Appendix — California v. Roy

Supreme Court brief1996

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

THE PEOPLE OF THE STATE OF CALIFORNIA

and

DANIEL E. LUNGREN,

ATTORNEY GENERAL OF THE STATE OF CALIFORNIA,

Petitioner,

KENNETH DUANE ROY, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

oO APPENDIX

DANIEL E. LUNGREN

Attorney General

GEORGE WILLIAMSON

Chief Assistant Attorney General

ROBERT R. ANDERSON

Senior Assistant Attorney General

EDMUND D. McMURRAY

Supervising Deputy Attorney General

MARGARET VENTURI

Supervising Deputy Attorney General

Counsel of Record

1300 I St., Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 324-5252

Counsel for Petitioner

————_ —

TABLE OF APPENDICES

Document

Opinion following hearing en banc

Order for hearing en banc

Opinion of three judge panel

Order and memorandum of findings

of district court

Findings and Recommendations of

magistrate judge

State Supreme Court order denying

habeas relief

Remittitur to superior court

State Supreme Court order denying review

Court of Appeal order denying rehearing

State Court of Appeal opinion

Relevant United States Constitutional

Amendments

Relevant California Constitution section

Relevant California Penal Code sections

Relevant California Jury

Instructions - Criminal (CALJIC)

=. O

Document Appendix

Second Amended Abstract of

Judgment under which respondent

is being held by the California

Department of Corrections O

PEN

i. ey. Pe a ee

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH DUANE ROY

)

Petitioner-Appellant, ) No. 94-15994

)

v. ) D.C. No.

) CV-89-01643-DFL

JAMES GOMEZ; JOHN VAN DE)

KAMP; and WILLIAM MERKLE, ) OPINION

et al., )

Appeal from the United States District Court

for the Eastern District of California

David F. Levi, District Judge, Presiding

Argued and Submitted

November 30, 1995--San Francisco, California

Filed April 15, 1996

Before: Procter Hug, Jr., Chief Judge, James R.

Browning,J. Clifford Wallace, Betty B. Fletcher, Harry

Pregerson, Cecil F. Poole, Stephen Reinhardt, Cynthia

Holcolmb Hall, David R. Thompson, Pamela Ann

Rymer,and Thomas G. Nelson, Circuit Judges

Opinion by Judge Browning; Partial Concurrence and

Partial Dissent by Judge Wallace

SUMMARY

Criminal Law and Procedure/Jury Instructions/

Criminal Acts

Sitting en banc, the court of appeals reversed a district

court judgment and remanded. The court held that an

error in omitting California’s specific intent requirement

from an aiding and abetting jury instruction could not be

deemed harmless, where it could not be said that the

jury necessarily found the required intent.

The bodies of James Clark and Archie Mannix were

found near a truck. Both were stabbed, and Mannix had

drowned. Appellant Kenneth Roy and Jesse McHargue

were located nearby, and each had some of Mannix’s

property in his possession. Roy told police that the

killings occurred after a fight involving the four men.

Roy was charged with murder and robbery. A

jailhouse informant testified that Roy told him that Roy

and McHargue planned to take Clark and Mannix to the

country, rob and kill them, and steal the truck. Another

jailhouse informant testified that Roy told him that Roy

stabbed Clark during a fight, and Roy tried to help

McHargue, who was fighting with Mannix. The state took

the murder case to the jury on two theories, arguing that

Roy was guilty of first-degree murder because the killings

were premeditated and were committed during the

course of a felony (the robbery of Clark and Mannix).

The jury was given an aiding and abetting instruction

that stated that a person aids and abets commission of

a crime if, with knowledge of the perpetrator’s unlawful

purpose, he aids, promotes, encourages or instigates by

act or advice the crime’s commission.

The jury found Roy guilty of second-degree murder of

Clark and made a "special circumstance" finding that

Roy used a knife to kill Clark. The jury acquitted Roy of

robbing Clark. The jury found Roy guilty of robbery and

first-degree murder of Mannix, with a _ "special

circumstance" finding that Roy had not used a knife to

kill Mannix.

After Roy’s case was tried, the California Supreme

Court held in People v. Beeman, 674 P.2d 1318 (Cal.

1984), that an instruction that was identical to the one

given in Roy’s case was flawed because an aiding and

abetting conviction requires proof that the defendant

intended to encourage or facilitate the offense with which

the principal was charged.

Roy appealed his convictions of robbery and

first-degree murder of Mannix. On direct appeal, Roy

contended that the state trial court erred in failing to

instruct the jury on the specific intent element of aiding

and abetting identified in Beeman. The California court

of appeal concluded that error occurred, but was

harmless beyond a reasonable doubt. The California

Supreme Court denied relief on collateral review.

Roy filed a federal habeas petition raising the Beeman

issue. The district court denied the petition, holding that

the omission from the instruction of the specific intent

requirement was error, but the error was harmless

beyond a reasonable doubt. The court determined that

no rational juror could find Roy aided McHargue,

knowing McHargue’s purpose, without also finding Roy

intended to aid McHargue in his purpose. A panel of the

court of appeals affirmed. En banc review was granted.

[1] Roy’s conviction of first-degree murder of Mannix

necessarily reflected a conclusion by the jury that Roy

was guiltyof felony murder of Mannix in the course of

aiding and abetting McHargue’s robbery of Mannix.

[2] The Ninth Circuit has held that omission of the

specific intent element from jury instructions in a trial on

a charge of aiding and abetting under California law

deprives the defendant of his constitutional right to have

a jury find the existence of each element of the charged

offense beyond a reasonable doubt. The Ninth Circuit

has also held that Beeman error is subject to

harmless-error analysis. [3] Failure to men‘ion an

element of a crime does not completely remove from the

jury’s consideration the evidence relating to that element;

it simply fails to alert the jurors that they must

consider it. Even though an element of the offense is not

specifically mentioned, it remains possible that the jury

made the necessary finding. The omission is harmless,

however, only if review of the facts found by the jury

establishes that the jury necessarily found the omitted

element.

[4] On the record in this case, it was uncertain

whether the jury necessarily found beyond a reasonable

doubt that Roy intended to facilitate McHargue’s robbery

of Mannix. Although there was evidence from which a

jury could have found that Roy intended to facilitate

Mannix’s robbery, there were no findings from which it

could be concluded that the jury actually did so. [5]

Because it could not be said that the jury necessarily

found that Roy acted with the intention of assisting

McHargue in the robbery of Mannix, the error in

the aiding and abetting instruction could not be deemed

harmless.

[6] Reversal was required in this case under the

relevant line of cases. When a reviewing court is unable

to conclude the jury necessarily found an element that

was omitted from instructions, it is unable to gauge the

effect of the error on the verdict.

mo el

te eh -

Circuit Judge Wallace, with whom Circuit Judges Hall

and Rymer joined, concurred and dissented, disagreeing

with the majority’s method of harmless-error analysis and

its conclusion that the error was harmful.

COUNSEL

Hill C. Snellings, Blackmon & Drozd, Sacramento,

California, for the petitioner-appellant.

Margaret Venturi, Supervising Deputy Attorney General,

Sacramento, California, for the respondents-appellees.

OPINION

BROWNING, Circuit Judge:

This is an appeal from the denial of a petition for

habeas corpus. Petitioner Kenneth Duane Roy challenges

his state court convictions of robbery and first-degree

murder for aiding and abetting a felony murder. He

contends the state trial court erred by failing to instruct

the jury on the specific intent that is a necessary element

of aiding and abetting under California law. The district

court agreed, but held the error harmless. A divided

panel of this court affirmed. We granted en banc review,

and now reverse.

Petitioner Kenneth Duane Roy and his friend Jesse

McHargue met Archie Mannix and James Clark outside

a liquor store in Gridley, California. The four began

drinking beer. Several hours later, a Gridley police

officer saw Mannix’s truck narrowly miss a utility pole as

it backed up in the store’s parking lot. The officer

stopped the truck and called another officer to assist.

Mannix and Clark were both intoxicated. McHargue and

Roy appeared to be sober, but neither had a driver's

license. The officers told the men not to drive the truck

and left. Two hours later, the truck was gone. The

officers found it nose down in a ditch, with the bodies of

Clark and Mannix nearby. Both had been stabbed.

Mannix, whose body was partially submerged in the

ditch, had drowned. Both were partially stripped and

their pockets turned out. Mannix’s wallet and papers

were scattered on the ground. The officers located Roy

and McHargue at a nearby restaurant, their clothes wet

and muddy. Each was carrying a buck knife. Each had

some of Mannix’s property in his possession. Roy told

police the killings occurred after McHargue lost control

of the truck while making a turn, the truck went into the

ditch, and Clark became angry and struck Roy.

According to Roy, a fight ensued, Roy against Clark and

eee against Mannix. Roy stabbed Clark and killed

Roy was charged with two counts of murder and two

counts of robbery. At trial, Marie Smart testified she was

driving home when she saw the truck in the ditch and

stopped to offer assistance. Two men were standing over

Mannix, who was lying on the ground and appeared to

be hurt. McHargue told her help had been summoned.

A pathologist testified that Mannix’s fatal stab wound

could have been made by either McHargue’s or Roy’s

knife. Roy’s knife bore traces of blood that could have

come from either Roy or Mannix but not from Clark.

William Hudspeth, a jailhouse informant, testified Roy

told Hudspeth that Roy and McHargue planned to take

Clark and Mannix to the country, rob and kill them, and

steal the pickup truck. McHargue had trouble subduing

Mannix and Roy came to McHargue’s aid, pulling

Mannix away, stabbing Mannix and holding his head

under water until he was dead. According to Hudspeth,

Roy and McHargue then took the truck and drove back

toward Gridley.

Another jailhouse informant, Sidney Hall, testified Roy

told him that after the truck went into the ditch, Clark

hit Roy with a stick. A fight followed, and Roy stabbed

Clark. Roy saw McHargue was "getting the worst of it”

in his fight with Mannix, and “went over to help"

McHargue.

The state took the murder case to the jury on two

theories, arguing Roy was guilty of first-degree murder

(1) because the killings were premeditated and (2)

because they were committed during the course of a

felony, the robbery of Clark and Mannix. The jury found

Roy guilty of second-degree murder of Clark and made

a “special circumstance" finding, for purposes of

sentencing, that Roy had used a knife to kill Clark. The

jury acquitted Roy of robbing Clark. The jury found Roy

guilty of robbery and first-degree murder of Mannix, with

a "special circumstance” finding that Roy had not used a

knife to kill Mannix. Roy challenges his convictions of

robbery andfirst-degree murder of Mannix.

[1] The jury’s decision to convict Roy of second-degree

murder of Clark indicates the jury rejected the state’s

theory that the defendants planned the crime. The jury

also rejected the state’s contention that Roy stabbed

Mannix by finding Roy did not use a knife against

Mannix. Thus Roy’s conviction of first-degree murder of

Mannix necessarily reflected a conclusion by the jury that

Roy was guilty of felony murder of Mannix in the course

of aiding and abetting the robbery of Mannix by

McHargue.

The jury was given an aiding and abetting instruction

which stated that "[a] person aids and abets the

commission of a crime if, with knowledge of the unlawful

purpose of the perpetrator of the crime, he aids,

promotes, encourages or instigates by act or advice the

commission of such crime." This instruction allowed the

jury to convict Roy if he provided "knowing aid"--that is,

if he knew of McHargue’s intention to rob Mannix and

took some action that had the effect of furthering the

robbery. After Roy’s case was tried, the California

Supreme Court held in People v. Beeman, 674 P.2d 1318

(Cal. 1984), that an instruction identical to the one given

in Roy’s case was flawed because an aiding and abetting

conviction requires proof not merely of "knowing aid" but

also that the defendant intended to encourage or

facilitate the offense with which the principal was charged.”

1. According to Beeman, an appropriate aiding and abetting

instruction would tell the jury that a person aids and abets the

commission of a crime when he, “acting with (1) knowledge of the

unlawful purpose of the perpetrator, and (2) the intent or purpose

of committing, encouraging or facilitating the commission of the

offense, (3) by act or advice aids, promotes, encourages or instigates,

A Ne cs ellen het ~~

On direct appeal, Roy contended the state trial court

erred by failing to instruct the jury on the specific intent

element of aiding and abetting identified in Beeman. The

California court of appeal concluded error had occurred

but was harmless beyond a reasonable doubt. The

California Supreme Court denied relief on collateral

review, and Roy then filed this federal habeas petition

raising the Beeman issue. In denying the petition, the

district court held the omission from the instruction of

the specific intent requirement was error, but agreed with

the state courts that the error was harmless beyond a

reasonable doubt because "[n]o rational juror could find

that Roy aided McHargue, knowing what McHargue’s

purpose was, without also finding that Roy intended to

aid McHargue in his purpose.” A divided panel of this

court affirmed. Roy v. Gomez, 55 F.3d 1483 (9th Cir.

1995).

II.

[2] We have held that omission of the specific intent

element from jury instructions in the trial of a charge of

aiding and abetting under California law deprives the

defendant of his constitutional right to have a jury find

the existence of each element of the charged offense

beyond a reasonable doubt. Martinez v. Borg, 937 F.2d

422, 423 (9th Cir. 1991); see In re Winship, 397 US. 358,

364 (1970) (due process requires proof beyond a

reasonable doubt of all elements of the charged offense).

We also held in Martinez that Beeman error is subject to

harmless-error analysis. Martinez, 937 F.2d at 425. The

panel agreed on both points. Roy, 55 F.3d at 1485-86.

the commission of the crime.” Beeman, 674 P.2d at 1326.

The panel divided, however, 48 to whether the error was

harmless.

To determine whether the Beeman error was harmless,

we apply the analysis developed by Justice Scalia in his

concurring opinion in Carella v. California, 491 U.S. 263

(1989). See Martinez, 937 F.2A at 425.*

Carella involved a conclusiv® Presumption that relieved

the state of its burden of proef with regard to the intent

element of embezzlement. Justice Scalia explained that

use of such a presumption covld be harmless only in the

"rare situations" when the ‘¢viewing court could be

confident that the error played no part in the jury's

verdict. Carella, 491 U.S. at 270 (Scalia, J., concurring)

(quoting Connecticut v. Johnso", 460 U.S. 73, 87 (1983)).

Stated shortly, such an error '8 harmless under Carella

only if no rational jury could find the predicate facts

forming the basis for the Ption without also

finding the presumed fact. Carella, 491 US. at 271

(Scalia, J., concurring). In @pplying Carella to an

instruction omitting an eleme#t Of the offense, we have

treated the omitted element 25 the "presumed fact" and

considered whether a rational JUry could have found the

remaining elements of the off¢nse without also finding

the omitted element. Martinez 937 F.2d at 424; see also

=— States v. Parmelee, 42 F.3d 387, 393 (7th Cir.

)

2. Decisions prior to Martinez While not framed in terms of

Carella, nonetheless applied essentia'Y the same analysis to Beeman

error. See Leavitt v. Vasquez, 875 .2d 260, 261 (9th Cir. 1989);

Willard v. California, 812 F.2d 461, ©4 (9h Cir. 1987).

Pointing to our recent en banc decision in United

States v. Gaudin, Roy argues we may no longer apply

harmless error analysis to Beeman error. In Gaudin, the

district court instructed the jury that an element of the

crime was established as a matter of law. We held that

"such an error cannot be harmiess." United States v.

Gaudin, 28 F.3d 943, 951 (%h Cir. 1994) (en banc)

("When proof of an element has been completely

removed from the jury’s determination, there can be no

inquiry into what evidence the jury considered to

establish that element because the jury was precluded

from considering whether the element existed at all."),

aff'd, 115 S. Ct. 2310 (1995). Relying on this language,

some subsequent panel decisions have held omission of

an element of a crime from jury instructions requires

automatic reversal. See United States v. Hove, 52 F.3d

233, 235-36 (9th Cir. 1995); United States v. Stein, 37 F.3d

1407, 1410 (9th Cir. 1994).

[3] The error in Gaudin differs in a crucial respect

from omission of an element of the crime from jury

instructions. When a court instructs the jury that an

element of the crime has been established as a matter of

law, proof of that element of the crime is removed from

the jury’s purview. Failure to mention an element of the

crime, in contrast, does not “completely remove[ |" from

the jury’s consideration the evidence relating to that

element; it simply fails to alert the jurors they must

consider it. See Gaudin, 28 F.3d at 951; United States v.

Whitmore, 24 F.3d 32, 36 (9th Cir. 1994) (omission of

knowledge element did not bar jury from considering

defendant’s mental state); People v. Dyer, 45 Cal.3d 26,

64 (Cal. 1988) (Beeman error “is not the type of

instructional error that wholly prevents the jury from

considering” the defendant's intent)” Even though an

element of the offense is not specifically mentioned, it

remains possible the jury made the necessary finding.

Review for harmless error is appropriate, but it is the

type of review discussed in Carella* That is, the

omission is harmless only if review of the facts found by

the jury establishes that the jury necessarily found the

omitted element.*

3. To the extent prior cases equate these two distinct

Situations, such cases are disapproved. Hove, 52 F.3d at 235-36

(applying Gaudin where judge omitted willfulness element); Stein, 37

F.3d at 1410 (applying Gaudin where judge omitted knowledge

element). But see Harmon v. Marshall, 57 F.3d 763 (9th Cir. 1995)

(applying Gaudin in a “structural error” case where the judge

omitted all elements of the charged crime).

