People v. Cooper

KENNARD, J.

—I dissent.

For more than 100 years our law has recognized that a person who assists in the commission of an offense has a higher degree of moral culpability than a person who helps the perpetrator after the offense has been committed. This distinction has been acknowledged by the Legislature. (Pen. Code, §§ 31, 32, 33.) Nevertheless, choosing to ignore statutory law and established precedent, the majority now holds that a person who aids an escaping robber after the robbery has been completed may be held criminally liable as a principal to the robbery if the robber, at the time of the assistance, still has possession of the stolen property and the assistance is given before the robber has reached a place of “temporary safety.”

The majority’s “temporary safety” test finds no support in our previous decisions, draws a line that is inappropriate to the defendant’s level of culpability, and is inconsistent with the general rule that one who aids a fleeing felon is not a principal in the commission of the felony. Whether a robber is carrying stolen property or has reached a place of “temporary safety” has no bearing on the type of offense committed by a person who *1172 aids in the robber’s escape: a person who is not involved in a robbery until the property has already been forcibly taken and who then assists the robber’s escape is, under established principles of law, only an accessory after the fact.

I

Our law draws a fundamental distinction between one who aids and abets the commission of a crime (an aider and abettor) and one who assists a person who has already committed a crime (an accessory after the fact). An aider and abettor is treated as a principal in the commission of the offense (Pen. Code, §§ 31, 971; all further statutory references are to the Penal Code) and is subject to the same penalties as the actual perpetrator. This is not true, however, for an accessory after the fact. Although at common law accessories after the fact were subject to the same punishment as their principals, this rule has been abandoned for well over a century, both in England and in this country. (LaFave & Scott, Criminal Law (2d ed. 1986) § 6.9, p. 598.) Being an accessory after the fact is now treated as a distinct crime (§ 32), with statutorily defined penalties that are less serious than for most other felonies and are unrelated to the penalties for the offense committed by the accessory’s principal (§ 33). This reflects the Legislature’s recognition that the antisocial conduct of an accessory after the fact differs in degree and kind from that of an aider and abettor.

A person who facilitates the escape of a fleeing felon, but who had no involvement in the commission of the felony, has historically been treated as an accessory after the fact. As we said in People v. Hoover (1974) 12 Cal.3d 875, 879 [ 117 Cal.Rptr. 672 , 528 P.2d 760 ]: “Merely aiding in the escape of a principal does not result in liability as a principal, but only as an accessory under Penal Code sections 32 and 33.”

This rule is grounded in the language of section 32, which states that a person who aids a principal with the intent that the principal “avoid or escape from arrest” is an accessory after the fact. The rule also represents the prevailing law in this country. As one legal scholar has explained: “[A] person who was present when a felony was committed, but in no way aided or abetted its commission . . . may become an accessory after the fact by rendering aid to the felon thereafter in order to facilitate his escape.” (1 Wharton, Criminal Law (14th ed. 1978) § 33, p. 171; see also, Grimm, Principals, Accessories and the Continuing Crime (1960) 51 J. Crim. L., Criminology & Police Science 66, 72 [when “the crime is complete and the intent of the joiner is to aid the principal in escape ... it is clearly the situation contemplated by accessory after the fact statutes.”].)

*1173 In this case, the majority does not challenge the rule that one who aids an escaping felon is an accessory after the fact. Nor does the majority deny that the rule applies to the offense of robbery; indeed, the majority emphatically disapproves the “escape rule,” which the Court of Appeal in People v. Jardine (1981) 116 Cal.App.3d 907 [ 172 Cal.Rptr. 408 ] mistakenly applied in this context, but which is entirely inconsistent with the foregoing principles.

Under the “escape rule,” commission of a robbery is not complete until the escaping robber has reached a place of temporary safety, and a person who facilitates the escape is treated as a principal in the robbery rather than as an accessory after the fact. As the majority points out, “adopting the escape rule for purposes of determining aider and abettor liability would be inconsistent with reasonable concepts of culpability” (maj. opn., ante, p. 1168), and “it would be illogical to adopt the escape rule for purposes of determining aider and abettor liability [for] [s]uch a holding would [be] contrary to statute, and out of step with reasonable concepts of culpability and practical considerations of deterrence . . . .” (Maj. opn., ante, pp. 1168-1169.)

Incongruously, after explaining at length why the escape rule is unsound, the majority proceeds to adopt a close variant of the very rule it condemns, albeit under a different name. To reach this result, the majority focuses on the asportation of the stolen property, which is an element of robbery. According to the majority, asportation continues until the robber has come to a place of “temporary safety.” Therefore, the majority concludes, the robbery is not “completed” until the robber has reached a temporary haven, and anyone who assists a robber carrying stolen property before that haven is reached is an aider and abettor in the substantive offense itself, rather than merely an accessory after the fact.

