Opinion
B228062
10-12-2011
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER EARL PERERA, Defendant and Appellant.
Kimberly Howland Meyer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VA115047)
APPEAL from a judgment of the Superior Court of Los Angeles County. Dewey Lawes Falcone, Judge. Affirmed.
Kimberly Howland Meyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
Christopher Earl Perera appeals from the judgment entered upon his conviction by jury of second degree robbery (Pen. Code, § 211). The jury acquitted appellant of first degree burglary (§ 459) and found to be untrue the allegations that he personally used a firearm within the meaning of section 12022.53, subdivision (b) and that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1). The trial court sentenced appellant to the midterm of three years in state prison. Appellant contends that (1) the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of theft, (2) the trial court erred in failing to instruct the jury on the defenses of (a) claim of right, (b) mistake of fact, and (c) defense of others, and (3) the instructions as a whole were confusing and misleading on the issue of aider and abettor's after-acquired intent.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant was charged along with codefendants Quan Jewel McKissic (McKissic), Tracey Bernard Hale (Hale), and Simone Gaillander Sylvary (Sylvary). He was tried only with McKissic, as Hale and Sylvary did not go to trial, having pled no contest.
We affirm.
FACTUAL BACKGROUND
The parties
Larry Leflore (Leflore), a convicted felon, lived with Sylvary and her son in the City of Lakewood. At the time of the charged incident, he was never at their apartment because he was seeing another woman. But he still had the key to the apartment, and all of his possessions were there. A Monte Carlo car registered to him, that he claimed was his, was left in the apartment parking space. Sylvary had given Leflore $500 towards its purchase and had use of it and anything else in the apartment.
Leflore had prior convictions for robbery, sale or possession of drugs with a gun and making false statements to police.
Sylvary paid the rent while Leflore paid the utilities. Sylvary, not Leflore, was named as the lessee on the lease.
The incident
On April 24, 2010, near 2:00 or 3:00 p.m., Leflore and his new girlfriend drove by Sylvary's apartment to check on the Monte Carlo. It was still parked in its usual place. Leflore told police that Sylvary was standing by the car and appeared angry when she saw Leflore with another woman. At trial, he denied that Sylvary was by the car and telling the police that she was.
Leflore returned by himself approximately a half hour later. The Monte Carlo was gone, and an Impala belonging to Sylvary's friend, Shara, who was appellant's girlfriend, was parked in its place. Leflore used his key to enter the apartment and locked the door behind him. Sylvary was in her son's room. Leflore was angry and confronted her about the missing car, which she said was hers. Leflore then pushed her onto the bed. He denied strangling, punching, hitting or beating her.
Leflore felt a gun at the back of his head. He turned around and saw a Black man pointing a silver and black handgun at him. The man pushed Leflore into an open closet and onto a plastic storage bin. Then, two other Black men charged into the room, holding black handguns. They rummaged around the room.
One of the Black men told Leflore to "break it off," vernacular for, "Give me your property." Leflore gave the first gunman the chain and watch Leflore was wearing and his wallet. He heard someone say, "one time," meaning the police were there. Someone also said, "I should kill him" or "just kill him." He told Sergeant Scott Hoglund that it was McKissic who said this. Sylvary had already left the room, and appellant and Hale quickly left, leaving Leflore with the gunman who had taken his jewelry, who was later identified as McKissic. McKissic fled moments later.
Leflore went to get his gun in the other room but stopped when he looked outside and saw a police officer talking to Sylvary. He yelled to the officer not to believe her, he had not hit her, she had set him up to be robbed. He also yelled that, "They just robbed me. They have guns." He then went downstairs and accused Sylvary of setting him up.
While the robbery was going on, Sergeant Hoglund was on patrol in the area. Someone approached him and reported hearing shouting from an apartment. When he got out of his car, he heard loud screaming which sounded like a heated argument by two or three people in Sylvary's apartment. He requested backup. The yelling stopped and moments later, McKissic and Sylvary came out of the apartment building side by side. She had a brown bag in her hand, which he saw her toss behind a parked car. Sergeant Hoglund called to them, and Sylvary came over to him. McKissic kept walking. Sergeant Hoglund saw no visible injuries on Sylvary. After yelling out the window, Leflore came downstairs and approached the officer.
