Opinion
FRANSON, Acting P. J. Appellant was convicted following a jury trial of the crime of accessory after the fact, in violation of Penal Code section 32.1 He makes several contentions on appeal but we need only discuss one— [558]that the trial court committed prejudicial error when it refused to give appellant’s requested instruction in the form of CALJIC No. 17.01,2 which would have told the jury that it had to agree unanimously on the act or acts committed by the appellant before he could be found guilty. We accept this contention and reverse the judgment.
The Facts
On the evening of February 18, 1981, the guest of honor at a farewell party, Kim E., and the victim, Lisa P., left the party and went to a neighborhood bar. They stayed at the bar until near closing time, when they went to the parking lot to get into their respective automobiles. A group of motorcyclists, who had been in the bar, were gathered in the parking lot.
Kim was forced onto the back of a motorcycle, which was driven away. Lisa did not know that her friend had gone against her will. When the motorcycle stopped at a signal light a few blocks away, Kim jumped olf and ran back to the parking lot.
Lisa asked the motorcyclists where Kim had gone. The cyclists told her that her friend was going to their “clubhouse” and told her she could meet her friend there. Lisa, accompanied by one of the cyclists, then drove to the clubhouse. She waited in the parking lot until a member of the club told her that he was going to turn out the outer lights. She entered the clubhouse and, reassured her friend would be along soon, waited inside.
Lisa and appellant sat on the couch. Appellant was attempting to become a member of the motorcycle club and was known as “Prospect. ” After some conversation with appellant, Lisa decided that Kim wasn’t going to come and began to leave. In an apparently nonthreatening manner, appellant said he wouldn’t leave if he were her. But Lisa decided to go, and appellant did not try to stop her.
Lisa went out to her car, but was followed by another club member, later identified as Jim Mott. Mott opened the car door and assaulted her. He beat her up, removed her pants and then tried to rape her.
Mott pushed Lisa back into the clubhouse. She pleaded with the 10 to 20 people in the clubhouse to help her, but no one stopped Mott. He forced [559]her into a back room, beat her some more, forced her to orally copulate him and then raped her. He left the room.
When Lisa tried to leave, another club member, Louis Vasquez, also forced her to copulate him orally and raped her. After Vasquez left, a succession of five to eight others came in and raped her.
During the victim’s ordeal, appellant came into the room and told Lisa to calm down and quit crying. He left the room to get “permission” to talk with her. He returned, saying he could not speak with her. Lisa noticed that appellant wore the belt from some slacks she had in her car.
Before allowing Lisa to leave, some club members returned her jeans but the pant legs had been cut off. Lisa then left the building. Appellant approached as she was leaving and grabbed her blouse. He told her to unbutton it. Some other person told him “that’s enough.” Appellant then told Lisa she would be “a damned fool to go to the man.”
Lisa drove to her mother’s house and reported the rape. The police were notified, and she was taken to a hospital for an examination.
Lisa identified Mott and Vasquez as the men who raped her. She apparently forgot about appellant until she saw him in the audience at Mott and Vasquez’ preliminary hearing seven months later on September 4, 1981. Appellant was arrested outside and told that the charge against him was “conspiracy to commit rape.” Appellant waived his Miranda rights and agreed to talk with Investigator Anderson. Appellant’s story about the events of February 19 generally coincided with Lisa’s, but he claimed that she “strutted around” when she reentered the clubhouse with Mott, and he believed her sexual acts were consensual. Appellant denied threatening or having sex with Lisa. Appellant said he was a friend of Mott but not of Vasquez. When Investigator Anderson asked appellant why he had come to Mott and Vasquez’ preliminary hearing, appellant said he came to support Mott. Later, he said that he had come to court because he planned to get married, and he wanted to ask Mott to be his best man.
Appellant did not testify at the trial.
Discussion
Appellant was not prosecuted as a principal in the commission of the rapes and oral copulations by Mott and Vasquez. Appellant was only charged and tried as an accessory after the fact to the crimes committed by Mott and Vasquez, i.e., that he intentionally aided Mott and Vasquez in their efforts [560]to avoid prosecution and conviction for the felonies they had committed against Lisa.3
The prosecution’s case against appellant consisted basically of three separate acts by appellant which arguably may be construed as aiding Mott and Vasquez to escape successful prosecution for their crimes:
(1) Appellant’s statement to Lisa at the crime scene on February 19 that she would be “a damned fool to go to the man.” According to the prosecution, this should be construed as an effort by appellant to discourage Lisa from reporting the crimes to the police.
