Liability of a Getaway Driver Who Had No Prior Knowledge of the Robbery
In People v. Cooper (1991) 53 Cal.3d 1158, the defendant drove two companions to a shopping center parking lot where he parked and the three conversed outside the car. The companions ran across the parking lot, bumped into an elderly shopper and stole his wallet, then jumped into the defendant's car, which was moving with its two right-side doors open. Once the two were in the car, the defendant drove away. (Id. at p. 1161.)
The question presented was the propriety of a jury instruction that permitted finding a getaway driver who had no prior knowledge of the robbery liable as an aider and abettor even if the robbers were not carrying the loot during their escape. (Ibid.)
Summarizing its decision, the Cooper court stated, "As our cases recognize, the prosecution must show an aider and abettor intended to facilitate or encourage the principal offense prior to or during its commission. The main issue here, therefore, is the duration of the commission of a robbery for purposes of determining whether a getaway driver is liable as an aider and abettor rather than an accessory. We conclude that the commission of a robbery for purposes of determining aider and abettor liability continues until all acts constituting the robbery have ceased. The asportation, the final element of the offense of robbery, continues so long as the stolen property is being carried away to a place of temporary safety. Accordingly, in order to be held liable as an aider and abettor, the requisite intent to aid and abet must be formed before or during such carrying away of the loot to a place of temporary safety. Therefore, a getaway driver who has no prior knowledge of a robbery, but who forms the intent to aid in carrying away the loot during such asportation, may properly be found liable as an aider and abettor of the robbery." (Cooper, supra, 53 Cal.3d at pp. 1160-1161.)
The California Supreme Court was called upon to determine the duration of the "commission" of robbery for aiding and abetting liability. The court stated: "We have held that once all elements of a robbery are satisfied, the offense has been initially committed and the principal may be found guilty of robbery, as distinct from a mere attempt. This threshold of guilt-establishment is a fixed point in time, but is not synonymous with 'commission' of a crime for our purposes. For purposes of determining aider and abettor liability, the commission of a robbery continues until all acts constituting the offense have ceased. The taking element of robbery itself has two necessary elements, gaining possession of the victim's property and asporting or carrying away the loot. Thus, in determining the duration of a robbery's commission we must necessarily focus on the duration of the final element of the robbery, asportation. Although, for purposes of establishing guilt, the asportation requirement is initially satisfied by evidence of slight movement , asportation is not confined to a fixed point in time. The asportation continues thereafter as long as the loot is being carried away to a place of temporary safety." (Id. at pp. 1164-1165, fns. omitted.)
In footnote 7 at page 1164 of the opinion, the court explained: "The logic of viewing 'committed' as a fixed point in time for purposes of guilt-establishment and 'commission' as a temporal continuum for purposes of determining accomplice liability can be seen from the perspectives of both the victim and the accomplice. The rape victim, for example, would not agree that the crime was completed once the crime was initially committed (i.e., at the point of initial penetration). Rather, the offense does not end until all of the acts that constitute the rape have ceased. Furthermore, the unknowing defendant who happens on the scene of a rape after the rape has been initially committed and aids the perpetrator in the continuing criminal acts is an accomplice under the concept of 'commission,' because he formed his intent to facilitate the commission of the rape during its commission."
In People v. Cooper (1991) the California Supreme Court reaffirmed the People v. Graham (1969) test of invited error, but also amended it, as follows: "The record must show only that counsel made a conscious, deliberate tactical choice between having the instruction and not having it. If counsel was ignorant of the choice, or mistakenly believed the court was not giving it to counsel, invited error will not be found. If, however, the record shows this conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice. Error is invited if counsel made a conscious tactical choice. A claim that the tactical choice was uninformed or otherwise incompetent must, like any such claim, be treated as one of ineffective assistance of counsel." (Cooper, at p. 831.)