Filed 2/3/09 P. v. Schieffer CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Andrea Schiefer was convicted of assault with a deadly weapon and corporal injury to a spouse after participating in an attack on her husband. In an attempt to pull from defendants husband a backpack that he was holding, the husband was attacked by defendant and her codefendant. With the codefendant inflicting blows with a skateboard and defendant striking him, the husband was rendered unconscious.

Although defendant does not challenge the assault conviction, she contends that there was insufficient evidence to support her conviction for corporal injury to a spouse under Penal Code[1] section 273.5, because (1) there is no evidence she personally violated section 273.5, and (2) she cannot be found guilty on a theory of aiding and abetting the primary assailant, who had no spousal relationship with her husband and therefore did not violate section 273.5. Because we conclude that she could be convicted of aiding and abetting the primary assailant, we affirm.

I. BACKGROUND

Along with a codefendant, Mark Broome, defendant was charged in an information filed February 15, 2007, with assault with a deadly weapon and assault by means of force likely to produce great bodily injury. ( 245, subd. (a)(1).) In addition, defendant alone was charged with corporal injury to a spouse or cohabitant. ( 273.5, subd. (a).)

The evidence at trial revealed that on January 15, 2007, defendant brought Broome to stay overnight in the home she shared with her husband, Kenneth Johnson. After the husband and Broome came to blows that night, defendant left with Broome.

Defendant returned home the next day. As the husband walked outside with her, he spotted Broomes skateboard and backpack nearby and called the police. He then picked up the backpack. Broome appeared, and he and defendant attempted to pull the backpack away from the husband. When they were unsuccessful, they engaged in a physical assault. At some point, Broome began to hit the husband over the head with the skateboard, continuing to strike him even after he collapsed to the ground.

There were conflicting accounts of defendants exact role in the assault. The husband recalled defendant pulling on the backpack and hitting him weakly in the chest as Broome was hitting him. One witness confirmed the husbands testimony that defendant pulled on the backpack, but that witness did not see defendant throw any blows herself. Another witness remembered defendant kicking the husbands legs as he was lying on the ground and then attempting to pull away the backpack after Broome had stopped his assault. A third witness recalled defendant kicking and punching the husband in his abdomen and feet. She testified that the assault stopped when defendant took the backpack from the husband.

Defendants husband suffered serious injuries to his head and hand, but appeared to suffer no injuries to his chest, abdomen or legs. The notes of the physicians assistant who treated the husband demonstrated that he suffered a deep cut and swelling on his head, fractured bones in his face, a fracture of his little finger, and multiple abrasions on his skin.

During the jurys deliberations, it sent out a note asking, for purposes of the count charging corporal injury to a spouse, [M]ust [defendant] be the actual perpetrator, meaning the person who inflicted the [in]jury on her spouse? In responding, the court paraphrased the jurys question as asking whether or not an aiding and abetting theory could be the basis for the conviction of the [section] 273.5 for which [defendant] is charged. As so phrased, the court answered the question, [N]o, [defendant] . . . may not be convicted of a violation of Penal Code section 273.5[, subdivision] (a) on an aiding an[d] abetting theory.

The jury convicted defendant and Broome on all counts.[2] Imposition of defendants sentence was suspended, and she was placed on five years probation, on condition, among others, that she serve one year in jail and receive treatment for drug abuse.

II. DISCUSSION

Defendant contends the trial courts instruction regarding section 273.5 was correct and there was insufficient evidence to support a finding that she personally inflicted injury on her husband. The Attorney General argues that defendant could be found guilty as an aider and abettor on the basis of Broomes conduct and, alternatively, that the jury could have concluded she personally inflicted the necessary injury.

We find it necessary to address only the first issue, whether a person can be convicted of inflicting corporal injury on a spouse solely by aiding and abetting another person, unrelated to the spouse, who inflicted injury. We conclude that because the acts of an accomplice are treated as the acts of the aider and abettor, both parties could be convicted on the basis of the injuries inflicted by Broome.

