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Name: People v. Lopez
Case #: C065058
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/30/2011

Defendant’s act of luring victim to secluded location of robbery reflects indifference to the victim’s life and supports the robbery-murder special circumstance. Lopez and Brousseau were convicted of special circumstance murder and sentenced to life without parole. Brousseau had lured the victim into an alley with the promise of committing an act of prostitution. Lopez approached the car in which Brousseau sat with the victim and attempted an armed robbery; he ended up shooting and killing the victim. Brousseau asserted insufficient evidence of the robbery-murder special circumstance because she did not act with reckless indifference to human life. However, there was evidence Brousseau knew Lopez had a gun, which reflected that Brousseau acted with indifference to the life of the man she lured into the alley. Even if she lacked such knowledge, she lured the victim into a secluded area for a robbery, heard a gunshot, and failed to call 911, all of which reflect an utter indifference to the victim’s life and support the robbery-murder special circumstance.

The “equally guilty” language in the aiding and abetting instruction was harmless error. Usually, a person who aids/abets another in committing a crime is also guilty of the crime committed. Nonetheless, in some circumstances the aider may be found guilty of a lesser or greater crime than the perpetrator. The introductory aiding/abetting instruction (CALCRIM 400) used here contained language that the aider was equally guilty of the crime abetted (it has been amended to remove this language). Because the instruction is generally correct, but may be incomplete under some circumstances, a defendant must request modification of the instruction to avoid forfeiting the issue on appeal. In any event, here, there was no prejudice. There was no evidence Brousseau intended only to aid a grand theft person. Further, other instructions given clearly delineated the intent required for the jury to find Brousseau shared Lopez’s purpose of committing a robbery, rendering any error harmless.