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Full Opinion
THE PEOPLE, Plaintiff and Respondent,
v.
ROSARIO MONTOYA, Defendant and Appellant.
Supreme Court of California.
*1031 COUNSEL
Colin J. Heran, under appointment by the Supreme Court, and Mark E. Cutler for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Edgar A. Kerry, Rosendo Pena, Jr., and Jane Olmos, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GEORGE, J.
Defendant Rosario Montoya was convicted of burglary of an inhabited dwelling. Under the instructions given to the jury, its verdict could have been premised upon defendant's being found guilty of burglary either as a direct perpetrator or as an aider and abettor.
*1032 On appeal, defendant contends his conviction should be reversed on the ground the trial court erred in failing sua sponte to instruct the jury that, in order to be found guilty of burglary on a theory of aiding and abetting, a person (having knowledge of the unlawful purpose of the perpetrator) must have formed the requisite intent to commit, encourage, or facilitate the commission of the burglary prior to or at the time the perpetrator entered the dwelling. The People disagree, maintaining that a person who, with the requisite knowledge and intent, aids the perpetrator, may be found liable on an aiding and abetting theory so long as he or she formed the intent to commit, encourage, or facilitate the commission of the offense prior to the time the perpetrator departed from the dwelling. In addition, the People contend that, in any event, reversal of defendant's conviction would be unwarranted because, in light of the record in the present case, the trial court had no duty, absent a specific request by defendant, to instruct the jury with regard to the point in time by which an aider or abettor must have formed the intent to encourage or facilitate the commission of the offense.
As we shall explain, we conclude the People's contentions are well taken. Accordingly, we affirm the judgment of the Court of Appeal, upholding defendant's conviction.
I
By information, defendant Rosario Montoya and codefendant Raymond Gaxiola were charged with burglary of an inhabited dwelling, in violation of Penal Code section 460, former subdivision 1 (now Pen. Code, § 460, subd. (a)).[1] Each defendant also was charged with resisting arrest, in violation of section 148. Codefendant Gaxiola subsequently pleaded guilty to both charges and defendant only to the violation of section 148.
Because, in our discussion, we analyze the issue whether under the facts of this case the trial court was required to instruct sua sponte on a particular aspect of aiding and abetting, we consider it necessary to set forth in detail the evidence introduced during the jury trial that ensued on the remaining burglary charge against defendant.
*1033 The following evidence was presented during the prosecution's case-in-chief. Alicia Hernandez was a close friend of Dolores Candolita and Anna Salcido, who were sisters. Salcido and her boyfriend, Gaxiola, lived together intermittently, and, during the summer of 1990, the two of them on several occasions visited Hernandez at the two-bedroom apartment on Mount Vernon Street in the City of Bakersfield which she and her children occupied. On another occasion Gaxiola alone visited Hernandez in order to make a repair. Salcido's and Gaxiola's relationship ended in September 1990. On September 17, 1990, after Gaxiola removed his belongings from Salcido's apartment, she observed Gaxiola being driven away by defendant in a green Datsun.
On September 26, 1990, Candolita and her children spent the night at Hernandez's apartment. On the following morning, Candolita drove Hernandez to work and the children to school, returned to the apartment, and departed again at approximately 8:45 a.m. At that time, a pole was in place in the door runway of the sliding glass door (which otherwise had no lock), opening onto a small fenced-in patio at the rear of the apartment. Candolita locked the front door, which had a key lock and dead bolt, using the only key available, which operated the dead bolt.[2]
At approximately 10 o'clock that morning, Maria Perez left her apartment, which was located near Hernandez's, and walked through the area behind the apartments toward her daughter's nearby apartment in order to meet her son, Alfred Garza, who was to drive her to work. Perez observed an unoccupied green Datsun automobile (a 210 model) parked in the asphalt parking area behind the apartments, facing a dirt easement (which ran next to the fence enclosing Hernandez's apartment patio and was too narrow for a vehicle). After approximately 10 minutes, Perez and her son, departing from her daughter's apartment, observed that the doors and trunk of the green Datsun had been opened. As they drew near in Garza's automobile, they noticed a man, identified as defendant, standing next to the passenger side of the vehicle, facing the open door, and holding up a map, which obscured his face from their view. Garza noticed another man, identified as Gaxiola, approaching along the dirt easement behind the apartments, carrying a television set. Perez told Garza to stop the automobile so that she could see "what was going on."