The investigation
Confused as to who was culpable, Sergeant Hoglund handcuffed both Leflore and Sylvary and placed them in separate patrol cars. He then retrieved a Louie Vuitton bag he had seen Sylvary toss from where she had tossed it. He showed it to Leflore, who said it was his, and correctly described that there were two pairs of glasses and an iPod inside.
Sergeant Hoglund also found a black, nine-millimeter, loaded handgun under a truck near where McKissic had been walking, registered to a person residing at the same address McKissic later gave as his home address. Deputy Robert Bankston recovered a silver and black, loaded, .45-caliber handgun, that was reported stolen from Victorville, from a flower bed near the gate leading into the pedestrian alleyway along the route McKissic had taken. No latent fingerprints were found on the guns.
The three suspects were apprehended together. Sheriff's Deputy Wenceslao Agustin searched Hale and confiscated a watch and silver necklace with a cross. Deputy Edward Castro searched appellant and found seven pornographic DVDs, a brown wallet, some keys and currency, which items Leflore identified as belonging to him. No gun was recovered from appellant. Deputy Castro also searched the area and found a vehicle pink slip with Leflore's name on it torn to pieces. Officer Jody Napuunoa searched McKissic and found a fossil watch, keys and currency. All of these items were also identified by Leflore as belonging to him.
Field Show-up
Sergeant Hoglund took Leflore for a field showup to identify three men who had been detained. Separately, Leflore identified the suspects as the robbers, saying, "You got all three of them. I'm positive." Leflore did not identify the robbers at trial, testifying that he had identified them at the field showup without recognizing them because the police said that they recovered his belongings from them.
Interview of appellant
Detective Mike Davis interviewed appellant after his arrest. Appellant told him that his girlfriend, Shara, was Sylvary's friend and former roommate. Sylvary asked him to go with her to her apartment to pick up some belongings because she needed protection from Leflore, who was abusive. She told appellant that Leflore owed her money, and she was angry with him.
Sylvary asked appellant to move the Monte Carlo from its parking space and hide it because Leflore claimed it belonged to him when it was actually hers. Appellant believed the car belonged to Sylvary and therefore did as she asked. When he returned to the apartment complex, he waited outside while Sylvary went inside to get her things. As he waited, he saw Leflore walk up to the apartment, and heard yelling moments later. He remained outside.
Appellant said he did not bring a gun to the apartment. Detective Davis told appellant that one of the guns found had been reported stolen from Victorville, where appellant said his son lived in foster care. As appellant talked about his son being in a foster home, he became teary-eyed and put his head down on the table and said, "I've been doing bad." ~ Detective Davis testified that in the context of the interview he understood the statement to refer to appellant's son being in foster care, not to information regarding the gun.
DISCUSSION
I. Failure to instruct on theft as a lesser included offense
A. Contentions
The trial court instructed the jury on robbery. It did not instruct on theft. Appellant contends that the trial court erred in failing to instruct the jury sua sponte on theft as a lesser included offense of robbery. He argues that the evidence at trial "supported a theory that, at most, appellant had committed a theft and had neither directly committed nor aided and abetted a robbery."
The People claim that appellant forfeited this contention. They argue that because there was insufficient evidence to support a theory of theft but not robbery, the trial court had no sua sponte duty to instruct the jury on theft. Hence, appellant was required to request such an instruction and, having failed to do so, he has forfeited it.
B. Forfeiture
We reject the People's forfeiture argument. Appellant's only claim here is that the trial court had a sua sponte duty to instruct on theft as a lesser included offense of robbery. The trial court is obligated to instruct on lesser included offenses sua sponte, even if as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) The failure to request an instruction on a lesser included offense cannot therefore forfeit the claim that the trial court was required to give the instruction sua sponte.
