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65.2 Limiting The Scope Of The Natural And Probable Consequences Rule

    65.2.1 Natural And Probable Consequences: Insufficiency Of Act Outside Of Common Design
    65.2.2 Natural And Probable Consequences: Limited To Offenses Committed During The Commission Of The Target Offense
    65.2.3 Natural And Probable Consequences: Requirement Of Notice As To Target Offense
    65.2.4 Homicide Is Not A Natural And Probable Consequence Of A Gang Attack
    65.2.5 Homicide Is Not A Natural And Probable Consequence Of Robbery Or Burglary
    65.2.6 Killing Of Third Party Not A Natural And Probable Consequence Of Plan To Kill Another Person
    65.2.7 Robbery Not A Natural And Probable Consequence Of Aiding Illegal Gun Sale
    65.2.8 Natural And Probable Consequences: Application Of Merger Doctrine
    65.2.9 Natural And Probable Consequences: Where The Target Offense Consists Of The Same Act As The Actual Offense
    65.2.10 Natural and Probable Consequence: Requirement Of “Close Connection” Between Target Crime And Charged Crime
    65.2.11 Natural And Probable Consequences Improper For Specific Intent Offense
    65.2.12 Whether Natural And Probable Doctrine Should Apply To Attempts

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RATIONALE: The natural and probable consequences doctrine requires the jury to find that the charged offense was not outside the common design.

POINTS AND AUTHORITIES: It has been held that 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]; see also Ingram v. U.S. (DC App. 1991) 592 A2d 992, 1003-04; Harris v. State (IN 1981) 425 NE2d 154, 156.) Thus, "one 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 People v. Woods (CA 1992) 8 CA4th 1570, 1600-01 [11 CR2d 231], dissenting opinion.)

    For example, in People v. Nguyen (CA 1993) 21 CA4th 518, 531 [26 CR2d 323], the court of appeal relied on the California Supreme Court case of People v. Kauffman (1907) 152 C 331, 337 [92 P 861] to conclude that aiding and abetting liability turns on "whether the collateral criminal act was the ordinary and probable effect of the common design or was a fresh and independent product of the mind of one of the participants, outside of, or foreign to, the common design."

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

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

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PRACTICE NOTE: The cases which have approved the natural and probable consequences doctrine involved fact situations where the charged offense was obviously committed during the commission of the target offense. As recognized in People v. Prettyman (CA 1996) 14 C4th 248, 262 [58 CR2d 827] the decisions most commonly involve situations where either: (1) a defendant aided a confederate in committing an assault during which the confederate also murdered the victim, or (2) a defendant assisted in the commission of an armed robbery, during which a confederate assaulted or tried to kill one of the robbery victims. Hence, the cases do not specifically authorize imposition of criminal liability under the natural and probable consequences doctrine in situations where the charged offense is not committed during the commission of or escape from the target offense.

    People v. Durham (CA 1969) 70 C2d 171 [74 CR 262], a case often cited with approval in the decisions discussing the natural and probable consequences doctrine (see e.g., People v. Prettyman, supra, 14 C4th at 261), includes dicta supporting limitation of the doctrine to crimes committed during the commission of the target offense: "All persons concerned in the commission of a crime . . . are principals and, when two or more are concerned, they are bound by the acts and declarations of each other, when such acts and declarations are part of the transaction in which they are engaged because they are principals . . . ." [Internal quote marks deleted; emphasis added.] Hence, Durham recognized that the natural and probable consequences doctrine should be limited to crimes committed by coprincipals during the transaction in which they are engaged; i.e., the target offense.

    Such a limitation is consistent with the rules regarding other doctrines which base liability upon a predicate felony. For example, felony murder does not apply unless the underlying felony and the killing are part of "a continuous transaction." (People v. Thompson (1990) 50 C3d 134, 171 [266 CR 309].) Therefore, when the evidence may be interpreted to conclude that the underlying felony had ended before the killing occurred, the trial court is under a sua sponte obligation to instruct the jury as to when the underlying felony ends and that murder may not be predicated upon the killing which occurs after the felony has ended. (See People v. Pearch (CA 1991) 229 CA3d 1282, 1299 [280 CR 584]; see also Annotation, What Constitutes Termination Of Felony For Purpose Of Felony-Murder Rule, 58 ALR 3d 851.)

