Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF123508, Roger A. Luebs, Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Abdelkader Morceli appeals following a jury trial. He contends there is insufficient evidence to support the jury’s verdict as to his convictions for assault with a firearm and kidnapping for robbery and to support the jury’s true findings as to certain firearm enhancements. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At trial, an informant was the People’s key witness against defendant. The witness testified he became an informant for the Riverside County Sheriff’s Department after he was prosecuted in the late 1990’s by the federal government for his involvement in sales of pseudoephedrine. As an informant, he would locate customers interested in purchasing pseudoephedrine, make arrangements for a sale, and then meet customers at a location to complete the transaction, so that the sheriff’s department could make an arrest. For each completed transaction, the informant would be paid 10 percent of the money seized by police.
The informant testified he had known defendant for about two years and met him at a market owned by his cousin. Defendant told the informant he wanted to purchase 20 to 40 cases of pseudoephedrine. After further negotiations, the informant arranged to sell defendant pseudoephedrine pills at a specified location while members of the sheriff’s department surreptitiously watched and waited to make an arrest.
To complete the transaction, defendant told the informant he would bring “two Mexican guys” with him to the specified location. When defendant did not appear at the location on time, the informant used his cell phone to contact defendant more than 10 times to find out where he was and what time he would arrive. Defendant said he was getting the money and to wait. He also told the informant he would be coming to the location in a white Cadillac. Defendant waited several hours until the white Cadillac arrived and parked near the informant’s car. However, defendant did not arrive with the “two Mexican guys” the informant was expecting. Instead, defendant arrived with two other men in the white Cadillac. These two men were Lafenus Lindquist, who was the driver of the Cadillac, and a man introduced to the informant as Abujudeh. The informant became nervous because these were not the people he was expecting.
The informant asked defendant, “where is the money?” He was told it was in the Cadillac. Abujudeh then got a plastic trash bag out of the Cadillac and told the informant the money was inside, but the informant did not believe him and said he was just going to go home. The informant got into his car and prepared to leave as it appeared the men wanted to just take the drugs without paying for them. Abujudeh then went to the window of the informant’s car and told him he had the money in his pocket. Knowing there was no way Abujudeh could have the agreed amount of money hidden in his pocket, the informant wanted to leave, but Abujudeh pulled out a gun and got into the informant’s car. At this time, defendant was standing a couple of feet away from the informant’s car.
Abujudeh put the gun against the informant’s ribs and told him to drive to the location where the drugs were located. With the gun pointed at him, the informant drove Abujudeh across the street to a motel parking lot. Meanwhile, defendant got into the Cadillac, which followed the informant’s car to the motel. At the motel parking lot, defendant got out of the passenger side of the Cadillac. Police were waiting at the motel, and the informant parked his car between two unmarked police cars. When Abujudeh turned his head, the informant grabbed the gun, and the gun fired during the ensuing struggle. However, police were able to take the gun away from Abujudeh.
Although the driver of the Cadillac drove away, police were able to locate the car and the driver in a nearby residential area. Police searched the vehicle and were unable to find any money inside. The driver of the Cadillac pled guilty to kidnapping and then testified at defendant’s trial in the prosecution’s case-in-chief. He testified he had known Abujudeh for five or six years, and became involved in the robbery because Abujudeh contacted him the day before and said his car had broken down, so he needed a ride to “go pick up some money.” After he was taken into custody, he had a conversation with defendant, who told him they had planned to take pills from the informant without paying for them. Defendant also told the driver they had planned to take the informant to a house where they believed money was located.
A jury convicted defendant of count 1, assault with a firearm (Pen. Code, § 245, subd. (a)(2)); count 2, attempted robbery (Pen. Code, §§ 664, 211); count 3, kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)); count 4, conspiracy to obtain pseudoephedrine for sale to manufacture methamphetamine (Pen. Code, § 182, subd. (a)(1); Health & Saf, Code, § 11104, subd. (a)); and count 5, conspiracy to commit robbery (Pen. Code, §§ 182, subd. (a)(1), 211). With the exception of the kidnapping charge in count 3, the jury also found that the offenses were committed while armed with a firearm within the meaning of Penal Code section 12022, subdivision (a)(1). There was no finding as to the firearm enhancement on the kidnapping charge in count 3. The trial court sentenced defendant to a total determinate term of four years plus an indeterminate term of life in state prison.
