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VOLUME 6 - CHAPTER 65
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65.1 Miscellaneous Issues

    65.1.1 Natural And Probable Consequence: Prejudicial Impact Of The Failure To Instruct On Elements Of Uncharged Target Offense
    65.1.2 When Is First Degree Murder A Natural And Probable Consequence Of The Target Offense
    65.1.3 Natural And Probable Consequence: The Accomplice May Be Convicted Of A Lesser Offense Than The Perpetrator
    65.1.4 Natural And Probable Consequences: No Murder Liability For Aiding And Abetting Misdemeanor

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VOLUME 6 - CHAPTER 65

PRACTICE NOTE: People v. Hickles (CA 1997) 56 CA4th 1183, 1198 [66 CR2d 86] held that the failure to instruct upon the target offense was reversible error because it allowed the jury to apply the natural and probable consequences doctrine to a crime that could not properly be found to have murder as a natural and probable consequence or to an act which was not criminal.

    People v. Lucas (CA 1997) 55 CA4th 721, 729-31 [64 CR2d 282] concluded, in reliance upon People v. Prettyman (CA 1996) 14 C4th 248, 272 [58 CR2d 827] that the failure to instruct on the target offense is a violation of state law, but not the federal constitution because there was no reasonable likelihood that the jury would have applied the challenged instruction in a way that violates the constitution. Both the Prettyman and Lucas courts concluded that, rather than withdrawing an element of the charge or otherwise impacting an element, the error merely leaves "open the possibility that the jury might engage in unguided speculation." (Prettyman, 14 C4th at 272.) However, it is difficult to understand how such an instructional error does not go to an essential element of the charge. After all, it is beyond dispute that an element of the charge is that the charged crime must be a natural and probable consequence of the target crime. It appears too plain for words that an intent to commit the target crime is, therefore, an essential element of this element of the charge. Accordingly, the failure to instruct upon the target offense is the equivalent of failing to instruct upon an element of the charge and violates the federal constitution.

    The question of prejudice is a separate issue which involves a consideration of the factors discussed in Prettyman and Lucas as to the materiality of the withdrawn issue as well as whether the issue was resolved by the jury in other contexts under other instructions or by virtue of other verdicts. But, even if the error is found harmless under such factors, the fact remains that the error should be analyzed as a violation of the federal constitution. (See FORECITE National™ 270.4.1 [Reasonable Doubt As To Any Element Or Essential Fact By Any Juror Precludes Conviction].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.14.1 [Natural And Probable Consequences].

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VOLUME 6 - CHAPTER 65

RATIONALE: Where guilt is based on the natural and probable consequences doctrine, the charged crime must be a reasonably foreseeable result of the defendant's aiding and abetting. However, where the degree of the charged crime depends on the perpetrator's mental state, special instruction may be appropriate.

POINTS AND AUTHORITIES: An aider and abettor may be convicted of a crime which he or she did not specifically intend or contemplate, but "only to the extent of his or her knowledge or of the natural and reasonable consequences of the acts 'knowingly and intentionally' aided and encouraged by him." (People v. Beltran (CA 1949) 94 CA2d 197, 207 [210 P2d 238].) "[O]ne is not liable who has counseled a particular criminal act, and the perpetrator has committed a different one not falling within the probable consequences of that advice." (People v. King (CA 1938) 30 CA2d 185, 203 [85 P2d 928].) Consequently, the pivotal question is "whether or not the act committed was the ordinary and probable effect of the common design or whether it was a fresh and independent product of the mind of one of the conspirators, outside of, or foreign to, the common design ...." (People v. Durham (CA 1969) 70 C2d 171, 182-83 [74 CR 262]; see also FORECITE National™ 64.6.8 [Accomplice Liability: Independent Impulse Of Another].)

    However, this doctrine presents a particularly difficult situation when the offense charged is first degree murder based upon the mental state of the actual killer. In jurisdictions such as California, the aider and abettor need not personally harbor the mental state necessary for first degree murder so long as the actual killer formed the requisite mental state and the aider and abettor acted with knowledge of and intent to facilitate a first degree murder. (See People v. Croy (CA 1985) 41 C3d 1, 12, fn 5 [221 CR 592].) In such a case, the aider and abettor's knowledge that he/she is aiding and abetting a first degree murder is sufficient to impose first degree murder liability upon the aider and abettor.

    However, a different situation arises when the murder is not the target offense, but is charged under the theory that it is a natural and probable consequence of some other target offense. In such a case, the defendant's liability depends not on his/her knowledge of the actual circumstances of the killing, but rather upon his/her legally presumed awareness that commission of the target offense would naturally and probably result in the commission of the murder. This is a very difficult concept because while it may be said that an intentional killing may be the natural and probable consequence of a certain act, it is difficult to conceptualize what characteristics of the target offense would produce a deliberate and premeditated killing as opposed to merely an intentional killing.

    Moreover, an aider and abettor may be convicted of a lesser offense than the perpetrator if the target offense contemplates only the lesser offense (see FORECITE National™ 64.6.1 [Conviction Of Accomplice For Lesser Offense Than Perpetrator]; see also FORECITE National™ 65.1.3 [Natural And Probable Consequence: The Accomplice May Be Convicted Of A Lesser Offense Than The Perpetrator]) and any doubt as to whether the offense is first degree or second degree must be resolved in favor of the defendant (see also FORECITE National™ 265.4.2 [Reasonable Doubt As To Greater Charge Must Be Resolved In Favor Of Lesser].)