4. The instructional error in this case may be described eith

er as the omission of an element (specific intent) or as the

misdescription of an element (intent). In fact, we have sometimes

characterized a Beeman error as omission of an element, see

Martinez, 937 F.2d at 424-25 (9th Cir. 1991), and sometimes as the

of an element, see Hart v. Stagner, 935 F.2d 1007,

1012 (9th Cir. 1991). Whether we characterize the error as an

omission or misdescription of an element, we must still apply

Carella harmless error analysis. See Carella, 491 U.S. at 270 (Scalia,

J., concurring) (“[MJisdescription of an element of the offense .

deprives the jury of its factfinding role, and must be analyzed

similarly [to a conclusive presumption]").

5. Refusal to impose a rule of per se reversal comports with

earlier holdings that omission of an element is harmless if the

element is not at issue in the case, see Hart, 935 F.2d at 1012-13, or

if convictions on other counts establish the missing element. See

United States v. Williams, 935 F.2d 1531, 1536 (8th Cir. 1991)

(omission of intent element from one count harmless where intent

was defined elsewhere in jury instructions).

[4] On the record in this case, we cannot be certain

there was evidence from which a jury could have found

that Roy intended to facilitate Mannix’s robbery, there

were no findings from which we could conclude the jury

reviewed the case, to determine which interpretation ion of

the evidence was correct. We are not free to evaluate

the evidence and postulate what the jury would have

found had it been properly instructed. "[T]he question is

not whether guilt may be spelt out of a record, but

whether guilt has been found by a jury according to the

procedure and standards appropriate for criminal trials."

Carella, 491 U.S. at 269 (Scalia, J., concurring) (emphasis

added) (quoting Bollenbach v. United States, 326 U.S.

607, 614 (1946). Because we cannot say the jury

necessarily found Roy acted with the intention of

assisting McHargue in the robbery of Mannix, the error

in the aiding and abetting instruction cannot be deemed

harmless.”

The state argues relief is not warranted because Roy

has not shown the error had a substantial or injurious

effect on the jury’s verdict, as required when the error is

raised in collateral i See Brecht v.

Abrahamson, 113 S. Ct. 1710 (1993). We disagree.

On direct appeal, relief is granted for constitutional

error unless the state demonstrates the error was

harmless beyond a reasonable doubt. See Chapman v.

California, 386 U.S. 18,

24 (1967). As Justice Scalia said in Carella, the Chapman

test

7. The state court’s determination that the error was harmiess

does not affect our analysis. Whether an error is harmless is not a

factual determination entitled to the statutory presumption of

correctness under 28 U.S.C. § 2254(d). Lawson v. Borg, 60 F.3d 608,

612 (9th Cir. 1995). We review de novo the district court's

determination that the erroneous instruction was harmless error. /d.;

see Calderon v. Prunty, 59 F.3d 1005, 1008 (9th Cir. 1995).

can be met only if the reviewing court can tell what the

jury

actually found, since only then can the court conclude

“beyond a reasonable doubt,’ Chapman v. California, 386

U.S. 18, 24 (1967), that the jury found the facts

necessary to support the conviction.” Carella, 491 U.S. at

271. The Chapman standard is inapplicable on collateral

review, however. In Brecht, the Court adopted a stricter

standard for harmless error in habeas cases, holding

relief is warranted on collateral attack only if the error

“had substantial and injurious effect or influence in

determining the jury's verdict.” Brecht, 113 S. Ct. at 1714

(quoting en United States, 328 US. 750, 776

(1946)); see Hegler v. Borg, 50 F.3d 1472, 1477 (9th Cir.

1995). More recently, the Supreme Court has held relief

is also appropriate if the record on collateral review

leaves the judge in "grave doubt" as to the effect of the

constitutional error. See O’Neal v. McAninch, 115 S. Ct.

992, 994-95 (1995). Relief was granted in O’Neal because

the record was "so evenly balanced that a conscientious

judge is in grave doubt as to the harmlessness of the

error." O’Neal, 115 S. Ct. at 995. In such circumstances,

"the uncertain judge should treat the error, not as if it

were harmless, but as if it affected the verdict (i.e., as if

it had a ‘substantial and injurious effect or influence in

determining the jury’s verdict’)." Id. at 994.

[6] We are unable to conclude under Carella that the

jury necessarily found the missing element; if this case

were before us on direct review, the error would not be

harmless beyond a reasonable doubt, our analysis would

be at an end, and we would be required to reverse the

conviction. Because this case reaches us on habeas,

however, we must determine whether reversal is required

under the Brecht/O’Neal line of cases. We believe it is.

When the reviewing court is unable to conclude the jury

necessarily found an element that was omitted from the

instructions, it is unable to gauge the effect of the error

on the jury’s verdict. In this situation, a conscientious

judge can only be "in grave doubt as to the harmlessness

of the error," O’Neal, 115 S. Ct. at 995, and relief must

be granted.

ITI.

Roy’s due process rights were violated when he was

convicted under an aiding and abetting instruction that

omitted California’s requirement that the defendant have

the specific intent to assist in the commission of the

crime. Because a rational jury could have found Roy’s

actions had the effect of assisting McHargue in the

robbery of Mannix, but Roy did not intend his actions to

have that effect, we are unable to say the jury necessarily

found the required intent. Under Carella, Brecht, and

O'Neal, we cannot say the violation of Roy’s due process

rights was harmless error.

REVERSED and REMANDED.

WALLACE, Circuit Judge, with whom Circuit J udges

Hall and Rymer join, concurring and dissenting:

I agree with the majority that omitting or

misdescribing an element of an offense is subject to

harmless-error review. However, I cannot agree either

with the method of harmless-error analysis the majority

employs or with its conclusion that the error was

harmful. I respectfully dissent.

The majority holds that whenever a jury instruction

contains an element that has been misdescribed or

omitted and the jury did not actually find the facts

supporting the missing element, a judge can never know

whether the error had a "substantial and injurious effect

or influence in determining the jury’s verdict" as required

by Brecht v. Abrahamson, 113 S. Ct. 1710, 1714 (1993)

(Brecht) (internal quotation omitted). See maj. op. at

4687. By equating error under Carella v. California, 491

U.S. 263, 271 (1989) (Scalia, J., concurring) (Carella

concurrence), with error under Brecht, the majority pays

lip-service to the exclusive, ‘less onerous, standard that

the Court in Brecht said we should apply to trial errors

when our review is collateral. I believe the majority

erroneously looks to the Carella concurrence for the

standard of review in habeas corpus cases, and that its

error is compounded by its misapplication of Brecht and

O’Neal v. McAninch, 115 S. Ct. 992, 995 (1995) (O’Neal).

I agree with the majority that Brecht’s less onerous

standard completely supplants Chapman's harmless-error

test when we review collaterally. Maj. op. at 4688; Brecht,

113 S. Ct. at 1721-22. I also agree that the Carella

concurrence explained how the Chapman harmiess-error

test is to be applied on direct appeal when the error

involves a jury instruction. Maj. op. at 4688-89. But from

these two premises I conclude that because Carella was

derived from Chapman, Brecht must supplant Carella

when we review a jury instruction error collaterally.

Brecht « icitly requires us to apply its standard of

review fs anh “whether habeas relief must be

granted because of constitutional error of the trial type."

Brecht, 113 S. Ct. at 1722; see also id. at 1729 (O’Connor,

J. dissenting) (Court’s holding applies "to any trial error

asserted on habeas"); O’Neal, 115 S. Ct. at 994 (Brecht

"sets forth the standard normally applied by a federal

habeas court in deciding whether or not .. .

constitutional ‘trial’ error is harmless"). Misdescription of

an element of an offense is trial error. See Arizona v.

Fulminante, 499 U.S. 279, 306-07 (1991) (jury instruction

containing an unconstitutional conclusive presumption is

trial error). We should therefore apply Brecht -- and

Brecht alone -- to determine whether the Beeman error

had a "substantial and injurious effect or influence in

determining the jury’s verdict." Brecht, 113 S. Ct. at 1714

(internal quotation omitted).

We must also apply Brecht rather than the Carella

concurrence because doing so would be faithful to the

Court’s insistence that a "less onerous harmless-error

standard on habeas promotes the considerations

underlying our habeas jurisprudence." Jd. at 1714. Yet by

effectively choosing to apply the Carella concurrence

instead of Brecht, the majority implicitly engages in a

balancing that the Court has already done. Brecht already

balanced the stricter Chapman harmless-error standard

against policies discouraging habeas corpus relief and

concluded that a standard less onerous than Chapman

was more appropriate in all habeas corpus cases

involving trial error. The result of Brecht’s balance is

clear: providing “habeas relief merely because there is a

reasonable possibility that trial error contributed to the

verdict is at odds with the historic meaning of habeas

corpus -- to afford relief to those whom society has

grievously wronged." /d. at 1721 (citations and internal

quotations omitted). At the very least, Brecht requires a

reviewing court to ask whether a petitioner suffered

"actual prejudice.” Jd. at 1722.

The strict Carella concurrence standard, of course,

asks not whether there is a “reasonable probability that

trial error contributed to the verdict," but whether a

rational jury necessarily found certain facts. The Carella

concurrence explained that Chapman's "harmless beyond

a reasonable doubt" standard may not substitute a judge’s

findings for a rational jury’s findings. Under the Carella

concurrence, an error may be harmful on direct review

even if there is a reasonable probability, or a strong

probability, or a near-certain probability that the error

had absolutely no effect on the outcome. But the

Supreme Court has told us that in these situations we

may not disturb state convictions collaterally. Simply put,

a oe a

grievously wronged" every habeas corpus petitioner w

Ge clans das & tnahd wie Ge Cad

concurrence.

I have even more difficulty following the majority's

attempt to blend Carella, Brecht, and O'Neal. See maj.

op. at 4688-89. By first applying the stricter approach in

Carella, the opinion eliminates the effect of Brecht’s “less

onerous standard” of review. Brecht, 113 S. Ct. at

1721-22. Brecht requires the reviewing court to determine

whether the error had a substantial or injurious effect on

the outcome. Brecht also requires such a court to review

the record in order to determine an error’s effect. The

Carella concurrence, of course, does not permit this

thorough review of the record. Thus, if the majority

actually were "to determine whether reversal is required

under the Brecht/O’Neal" line of cases, maj. op. at 4689,

it must thoroughly review the record. Instead, the

majority applies only the Carella concurrence, limiting

inquiry to whether the jury necessarily found the

uninstructed element. The majority insists that in every

case in which a jury has not actually found the missing

element, a reviewing court is never able to determine

whether the instruction error had a substantial and

injurious effect. Maj. op. at 4689. Clearly, a judge’s

ability to determine an error’s effect is foreclosed unless

the judge thoroughly reviews each case’s record with its

individual circumstances. This is what Brecht requires.

This is what the majority rejects.

I cannot understand how we can know that the

“unusual” and “narrow” circumstance in O’Neal, 115 S.

Ct. at 994, 995 -- which occurs when a judge is in grave

doubt as to whether an error had a substantial and

injurious effect -- will always exist when jury instructions

are harmful under the Carella concurrence. A judge need

only reach the "grave doubt" issue in O’Neal after being

unable to decide whether an error had a substantial and

injurious effect. Id. at 994. The majority holds that in

every case involving a jury instruction not satisfying the

Carella concurrence, "in the judge’s mind, the matter is

so evenly balanced that he feels himself in virtual

equipoise as to the harmlessness of the error." Jd. But

O’Neal requires each individual judge reviewing a habeas

petition to ask, "Do I, the judge, think that the error

substantially influenced the jury’s decision?" Jd. at 995.

The majority mandates the answer to that question for

every judge in our circuit. Maj. op. at 4689.

In addition, the majority creates intercircuit conflict by

refusing to apply Brecht instead of the Carella

concurrence when reviewing collaterally jury instruction

errors. See Libby v. Duval, 19 F.3d 733, 739-40 (1st Cir.)

(holding that Brechi’s record-review applies to

instructional errors reviewed on habeas corpus and that

Carella was inapplicable in the habeas corpus context),

cert. denied, 115 S. Ct. 314 (1994); Cuevas v. Washington,

36 F.3d 612, 620 & n.17 (7th Cir. 1994) (applying Brecht

to instruction error on habeas corpus review).

I would therefore apply the standard set forth in

Brecht and ask whether the district court’s failure to

include specific intent in the aiding and abetting robbery

jury instruction had a substantial and injurious effect on

the jury’s verdict. The majority searched the record and

contends that a rational jury could have found that Roy

assisted McHargue in the robbery of Mannix, but also

could have found that Roy did not intend his actions to

have that effect. Maj. op. at 4687, 4689-90. However,

given the evidence that the jury actually heard, this latter

possibility does not establish the substantial and injurious

effect that Brecht requires.

The jury found Roy guilty of second degree murder of

Clark, guilty of aiding and abetting the robbery of

Mannix by McHargue, and guilty of the felony murder of

Mannix, with robbery as the underlying felony. The

aiding and abetting instruction actually given required the

jury to find that Roy aided in the commission of the

robbery offense by McHargue. The instruction also

required the jury to find that when Roy provided this

aid, he did so with the actual knowledge of McHargue’s

unlawful purpose. Given what the jury actually found and

the evidence in the -record supporting Roy’s specific

intent to further the robbery, I would hold the Beeman

error harmless under Brecht. The error did not have a

substantial and injurious effect on the jury’s verdict.

I certainly do not have the grave doubt that the

majority holds I necessarily must. Roy admitted stabbing

Clark. Mannix’s shirtless body was found submerged in

water under his truck. Mannix died either from being

stabbed or drowned. Mannix’s wallet was found with one

dollar in it. Upon his arrest, Roy’s pants were wet from

the calf down. Police found $170 and Mannix’s

wristwatch among Roy’s possessions. Roy told Hall that

he “helped” McHargue when McHargue and Mannix

were fighting. Hudspeth testified that Roy admitted a

plan to rob Clark and Mannix and admitted robbing

both. Hall testified that Roy admitted helping McHargue

with Mannix. From this I would conclude that there is

not even a reasonable probability that Roy did not assist

McHargue with the intent to further the robbery of

Mannix. Therefore, Roy’s habeas corpus petition should

be denied.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH DUANE ROY

Petitioner-Appellant, No. 94-15994

D.C. No.

CV-89-01643-DFL

JAMES GOMEZ: JOHN VAN DE)

KAMP: and WILLIAM MERKLE, ) ORDER

et al, )

ees

Filed September 26, 1995

Before: WALLACE, Chief Judge.

Upon the vote of a majority of nonrecused

regular active judges of this court, it is ordered that this

case be reheard by the en banc court pursuant to Circuit

Rule 35-3.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH DUANE ROY

Petitioner-Appellant, No. 94-15994

D.C. No.

CV-89-01643-DFL

Vv.

JAMES GOMEZ; JOHN VAN DE)

KAMP: and WILLIAM MERKLE, ) OPINION

et al, )

Respondents-Appellees. )

Appeal from the United States District Court

for the Eastern District of California

David F. Levi, District Judge, Presiding

Argued and Submitted

April 14, 1995--San Francisco, California

Filed June 9, 1995

Before: Floyd R. Gibson*, Alfred T. Goodwin and

Procter Hug, Jr., Circuit Judges

Opinion by Judge Goodwin; Dissent by Judge Hug

The court of appeals affirmed a district court

judgment. The court held that the district court did not

err in finding that an error in instructing a jury on the

“Honorable Floyd R. Gibson, United States Circuit Judge for the

Eighth Circuit, sitting by designation.

intent requirement for aiding and abetting was harmless

beyond a reasonable doubt.

After the bodies of Archie Mannix and James Clark

were found, appellant Kenneth Roy and Jesse McHargue

consented to a search of their backpacks. McHargue’s

pack yielded Mannix’s moccasins and his vest. A search

of Roy produced a watch later identified as having

belonged to Mannix, Roy was charged with two counts of

robbery and two counts of first degree murder.

At trial, Roy did not testify, but the jury heard

testimony from two jailmates who swore Roy had told

them of his participation in the killing of Clark and

Mannix. The state’s case was structured on two theories

to support first degree murder: premeditation and felony

murder. Roy’s counsel put on expert evidence in an

effort to prove that Roy’s mental capacity was impaired.

This evidence was introduced to show the jury that Roy

was unable to form any intent at all. The state put on

evidence to the contrary.

The jury found Roy guilty of second degree murder

for killing Clark, but found him not guilty of robbing

Clark. The jury answered a special verdict "no" on the

question whether Roy used his knife, but found him

guilty of first degree murder in the killing of Mannix.

In instructing the jury, the trial court committed a

Beeman error by failing to tell the jury that an aider and

abettor (Roy), must not only know the unlawful purpose

of the accomplice (McHargue), but must intend to

encourage or facilitate the commission of the offense--in

this case the robbery of Mannix. On direct appeal, the

California court of appeal affirmed the felony murder

verdict on the theory of aiding and abetting in the

robbery of Mannix. The court found that the Beeman

error was harmless beyond a reasonable doubt, and the

state supreme court denied post conviction relief.

Roy petitioned for a writ of habeas corpus in the

district court. The court found the Beeman error

harmless beyond a reasonable doubt. Roy appealed the

denial of hi: habeas petition, contending that because the

trial court’s instruction did not conform to the

requirement of People v. Beeman, the jury was permitted

to convict him without finding an element of the crime.

