Ct.App. 2/1 B220174 Los Angeles County Super. Ct. Nos. BA337662/BA348502
The opinion of the court was delivered by: Werdegar, J.
Defendant Mildred Delgado was convicted of robbery (Pen. Code, § 211)*fn1 and kidnapping for purposes of robbery (§ 209, subd. (b)(1)), on evidence from which a jury could have determined an accomplice, rather than defendant, personally performed the act of asportation necessary to the offense of kidnapping. He contends the trial court erred in failing to instruct, sua sponte, on the law of accomplice liability. We conclude the court was required to instruct on aiding and abetting liability as a general legal principle raised by the evidence and necessary for the jury's understanding of the case. (People v. Prettyman (1996) 14 Cal.4th 248, 265.)
We also conclude the error was harmless. The jury was fully instructed on the elements of kidnapping for robbery, including asportation, and found those elements proven beyond a reasonable doubt. Instructions on the liability of an aider and abettor would merely have provided additional theories of defendant's liability; their absence could not have prejudiced defendant. Moreover, the circumstantial evidence defendant was working with the apparent accomplice to kidnap and rob the victim was strong. No reasonable probability (People v. Watson (1956) 46 Cal.2d 818, 836) exists of a more favorable outcome had accomplice liability instructions been given.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with kidnapping Melvin Perez to commit robbery (§ 209, subd. (b)(1)) and with robbing Perez (§ 211), as well as with the unrelated robbery and assault of a different victim.
Perez testified that on the evening of March 1, 2008, after drinking around six beers at home, he went to El Charo bar in Los Angeles. On the way, he encountered and talked briefly with defendant, who followed him into El Charo, where Perez treated him to a beer and the two drank together. Defendant suggested Perez come with him to a friend's house to get some money or drugs, but Perez declined. Defendant left; Perez stayed and continued drinking, having a total of eight beers at the bar. At some point, a woman who had seen defendant staring at Perez telephoned Perez's cousin, who lived with Perez. The cousin came to the bar and offered to drive Perez home. Perez stayed but, at his cousin's request, gave him the jewelry he was wearing (chains, a bracelet, a ring, and a watch) for safekeeping.
Defendant returned some hours later, as the bar closed and Perez left. Defendant was standing by a car near the entrance; a woman was in the driver's seat. Defendant asked Perez if he wanted a ride and, when Perez declined, grabbed Perez by the shoulder and ushered him into the backseat, saying, "Come on, let's go in." Perez agreed to go because he was drunk. Defendant got into the front passenger seat and the car drove a few blocks, then stopped. Defendant climbed into the backseat with Perez.
Perez asked what was going on, and defendant told him to shut up. Perez tried to get out of the car, but the driver locked the door from the front seat. Defendant started searching Perez's pockets, asking him about his jewelry. Perez said he did not have it, that someone had already robbed him. Defendant displayed a knife. As the two struggled in the backseat, the car began moving again. Defendant took Perez's wallet, with $100 or $150 in it, from his pants pocket and stabbed Perez in the ribs and on his forehead. Perez felt himself being pushed and lost consciousness. When he woke up, he was near his apartment building. People on the street saw he was bloody and called for help.
About 10 days later, Perez saw defendant on the street and, after calling the police, asked, "Hey, you're the guy who robbed me, huh?" Defendant responded, "Yeah, so what." The police arrived and arrested defendant. Defendant admitted to police he had gotten Perez into the car, which a woman was driving, in order to rob him. He stabbed Perez only after Perez hit him in the face. The detectives later inspected an Isuzu Trooper registered to Myra Gonzalez at a Los Angeles address near the crime scene, which bore bloodstains on a rear interior door panel. Written on a calendar in the vehicle was the notation "Myra and Mildred." (Mildred is defendant's first name.)