    Similarly, a conspirator is vicariously liable for the acts of a coconspirator committed "in the course of the conspiracy." (See People v. Prettyman, supra, 14 C4th at 261.) If a similar limitation is not also placed upon the natural and probable consequences, it would be so far expanded as to produce absurd results. For example, consider a situation where (A) an employee of a business aids and abets (B) in embezzling money from the business by assisting him in falsifying the books. If two days later (B) falsifies the books on his own, without help from (A), (B)'s conduct could be viewed as being a natural and probable consequence of the first embezzlement which (A) aided and abetted. But, (A)'s liability should not extend to the second embezzlement because that was a separate, independent crime committed after the termination of the first embezzlement. Otherwise, there would be no limit to (A)'s liability for the events he set in motion by aiding and abetting the target offense. If (B) continued to commit additional embezzlements for months or even years, (A) would be liable. Obviously, this absurdity requires that the natural and probable consequences doctrine be limited to crimes committed during the commission of the target offense.

BRIEFING AVAILABLE: Click here. [Brief Bank # B-756].

RESEARCH NOTES:

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

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RESEARCH NOTES:

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

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PRACTICE NOTE: In People v. Godinez (CA 1992) 2 CA4th 492, 500-02 [3 CR2d 325], the judge instructed the jury, pursuant to the aiding and abetting instructions, that homicide is a reasonable and natural consequence to be expected in a gang attack. The court of appeal held that such an instruction deprived the defendant of his/her right to have the jury determine the relevant factual issues in violation of settled due process principles. (See also FORECITE National™ 65.2.6 [Killing Of Third Party Not A Natural And Probable Consequence Of Plan To Kill Another Person]; U.S. v. Andrews (9th Cir. 1996) 75 F3d 552, 556-57 [shooting of passengers by perpetrator was not natural and probable consequence of agreement to "trash" the car]; State v. Holloway (OR 1990) 795 P2d 589, 591-92 [evidence showing that defendant accompanied gang members on drive-by shooting insufficient to support conviction for aiding and abetting the shooting].)

RESEARCH NOTES:

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

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PRACTICE NOTE: In People v. Fauber (CA 1992) 2 C4th 792, 834 [9 CR2d 24], the court held that aiding a robbery or burglary did not give rise to accomplice liability for murder because there was no suggestion that accomplice "had any prior knowledge" that a murder was intended. Hence, the court apparently assumed that murder is not a natural and probable consequence of robbery or burglary.

    This result is also consistent with a related defense to felony murder recognized by statute in some jurisdictions. Under this rule it is a complete defense to a charge of murder in first degree based upon committing burglary in first degree that the defendant did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid commission, was not armed with deadly weapon, or any instrument readily capable of causing death or serious physical injury, had no reasonable grounds to believe that any other participant was so armed, and had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury. (State v. Bockman (WA 1984) 682 P2d 925, 937.)

RESEARCH NOTES:

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

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    65.2.6    Killing Of Third Party Not A Natural And Probable Consequence Of Plan To Kill Another Person

PRACTICE NOTE: When the defendant aids and abets pursuant to a plan to kill one person, the intentional killing of a third party by one of the accomplices is not a natural and probable consequence of the original plan. (See U.S. v. Andrews (9th Cir. 1996) 75 F3d 552, 556 [such a result "would take the natural and probable consequences doctrine to an extreme"].)

    This is so because the actions of the accomplice in shooting the third party are beyond the natural and probable consequences of the plan to kill the other person. (See FORECITE National™ 65.2.1 [Natural And Probable Consequences: Insufficiency Of Act Outside Of Common Design].) The actions of the accomplice are akin to those of a robber who, as part of an agreed scheme to steal a safe, robs the watchman in the building on his own. (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 6.8, p. 158 [asserting that those stealing the safe are not accomplices to the robbery of the watchman under the natural and probable consequences doctrine].) Allowing the jury to infer that the accomplice's actions in killing the third party were the natural and probable consequence of the defendant's aiding and abetting of the original plan to kill the other person would "take the natural and probable consequences doctrine to an extreme, 'inconsistent with more fundamental principles of our system of criminal law.’ [Citation.]"  (LaFave, Scott, Substantive Criminal Law § 6.8(b) at 157 (West, 1986); State v. Holloway (OR 1990) 795 P2d 589, 591-92 [evidence showing that the defendant accompanied gang members on drive-by shooting insufficient to support conviction for aiding and abetting in the shooting]; see also Joshua Dressler, Understanding Criminal Law (1987) § 30.05, p. 426 [remarking that in the context of aiding and abetting, "[t]he natural-and-probable-consequences doctrine has been subjected to substantial criticism"].)

RESEARCH NOTES:

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

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    65.2.7    Robbery Not A Natural And Probable Consequence Of Aiding Illegal Gun Sale

PRACTICE NOTE: See Roy v. U.S. (DC App. 1995) 652 A2d 1098, 1105.