(2) Appellant’s appearance at Mott and Vasquez’ preliminary hearing on September 4 to support Mott in his defense of the charges and inferentially to intimidate Lisa during her testimony.
(3) Appellant’s statements to Investigator Anderson on September 4 after his arrest where he supposedly lied to Anderson about Lisa’s consent to the sexual acts with Mott and Vasquez on February 19.
Without deciding the sufficiency of this evidence to support appellant’s conviction, we will assume that each of the three acts by appellant supports a jury finding that appellant intentionally sought to aid Mott and Vasquez to escape prosecution and conviction for their crimes.
Duty to Give Requested CAUIC Instruction No. 17.01
“ ‘If a defendant has been prosecuted for violation of a statute under which any one of several different acts could constitute the offense, the jury must be told that a verdict of guilty must be supported by a unanimous finding that one of the acts was committed. ’ ” (People v. Ewing (1977) 72 Cal.App.3d 714, 717 [140 Cal.Rptr. 299] citing People v. Heideman (1976) 58 Cal.App.3d 321, 333 [130 Cal.Rptr. 349], italics added.) Ewing, of course, recognizes that other statutes, in contrast, may be violated by a continuous course of conduct or by a series of acts over a period of time such as contributing to the delinquency of a minor. (72 Cal.App.3d at p. 717.)
[561]In People v. Madden (1981) 116 Cal.App.3d 212, 218 [171 Cal.Rptr. 897], this court held: “Conceptually, the exception of continuous conduct resulting in but one offense is quite limited. There is a fundamental difference between a continuous crime spree and continuous conduct resulting in one specific offense. The continuous conduct exception only really applies, if at all, to those types of offenses where the statute defining the crime may be interpretated as applying, on occasion, to an offense which may be continuous in nature such as failure to provide, child abuse, contributing to the delinquency of a minor, driving under the influence and the like [citations].”
The Supreme Court has given guidance on the question as to when a defendant is entitled to an instruction like CALJIC No. 17.01. In People v. Diedrich (1982) 31 Cal.3d 263 [182 Cal.Rptr. 354, 643 P.2d 971], the defendant was charged and convicted of two counts of bribery. Under count I, the prosecution offered evidence of two separate violations of Penal Code section 165 “under the umbrella of the single count.” The trial court refused a requested jury instruction requiring the jury to agree unanimously on a single, specific act of bribery as the basis for the conviction under count I. At page 281 the court states: “There simply is no escape from the fact that two separate violations of [Pen. Code] section 165 were proved under the umbrella of count I and that at no point was the prosecution required to elect between the two violations; nor was the jury instructed that it had to find unanimously that [the defendant] had committed at least one of them. As we said in the seminal case of People v. Castro, supra, 133 Cal. at page 13 [65 P. 13]: ‘The state, at the commencement of the trial, should have been required to select the particular act upon which it relied to make good the allegation of the information. This was not done; and even conceding that the failure to make such election at that time did not constitute error because of the want of demand upon the part of the defendant to make the election, still, when the case went to the jury, the court, in some form, should have directed their minds to the particular act of intercourse which it was incumbent upon the state to establish by the evidence, before a verdict of guilty could be returned against the defendant. This was not done.’ [Citation.] The reasons for requiring jury unanimity on at least one particular crime shown by the evidence are too obvious to require another restatement. [Citation.]” (Italics added.)
Although the Supreme Court recognized the “continuous conduct exception,” it limited the exception to those cases where the two or more criminal acts are closely connected in time so that they form part of one transaction or the crime is the type of offense which in itself consists of a continuous course of conduct such as pandering, child abuse or contributing to the delinquency of a minor. (Id., at pp. 281-282.)
[562]The “continuous conduct exception” is inapplicable to this case for several reasons: First, the acts involved are not so temporally linked that they form one transaction; second, being an accessory after the fact is not the kind of offense which, in itself, consists of a continuous course of conduct; and finally, the Supreme Court has refused to consider analogous crimes that involve preliminary steps leading up to the real evil the law seeks to prevent—here, frustration of a criminal prosecution—as within the continuous conduct exception. (See People v. Diedrich, supra, 31 Cal.3d 263 at pp. 281-282 discussing Pen. Code, § 274 [abortion] and § 165 [bribery of a public official].)