DISCUSSION
Liability of an Aider and Abettor
Defendant does not contest his convictions for attempted robbery (count 2), conspiracy to obtain pseudoephedrine (count 4), or conspiracy to commit robbery (count 5). Rather, he seeks a reversal as to the other counts he believes are based on an aiding and abetting theory of liability and the natural and probable consequences doctrine because of Abujudeh’s use of a handgun. These include count 1, assault with a firearm, and count 3, kidnapping for robbery, as well as the true findings on all of the firearm enhancements. He claims the natural and probable consequence doctrine does not apply because the evidence indisputably demonstrates (1) he was unaware Abujudeh possessed a handgun and intended to use it, and (2) he specifically intended a firearm would not be used to rob the informant.
“It is the prosecution’s burden in a criminal case to prove every element of a crime beyond a reasonable doubt.” (People v. Cuevas (1995) 12 Cal.4th 252, 260, citing In re Winship (1970) 397 U.S. 358.) “To determine whether the prosecution has introduced sufficient evidence to meet this burden, courts apply the ‘substantial evidence’ test. Under this standard, the court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (Cuevas, at p. 260, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.)
The mental state necessary to convict a defendant as an aider and abettor is different from the mental state necessary to convict an actual perpetrator. (People v. Mendoza (1998) 18 Cal.4th 1114, 1122.) “The actual perpetrator must have whatever mental state is required for each crime charged . . . . An aider and abettor, on the other hand, must ‘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.’ [Citation.]” (Id. at p. 1123.)
An aider and abettor “may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the ‘natural and probable consequence’ of the target crime.” (People v. Prettyman (1996) 14 Cal.4th 248, 261 (Prettyman).) Similarly, “a conspirator is vicariously liable for the unintended acts by coconspirators if such acts are in furtherance of the object of the conspiracy, or are the reasonable and natural consequence of the object of the conspiracy.” (People v. Hardy (1992) 2 Cal.4th 86, 188.)
To apply the “ ‘natural and probable consequences’ ” doctrine to aiders and abettors, “[t]he jury must decide whether the defendant (1) with knowledge of the confederate’s unlawful purpose, and (2) with the intent of committing, encouraging, or facilitating the commission of any target crime(s), (3) aided, promoted, encouraged, or instigated the commission of the target crime(s); whether (4) the defendant’s confederate committed an offense other than the target crime(s); and whether (5) the offense committed by the confederate was a natural and probable consequence of the target crime(s) that the defendant encouraged or facilitated.” (Prettyman, supra, 14 Cal.4th at p. 267.) “A ‘natural’ consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. ‘Probable’ means likely to happen.” (CALJIC No. 3.02.) An objective standard is applied to determine whether a nontarget offense is the natural and probable consequence of a target crime. In other words, the “question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.” (People v. Mendoza, supra, 18 Cal.4th at p. 1133.)
Here, the trial court identified the target offenses as attempted robbery (count 2), conspiracy to obtain pseudoephedrine for sale to manufacture methamphetamine (count 4), and conspiracy to commit robbery (count 5). “Robbery” is defined as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Pen. Code, § 211.) “An attempted robbery requires a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission.” (People v. Medina (2007) 41 Cal.4th 685, 694.) “The necessary elements of a criminal conspiracy are: (1) an agreement between two or more persons; (2) with the specific intent to agree to commit a public offense; (3) with the further specific intent to commit that offense; and (4) an overt act committed by one or more of the parties for the purpose of accomplishing the object of the agreement or conspiracy.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1128.)
To avoid speculation, “the trial court . . . must give instructions to the jury identifying and defining the target offense(s) that the defendant allegedly intended to commit . . . .” (Prettyman, supra, 14 Cal.4th at p. 268.)