RESEARCH NOTES:

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

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    65.2.8    Natural And Probable Consequences: Application Of Merger Doctrine

PRACTICE NOTE: It is well established that an aider and abettor is guilty of all naturally and probably resulting consequences of the originally contemplated criminal act. (People v. Garrison (CA 1989) 47 C3d 746, 777 [254 CR 257]; People v. Hammond (CA 1986) 181 CA3d 463, 468-69 [226 CR 475].)

    However, when the originally contemplated crime, e.g., an assault, is included within the charged crime, e.g. murder, to hold the defendant vicariously liable for the murder would violate the merger doctrine. (See People v. Ireland (CA 1969) 70 C2d 522 [75 CR 188]; see also FORECITE National™ 92.9.5 [Felony Murder: Merger Doctrine As Defense Theory].) In Ireland, the court held felony murder instruction was improper "when it is based upon a felony which is an integral part of the homicide ..." (Id. at 539.) The court reasoned:

"To allow such use of the felony murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of felonious assault -- a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law ..." (Ibid.)

    The same reasoning should apply to vicarious liability based on the natural and probable consequences doctrine.

NOTE: This result should still apply even if the merger doctrine is not applicable to conspiracy. (See People v. Luparello (CA 1986) 187 CA3d 410, 435-38 [231 CR 832].) Conspiracy is distinguishable from aiding and abetting. As to conspiracy, the law implicitly recognizes the greater threat of criminal agency and explicitly seeks to deter criminal combination by recognizing the act of one as the act of all. That is, it is the "evil plan" which underlies any conspiracy that creates the justification for strict coconspirator liability. Also, the conspiracy's independent threat is reinforced by the fact that it is a separate and distinct crime which "never merges with the resulting substantive offense." [Footnote omitted.] (Luparello, 187 CA3d at 438.)

    On the other hand, aiding and abetting is merely a theory of liability rather than a distinct and independent offense. (People v. Forbes (CA 1985) 175 CA3d 807, 816 [221 CR 275].) Moreover, aiding and abetting liability is not founded upon the formation of an "evil plan." Hence, the vicarious liability of an aider and abettor is much more akin to felony murder vicarious liability than is the law of conspiracy. Accordingly, the principles of Ireland should apply to preclude aider and abettor liability when the originally contemplated crime is an integral part of the charged offense.

RESEARCH NOTES:

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

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PRACTICE NOTE: People v. Laster (CA 1997) 52 CA4th 1450, 1463-65 [61 CR2d 680] held that aiding and abetting liability applies even where the target offense and the charged offense are based upon the same act and the only difference is the perpetrator's state of mind. In so doing, the court disagreed with People v. Rogers (CA 1985) 172 CA3d 502, 515 fn 18 [217 CR 809]. In reaching this result the court of appeal stated that it was necessary for the jury to "consider whether it was reasonably foreseeable that the perpetrator harbored an intent to kill." However, as with other mental-state issues, this strains the logic of the reasonable consequences rule because the actual inquiry should be whether the perpetrator would harbor an intent to kill as a result of the defendant's aiding and abetting the target offense. Such a determination -- i.e., what mental state the perpetrator will form when committing the act -- is speculative, unreliable and unsuitable for the traditional principles of causation. (See e.g., FORECITE National™ 65.1.2 [When Is First Degree Murder A Natural And Probable Consequence Of The Target Offense].)

RESEARCH NOTES:

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

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PRACTICE NOTE: "To trigger application of the 'natural and probable consequences' doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed." (People v. Prettyman (CA 1996) 14 C4th 248, 269 [58 CR2d 827]; see also FORECITE National™ 65.2.4 [Homicide Is Not A Natural And Probable Consequence Of A Gang Attack]; see also FORECITE National™ 65.2.5 [Homicide Is Not A Natural And Probable Consequence Of Robbery Or Burglary]; see also FORECITE National™ 65.2.6 [Killing Of Third Party Not A Natural And Probable Consequence Of Plan To Kill Another Person].)

RESEARCH NOTES:

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

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PRACTICE NOTE: Noting that the natural and probable consequences doctrine has been "harshly criticized" as "both incongruous and unjust," Sharma v. State (NV 2002) 56 P3d 868 held that the doctrine should be applied to specific intent crimes for the reason that "it permits conviction without proof that the accused possessed the state of mind required by the statutory definition of the crime."

    Hence, when the prosecution relies on an aiding and abetting (accomplice liability) theory the jury must find that the defendant specifically intended to further the commission of the charged crime. (Ibid.; see also FORECITE National™ 64.1.1 [Accomplice Liability Requires A Specific Intent Mens Rea].

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PRACTICE NOTE: See Sharma v. State (NV 2002) 56 P3d 868 [natural and probable consequences doctrine should be applied to specific intent crimes such as an attempt because "it permits conviction without proof that the accused possessed the state of mind required by the statutory definition of the crime."