Perez approached Gaxiola, who was standing next to the driver's side of the vehicle with the television set in his hands, and asked what he was doing there. Gaxiola informed her "they were moving some things that belonged to *1034 his cousin" and would leave shortly. Defendant did not say anything and did not look up while Perez spoke with Gaxiola. When Perez told Gaxiola to move the automobile, he responded that they were leaving. After noticing a Nintendo game and a videocassette recorder inside the Datsun, Perez returned to her son's vehicle and told him to remember the make and license plate number of the Datsun. Perez and her son then drove away.
When Candolita returned to Hernandez's apartment at approximately 10:30 that morning, she discovered that someone had entered the apartment, taken several items of property, and left several knives, peanut butter, jelly, and a loaf of bread on the kitchen table. Candolita telephoned Hernandez to inform her and, at Hernandez's direction, telephoned the sheriff's department and picked up Hernandez at work. At the apartment, Hernandez discovered that a television set, videocassette recorder, Nintendo game, radio, and some items of jewelry were missing. The women noticed a baseball cap on the couch that did not belong to anyone residing in the apartment.
Deputy Sheriff Kenneth Williams and several sheriff's department investigators arrived at Hernandez's apartment shortly before noon. They and the victim observed the sliding glass door leading to the patio was closed, but the pole was not in the door runway, and there were new pry marks and black finger marks on the sliding glass door indicating it had been tampered with. An ice chest cooler had been turned on its side and pushed next to the patio fence at the rear of the enclosed patio area. Across from the cooler, adjacent to the other side of the fence, stood a garbage can, which was some distance from the area in which it normally was stored. There was a drag mark in the dirt easement area outside the patio fence.
The investigators concluded that entry to the apartment had been effected through the sliding glass door. They discovered shoe tracks from two distinct pairs of shoes leading from the dirt easement, just outside the fence, approximately twenty feet to the parking area. Although the investigators were unable to determine that the tracks had been made by the shoes later seized from defendant and Gaxiola, they were unable to exclude that possibility.
After speaking with Garza, and within an hour after arriving at the Hernandez apartment, Deputy Williams departed in his patrol vehicle. He soon noticed a green Datsun, model 210, emerging from an alley in the vicinity of the apartment and observed that the vehicle, its license number, and the persons inside corresponded to the information supplied by Garza. When Deputy Williams pulled his vehicle behind the green Datsun, it accelerated and made several turns. After Deputy Williams activated his red *1035 lights, the Datsun pulled into a parking space. As Deputy Williams exited from his vehicle to approach the Datsun, the driver (Gaxiola) suddenly departed on foot. Deputy Williams approached the passenger (defendant) and told him to place his hands behind his back. As the deputy grabbed defendant's left hand, defendant pulled his hand away, pushed the deputy, and ran down the street, with Deputy Williams following on foot. Meanwhile, a citizen pursued and captured Gaxiola. Deputy Williams, having lost sight of defendant, returned and arrested Gaxiola, who told the deputy his name was George Molina.
Deputy Williams subsequently received advice (apparently from Gaxiola) to contact Belia Melendes, with whom defendant lived at an apartment located approximately eight blocks from Mount Vernon Street. After obtaining Melendes's permission to search the apartment, Williams discovered defendant hiding in the attic space, wrapped in a sheet. After being advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]), defendant agreed to speak to Deputy Williams and told him his name was Tony Cruz and that he had not been at Hernandez's apartment.