Testifying in his own behalf, defendant said he returned to El Charo around closing time because Perez and he had agreed to go back to Perez's home to drink more beer. He saw a woman he knew as Myra, who ran an informal taxi service, in a car outside the bar. As Perez left the bar, he got into the backseat of the car; defendant then followed by getting in the front. They were heading for an address Perez had given the woman when Perez made an insulting remark to defendant. Defendant got in the backseat and told Perez to calm down, but Perez hit him with a beer bottle. Defendant pushed or hit Perez, whose forehead hit the corner of the door. Perez then injured his abdomen by pushing himself against the knife defendant was holding in his hand. Defendant never intended to rob Perez.
The jury was instructed that to prove defendant's guilt of kidnapping for the purpose of robbery, the People needed to prove defendant intended to commit robbery, "took, held, or detained another person" by use of force or fear, and "moved the other person or made the other person move a substantial distance" beyond that merely incidental to the commission of robbery. (See CALCRIM No. 1203.) No instructions on the complicity of an aider and abettor, such as those contained in CALCRIM Nos. 400-401, were requested or given.
The prosecutor's theory of kidnapping, as expressed in argument to the jury, was that defendant held or detained Perez by force or fear when he climbed into the backseat, displayed a knife, and struggled physically with him (the prosecutor disavowed any claim defendant initially forced Perez into the car). Defendant then "made Melvin Perez move a substantial distance" by keeping him from exiting the moving vehicle until he finished robbing him.
Defense counsel argued the element of asportation had not been satisfied because defendant "wasn't driving the car. Another person was driving the car. There's no evidence presented in this case that Mr. Delgado instructed or ordered the female driver to take off or drive the car." In rebuttal, the prosecutor maintained defense counsel's asportation argument misrepresented the law. "[W]hat he is arguing is the fact that the defendant wasn't driving the car, then he can't be guilty of kidnapping for robbery. Well, that's not what it [the kidnapping instruction] says. . . . [¶] So if in any situation you have somebody else doing the driving, then you're not going to be guilty of kidnapping for robbery? [¶] He was working with this other person. The other person was driving. It appears that during this robbery and the struggle for many blocks, this person continued to drive while this struggle was going on."
The jury convicted defendant of the robbery and kidnapping for robbery of Perez.
The Court of Appeal affirmed. Relying on Cook v. Lamarque (E.D.Cal. 2002) 239 F.Supp.2d 985, and rejecting the Attorney General's reliance on People v. Cook (1998) 61 Cal.App.4th 1364, the appellate court held that because the evidence at trial supported a theory defendant did not directly move the victim but did aid and abet the driver to do so, the trial court was obliged to instruct on principles of accomplice liability as to the kidnapping charge. Treating the error as equivalent to the failure to instruct on an element of an offense, the court nonetheless held it was harmless beyond a reasonable doubt in light of the strong evidence defendant and the female driver acted together according to a preconceived plan.
We granted defendant's petition for review.
Under section 31, "[a]ll persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed." "A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)*fn2
As we explained in People v. McCoy (2001) 25 Cal.4th 1111, 1120, "the dividing line between the actual perpetrator and the aider and abettor is often blurred. It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator." In McCoy, the two defendants had jointly participated in a fatal driveby shooting; the evidence showed both had shot their weapons, but only one caused the victim's death. Comparing the two defendants' liability for the homicide, we noted the overlap between direct perpetration of a crime and aiding and abetting in it. "Although Lakey was liable for McCoy's actions, he was an actor too. He was in the car and shooting his own gun, although it so happened that McCoy fired the fatal shots. . . . In another shooting case, one person might lure the victim into a trap while another fires the gun; in a stabbing case, one person might restrain the victim while the other does the stabbing. In either case, both participants would be direct perpetrators as well as aiders and abettors of the other. The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices' actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role." (Ibid.)
"Every person who 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 country, state, or county, or into another part of the same county, is guilty of kidnapping." (§ 207, subd. (a).) Section 209, subdivision (b)(1) prescribes greater punishment for aggravated kidnapping where the accused "kidnaps or carries away any individual to commit robbery . . . ." Kidnapping for robbery requires asportation, i.e., movement of the victim that is not merely incidental to the commission of the robbery and that ...