Another point should be emphasized in the present case. The prosecution argued that appellant’s statements made after his arrest were “further evidence of his involvement in trying to help Jimmy Mott escape conviction.” Appellant’s counsel then requested a limiting instruction “that [the postarrest statements themselves do] not constitute the crime charged, that the crime charged is only relating to the events of February 18 and 19, 1981, and not any subsequent acts . ...” In essence, this was a request for a reading of CALJIC No. 4.71.5 or its equivalent.4 The request was denied, as the trial court accepted the prosecutor’s representation that evidence of assertions to law enforcement personnel could constitute the crime of accessory after the fact and that the date in the information referred only to the time of the rape, not to appellant’s acts as an “accessory.”
There are two facets to the error involved here, both described in many of the same cases. (1) When a jury is given more than one factual basis which might constitute the crime charged, it must be instructed along the lines of CALJIC No. 17.01. The jury must unanimously convict for the same act or actions. (2) As noted in People v. Diedrich, quoted above, the prosecution should have been required to “select the particular act upon which it relied to make good the allegation in the information.” Failing to do so at the beginning was error, but could have easily been cured by instructing the jury in the form of CALJIC No. 4.71.5 (4th ed. 1982 pocket pt.) when appellant’s counsel requested a limiting instruction, or even when the case was submitted to the jury.
[563]This doctrine of “election” is based on the same cases and principles as the doctrine requiring an instruction on jury unanimity. Generally, when no election is made, it is assumed that the first offense upon which evidence was introduced is the one selected. (People v. Epps (1981) 122 Cal.App.3d 691, 702 [176 Cal.Rptr. 332]; People v. Madden, supra, 116 Cal.App.3d 212, 217.) But the jury must be informed of this presumption so that it knows which act or acts are being prosecuted. (People v. Epps, supra, 122 Cal.App.3d 691, 702; People v. Alva (1979) 90 Cal.App.3d 418, 424 [153 Cal.Rptr. 644].)
Here, the prosecution did not make an election at any time and opposed appellant’s request for instructions that would have cured the error. Opinions differ on whether a reading of CALJIC No. 17.01 alone will cure the failure to elect a specific crime. (Compare People v. Gitchuway (1983) 146 Cal.App.3d 432, 437-438 [194 Cal.Rptr. 141] [jury unanimity instruction does not put a defendant on adequate notice of the crime to be tried] with People v. Dunnahoo (1984) 152 Cal.App.3d 561, 572 [199 Cal.Rptr. 796] [criticizing Gitchuway, supra, as a “departure” from accepted rationales that require either an election or an instruction like CALJIC No. 17.01 on jury unanimity].) We need not decide this issue. Both election and CALJIC No. 17.01 were requested and refused. Both refusals were error.
People v. Bailey (1961) 55 Cal.2d 514, 519 [11 Cal.Rptr. 543, 360 P.2d 39], cited by the dissent, is inapposite. Bailey allows cumulation of many small thefts to establish a grand theft. This may be done when the acts are part of “one intention, one general impulse, and one plan.” The present case is not such a “cumulation” case; the offense is not elevated to some higher category of crime by showing that appellant’s various acts somehow add up to a greater crime. The single objective may be assumed—aiding appellant’s associates in avoiding conviction for their crimes. The problem is that the multiple acts shown provide multiple evidentiary foundations for the verdict. The law requires that the jury must be so charged that its verdict has one basis.
The Error Was Prejudicial Under Chapman v. California5
After holding the trial court’s refusal of CALJIC No. 17.01 constituted error, the Supreme Court in People v. Diedrich, supra, then ad[564]dressed the prejudicial effect of the error: “The next question is whether the error was prejudicial. We feel bound to hold that it was. This is not a case where the jury’s verdict implies that it did not believe the only defense offered. Diedrich’s defenses differed: As far as the Jolly Fox offer is concerned, it consisted of a simple denial. The Remington transactions were ‘explained.’ Having in mind that the proof of the Jolly Fox offer depended, essentially, on the testimony of a single immunized witness and that the proof of bribery via the Remington transaction was somewhat circumstantial, we feel bound to conclude that the error was prejudicial.” (31 Cal.3d at pp. 282-283, italics added.)