    Hence, special instruction may be necessary to assure the jury understands that a finding of first degree murder as to the actual killer does not necessitate a finding of first degree as to the aider and abettor unless the prosecution proves beyond a reasonable doubt that the circumstances which justified the finding of first degree murder as to the actual killer, including his actual mental state, were a natural and probable consequence of the target offense. (Cf., Stevens v. Zant (11th Cir. 1992) 968 F2d 1076, 1085 [instruction on issue of intent in capital murder case was constitutionally infirm where there was reasonable likelihood, inter alia, that the jurors would erroneously conclude that proof of an act having a natural and probable consequence of assisting in murder would prove that defendant intended to aid and abet]; State v. Harper (WV 1987) 365 SE2d 69, 74 [if defendant tried as an aider and abettor was unaware that the perpetrator was preparing to kill or inflict bodily harm upon the victim, the trial court should also instruct the jury on the offense of second degree murder].)

    The necessity for explaining this difficult concept to the jury is illustrated by People v. Francisco (CA 1994) 22 CA4th 1180, 1188-91 [27 CR2d 695]. Francisco purported to consider the applicability of the natural and probable consequences rule in a case where the defendant was convicted of first degree attempted murder based on aiding and abetting the target offense of assault. In addressing this issue, the Court of Appeal erroneously focused entirely upon the question of whether the "act" committed by the perpetrator was the natural and probable consequence of the target offense without any consideration of whether the "mental state" necessary to first degree murder was also a natural and probable consequence.

    See also FORECITE National™ 65.2.11 [Natural And Probable Consequences Improper For Specific Intent Offense].

PRACTICE NOTE: The sample instruction below contains alternative ways to express this difficult concept. Ultimately it will probably be necessary to more fully explain the point during argument.

USE NOTE: Applicability To Other Theories Of First Degree Murder And Lesser Offenses: This instruction would be equally applicable to other theories of first degree murder as well. For example, if the defendant aided and abetted a fistfight but the perpetrator instead, after lying in wait, surprised the victim and shot him to death, the jury would have two determinations to make in applying the natural and probable consequences rule. First, was murder (i.e., an intentional killing) a natural and probable consequence of aiding and abetting the fistfight. Second, was first degree murder (i.e., a killing perpetrated by lying in wait) a natural and probable consequence of the fistfight which the aider and abettor facilitated.

    This concept also applies to cases where manslaughter is a lesser offense of murder. In such a case, the killer's formation of malice must be a natural and probable consequence of the target offense. The jury could be instructed, with appropriate modifications depending on the type and degree of manslaughter, as follows:

RESEARCH NOTES:

See generally, FORECITE National™ 305.14.1 [Natural And Probable Consequences].

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VOLUME 6 - CHAPTER 65

RATIONALE: Without special instruction the jury may not understand that the accomplice may be convicted of a lesser offense than the perpetrator if the charged offense was not a natural and probable consequence of the target offense.

POINTS AND AUTHORITIES: Because the natural and probable consequences doctrine "requires separate factual determinations for (1) what crimes have been committed, (2) what crimes are the reasonably foreseeable consequences of the offense originally contemplated, it is self evident that the aider and abettor does not stand in the same position as the perpetrator." [Emphasis added.] (People v. Woods (CA 1992) 8 CA4th 1570, 1586 [11 CR2d 231].) "While the perpetrator is liable for all of his or her criminal acts, the aider and abettor is liable vicariously only for those crimes committed by the perpetrator which were reasonable foreseeable under the circumstances. Accordingly, an aider and abettor may be found guilty of crimes committed by the perpetrator which are less serious than the gravest offense the perpetrator commits, i.e., the aider and abettor and the perpetrator may have differing degrees of guilt based on the same conduct depending on which of the perpetrator's criminal acts were reasonably foreseeable under the circumstances and which were not."  (Id. at at 1587.)

    Accordingly, some pattern instructions incorrectly inform the jury that all principals are "equally guilty." (See e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 3.00 [Culpability For Crime–Principals–Defined] p. 127, ¶ 1 (West, 6th Ed. 1996).) Moreover, the trial court is required to instruct sua sponte on the general principles of law relevant to the issues raised by the evidence, which includes an absolute duty to instruct on all lesser included offenses. (People v. Barton (CA 1995) 12 C4th 186, 196 [47 CR2d 569]; see also People v. Prettyman (CA 1996) 14 C4th 248, 272 [58 CR2d 827] [recognizing the issue discussed in Woods but not addressing it].)

    It should be noted that People v. Solis (CA 1993) 20 CA4th 264, 273-74 [25 CR2d 184] disagreed with Woods. However, People v. Yarber (CA 1979) 90 CA3d 895 [153 CR 875] observed that it is a "well-established principle that perpetrators and their aiders and abettors may be found guilty of different degrees of a crime." (Id., at 914.)

    See also FORECITE National™ 64.6.1 [Conviction Of Accomplice For Lesser Offense Than Perpetrator].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 8.1; 8.2].

RESEARCH NOTES:

See generally, FORECITE National™ 305.14.1 [Natural And Probable Consequences].

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VOLUME 6 - CHAPTER 65

PRACTICE NOTE: In People v. Castillo UNPUBLISHED (CA 1991) 232 CA3d 132 [283 CR 636], the court held that the natural and probable consequences doctrine should not be extended to allow liability for murder to be predicated upon the consequences accruing from the commission of a misdemeanor.

RESEARCH NOTES:

See generally, FORECITE National™ 305.14.1 [Natural And Probable Consequences].