People v. Laskiewicz

Substantial evidence supports the conviction and discloses that appellant conspired with an accomplice, who was separately convicted, to steal money from the accomplice’s employer. Appellant was charged with grand theft as well as being an accessory to the theft. The jury was instructed as to the elements of both offenses and convicted him of both. The People concede that appellant cannot be guilty of both offenses, but contend no reversible error occurred.

Appellant relies upon People v. Prado (1977) 67 Cal.App.3d 267 [ 136 Cal.Rptr. 521 ], for the proposition that the failure to instruct the jury that the offenses are mutually exclusive requires reversal. In Prado the defendant was convicted of robbery (Pen. Code, § 211) and of being an accessory to the robbery (Pen. Code, § 32). The trial court dismissed the accessory charge and sentenced the defendant for robbery. The Court of Appeal reversed on the basis that the Prado defendant could not be guilty of both offenses which, the court reasoned, involved “mutually exclusive states of mind.” (Id., at p. 273.) It remanded with directions to permit the People to retry the case or, if they declined to do so, to strike the robbery conviction and reinstate the accessory conviction.

In People v. Francis (1982) 129 Cal.App.3d 241 [ 180 Cal.Rptr. 873 ], upon which the People rely, another Court of Appeal disagreed with the Prado decision. The defendant in Francis was convicted of murder (Pen. Code, § 187) and of being an accessory to the same murder (Pen. Code, § 32). The Francis defendant also contended it was reversible error for the trial court to fail to instruct that he could not be guilty of both murder and as an accessory to the same murder. The Francis court accepted the People’s concession that the defendant could not be convicted of both offenses,^[1] but affirmed the murder conviction and vacated the accessory conviction. Fran

While both Francis and Prado provide analysis of the multiple conviction issue, we find it unnecessary to deal with that problem in the instant case. First, appellant was not convicted and sentenced for both offenses—the trial court struck the accessory conviction, Second, the California Constitution, article VI, section 13, provides that a judgment shall not be set aside on the ground of misdirection of the jury unless it results in a miscarriage of justice. (See also, Pen. Code, §§ 1258, 1404.) The primary inquiry into whether misdirection causes a miscarriage of justice is whether the jury was misled. (See, e.g., People v. Montiel (1985) 39 Cal.3d 910 , 928 [ 218 Cal.Rptr. 572 , 705 P.2d 1248 ]; People v. Ramos (1984) 37 Cal.3d 136 , 155 [ 207 Cal.Rptr. 800 , 689 P.2d 430 ]; People v. Murtishaw (1981) 29 Cal.3d 733 , 765, in. 25 [ 175 Cal.Rptr. 738 , 631 P.2d 446 ]; People v. Kozel (1982) 133 Cal.App.3d 507 , 521-524 [ 184 Cal.Rptr. 208 ].) “ ‘ “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.” . . .’” (People v. Wickersham (1982) 32 Cal.3d 307 , 323 [ 185 Cal.Rptr. 436 , 650 P.2d 311 ], citing People v. St. Martin (1970) 1 Cal.3d 524 , 531 [ 83 Cal.Rptr. 166 , 463 P.2d 390 ].)

Appellant does not question the adequacy of the instructions which were given, and our own review reveals that the trial court fully and adequately advised the jury on the elements of each offense, the burden of proof, the prosecution’s duty and all other principles necessary to resolve the issue of guilt or innocence on both charges. It did not advise the jury that the offenses were mutually exclusive, but we do not perceive the failure to so instruct, assuming the legal principle of mutual exclusivity is correct, to be misleading or confusing. Jurors are not lawyers or judges, but lay persons. In the nonlegal context it is logical to presume that appellant could be guilty of both offenses—as a principal in the initial planning and execution of the theft, and thereafter as an accessory in assisting his accomplice to flee the state and avoid detention.^[2]