Defendant essentially concedes there is sufficient evidence in the record to show Abujudeh committed the nontarget offenses, which were identified by the court as assault with a firearm (count 1) and kidnapping for purposes of robbery (count 3). An “assault” is defined as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (Pen. Code, § 240.) A person is guilty of simple kidnapping if he “forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person . . . into another part of the same county . . . .” (Pen. Code, § 207, subd. (a).) A person is guilty of aggravated kidnapping or kidnapping for robbery if it can be shown he had the specific intent to commit the robbery at the time the kidnapping began. (People v. Curry (2007) 158 Cal.App.4th 766, 778-779.) For aggravated kidnapping, the evidence must also show movement of the victim which is not merely incidental to the commission of the robbery and which substantially increases the risk of harm to the victim over and above that necessarily present in the crime of robbery itself. (Ibid.)
In support of his sufficiency of the evidence argument, defendant cites testimony by the informant given during cross-examination. In pertinent part, the informant’s testimony reads as follows:
“Q. At some point did [Abujudeh] appear at some point to be the person in charge of discussing with you about the pills and the money and everything else?
“A. Yes.
“Q. So it looked like he was the guy in charge and not [defendant]?
“A. Yes.
“Q. Now, and he is the guy that you kept asking for the money?
“A. Yes.
“Q. And he was the guy that kept asking you for the pills?
“A. Yes.
“Q. Okay. And at some point you say that [Abujudeh] showed you this gun; right?
“A. Yes.
“Q. What was [defendant’s] reaction to seeing that gun?
“A. He was shocked.
“Q. He was shocked. And what about his appearance made you believe that he was shocked?
“A. Because he was like—when [Abujudeh] put the gun on me, he was surprised, and he just fall in the car and told him— [¶] . . . [¶]
“THE WITNESS: He told him, that’s not suppose to have a gun in this deal.
“Q. . . . Did [defendant] appear angry that [Abujudeh] used a gun?
“A. Yes.
“Q. And he told [Abujudeh], you are not suppose[d] to use a gun?
“A. Yes.
“Q. What was [Abujudeh’s] response?
“A. It’s not your business. You’re done. [¶] . . . [¶]
“Q. Meaning – what did you take that to mean, you’re done?
“A. Go home, that is what he is telling him.
“Q. So basically he is telling [defendant], you are no longer part of this deal?
“A. Yes.”
Preliminarily, we reject defendant’s assertion that the evidence indisputably establishes he did not know Abujudeh had a gun. There is nothing in the cited testimony specifically stating defendant did not know about the gun. Rather, the testimony only suggests defendant was surprised and angry when Abujudeh decided to use the gun. Despite defendant’s apparent surprise and anger when Abujudeh used the gun, it would not be unreasonable under the circumstances for the jury to infer defendant did know Abujudeh was carrying the gun and was aware it might be necessary to use the gun to complete the robbery. As defendant concedes, the informant’s testimony amply demonstrates defendant arranged and entered into a substantial narcotics transaction that suggested a certain level of sophistication and expertise. Evidence presented at trial indicated defendant agreed to purchase $96,000 worth of pseudoephedrine pills, which could yield as much as “80 pounds of methamphetamine.” An expert testified this was “a huge drug deal.” Defendant told the driver he planned to sell the pills to a third party. A jury could reasonably infer defendant would not undertake a transaction of this magnitude without the protection of a concealed weapon. Firearms are commonly recognized as “ ‘ “ ‘tools of the trade’ ” ’ ” in the narcotics business. (People v. Glaser (1995) 11 Cal.4th 354, 367.) “Drug dealers are known to keep guns to protect not only themselves, but also their drugs and drug proceeds; ready access to a gun is often crucial to a drug dealer’s commercial success.” (People v. Bland (1995) 10 Cal.4th 991, 1005.)