Although labeling it “asportation to a place of temporary safety,” the majority essentially adopts the escape rule under another name. But an escape by any other name is still an escape. An escape from the scene of a crime is an attempt to reach “a place of temporary safety.” The majority seems to suggest that the escape somehow takes on a different character when the person making the escape is a robber in possession of stolen property. Not so. The escape rule is no less “illogical” and “inconsistent with reasonable concepts of culpability” when the person escaping is a robber carrying stolen property. An escaping felon who is carrying stolen property is still an escaping felon, and a person who aids an escaping felon is an accessory after the fact.

The majority’s position is not only inconsistent with the rule that those who aid escaping felons are accessories, it also finds no support in any *1174 statutory provisions. There is nothing in the statutory definition of robbery to suggest that, for the crime of robbery to have been completed, asportation of the stolen property must continue until a place of temporary safety is reached. 1 Indeed, case law is to the contrary.

It has long been recognized that, assuming the other elements of the offense have been established, only slight asportation is necessary to make the crime of robbery complete. As the court in People v. Beal (1934) 3 Cal.App.2d 251, 253 [ 39 F.2d 504 ], observed more than 50 years ago: “The crime of robbery is complete when the robbers without lawful authority and by means of force or fear obtain possession of the personal property of another in the presence of its lawful custodian and reduce it to their manual possession. It is not necessary that, to complete the crime, they carry it out of the physical presence of the lawful possessor or make their escape with it.” This is still the law. (People v. Scott (1985) 170 Cal.App.3d 267, 272 [ 215 Cal.Rptr. 618 ]; People v. Gordon (1982) 136 Cal.App.3d 519, 529 [ 186 Cal.Rptr. 373 ]; People v. Green (1979) 95 Cal.App.3d 991, 1000 [ 157 Cal.Rptr. 520 ]; People v. Price (1972) 25 Cal.App.3d 576, 579 [ 102 Cal.Rptr. 71 ]; People v. Martinez (1969) 274 Cal.App.2d 170, 174 [ 79 Cal.Rptr. 18 ]; People v. Quinn (1947) 77 Cal.App.2d 734, 737 [ 176 P.2d 404 ]; People v. Clark (1945) 70 Cal.App.2d 132, 133 [ 160 P.2d 553 ]; 2 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against Property, § 641, p. 723.) Accordingly, a “late joiner” (one who helps a robber to escape after the robber’s asportation of stolen property) is criminally liable only as an accessory after the fact, irrespective of whether the robber has carried off the stolen property to a place of temporary safety. We addressed this question in People v. Tewksbury (1976) 15 Cal.3d 953 [ 127 Cal.Rptr. 135 , 544 P.2d 1335 ], where we stated that a person who aids only in the “escape” of one who has committed a robbery is an accessory after the fact, even if the robber is in possession of items taken in the commission of the crime.

In Tewksbury , the defendant’s involvement in the robbery of a restaurant was established by the testimony of one Mary Pedraza. Pedraza testified that she was waiting for the defendant at a predetermined place near the restaurant and that shortly after the robbery the defendant told her something had gone wrong, a man had been killed, and they would have to leave quickly. They drove to Pedraza’s house and divided the stolen money. (People v. Tewksbury, supra, 15 Cal.3d 953, 957-958 .)

On appeal, the defendant argued that Pedraza was an accomplice to the robbery and therefore her testimony was insufficient to convict him without *1175 corroboration. (§ 1111 [accomplice testimony must be corroborated].) We disagreed, concluding that although the jury could have found that Pedraza was an accomplice—based on evidence that she might have participated in the planning of the robbery—the evidence did not show that she was an accomplice as a matter of law. (People v. Tewksbury, supra, 15 Cal.3d at p. 962 .) We also observed that Pedraza could not be an accomplice based solely on her participation in the escape after the robbery: “[I]t does not appear that accomplice status could be imputed to [Pedraza] on the ground that because the perpetrators of the crimes had not yet made their escape the crimes were still in progress when they met [Pedraza] at the rendezvous point. Her conduct thereafter with knowledge of the crimes would, at most, constitute her being an accessory after the fact. (§ 32.)” (People v. Tewksbury, supra, 15 Cal.3d at p.962, fn. 7, italics added.) Thus, even though Pedraza helped the robber to escape with the stolen property, this court concluded that her liability was no more than that of an accessory after the fact. 2

The majority does not identify the source of its holding that in robbery the element of asportation continues until the robber has reached a place of temporary safety; it simply concludes, with no attempt to cite any supporting authority, that this is the case. (Maj. opn., ante, pp. 1165-1166.) This absence of authority is not surprising, for there appears to be no authority to support the majority’s novel and unwarranted holding; certainly, this court has never held that in robbery asportation continues until the robber has reached a place of temporary safety. 3