C. Duty to instruct on lesser included offenses
In criminal cases, "'"even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.]"'" (Breverman, supra, 19 Cal.4th at p. 154; People v. Saddler (1979) 24 Cal.3d 671, 681.) This obligation has been held to include instructing sua sponte on lesser included offenses when the evidence raises a question whether all of the elements of the charged offense are present, but not when there is no evidence that the offense was less than charged. (Breverman, supra, at p. 154) A trial court must instruct sua sponte on a lesser included offense even if it is inconsistent with the defendant's theory of the case. (See id. at p. 159.) To warrant instruction on a lesser offense, substantial evidence must show that the defendant is guilty of the lesser, but not the greater offense. (Id. at p. 162.) The existence of any evidence, no matter how weak will not justify instructions on lesser included offenses. (Ibid.; People v. Castaneda (2011) 51 Cal.4th 1292, 1327-1328.)
D. Theft is a lesser included offense of robbery
In order to prove theft, the prosecution must show that (1) a person took personal property of some value belonging to another, (2) when the person took the property, he or she had the specific intent to deprive the alleged victim permanently of his property, and, (3) the person carried the property away by obtaining physical possession and control for period of time and by some movement of the property. (§ 484; People v. Gomez (2008) 43 Cal.4th 249; 254-255; People v. Catley (2007) 148 Cal.App.4th 500, 505.) Theft is a lesser included offense of robbery, with robbery including the additional elements that the property has to have been taken from the person or the person's immediate presence and that force or fear must have been used to accomplish the taking. (People v. Castaneda, supra, 51 Cal.4th at p. 1331; In re Albert A. (1996) 47 Cal.App.4th 1004, 1007.)
E. Insubstantial evidence of theft
The trial court did not err in failing to instruct the jury on the lesser included offense of theft because there is not substantial evidence to support it. Claiming that there is, appellant instead emphasizes that there is insufficient evidence of robbery. He points to the facts that at trial Leflore denied that appellant was one of the robbers, Leflore was high on marijuana the afternoon of the robbery, and Leflore identified appellant at the field showup only because Leflore was told that his property had been recovered from the suspects. Sergeant Hoglund did not see appellant at the scene, the two guns that were found were located along the route taken by McKissic when he left the scene, appellant denied that he was armed and no gun was found on him.
Properly viewed, we conclude that the evidence was insufficient to justify instructing the jury on theft. Appellant was apprehended with six or seven of Leflore's DVDs, his brown wallet, keys and some currency. There is not a scintilla of evidence that appellant obtained these items other than from the robbery in the apartment. While appellant speculates that the DVDs "did not necessarily come from the apartment as opposed to the car," the only testimony on that subject was Leflore's that the DVDs were in the apartment before the robbery. There was no evidence they came from anywhere else. Leflore also testified that two of the three men with the guns rummaged through the apartment. Moreover, Leflore identified appellant at a field showup as one of the three robbers. While he failed to identify him as such at trial, he told officers that he feared for his life if he testified. The evidence in the record supports only the inference that Leflore's DVDs and wallet were taken by appellant at gunpoint in the apartment.
Appellant also argues that in "rejecting the first degree, residential aspect of the robbery [the jury found second degree robbery] and the gun enhancement as to appellant, the jury must have rejected Leflore's field identification of appellant and accepted appellant's statement to the police that he was just downstairs without a gun. But the jury also must have found that appellant took Leflore's property. . . . Thus, the evidence and the jury's findings supported a determination that appellant committed the lesser offense of theft by taking the car or DVDs . . . , and not the greater offense of robbery."
Appellant argues that a theft conviction might have been based on either the taking of the seven pornographic DVDs or taking the Monte Carlo. We disagree. The information did not charge appellant with any offense related to the Monte Carlo, as both the robbery and the burglary allegations related to what occurred inside of the apartment. Furthermore, there was no evidence that the Monte Carlo was moved by appellant at Sylvary's request with the intent to permanently deprive Leflore of it, an element of theft and robbery. Appellant merely moved the car from the apartment parking space to a nearby location. Moreover, the jury was instructed in accordance with CALJIC No. 9.40 that to find appellant guilty of robbery, it was required that the property be taken against the will from "the person or immediate presence of that person." "'Immediate presence' means an area within the alleged victim's reach, observation or control, so that he or she could, if not overcome by violence or prevented by fear, retain possession of the subject property." Having found appellant guilty of robbery, the jury had to have found that either he personally or by aiding and abetting took property from the person or immediate presence of Leflore. The Monte Carlo was not taken from Leflore's person or immediate presence, and hence could not have been the basis of the robbery conviction.