Later that same day, while incarcerated, Gaxiola made a number of telephone calls to Salcido as well as to Candolita and Hernandez at the latter's residence. Initially, he denied involvement in the burglary, claiming he simply had accompanied friends who said they were moving property belonging to an aunt, and disclaimed knowledge that the apartment was Hernandez's residence. In subsequent telephone calls, however, Gaxiola provided specific information as to the location of most of the property and offered to replace the Nintendo game. Through the information supplied by Gaxiola, officers located the television set and the videocassette recorder at an apartment on Larcus Street. The residents of that apartment informed the officers they had purchased the property for $200 from two Hispanic men who had come to their door offering to sell the items. The officers also seized another television and videocassette recorder that the residents stated they previously had purchased from the same two men.
The defense presented the following evidence to the jury. Gaxiola, a heroin user who admitted having suffered three prior convictions for burglary in 1980, 1982, and 1987, and a conviction for receiving stolen property in 1986, testified he had been acquainted with defendant since August 1990. During the period Gaxiola was involved with Salcido, the two of them had visited Hernandez's apartment on several occasions between the latter part of 1989 and the summer of 1990, and Gaxiola also had visited Hernandez's boyfriend, Jay, several times at the apartment. On one occasion, while Jay *1036 was taking a shower, Gaxiola removed a key to the apartment from a table, had a duplicate made, and returned the key without being detected.
At approximately 10 a.m. on September 27, 1990, Gaxiola appeared at defendant's apartment and told him Gaxiola needed help in retrieving his property from his girlfriend's residence. Gaxiola drove with defendant in a borrowed vehicle to the area behind Hernandez's residence, where defendant accompanied Gaxiola to the front door. Gaxiola unlocked the dead bolt lock and instructed defendant to return to the vehicle and lower the rear seat in order to make more space for the items to be transported. Finding no one home, Gaxiola entered alone through the front door of Hernandez's apartment. He carried the television set out the front door along the walkway to the Datsun, placed it on the ground, returned with the videocassette recorder and other items, and was preparing to load the television set into the Datsun when he was approached and questioned by Perez. Gaxiola then reentered the apartment, opened the sliding glass door at the rear of the apartment, called to defendant, and handed him a sandwich over the back fence. Upon hearing someone knocking at the front door, Gaxiola left through the sliding glass door leading to the patio, scaling the back fence after tossing a Nintendo game and a bag of other items over the fence. According to Gaxiola, defendant did not assist Gaxiola, was unaware Gaxiola was committing a burglary, and was not acting as a "lookout."
Gaxiola told defendant that the articles belonged to him and that he wished to sell them. The two men proceeded to the apartment on Larcus Street where, with defendant's assistance as a Spanish interpreter, Gaxiola sold the property. Gaxiola did not share any of the proceeds of the sale with defendant.
Defendant testified in his own behalf, admitting three prior convictions for forgery. At the time of the burglary, he had known Gaxiola approximately one month and did not know where Gaxiola lived. Although Gaxiola never had "fixed" at defendant's residence, Gaxiola had mentioned heroin on several occasions. Several days prior to the date of the burglary, Gaxiola had driven defendant (who never had driven the Datsun because he did not know how to operate a manual transmission) to an apartment (not Hernandez's), telling defendant he was picking up property at a friend's residence. They subsequently transported the items obtained by Gaxiola (a videocassette recorder, a microwave, and a television set) to an apartment on Larcus Street, where, with defendant acting as a Spanish interpreter, Gaxiola sold the items to the occupants. Defendant did not know Gaxiola was selling stolen property. Defendant did not consider it unusual that Gaxiola collected property from one location and sold it elsewhere, because Gaxiola knew a great number of persons.
