People v. Kraft8/10/2000
in the offenses or assisted after the fact. Likewise, the lack of such evidence means the absence of aider-abettor instructions cannot invalidate special circumstance findings requiring intent to kill for persons who did not commit the actual killing. (See People v. Anderson (1987) 43 Cal.3d 1104, 1138-1148.)
Defendant contends the trial court erred in refusing to instruct on accessory after the fact (§ 32) as a lesser related offense to murder in connection with those counts where the evidence showed some connection between defendant and the victim, but no evidence showed the degree of his involvement in the killing. We disagree: Even were there evidence supporting a theory of accessory liability, which the trial court properly found lacking, defendant was not entitled to instructions on lesser related offenses. (People v. Birks, supra, 19 Cal.4th at p. 136, retrospectively overruling People v. Geiger (1984) 36 Cal.3d 510.)
Finally, it should be clear from the foregoing discussion that, given the correctness, on this record, of the trial court's declining to instruct on principles of aider-abettor and accessory liability, defendant's related claims of ineffective assistance of counsel and constitutional error under the Eighth and Fourteenth Amendments to the federal Constitution and the rule of Beck v. Alabama (1980) 447 U.S. 625 also must fail.
4. Failure To Instruct on Additional Requirements of 1977 Death Penalty Law
Defendant contends, and the Attorney General agrees, the trial court erred in failing to instruct the jury, with respect to the Hughes, Young, Keith and Klingbeil murder charges, regarding the requirements of the multiple-murder special circumstance under 1977 death penalty law. Instead, the jury was instructed on the corresponding requirements of the 1978 death penalty law with CALJIC No. 8.81.3 (5th ed. 1988), as follows: "To find the special circumstance, referred to in these instructions as multiple murder convictions, is true, it must be proved: [ ] The defendant has in this case been convicted of at least one crime of murder of the first degree as to counts 6, 7, 8, 9, 11, 12, 13, 14, 16, 18 or 19 and one or more crimes of murder of the first or second degree." The trial court should have instructed the jury on the 1977 law's requirement that the defendant have been personally present during the commission of the act or acts causing death and, with the intent to cause death, physically aided or committed such acts. The omission, nevertheless, was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see People v. Johnson (1993) 6 Cal.4th 1, 45-46.) The jury effectively, albeit impliedly, determined each issue adversely to him by returning the verdicts and making the findings that it did under other, proper instructions.
5. Failure To Instruct the Jury that an Aider and Abettor Must Intend To Kill or To Aid Another To Kill for Special Circumstance To Apply
In another argument asserting reversible error as a consequence of the trial court's failure to instruct the jury on principles of aiding and abetting, defendant contends that, with respect to the Moore, "John Doe Huntington Beach," Wiebe, Hall, Hughes, Young, Keith, Klingbeil, Inderbieten and Loggins murders, the evidence suggested multiple perpetrators; the trial court, he argues, therefore was required to instruct the jury on the need to find intent to kill or to aid another person to kill for special circumstances to apply to an aider-abettor of those murders. (People v. Anderson, supra, 43 Cal.3d at pp. 1138-1147.) Again, as explained above, the trial court did not err in concluding the record lacked evidence supporting an aiding and
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