Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08CF1509, Frank F. Fasel, Judge. Reversed.
Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P. J.
Yesica Amaya appeals from a judgment after a jury convicted her of robbery. She contends the trial court erred when it failed to answer the jury’s questions during deliberations, excluded defense evidence, and ordered her to pay the costs of probation as a condition of probation. Because we conclude the trial judge erroneously answered one of the jury’s questions and Amaya was prejudiced, we need not address her other claims. We reverse the judgment.
FACTS
Raul Pantoja, a truck driver, was driving home from work one May evening at about 7:30 p.m. Pantoja was driving south on Grand Avenue when he saw a man, later identified as Efren Hernandez Aguilar, driving a white Chevrolet Suburban make a U-turn from the right turn lane and drive south on Grand Avenue. There was a woman in the front passenger seat. As Aguilar slowed, Pantoja drove past and in his rearview mirror, he saw Aguilar watching an elderly male riding a bicycle. At a cross street, Aguilar turned left and stopped, and Pantoja turned right, drove into a parking lot, and stopped. When Aguilar drove eastbound, Pantoja, his suspicions assuaged, drove westbound.
When Pantoja stopped at an intersection, in his rearview mirror, he saw Amaya, who was now driving the Suburban, drive up behind him very fast and stop. Aguilar got out of the Suburban and confronted the man on the bicycle while Amaya turned the Suburban around heading north. Aguilar grabbed the handlebars, and wrestled the man off the bicycle and into the bushes. When the traffic light turned green, Pantoja drove through the intersection and made a U-turn, but he did not see anything. He made another U-turn and saw Aguilar, who was holding a wallet, run to the Suburban’s passenger side and get in. He saw the screaming man holding his bleeding head. The Suburban sped away and Pantoja followed in pursuit. Pantoja got a partial license plate number and called 911. He returned to the scene of the crime but could not find the victim.
Officer James Geist investigated the crime and determined Amaya owned the Suburban. Geist called Amaya at home and asked that she come to the police station because he wanted to speak with her.
When she arrived with her daughter, Geist and Officer Chris Revere interviewed Amaya in the lobby because it was a holiday and the lobby was closed. Geist did not handcuff Amaya, and he told her she was free to leave. The interview was recorded. After Amaya admitted she owned the Suburban, she explained she was always with Aguilar but not on the day in question. When Geist told her he spoke with Aguilar and he told him everything that had happened, Amaya explained she did not know what was happening when Aguilar told her to stop, he got out, he quickly got back in, and he told her to drive. Amaya said she drove the entire time, and she added that when they saw a guy on a bicycle, he told her to stop and she stopped. She explained Aguilar fights a lot, and when he got back into the Suburban, she drove away. She stated, “when he tells me something to do I just do it.” Amaya said a person in a black truck chased them and Aguilar said not to let the driver catch them. Amaya said she did not know he robbed the man and did not see what happened. Amaya stated she dropped Aguilar off and drove to the corner and tuned around. When Geist told her she was under arrest for robbery, Amaya asked why because she did not do anything and did not know what was happening. Geist advised Amaya of her Miranda rights, Amaya said she did not know where the wallet and cellular telephone were. She repeated “[she] just do[es] whatever he tells [her] to.” A little later when Revere asked Amaya how many children she has, she replied, “I just have to learn from my mistakes.” Revere asked her whether she thought Aguilar was going to fight the man, and Amaya responded she thought it was his friend and because Aguilar is very jealous, she just waited. When Revere asked why she and Aguilar switched seats and she drove, Amaya replied, “He told me to. I just do whatever the fuck he tells me to.”
Abridged and complete versions of the interview were played for the jury.
Miranda v. Arizona (1966) 384 U.S. 436.
An information charged Amaya with second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)). At trial, Pantoja said he might be able to identify the woman but he could not identify Amaya as the woman he saw in the Suburban.
All further statutory references are to the Penal Code.
The trial court instructed the jury on aiding and abetting principles and the elements of robbery. During deliberations, the jury asked the trial judge the following question: “We all agree that she knew a crime was committed and that she helped. Do we specifically have to agree that she knew the crime was robbery?” By telephone, both counsel were notified of the jury’s request, and they both approved the following response: “1. The defendant is charged with aiding [and] abetting a robbery. The jury must decide whether she is not guilty or guilty of that specific crime. 2. Suggest the jury read all of the court’s instructions on the law. 3. Do not reveal to me or anyone else any facts discussed by the jury while in deliberation.”