*1037 On the morning of September 26, 1990, Gaxiola woke defendant, telling him that Gaxiola's girlfriend had "run him out" and that Gaxiola had to remove some of his belongings from her apartment or she would be angry. Gaxiola drove with defendant in the Datsun to an apartment defendant previously had not visited. Accompanied by defendant, Gaxiola proceeded to the front door and unlocked and opened it. Defendant did not enter the apartment. Gaxiola appeared pleased to find no one home and instructed defendant to return to the Datsun and lower the rear seat. Defendant testified he was unaware Gaxiola was committing a burglary, because Gaxiola had a key and had told defendant he was picking up his own belongings, which defendant assumed to be a reference to clothing.
After defendant returned to the vehicle and lowered the rear seat, Gaxiola appeared, carrying a television set, which he placed near the Datsun. While defendant waited, he smoked a cigarette and began to read a map. At one point, Gaxiola called to him from inside the apartment and offered him a sandwich, which Gaxiola handed to him over the back fence. Defendant asked Gaxiola to "hurry up" and walked back to the vehicle. Gaxiola returned with a sack and a Nintendo game. Defendant was aware Gaxiola left the premises "through the back," although he did not observe Gaxiola climb over the fence. A woman (presumably Perez) then approached and spoke with Gaxiola, but defendant did not hear their conversation. When she departed, Gaxiola placed the television set inside the vehicle and drove off with defendant.
Gaxiola proceeded to the same apartment on Larcus Street where they had sold other items several days previously. Defendant acted as a Spanish interpreter while Gaxiola sold items taken from Hernandez's apartment, but defendant did not receive any proceeds of the sale. Gaxiola returned defendant briefly to his apartment, but they subsequently drove around until apprehended by Deputy Williams. Defendant attempted to escape and furnished a false name at the time he was apprehended, because he was on parole and already had violated the terms of his parole by failing to report his current address.
The trial court instructed the jury as to the elements of burglary and as to liability on a theory of aiding and abetting. Defendant did not request, and the trial court did not provide, any instruction informing the jury as to what point in time defendant must have formed the intent to commit, encourage, or facilitate the offense of burglary in order to be found guilty on a theory of *1038 aiding and abetting. The jury found defendant guilty of burglary of an inhabited dwelling, in violation of section 460, former subdivision 1.[3]
On appeal, defendant contended the trial court erred in failing to instruct sua sponte that, in order to be found guilty on a theory of aiding and abetting, defendant must have formed the requisite intent prior to or at the time of an entry by Gaxiola into the residence.[4] The Court of Appeal determined that the facts and circumstances of the present case were sufficiently distinguishable from those of earlier cases in which trial courts were held to have had a sua sponte duty to so instruct. The appellate court also held that an instruction relating to when defendant formed the requisite intent as an aider and abettor would have been inconsistent with defendant's theory that, even at the time the property was sold, he remained unaware Gaxiola had committed a burglary, and that such an instruction thus would have invited the jury to question defendant's veracity in presenting this defense. Affirming the judgment of conviction, the court therefore held that the trial court was under no obligation to provide this instruction sua sponte. We granted defendant's petition for review.