The fallacy in this argument is that the propriety of a jury instruction is assessed based upon the state of the evidence at the time the jury is instructed, not with hindsight obtained from the jury's subsequent verdict.
II. Failure to Instruct on defenses
A. Background
The trial court did not instruct the jury sua sponte on any affirmative defenses. Only one request for any defense instruction was made, and that was made by McKissic's counsel, asking for an instruction on defense of third party. That request was not joined in by appellant.
B. Claim-of-right defense
1. Contention
Appellant contends that the trial court erred in failing to instruct the jury on the claim-of-right defense. He argues that "[t]here was abundant evidence that appellant held a reasonable and good faith belief that the property taken with Sylvary's permission (including both the DVDs and the Monte Carlo car) was hers to give away. Appellant's mistaken belief negated the specific intent required to establish robbery or theft. . . ."
The People claim that appellant's contentions that the trial court failed to instruct sua sponte on the claim-of-right defense and other affirmative defenses were forfeited by his failure to request the instructions and are precluded by the doctrine of invited error, which prevents appellant from complaining on appeal about a tactical decision made by counsel below. The People's contentions border on the frivolous.
2. Forfeiture
As discussed in part IIB3, post, because a trial court has a sua sponte duty to instruct on affirmative defenses supported by substantial evidence, the failure of a defendant to request the instruction does not forfeit his or her right to challenge on appeal such an omitted instruction. For similar reasons, the doctrine of invited error is inapplicable. Defense counsel cannot be said to have invited an error that the trial court was obligated to avoid sua sponte.
3. Duty to instruct on defenses
As previously stated, "'"even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.]"'" (Breverman, supra, 19 Cal.4th at p. 154.) This duty "'encompasses an obligation to instruct on defenses. . . .'" (People v. Lopez (1992) 11 Cal.App.4th 1115, 1120) "supported by substantial evidence [and] that are not inconsistent with the defendant's theory of the case." (People v. Montoya (1994) 7 Cal.4th 1027, 1047; Breverman, supra, 19 Cal.4th at p. 157.)
If the defendant relies on the claim-of-right defense, or if there is substantial evidence that supports it and it is not inconsistent with the defendant's theory of the case, the trial court must instruct sua sponte on that defense. (People v. Salas (2006) 37 Cal.4th 967, 982; People v. Creath (1995) 31 Cal.App.4th 312, 319.) The trial court is not required to instruct on the claim-of-right defense unless there is substantial evidence to support an inference that the defendant acted with the subjective belief that he or she had a lawful claim on the property. (People v. Barnett (1998) 17 Cal.4th 1044, 1145; People v. Romo (1990) 220 Cal.App.3d 514, 519.)
4. Nature of the claim-of-right defense
Section 511 creates a defense to the crime of embezzlement where "the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable." It may be read as providing a claim-of-right defense to all theft-related charges, as broadened from embezzlement through the provisions of section 490a. (People v. Tufunga (1999) 21 Cal.4th 935, 952, fn. 4.) In effect, the claim-of-right defense provides that, if a defendant takes property in the good faith belief that it belongs to him, the defendant lacks the intent necessary to commit embezzlement. (People v. Stewart (1976) 16 Cal.3d 133, 139.)
Section 490a provides: "Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word 'theft' were substituted therefor."
Even if the defendant's good faith belief that he has a right or claim to property that he takes from another is mistakenly held, it negates the felonious intent necessary for conviction of theft or robbery. (People v. Fenderson (2010) 188 Cal.App.4th 625, 642-643.) A defendant tried as an accomplice in burglary and robbery is entitled to a jury instruction on claim of right where there is evidence to support a finding that the defendant believed in good faith that he was assisting the principal in retaking the principal's own property. (People v. Williams (2009) 176 Cal.App.4th 1521, 1528-1529.)
