Lead Opinion
Opinion
Defendant Rosario Montoya was convicted of burglary of an inhabited dwelling. Under the instructions given to the jury, its verdict could have been premised upon defendant’s being found guilty of burglary either as a direct perpetrator or as an aider and abettor.
As we shall explain, we conclude the People’s contentions are well taken. Accordingly, we affirm the judgment of the Court of Appeal, upholding defendant’s conviction.
I
By information, defendant Rosario Montoya and codefendant Raymond Gaxiola were charged with burglary of an inhabited dwelling, in violation of Penal Code section 460, former subdivision 1 (now Pen. Code, § 460, subd. (a)).
Because, in our discussion, we analyze the issue whether under the facts of this case the trial court was required to instruct sua sponte on a particular aspect of aiding and abetting, we consider it necessary to set forth in detail the evidence introduced during the jury trial that ensued on the remaining burglary charge against defendant.
On September 26, 1990, Candolita and her children spent the night at Hernandez’s apartment. On the following morning, Candolita drove Hernandez to work and the children to school, returned to the apartment, and departed again at approximately 8:45 a.m. At that time, a pole was in place in the door runway of the sliding glass door (which otherwise had no lock), opening onto a small fenced-in patio at the rear of the apartment. Candolita locked the front door, which had a key lock and dead bolt, using the only key available, which operated the dead bolt.
At approximately 10 o’clock that morning, Maria Perez left her apartment, which was located near Hernandez’s, and walked through the area behind the apartments toward her daughter’s nearby apartment in order to meet her son, Alfred Garza, who was to drive her to work. Perez observed an unoccupied green Datsun automobile (a 210 model) parked in the asphalt parking area behind the apartments, facing a dirt easement (which ran next to the fence enclosing Hernandez’s apartment patio and was too narrow for a vehicle). After approximately 10 minutes, Perez and her son, departing from her daughter’s apartment, observed that the doors and trunk of the green Datsun had been opened. As they drew near in Garza’s automobile, they noticed a man, identified as defendant, standing next to the passenger side of the vehicle, facing the open door, and holding up a map, which obscured his face from their view. Garza noticed another man, identified as Gaxiola, approaching along the dirt easement behind the apartments, carrying a television set. Perez told Garza to stop the automobile so that she could see “what was going on.”
Perez approached Gaxiola, who was standing next to the driver’s side of the vehicle with the television set in his hands, and asked what he was doing there. Gaxiola informed her “they were moving some things that belonged to
When Candolita returned to Hernandez’s apartment at approximately 10:30 that morning, she discovered that someone had entered the apartment, taken several items of property, and left several knives, peanut butter, jelly, and a loaf of bread on the kitchen table. Candolita telephoned Hernandez to inform her and, at Hernandez’s direction, telephoned the sheriff’s department and picked up Hernandez at work. At the apartment, Hernandez discovered that a television set, videocassette recorder, Nintendo game, radio, and some items of jewelry were missing. The women noticed a baseball cap on the couch that did not belong to anyone residing in the apartment.
Deputy Sheriff Kenneth Williams and several sheriff’s department investigators arrived at Hernandez’s apartment shortly before noon. They and the victim observed the sliding glass door leading to the patio was closed, but the pole was not in the door runway, and there were new pry marks and black finger marks on the sliding glass door indicating it had been tampered with. An ice chest cooler had been turned on its side and pushed next to the patio fence at the rear of the enclosed patio area. Across from the cooler, adjacent to the other side of the fence, stood a garbage can, which was some distance from the area in which it normally was stored. There was a drag mark in the dirt easement area outside the patio fence.
The investigators concluded that entry to the apartment had been effected through the sliding glass door. They discovered shoe tracks from two distinct pairs of shoes leading from the dirt easement, just outside the fence, approximately twenty feet to the parking area. Although the investigators were unable to determine that the tracks had been made by the shoes later seized from defendant and Gaxiola, they were unable to exclude that possibility.
