People v. Kraft8/10/2000
favorable to him from selected items of evidence. (People v. Mincey (1992) 2 Cal.4th 408, 437.) Contrary to defendant's argument, the jury was adequately instructed, by means of CALJIC Nos. 2.90 and 2.91, that it must determine the identity of the perpetrator of each charged offense. The trial court's refusal of defendant's requested pinpoint instructions, therefore, did not deprive him of due process.
3. Failure To Instruct on Aiding and Abetting, Accessory Liability, and Lesser Related Offenses
Defendant argues that the trial court erred in refusing his request for jury instructions on principles of aiding and abetting, as pertinent to the Hall and Loggins murders. He contends further the trial court should have instructed the jury on aiding and abetting with respect to the Hughes, Young, Keith and Klingbeil murders despite the lack of a request below, suggesting his trial counsel's failure to request such instructions constituted ineffective assistance requiring reversal of those convictions. He also asserts the trial court erred in refusing his request for instructions on accessory liability. Finally, he contends that, had the jury been properly instructed as to aiding and abetting principles and the law of accessories, it should, additionally, have been instructed on intent to kill. Defendant's contentions lack merit.
The trial court must instruct on lesser offenses necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. (People v. Birks (1998) 19 Cal.4th 108, 118.) On the other hand, if there is no proof, other than an unexplainable rejection of the prosecution's evidence, that the offense was less than that charged, such instructions shall not be given. (People v. Wickersham (1982) 32 Cal.3d 307, 323-324.) Citing People v. Schader (1965) 62 Cal.2d 716, 731-732, People v. Burnham (1986) 176 Cal.App.3d 1134, 1141-1143, 1151, and People v. Lemus (1988) 203 Cal.App.3d 470, 477, defendant contends that, to trigger the necessity of an instruction on aiding and abetting, this substantial evidence may be incredible and not of a character to inspire belief because the jury, not the trial court, is to determine the credibility of witnesses. Unlike in the cited cases, however, the record before us contains no evidence, as distinct from mere speculation, that any other person was involved in the killings charged to defendant. (See People v. Wilson (1992) 3 Cal.4th 926, 942 ["Speculation is an insufficient basis upon which to require the trial court to give an instruction on a lesser included offense."].) Defendant asserts his small size, relative to Hall and Loggins, made it unlikely he, acting alone, could have placed the bodies in the locations where they were found. He also notes that the prosecution relied, to prove guilt, on the list, which was prepared after the crimes it purportedly memorialized. These circumstances, however, simply do not amount to evidence of another's participation warranting aiding and abetting instructions, nor do they suggest defendant's participation was limited to rendering after-the-fact assistance. Accordingly, the trial court did not err in refusing the requested instructions.
For this reason, too, we reject defendant's contention his convictions on the charges tried under the 1977 death penalty law (the Hughes, Young, Keith and Klingbeil offenses) are invalid for want of an instruction on aiding and abetting. Although it is true that death eligibility under the 1977 law required a defendant to have been personally present and to have personally participated in the killing, the record in this case lacks any evidence suggesting defendant merely aided or abetted another principal
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