abettor is liable for robbery, they are “also liable for killings perpetrated during the robbery under the felony-murder rule.” People v. Anderson, 223 Cal.App.3d 1646, 1655.
Defense counsel suggests that defendant was an accessory after the fact which is defined as “every person who, after a felony has been committed, harbors, conceals, or aids a principal in such felony, with the intent that such principal may … escape … having knowledge that said principal has committed such felony … is an accessory to such felony.” (Cal. Penal Code
§ 32 (West 1997)). The historical treatment of an accessory after the fact includes “[a] person who facilitates the escape of a fleeing felon, but who had no involvement in the commission of the felony.” Cooper, 53 Cal.3d 1158. Defendant’s conduct cannot be labeled an accessory after the fact.
Defense counsel argues that defendant may be classified as a co-conspirator pursuant to Esquivel when it wrongfully adopts the blending of co-conspirators with aiders and abettors asserting that since “a conspirator cannot be held liable for a substantive offense committed pursuant to the conspiracy if the offense was committed before he joined the conspiracy …, an aider and abettor should not be held liable for a homicide committed before he became an accomplice.” Esquivel 28 Cal.App.4th at 1399. It is irrelevant and thus not an issue whether an aider and abettor should be held liable in the same way that a co-conspirator is, since the principles governing the two classifications of criminals are distinguishable. Furthermore, defense counsel argues defendant was under duress. It is inconceivable to be a conspirator by force since a conspiracy requires an “express agreement between two or more persons which constitutes the act and the intent to thereby achieve an unlawful objective.” LaFave Handbook on Criminal Law § 71 at 502.
Deeply rooted in our legal tradition is the propensity that the more purposeful the conduct, the more atrocious the offense, and, therefore, the more stringently it ought to be adjudged. This tradition is reflected in felony-murder liability which has long been established to include aiders and abettors. Defendant’s intent whether a moment before or a moment after the murder is irrelevant in diagnosing culpability under the felony-murder doctrine. Particularly because his “participation in the felony was major” (i.e.: his gun, his fingerprints, videotape of him at the robbery-murder scene, etc.,…) and his “mental state was one of reckless indifference” toward human life, felony-murder is the appropriate standard. Tison v. Arizona, 481 U.S. 137 (1987). The United States Supreme Court held that the Eighth Amendment of the Federal Constitution does not prohibit “death penalty as disproportionate in the case of a defendant whose participation in a felony that results in murder is major and whose mental state is one of reckless indifference”, nor is it nonconforming to affirm defendant’s conviction in the case at hand. Id. at 137. Considering that both the murder and the robbery were concurrent, and more specifically within moments of each other, the precise moment of defendant’s formation of intent is irrelevant. If we are to uphold the rule of felony-murder, liability must not be limited with regard to aiders and abettors.
Jury Instructions
Sua Sponte
Defense counsel objects to the California Jury Instruction, Criminal (CALJIC) No. 8.27, which applies felony-murder to aiding and abetting, suggesting there is no evidentiary theory on which defendant could be found an aider and abettor.2 The court overruled this objection and rightfully so. The prosecution advanced theories that defendant was either the shooter or the principal. Defense counsel suggested defendant could only be found guilty as an accessory after the fact. Prosecution responded to this contention by stating that even if the jury believed defendant was a lookout, he would still be an aider and abettor. Furthermore, the theory that defendant was an accessory after the fact was not substantiated by evidence; defendant arrived at the convenience store with his uncle. Likewise, defendant left the crime scene with him and spent the afternoon of the murder with his uncle at a picnic just before crashing his stolen car.
Defense counsel also theorized that defendant opened the register after his uncle pointed a gun at him, thereby alluding to a delusion of duress. Therefore, it would not serve defendant to defend on a theory that he formed intent to aid and abet only after the killing, and not under duress, before reaching a place of temporary safety. All that is necessary is that the aider and abettor “form intent to assist prior to or during the commission of the offense.” People v. Cooper, 53 Cal.3d 1164 (1991). The court instructed on theories of premeditated murder and felony-murder. Also, the court delivered standard instructions that the “duration of a robbery continues so long as the stolen goods are being carried away to a place of temporary safety” and on accessory after the fact liability. Id. at 1168. These instructions mirror the theories set forth by both parties.