After speaking with Garza, and within an hour after arriving at the Hernandez apartment, Deputy Williams departed in his patrol vehicle. He soon noticed a green Datsun, model 210, emerging from an alley in the vicinity of the apartment and observed that the vehicle, its license number, and the persons inside corresponded to the information supplied by Garza. When Deputy Williams pulled his vehicle behind the green Datsun, it accelerated and made several turns. After Deputy Williams activated his red
Deputy Williams subsequently received advice (apparently from Gaxiola) to contact Belia Melendes, with whom defendant lived at an apartment located approximately eight blocks from Mount Vernon Street. After obtaining Melendes’s permission to search the apartment, Williams discovered defendant hiding in the attic space, wrapped in a sheet. After being advised of his Miranda rights (Miranda v. Arizona (1966)
Later that same day, while incarcerated, Gaxiola made a number of telephone calls to Salcido as well as to Candolita and Hernandez at the latter’s residence. Initially, he denied involvement in the burglary, claiming he simply had accompanied friends who said they were moving property belonging to an aunt, and disclaimed knowledge that the apartment was Hernandez’s residence. In subsequent telephone calls, however, Gaxiola provided specific information as to the location of most of the property and offered to replace the Nintendo game. Through the information supplied by Gaxiola, officers located the television set and the videocassette recorder at an apartment on Larcus Street. The residents of that apartment informed the officers they had purchased the property for $200 from two Hispanic men who had come to their door offering to sell the items. The officers also seized another television and videocassette recorder that the residents stated they previously had purchased from the same two men.
The defense presented the following evidence to the jury. Gaxiola, a heroin user who admitted having suffered three prior convictions for burglary in 1980, 1982, and 1987, and a conviction for receiving stolen property -4n 1986, testified he had been acquainted with defendant since August 1990. During the period Gaxiola was involved with Salcido, the two of them had visited Hernandez’s apartment on several occasions between the latter part of 1989 and the summer of 1990, and Gaxiola also had visited Hernandez’s boyfriend, Jay, several times at the apartment. On one occasion, while Jay
At approximately 10 a.m. on September 27, 1990, Gaxiola appeared at defendant’s apartment and told him Gaxiola needed help in retrieving his property from his girlfriend’s residence. Gaxiola drove with defendant in a borrowed vehicle to the area behind Hernandez’s residence, where defendant accompanied Gaxiola to the front door. Gaxiola unlocked the dead bolt lock and instructed defendant to return to the vehicle and lower the rear seat in order to make more space for the items to be transported. Finding no one home, Gaxiola entered alone through the front door of Hernandez’s apartment. He carried the television set out the front door along the walkway to the Datsun, placed it on the ground, returned with the videocassette recorder and other items, and was preparing to load the television set into the Datsun when he was approached and questioned by Perez. Gaxiola then reentered the apartment, opened the sliding glass door at the rear of the apartment, called to defendant, and handed him a sandwich over the back fence. Upon hearing someone knocking at the front door, Gaxiola left through the sliding glass door leading to the patio, scaling the back fence after tossing a Nintendo game and a bag of other items over the fence. According to Gaxiola, defendant did not assist Gaxiola, was unaware Gaxiola was committing a burglary, and was not acting as a “lookout.”
Gaxiola told defendant that the articles belonged to him and that he wished to sell them. The two men proceeded to the apartment on Larcus Street where, with defendant’s assistance as a Spanish interpreter, Gaxiola sold the property. Gaxiola did not share any of the proceeds of the sale with defendant.
Defendant testified in his own behalf, admitting three prior convictions for forgery. At the time of the burglary, he had known Gaxiola approximately one month and did not know where Gaxiola lived. Although Gaxiola never had “fixed” at defendant’s residence, Gaxiola had mentioned heroin on several occasions. Several days prior to the date of the burglary, Gaxiola had driven defendant (who never had driven the Datsun because he did not know how to operate a manual transmission) to an apartment (not Hernandez’s), telling defendant he was picking up property at a friend’s residence. They subsequently transported the items obtained by Gaxiola (a videocassette recorder, a microwave, and a television set) to an apartment on Larcus Street, where, with defendant acting as a Spanish interpreter, Gaxiola sold the items to the occupants. Defendant did not know Gaxiola was selling stolen property. Defendant did not consider it unusual that Gaxiola collected property from one location and sold it elsewhere, because Gaxiola knew a great number of persons.