II
The prosecution offered two theories upon which defendant could be convicted of burglary, asserting that defendant either personally entered the residence with Gaxiola in order to commit a theft, or aided and abetted Gaxiola in the latter's commission of the offense. Before deciding whether, in light of the evidence presented at trial, the trial court erred in failing to instruct the jury sua sponte that an aider and abettor, prior to or at the time of an entry by the perpetrator, must have formed the intent to commit, encourage, or facilitate the commission of the offense, we first must determine the duration of the offense of burglary for purposes of the liability of an aider and abettor, because the intent of an aider and abettor must be formed before or as the offense is being committed.[5]
(1) Because section 31 defines as principals all who directly commit a given offense or who aid and abet in its commission, the same criminal *1039 liability attaches whether a defendant directly perpetrates the offense or aids and abets the perpetrator. (People v. Beeman (1984) 35 Cal.3d 547, 554-555 [199 Cal. Rptr. 60, 674 P.2d 1318]; People v. Brady (1987) 190 Cal. App.3d 124, 132-133 [235 Cal. Rptr. 248].)[6] The doctrine in Beeman that one may be liable when he or she aids the perpetrator of an offense, knowing of the perpetrator's unlawful purpose and intending, by his or her act of aid, to commit, encourage, or facilitate commission of the offense, "snares all who intentionally contribute to the accomplishment of a crime in the net of criminal liability defined by the crime, even though the actor does not personally engage in all of the elements of the crime." (People v. Brady, supra, 190 Cal. App.3d 124, 132.) Because the aider and abettor is subject to the same criminal liability and the same potential punishment as the perpetrator, it is essential to distinguish the act and intent that constitute "aiding and abetting" the commission of a crime, from conduct that will incur the lesser liability of an "accessory" to the crime defined as conduct by one who, "after a felony has been committed, ... 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...." (§ 32, italics added.)[7]
(2) It is settled that if a defendant's liability for an offense is predicated upon the theory that he or she aided and abetted the perpetrator, the defendant's intent to encourage or facilitate the actions of the perpetrator "must be formed prior to or during `commission' of that offense." (People v. Cooper (1991) 53 Cal.3d 1158, 1164 [282 Cal. Rptr. 450, 811 P.2d 742], italics in the original; see People v. Beeman, supra, 35 Cal.3d 547, 556-558.) Although the parties agree with this statement of the generally applicable legal principle, they disagree on the question of the duration of the offense of burglary for the purpose of establishing liability as an aider and abettor.
Defendant relies upon a line of Court of Appeal decisions that have concluded that, because the crime of burglary is complete (that is, all of the *1040 elements of the offense have been satisfied) upon the perpetrator's entry into the structure with felonious intent, a person may be found guilty as an aider and abettor only if he or she formed the requisite intent to commit, encourage, or facilitate the offense prior to or during entry by the perpetrator. (See People v. Macedo (1989) 213 Cal. App.3d 554, 558 [261 Cal. Rptr. 754]; People v. Forte (1988) 204 Cal. App.3d 1317, 1321-1322 [251 Cal. Rptr. 855]; People v. Brady, supra, 190 Cal. App.3d 124, 133-134, 137; People v. Markus (1978) 82 Cal. App.3d 477, 481-482 [147 Cal. Rptr. 151].)
The People maintain that the reasoning of these decisions is inconsistent with the analysis contained in this court's decision in People v. Cooper, supra, 53 Cal.3d 1158, and suggest that, under the Cooper analysis, the commission of a burglary does not terminate, for the purpose of aiding and abetting, upon the perpetrator's entry into the structure, but rather continues until the perpetrator's departure from the structure. As we explain, we conclude that our recent decision in Cooper supports the People's position. Accordingly, we disapprove these Court of Appeal decisions to the extent they conflict with our conclusion, explained below.
In People v. Cooper, supra, 53 Cal.3d 1158, the issue of aiding and abetting arose in the context of a robbery. The defendent in Cooper, the driver of the getaway vehicle, contended he was unaware of the perpetrators' intent to commit the robbery until after the perpetrators already had taken the property from the immediate presence of the victim by force. The defendant asserted that, because he formed the intent to assist only after that occurrence, he could not properly be found guilty as an aider and abettor and his liability was limited to that of an accessory after the fact.
In Cooper, we rejected the defendant's contention, concluding that the temporal threshold for establishing guilt a fixed point in time at which all elements of the substantive offense are satisfied so that the offense itself may be considered to have been "initially committed" rather than simply attempted is not synonymous with the "commission" of that crime for the purpose of determining aider and abettor liability. (53 Cal.3d 1158, 1164, italics in the original.) We explained that in determining the duration of an offense, for the purpose of aider and abettor liability, the court must take into account the nature of the interests that the penal provision is intended to protect, emphasizing in this regard that both the victim of a crime and a potential aider and abettor frequently will not perceive an offense as "completed" simply because all elements necessary to establish guilt already have been satisfied. To illustrate this point we referred to the crime of rape, observing that "[t]he rape victim ... would not agree that the crime was completed once the crime was initially committed (i.e., at the point of initial *1041 penetration)", but rather would consider the offense not to have ended "until all of the acts that constitute the rape have ceased." (Id. at pp. 1164-1165, fn. 7.) We also noted that "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" reasonably would be found to have formed the intent to facilitate the rape during the commission of the rape. (Id. at p. 1165, fn. 7.)
