People v. Garrison

BROUSSARD, J.

I concur in the affirmance of the judgment as to guilt and the finding of one multiple-murder special circumstance. I concur in the setting aside of the second multiple-murder special circumstance, the witness-killing special circumstance, and the felony-murder (burglary) special circumstances. I concur also in reversing the death judgment. I dissent, however, from the affirmance of the felony-murder (robbery) special circumstances.

In People v. Anderson (1987) 43 Cal.3d 1104 [240 Cal.Rptr. 585, 742 P.2d 1306], we held that when the defendant is an aider and abettor rather than the actual killer, the defendant’s intent to kill must be proved before a felony-murder special circumstance can be found true. (43 Cal.3d at p. 1139.) Since in this case the jury could have found defendant an accomplice in the felony murder, rather than the actual killer, the majority concede that it was error to fail to instruct the jury that defendant’s intent to kill must be proved before it could find the felony-murder special circumstances true. The majority find, however, that because the jury made a true finding as to the witness-killing special circumstance, which requires a finding of intent to kill, the jury found that the victims were intentionally killed. The majority acknowledge that the jury could have found the witness-killing allegation true on the theory that defendant aided and abetted an intentional killing; nonetheless the majority conclude that even under the faulty aiding and abetting instructions given, the witness-killing finding established that the jury found that defendant intended to kill.

I part company with the majority in analyzing the effect of the faulty aiding and abetting instruction on the elements necessarily established by the finding of the witness-killing special circumstance.

*796In People v. Beeman (1984) 35 Cal.3d 547 [199 Cal.Rptr. 60, 674 P.2d 1318], we held that a defendant’s liability as an aider and abettor required proof that he intended to commit or facilitate the commission of the offense. (Id. at pp. 560-561.) We said that the standard jury instructions on aiding and abetting, given also in this case, were inadequate. They required proof that defendant did an act which aided the perpetrator, with knowledge of the perpetrator’s purpose, but did not require that defendant intend to commit or facilitate commission of the offense. (Id. at pp. 555, 560-561; see also People v. Croy (1985) 41 Cal.3d 1, 11-12 [221 Cal.Rptr. 592, 710 P.2d 392].)

The majority conclude that it is inconceivable that a jury could have found that defendant did an act which aided the intentional killing of a witness, with knowledge of the perpetrator’s purpose, without sharing the perpetrator’s intent to kill. “Because of the manner in which defendant defended the case—denial that he in any way aided in the killing—there is no way for the jury to find that he ‘aided’ the killing only ‘accidentally’ or ‘unintentionally.’ [Citation.]” (Maj. opn. at p. 790.)

Actually, the jury need never have considered whether defendant did an act which aided the intentional killing of a witness, with knowledge of the perpetrator’s purpose. A jury is not instructed to apply the aiding and abetting instructions separately to each charged act. On the contrary, the aiding and abetting instruction is given but once, and it informs the jury that the defendant who is liable as an accomplice is vicariously liable for the natural and probable consequences of his confederate’s criminal acts. Thus the jury in this case was instructed: “One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.” The jury need only have found defendant liable as an aider and abettor in the robberies of the victims; the felony-murder verdict1 and the findings on the felony-murder special circumstances and witness-killing special circumstance could follow without reconsideration of whether defendant did any further act which aided, or had knowledge of the perpetrator’s further purpose to kill the victim.

Moreover, even a proper aiding and abetting instruction would not have assured us that the jury found that defendant, as an accomplice, shared the *797perpetrator’s intent to kill a witness. Accomplice liability depends upon a general criminal intent, not upon shared intent to commit the target offense. We made this point in People v. Cray, supra-. “[A] defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably forseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman [(1984) 35 Cal.3d 547] holds must be found by the jury. [Citation.]” (41 Cal.3d at p. 12, fn. 5.)

I cannot say with certainty that because the verdicts establish that defendant must have done an act which aided a robbery, with knowledge of the perpetrator’s purpose, that it is established that defendant shared the perpetrator’s intent to kill. It should be remembered that the jury was unable to reach a verdict on the allegations that defendant personally used a weapon in committing each offense. This indicates that the jurors were not able to agree on whether defendant, or his accomplice Roelle, was the actual killer. They could have decided that Roelle was the killer, and defendant an accomplice. Such a theory would condemn defendant for the felony murders, without ever requiring consideration of whether defendant shared Roelle’s intent to kill. Defendant’s complete denial does not change the fact that the jury may never have considered whether he had the intent to kill the victims. Under this state of facts, I cannot agree that it was harmless beyond a reasonable doubt to fail to instruct the jury of the intent to kill requirement for accomplice liability in the felony-murder special-circumstances allegations.

Mosk, J., concurred.

Petitions of both parties for a rehearing were denied March 30, 1989. Broussard, J., was of the opinion that appellant’s petition should be granted.

As in any first degree felony-murder case, the jury was instructed that a defendant is guilty of first degree murder for any homicide which results from an enumerated felony, whether the killing was intentional or accidental. (See CALJIC No. 8.21.) It was further instructed that all those involved in a conspiracy to commit a robbery are jointly liable for any killing in the course of the felony, so long as the killing is committed in furtherance of the felony. (See CALJIC No. 8.26.)