Minutes later, the jury asked the trial judge the following question: “If we find that in the defendant’s mind she was aware of the perpetrator’s intent to commit a crime, one of which could be robbery, does that satisfy the requirement under the law that defendant had knowledge of intent?” (Italics added.)
On the record, defense counsel objected to the trial judge’s proposed response. Defense counsel requested the trial judge respond to the jury’s hypothetical question in the negative because it was erroneous for the jury to convict Amaya of robbery on aiding and abetting principles if it found she intended to aid and abet the commission of another crime. The trial judge indicated that if he “formulate[d] an answer” he would effectively be “directing a verdict....” Defense counsel argued that in the alternative, he would request the trial judge advise the jury to reread all the instructions. Defense counsel also stated “[he] would have no problem” with the trial judge responding with the same answer he gave to the first question. The trial judge responded: “1. That is for the jury to decide. Please reread all of the instructions on the law as well as all instructions on aiding/abetting. 2. For the third time the court instructs the jury to not reveal to me or anyone else any facts discussed by the jury during deliberation.”
Twenty-nine minutes later, the jury convicted Amaya of second degree robbery. The trial court suspended Amaya’s sentence and placed her on three years formal probation. The court ordered her to pay the costs of probation based on her ability to pay pursuant to section 1203.1b.
DISCUSSION
I. Jury Questions
Amaya argues the trial court erroneously responded to the jury’s questions concerning aiding and abetting and the requisite intent. The Attorney General contends Amaya waived appellate review of the first question because defense counsel agreed to the trial judge’s response, and the trial judge properly responded to the second question. We agree with the Attorney General that Amaya waived appellate review of the correctness of the trial judge’s first response but conclude the judge’s second response prejudiced Amaya.
A. Jury’s First Question
As we explain above, after the jury submitted its first question, counsel was notified telephonically. Both counsel approved the trial judge’s response. Because counsel consented to the response, the claim of error as to the first question is waived. (People v. Rodrigues (1984) 8 Cal.4th 1060, 1193; People v. Bohana (2000) 84 Cal.App.4th 360, 373 [“Where, as here, appellant consents to the trial court’s response to jury questions during deliberations, any claim of error with respect thereto is waived”].) The cases Amaya relies on to support her claim appellate review of this issue is not waived are inapposite. (People v. La Fargue (1983) 147 Cal.App.3d878, 886, fn. 4 [no discussion concerning counsel’s consent to trial judge’s response]; People v. Miller (1981) 120 Cal.App.3d233, 236 [same].)
B. Jury’s Second Question
Amaya argues the trial court erroneously answered the jury’s second question. Specifically, she contends: (1) the trial judge should have simply responded, “no,” an aider and abettor’s knowledge of a perpetrator’s intent to commit a crime other than robbery is not sufficient to convict an aider and abettor of robbery; and (2) that when the trial judge responded it was “‘for the jury to decide[,]’” the judge “invited [the] jury to devise an applicable rule of law[]” violating the ex post facto clause. We agree the trial judge’s initial response was prejudicial error.
“‘After the jury have retired for deliberation,... if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given ....’ (§ 1138.) ‘This means the trial “court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]” [Citation.]’” (People v. Montero (2007) 155 Cal.App.4th 1170, 1179 (Montero).)
Before we discuss the merits of Amaya’s contention, we must provide the applicable jury instructions because it appears from the jury’s questions, it had some difficulty understanding the aiding and abetting instructions.
The trial court instructed the jury with Judicial Council of California Criminal Jury Instructions (2008) CALCRIM No. 400, “Aiding and Abetting: General Principles,” as follows: “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of that crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.”
The trial court also instructed the jury with CALCRIM No. 401, “Aiding and Abetting: Intended Crimes.” The instruction stated: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] [If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor].” (Italics added.)
The trial court also instructed the jury with CALCRIM No. 1600, “Robbery,” which provided in relevant part: “The defendant is charged [in [c]ount 1] with robbery.... To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took property that was not her own; [¶] 2. The property was taken from another person’s possession and immediate presence; [¶] 3. The property was taken against that person’s will; [¶] 4. The defendant used force or fear to take the property or to prevent the person from resisting; [¶] AND 5. When the defendant used force or fear to take the property, she intended to deprive the owner of it permanently.”