After defendant returned to the vehicle and lowered the rear seat, Gaxiola appeared, carrying a television set, which he placed near the Datsun. While defendant waited, he smoked a cigarette and began to read a map. At one point, Gaxiola called to him from inside the apartment and offered him a sandwich, which Gaxiola handed to him over the back fence. Defendant asked Gaxiola to “hurry up” and walked back to the vehicle. Gaxiola returned with a sack and a Nintendo game. Defendant was aware Gaxiola left the premises “through the back,” although he did not observe Gaxiola climb over the fence. A woman (presumably Perez) then approached and spoke with Gaxiola, but defendant did not hear their conversation. When she departed, Gaxiola placed the television set inside the vehicle and drove off with defendant.
Gaxiola proceeded to the same apartment on Larcus Street where they had sold other items several days previously. Defendant acted as a Spanish interpreter while Gaxiola sold items taken from Hernandez’s apartment, but defendant did not receive any proceeds of the sale. Gaxiola returned defendant briefly to his apartment, but they subsequently drove around until apprehended by Deputy Williams. Defendant attempted to escape and furnished a false name at the time he was apprehended, because he was on parole and already had violated the terms of his parole by failing to report his current address.
The trial court instructed the jury as to the elements of burglary and as to liability on a theory of aiding and abetting. Defendant did not request, and the trial court did not provide, any instruction informing the jury as to what point in time defendant must have formed the intent to commit, encourage, or facilitate the offense of burglary in order to be found guilty on a theory of
On appeal, defendant contended the trial court erred in failing to instruct sua sponte that, in order to be found guilty on a theory of aiding and abetting, defendant must have formed the requisite intent prior to or at the time of an entry by Gaxiola into the residence.
II
The prosecution offered two theories upon which defendant could be convicted of burglary, asserting that defendant either personally entered the residence with Gaxiola in order to commit a theft, or aided and abetted Gaxiola in the latter’s commission of the offense. Before deciding whether, in light of the evidence presented at trial, the trial court erred in failing to instruct the jury sua sponte that an aider and abettor, prior to or at the time of an entry by the perpetrator, must have formed the intent to commit, encourage, or facilitate the commission of the offense, we first must determine the duration of the offense of burglary for purposes of the liability of an aider and abettor, because the intent of an aider and abettor must be formed before or as the offense is being committed.
Because section 31 defines as principals all who directly commit a given offense or who aid and abet in its commission, the same criminal
It is settled that if a defendant’s liability for an offense is predicated upon the theory that he or she aided and abetted the perpetrator, the defendant’s intent to encourage or facilitate the actions of the perpetrator “must be formed prior to or during ‘commission’ of that offense.” (People v. Cooper (1991)
Defendant relies upon a line of Court of Appeal decisions that have concluded that, because the crime of burglary is complete (that is, all of the
The People maintain that the reasoning of these decisions is inconsistent with the analysis contained in this court’s decision in People v. Cooper, supra,
In People v. Cooper, supra,
In Cooper, we rejected the defendant’s contention, concluding that the temporal threshold for establishing guilt—a fixed point in time at which all elements of the substantive offense are satisfied so that the offense itself may be considered to have been “initially committed” rather than simply attempted—is not synonymous with the “commission” of that crime for the purpose of determining aider and abettor liability. (
Applying this analysis to the crime of robbery, we determined in Cooper that the crime of robbery is not completed, for aiding and abetting purposes, at the point in time at which the perpetrator has committed sufficient acts to satisfy all the elements of robbery. Instead, relying upon the circumstance that asportation (carrying away) of the stolen property is a distinct element of the crime of robbery, we concluded that, for the purpose of aiding and abetting, the duration of a robbery extends to the carrying away of the stolen property to a place of temporary safety. We held in this regard that “for conviction of the more serious offense of aiding and abetting a robbery, a getaway driver must form the intent to facilitate or encourage commission of the robbery prior to or during the carrying away of the loot to a place of temporary safety.” (
In the course of our discussion in Cooper, we noted that the crime of burglary, unlike robbery, does not include asportation as one of its elements, and thus, for the purpose of aiding and abetting, liability for burglary would not extend to a person who simply aided a burglar in the asportation of the stolen property after its removal from the burgled structure. (See
The crime of burglary consists of an act—unlawful entry—accompanied by the “intent to commit grand or petit larceny or any felony.” (§ 459.)