[1] In this case, the only rational way the jury could

have found Roy guilty on a felony murder theory was by

making a preliminary predicate factual finding that Roy

intended to help McHargue rob Mannix, while knowing

that McHargue intended to rob Mannix. [2] Whether or

not the Beeman instruction had been given, on the

evidence in this case, no jury could fail to find that Roy

intended to aid McHargue in subduing and robbing

Mannix. There was no other rational explanation of the

physical evidence and the testimony about Roy’s

admitted participation in the robberies and murders that

could be consistent with the verdict. [3] The only rational

route which the jury could have followed to reach the

verdict it reached in this case had to include the implicit

finding that Roy intended to help McHargue, knowing

McHargue’s purpose. That verdict was supported by

evidence and was completely rational.

Circuit Judge Hug dissented, noting that the jury did

not find that Roy intended 10 aid in the robbery.

COUNSEL

Hill C. Snellings, Blackmon & Drozd, Sacramento,

California, for the petitioner-appellant.

Margaret Venturi, Deputy Attorney General, Sacramento,

California for the respondents-appellees.

OPINION

GOODWIN, Circuit Judge:

Kenneth Duane Roy appeals the denial of his habeas

corpus petition challenging his 1983 California conviction

for first degree murder and robbery. Roy’s principal

point on appeal is that because the Superior Court’s

instruction did not conform to the requirements of People

v. Beeman, 35 Cal. 3d 547 (1984), the jury was permitted

to convict him without finding an element of the crime.

Carella v. California, 491 U.S. 376 (1989) (Justice Scalia

concurring).

FACTS

On September 13, 1981, Kenneth Roy and one Jesse

McHargue, while hitch hiking near Gridley, California,

met Archie Mannix and James Clark outside a

store and began drinking beer with them. A Gi."lxy

police officer observed the foursome in a pickup truck.

The officer stopped the truck and advised the four not

to drive.

found on bushes, and papers, not otherwise described,

were found scattered near the truck. Roy and McHargue

were not present, but were found about 3 a.m. in a

nearby restaurant. Both men were wearing wet and

muddy clothing.

Roy and McHargue were informed of their Miranda

rights and consented to a search of their backpacks.

McHargue’s pack yielded Mannix’s wet moccasins and his

vest. After the two men were arrested, a search of Roy

a Buck knife, $ 170.52 in cash, and a watch

later identified as having belonged to Mannix. Roy was

charged with two counts of robbery and two counts of

first degree murder.

At trial, Roy did not testify, but the jury heard

testimony from two jail inmates who swore Roy had told

them of his participation in the killing of Clark and

Mannix.

The state’s case was structured on two theories to

support first degree murder: premeditation and felony

murder. The prosecutor argued that Roy and McHargue

planned to drive to a remote location, rob and kill both

victims, and steal their pickup truck. The prosecution

argued that the physical evidence, the testimonial

evidence that the victims had money and the defendants

had none, and the testimony about admissions Roy

allegedly made to jailed informers proved that Roy killed

Clark while McHargue was struggling with Mannix, and

that after Roy had killed Clark, Roy helped McHargue

rob and kill Mannix. The evidence was sufficient to take

both theories to the jury. The state also sought a verdict

of special circumstances, based on the use of knives in

the stabbing deaths of the two victims, but this issue was

eliminated in state court proceedings.

The jury found Roy guilty of second degree murder

for killing Clark, but found him not guilty of robbing

Clark. The jury answered a special verdict "no" on the

question whether Roy used his knife, but found him

guilty of first degree murder in the killing of Mannix.

Rcy now argues, and we agree, that the verdict of

second degree murder of Clark eliminates the theory of

premeditation in Roy’s conviction of first-degree murder.

The validity of Roy’s first degree murder conviction in

the killing of Mannix thus depends on felony murder in

the course of aiding and abetting the robbing of Mannix.

INSTRUCTIONS

The trial court instructed the jury orally and in

writing,” inter alia, "[t}o find that the special

circumstance, referred to in these instructions as murder

in the commission of robbery, is true, it must be proved:

[1] That the murder was committed while the defendant

was engaged in or was an accomplice in the commission

of a robbery. [2] That the murder was committed in

order to carry out or advance the commission of the

1. The appeal has not challenged minor differences between

instructions as read to the jury and those sent into the jury room

in written form.

crime of robbery. . . . In other words, the special

circumstance referred to. . .is not established if

the. . .robbery was merely incidental to the commission

of the murder."

The jury was also instructed "if a human being is

killed by any one of several persons engaged in the

perpetration of, or attempt to perpetrate, the crime of

robbery, all persons who. . .with knowledge of the

unlawful purpose of the perpetrator of the crime

aid. . .its commission, are guilty of murder of the first

degree, whether the killing is intentional, or accidental."

CALJIC No. 8.27 (1979).

The jury was further instructed that 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." CALJIC No. 300 as

amended by CALJIC No. 4.25.

CALJIC No. 301 as given, reads: "A person aids and

abets the commission of a crime if, with knowledge of

the unlawful purpose of the perpetrator of the crime, he

aids, promotes, encourages or instigates by act or advice

the commission of such crime."

The Beeman error in the above instruction consisted

in the failure of the court to tell the jury that an aider

and abettor (Roy) must not only know the unlawful

purpose of the accomplice (McHargue), but must intend

to encourage or facilitate the commission of the offense--

in this case the robbery of Mannix. See Beeman, 35 Cal.

3d at 561. (Beeman had not been decided when the case

was tried.)

On direct appeal, the California court of appeal

affirmed the felony murder verdict on the theory of

aiding and abetting in the robbery of Mannix. The court

of appeal found the Beeman error harmless beyond a

reasonable doubt, and the state supreme court denied

post conviction relief in 1989.

The petition for habeas corpus in the district court fol-

lowed. The district court again found the Beeman error

harmless beyond a reasonable doubt, saying: "No rational

juror could find that Roy aided McHargue, knowing what

McHargue’s purpose was, without also finding that Roy

intended to aid McHargue in his purpose.” We agree.

DISCUSSION

The appeal advances the argument that because no

Beeman instruction was given on intent, an essential

element of the crime, Carella, requires a new trial. We

have in the § 2254 cases collected in Martinez v. Borg,

937 F.2d 422, 424 (9th Cir. 1991), refused to find the

Beeman error harmless beyond a reasonable doubt. But

the teaching of the Carella line of cases tells us to look

to what the jury actually decided, not what we, as judges,

believe the jury would have decided if they had been

properly instructed. We have held that if jury instructions

omit an element of the offense, (in this case, specific

intent) constitutional error results. See Martinez.

[1] If the jury returned a verdict from which it could

be said that the jury actually made the essential

predicate fact finding, then we affirm. Here, the only

rational way the jury could have found Roy guilty on a

felony murder theory was by making a preliminary

predicate factual finding that Roy intended to help

McHargue rob Mannix, while knowing that McHargue

intended to rob Mannix. It is therefore necessary for us

to review the record, the instructions as a whole, and the

verdict, to determine whether the jury, despite the

' instruction, had to find every material

element of the offense in order to return the verdict it

returned.

the jury could have found that he knew

Mclenpes intended to rob Manni and helped him do

so without necessarily finding that Roy intended to assist

in the robbery. Roy, as noted, did not testify. His counsel

put on expert evidence in an effort to prove that Roy's

mental capacity was impaired by intoxication, as well as

by his inherent immaturity and lack of mental acuity.

This evidence was introduced to show the jury that Roy

was unable to form any intent at all, much less an intent

to help McHargue rob Mannix. The state put on

evidence to the contrary. The jury was entitled to

disbelieve Roy’s experts.

[2] Whether or not the Beeman instruction had been

given, on the evidence in this case, no jury could fail to

find that Roy intended to aid McHargue in subduing and

robbing Mannix” There was no other rational

3 Hypothetical and imaginary scenarios perhaps may

vi chalied txoneet that Roy did not intend to help

2. It was not necessary that the jury find that Roy intended to

help McHargue kill Mannix Such a finding could have found

evidence, but was not requested, because aiding in

the robbery of Mannix which resulted in his death was a sufficient

finding to support Roy's felony murder verdict.

McHargue rob Mannix. But the jury had before it the

defense evidence that attempted to cast doubt on Roy’s

capacity to form any intent, criminal or otherwise, and

the jury obviously did not believe that evidence. We

conclude, as did the California courts and the District

Court, that the only rational route which the jury could

have followed to reach the verdict it reached in this case

had to include the implicit finding that Roy intended to

help McHargue, knowing McHargue’s purpose. That

verdict was supported by evidence, and was completely

rational. Hegler v. Borg, 1995 U.S. App. Lexis 6113

(quoting O’Neal v. McAninch, 115 S. Ct. 992, 995 (1995),

"Only if the record demonstrates the jury’s decision was

substantially influenced by the trial error or there is

“grave doubt" about whether an error affected a jury in

this way’ will [Roy] be entitled to habeas relief.").

AFFIRMED

HUG, Circuit Judge, Dissenting:

The majority recognizes that under Supreme Court

and Ninth Circuit precedent we must only look to what

the jury actually decided in determining an essential

element of a crime not what we as judges believe the jury

would have decided if it had been properly instructed. See

Carella v. California, 491 U.S. 263, 268-69 (1989) (Scalia,

J., concurring); Yates v. Evatt, 500 U.S. 391, 404 (1991);

Sullivan v. Louisiana, 113 S. Ct. 2078, 2082 (1993);

Martinez v. Borg, 937 F.2d 422, 424 (9th Cir. 1991).

However, the majority fails to apply that law to this case.

The majority acknowledges that there was a "Beeman"

error in the trial court’s failure to instruct the jury that,

second degree murder for the murder of Clark.

FILED

MAY 10 1994

Clerk, U.S. District Court

Eastern District of California

/s/ Deputy

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

KENNETH D. ROY, Civ. S-89-1643-DFL-PAN

Petitioner, ORDER

JAMES GOMEZ, et al.,

Respondents.

Petitioner Kenneth D. Roy, a state prisoner

represented by counsel, seeks a writ of habeas corpus

under 28 U.S.C. § 2254. The magistrate judge issued

findings and recommendations on March 5, 1993,

recommending that the petition be denied. The court

heard oral argument on July 30, 1993, on petitioner’s

objections to the findings and recommendations. The

court has deferred rendering a decision in this case

because of the grant of en banc hearing in United

States v. Gaudin, 997 F.2d 1267, en banc review

granted, 5 F.3d 374 (9th Cir. 1993), a case on which

petitioner places some considerable reliance. No

decision has been forthcoming in Gaudin, however, and

it appears unwise to defer decision any further in this

case.~

The facts of the case are well stated in the

findings and recommendations. Roy contends that the

aiding and abetting instruction given at trial was

defective under People v. Beeman, 35 Cal.3d 547

(1984), which was decided after Roy’s trial but before

his conviction became final. In Beeman, the California

Supreme Court found that the aiding and abetting

instruction in CALJIC No. 3.01--which was the

1. If the en banc court finds that harmless error analysis may

be applied then Gaudin will provide no support for petitioner. On

the other hand, if the en banc court accepts the approach of the

panel in Gaudin, the decision is not likely to address cases involving

the court of instruction error alleged here.

instruction given by the trial court here*--was

adequate because it did not expressly instruct the jury

that an aider and abettor must have the intent to

encourage or facilitate the commission of the offense.

The court suggested that an appropriate aiding and

abetting instruction would include an additional clause

on intent:

a person aids and abets the commission

of a crime when he or she, acting with

(1) knowledge of the unlawful purpose of

the perpetrator, and (2) the intent or

epee ape liitating th ~— f the off

(3) by actor advice aids, promotes, —

encourages or instigates, the commission

of the crime.

Id. at 561 (emphasis added).

Following state court precedents subsequent to

Beeman, the court of appeal found that the

2. The was instructed that "[a] person aids and abets the

ccmmtatan a8 2 ctme 2 oth (ii taactotgp of te calantl

purpose of the perpetrator of the crime he [2] aids, promotes,

encourages or instigates by act or advice the commission of such

crime.” Findings and recommendations at 11.

"instruction found wanting in Beeman (CALJIC No.

3.01 [1980]) and given here, may convey the required

intent to the jury because in the circumstances of the

case it contains a legally adequate criterion of intent."

People v. Roy, No. C000992, slip. op. at 25 (Cal. Ct.

App. January 27, 1989) ("Roy II"). The court

reasoned that if the defendant did not intend his

actions or if the defendant, intending his actions, did

not know that his acts would aid the principal, then

the failure to include an instruction as required by

Beeman would be fatal. Absent such circumstances,

however, it was adequate if the jury were instructed

that it must find that the defendant acted with

knowledge of the principal’s unlawful purpose and

provided aid or encouragement to commit the offense.

Id. at 26-28. After reviewing all of the different

possible factual circumstances under which the jury

could have convicted Roy, the court of appeal found

no circumstance in which the challenged instruction

could have prejudiced the defendant.*

In habeas corpus cases involving Beeman error,

the Ninth Circuit uses and approach similar to that

used by the California court of appeal here. In

Willard v. California, 812 F.2d 461 (9th Cir. 1987), the

court found that the absence of an instruction on

specific intent was harmless beyond a reasonable doubt

because intent was not at issue in the case, and the

jury could not have convicted “without also finding that

[defendant] had the requisite intent." Id. at 465. In

Leavitt v. Vasquez, 875 F.2d 260 (9th Cir. 1989), the

court followed Willard by applying harmless error

analysis and used the test for harmless error suggested

3. “Under the circumstances of this case, the assistance to

McHargue by defendant in the perpetration of the robbery, with

defendant’s knowledge of McHargue’s purpose, unambiguously

reveals defendant’s awareness of the importance of his acts in

advancing the robbery. In the absence of evidence establishing some

contrary intent, no other inference is permissible from that act.

Roy Il, at 30.

_ by Justice Scalia’s concurring opinion in Carella vy.

California, 491 U.S. 263, 109, S. Ct. 2419 (1989).

Under the Scalia test, harmless error may be found:

When the predicate facts relied upon in the

instruction, or other facts necessarily found by

the jury, are so closely related to the ultimate

_ fact to be presumed that no rational jury could

find those facts without also finding that

ultimate fact, making those findings functionally

equivalent to finding the element required to be

presumed.

Id. at 2423. The Willard court held that in the

particular circumstances of the case the jury’s finding

that the defendant gave aid with knowledge of the

principal’s criminal purpose was the functional

equivalent of finding that defendant acted with the

requisite specific intent to facilitate the principal’s

crime.

In Martinez v. Borg, 937 F.2d 422 (9th Cir.

1991), the court again used the harmless error analysis

suggested by Justice Scalia:

In applying the Scalia test to this case, we

examine the findings made by the jury. The

error is harmless if no rational jury would have

made these findings without also finding that

[petitioner] had the specific intent to aid the

murder and attempted murder.

Id. at 425. The court found that the Beeman error

was not harmless in this case because there was

evidence at trial that the defendant did not have the

specific intent to aid the commission of the offense.

The court’s analysis of the evidence also suggested that

the jury could have convicted without finding that

when Martinez assisted the principal he understood the

principal’s crimiral purpose.*

‘i

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ti gfe

seilaweesi

Finally, in Hart v. Stagner, 935 F.2d 1007 (9th

Cir. 1991), the court again looked to "the predicate

facts the jury must have found to convict [the

defendant) under the instructions it was given” and

then determined whether "the jury must have

necessarily found the element on which the jury

instructions were incorrect." Id. at 1012. In view of

the facts of the case, the court concluded that no

rational jury could have found that defendant knew of

the principal’s criminal purpose but acted without an

intent to aid in the commission of the crime. Id. The

court noted that the defense at trial was not one of

lack of intent. Id. at 1013.

The jury in this case found Roy guilty of second

degree murder of Clark, guilty of aiding and abetting

the robbery of Mannix by McHargue, and guilty of the

felony murder of Mannix, with robbery as the

underlying felony. The aiding and abetting instruction

aided in the commission of the robbery offense and

that when he provided this aid he did so with

knowledge of McHargue’s unlawful purpose. As both

the magistrate judge and court of appeal have

explained in some detail, the jury's findings that Roy

assisted McHargue’s robbery of Mannix knowing

McHargue’s purpose are the functional equivalent of a

finding of specific intent. No rational juror could find

that Roy aided McHargue, knowing what McHargue’s

purpose was, without also finding that Roy intended to

aid McHargue in his purpose. This kind of "knowing

aid,” in the language of the court of appeals, is

synonymous with specific intent, at least when there is

no contrary evidence suggesting that the acts were

involuntary or that specific intent was otherwise

lacking. Here Roy did not argue that he lacked the

intent to aid McHargue except to the extent that he

contended that because of diminished capacity he

lacked the ability to form intent, a contention rejected

by the jury in its conviction of Roy for the murder of

Clark. The factual scenarios suggested by petitioner in

which he may have assisted McHargue to rob Mannix,

without intending to do so, ignore that the jury was

required to find that when Roy acted to give aid to

McHargue, he did so with knowledge of McHargue’s

unlawful purpose. This case is not fairly

Beeman error that occurred here was harmless beyond

a reasonable doubt.