The jury questioned two issues during deliberations: (1) whether “actively commit the act constituting such crime” and “its commission” refer to “the robbery or the murder;” and (2) whether CALJIC No. 8.27 was the correct alternative to apply. The first query, regarding scope of liability, goes to the jury’s desire for a more prudent perception of the felony-murder doctrine. In other words, whether an aider and abettor to a felony can be convicted of felony-murder regardless of who pulled the trigger. The law clearly states the answer affirmatively, since the purpose of felony-murder is to deter murder which stems from certain enumerated crimes and thereby inherently deter the underlying felony. After instruction that the crime refers to the underlying felony, the jury found defendant guilty. The jury’s collective deliberation, as evidenced by their inquiries, suggests that regardless of instructions given, they believed beyond a reasonable doubt that defendant was guilty of felony-murder.
Defense counsel argues the court had a sua sponte duty to instruct that felony-murder can involve aiding and abetting only if defendant aided and abetted the underlying felony prior to the killing. To require such an instruction be made sua sponte, when no such instruction exists, is an affront to the court. The power to create such an instruction lies with the Legislature, not the court. To hold otherwise would be to erode the Federal Constitution. “[J]udges are not accredited to supersede [the Legislature] by embellishing upon the [statutory] scheme.” Drennen v. Security Pacific National Bank 28 Cal.3d 764, 773 fn. 8. (1981).
Moreover, defense counsel never requested this instruction at trial. Therefore, the issue presented is not a denial of a requested instruction, but a failure to instruct sua sponte that which does not exist. Since the court’s duty is to give instructions on the “general principles of law governing the case … it need not instruct on specific points developed at trial unless requested …. The rule seems undoubtedly designed to promote the ends of justice by providing some judicial safeguards for defendants from the possible vagaries or ineptness of counsel …. Yet the trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct … accordingly. The judge need not fill in every time a litigant or his counsel fails to discover an abstruse but possible theory of the facts.” People v. Wade 53 Cal.2d 322, 334 (1959). The court’s onus is elucidation, not eminent lawmaking. I decline to promulgate that we express defense counsel’s durational instruction for aiders and abetters in felony-murder cases as a general principle.
Harmless Error
Assuming the Court accepts defense counsel’s argument that we impose an instruction outlining durational culpability for an aider and abettor in felony-murder, the failure to give such an instruction in this case is harmless. Any alleged prejudicial error is harmless beyond a reasonable doubt since the evidence overwhelmingly established defendant’s liability for first-degree murder. See People v. Harris 9 Cal.4th 407, 427 (1995); Chapman v. California 386 U.S. 18, 24 (1967). The trial court stated that “the numerous inconsistent stories [defendant] told police all reflect consciousness of guilt, and share the common theme of attempting to exculpate himself by implicating another.” We agree with the lower court that the circumstances of this case justify a felony-murder conviction.
In light of the jury’s finding of special circumstances, pursuant to Cal.Penal Code § 190.2(a)(17)(A), enumerating aiders and abetters to robbery as those subject to felony-murder, it is clear defendant was, at a minimum, an aider and abettor throughout the commission of the robbery. If the instructions were erroneous, the fact that the jury found special circumstances demonstrates that defendant formed the requisite intent to aid and abet robbery before the killing. Therefore, any instructional error allegations are harmless. For the foregoing reasons, I respectfully dissent with regards to the majority’s reasoning that defendant is guilty based on intent formed prior to killing in a felony-murder when he is found to be an aider and abettor. Judgment affirmed.�
Disclaimer: Ms. Brenman is not a judge. The opinion above was part of a California Supreme Court Externship.
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