It does not follow, however, that once the offense itself has been initiated, that is, the perpetrator has entered the structure with the requisite intent, an individual who, with knowledge of the perpetrator’s unlawful purpose, thereafter forms the intent to commit, facilitate, or encourage commission of the offense by the perpetrator while the perpetrator still remains inside the structure, is not liable as an aider and abettor.
In People v. Gauze (1975)
Although the decisions generally have emphasized this aspect of the danger to personal safety created by the offense of burglary, other authority, involving factual circumstances in which actual danger appears not to exist or is relatively minor, and relying upon the purpose of the statute to protect against an invasion of a possessory right, has concluded that the threat to property interests alone, created by the burglar’s entry and continued presence inside the structure, supports a finding of burglary. (People v. Salemme, supra,
It is manifest that the increased danger to the personal safety of the occupant, and the increased risk of loss or damage to his or her property contemplated by the statutory proscription, do not terminate at the moment entry is accomplished, but rather continue while the perpetrator remains inside the structure. Certainly, an absent occupant could return at any moment and be faced with the danger created by the prior entry. Thus, one who learns that the perpetrator unlawfully has entered with intent to commit a felony or theft, who forms the requisite intent to assist, and who does assist—by independently contributing to the commission of the crime or by otherwise making it more likely that the crime will be successfully completed than would be the case absent such participation (People v. Brady, supra,
Moreover, as long as the perpetrator remains inside the structure, the increased danger to the personal safety of the occupant and the increased risk of loss or damage to his or her property continues, whether the perpetrator commits a felony or theft different from that intended at the time of entry, or even if no felony or theft is completed. The appearance and assistance of an aider and abettor, even if belated, contribute to and perpetuate this increased danger and risk. For example, an individual might learn of the perpetrator’s earlier entry with the requisite intent, form his own intent to facilitate that
Nor should the liability of an individual for aiding and abetting a perpetrator be negated by the circumstance that the aider and abettor forms the intent to assist in the commission of the offense only after entry by the perpetrator. We understand the concern articulated by the Court of Appeal in People v. Brady, supra,
In People v. Croy (1985)
Therefore, if an individual happens upon a scene in which a perpetrator unlawfully has entered with intent to commit a felony or theft, and,
Our determination that, for the purpose of assessing the liability of an aider and abettor, a burglary is considered ongoing during the time the perpetrator remains inside the structure finds additional support in the analysis of sexual offenses, which, because of their similar element of unwanted personal invasion, may be analogized to the invasive act comprising a burglary. (See People v, Escobar (1992)
We next apply the above described rule in the context of the present case, in which the perpetrator made several entries and exits of the burgled
Our reasoning is consistent with that of the Court of Appeal in People v. Escobar, supra,
Ill
Having concluded that the intent of an aider and abettor need not be formed prior to final entry by the perpetrator, and, therefore, that CALJIC No. 14.54 as presently drafted is an incorrect statement of the law and should not be given in any case, we now determine whether, in light of the conclusion we have reached as to the duration of burglary for purposes of aider and abettor liability, the trial court adequately instructed the jury on the issue of aiding and abetting. It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case. (People v. Cummings (1993)
In the present case, in addition to instructing the jury pursuant to CALJIC No. 3.01 (aider and abettor is one who, with requisite knowledge and intent, facilitates commission of the offense)
The prosecution’s case-in-chief supported the theory that defendant was aware of Gaxiola’s intent to commit a burglary and formed the intent to assist him in that enterprise prior to its commencement. There is scant evidence to suggest it was only after Gaxiola’s departure that defendant belatedly learned a burglary was being committed. Although defendant testified he had assumed that by referring to his “stuff,” Gaxiola intended to remove his own clothing from the residence, in fact Gaxiola removed a
Nor did the prosecutor’s argument promote the theory that defendant formed the intent to facilitate the burglary at some point after Gaxiola’s departure. (See People v. Brown (1988)
In contrast to the prosecutor’s position that defendant was aware of the intended burglary from the outset, the principal theory presented by the defense was that defendant was unaware of the burglary not only during its commission, but even afterward, when he and Gaxiola sold the stolen property. Both Gaxiola and defendant testified defendant was unaware Gaxiola intended to, and did, commit a burglary. They testified specifically that Gaxiola had told defendant that Gaxiola was retrieving his own belongings from the apartment. Defendant expressly denied having heard the exchange between Gaxiola and Perez in which Gaxiola made the inconsistent statement that the property belonged to his cousin. Defendant further explained he had told Gaxiola to “hurry up” because he had not informed his girlfriend, Melendes, where he was going when they left his apartment that morning. Additionally, Gaxiola testified defendant “never” knew about the burglary, and defendant testified he “never” knew Gaxiola had stolen anything from the dwelling. Gaxiola testified he told defendant, prior to their sale of the items, that Gaxiola owned the property, and he did not share the proceeds with defendant. Defendant asserted he believed at the time that the property belonged to Gaxiola and did not consider it unusual that the two of them returned to sell the property at the same apartment where they had sold items
Finally, the argument of defense counsel did not emphasize any interpretation of the evidence other that the foregoing. Defense counsel argued that defendant was unaware a crime was being committed, also asserting that even if defendant had known that a crime was being committed, mere knowledge, in the absence of acts in assistance, was insufficient to establish defendant’s liability as an aider and abettor. Defense counsel did not argue that defendant formed the intent to facilitate the offense only after Gaxiola departed from the dwelling.