Applying this analysis to the crime of robbery, we determined in Cooper that the crime of robbery is not completed, for aiding and abetting purposes, at the point in time at which the perpetrator has committed sufficient acts to satisfy all the elements of robbery. Instead, relying upon the circumstance that asportation (carrying away) of the stolen property is a distinct element of the crime of robbery, we concluded that, for the purpose of aiding and abetting, the duration of a robbery extends to the carrying away of the stolen property to a place of temporary safety. We held in this regard that "for conviction of the more serious offense of aiding and abetting a robbery, a getaway driver must form the intent to facilitate or encourage commission of the robbery prior to or during the carrying away of the loot to a place of temporary safety." (53 Cal.3d at p. 1165, fn. & italics omitted.)
In the course of our discussion in Cooper, we noted that the crime of burglary, unlike robbery, does not include asportation as one of its elements, and thus, for the purpose of aiding and abetting, liability for burglary would not extend to a person who simply aided a burglar in the asportation of the stolen property after its removal from the burgled structure. (See 53 Cal.3d at p. 1169 & fn. 13.) In Cooper, however, we had no occasion to decide at precisely what point the perpetrator's entry into the structure, his or her departure from the structure, or some other point the acts constituting the crime of burglary terminate for the purpose of aiding and abetting. That question is now before us, and in resolving it we turn to the general analysis contained in our Cooper decision, also considering the nature of the elements of the crime of burglary and the specific interests that the law seeks to protect in defining this offense.
(3) The crime of burglary consists of an act unlawful entry accompanied by the "intent to commit grand or petit larceny or any felony." (§ 459.)[8] One may by liable for burglary upon entry with the requisite intent to commit a felony or a theft (whether felony or misdemeanor), regardless of *1042 whether the felony or theft committed is different from that contemplated at the time of entry, or whether any felony or theft actually is committed. (People v. Devlin (1904) 143 Cal. 128, 129-130 [76 P. 900]; People v. Shaber (1867) 32 Cal. 36, 38; People v. Ravenscroft (1988) 198 Cal. App.3d 639, 643 [243 Cal. Rptr. 827]; People v. Morales (1968) 263 Cal. App.2d 211, 214 [69 Cal. Rptr. 553]; People v. Walters (1967) 249 Cal. App.2d 547, 550 [57 Cal. Rptr. 484]; People v. Mitchell (1966) 239 Cal. App.2d 318, 328 [48 Cal. Rptr. 533]; People v. Murphy (1959) 173 Cal. App.2d 367, 373 [343 P.2d 273]; People v. Novo (1936) 12 Cal. App.2d 525, 528 [55 P.2d 915]; 2 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against Property, § 663, p. 746.)
(4a) It does not follow, however, that once the offense itself has been initiated, that is, the perpetrator has entered the structure with the requisite intent, an individual who, with knowledge of the perpetrator's unlawful purpose, thereafter forms the intent to commit, facilitate, or encourage commission of the offense by the perpetrator while the perpetrator still remains inside the structure, is not liable as an aider and abettor.