Petitioner also argues that the harmless error

approach is itself error because the removal of an

element from the jury’s consideration can never be

harmless but amounts to an impermissible directed

verdict for the state. As the discussion above

demonstrates, it is well established that claims of

Beeman error are evaluated under a harmless error

standard. The court in United States v. Gaudin, 997

F.2d 1267 (9th Cir. 1993), does not purport to alter

this approach In Gaudin the district court erroneously

removed the question of materiality from the jury by

instructing it that the alleged false statements were

material as a matter of law. The court found that

harmless error analysis could not be applied in this

circumstance because the element of materiality had

been "completely removed" from the jury’s

consideration. Id. at 1272. In these circumstances,

unlike Martinez and Justice Scalia’s approach, "there

can be no inquiry into what evidence the jury

considered to establish that element, because the jury

was precluded from considering the element at all."

Id. By contrast, here intent was not completely

removed from the jury’s consideration. Rather, the

jury was not instructed, or was imperfectly instructed,

on intent to aid and abet.*. For these reasons,

Gaudin does not apply here. Moreover, Gaudin does

not question the continued use of the well established

harmless error analysis in cases involving Beeman

error. Indeed, Gaudin expressly relies upon Martinez.

See also Hennessy v. Goldsmith, 929 F.2d 511 (9th Cir.

1991).

Nor does Sullivan v. Louisiana, 113 S. Ct. 2078

(1993), suggest that harmless error review should not

apply to the instructional error here. In Sullivan the

Court reaffirmed the appropriateness of such review to

cases involving instructions incorporating mandatory

presumptions. Beeman error is a similar kind of error

because the jury finds--or is presumed to find--the

requisite intent by finding knowing aid. The Court

5. AS suggested by the court of appeal in its decision, the

instruction that was given, requiring a finding of "knowing aid,” is

a sufficient implicit instruction on the requisite intent in the

circumstances. In this sense, the element of intent was presented

to the jury for consideration without the word “intent.”

reaffirmed that when the jury finds facts "so closely

related to the ultimate fact to be presumed that no

rational jury could find those facts without also finding

that ultimate fact" then harmless error may be found

because "the presumption played no significant role in

the finding of guilt beyond a reasonable doubt." Id. at

2082. However, when as in Sullivan, the reasonable

doubt instruction is defective, such that all of the jury’s

fact findings are unreliable, there can be no harmless

error analysis because there are no jury findings from

which to ask what further a reasonable jury must find.

Sullivan has no bearing on the continued use of

harmless error analysis to cases involving Beeman

error. If anything, it affirms the continued validity of

that approach.

The court adopts the findings and

recommendations submitted by the magistrate judge

and reject petitioner’s objections. The petition for

habeas corpus is DENIED.

IT IS SO ORDERED.

Dated: _9 May 1994

Ls/

DAVID F. LEVI

United States District Judge

q >

wy » rhe oe -y is aS es fate ; =< -

SOG TRE PO ep TO

FILED

MAR 5 1995

Clerk, U.S. District Court

Eastern District of California

/s/ Deputy

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

KENNETH D. ROY,

Petitioner,

JAMES GOMEZ, et al.,

Respondents.

Civ. S-89-1643-DFL-PAN

FINDINGS AND

RECOMMENDATIONS

Petitioner Roy, a state prisoner

proceeding in forma pauperis and pro se, seeks a writ

of habeas corpus pursuant to 28 U.S.C. § 2254. This

proceeding was referred to me by Local Rule 302

pursuant to 28 USC. § 636(b)(1).

Roy and McHargue were hitchhiking near

Gridley when they met the victims, Clark and Mannix,

who had a truck. That night, Clark and Mannix were

found dead near their truck, which was wrecked in a

water-filled ditch; Clark was stabbed once and Mannix

was stabbed seven times. When Roy and McHargue

were found, they both had knives, their pants were

wet, Mannix’s belongings were found in Roy’s pockets

and McHargue’s wet backpack. A Butte County jury

found Roy (1) guilty of second degree murder of

Clark, (2) not guilty of robbing Clark, (3) not guilty of

using a knife in the murder of Mannix but (4) guilty of

aiding and abetting the first degree murder and

robbery of Mannix armed with but not using a knife.”

Cal.App.3d 642, 644 (1989) ("Roy I"); Clerk’s Tr. (“CT”) at 760,

765-66. In a sworn declaration, the

or statement occurring during the course of the jury's deliberations

emotions as influencing the juror to assent to or dissent

verdict or concerning the juror’s mental processes in connection

therewith. However, Rule 606(b) does not prohibit admission of a

juror’s affidavit to clarify an ambiguous verdict or to correct a

judgment to reflect the intent of the jury. United States v. Stauffer,

The state presented alternative theories.

First, the state contended that Roy and McHargue

planned to rob and kill the victims. Alternatively, the

state contended that the killing occurred during the

commission of robbery.

Since the jury found Roy guilty of only

second degree murder of Clark and not guilty of

robbing Clark, the California Court of Appeal inferred

that the jury found that Roy did not plan to murder

either victim, i.e., it rejected the state’s first theory thus

leaving the theory that the killings occurred during the

commission of robbery.

Under California law, Roy might be

corvicted of felony-murder if Mannix’s death was

unintentional but nonetheless a natural, reasonable or

922 F.2d 508, Sil, 513-14 (9th Cir. 1990); McCollough v.

937 F.2d 1167, 1172, (6th Cir. 1991); J.

Weinstein & M. Berger, Weinstein's Evidence § 606[04] at p. 606-30

(1992). Here, because the jury was instructed on several theories

of first degree murder, a juror affidavit clarifying the specific theory

relied upon is admissible.

probable consequence of robbery. But Roy could be

found guilty of the special circumstance of a murder in

the course of a robbery, which finding exposed Roy to

the death penalty, only if Roy acted with the intent to

aid in the killing.

The California Court of Appeal found

that the evidence supported reasonable inferences by

the jury that two simultaneous fights ensued following

the wreck of Mannix’s truck; that Roy fought Clark

while McHargue fought Mannix; that Roy

independently fatally injured Clark and McHargue

mortally injured Mannix; that thereafter, McHargue

dragged or struggled with Mannix to the ditch where

McHargue drowned Mannix; and that Roy’s only

participation in the offenses against Mannix was taking

Mannix’s property or assisting McHargue so to do.

Roy |, slip op. at 20.

The jury was not instructed that it must

find that Roy intended to aid the killing of Mannix in

order to be found guilty of the charged special

circumstance and, accordingly, the court of appeal

reversed that finding.

On remand from the court of appeal, the

trial court resentenced Roy to a minimum prison term

of 46 years. People v. Roy, No. C007071, slip op. at 2

(Cal. Ct. App. Sept. 24, 1990) ("Roy II”).

Now Roy argues that his felony-murder

conviction must also be reversed because the jury was

not instructed that to be guilty as an aider and abetter,

Roy must have intended to aid and abet McHargue.

People v. Beeman, 35 Cal.3d 547 (1984).

Facts

Roy and McHargue went to a liquor

store in Gridley were they met James Clark and

Archie Mannix. The men conversed and drank beer

together near Mannix’s truck. Mannix bought two six-

packs of beer with a ten dollar bill. Rep.’s Tr. ("RT")

at 2218-19, 2222-23. Later, Mannix bought more beer.

RT at 2227.

About 9:00 p.m., police officers stopped

Mannix’s truck, McHargue was driving, and Roy,

Mannix and Clark were inside. Mannix was wearing a

western-style vest with long straps and knee-high

leather moccasins. RT at 2042, 2392. There were two

backpacks in the truck. RT at 2043, 2393. The

Officers saw the four men again at the liquor store

before 11:00 p.m. RT at 2050, 2088, 2396.

About 11:15 p.m., Marie Koehler Smart

saw two men standing by the side of the truck which

was in a ditch. Smart spoke to McHargue while the

other man stood near her car. RT at 2471.

McHargue told Smart that they had already called for

help. RT at 2473. As Smart turned to depart, she

saw another person laying on the ground by the side of

the truck; the person appeared to be injured but was

moving. RT at 2474-75. Smart saw McHargue and

the other man walk back to where the man was lying

and stand over him. RT at 2476.

Police arrived about 1:30 a.m. RT at

2050-51, 2054, 2061, 2096. They found skid marks

measuring approximately 50-100 feet behind the truck.

RT at 2077-78, 2635. Clark’s body was lying across the

ditch, on his back. RT at 2057-58, 2404-05. Clark was

fully clothed, his shirt was unbuttoned, he was wet and

muddy, had no vital signs, and had a puncture wound

in the middle of his chest. RT at 2058, 3283. Mannix’s

body was found under the truck, submerged in water;

his clothing except for his pants had been removed, his

pants were pulled down to his knees, and his

moccasins were gone. RT at 2063-64, 2406-07.

There was about twelve inches of water

in the ditch. RT at 2621, 2632. The truck was about

five and a half feet above the water in the ditch. RT

at 2626. There were scattered papers and a wallet,

containing Mannix’s drivers license and one dollar, in

the brush near the truck. RT at 2628, 2637, 2645.

The papers were dry. RT at 3305. A dime lay near

Clark’s body. RT at 2630-31.

About 3:00 p.m., officers found

McHargue and Roy at a restaurant. RT at 2069,

2071-72, 2094. They had been there for two hours.

RT at 2968-69. Both men had buck knives. RT at

2072-73, 2501. Roy’s pant legs were wet from the calf

down. RT at 2285-86. McHargue’s pants were

completely wet from the knees down, possibly from the

waist down, and his shoes were muddy. RT at 2448-

49, 2450. McHargue’s backpack was very wet and

contained Mannix’s brown knee-high moccasins and a

brown vest with long straps which were soaking wet.

RT at 2424-25, 2451. |

Roy first denied he was with Mannix and

Clark when the truck went into the ditch. RT at 2173.

An officer noticed that Roy’s backpack was wet and

muddy and its contents were wet. RT at 2176. Roy

then adinitted that he and McHargue were with

Mannix and Clark at the accident scene. RT at 2293.

Roy stated that McHargue was driving the truck, lost

control on Block Road, went into a ditch and wrecked

the truck. KT at 2179-81, 2293. Roy stated that he

and Clark climbed out of the passenger window, went

through the ditch onto the bank, that Clark was

jumping up and down on the embankment and

shouting, and that Clark struck Roy in the chest and

stomach. RT at 2181-82, 2293. Roy stated that he

removed his buck knife, stabbed Clark once in the

chest because Clark was attacking him, Clark fell on

his back, and Toy then told Clark "he was sorry he

had to do that." RT at 2182-83, 2194. Roy stated that

he then went to where McHargue was standing and

saw that Mannix was in the ditch. RT at 2183-84.

Roy did not know how Mannix got into the ditch, did

not know what Mannix and McHargue had been doing,

and denied being involved in the altercation with

Mannix. RT at 2184, 2294-95, 2303. Roy denied

taking anything from Clark or Mannix. RT at 2302.

Roy stated that he and McHargue then walked back

into town. RT at 2302. Among Roy’s possessions,

police found $170.53 cash and Mannix’s wristwatch.

RT at 2309-10, 2666-68.

One of the pockets on Clark’s pants was

turned inside out. RT 2690. Clark died from a stab

wound to his heart. RT at 2696.

Mannix suffered multiple scratches on his

body and several stab wounds. RT at 2699-2700, 2711.

Mannix was stabbed once in the left chest through the

heart, once in the abdomen, and five times above his

left hip and on the hip. RT at 2700, 2711-13. Mannix

also drowned. RT at 2701. Either the drowning by

itself or the stab would by itself could have killed

Mannix. RT at 2701.

The stab wounds found on Mannix and

Clark were consistent with the buck knives taken from

Roy and McHargue, however, a pathologist could not

determine which knife inflicted which wounds. RT at

2725-26, 2730.

Williams Hudspeth met Roy while the

two were confined at the Butte County Jail. RT at

3084. Hudspeth testified that Roy said that when he

and McHargue arrived in Gridley they wanted to sell

blood in order to get some money because neither had

money. RT at 3091. Roy said that he and McHargue

planned to rob the men they were drinking beer with

in Gridley and take their truck and Roy mentioned

that they would have to "take them out, meaning

Archie Mannix and the other person in the pickup."

RT at 3123-24. Hudspeth explained that to take

someone out means to kill them. RT at 3126. Roy

said that he and McHargue took the younger man out

and that he was the "easy one," then they worked on

the bigger man who McHargue was having a hard time

with. RT at 3126-27. Roy said that he stabbed the

bigger man in the lower part of the body and, because

he was not sure if he was dead, Roy and McHargue

shoved his head in the water; after that Roy and

McHargue left in the truck. RT at 3127, 3135-36.

Roy said he and McHargue took the two men’s

money, between $150 and $160, some clothes, and a

vest Roy wanted. RT at 3128-29. Hudspeth also

stated that Roy said the pickup truck was stuck off the

side of the road, so he and McHargue started walking

back towards town when another vehicle picked them

up. RT at 3133.

Joy Hudspeth, William Hudspeth’s wide,

testified that she received letters from William

Hudspeth, who was in the state prison system,

discussing his forthcoming testimony and stating "Can

you imagine on the stand I have to look at him. I've

got to kill a guy. That hurts. Hope he gets double

life instead. Very hard. What I’m going through.”

RT at 3510, 3512-15, 3536. Hudspeth also stated "I

hope Mattly comes through for me on his promise."

RT at 3537. The district attorney’s name was Mattly.

RT at 1. Hudspeth subsequently testified in rebuttal

that the "promise" referred to was to be taken out of

the California State prison system into another state

prison for his safety. RT at 4508. Hudspeth testified

that state prisoners who testify jeopardize their safety.

RT at 4508-09. Hudspeth hoped that Mattly could get

him a job. RT at 4512. Hudspeth testified that

Mattly never made him any promises to get him to

testify. RT at 4509.

Sidney Hall also met Roy while the two

were confined at the Butte County Jail. RT at 3196.

Hall testified Roy said that when he arrived in Gridley

he had a little money. RT at 3214. Roy said that

Clark and Mannix were mad because the truck was

wrecked and that Clark hit Roy in the head with a

stick. RT at 3200-01, 3217. Roy said that he killed

Clark by stabbing him with a buck knife. RT at 3200-

01, 3259. Roy said that McHargue and Mannix were

fighting, that McHargue was "getting the worst end of

it," and that Roy went over to help McHargue. RT at

3203. Roy did not say how he helped McHargue with

Mannix. RT at 3203. Roy said that Mannix had to

die because he was a witness and that he was stabbed

and drowned, but Roy later retracted the statement

and said that it was not so. RT at 3203-04. Roy

never said that he stabbed Mannix. RT at 3266. Roy

said that after the deaths, McHargue took a vest and

some high-top moccasins, and Roy and McHargue

walked back to Gridley. RT at 3218-19. Roy also said

that he did not take anything from Clark or Mannix.

RT at 3240, 3258.

A criminalist tested Roy’s buck knife and

found ABO type A blood near the base of the blade.

RT at 2908-09. Mannix was ABO type A and Clark

was ABO type O. RT at 2807-10, 2910-11. The

criminalist could not determine that the type A blood

found on Roy’s knife was Mannix’s blood. RT at 2963.

A forensic serologist performed a blood test on blood

taken from Roy and determined that Roy is ABO type

A. RT at 3764.

A psychologist opined that Roy has

"borderline intellectual functioning or borderline

intellectual retardation," and "substantial and significant

brain damage or neurological impairment." RT at

3576-77, 3642-43. A board certified psychiatrist

testified that Roy did not have the capacity to form a

clear and deliberate intent to kill a human being on

September 14, 1981. RT at 4279-80. He also opined

that Roy did not have a normal capacity to weigh and

consider the question of killing a human being. RT

4281.

A psychiatrist testified that neither

psychiatrist nor psychologists have the expertise to

decide whether an individual is capable of forming the

intent to kill. RT at 4426.

Discussion

Roy contends that the trial court’s failure

to instruct the jury that intent is an element of aiding

an abetting was harmful constitutional error because it

relieved the state of its burden of proving all elements

of the offense beyond a reasonable doubt. Roy also

contends that the omission resulted in an

unconstitutional directed verdict against Roy, depriving

him of a jury trial upon an element of the offense

charged.”

Due Process protects the accused against

conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the crime

2. See Martinez v. ghee hte be,

"In Carella {y. California] . . . Justice Scalia reasoned

sen ied GEA Ts Iemmprngeiate ta Go cunnen of tenmngiets

jury instructions because it substitutes the appellate court's findings

of fact for the jury’s and is akin to an impermissible directed

verdict.") Respondents contend that Roy’s claim that the trial court

directed a verdict in violation of his right to a jury trial is

unexhausted. Answer at 30. Roy’s habeas petition to the California

with which he is charged. In re Winship, 397 U.S. 358,

364, 90 S.Ct. 1068, 1073 (1970). Failure to properly

instruct a jury regarding an element*of a charged

crime is a constitutional error that deprives the

defendant of due process unless the error is harmless.

Hennessy v. Goldsmith, 929 F.2d 511, 514 (9th Cir.

1991).

The jury was instructed that "[a] person

aids and abets the commission of a crime if with [1]

knowledge of the unlawful purpose of the perpetrator

of the crime he [2] aids, promotes, encourages or

instigates by act or advice the commission of such

crime.” RT at 5780.