The Supreme Court explained the basis of aiding and abetting liability most recently in People v. McCoy (2001) 25 Cal.4th 1111 (McCoy). While McCoy does not directly address the question before us, it sets out the necessary legal background. The defendant in McCoy, a participant in a drive-by shooting, had been convicted of murder as an aider and abettor of the codefendant whose gun fired the fatal shots. When the shooters conviction was reversed for retrial on his claim of imperfect self-defense, the court considered whether the defendants murder conviction must also be reversed, given the possibility that the shooter could be found guilty of a lesser crime. (Id. at pp. 11151116.)

In discussing aiding and abetting liability generally, the court explained:  All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed. [Citations.] Thus, a person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts. [Citation.] . . . [] . . . [] Except for strict liability offenses, every crime has two components: (1) an act or omission, sometimes called the actus reus; and (2) a necessary mental state, sometimes called the mens rea. [Citations.] This principle applies to aiding and abetting liability as well as direct liability. An aider and abettor must do something and have a certain mental state. [] We have described the mental state required of an aider and abettor as different from the mental state necessary for conviction as the actual perpetrator. [Citation.] The difference, however, does not mean that the mental state of an aider and abettor is less culpable than that of the actual perpetrator. On the contrary, . . . an aider and abettors mental state must be at least that required of the direct perpetrator. . . . When the offense charged is a specific intent crime, the accomplice must share the specific intent of the perpetrator; this occurs when the accomplice knows the full extent of the perpetrators criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrators commission of the crime.  [Citation.] [Citation.] . . . [] Aider and abettor liability is thus vicarious only in the sense that the aider and abettor is liable for anothers actions as well as that persons own actions. When a person chooses to become a part of the criminal activity of another, she says in essence, your acts are my acts . . . .  [Citation.] But that persons own acts are also her acts for which she is also liable. Moreover, that persons mental state is her own; she is liable for her mens rea, not the other persons. (McCoy, supra, 25 Cal.4th at pp. 11161118, fn. omitted.)

Based on that general discussion, the court concluded that the defendants conviction need not be reversed. While he was responsible for the acts of the shooter, the killing of another, the degree of his offense was determined by his own, rather than the shooters, mens rea. Accordingly, the jurys conclusion that the defendant had the intent necessary to support a murder conviction would not be affected by a conclusion that the actual shooter lacked that mental state, having fired in imperfect self-defense. (McCoy, supra, 25 Cal.4th at pp. 11201121.)

With that background, we consider the situation at hand. Section 273.5, subdivision (a) states, Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony. The actus reus necessary for a violation of section 273.5, therefore, is the infliction of corporal injury resulting in a traumatic condition by a person having the necessary intimate relationship with the victim. (See, e.g., People v. Abrego (1993) 21 Cal.App.4th 133, 136.)

There was abundant evidence demonstrating that defendant possessed the mens rea to support a conviction under section 273.5, either as a perpetrator or aider and abettor. While Broome was violently assaulting her husband, defendant did nothing to stop or mitigate the blows. On the contrary, she continued pulling at the backpack, thereby preventing her husband from defending himself against Broomes strikes, and she punched or kicked at him on her own. It is plain that defendant intended to further Broomes infliction of injury, and she could readily be found to have intended to inflict injury of her own.

As to the actus reus, defendant was a full participant in this attack, acting jointly with Broome to inflict severe injury. Under the language of McCoy, defendant is liable for [her accomplices] actions as well as [her] own actions. When a person chooses to become a part of the criminal activity of another, she says in essence, your acts are my acts . . . .   (McCoy, supra, 25 Cal.4th at p. 1118.) Regardless of whether defendant personally injured her husband, the evidence is undisputed that Broome inflicted corporal injury on him. By acting in concert with Broome in his assault while fully intending to further it, defendant became liable for Broomes conduct. They are, in effect, joint principals. She must therefore be treated as though [his] acts are [her] acts. Because Broomes acts included inflicting corporal injury on a person who was defendants husband, defendant could be found guilty of a violation of section 273.5.