In People v. Gauze (1975) 15 Cal.3d 709, 714 [125 Cal. Rptr. 773, 542 P.2d 1365], while observing that a burglary consists of "an entry which invades a possessory right in a building," we had occasion to review the broad underlying basis for the criminal sanction against the particular act and intent constituting burglary. (5) Therein, we quoted the rationale set forth in People v. Lewis (1969) 274 Cal. App.2d 912, 920 [79 Cal. Rptr. 650]: "`Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.' Section 459, in short, is aimed at the danger caused by the unauthorized entry itself." (People v. Gauze, supra, 15 Cal.3d 709, 715; accord, People v. Brown (1992) 6 Cal. App.4th 1489, 1496 [8 Cal. Rptr.2d 513]; People v. Thomas (1991) 235 Cal. App.3d 899, 906 [1 Cal. Rptr.2d 434]; see People v. McCormack (1991) 234 Cal. App.3d 253, 257 [285 Cal. Rptr. 504]; see People v. O'Keefe (1990) 222 Cal. App.3d 517, 521 [271 Cal. Rptr. 769]; People v. Hines (1989) 210 Cal. App.3d 945, 950-951 [259 Cal. Rptr. 128]; In re William S. (1989) 208 Cal. App.3d 313, *1043 318 [256 Cal. Rptr. 64].) Although entry into an inhabited structure is recognized as most dangerous and most likely to create personal injury, justifying assignment of the greater degree (§ 460; see People v. Thomas, supra, 235 Cal. App.3d 899, 906; People v. Hines, supra, 210 Cal. App.3d 945, 950-951; People v. Wilson (1989) 208 Cal. App.3d 611, 615 [256 Cal. Rptr. 422]), some risk of danger to human life and safety exists whether or not the structure is inhabited, because the intrusion may give rise to a confrontation between the intruder and persons lawfully on the premises.
Although the decisions generally have emphasized this aspect of the danger to personal safety created by the offense of burglary, other authority, involving factual circumstances in which actual danger appears not to exist or is relatively minor, and relying upon the purpose of the statute to protect against an invasion of a possessory right, has concluded that the threat to property interests alone, created by the burglar's entry and continued presence inside the structure, supports a finding of burglary. (People v. Salemme, supra, 2 Cal. App.4th 775, 781-782; People v. Superior Court (Granillo) (1988) 205 Cal. App.3d 1478, 1485 [253 Cal. Rptr. 316]; People v. Ravenscroft, supra, 198 Cal. App.3d 639, 643; see People v. Brown, supra, 6 Cal. App.4th 1489, 1497, fn. 3.)
(4b) It is manifest that the increased danger to the personal safety of the occupant, and the increased risk of loss or damage to his or her property contemplated by the statutory proscription, do not terminate at the moment entry is accomplished, but rather continue while the perpetrator remains inside the structure. Certainly, an absent occupant could return at any moment and be faced with the danger created by the prior entry. Thus, one who learns that the perpetrator unlawfully has entered with intent to commit a felony or theft, who forms the requisite intent to assist, and who does assist by independently contributing to the commission of the crime or by otherwise making it more likely that the crime will be successfully completed than would be the case absent such participation (People v. Brady, supra, 190 Cal. App.3d 124, 132) logically should be liable as an aider and abettor rather than as a mere accessory.
Moreover, as long as the perpetrator remains inside the structure, the increased danger to the personal safety of the occupant and the increased risk of loss or damage to his or her property continues, whether the perpetrator commits a felony or theft different from that intended at the time of entry, or even if no felony or theft is completed. The appearance and assistance of an aider and abettor, even if belated, contribute to and perpetuate this increased danger and risk. For example, an individual might learn of the perpetrator's earlier entry with the requisite intent, form his own intent to facilitate that *1044 offense, and commence acting as a "lookout" at the point of entry, on behalf of the perpetrator. The presence of the "lookout," by prolonging the perpetrator's presence in the structure, may increase the chance of an encounter between the perpetrator and a returning occupant.
Nor should the liability of an individual for aiding and abetting a perpetrator be negated by the circumstance that the aider and abettor forms the intent to assist in the commission of the offense only after entry by the perpetrator. We understand the concern articulated by the Court of Appeal in People v. Brady, supra, 190 Cal. App.3d 124, that, because (with some exceptions) no burglary has been comitted by the perpetrator if his or her intent to commit a felony or theft arose after entry (id. at p. 133; see People v. Lowen (1894) 109 Cal. 381, 382-384 [42 P. 32]), "[t]he culpability of the assistant to the thief, whose intent