In the present case, it cannot be said that the jury’s verdict necessarily implied that it rejected the only defense offered. Although appellant did not testify, his admissions to Investigator Anderson seven months after the rapes occurred was introduced by the prosecution as “further evidence of [appellant’s] involvement in trying to help Jimmy Mott escape conviction.” This evidence shows appellant’s defense to the first act offered by the prosecution, the victim would be foolish to talk to “the man,” was a denial that appellant had made any threats to the victim. Appellant stated that he merely intended to comfort Lisa and to be supportive. Appellant’s defense to the second act offered by the prosecution, his appearance at the Mott-Vasquez preliminary, was an explanation for his presence at the hearing and not a denial. (Cf. People v. Diedrich, supra, 31 Cal.3d at pp. 282-283.) Appellant’s defense to the third act, the allegedly false statements to Investigator Anderson that the victim had consented to the rape, was an implied denial that the victim had been forced into the sex acts. These statements, however, were made in response to Investigator Anderson’s advice to appellant that he was being charged with “conspiracy to commit rape.” Thus, appellant’s statements, assuming them to be false, could have been made only for the purpose of defending himself from the rape charge and not to help Mott and Vasquez escape prosecution. An essential element of being an accessory after the fact is the specific intent to aid the principal to avoid or escape arrest, trial, conviction or punishment. (Pen. Code, § 32; People v. Duty (1969) 269 Cal.App.2d 97, 100-101 [74 Cal.Rptr. 606].) This specific intent must be present at the time of the act which is the basis for the crime charged and must be proved beyond a reasonable doubt. Since appellant’s conduct and statements to Lisa and Investigator Anderson were equivocal and subject to different meanings, it cannot be said with any de[565]gree of certainty that the jury necessarily rejected appellant’s only defense to the charge.6
The case was rife with the possibility of different findings by the jurors which, without CALJIC No. 17.01 and without an election by the prosecution, deprived appellant of the right to have the jury agree unanimously on the criminal act or acts which supported his conviction. Appellant did not receive the full benefit of the presumption of innocence and the requirement that the prosecution prove that he committed the crime charged beyond a reasonable doubt.
The judgment is reversed.
Andreen, J., concurred.
Penal Code section 32 provides: “Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.”
CALJIC No. 17.01 (4th ed. 1979) reads: “The defendant is charged with the offense of _______. He may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of such acts, but in order to find the defendant guilty, all the jurors must agree that he committed the same act or acts. It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.” All CALJIC instructions referred to are from the fourth edition (1979) unless otherwise noted.
Mott and Vasquez were charged with multiple counts of rape and oral copulation. Appellant, however, was tried first, and after his conviction of being an accessory after the fact, the charges against Mott and Vasquez were dismissed apparently due to the victim’s refusal to testify further. The dismissal of the charges against the principals has no effect on appellant’s conviction (see Pen. Code, § 972).
(Appellant was also charged with and tried for false imprisonment. The jury acquitted him of this charge.)
CALJIC No. 4.71.5 (4th ed. 1982 pocket pt.) reads:
“Defendant is charged in [Count_of] the information with the commission of the crime of_, a violation of section_of the Penal Code, on or about a period of time between_and__
“In order to find the defendant guilty, it is necessary for the prosecution to prove beyond a reasonable doubt the commission of a specific act [or acts] constituting said crime within the period alleged.
“And, in order to find the defendant guilty, you must unanimously agree upon the commission of the same specific act [or acts] constituting said crime within the period alleged.
“It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.”
As explained in People v. Deletto (1983) 147 Cal.App.3d 458, 472 [195 Cal.Rptr. 233], the instruction (CALJIC No. 17.01) focuses the jury’s attention on a specific act and requires the jury to determine guilt as to that act beyond a reasonable doubt. “The instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one [564]count.” (Id., at p. 472, italics original.) The failure to instruct when required goes to the defendant’s fundamental right to a jury trial and due process and must be evaluated under the standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 24 A.L.R.3d 1065].
The dissent contends there was only one defense—denial. This is not the case. As we have explained, appellant did not deny making the statements to Investigator Anderson. His defense there was an explanation—asserting the truth of the statement made. His appearance at the preliminary hearing is also defended by explanation. It is true that his defense on one element of the crime—there was a rape at all—was a denial. The jury did not accept this part of his defense. But this fact is irrelevant to the issue here. Appellant was not contending that he was not present when the rapes allegedly occurred, his contention was that events could be interpreted differently. The jury could easily believe the victim’s version of the rape itself in every detail, but not accept her description of the threat appellant made the next day. These were distinct events. Appellant’s denial that there was a threat is independent of his denial that there was a rape.