It is, however, not difficult to trace the source of the majority’s “temporary safety” rule. As the majority points out elsewhere in its opinion, this *1176 court has held that for purposes of certain collateral consequences a robbery continues until a place of “temporary safety” is reached. (People v. Laursen (1972) 8 Cal.3d 192 [ 104 Cal.Rptr. 425 , 501 P.2d 1145 ]; People v. Carroll (1970) 1 Cal.3d 581 [ 83 Cal.Rptr. 176 , 463 P.2d 400 ]; People v. Boss (1930) 210 Cal. 245 [ 290 P. 881 ].) But, as the majority recognizes, these cases do not attempt to define the duration of asportation as an element of robbery. Rather, these cases establish the principle that when certain violent acts occur during an escape after the commission of a robbery, they are integrally connected with its commission and thus are treated as part of the offense, regardless of whether the robber is still asporting the stolen property. (See, e.g., People v. Carroll, supra, 1 Cal.3d 581, 584-585 [great bodily injury enhancement properly imposed when defendant inflicts injury on robbery victim after property has been asported but before robber has reached a place of temporary safety]; People v. Bigelow (1984) 37 Cal.3d 731, 753 [ 209 Cal.Rptr. 328 , 691 P.2d 994 , 64 A.L.R.4th 723 ] [temporary safety is “the test used in felony-murder cases to determine when a killing is so closely related to an underlying felony as to justify an enhanced punishment for the killing”]; see also People v. Laursen, supra, 8 Cal.3d at p. 200, fn. 6 ; People v. Ketchel (1963) 59 Cal.2d 503, 523 [ 30 Cal.Rptr. 538 , 381 P.2d 394 ]; People v. Chavez (1951) 37 Cal.2d 656, 669-670 [ 234 P.2d 632 ].) Because these cases address a problem different than that presented here, the majority properly declines to rely on them as a justification for its new rule. As a consequence, however, the majority is left with a rule conjured out of thin air.

The most fundamental defect in the majority’s unprecedented holding is that it leads to results that bear little or no relationship to the level of culpability of the accused, as these hypotheticals will illustrate:

1. A commits a murder. B, who had no prior knowledge of the crime, helps A to escape. Under established law, B is an accessory after the fact. If A robs the murder victim but is not in possession of property stolen from the victim when B assists A in escaping, B is still an accessory after the fact. But under the majority rule, if A robs the murder victim and is in possession of the stolen property when B assists A in escaping, B is guilty of both robbery and, as a result of the felony-murder rule, first degree murder. (See § 189.)

2. A commits a robbery, and flees directly to the home of B. At the door, A tells B of the robbery and displays the stolen property. B allows A to hide in the house. Under the majority rule, B is guilty of robbery, because A has not reached a place of temporary safety at the time B lets him in the house. But if, during his flight, A had stopped briefly at a place of temporary safety before going to B’s home, B would be an accessory, because the *1177 asportation of stolen property would have been complete at the moment A reached that place of temporary safety. In both instances, B’s actions and knowledge of the facts of the robbery are the same; under the majority’s holding, B’s criminal liability turns on a fact of which he is unaware and which is totally unrelated to his degree of culpability.

3. B sees A push a woman to the ground, grab the woman’s purse, and run, pursued by a police officer. B steps in front of the officer, impeding the pursuit of A, who drops the purse but manages to get away. Under the majority’s holding, B would be guilty of robbery. But if B had interfered with the officer’s pursuit only seconds later, after A had dropped the stolen purse, B would be merely an accessory after the fact because A, the robber, was no longer in possession of the stolen property when B helped A to escape.

If the purse had been stolen in a burglary rather than a robbery, under the majority’s holding B would be an accessory regardless of when the burglar dropped the purse, for the simple reason that asportation is not an element of the offense of burglary. (Maj. opn., ante, p. 1169.)

4. A and B commit an armed robbery. As they flee, A has the gun while B carries the stolen property. Under the majority rule (see maj. opn., ante, p. 1166, fn. 10), if C helps A reach a place of temporary safety, then C is an accessory; but if C assists B, C is guilty of robbery because B was in possession of the stolen property when C facilitated B’s escape.

These four examples highlight the anomalies that arise from the majority’s attempt to carve out an exception to the general rule, as embodied in the language of section 32 and enunciated in People v. Hoover, supra, 12 Cal.3d 875 , that a person who aids in the escape of a fleeing felon is an accessory after the fact. Whether a robber has reached a place of temporary safety or is carrying property stolen in the robbery at the time of the escape bears the most tenuous relationship to the degree of culpability of the person aiding in the escape. By using these circumstances to draw the line between a principal and an accessory, the majority has fashioned a rule that will dictate substantially different results for persons whose degree of culpability is essentially similar. Rather than creating illusory distinctions, we should apply to the crime of robbery the same rule that applies to other criminal offenses and treat “late joiners” who assist in the escape as accessories after the fact.