Regardless, Abujudeh’s possession and use of a handgun were foreseeable for a reasonable person in defendant’s position based on all of the other evidence adduced at trial. As defendant concedes, the evidence amply demonstrates he entered into a conspiracy with Abujudeh for the specific purpose of robbing the informant of the pseudoephedrine. Thus, it is certainly foreseeable that some form of force or fear would be a necessary part of the plan to take the pseudoephedrine from the informant. This is especially true under the circumstances of this case, where the evidence indicated defendant and Abujudeh had no money with them and expected to rob the informant of $96,000 worth of pseudoephedrine. It would be unreasonable for anyone to expect to rob a drug dealer of $96,000 worth of pseudoephedrine, which could yield up to 80 pounds of methamphetamine, without a significant risk of violence and a substantial show of force.
As expressed in his closing argument, the prosecutor’s theory was that defendant and Abujudeh planned a “strong-arm robbery” without weapons and brought the driver of the Cadillac, Mr. Lindquist, with them as the “muscle” to intimidate the informant. In this regard, Mr. Lindquist testified he is six feet three inches tall and weighs about 250 pounds and is much bigger than the informant, who he described as “a little bitty dude.” However, the evidence suggests things did not proceed as planned, and Abujudeh pulled the gun out in furtherance of the conspiracy when it became obvious the “strong arm” method was not going to work, and the informant was going to simply drive away. Under these circumstances, it would be reasonable to infer defendant knew Abujudeh had a gun, but the plan was not to use it unless it became necessary, and defendant was simply “shocked” and angry because their initial plan had failed. Once again, the informant’s testimony was not that defendant said he did not know Abujudeh was carrying a gun. He only said Abujudeh was not supposed to use the gun.
Finally, there is evidence indicating defendant intended to aid and abet the assault with a deadly weapon and the kidnapping for robbery even if he was initially “shocked” when Abujudeh pulled the gun out and even if he did not initially approve of using the gun. “[A]dvance knowledge is not a prerequisite for liability as an aider and abettor. ‘Aiding and abetting may be committed “on the spur of the moment,” that is, as instantaneously as the criminal act itself. [Citation.]’ ” (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 742.) After Abujudeh got into the informant’s car, put the gun against the informant’s ribs, and told him to drive to the place where the drugs were located, defendant got into the Cadillac. The Cadillac followed the informant’s car across the street to the motel parking lot, and defendant then got out of the passenger side of the Cadillac. Because the evidence shows defendant conspired to rob the informant of pseudoephedrine and was present when Abujudeh threatened the informant with the gun, defendant indisputably knew the full extent of Abujudeh’s criminal purpose. Because defendant followed the informant and Abujudeh across the street to where he believed the drugs were located, a jury could reasonably infer defendant intended to aid or facilitate the assault with the deadly weapon and the kidnapping for robbery in order to ultimately gain possession of the pseudoephedrine.
With respect to the kidnapping for robbery offense, the prosecutor also presented an alternative theory of liability to the jury. He argued defendant could be held liable for the kidnapping for robbery offense as an aider and abettor or as a coconspirator even if the natural and probable consequences doctrine did not apply. This is because the driver of the Cadillac testified that defendant told him the plan to rob the informant included taking the informant to another location where drugs or money were located. In other words, there is evidence in the record from which a jury could reasonably conclude defendant planned all along to kidnap the informant in order to rob him.
Based on the foregoing, we conclude there is substantial evidence in the record from which a jury could reasonably find defendant guilty of the nontarget offenses of assault with a deadly weapon and kidnapping for robbery as a natural and probable consequence of the nontarget offenses of attempted robbery, conspiracy to obtain pseudoephedrine, and conspiracy to commit robbery. For the reasons outlined above, Abujudeh’s possession and use of the handgun were foreseeable to a reasonable person in defendant’s position based on all of the evidence presented at trial.