5. Claim-of-right defense inapplicable
There was no evidence here to support an instruction on the claim-of-right defense. There was no evidence appellant had any personal claim to any of Leflore's property. Consequently, if there was any basis for that defense, it could only have been based upon appellant's belief that he was assisting Sylvary in retaking her property. (People v. Williams, supra, 176 Cal.App.4th at pp. 1528-1529.) Appellant argues that because he moved the Monte Carlo at Sylvary's request, Leflore acknowledged that Sylvary had use of all of his property in the apartment, and Sylvary asked appellant to accompany her to the apartment for her protection so she could retrieve her belongings, the evidence supported the inference that she had given appellant the right to take the DVDs and a wallet. Appellant's conclusion does not follow.
While there was evidence that appellant moved the Monte Carlo at Sylvary's request, believing she owned it, that conduct could not be the basis of a theft or robbery conviction. There was no evidence that any of Leflore's property that was recovered from appellant when appellant was apprehended belonged to Sylvary, that she asked appellant to take that property for her or that he reasonably believed that it belonged to her. It is unlikely that appellant would have assumed that what was presumably a man's wallet and pornographic DVDs belonged to Sylvary, when there was no evidence she told him that they did. Moreover, appellant told Detective Davis that he remained downstairs and did not go into the apartment, even when Leflore and Sylvary were arguing. Leflore testified that the DVDs were located in the apartment, and there was no evidence that they were obtained from anywhere else. The trial court therefore did not err in failing to instruct on the claim-of-right defense.
See footnote 4, ante.
C. Mistake-of-fact defense
1. Contention
Appellant contends that the trial court erred in failing to instruct the jury sua sponte on the mistake-of-fact defense. He argues that "there was substantial evidence that appellant had a reasonable and good faith belief that the car, DVDs and wallet belonged to Sylvary, and that he had her permission to take them. This honest belief negated the specific intent required to establish robbery or theft." This claim is meritless.
2. Nature of mistake-of-fact defense
Section 26 provides in relevant part, "All persons are capable of committing crimes except those belonging to the following classes: [¶] . . . [¶] Three—Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent." Although that code section does not expressly require that the mistake of fact be reasonable, many cases have so indicated. (People v. Reed (1996) 53 Cal.App.4th 389, 396 ["people do not act unlawfully if they commit acts based on a reasonable and honest belief that certain facts and circumstances exist which, if true, would render the act lawful. [Citations.]" (Italics added.)]; see also People v. Rivera (1984) 157 Cal.App.3d 736, 742; People v. Raszler (1985) 169 Cal.App.3d 1160, 1165; People v. Castillo (1987) 193 Cal.App.3d 119, 124.) Where a claim of right is based on a mistake of fact regarding the defendant's right to take the property, the defenses overlap. (People v. Russell (2006) 144 Cal.App.4th 1415, 1429.)
3. Mistake-of-fact defense inapplicable
The trial court did not err in failing to instruct the jury on the mistake-of-fact defense as there was no evidence to support it. For the reasons discussed in part IIB5, ante, there was no evidence that appellant acted under a mistaken belief that the DVDs and/or the wallet belonged to Sylvary and that he had possession of them at her request.
D. Defense-of-others defense
1. Background
McKissic's attorney requested an instruction on the defense of others. Appellant did not make such a request or join in McKissic's request. The trial court found that the evidence that Leflore had merely pushed Sylvary onto the bed was insufficient to warrant the instruction.
2. Contention
Appellant contends that the trial court erred in refusing to instruct the jury on the defense-of-others defense. He argues that in refusing that instruction, the trial court ignored that Leflore was a convicted felon, had a propensity for violence and access to a gun, had been abusive towards Sylvary in the past, and the men in the apartment prevented Leflore from beating her after he pushed her on the bed. This contention is without merit.
3. The nature of the defense-of-other defense
"Lawful resistance to the commission of a public offense may be made: [¶] 1. By the party about to be injured; [¶] 2. By other parties." (§ 692.) Section 694 provides: "Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense."