In view of the evidence presented and the arguments advanced by the parties, the significance of the precise time at which defendant must have formed the requisite intent in order to be liable as an aider and abettor was not an issue “closely and openly” connected with the case. As we have seen, the prosecution’s evidence suggested that defendant knowingly intended from the outset to assist in the commission of the burglary, whereas defendant maintained primarily that he was unaware of the burglary throughout the incident and never intended to facilitate its commission. Under these circumstances, the trial court was under no obligation to sift through the evidence to identify an issue that conceivably could have been, but was not, raised by the parties, and to instruct the jury, sua sponte, on that issue. (See, e.g., People v. Wade (1959)
IV
We conclude that a person who, with the requisite knowledge and intent, aids the perpetrator, may be found liable on a theory of aiding and abetting if he or she formed the intent to commit, encourage, or facilitate the
Lucas, C. J., Kennard, J., Arabian, J„ Baxter, J., and Lillie, J.,
Notes
All further statutory references are to the Penal Code.
The information also alleged that the offense was a serious felony within the meaning of section 1192.7, subdivision (c)(18), and that the offense rendered both defendants ineligible for probation pursuant to section 462, subdivision (a). In connection with the burglary charge, defendant also was alleged to have suffered three prior convictions for which he served separate prison terms within the meaning of section 667.5, subdivision (b). Prior to the commencement of defendant’s trial, proceedings to determine the truth of the prior conviction allegations were bifurcated (subject to admission of the allegations for purposes of impeachment, should defendant testify).
In rebuttal, however, Candolita testified that, when she left the apartment that morning, she locked the doorknob lock and left the dead bolt unlocked.
Defendant subsequently admitted the three allegations of prior convictions with service of prison terms and was sentenced to the upper term of six years on the burglary and to a consecutive one-year term for one of the prior conviction allegations (the court staying the terms on the two remaining allegations).
Such an instruction is embodied in CALJIC No. 14.54 (1989 new) (5th ed. pocket pt.), providing that, “In order for an accused to be guilty of burglary as an aider and abettor, [he] [she] must have formed the intent to encourage or facilitate the perpetrator prior to the time [that person] [ ] made the entry into the [inhabited dwelling] with the required specific intent.”
In his petition for review, defendant raised the issue whether the trial court was required to instruct sua sponte that the intent of an aider and abettor must be formed prior to, or at the time of, an entry into the building by the perpetrator. Subsequently, we requested that the
Section 31 provides: “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, . . . are principals in any crime so committed.” The jury was so instructed in the present case. (CALJIC No. 3.00 (5th ed. 1988 bound vol.).)
