Brady

Defendant was convicted by a jury of burglary in the second degree (Pen. Code, §§ 459, 460, subd. 2) on grounds he perpetrated the offense or aided and abetted its commission (Pen. Code, § 31). Because the jury could have founded its verdict upon the theory of aiding and abetting, we will reverse the judgment for failure of the trial court to instruct the jury that an intent to aid the perpetrator, formed after the perpetrator’s entry into the burgled premises, does not satisfy an element of the offense of aiding and abetting a burglary. In the event of retrial, we also hold that second degree burglary, as currently defined (see § 460), is not a serious felony (See §§ 667, subd. (d); 1192.7, subd. (c)(l 8)) and for that reason cannot support the imposition of an enhancement for a prior serious felony pursuant to section 667.

Facts

On September 11, 1984, Michael Brummett was walking home to his apartment in Chico sometime after 6 p.m. At the comer he encountered Chris Arnold with three other people, defendant, Teddy Rose, and a female. They appeared to be dmnk. Arnold was in the back seat of a car and Brummett entered the car at Arnold’s invitation. Arnold and the other…