Finally, the trial court instructed the jury with CALCRIM No. 1603, “Robbery: Intent of Aider and Abettor,” which stated in relevant part, “To be guilty of robbery as an aider and abettor, the defendant must have formed the intent to aid and abet the commission of the robbery before or while the perpetrator carried away the property to a place of temporary safety.”
During deliberations, the jury submitted its second question to the trial judge: “If we find that in the defendant’s mind she was aware of the perpetrator’s intent to commit a crime, one of which could be robbery, does that satisfy the requirement under the law that defendant had knowledge of intent?” The trial judge responded: “1. That is for the jury to decide. Please reread all of the instructions on the law as well as all instructions on aiding/abetting. 2. For the third time the court instructs the jury to not reveal to me or anyone else any facts discussed by the jury during deliberation.” (Italics added.)
The law is clear that to convict a defendant of aiding and abetting a robbery, the defendant must have the specific intent before or during the robbery to aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of the robbery. It is not sufficient that the defendant had the specific intent before or during the robbery to aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of another crime, i. e., a battery. Thus when the jury asked the trial judge whether it could convict Amaya of robbery under an aiding and abetting theory if it found she had knowledge of Aguilar’s intent to commit a crime, “one of which could be robbery,” the only answer was, “no.” The jury could not convict Amaya of robbery if it found she knew Aguilar was going to commit a battery and she intended to aid him in committing a battery. The trial court’s response that it was for the jury to decide was legally incorrect and violated the court’s duty to assist the jury in understanding the legal principles involved in the case. (People v. Moore (1996) 44 Cal.App.4th 1323, 1332 [trial judge’s “reply to the particular question posed by the jury improperly left the jury with the responsibility for deciding a question of law and was a violation of the trial court’s mandatory duty to help the jury understand the legal principles involved in the case”].)
We express no opinion on the applicability of the natural and probable consequences doctrine or whether a robbery is a natural and probable consequence of a battery.
Although often the appropriate response is for a trial judge to simply advise the jury to reread the jury instructions (People v. Beardslee (1991) 53 Cal.3d 68, 97 (Beardslee)), this was not one of those times. The trial court instructed the jury orally and provided the jury with a written copy of the jury instructions to aid them in their deliberations. The jury initially asked if it had to “agree that [Amaya] knew the crime was robbery[.]” After the trial judge responded the jury must decide whether Amaya was guilty of robbery, the judge advised them to reread all the instructions. That apparently did not help as the jury asked a second question, a question focused specifically on the intent required to convict Amaya. Although we recognize the court was trying not to inject itself into the jury’s deliberations to avoid directing a verdict (Montero, supra, 155 Cal.App.4th at p. 1180), the trial judge’s response was erroneous for the reasons we discuss above. Additionally, it failed to directly address the difficulty the jury was having with the intent requirement necessary for aiders and abettors. We presume this was because CALCRIM No. 401 does not mention robbery, but only “crime” and “unlawful purpose.” At least one of the jurors presumably believed Amaya intended to aid and abet a crime other than robbery, and wanted to know whether that was sufficient to convict her of robbery. It was not, and that was not for the jury to decide. (Beardslee, supra, 53 Cal.3d at p. 97 [“comments diverging from the standard are often risky”].)
However, that does not end our inquiry. We must now determine whether Amaya was prejudiced. (Beardslee, supra, 53 Cal.3d at p. 97.) We conclude she was. Although the information charged Amaya with only robbery, that was the only substantive crime the trial court instructed the jury with, and the court instructed the jury on the elements of robbery and the requisite intent, there was evidence Aguilar fought a lot. Amaya repeatedly told officers Aguilar got into a lot of fights. Based on CALCRIM No. 401’s vague references to “the crime” and the “unlawful purpose,” and the testimony Aguilar often fought, we conclude it was reasonably probable Amaya would have obtained a more favorable result had the trial judge not responded, “That is for the jury to decide.”
DISPOSITION
The judgment is reversed.
WE CONCUR: ARONSON, J., IKOLA, J.