After Roy’s trial, but before his

conviction became final, the California Supreme Court

held that when the defendant’s intent is ambiguous, an

The substantive elements of a criminal offense are defined

law.

by state law. See Jackson v. Virginia, 443 U.S. 307, 324 n.16, 99

S.Ct. 2781, 2792 n.16 (1979).

aiding and abetting conviction requires "proof that an

aider and abettor rendered aid with an intent or

purpose of either committing, or of encouraging or

facilitating commission of, the target offense. People v.

Beeman, 35 Cal.3d at 551.

In Beeman, the defendant was convicted

of aiding and abetting robbery upon the testimony of

others that he was extensively involved in planning the

crime, drew a floor plan of the scene, and possessed

part of the loot. Beeman testified that two days

before the robbery, he told the others that he wanted

nothing to do with it and that he furnished the floor

plan for an innocent purpose. The jury was instructed

that a person aids and abets the commission of a

crime if, with knowledge of the unlawful purpose of

the perpetrator of the crime, he aids, promotes,

encourages or instigates by act or advice the

commission of such crime. The California Supreme

Court held that an aider and abettor must act with

knowledge of the perpetrator’s criminal purpose and

intent; otherwise conviction is allowed if the defendant,

knowing of the perpetrator’s unlawful purpose,

negligently or accidentally aided the crime.

The United States Court of Appeals for

the Ninth Circuit has held that "Beeman" error is

constitutional error when it precludes the jury from

finding each element of the crime beyond a reasonable

doubt. Martinez v. Borg, 937 F.2d 422, 423 (9th Cir.

1991).* In that case, the defendant was convicted of

aiding and abetting the second degree murder of one

4. The error is harmless, however, if no rational jury would

have made its findings without also finding that the defendant had

the specific intent to aid the crimes committed by the perpetrator.

Martinez, 937 F.2d at 423, 424. Yates v. Evatt, 111 S.Ct. 1884

standing alone. 111 S.Ct. at 1893. Yates has no application to a

case involving Beeman error, where an element of the offense is

omitted. See Martinez, 937 F.2d at 424. If an instruction omits an

element, a court cannot weigh the evidence considered by the jury

in accordance with the omitted element.

peace officer and of the attempted murder of another.

The evidence was that the murder weapon was usually

carried by defendant but that the perpetrator suddenly

shot the officers from a car window at point-blank

range. The court found that the jury could have found

that defendant aided the murder by supplying the

murder weapon without necessarily finding that

appellant intended the gun to be used to kill the

officers. Because the court could not determine that

the jury necessarily found specific intent in order to

reach its verdict, the instruction omission was not

harmless. Id. at 425-26.

Absence of a Beeman instruction,

however, does not necessarily remove the issue of

intent from the jury’s consideration. Only when the

defendant’s act is not intended, e.g., it is involuntary,

or if the defendant, intending the act, did not know

that it would aid the perpetrator’s criminal venture, is

the Beeman instruction required.» That was the case

in Martinez but it is not the case here.

McHargue and Roy hitchhiked to

Gridley. Mannix paid for beer and owned a truck.

McHargue and another man were seen standing over a»

shirtless, living, wounded man. Roy admitted stabbing

Clark. Mannix’s shirtless body was found submerged

in water under his truck. Mannix died either from

being stabbed or drowned. Mannix’s wallet was found

with one dollar in it. Upon his arrest, Roy’s pants

were wet from the calf down. Police found $170 and

Mannix’s wristwatch among Roy’s possessions. Roy at

first denied being with Mannix and Clark when the

truck went into the ditch but then admitted being

there. Roy told Hall that he "helped" McHargue when

5. See Hart v. Stagner, 935 F.2d 1012-13 (Beeman error

harmless when defense was not lack of intent, but that Hart was not

present during crimes); Cf. Martinez, 937 F.2d at 425 n.2; Willard

y. California, 812 F.2d 461, 646 (9th Cir. 1987) (Beeman error

harmless where intent is not a live issue at trial).

McHargue and Mannix were fighting. Type A blood

was found on Roy’s knife; Roy and Mannix had type A

blood. Hudspeth testified that Roy admitted a plan to

rob Clark and Mannix and admitted robbing both.

Hall testified that Roy admitted helping McHargue

with Mannix.

Roy did not argue that he did not intend

to aid and abet McHargue. Roy’s statement to the

police was that he did not know how Mannix got into

the ditch, did not know what Mannix and McHargue

had been doing, and denied being in the altercation

with Mannix. RT at 2184, 2294-95, 2303. Defense

counsel argued that Mannix received dollar bills in

change for the beer, that Roy did not have any dollar

bills in his wallet, that there was no evidence the

money in Roy’s \. ‘Wet came from Mannix or Clark,

that Roy earned that money, that McHargue gave the

wristwatch to Roy after McHargue killed Mannix, and

that Roy did not have Mannix’s keys. RT at 5695-

5700, 5709-10.

The record shows that the jury could not

have reached its verdict of aiding and abetting without

also finding that Roy had specific intent to aid and

abet the robbery of Mannix; i.e., that Roy knew the

full extent of McHargue’s criminal purpose to rob

Mannix, and Roy gave aid or eussumgement with the

intent or purpose of facilitating McHargue’s

commission of the crime. See Beeman, 35 Cal.3d at

560.

There is no ambiguity here as there was

in Martinez and the instruction given did not remove

the issue of intent from the jury’s consideration or

result in a directed verdict.

Roy contends that intent was a live issue

because of expert testimony on Roy’s mental

limitations, his lack of capacity to form the requisite

intent for murder, and because Roy tendered a

diminished capacity defense.“ However, the jury

convicted Roy of the second degree murder of Clark.

In California, second degree murder requires proof of

malice aforethought and is a specific intent crime. Cal.

Penal Code §§ 187-189; People v. Gorshen, 51 Cal.2d

716, 732 (1959). The jury was instructed that if Roy’s

mental capacity was diminished--from mental illness,

mental defect, intoxication or other cause--to the extent

that there was a reasonable doubt whether Roy was

able to form the mental states constituting either

express or implied malice aforethought, the jury could

not find him guilty of second degree murder. RT at

5797-98. Because the jury convicted Roy of the

30 251 Pansies, Valen 175 Colnup.ae 705 792 n.7

34 Cal.3d 251 (1983 ’

(1985), People v, Moby, 150 Cal.App 34 705 (1984), California law

provided that “evidence of diminished mental capacity, whether

caused by intoxication, trauma, or disease, can be used to show that

a defendant did not have a mental state essential to an

offense.” People v. Conley, 64 Cal. 2d 310, 316 (1966); see People

v. Saille, 54 Cal.3d 1103 (1991).

second degree murder of Clark, they necessarily

rejected Roy’s diminished capacity defense.

I find that there was no federal

constitutional error in the trial court’s jury instructions.

Accordingly, it is

RECOMMENDED that the petition for

a writ of habeas corpus be denied.

These findings and recommendations are

submitted to the Honorable David F. Levi pursuant to

28 U.S.C. § 636(b)(1)(C). Any party may file written

objections to these findings and recommendations

pursuant to Fed. R. Civ. P. 72(b) and L.R. 305(b)

within ten days after service.

Dated: _ Mar -4 1993

Ls/

UNITED STATES MAGISTRATE JUDGE

‘

a * eRe A

ORDER DENYING WRIT OF HABEAS CORPUS

$012052

IN THE SUPREME COURT OF

THE STATE OF CALIFORNIA

IN BANK

IN RE KENNETH ROY

HABEAS CORPUS

Petition for writ of habeas corpus DENIED.

SUPREME COURT

FILED NOV. 21, 1989

Robert Wandruff, Clerk

Deputy

Chief Justice

Cr §) ney ey Oe ae ee > yee

IN THE

COURT OF APPEAL OF

THE STATE OF CALIFORNIA

IN AND FOR THE

THIRD APPELLATE DISTRICT

PEOPLE OF THE STATE

OF CALIFORNIA

Plaintiff and Respondent

VS. 3 Crim. C000992

Butte 76386

KENNETH DUANE ROY

Defendant and Appellant

REMITTITUR TO COUNTY CLERK

I, ROBERT L. LISTON, Clerk of the Court of Appeal of the

State of California for the Third Appellate District, do

hereby certify that the attached is a true and correct copy

of the original opinion entered in the above entitled cause

that has now become final.

WITNESS my hand and the seal of the Court affixed at my

Office this 9th day of May, 1989.

ROBERT L. LISTON, Clerk

By: /s/

SEAL Deputy

Receipt of the original remittitur in the above case is hereby

acknowledged.

Dated: County Clerk

By:

Deputy

ce: see Mailing List

ORDER DENYING REVIEW

AFTER JUDGMENT BY

THE COURT OF APPEAL

3rd District, No. C000992

$009253

IN THE SUPREME COURT OF

THE STATE OF CALIFORNIA

IN BANK

PEOPLE

KENNETH DUANE ROY

Appellant’s and Respondent’s petitions for review

DENIED. The request for an order directing

depublication of the opinion in the above-entitled cause

is DENIED.

Ls/

Chief Justice

SUPREME COURT

Filed May 4, 1989

Robert Wandruff, Clerk

Deputy

IN THE

COURT OF APPEAL OF

THE STATE OF CALIFORNIA

IN AND FOR THE

THIRD APPELLATE DISTRICT

PEOPLE OF THE STATE

OF CALIFORNIA

Plaintiff and Respondent

vs. 3 Crim. C000992

Butte 76386

KENNETH DUANE ROY

Defendant and Appellant

By the Court:

Appellant’s petition for rehearing is denied.

Dated: February 22, 1989

EVANS, Acting P.J.

ce: see Mailing List

FILED FEB 22 1989

COURT OF APPEAL - THIRD DISTRICT

Robert L. Liston, Clerk

Deputy

FILED JAN 27 1989

COURT OF APPEAL - THIRD DISTRICT

Robert L. Liston, Clerk

Deputy

(SEE DISSENTING OPINION)

CERTIFIED FOR PARTIAL PUBLICATION

THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

IN AND FOR THE THIRD APPELLATE DISTRICT

(Butte)

THE PEOPLE, C000992

Plaintiff and Respondent, (Super. Ct.

No. 76386)

Vv.

KENNETH DUANE ROY,

Ne ee ee eee ee ee”

Defendant and Appellant.

APPEAL from a judgment of the Superior

Court of Butte County, Loyd H. Mulkey, Jr., Judge.

Reversed in part, affirmed in part and remanded for

resentencing or retrial.

Frank O. Bell, Jr., State Public Defender,

under appointment by the Court of Appeal and Julia

Cline Newcomb, Deputy State Public Defender, for

Defendant and Appellant.

ec eee

John K. Van de Kamp, Attorney General,

Robert D. Marshall and Cynthia G. Besemer, Deputy

Attorneys General, for Plaintiff and Respondent.

Defendant Kenneth Roy was convicted of

the first degree murder of Archie Mannix (Pen. Code, §

187"; count II) and his robbery (§ 211; count IV) after

a jury trial and was found to have possessed but not to

have used a knife during these offenses (§ 12022, subd.

(b); counts II and [V). He was also convicted of the

second degree murder of James Clark (§ 187; count I)

and of personally using a knife during that killing

(§ 12022, subd. (b)), but was acquitted of his robbery (§

211; count III). The Mannix murder formed the basis of

two special circumstances findings, (1) that it was

committed during the commission of a robbery (§ 190.2,

subd. (a\(17)(i); count I) and (2) that it was one of two

offenses of murder in the first or second degree (§ 190.2,

1. Unless otherwise noted, all further references will be to

the Penal Code.

subd. (a)(3); count II).* Penalties were imposed of life

imprisonment without possibility of parole for the

murder-robbery of Mannix (count II), 15 years to life for

the murder of Clark (count I), plus a one-year

enhancement for use of a weapon (count I), and five

years for the Mannix robbery (count IV). Defendant

appeals contending the court made instructional errors.

We shall strike the special circumstance

findings and vacate the sentence predicated upon them.

In all other respects we shall affirm the judgment. In

the ‘published portion of this opinion*® we find the

special circumstance findings infirm for the reason that

the jury reasonably could have read the instructions, as

given, argued and applied to the evidence, to authorize

2. Defendant was also charged with kidnapping Clark and

Mannix for purposes of robbery (counts I and VI, § 209, subd. (b))

and robbing Clark (count III, § 211). Defendani’s motion to strike

the two kidnapping charges was granted October 26, 1983, and the

jury found him not guilty of the robbery charge.

3. The Reporter of Decisions is directed to publish the

opinion except for parts II and Ii! of the Discussion.

the aggravated punishment for defendant on the ground

he aided and abetted the robbery of Mannix, the natural

and probable consequence of which was his killing by

another (McHargue).. That reading violates section

190.2, subdivision (b), which precludes imposition of the

special circumstance for aiders and abettors of a felony

murder who intend the commission of the felony but not

the killing. (See People v. Anderson (1987) 43 Cal.3d

1104.) In the unpublished portion of the opinion we

hold (a) it was harmless error to give CALJIC No. 3.01

(1980) as it preceded People v. Beeman (1984) 35 Cal.3d

547 and (b) it was harmless error to fail to give CALJIC

No. 5.17 sua sponte relating to an honest but

unreasonable belief in the necessity of self defense.*

4. Our dissenting colleague does not disagree with these

holdings, although he feels it necessary to discuss them anyway, from

his own vantage point, as part of "a homogenized discussion” of the

issues tendered in the published portion of this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On September 13, 1981, defendant and a

friend, Jesse McHargue, were hitchhiking near Gridley.

In Griuiey, they went to a liquor store where they met

the victims, Clark and Mannix. The men struck up a

conversation and drank beer together near Mannix’s

truck. |

At approximately 9 p.m. that evening,

Gridley Police Officer Stan Massey saw Mannix’s truck

backing up near the liquor store, almost hitting a utility

pole and some signs. He stopped the truck to talk to

the driver, McHargue. The four men were occupants.

Defendant and McHargue appeared to be sober, but

neither had a driver’s license. Because Mannix and

Clark were visibly intoxicated, Officer Massey advised all

four men not to drive. Massey noticed two backpacks in

the bed of the truck.

At approximately 11:15 p.m. that same

night, as Marie Koehler Smart drove through the

intersection of Block Road and Evans-Reimer Road,

near Gridley, she noticed two silhouettes and also saw a

truck in the ditch. Smart turned her car around so it

was heading south on Block Road and then stopped with

her high beams illuminating the area where the week

was resting. She saw two men standing on the bank to

the left side of the truck. When she asked if they

needed help, the two men approached the car. One of

the men, later identified as McHargue, went up to the

car window and told Smart they had summoned help.

As Smart made a U-turn to leave, she noticed a man

lying on the ground to the left side of the truck at the

location she had first observed McHargue and his

companion. The man was shirtless and appeared to be

hurt; he moved his hands "up towards his stomach, then

back down." Smart saw McHargue and the other man

walk back over to where the man was lying and stand

over him.

Early the next morning, officers found

Mannix’s truck "nosed" into a_ six-foot-deep ditch.

Although there were 12 inches of water in the ditch, no

part of the truck was submerged because both ends

rested on the opposite walls of the steeply sloped ditch.

The front end rested against the south bank.

Fifty-feet-long skid marks were found on "Block Road

south." Clark’s body was found in an empty field on the

south side of the ditch in front of the pickup. His

clothing was wet and muddy. One of his pants pockets

was turned inside out and his shirt was open. A dime

was found about four feet from his foot. Mannix’s body

was found in the ditch partially under the truck. His

body was partly submerged in the water. The only

clothing remaining on his body was a pair of pants pulled

down to his thighs. Both men had stab wounds.

Blood was found on the blackberry bushes

on the embankment directly behind the truck above the

spot where Mannix’s body was discovered. A wallet and

some papers were found scattered 10 to 15 feet down

the road, east of the truck. The wallet and papers were

dry. Mannix’s shirt was later found in the ditch.

After the bodies were discovered, Officers

Massey and Dustin commenced a search for defendant

and McHargue and found them in a restaurant. Both

men were carrying buck knives. McHargue’s pants were

completely wet, either from the thighs or the waist down.

Defendant’s pantlegs were wet to the calf. After they had

been informed of their Miranda rights, defendant and

McHargue authorized a search of their backpacks. In

McHargue’s backpack, Mannix’s water-soaked moccasins

and vest were found. Defendant’s backpack and its

contents were also wet.

Defendant at first denied being in the truck

with Mannix and Clark, claiming he and McHargue left

the two men at the liquor store. During questioning, he

admitted being in the truck when McHargue lost control

while making a turn. Defendant said that after he and

Clark left the truck, Clark began hitting him; defendant

then stabbed Clark once in the chest. Defendant said he

then told Clark he “was sorry he had to do that." He

retrieved his backpack and crossed the ditch to the place

where McHargue was standing. At that point, he said,

Mannix was already in the ditch.

After defendant’s arrest, Mannix’s watch

was found among defendant’s personal belongings. He

also had $170 in his wallet.

The medical examiner testified that Clark

died from a single stab wound to the chest and that

Mannix had multiple stab wounds and scratches on his

body and had drowned. Mannix was stabbed in the left

chest, in the upper left portion of his abdomen, and five

times on his lower left flank. The cause of death was

either the stab wound to the chest or the drowning. The

examiner also testified that five wounds to the lower

flank were inflicted after death.