In reaching our conclusion, we reject defendant’s contention that liability does not attach to a nontarget offense under the natural and probable consequences doctrine unless an aider and abettor knows a principal is armed with a gun or another deadly weapon. Defendant’s position is simply unsupported by case law. For example, in People v. Hoang (2006) 145 Cal.App.4th 264, the defendant was convicted of attempted premeditated murder based on the natural and probable consequences doctrine. (Id. at p. 266.) Evidence adduced at trial indicated the defendant and six other young men who were gang members surrounded the victim in a parking lot. While the defendant verbally confronted the victim, one of the other young men stabbed the victim in the back. On appeal, the defendant argued the trial court should not have instructed the jury on the natural and probable consequences doctrine because there was insufficient evidence he intended to aid and abet the target offense of assault with a deadly weapon. (Id. at p. 267.) The appellate court concluded the instructions were proper even though the defendant testified in his own defense, denied being a gang member, claimed he did not know others in the group were gang members, stated he was “surprised” by the stabbing, and denied any knowledge that the victim would be stabbed. (Id. at p. 268-269.)
We are also unconvinced by defendant’s citation to hypotheticals from our Supreme Court’s decision in Prettyman in support of his insufficiency of the evidence argument. In pertinent part, the Supreme Court in Prettyman stated as follows: “If, for example, the jury had concluded that defendant . . . had encouraged codefendant . . . to commit an assault on [the victim] but that [defendant] had no reason to believe that [her codefendant] would use a deadly weapon such as a steel pipe to commit the assault, then the jury could not properly find that the murder of [the victim] was a natural and probable consequence of the assault encouraged by [defendant]. [Citation.] If, on the other hand, the jury had concluded that [defendant] encouraged [her codefendant] to assault [the victim] with the steel pipe, or by means of force likely to produce great bodily injury, then it could appropriately find that [the codefendant’s] murder of [the victim] was a natural and probable consequence of that assault.” (Prettyman, supra, 14 Cal.4th at p. 267, italics added.)
In our view, defendant is reading these hypotheticals from Prettyman much too broadly. When read in context, these hypotheticals do not mean an aider and abettor cannot be vicariously liable for a nontarget offense committed by a confederate with a deadly weapon unless the aider and abettor was aware his confederate was carrying the weapon. Rather, these hypotheticals relate to the specific facts of the Prettyman case, which indicated it was possible the jury could have concluded the defendant aided and abetted a simple assault. These hypotheticals illustrate the requirement that “there must be a close connection between the target crime aided and abetted and the offense actually committed” in order to trigger application of the natural and probable consequences doctrine. (Prettyman, supra, 14 Cal.4th at p. 269.) In other words, a defendant’s intent to encourage a simple assault may not always support a finding that a resulting murder was the natural and probable consequence of the assault. As the Supreme Court stated, it will “[r]arely, if ever,” be the case that an aider and abettor will be held liable for a “ ‘very serious’ ” offense, such as murder, under the natural and probable consequences doctrine when the target offense aided and abetted involves relatively trivial activities. (Ibid.) The target offenses in this case were not trivial and were closely connected to the nontarget offenses, because the evidence demonstrated defendant and Abujudeh planned to commit a large scale robbery that, by its very nature, had great potential for the use of force and serious violence.
We are also unconvinced by defendant’s reliance on cases such as People v. Hickles (1997) 56 Cal.App.4th 1183 and People v. Butts (1965) 236 Cal.App.2d 817, because these cases are distinguishable. In Hickles, the defendant went with the perpetrator to the victim’s hotel room, and the perpetrator shot the victim to death. (Hickles, at pp. 1187-1188.) The prosecutor argued defendant was guilty of the murder either directly or as an aider and abettor because he and the friend conspired to murder the victim, or that the two men intended to assault the victim, and the murder was the natural and probable consequence of the assault. (Id. at p. 1192.) By not returning a verdict on the charge of premeditated first degree murder, the jury necessarily rejected any contention that the defendant and the perpetrator planned to murder the victim. (Id. at p. 1193.) The evidence presented at trial was conflicting and could have “supported a number of different factual scenarios.” (Id. at p. 1197.) From the evidence, the jury could have concluded defendant went to the scene of the murder with the gunman only to participate in a verbal confrontation with the victim without knowing the gunman was armed (i.e., a noncriminal act). (Ibid.)