“[I]n accord[] with the clear trend, the accessory after the fact is no longer treated as a party to the underlying felony, as at common law. This kind of accessory is coming to be recognized for what he is: an ‘obstructer’ of justice, the author of a separate and independent offense.” (1 Wharton’s Criminal Law (15th ed. 1993) Parties, § 35, p. 210, in. omitted; see People v. Balderas (1985)
Although in the typical case, the intent of the burglar is to commit theft (whether felony or misdemeanor), the relevant statute provides, and the decisional law establishes, that the intent to commit any felony will sustain a conviction of burglary. (§ 459; see, e.g., People v. Hicks (1993)
Although the Attorney General has not contended otherwise, we observe, in accordance with our analysis in People v. Cooper, supra,
We also note that this case presents the issue of an aider and abettor’s liability only for
In the present case, defendants were charged with and convicted of a single burglary, and the evidence demonstrates that the multiple entries were “committed pursuant to one intention, one general impulse, and one plan.” (People v. Bailey (1961)
As given in the present case, the instruction, based upon CALJIC No. 3.01 (5th ed. 1988 bound vol.), provided: “A person aids and abets the commission of a crime when he or she,
The version of CALJIC No. 3.14 (1979 rev.) upon which the instructions given in the present case were based provided: “Merely assenting to or aiding or assisting in the commission of a crime without knowledge of the unlawful purpose of the perpetrator is not criminal, and a person so assenting to, or aiding, or assisting in, the commission of a crime without such knowledge is not an accomplice in the commission of such crime.”
As given in the present case, the instruction, based upon CALJIC No. 14.50 (5th ed. 1988 bound vol.), provided: “Defendant is accused in the information, of having committed the crime of burglary, a violation of Section 459 of the Penal Code. [1] Every person who enters any dwelling house, with the specific intent to steal, take and carry away the personal property of another of any value and with the further specific intent to deprive the owner permanently of such property is guilty of the crime of burglary in violation of Penal Code, Section 459. [1] It is immaterial whether the intent with which the entry was made was thereafter carried out. [f] In order to prove such crime, each of the following elements must be proved: [f] l.A person entered a dwelling house. [<][] 2. At the time of the entry, such person had the specific intent to steal and take away someone else’s property, and intended to deprive the owner permanently of such property.”
As given in the present case, the instruction, based upon CALJIC No. 3.31 (1989 rev.), provided: “In the crime charged in the information, namely, burglary, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless such specific intent exists the crime to which it relates is not committed, [f] The specific intent required is included in the definition of the crime charged.”
Presiding Justice, Court of Appeal, Second Appellate District, Division Seven, assigned by the Acting Chairperson of the Judicial Council.
Concurrence Opinion
I dissent from part II of the majority opinion. The majority, in apparent fervor to expand the scope of aider and abettor liability, revise by judicial decree the centuries-old definition of the crime of burglary. Such innovation is warranted neither by statute nor precedent. The conclusion that an aider and abettor to a burglary must form his burglarious intent prior to the perpetrator’s entry is a corollary of the axiomatic principle that the perpetrator of a burglary must possess the requisite pre-entry intent.
Current CALJIC No. 14.54, which provides that one convicted of aiding and abetting a burglary “must have formed the intent to encourage or facilitate the perpetrator prior to the time [that person] [] made the entry into the [structure] with the required specific intent” therefore correctly states the law, and the majority are wrong to discard it.
Nonetheless, I join the majority in affirming defendant’s conviction because I agree that the trial court had no sua sponte duty to give a CALJIC No. 14.54 instruction in this case.
I.
“Every person who enters any house [or other defined structure] . . . with the intent to commit grand or petit larceny or any felony is guilty of burglary.” (Pen. Code, § 459.) As this court declared more than 100 years ago, the crime of burglary is complete once a perpetrator has entered a structure with felonious or larcenous intent. “The . . . entry and the intent being found or given, the crime would be complete even though it should turn out that, contrary to the calculations of the burglar, the building was empty. The sting of the crime is, in short, the guilty purpose, without reference to the possibility of accomplishing it . . . .” (People v. Shaber (1867)
To state that the crime of burglary is finished at the point of entry is not to assert the counterintuitive proposition that criminal activity has ceased at that point, but merely to recognize that the burglary has terminated, and the felony or theft that motivates the burglar commences or continues. Although common usage might refer to a “burglary in progress” once the burglar has entered a dwelling, the statutory law considers the crime of entry with felonious or larcenous intent—i.e., the burglary—as distinct from the actual felony or larceny intended. Similarly, the law differentiates between the criminal who forms his felonious or larcenous intent before entry into a dwelling and the one who forms a postentry criminal intent, and for good reason: one who enters a dwelling with felonious or larcenous intent possesses a different culpability, and poses a different kind of threat to society, than the innocent entrant who subsequently conceives a criminal purpose.