Sidney Hall, a county jail inmate with

defendant, testified that defendant told him Clark and

Mannix "got mad" after McHargue wrecked the truck

when he took a turn too quickly and ended up in the

ditch. He admitted stabbing Clark after Clark hit him in

the head with a stick. Defendant said that Mannix and

McHargue were also fighting and, seeing that McHargue

“was getting the worst of it," defendant went over to help

him. Defendant did not say in what manner.*

Another jail inmate, William Hudspeth,

testified that defendant admitted to him that he and

5. Hall said that defendant at one point told him Mannix

had to die because he was a witness and that he was stabbed and

drowned, but defendant later retracted the statement.

McHargue planned to rob and kill both Clark and

Mannix, that they "went on with their plans” and killed

Clark first because he was the "easy one." Defendant

then assisted McHargue who was having a “hard time"

with Mannix. Hudspeth testified that defendant admitted

coming up from behind, stabbing Mannix in the lower

part of the body, pulling him off McHargue, stabbing

him again in the abdomen, and then shoving his head in

the water to make certain he was dead. Defendant said

that they took between $150 and $160 from the two

men; as well as Mannix’s vest. After the incident, they

got in the pickup and left.

Evidence was presented by the prosecution

that a small stain of dried blood found on the base of

the blade of defendant’s knife was ABO type A blood,

matching that of Mannix’s blood type. Clark’s blood

type is ABO type O.

The defense introduced’ evidence that

defendant’s blood type is also ABO type A. Defendant's

witness, a forensic serologist, testified that if the antigens

from the saliva or perspiration of an individual with one

blood type are mixed with the blood of another, an

incorrect reading of the blood type may result.

The jury returned verdicts as previously set

forth. |

DISCUSSION

The prosecution tendered alternative

theories of criminal responsibility; that defendant was

guilty of the first degree murders of both Mannix and

Clark either because (a) the killings were premeditated

or (b) they occurred during the commission of a robbery.

As to the first theory, the People argued

that defendant and McHargue had a plan to take the

two victims “out in the boonies, and to kill them, to rob

them, take their pickup and proceed north." Consistent

with this plan, defendant pounded Clark to the ground,

took money out of his pocket, and then thrust the knife

in his chest. The district attorney theorized that, because

McHargue was having difficulty with Mannix, defendant

came to his assistance and inflicted the fatal thrust to

Mannix’s chest. According to the prosecutor, the

evidence established that, based on the similarity between

the fatal wounds to both victims, they were inflicted by

the same person, i.e., defendant.

The prosecutor argued alternatively that the

facts supported a finding of first degree murder under a

felony mur“r theory. According to him, defendant and

McHargue took Mannix and Clark out in the isolated

area in order to rob them, as supported by the fact that

defendant was found with $170 and Mannix’s watch and

McHargue with Mannix’s vest and moccasins. He argued:

"[I}f you find this . . . killing took place while the

perpetrator, the defendant . . . was committing a

robbery, and intended to rob these people, that is to

take their property, and permanently depreive [sic] the

people of their property from their immediate possession

by force or fear, and a killing resulted, that’s also murder

in the first degree.”

It can be inferred that the jury found that

defendant did not plan the murder or the robbery of

either Clark or Mannix, since it returned a second

degree murder verdict in the Clark killing and found

defendant not guilty of the robbery charge with respect

to Clark. It also can be inferred that the jury concluded

that defendant did not kill Mannix by stabbing, since it

found that defendant did not use a knife in connection

with his murder. Accordingly, it can be inferred that the

jury rejected the prosecutor’s argument that defendant

planned the robberies or killings. That left the felony

murder argument as a likely candidate for the finding of

culpability. On this point the jury was instructed that

defendant was responsible for the first degree felony

murder of Mannix if he aided and abetted his robbery

and was liable for the special circumstance if the murder

occurred during the commission of the robbery.

The Mannix murder also formed the basis

of two special circumstances findings; that it was

committed during the commission of a robbery (§ 190.2,

subd. (a)(17)(i)) and that it was one of two murders in

the first or second degree (§ 190.2, subd. (a)(3)). The

jury was not given instructions which distinguished

between the scienter required for findings of felony

murder and special circumstance. If the jury found,

pursuant to the instructions, that defendant was guilty of

the felony murder of Mannix on the theory he aided and

abetted the robbery of which the Mannix killing was an

unintentional but natural and reasonable or probable

consequence, it is inconceivable that it separately found

that defendant intended that McHargue kill Mannix, a

finding necessary, as we shall show, to the valid

imposition of a special circumstance penalty.

For reasons which we next detail, we wil)

conclude that the jury reasonably could have been led by

instructional error to fuse the standards of criminal

responsibility and liability for the special circumstance

resulting in improper special circumstances findings.

People v. Anderson, supra, 43 Cal.3d at pp.

1138-1148, upholding Carlos v. Superior Court (1983) 35

Cal.3d 131 on this point*, holds that "[t}he court must

the victim in (at least) one of the multiple murders and that must

Se o fast Gunes under, oo epactiied to exttion 1902, eabdhtsien

(b) (and the special circumstance instruction given here). (43 Cal.3d

at pp. 1149-1150.) Here, there is .

instruct on intent to kill as an element of the

felony-murder special circumstance when there is

evidence from which the jury could find (see People v.

Flannel (1985) 25 Cal.3d 668, 684-685 [160 Cal.Rptr. 84,

603 P.2d 1]) that the defendant was an aider and abetter

rather than the actual killer." (Anderson, supra, 43

Cal.3d at p. 1147.)

The jury was not so instructed. The special

circumstance instruction given here, CALJIC No. 8.80

(1981), preceded the 1984 revision (CALJIC No. 8.80),

which, following Carlos, supra, explicitly now provides

that the accomplice must have “intended to aid in the

killing of a human being... ." (Emphasis added.)

Rather, the jury was instructed in terms which invited the

fusion of the distinct standards of guilt and special

circumstance. That could occur because the guilt and

special circumstance issues are tried simultaneously (§

190.1, subd. (a)) on the same evidence (§ 190.4, subd.

(a)).

The jury was given an original and

amended version of the instruction on the standards to

be applied in determining defendant’s liability for the

special circumstance arising from the Mannix murder.

The jury was told in the instruction read to it that "[i)f

you find the defendant in this case guilty of a willful,

deliberate, premeditated murder of the first degree, you

must then determine if murder was committed” [inter

alia} {ijn the commission of a robbery.” (Emphasis

added.) If that restriction had been allowed to remain,

the issue here considered would have been foreclosed.

However, the jury instruction was amended after the

reading.

In the instructions sent to the jury room,

the premeditation restriction was deleted and the jury

was told that: “If you find the defendant . . . guilty of

murder of the first degree, you must then determine if

murder was committed .. . in the commission of a

robbery and/or [he] was convicted . . . of more than one

offense of murder in the first or second degree.

If .. . Roy, was not the actual killer, it must be proved

beyond a reasonable doubt that he intentionally aided,

abetted . . . the actual killer in the commission of the

murder in the first degree before you are permitted to

find the alleged special circumstance of that first degree

murder to be true... .". (CALJIC No. 8.80 (1981),

emphasis added.) "[T]he murder in the first degree”

refers to the Mannix murder and, in the circumstances of

this case, necessarily encompasses the felony murder

theory of culpability.

The reason for the modification is that the

district attorney, Mr. Mattly, wished the instruction to be

amended to include the felony murder theory of

culpability. This is revealed in the colloquy which

followed the reading of the instruction to the jury in the

unamended form. "The Court: This was their [the

defendant's] instruction? [1] Mr. Mattly: Yes. So all you

need to do is you can give this [amended] one, send it in

[to the jury in printed form] but all you need to do is

this: ‘If you find the defendant in this case guilty’ what

you would do is you would strike, I think, ‘of a willful,

deliberate, premeditated murder.” The court then said:

"That is to be included as it is now modified by you

gentlemen in the instructions to be delivered to the jury?

[1] Mr. Kenkel: Yes. [1] Mr. Mattly: Yes." That was

done. The modified form, showing the striking of the

"willful" language appears in the record. From these

events it is clear that the prosecution was pursuing a

felony murder theory and the jury was unmistakably

informed by the change in instructions that premeditation

was not required for the imposition of the special

circumstance.

That was emphasized by a_ second

(unamended) instruction which provided: "To find that

the special circumstance, referred to in these instructions

as murder in the commission of robbery, is true, it must

be proved: [1.] That the murder was committed while the

defendant was engaged in or was an accomplice in the

commission of a robbery. [{] 2. That the murder was

committed in order to carry out or advance the

commission of the crime of robbery.... In other

words, the special circumstance referred to . . . is not

established if the . . . robbery was merely incidental to

the commission of the murder." (CALJIC No. 8.81.17

(1980).) The fusion of guilt and penalty theories was

further emphasized by two other instructions which told

the jury, in identical words with respect to guilt and

penalty instructions, first, that "first degree felony murder

based on robbery . . . is not established if the robbery

was merely incidental to the commission of any

homicide" and, second, that "the special circumstance .. .

is not established if the... robbery was merely

incidental to the commission of the murder." These

instructions place the relationship of the robbery to the

killing in the identical posture for purposes of culpability,

under a felony murder theory, and penalty as a special

ciscumstance.

To expand on this point, the first

instruction (as amended) refers to "the murder of the

first degree," i.e., the Mannix murder, and informs the

jury that if it finds defendant guilty of that murder it

must determine whether it "was committed . . . in the

commission of a robbery and [that]

[i]f defendant . . . was not the actual killer, it must be

proved . . . that he intentionally aided, abetted . . . the

actual killer in the commission of [that] murder... ."

The second instruction tells the jury that if the murder

was “in the commission of robbery" "it must be proved

[inter alia) the defendant . . . was an accomplice in the

commission of a robbery." (Emphasis added.) The words

"aided, abetted" and "accomplice" are not defined in the

special circumstance instructions. The definitions of

these terms are to be found only in the instructions on

the issue of guilt.

There, the jury was instructed that "{iJf a

human being is killed by any one of several persons

engaged in the perpetration of, or attempt to perpetrate,

the crime of robbery, all persons who . . . with

knowledge of the unlawful purpose of the perpetrator of

the crime aid . . . its commission, are guilty of murder of

ihe first degree, whether the killing is intentional,

unintentional, or accidental." (CALJIC No. 8.27 (1979),

emphasis added.) It was also instructed that the

"unlawful killing of a human being, whether intentional,

unintentional or accidental, which occurs as a result of

the commission of or attempt to commit the crime of

robbery, and where there was in the mind of the

perpetrator the specific intent to commit such crime, is

murder of the first degree." (CALJIC No. 8.21.) The

jury was further instructed that "[o]ne 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." (CALJIC No. 3.00

(amended by CALJIC No. 4.25.) These instructions

made clear that the aider and abettor of a felony murder

need not intend the killing.

It bears repetition that the jury was

instructed on the relationship of the Mannix murder to

the Mannix robbery in identical terms in both the guilt

and penalty instructions, that “first degree felony murder

based on robbery . . . is not established if the robbery

was merely incidental to the commission of any

homicide" and that "the special circumstance ; . . is not

established if the . . . robbery was merely incidental to

the commission of the murder."

In sum, the jury was told that it could find

defendant guilty of the first degree felony murder of

Mannix if he intended his act of assistance to aid the

robbery and the killing was the natural and probable

product of the robbery, whether he intended that result

or not. It was also told that if that murder were

committed in the commission of a robbery a special

circumstance finding is warranted. By any account of the

instructions, a concrete link was forged between the guilt

and special circumstance instructions. Indeed it is

inconceivable that the jury, having found defendant guilty

of the first degree murder of Mannix on the theory that

it unintentionally resulted from an intended robbe,

would not sens concluded that the murder occurr 4

during the commission of a robbery, justifying .

imposition of the special circumstance.

| The explicit fusion of guilt and peni,

instructions permits, indeed invites, the violation of ‘

standard set down in People v. Anderson, supra.

A contrary conclusion is suggested by, .

recent case of People v. Warren (1988) 45 Cal.3d 9,

It held that the trial court did not have to instruct),

jury that the accomplice must intend the killing beci..

"all the evidence shows that the defendant either act jy

killed the victim or was not involved in the crime a,»

...." (Id, at p. 487.)

Notwithstanding this dispositive holding,

court in dictum went on to say that the instructio: on

special circumstances correctly stated the law and W144

not have misled a reasonable jury into believing that an

intent to rob sufficed for the special circumstance. That

instruction provided that the jury could impose the

special circumstance if “the defendant was . . . a person

who intentionally aided, abetted . . . the actual killer in

the commission of murder in the first degree.” (Warren,

45 Cal.3d at p. 487.) The court observed that “in the

context of this case the challenged instructions might

conceivably be construed in a different manner. In

delivering its charge the court defined first degree felony

murder: “The unlawful killing of a human being, whether

intentional, unintentional or accidental, which occurs as

a result of the commission of . . . the crime of robbery,

and where there was in the mind of the perpetrator the

specific intent to commit the crime of robbery, is murder

of the first degree.” (Ibid.) The court concluded,

however, that “the instructions . . . would not be so

construed by a reasonable juror [for] one could

understand the charge as requiring an intent to rob and

nothing more only if [a jury] parsed it in a hypertechnical

manner.” (Id. at p. 488.) We are not told in what

manner the jury would correctly “parse” the instruction.

We are told that the court was convinced that the jury

would not have linked the standards for guilt and special

circumstance.

However, that was said in the context of a

case in which "all the evidence shows that the defendant

either actually killed the victim or was not involved in

the crime at all... ." (45 Cal3d at p. 487.)

Accordingly, there was no factual predicate by which to

reach the issue of reasonableness nor to determine

whsther tha jury could have made the linkage cn the

facts of the case. That circumstance led three concurring

justices to remark that the observation by the majority

opinion is dictum. (Jd. at p. 490.) Dictum is not

binding as a holding. (See, e.g., People v. Milner (1988)

45 Cal.3d 227, 237.)

In any event, Warren is distinguishable on

its facts and instructions. The sole, generalized

instruction on the standards for the special circumstance

finding considered in Warren did not explicitly link the

criteria for that determination to the standards for the

felony murder. In this case, the linkage is explicitly

made in the instructions. That linkage is supported by

the evidence adduced and the manner in which the case

was argued and presented to the jury.

Based on the evidence presented to it, the

jury could reasonably have inferred that two simultaneous

fights ensued following the wreck of Mannix’s truck by

McHargue; defendant fought Clark while McHargue

fought Mannix. The jury could have found that the

lower part of defendant’s pants became wet when he got

out of the truck, when he fought with Clark, and/or when

he crossed back across the ditch after killing Clark. The

possibly fatally, but still alive when defendant came over

to the location of the Mannix/McHargue altercation.

The jury may have believed that at that point defendant

either personally robbed Mannix of some of his personal

possessions or assisted McHargue in his taking of

Mannix’s property. It is a further permissible inference

from the evidence that McHargue then either dragged

Mannix to the ditch and drowned him or that Mannix

was able to muster up his last bit of strength and

continued to fight McHargue in the ditch. The fact that

McHargue’s pants were wet up to his thighs or waist

would support a conclusion that McHargue personally

drowned Mannix. The finding by the jury that defendant

did not use a knife during the commission of the offense

against Mannix reveals that the jury rejected the theory

that defendant inflicted the fatal stab wounds on Mannix.

Thus, it is reasonable to conclude that the jury inferred

that defendant's only participation in the offenses relating

to Mannix was his taking of Mannix’s personal property

while he was still alive or his assistance in McHargue’s

taking of the property.

That leads us to consider siatee the

instructional error was harmless.

As we have observed, Anderson holds that

"{t]he court must instruct on intent to kill as an element

of the felony-murder special circumstance when there is

evidence from which the jury could find (see People v.

Flannel (1985) 25 Cal.3d 668, 684-685 [160 Cal.Rptr. 84,

603 P.2d 1]) that the defendant was an aider and abettor

rather than the actual killer." (Anderson, supra, 43

Cal.3d at p. 1147.) This applies to both felony murder

and multiple murder grounds of special circumstance.

(See Anderson, supra, at pp. 1147 and 1149-1150.)

Until recently the California Supreme Court

has had no occasion to discuss the standard for harmless

error applicable to a failure to give the intent instruction

required by Anderson. That is so because in each case

in which the issue was tendered the court determined

that the instruction was not required because the issue of

aiding and abetting was not before the jury. This

determination was variously founded (a), as in People v.

Anderson, supra, on the ground there was no evidence

warranting a finding that the defendant was an aider and

abettor of a felony murder (See People v. Hamilton

(1988) 45 Cal.3d 351, 363-364 and People v. Warren,

supra, 45 Cal.3d at p. 487; People v. Coleman (1988) 46

Cal.3d 749, 779; (b) it was undisputed or conceded or

uncontradicted that the defendant was the actual killer

(See People v. Babbitt (1988) 45 Cal.3d 660, 708; People

v. Keenan (1988) 46 Cal.3d 478, 503; People v.

McDowell (1988) 46 Cal.3d 551, 566); (c) the issue did

not arise because the jury was not instructed on an aider

_ and abettor theory (People v. Melton (1988) 44 Cal.3d

713, 747, fn. 12; see also People v. Bunyard (1988) 45

Cal.3d 1189, 1241); and (d) the jury returned a special

verdict that the killing was premeditated. (See People v.