4. Defense-of-others defense inapplicable
We conclude that the trial court was not required to instruct the jury on defense of others for multiple reasons. There was no evidence that Sylvary was in need of intervention by others. Leflore did nothing more than push Sylvary on the bed. He denied strangling, hitting or beating her or taking any further physical action against her after pushing her onto the bed. Contrary to appellant's argument, there was no evidence that the robbers prevented Leflore from beating Sylvary after pushing her onto the bed.
Also, and most importantly, there was no evidence that the force used was in an effort to prevent injury to Sylvary. Nothing was said to indicate that McKissic and the other men were coming to Sylvary's defense. They did not say, "Don't hurt Sylvary," but rather said, "Break it off," meaning give us your property. The threat of force by use of the guns was employed to rob Leflore; to take his jewelry, ransack his room and take other personal possession there. Defense of others is not a defense to robbery.
E. Inadequate aiding and abetting instruction
1. Contentions
Appellant contends that the trial court erred in failing to instruct the jury regarding the aider and abettor's after-acquired intent. He argues that the instructions "failed to convey the requirement that the defendant could be convicted as an aider and abettor only if he knowingly joined in the robbery before its completion," allowing the jury to convict "appellant as an aider and abettor without knowledge of the crime based solely on his possession of Leflore's property."
The People contend that appellant forfeited this contention by failing to object to the aiding and abetting instructions or to request addition or clarification to the instructions given. We agree with the People.
2. Forfeiture
Generally, '"[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language."' (People v. Hart (1999) 20 Cal.4th 546, 622.) Appellant does not complain that CALJIC No. 3.01 is an inaccurate statement of the law relating to aider and abettor liability, but rather that it is unclear or incomplete. Appellant was therefore obligated to request modification or clarification to elaborate on the aider and abettor's after-acquired intent and, failing to have done so, forfeited this contention. Even if this contention had been preserved for appeal, we would nonetheless find that there was no prejudicial error.
CALJIC No. 3.01 provides as follows: "A person aids and abets the commission or attempted commission of a crime when he or she: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice, or, by failing to act in a situation where a person has a legal duty to act, aids, promotes, encourages or instigates the commission of the crime. [¶] A person who aids and abets the commission or attempted commission of a crime need not be present at the scene of the crime. [¶] Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. [¶] Mere knowledge that a crime is being committed and in the absence of a legal duty to take every step reasonably possible to prevent the crime, the failure to prevent it does not amount to aiding and abetting."
3. Instructions adequately informed the jury that intent to aid and abet must be formed before or during carrying away of the stolen items
Appellant argues that the instructions inadequately explained to the jury that an aider and abettor of robbery had to knowingly join in the robbery before its completion. We disagree. The instructions as a whole were adequate.
CALJIC No. 3.01 informed the jury that appellant could only be guilty of robbery on an aiding and abetting theory if he knew of the unlawful purpose of the principal and with the intent to commit the crime aided, promoted, encouraged or instigated its commission. One cannot instigate, aid, encourage or promote an offense that has already been completed. Thus, CALJIC No. 3.01 by itself belies appellant's claim.
Further, CALJIC No. 9.40.1 provides that in determining whether a person is guilty as an aider and abettor of robbery, the commission of the robbery is not limited to a fixed time or place and continues so long as the stolen property is being carried away to a place of temporary safety. Thus, considered along with CALJIC No. 3.01, the jury was told that appellant could aid in the offense until the stolen property is carried to a place of safety.
CALJIC No. 9.40.1 provides: "For the purposes of determining whether a person is guilty as an aider and abettor to robbery, the commission of the crime of robbery is not confined to a fixed place or a limited period of time and continues so long as the stolen property is being carried away to a place of temporary safety."
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These instructions informed the jury that appellant had to have the intent to aid and abet the crime at a time when he could instigate, aid, encourage or promote it. These things could only occur before the crime has been completed.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
________________________________, J.
ASHMANN-GERST
We concur:
________________________________, P. J.
BOREN
________________________________, J.
CHAVEZ