A similar situation arose in People v. Roberts (1972) 26 Cal.App.3d 385 (Roberts), in which the defendant was convicted of violating section 288, prohibiting sexual acts with children under the age of 14. The conviction was based solely on evidence that the defendant encouraged the children to have sexual contact with each other, without actually touching any of them. (Roberts, at pp. 386387.) The defendant argued that he could not be found to have aided and abetted a violation of the statute because the children themselves were incapable of committing the crime as a result of section 26, which states that children under the age of 14 are not capable of committing a crime in the absence of clear proof that they knew the act was wrong. (Roberts, at p. 388.) Despite the fact that no such clear proof was presented, and therefore that the defendants accomplices did not violate the statute, the court found that the defendant could be convicted of aiding and abetting a violation. (Ibid.) Similar reasoning underlies the cases holding that a defendant can be found guilty of aiding and abetting a crime even though the defendant was incapable personally of committing the crime. (See, e.g., People v. Culuko (2000) 78 Cal.App.4th 307, 334; People v. Fraize (1995) 36 Cal.App.4th 1722; Hutchins v. Municipal Court (1976) 61 Cal.App.3d 77, 81.)

In supporting her position, defendant cites only the three cases relied on by the trial court in advising the jury that defendant was required to inflict the injury herself. (People v. Rose (1997) 56 Cal.App.4th 990; People v. Summersville (1995) 34 Cal.App.4th 1062; People v. Wilkins (1994) 26 Cal.App.4th 1089.) Because each of these cases involved application of the principle of collateral estoppel after separate trials, they are simply irrelevant to the issue at hand.

Defendant also cites CALCRIM No. 401, a jury instruction that requires the jury to find that [t]he perpetrator committed the crime before imposing aiding and abetting liability. While defendant interprets CALCRIM No. 401 as requiring the jury to find that the perpetrator was guilty of the crime, it can also be interpreted as requiring the jury to find only that the perpetrator committed the acts constituting the crime. In fact, any other interpretation is inconsistent with McCoy, which held that an aider and abettor could be convicted of a crime even though the perpetrator was found not to have committed the crime. Here, while Broome was incapable of committing the crime because of his status, his infliction of injury on the husband constituted the actus reus of a violation of 273.5 if attributed to defendant. Because, under McCoy, defendant was liable for Broomes actions as well as her own, she could be found to have aided and abetted a violation of that statute.[3]

Defendant also contends the trial court erred in failing sua sponte to deliver an instruction regarding misdemeanor battery under section 243, which is a lesser included offense of section 273.5. (People v. Belton (2008) 168 Cal.App.4th 432, 439; People v. Gutierrez (1985) 171 Cal.App.3d 944, 952 [both simple assault and misdemeanor battery are included in a prosecution of section 273.5].)

Given the unchallenged evidence that Broome inflicted corporal injury on the husband, aided by defendant, it is by no means clear that there was substantial evidence to support a finding that defendant was guilty only of the lesser offense, thereby triggering the courts sua sponte duty. (See, e.g., People v. Anderson (2006) 141 Cal.App.4th 430, 446.)

Yet even if the trial court did err in failing to instruct on the lesser included offense, the error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence was very strong that Broome inflicted corporal injury on the husband and that defendant aided and abetted the infliction of that injury throughout. There is little, if any, likelihood that the jury would have found defendant guilty only of battery had the instruction been given.

III. DISPOSITION

The judgment is affirmed.

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Margulies, J.

We concur:

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Marchiano, P.J.

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Flinn, J.*

[1] All statutory references are to the Penal Code.

[2] Broome did not appear at the trial after jury selection and was convicted in absentia.

[3] Because we conclude that defendant could be convicted on the basis of Broomes conduct, which unquestionably featured the infliction of corporal injury on the husband, we need not address her alternate contention that there was insufficient evidence that she personally inflicted injury.

* Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.