Miranda (1987) 44 Cal.3d 57, 89; People v. Boyde (1988)

46 Cal.3d 212, 243.)

However, these cases do imply that if there

is evidence from which the jury could perinissibly have

inferred that the defendant was an aider and abettor of

the felony murder the Anderson instruction is mandatory.

That is the apparent holding of People v. Garrison (Jan.

5, 1989, S004354) __—~Cal.3d __._ It held that because

its verdict on an accomplice theory, the court erred in

failing to instruct that the jury must find that defendant

intended to aid another in the killing of a human being."

(Id., at p. ___ [typed opn. pp. 59-60; fn. omitted.)

Garrison held that such an error is subject

to the Chapman standard of harmless error, relying upon

People v. Odle (1988) 45 Cal.3d 386, 410-415. Under

Chapman v. California (1967) 386 U.S. 18, 24 [17

L.Ed.2d 705, 710-711], "before a federal constitutional

error can be held harmless, the court must be able to

declare a belief that it was harmless beyond a reasonable

doubt." That standard cannot be satisfied, i.c., such a

belief cannot be declared, where, as in this case, an

inference can be drawn from the record that the jury

found that the defendant was liable for the special

circumstance on the ground that he intentionally aided a

robbery but did not intend the killing that occurred

during its commission. If the jury could have made such

a finding it (obviously) cannot be said that the error (the

failure to preclude such a possibility by a a

instruction) was harmless beyond a reasonable doubt.

In Garrison the court concluded that the

error was harmless on the theory that "the failure to

instruct on intent was necessarily resolved adversely to

defendant under other, properly given instructions. (See

People v. Sedeno [1974] 10 Cal.3d 703.)" (___ Cal.3d

at __ [typed opn. pp. 60-61].) "In such cases the

issue should not be deemed to have been removed from

the jury’s consideration since it has been resolved in

another context, and there can be no prejudice to the

defendant. since the evidence that would support a

finding that only [in this case] the lesser offense was

committed has been rejected by the jury." (Sedceno,

supra, at p. 721.) In other words, it cannot be said,

viewed from the vantage point of all of the instructions

given and the evidence adduced, that the jury could have

drawn an adverse inference from the erroneous

instruction.

As we have shown in great detail, that is

not the case here. Considering all of the instructions the

jury could have drawn the conclusion that defendant was

liable for the special circumstance on the theory he aided

and abetted the Mannix robbery without intending that

Mannix be killed.

Accordingly, the special circumstance

findings must be reversed.

Defendant next argues that reversible error

resulted from the giving of CALJIC Nos. 3.00’, 3.01%,

and 8.27,” jury instruction relating to the theory that he

aided and abetted the robbery of Mannix Those

instructions implicate not only the robbery conviction but

also the first degree murder conviction to the extent it

was based on a felony murder theory. Citing People v.

Beeman (1984) 35 Cal.3d 547, defendant contends the

instructions failed to explicitly inform the jury that the

offense of aiding and abetting requires an intent to

facilitate the criminal offense aided. He argues that this

error compels reversal because the intent issue was

completely removed from the jury’s consideration.

7. CALJIC No. 3.00 includes as principals in a crime:

"Those who, with knowledge of the unlawful

purpose of the person who directly and actively

commits or attempts to commit the crime, aid and

abet in its commission or attempted commission."

8. CALJIC No. 3.01 (1980), as given here reads:

"A person aids and abets the commission of a

crime if, with knowledge of the unlawful purpose of

the perpetrator of the crime, he aids, promotes,

encourages or instigates by act or advice the

commission of such crime."

See Footnote 9 next page.

9. CALJIC No. 8.27 (1979), as given reads:

"If a human being is killed by any one of several

persons engaged in the perpetration of, or attempt

to perpetrate, the crime of robbery, all persons who

either directly and actively commit the act

constituting such crime or who with knowledge of

the unlawful purpose of the perpetrator of the

crime aid, promote, encourage, or instigate by act

or advice its commission, are guilty of murder of

the first degree, whether the killing is intentional,

unintentional, or accidental.”

We agree that the challenged instructions

do not include, as suggested in People v. Beeman, supra,

a clause making explicit the requirement that an aider

and abettor must have an intent to facilitate or

encourage the offense committed by the perpetrator.”

(Beeman, supra, 35. Cal.3d at p. 561.) However, as we

shall explain, the jury instructions as given could not have

misled the jury to defendant’s prejudice. (Chapman v.

California, supra, 386 US. at p. 24 [17 L.Ed.2d at pp.

710-711}; see People v. Dyer (1988) 45 Cal.3d 26, 59-64.)

The absence of the explicit Beeman clause

does not necessarily result in the removal of intent from

jury consideration, such as when intent is not put in

issue, is conceded, or is covered by other instructions.

perpetrator, and the intent or

eer rng, or facilitating the commission of the offense, (3) by act

or advice aids, promotes, encourages or instigates, the commission

(People v. Garcia (1984) 36 Cal.3d 539; see also People

v. Ramos (1984) 37 Cal.3d 136, 146-147; People v.

Caldwell (1984) 36 Cal.3d 210, 223-224; People v. Allen

(1985) 165 Cal.App.3d 616, 628-629.) Moreover, as we

recently discussed in People v. Rogers (1985) 172

Cal.App.3d 502, as applied to the facts of a particular

case, the instruction found wanting in Beeman (CALJIC

No. 3.01 [1980]) and given here, may convey the required

intent to the jury because in the circumstances of the

case it contains a legally adequate criterion of intent.

That is the case here.

As we explained in Rogers, supra, the

defect in CALJIC No. 3.01 exposed by Beeman is the

“failure to ambiguously articulate the requirement that

the defendant simultaneously know both the perpetrator’s

unlawful purpose and that his act of aid would facilitate

that purpose." (Rogers, supra, 172 Cal.App.3d at p.

509.) Borrowing the phrase from People v. Patrick

(1981) 126 Cal.App.3d 952, 967, we referred to this du;

knowledge as “knowing aid.” We stated that ambiguiti,

in the instruction "are significant if the defendant’s ¢

was not intended (e.g., f it were involuntary) or if te

defendant, intending the act, did not know that it wojg

aid the perpetrator’s criminal venture." (Ibid.; «p,

omitted; emphasis in original. ) As we next explain, asjn

Rogers, neither of these conditions is tendered iN his

case.

"That someone knowingly aided a crimpg|

offense is ordinarily descriptive of an intention to achive

that which the actor knows will be achieved by his ac of

aid. Indeed, if a defendant testifies that he knowijgly

aided the perpetrator of a crime, the quesion

immediately arises, what else could the defendant sa, or

show that would dissuade us from believing that it was

his intent to facilitate the offense? At the least this

circumstance calls for an explanation which would défeat

the intention thus ascribed. Although the defendant has

no formal burden of defeasance, he is at risk of a

conviction if, in this circumstance, he does not raise a

reasonable doubt of his intent by the production of

evidence negating the ascribed intention. [Citation] [1]

. . » [T]he appropriateness of knowing aid as a criterion

of intent, and hence (absent its circumstantial

ambiguities) the appropriateness of CALJIC No. 3.01, is

dependent upon the facts of the case. CALJIC No. 3.01

[1980] conveys the required intent unless a contrary

inference of intent is a material issue in this case."

(Rogers, supra, at p. 512.)

We set forth in Rogers examples of what

counts as a material issue of contrary intent. In such

cases the evidence defeases the intent ordinarily

conveyed by knowing aid. In Hicks v. U.S. (1893) 150

U.S. 442 [37 L.Ed 1137], an instruction required the jury

to conclude from the mere utterance of words that had

the effect of encouraging the perpetrator to commit an

offense, that the utterer intended them to be understood

as such. In that case, the defendant had testified that his

words were intended to dissuade the perpetrator. The

jury instruction thus prevented the jury from considering

the defendant’s testimony and thus removed the issue of

intention.

People v. Bolanger (1886) 71 Cal. 17

presents a second example of evidence defeasing the

intent of knowing aid. bp Oss cone chasm ates

as an accomplice stated that he intended to participate

in the larceny charged against the perpetrator but had

feigned complicity for the purpose of defecting thieves.

His defense was that he intended to frustrate the

criminal purpose notwithstanding knowledgeable aid. In

such circumstances the ordinary inference cannot be

derived from such a criterion.

Beeman, supra, 35 Cal.3d 547, presents

another example. Beeman admitted that he aided his

friends’ commission of a robbery and was aware of their

perpetration. He testified, however, that he did not

believe that they would go through with it and did not

want to be involved, thus attempting to negate the intent

embedded in the conjunction of his acts of aid and his

awareness of the criminal venture. (See also People v.

Yarber (1979) 90 Cal.App.3d 895 [where an act of oral

copulation by female defendant on male defendant was

followed by an act of oral copulation of male defendant

by minor, Mary S. the jury should have been specifically

instructed of the requirement that the female defendant

had the purpose of aiding the perpetrator in the section

288a offense; the court noted that her act of oral

copulation was subject to two equally strong inferences,

one of which was that she did the act for her own

purposes without regard for whether Mary S. followed

suit].)

We turn to the evidence in the present

case and consider the factual possibilities in order to

determine whether the alleged instructional error could

have prejudiced defendant. The first possible scenario is

defendant’s version that Clark started the fight with him

and he ultimately responded by stabbing Clark. He then

crossed over to where McHargue was standing. At that

point, defendant claimed, Mannix was already in the

ditch. Defendant's version could not have satisfied the

requirements under CALJIC No. 3.01 as given, i.e., that

an aider and abettor have knowledge of the perpetrator’s

unlawful purpose and aid in the commission of the

crime. Based on the instructions given, it is clear the

jury rejected defendant’s version of the events. A second

factual scenario is one presented by the prosecutor.

Under one of his theories, defendant and McHargue

took Mannix and Clark out to an isolated area to kill

them and rob them. Inmate Hudspeth testified that

defendant told him that he and McHargue planned to

kill and rob both men and that after defendant killed

Clark he assisted McHargue, stabbing Mannix twice.

Because the jury returned a second degree murder

verdict as to Clark, found defendant not guilty of the

robbery of Clark, and found defendant did not personally

use a knife with respect to Mannix, the jury could not

have believed the facts to be such. They disbelieved

Hudspeth’s testimony.

A third factual candidate is that supporting

the felony-murder theory. According to the testimony of

eyewitness Marie Koehler Smart, defendant and

McHargue were both standing on the ditch bank over

the obviously injured Mannix. Inmate Hall testified that

defendant said that after stabbing Clark he went over to

assist McHargue who was fighting with Mannix. The

manner of assistance was not revealed. The jury was

instructed that in order to find defendant guilty as an

aider and abettor of the robbery, it had to find

defendant (1) had knowledge of the unlawful purpose of

the perpetrator and (2) aided, promoted, encouraged,

etc. the commission of the crime. No evidence was

present to counter an intent to facilitate the offense, i.c.,

to show that defendant did not so intend. Thus, the

intent conveyed by knowing aid was not defeased. As

we said in Rogers, supra, 172 Cal.App.3d at p. 514, "It

would be absurd to say that [one defendant] knowingly

contributed to the force and fear imposed by [the other

defendant] upon the victim in the course of the robbery

but is not culpable as an aider and abettor of the

robbery." Under the circumstances of this case, the

assistance to McHargue by defendant in the Perpetration

of the robbery, with defendant’s knowledge of

McHargue’s purpose, unambiguously reveals defendant’s

awareness of the importance of his acts in advancing the

robbery. In other absence of evidence establishing some

contrary intent, no other inference is permissible from

the act.

Thus, under these facts, as in Rogers,

supra, "CALJIC No. 3.01 (1980) adequately conveyed the

required element of intention to the jury.” (Rogers,

supra, at p. 514.) Consequently, defendant could not

have been prejudiced by the giving of the instructions

challenged here.

Ill

Defendant next contends that the court

committed prejudicial error by failing sua sponte to give

CALJIC No. 5.17 which defines an honest but reasonable

belief in the necessity to defend oneself and that, as

a consequence, the second degree murder conviction of

Clark must be reversed. We disagree.

“It is settled that 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.] The general principles of

law governing the case are those principles closely and

openly connected with the facts before the court, and

which are necessary for the jury’s understanding of the

13. CALJIC No. 5.17 provides: "A person who kills another

person in the honest but unreasonable belief in the necessity to

defend against imminent peril to life or great bodily injury kills

unlawfully, but does not harbor malice aforethought and cannot be

found guilty of murder. This would be so even though a reasonable

man in the same situation seeing and knowing the same facts would

not have had the same belief. Such an honest but unreasonable

belief is not a defense to the crime of [voluntary [or] [involuntary]

manslaughter.”

case.’ [Citation.]" (People v. Wickersham (1982) 32

Cal.3d 307, 323.) In People v. Flannel, supra, 25 Cal.3d

at pp. 682-683, the court held that the unreasonable

belief rule does not invoke such a general principle and

that the instruction should be given if the other

requirements for a sua sponte instruction are met.

However, "the duty to give instructions, sua sponte. ...

arises only it if appears that the defendant is relying on

such a defense, or if there is substantial evidence

supportive of such a defense and the defense is not

inconsistent with the defendant’s theory of the case."

(People v. Sedeno, supra 10 Cal.3d at p. 716.)

Under the facts of this case, the court

should have given CALJIC No. 5.17 and erred in failing

to do so. However, the error was harmless, because "the

factual question posed by the omitted instruction was

necessarily resolved adversely to the defendant under

other, properly given instructions." (Sedeno, 10 Cal.3d at

p. 721.) The jury was adequately instructed that an

honest but unreasonable belief in self-defense can negate

malice by the court’s reading of CALJIC No. 8.40*

(voluntary manslaughter - defined) and No. 8.50.

CALJIC No. 8.50 provides: "The distinction between

murder and manslaughter is that murder requires malice

while manslaughter does not. [7] When the act causing

the death, though unlawful, is done [in the heat of

passion or is excited by a sudden quarrel such as

amounts to adequate provocation] [in the honest but

unreasonable belief in the necessity to defend against

imminent peril to life or great bodily injury the offense

is manslaughter. In such a case, even if an intent to kill

14. CALJIC No. 840 (1979) provides: "The crime of

voluntary manslaughter is the unlawful killing of a human being

without malice aforethought when there is an intent to kill. [1]

There is no malice aforethought if the killing occurred upon a

sudden quarrel or heat of passion, for] [in the honest but

unreasonable belief in the necessity to defend oneself against

imminent peril to life or great bodily injury]. [%] In order to prove

the commission of the crime of voluntary manslaughter, each of

following elements must be proved: 1. That a human being

killed, 2. That the killing was unlawful, and 3. That the killing

done with the intent to kill."

exists, the law is that malice, which is an essential

element of murder, is absent. [1] To establish that a

killing is murder and not manslaughter, the burden is on

the state to prove beyond a reasonable doubt each of

the elements of murder and that the act which caused

the death was not done in the [heat of passion or upon

a sudden quarrel] [in the honest, even though

unreasonable belief in the necessity to defend against

imminent peril to life or great bodily injury]." The jury,

having found defendant guilty of second degree murder,

obviously rejected the manslaughter theory and thereby

found that he did not act pursuant to an honest, but

unreasonable belief in the necessity to defend himself.

Disposition

The judgment of sentence predicated upon

the special circumstance findings is reversed. The

judgment is affirmed in all other respects. The case is

remanded for resentencing or retrial on the issue of

special circumstances at the option of the prosecuting

attorney. (CERTIFIED FOR PARTIAL

PUBLICATION.)

BLEASE » oe

I concur:

I respectfully dissent; my dissent is directed

to the published portion of the opinion only. However,

my view of the entire case requires a homogenized

discussion of the separate issues. I do concur, as will be

discerned from the foilowing discussion, with the balance

of the majority opinion wn the issues there addressed.

The majority and I differ on the meaning

and effect of five recent Supreme Court decisions dealing

with Beeman“-type error (People v. Anderson (1987) 43

Cal.3d 1104, 1138-1148; People v. Dyer. (1988) 45 Cal.3d

26, 59-65; People v. Odle (1988) 45 Cal.3d 386, 410-416;

People v. Warren (1988) 45 Cal.3d 471, 486-488; People

v. Keenan (1988) 46 Cal.3d 478, 503-504). The effect of

the majority opinion would effectively circumvent the

clear import of People v. Anderson in overruling the

decision of Carlos v. Superior Court (1983) 35 Cal.3d

131, and to ignore the clear and unambiguous statement

1. People v. Beeman (1984) 35 Cal.3d 547.

that the use of former CALJIC No. 3.01 which contains

the Beeman-type error is to be treated as Chapmén

error.” (People v. Dyer, supra, at pp. 59-65.)

In addressing the issues specifically raised

by the defendant in this dissent, I will illustrate what |

believe to be an attempt by the majority opinion,

particularly in its published portion, to obfuscate the

clear meaning of the cited Supreme Court decisions,

supra, and their application to a case such as this, in

which the absence of an instruction on specific intent to

kill in the felony-raurder circumstance by an aider and

abettor is asserted as reversible error.

