People v. Markus

Opinion

ROUSE, J.

Appellant was charged with and convicted of burglary (Pen. Code, § 459). No allegation was made that appellant actually committed a breaking and entering of a structure with intent to commit a felony or petit larceny. His guilt as a principal rests upon his activity as an aider and abettor (Pen. Code, § 31).

At the outset, we note there is no question of the sufficiency of the evidence to support a finding of guilt as aider and abettor. Viewing the evidence in the light most favorable to respondent, as required, it is clear that appellant’s behavior comports well with the concept of an active, knowing, lookout-man and getaway driver.

[480]

Parenthetically, we also note that even with the defense advanced, the evidence clearly shows appellant’s guilt as an accessory to a felony (Pen. Code, § 32). However, he was not so charged; accessory to felony is not a lesser included offense where guilt as a principal is alleged. The jury could not have made a finding of guilt as accessory. Its only alternatives were (1) a finding of guilt as a principal, or (2) finding appellant not guilty.

(People

v.

Preston

(1973) 9 Cal.3d 308, 319 [107 Cal.Rptr. 300, 508 P.2d 300];

People

v.

Morga

(1969) 273 Cal.App.2d 200, 207-208 [78 Cal.Rptr. 120];

People

v.

Baker

(1958) 164 Cal.App.2d 99, 107-108 [330 P.2d 240], cert, den., 359 U.S. 956 [3 L.Ed.2d 763, 79 S.Ct. 745].)

Appellant’s theory of the case was that he had no knowledge of his companion’s true purpose until the moment when the companion reentered the automobile carrying property he had stolen from the burgled residence. This was the substance of that portion of his statement to Officer Ritter which was admitted as part of the prosecution’s case. It was also put forward in defense counsel’s opening statement. Additionally, it is possible that the jury, from the testimony of witness Korman,