An aider and abettor to a specific intent crime must share the specific intent of the perpetrator. (People v. Beeman (1984)
It follows from these elementary principles that one who did not intend to aid the perpetrator at the point of the perpetrator’s entry into the structure did not aid and abet a burglary, since that person did not have the requisite intent at the time the burglary occurred. Rather, one who forms the intent to assist the burglar’s larcenous or felonious activity after the burglar’s entry would be guilty of aiding and abetting that larceny or felony, but not the burglary. Like the similarly situated perpetrator accused of burglary, the aider and abettor innocent of assisting the burglar’s entry is guilty of a different kind of offense than one who assisted that entry with the requisite intent.
In this case, the elements of a burglary are, as discussed above, entry into a house or other defined structure with intent to commit larceny or a felony. Unlike the case of asportation of stolen goods, in which the word “asportation” could be understood to mean an act occurring over a period of time, the duration of the “entry” element in a burglary is confined by definition to the fixed point at which entry occurs. Thus this case departs from Cooper in that its analysis of the duration of the crime for aider and abettor purposes is no longer tied to a determination of the length of time of the acts that constitute the elements of the crime; the majority assert instead that the crime somehow continues after performance of all the elements of the crime have ceased.
In order to arrive at their conclusion, the majority resort to a facile comparison to the crime of rape, drawn from a footnote in the Cooper opinion. “ ‘[T]he rape victim . . . would not agree that the crime was completed once the crime was initially committed (i.e., at the point of initial penetration)’, but rather would consider the offense not to have ended ‘until all of the acts that constitute the rape have ceased.' . . . ‘[T]he unknowing defendant who happens on the scene of a rape after the rape has been initially committed and aids the perpetrator in the continuing criminal acts’ reasonably would be found to have formed the intent to facilitate the rape during the commission of the rape.” (Maj. opn., ante, at pp. 1040-1041, quoting Cooper, supra, 53 Cal.3d at pp. 1164-1165, fn. 7.)
Burglary, on the other hand, is defined in terms of entry. Nonconsensual entry with felonious or larcenous intent is not the minimuih one must perform for a burglary, it is the definition of burglary itself. Again, although there are act elements of the crimes of robbery and rape—asportation and sexual intercourse respectively—that may be performed over an extended period of time, leading to a disjunction between the “threshold of guilt-establishment” of the crime and the complete “commission” of the crime (People v. Cooper, supra,
The majority also attempt to justify their holding by quoting our observation in People v. Gauze (1975)
The majority conclude that this interest in personal safety defines the duration of the crime. “The appearance and assistance of an aider and
Yet Gauze’s insight that the law of burglary is primarily interested in protecting personal safety cannot be used to justify the expansion of the statutorily defined liability for burglary. Indeed, the conviction of burglary in Gauze was reversed by this court. If the crime of burglary is intended to punish the unlawful entrant with the requisite intent, or his assistant, the larceny or felony laws are intended to punish one who, being innocent of helping the unlawful entry, assists the burglar in completing his criminal designs. The prosecution of the aider and abettor for the assistance in the commission or attempted commission of the felony or larceny that almost invariably follows a burglary is sufficient to protect personal safety against such postentry assistance of a burglar’s criminal enterprise.
Finally, the majority misread our pronouncements on aider and abettor liability in People v. Croy (1985)
For all of the foregoing, I believe the majority err in concluding that an aider and abettor who forms a postentry intent to aid a burglar to carry out a
II.
While dissenting from the majority’s conclusion that the duration of a burglary lasts until the perpetrator’s departure from the structure, rather than entry, I would affirm the judgment because I agree that, in this case, the judge had no sua sponte duty to give CALJIC No. 14.54 or a similar instruction. Although the evidence in this case certainly could have been interpreted to lead the jury to the conclusion that the defendant formed his intent to assist the perpetrator’s criminal activity after the perpetrator had entered the structure, neither the prosecution nor the defense relied on such a theory, nor was that theory conspicuously implied from the evidence presented. Therefore, although it would have been proper for the trial court to have given the jury a CALJIC No. 14.54 instruction if so requested, the majority correctly conclude that the trial court was not obliged to uncover on its own theories that the evidence presented would not “strongly illuminate and place before [it].” (People v. Wade (1959)