The issue on appeal in Hickles was whether the defendant suffered prejudice because the trial court did not instruct the jury on the target offense the defendant allegedly aided and abetted. (Hickles, supra, 56 Cal.App.4th at p. 1192.) Without the appropriate instructions, the appellate court concluded there was prejudice, because there was a reasonable likelihood the jury could have misapplied the natural and probable consequences doctrine by relying on a noncriminal act. (Id. at pp. 1197-1198.) “Although the jury need not unanimously agree on the target crime the defendant aided and abetted, ‘each juror must be convinced, beyond a reasonable doubt, that the defendant aided and abetted the commission of a criminal act, and that the offense actually committed was a natural and probable consequence of that act. . . . [A] conviction may not be based on the jury’s generalized belief that the defendant intended to assist and/or encourage unspecified ‘nefarious’ conduct.” (Id. at pp. 1194-1195.) By contrast, the jury in this case was properly instructed on the potential target offenses, all three of which were serious crimes with great potential for the use of force and serious violence, and there is no likelihood the jury relied on a noncriminal act in applying the natural and probable consequences doctrine.
Defendant’s reliance on the Butts case is also unpersuasive. In our view, the Butts case cannot be read to limit the liability of an aider and abettor in the manner suggested by defendant. The two codefendants in Butts were having coffee at an inn and were unexpectedly confronted by at least two other men late in the evening and challenged to a fight. Although they did not instigate the fight, they went outside and did not turn away from the challenge. Each of the defendants became involved in separate skirmishes with separate opponents about 45 to 100 feet apart. (Butts, supra, 236 Cal.App.2d at p. 824.) One of the defendants, Butts, “was too intoxicated to land a punch and was struck repeatedly” by his opponent. However, the other defendant used a small knife and inflicted several stab wounds to his opponent, who died of one of the wounds which penetrated his heart. (Id. at p. 825.) In our view, the appellate court in Butts simply concluded the fatal use of a knife by a confederate was not foreseeable to a reasonable person in the defendant’s position based on the specific facts of the case. (Id. at pp. 836-837.)
To the extent it can be read to suggest subjective knowledge of a deadly weapon is required for liability to attach under the natural and probable consequences doctrine, the Butts case has been criticized in later decisions, which have noted that this view is unsupported by case law. (See, e.g., People v. Godinez (1992) 2 Cal.App.4th 492, 501, fn. 5.) We agree with the Godinez decision on this point. “[A]lthough evidence indicating whether the defendant did or did not know a weapon was present provides grist for argument to the jury on the issue of foreseeability of a homicide, it is not a necessary prerequisite.” (Ibid.)
Firearm Enhancements
The record shows the trial court imposed firearm enhancements to defendant’s sentence pursuant to Penal Code section 12022, subdivision (a)(1). The trial court selected count 5, conspiracy to commit robbery, as the principal count and imposed three years plus one consecutive year for the firearm enhancement. On count 1, the court imposed a concurrent term of three years and dismissed the firearm enhancement. On count 2, the court imposed two years plus one consecutive year for the firearm enhancement but stayed it pursuant to Penal Code section 654. On count 3, the court imposed a sentence of life with the possibility of parole to run consecutive to the term on count 5 and dismissed the firearm enhancement. On count 4, the court imposed a two-year concurrent term plus a consecutive one-year term for the firearm enhancement.
Penal Code section 12022, subdivision (a)(1), provides in pertinent part as follows: “[A]ny person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless the arming is an element of that offense. This additional term shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm.” (Italics added.) “Principal” is defined by Penal Code section 31 as, “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, . . .”
Defendant contends the firearm enhancements are improper because the evidence indicates he did not know Abujudeh was carrying a firearm and specifically intended that a firearm not be used. On this basis, he argues we should reverse the jury’s true findings as to the firearm enhancements.
Defendant is mistaken, regardless of whether defendant was aware Abujudeh was carrying a gun. “[T]here is no requirement an aider and abettor know any principal is armed with a firearm to be found vicariously armed under [Penal Code] section 12022, subdivision (a)(1).” (People v. Overten (1994) 28 Cal.App.4th 1497, 1501.) We therefore conclude it was proper for the trial court to impose the firearm enhancements under Penal Code section 12022, subdivision (a)(1).
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., MILLER, J.