Defendant contends the court committed

prejudicial error by failing to sua sponte give CALJIC

No. 5.17 which defines an honest but unreasonable belief

2. Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Bd.2d

705, 710-711].

in the necessity to defend,* and that as a consequence,

the second degree murder conviction (Clark) must be

reversed. I disagree.

“It is settled that 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.] The general principles of law

governing the case are those principles closely and

openly connected with the facts before the court, and

which are necessary for the jury’s understanding of the

case.’ ([Citation.]" (People v. Wickersham (1982) 32

Cal.3d 307, 323.)

The Supreme Court in People v. Flannel

(1979) 25 Cal3d 668, 682-683, held that the

3. CALJIC NO. 5.17 (Sth ed. 1 provides: "A pers

seni austen Guten i tie teeet oe Gee ene

the necessity to defend against imminent peril to life or great bodily

injury, kills unlawfully, but does not harbor malice aforethought and

cannot be found guilty of murder. This would be so even though

a reasonable man in the same situation seeing and knowing the

same facts would not have had the same belief. Such an honest but

unreasonable belief is not a defense to the crime of [voluntary] [or]

[involuntary] manslaughter.”

unreasonable belief rule should be considered a general

principle for purposes of jury instruction, and in cases

not yet tried, the court should give the instruction sua

sponte if the other requirements for such an instruction

are met. "[{TJhe duty to give instructions, sua sponte, . . .

arises only if it appears that the defendant is relying on

such a defense, or if there is substantial evidence

supportive of such a defense and the defense is not

inconsistent with the defendant’s theory of the case."

(People v. Sedeno (1974) 10 Cal.3d 703, 716.)

Under the facts of this case, the court

should have given CALJIC No. 5.17 and erred in failing

to do so. However, the error was harmless, because “the

factual question posed by the omitted instruction was

necessarily resolved adversely to the defendant under

other, properly given instructions." (Sedeno, supra, 10

Cal.3d at p. 721.) The jury was adequately instructed

that an honest but unreasonable belief in self-defense

can negate malice by the court’s reading of CALJIC Nos.

8.40 (1979 Re-revision)* (voluntary manslaughter -

defined) and 8.50 (1980 Revision). CALJIC No. 8.50

provides: “The distinction between murder and

manslaughter is that murder requires malice while

that malice, which is an essential element of murder, is

absent. [1] To establish that a killing is murder and not

manslaughter, the burden is on the state to prove beyond

a reasonable doubt each of the elements of murder and

that the act which caused the death was not done in the

[heat of passion or upon a sudden quarrel] [in the

honest, even though unreasonable, belief in the necessity

to defend against imminent peril to life or great bodily

injury].". Under the circumstances, the jury obviously

found that defendant did not act pursuant to an honest,

but unreasonable belief in the necessity to defend, and

found him guilty of murder in the second degree.

Defendant argues the court committed

reversible error by utilizing former CALJIC Nos. 3.00,

3.01, and 8.27. He cites to People v. Beeman, supra, 35

Cal.3d 547, and contends he was denied due process

because the jury was not informed that to find him guilty

as an aider and abettor they must find that he

specifically intended to encourage or facilitate the

criminal act. He also argues the court erred by failing

to instruct the jury that they must find intent to kill in

order to find him guilty of felony murder.

He grounds his contentions on Carlos v.

Superior Court, supra, 35 Cal.3d 131, which has recently

been overruled by People v. Anderson, supra, 43 Cal.3d

1104. Anderson holds "intent to kill is not an element of

the felony-murder special circumstance [§ 190.2, subd.

(a)(17)}; but when the defendant is an aider and abetter

rather than the actual killer, intent must be proved.”

(Pp. 1138-1139.) Accordingly, I conclude that to the

extent the jury found defendant to have been the actual

. Special circumstance finding

is not infirm. (See People v. Anderson, supra, 43 Cal.3d at p. 1149

jury found defendant to have been an aider and abetter

rather than the actual killer, however, I believe the jury,

contrary to defendant's assertion, was properly instructed

that it had to find defendant intended to kill, as follows:

"If defendant Kenneth Duane Roy was not the actual

killer, it must be proved beyond a reasonable doubt that

he intentionally aided, abetted, counseled, commanded,

induced, solicited, requested or assisted the actual killer

in the commission of the murder in the first degree

before you are permitted to find thea

circu.nstance of that first degree murder to

the defendant Kenneth Duane Roy.” This instruction is

in the language of section 190.2, subdivision (b), which

Anderson found unambiguous on the point: "Section

190.2(b) . . . declares that the felony-murder aider and

abetter is eligible for the death penalty [or for life

v. Turner (1984) 37 Cal.3d 302, to the extent it

imprisonment without the possibility of parole] if intent

to kill is proved... . ([Gjiven realistic reading the

Statutory requirement that the aider and abetter

intentionally aid, abet, counsel, command, induce, solicit,

request, or assist any acts in the commission of first

degree murder -- even when applied to felony murder --

is mot ambiguous: the aider and abetter must

intentionally aid in a killing.” (43 Cal.3d at p. 1145,

emphasis in original.) I would find no error in the

special circumstance instructions given in this case.

Moreover, since People v. Garcia (1984) 36

Cal.3d 539, and People v. Anderson, supra, 43 Cal.3d

1104, the California Supreme Court, in a series of cases

involving use of former CALJIC No. 3.01, as modified,

in accordance with People v. Yarber (1979) 90

Cal.App.3d 895, has held that Beeman-type error is to be

treated as Chapman error. (See People v. Dyer, supra,

45 Cal.3d at pp. 59-65; People v. Odle, supra, 45 Cal.3d

at pp. 410-416; People v. Warren, supra, 45 Cal.3d at pp.

486-488; People v. Keenan, supra, 46 Cal.3d at pp.

503-504.) The Chapman test is whether we can

determine beyond a reasonable doubt that the error did

not affect the verdict. Here, defendant argues the trial

court erred in instructing the jury based on CALJIC Nos.

3.01, 3.00, and 8.27, claiming the error withheld the

intent to kill issue from the jury and thus required setting

aside its findings and convictions of second degree

murder against Clark and first degree murder against

Mannix.

Defendant claims he had no intent to kill

either Clark or Mannix; that he was defending himself

against Clark. The jury obviously rejected that defense

and convicted him of second degree murder. Implicit in

the jury’s verdict is a finding that defendant had the

intent to kill. The jury also resolved the intent. issue

adversely to defendant on the first degree murder

conviction of Mannix. In addition to the instructions on

the intent to kill, the court also read the instruction on

aiding and abetting. Although the latter instruction

contained the Beeman flaw, it informed the jury that

defendant’s state of mind was relevant to the aiding an

abetting question. Former CALJIC No. 3.01 provides,

"A person aids and abets the commission of a crime if,

with knowledge of the unlawful purpose of the

perpetrator of the crime, he aids, promotes, encourages

Or instigates by act or advice the commission of such

crime. . . ." (Emphasis added.) The issue raised

encompasses Beeman-type error, that is, whether on the

whole record the court is convinced beyond a reasonable

doubt that it is not reasonably possible the jury would

have not found intent by the defendant to kill Mannix

either as the actual killer or as an aider and abetter.

Applying the Chapman standard, I would conclude the

evidence in this instance compels the conclusion that the

instructional errors were harmless beyond a reasonable

doubt.

Concerning the murder of Archie Mannix

for which defendant was convicted of murder in the first

degree, the defense was denial, putting the Pengte to

their proof. A stab wound to the heart and drowning

were concurrent causes of Mannix’s death. The jury

verdict that, as to the murder of Mannix, the defendant

was armed with but did not personally use a knife

necessarily implies that, if the jury believed the defendant

was the actual killer, he killed Mannix by drowning. If

the jury believed defendant was not the actual killer, the

verdict implies he aided and abetted his partner,

McHargue, in the stabbing and/or the drowning. In

either event, the evidence shows overwhelmingly

defendant’s intent to cause Mannix’s death.

Additionally, Sidney Hall was an inmate

with defendant at Butte County jail. Hall testified that

defendant admitted killing Clark (the other murder

victim) after Clark had hit him over the head with a

stick. McHargue and Mannix were fighting. McHargue

was "getting the worst end of it," so defendant went to

his aid. Defendant told Hall "that Mannix had to die

because he was a witness, and that he was stabbed and

drowned -- held under the water." Defendant also told

Hall that a woman drove by and stopped. McHargue

went to talk to her, but defendant "was too far away and

he didn’t think she could identify him at all." Defendant

iater denied to Hall any involvement in Mannix’s killing.*

6. William Hudspeth, another inmate at the

defendant, also testified for the People. ee cantint Gen etna

admitted his and McHargue’s plan to rob and kill both Clark and

Mannix. He also admitted to Hudspeth that he had stabbed

Mannix. Hudspeth’s testimony should be disregarded, however,

because the jury obviously disbelieved it. The verdict of second

degree murder as to Clark, as well as the acquittal of the charge of

robbery as to Clark, reflects the jury's belief that there was no

plan" to rob and kill him. Further, the finding that, as to Mannix,

defendant did not personally use a knife reflects the jury’s belief

Coe SNS Wes Got Ge Gunes aie eaeely teGiens te tnt

The woman who drove by and stopped was

Marie Smart. She was driving by the scene and observed

a truck in a ditch and two silhouettes. She stopped, with

her car’s headlights,‘which were on high beam, shining

directly onto the truck. To the left side of the truck she

observed two men standing. She asked if they needed

any help, and they both approached the car. One of the

men, later identified as McHargue, went to Smart’s car

window and told her they had already summoned help.

(Smart was unable to identify defendant as the second

man, who had approached to about two feet from the

car but did not come to the window.) As she turned her

car around to leave, Smart noticed a man lying on the

ground, to the left side of the truck and at the location

she first observed McHargue and the other man

standing. The man lying on the ground was shirtless and

appeared to he hurt, moving his hands up toward his

stomach and back down again. As Smart was leaving the

scene, McHargue and the other man returned to their

original positions, standing over the apparently disabled

man on the ground and doing nothing. When Mannix’s

body was discovered by authorities, his torso was bare.”

Dr. Pierce Rooney, a forensic pathologist,

testified that Mannix had suffered a nonfatal stab wound

to his abdomen. Mannix had also suffered a mortal stab

wound to his heart and considerable drowning, each of

which was a cause of Mannix’s death. Death from the

type of stab wound to the heart suffered by Mannix

would, in the ordinary case, occur within a few minutes

if not instantaneously.

} Defendant and McHargue were eventually

detained for questioning. Defendant did not respond

when informed that Clark and Mannix had been

discovered, dead. Defendant initially denied being with

7. Smart’s testimony, coming as it did from a disinterested

witness, must have been most Indeed, during

Se ee ey YS pay ays. be

them when the truck ran into the ditch. But when

informed that his story did not jibe with McHargue’s,

defendant admitted he and McHargue were with Clark

and Mannix when the truck ran into the ditch.

Defendant admitted stabbing Clark after Clark had

allegedly struck defendant. Defendant denied any

knowledge about what happened to Mannix, stating only

that when he (defendant) turned around after stabbing

Clark, Mannix was already in the ditch.” Defendant

said he and McHargue then walked back to town After

giving his statement, defendant was arrested. Among the

items found in defendant’s possession were a watch with

dried blood and dirt on it and a key ring with sx keys,

both of which items were identified as Mannix’s.

Defendant also had a wallet containing $170.5:. One

week before the homicide, Mannix was observe< with a

8. Defendant also told Dr. Globus, the defense pychiatrist,

that he was aware Mannix had ended up dead in the |itch, but

defendant denied actually killing him.

large sum of money in his wallet, including tens and

hundreds. Mannix’s wallet and scattered documents, but

no money, were found near his body.

Applying the Chapman test, the recited

evidence from the record demonstrates to me, beyond a

reasonable doubt, that the Beeman error could not have

affected the verdict. (See People v. Dyer, supra, 45

Cal.3d at pp. 64-65; see also People v. Garrison (Jan. 5,

1989, S004354) __Cal.3d_, __ [typed opn. pp. 33-

25).)

I would affirm the judgment. (CERTIFIED

FOR PUBLICATION.)

—EVANS _ , Acting P.J.

— -— ——r oe,

UNITED STATES CONSTITUTION

FIFTH AMENDMENT

"No person shall be held to answer for a Capital,

or otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offense to be twice put

in jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use

without just compensation."

SIXTH AMENDMENT

"In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crime

shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have

the assistance of counsel for his defense."

FOURTEENTH AMENDMENT -

"Section 1. All persons born or naturalized in

the United States and subject to the jurisdiction thereof,

are citizens of the United States and of the state wherein

they reside. No state shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any state deprive

any person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

CONSTITUTION OF

THE STATE OF CALIFORNIA

ARTICLE VI, SECTION 13

"No judgment shall be set aside, or new trial

granted, in any cause, on the ground of misdirection of

the jury, or of the improper admission or rejection of

evidence, or for any error as to any matter of pleading,

or for any error as to any matter of procedure, unless,

after an examination of the entire cause, including the

evidence, the court shall be of the opinion that the error

complained of has resulted in a miscarriage of justice."

APPENDIX M

CALIFORNIA PENAL CODE

SECTION 31

"Who are principals. Al] 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, or, not being present, have advised and

encouraged its commission, and all persons counseling,

advising, or encouraging children under the age of

fourteen years, lunatics or idiots, to commit any crime, or

who, by fraud, contrivance, or force, occasion the

drunkenness of another for the purpose of causing him

to commit any crime, or who, by threats, menaces,

command, or coercion, compel another to commit any

crime, are principals in any crime so committed."

[Enacted 1872.]

SECTION 187

"Murder defined. (a) Murder is the unlawful

killing of a human being, or a fetus, with malice

aforethought.

"(b) This section shall not apply to any person

who commits an act which results in the death of a fetus

if any of the following apply:

"(1) The act compiled with the Therapeutic

Abortion Act, Chapter 11 (commencing with

Section 25950) of Division 20 of the Health and

Safety Code.

"(2) The act was committed by a holder of a

physician’s and surgeon’s certificate, as defined in

the Business and Professions Code, in a case

where, to a medical certainty, the result of

childbirth would be death of the mother of the

fetus or where her death from childbirth, although

not medically certain, would be substintially

certain or more likely than not.

"(3) The act was solicited, aided, abettd, or

consented to by the mother of the fetus.

"(c) Subdivision (b) shall not be agree

ibit the prosecution of any person under an o

Sa of law." [As amended by Stats. 1970, cl 1311,

§ 1.)

SECTION 189

"(Degrees of murder.] All murder Wich is

es by means of a destructive dejce or

explosive, poison, lying in wait, torture, or by ary other

kind of willful, deliberate, and premeditated kijng, or

which is committed in the perpetration of, or attmpt to

perpetrate, arson, rape, robbery, burglary, mayem, or

any act punishable under Section 288, is murde of the

first degree; and all other kinds of murders ar of the

ee.

er in this section "destructive devie" shall

mean any destructive device as defined in Sectio 12301,

and “explosive” shall mean any explosive as déined in

Section 12000 of the Health and Safety Code.

[As amended by Stats. 1970, ch. 771, § 3.]

SECTION 190.2, SUBDIVISIONS (a)(3) and ()(17)(i)

"(Mandatory penalty upon ipecial

findings.) (a) The penalty for a defendant foud guilty

of murder in the first degree shall be eath or

confinement in state prison for a term “4 life Whout ”

ibility of parole in any case in which one Oimore o

is hone special circumstances has been chéged and

specially found under Section 190.4, to be true

"(3) The defendant has in this proceeing been

convicted of more than one offense of jurder in

the first or second degree.

"(17) The murder was committed while the

defendant was engaged in or was an accomplice

in the commission of, attempted commission of, or

the immediate flight after committing or

attempting to commit the following felonies

"(i) Robbery in violation of Section 211."

(Subdivisions (a) 1, 2, 4-16, (17)(ii-ix), 18, 19 and (b)

have been omitted.) [As adopted by initiative

November 7, 1978.]

SECTION 211

"Robbery defined. Robbery is the felonious taking

of personal property in the possession of at.cher, from

his person or immediate presence, and against his will,

accomplished by means of force or fear.”

[Enacted 1872]

SECTION 12022, SUBDIVISION (b)

"(b) Any person who personally uses a deadly or

dangerous weapon in the commission or attempted

commission of a felony shall, upon conviction of such

felony or attempted felony, in addition and consecutive

to the punishment prescribed for the felony or attempted

felony of which he has been convicted, be punished by

an additional term of one year, unless use of a deadly or

dangerous weapon is an element of the offense of which

he was convicted."

[As amended by Stats. 1977, ch. 165, § 91, effective June

29, 1977.]

CALIFORNIA JURY INSTRUCTIONS -

CRIMINAL (CALJIC)

(Written instructions as given in this case with brackets,

“eletions, corrections, etc., omitted.)

2.01 (CT 801)

“However, a finding of guilt as to any crime

may not be based on circumstantial evidence unless the

proven circumstances are not only (1) consistent with the

theory that the defendant is guilty of the crime, but (2)

cannot be reconciled with any other rational conclusion.

"Further, each fact which is essential to

complete a set of circumstances necessary to establish

the defendant's guilt must be proved beyond a

reasonable doubt. In other words, before an inference

essential to establish guilt may be found to have been

proved beyond a reasonable doubt, each fact or

circumstance upon which

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