1603. Robbery: Intent of Aider and Abettor
To be guilty of robbery as an aider and abettor, the defendant must have formed the intent to aid and abet the commission of the robbery before or while a perpetrator carried away the property to a place of temporary safety.
A perpetrator has reached a place of temporary safety with the property if he or she has successfully escaped from the scene, is no longer being pursued, and has unchallenged possession of the property.
The court has a sua sponte duty to give this instruction when the defendant is charged with aiding and abetting a robbery and an issue exists about when the defendant allegedly formed the intent to aid and abet. (People v. Cooper (1991) 53 Cal.3d 1158, 1165-1166 [282 Cal.Rptr. 450, 811 P.2d 742] [defendant who drove get-away car asserted he did not intend to aid an abet at time of robbery].)
This instruction must be given with CALCRIM No. 401, Aiding and Abetting: Intended Crimes.
Do not give this instruction if the defendant is charged with felony murder.
Do not give CALCRIM No. 3261, During Commission of Felony: Defined—Escape Rule as a substitute for this instruction.
Aider and Abettor to Robbery—When Intent Formed. People v. Cooper (1991) 53 Cal.3d 1158, 1165-1166 [282 Cal.Rptr. 450, 811 P.2d 742].
Place of Temporary Safety. People v. Fields (1983) 35 Cal.3d 329, 364-368 [197 Cal.Rptr. 803, 673 P.2d 680]; People v. Johnson (1992) 5 Cal.App.4th 552, 560 [7 Cal.Rptr.2d 23].
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.10, Ch. 142, Crimes Against the Person, § 142.10[b], [e] (Matthew Bender).
Place of Temporary Safety Based on Objective Standard
Whether the defendant had reached a place of temporary safety is judged on an objective standard. The "issue to be resolved is whether a robber had actually reached a place of temporary safety, not whether the defendant thought that he or she had reached such a location." (People v. Johnson (1992) 5 Cal.App.4th 552, 560 [7 Cal.Rptr.2d 23].)
(New January 2006)