As this court explained in People v. Ramos (1982) 30 Cal.3d 553, 589 [ 180 Cal.Rptr. 266 , 639 P.2d 908 ], “the central element of the crime of robbery [is] the force or fear applied to the individual victim in order to *1178 deprive him of his property.” (See also Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 351 [ 211 Cal.Rptr. 742 , 696 P.2d 134 ].) A person who assists a robber in escaping does not apply force or fear to the victim, and does not aid or abet the application of force or fear. Therefore, that person is less culpable than the perpetrator of the robbery, and thus should be held criminally liable only as an accessory after the fact.

In summary, the novel rule set forth by the majority finds no support either in the statutory language or in the previous decisions of this court. It is inconsistent with the rule that a person who aids an escaping felon is an accessory after the fact. And, as illustrated by the examples given above, it will lead to absurd results because criminal liability will bear little or no relationship to the culpability of the offender. In ignoring the requisite relationship between criminal liability and moral culpability, the majority has undermined a foundational principle of criminal justice.

II

In this case, the trial court gave a lengthy instruction informing the jury that the offense of robbery was not complete until the robbers had reached a place of temporary safety. (Maj. opn., ante, pp. 1162-1163.) Seizing on this erroneous instruction, the prosecutor asserted forcefully in his final argument that, regardless of whether defendant had prior knowledge of, or involvement in, planning the robbery, he was guilty of robbery because of his actions during the escape. 4 The prosecutor argued: “[A] robbery is not limited to any particular time or place. . . . [T]he crime of robbery continues until the robbers have reached a relative place of safety; in other words, have ended their flight, at least to a temporary place of safety. . . . [fl]. . . Under the facts, the robbers had not stopped, they had not reached their temporary place of safety. Therefore the robbery was still continuing. . . . [1j] . . . Mr. Cooper at least saw what was going on, realized that an elderly gentleman had been knocked down, realized that a robbery was occurring, in the sense that [codefendant] Parra had the money in his hand, got into the car, still in the commission of the robbery. Because he had not yet—they had not escaped. . . . [fl] At that point in time, that is evidence [that defendant] specifically intended to facilitate the end of this robbery, the flight to get away. And, under those circumstances, . . . he’s a principal.”

*1179 In this case, there is strong evidence that defendant was involved in the robbery from its inception. But because of the prosecutor’s heavy reliance on the erroneous instruction, I cannot conclude that the instructional error was harmless beyond a reasonable doubt. (See People v. Hayes (1990) 52 Cal.3d 577, 628 [ 276 Cal.Rptr. 874 , 802 P.2d 376 ].) The Court of Appeal properly determined that the error required reversal of the conviction.

I would affirm the decision of the Court of Appeal.

Mosk, J., and Broussard, J., concurred.

Section 211 provides: “Robbery is 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.”

The majority asserts that in People v. Croy (1985) 41 Cal.3d 1, 15 , footnote 9 [ 221 Cal.Rptr. 592 , 710 P.2d 392 ], we “expressly left open” the issue presented in this case, and that we “implicitly negated” any suggestion that we had decided the issue in People v. Tewksbury, supra, 15 Cal.3d 953 . (Maj. opn., ante, p. 1164 & fn. 6.) In Croy we said, without discussing or even citing Tewksbury , “we have no occasion here to determine whether an individual who has no prior knowledge of a robbery but who, after the property has been taken, knowingly helps a robber—who has not reached a place of safety—make his escape, may properly be classified as an aider and abettor rather than an accessory after the fact.” (People v. Croy, supra, 41 Cal.3d at p. 15, fn. 9 , italics added, citations omitted.) By this language we simply said that we were not addressing the issue; we did not “expressly” leave it open. (Compare Bekiaris v. Board of Education (1972) 6 Cal.3d 575, 591, fn. 10 [ 100 Cal.Rptr. 16 , 493 P.2d 480 ].)

The majority notes the existence of “a long line of Court of Appeal cases. . . holding that mere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot.” (Maj. opn., ante, pp. 1165, fn. 8.) These cases, the majority asserts, “implicitly hold” that asportation continues for a period of time while the stolen property is being carried away. To the contrary, these cases merely establish that the offense of robbery is not committed until all of its elements have occurred.

The trial court did not make its final decision to give the instruction until after defense counsel had concluded his closing argument. In his initial closing statement to the jury, the prosecutor had argued that defendant’s participation in the offense was shown by his actions before the robbery was committed. In his rebuttal, after the trial court’s decision to give the instruction at issue, the prosecutor changed his theory of guilt, leaving the defense with no opportunity to counter the prosecutor’s rebuttal argument.