Opinion
B160418.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM D. GOLDEN, Defendant and Appellant.
Janet Vining Mitchell, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
Convicted of robbery, defendant complains that the trial court should have instructed on aiding and abetting, erred in setting restitution, and should not have given the "anti-nullification" instruction. We reject defendants claims.
BACKGROUND
Because one of his two passengers wanted to talk to his nephew, the victim (Taylor) pulled his truck up to where several people (including the nephew) were standing, including defendant and his brother (Golden and Olden). The passengers left the truck. Olden walked up to Taylor and got into a verbal dispute over money. Olden moved off and talked to Golden for a minute, then returned to Taylor and pulled out a handgun. Olden ordered Taylor to turn over everything he had. Olden hit Taylor in the face with the gun, breaking his nose.
There was testimony (rejected by the jury) that at this point Golden pulled out a handgun and warned the others present to stay out of the encounter.
Olden proceeded to rob Taylor of numerous personal items and money. Golden came to the passenger side of the truck and snatched a gold chain from Taylors neck. Golden also stole Taylors cell phone. There was testimony (rejected by the jury) that Golden hit Taylor in the head with a handgun.
Taylor managed to drive off and report the matter to the police. He required hospital treatment (including stitches and staples) for his injuries. The property taken from him was worth several thousand dollars.
Golden, painting himself as a witness who intervened only to help Taylor, denied any criminal involvement.
The jury convicted Golden of second degree robbery, but rejected a firearm use allegation. The trial court imposed a nine-year prison sentence.
DISCUSSION
I
Golden says the trial court erred in failing to give aiding and abetting instructions. He says the jury could have found that he was merely assisting Olden and was not directly involved. Accordingly, he claims, the jurys ignorance of the elements of aiding and abetting (including the requisite mental state) are fatal to the conviction.
We reject Goldens claim. Both sides tried the case on whether Golden robbed Taylor of his gold chain and phone. The prosecutor argued that Goldens direct involvement made him culpable. The defense argued that Golden must be acquitted unless the prosecution proved that Golden personally took the property. The case presented by the defense attempted to absolve Golden of all criminal involvement. The defense thus could not justify an aiding and abetting scenario. The jury rejected the allegation that Golden used a firearm. It thus rejected any notion that Golden had assisted Olden by pointing a gun at the bystanders and ordering them to refrain from interfering. The only other possibility presented on appeal is a witness who saw Golden reach into Taylors truck and put Taylors keys into Taylors lap. However, this evidence could not have shown aiding and abetting. Instead, it was consistent with the defense theory that Goldens only involvement was an attempt to help Taylor.
"One who engages in conduct that is an element of the charged crime is a perpetrator, not an aider and abettor, of the completed crime. . . . If the defendant performed an element of the offense, the jury need not be instructed on aiding and abetting, even if an accomplice performed other acts that completed the crime." (People v. Cook (1998) 61 Cal.App.4th 1364, 1371.)
The aiding and abetting theory broadens the possibility of culpability. Here, the lack of reliance on such a theory was to Goldens advantage. The jury was able to convict only if it concluded that he had personally taken property from Taylor. We see no possibility that the jury somehow rejected Goldens personal involvement but nevertheless convicted him based on a vicarious liability theory of which the panel was ignorant.
II
The trial court ordered Golden to pay Taylor restitution in the amount of $ 8,420, representing lost property, medical expenses, and lost wages due to court appearances. Golden says he should not have to make restitution for property taken by Olden, injuries inflicted by Olden, and Taylors court appearances on Oldens case.
We find the restitution order proper. A trial court has the authority to order restitution to be paid jointly and severally. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535.) Here, we have two brothers robbing the victim at the same moment from opposite sides of the victims truck. Both Golden and Olden were fully involved in the crimes against Taylor. Accordingly, both can be held fully liable. Golden and Olden are each "entitled to a credit for any actual payments by the other." (Ibid.)
III
In People v. Engelman (2002) 28 Cal.4th 436, the California Supreme Court declined to invalidate the "anti-nullification" instruction (CALJIC No. 17.41.1 (1998 new) (6th ed. 1996)), but declared that it should not be used again.
In our case, the record contains nothing to show that the instruction played any part in the jurys deliberations. There is no hint of a desire for nullification, which presumes that any juror considering such a remedy must have first concluded that Golden was guilty. Otherwise, there was nothing to nullify.
Golden offers nothing to demonstrate that any juror, convinced of his guilt, would somehow have been provoked into nullification and then deterred by the instruction. Accordingly, the instruction has not been shown to have inflicted any harm on Golden.
IV
The Attorney General points to an error in the abstract of judgment. The trial court imposed a restitution fine of $ 1,800 and stayed a parole revocation fine in the same amount. The abstract incorrectly shows $ 200 for each fine. We will remand for the trial court to issue a correct abstract.
DISPOSITION
The judgment is affirmed. The trial court is to issue a corrected abstract of judgment as detailed in part IV of this opinion and send the new abstract of judgment to the Department of Corrections.
We concur: SPENCER, P.J., MALLANO, J. --------------- Notes: The Attorney General asks us to take judicial notice that Olden was convicted in a separate proceeding. We need not do so. If Olden was convicted, he and Golden are jointly and severally liable. In the absence of an Olden conviction, Golden must bear the entire brunt.