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65.4 Instruction Requirements

    65.4.1 Natural And Probable Consequences: Objective Reasonable Person Standard
    65.4.2 Natural And Probable Consequences: Limited To Circumstances Known To The Defendant At The Time
    65.4.3 Natural And Probable Consequences: Instruction On Elements Of Uncharged Target Offense
    65.4.4 Natural And Probable Consequences: Jury Must Unanimously Agree Upon The Acts Constituting The Target Offense
    65.4.5 Natural And Probable Consequences: Requirement That Perpetrator Be Proven Guilty Of The Target Crime
    65.4.6 Natural And Probable Consequences: Consideration Of All Circumstances
    65.4.7 Relevance Of Intoxication To Natural And Probable Consequences
    65.4.8 Natural And Probable Consequences -- Use Of Perpetrator's Name If Known
    65.4.9 Natural And Probable Consequences Must Not Be Based On Target Offense In Abstract

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RATIONALE: Like other objective standards, the natural and probable consequences doctrine should be applied to a reasonable person in the defendant's situation.

POINTS AND AUTHORITIES: Aider and abettor liability under the natural and probable consequences rule "is not founded on the aider and abettor's subjective view of what might occur. Rather, liability is based on an 'objective analysis of causation;’ i.e., whether a reasonable person under like circumstances would recognize that the crime was a reasonably foreseeable consequence of the act aided and abetted. [Citation]." (People v. Woods (CA 1992) 8 CA4th 1570, 1587 [11 CR2d 231].) "The finding will depend on the circumstances surrounding the conduct of both the perpetrator and the aider and abettor." (Ibid.)

   "Whether the act committed was the natural and probable consequence of the act encouraged and the extent of the defendant's knowledge are questions of fact for the jury." [Internal quote marks omitted.] (People v. Croy (CA 1985) 41 C3d 1, 12, fn 5 [221 CR 592].)

    In sum, accomplice liability under the natural and probable consequences rule "is not founded on the aider and abettor's subjective view of what might occur. Rather liability is based on an objective analysis of causation..." (People v. Woods (CA 1992) 8 CA4th 1570, 1587 [11 CR2d 231]; see also Marshall v. U.S. (DC App. 1992) 623 A2d 551, 563 (Ferren, J., concurring and dissenting); Breland v. Schilling (LA 1989) 550 So2d 609, 611; State v. Linscott (ME 1987) 520 A2d 1067, 1070; State v. Stanfield (WI 1982) 314 NW2d 339, 344.) "The finding will depend on the circumstances surrounding the conduct of both the perpetrator and the aider and abettor." (Woods, 8 CA4th at 1587.) This requires a determination of "whether a reasonable person under like circumstances would recognize that the crime was a reasonably foreseeable consequence of the act aided and abetted." (Ibid.)

    See also FORECITE National™ Chapter 48 [Objective Unreasonableness (Reasonable Person Standard)].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

PRACTICE NOTE: "Probability" Is Higher Standard Than "Foreseeability." Although the courts are prone to use the terms "reasonable foreseeability" and "probable" interchangeably, there is no doubt that "probability" requires greater proof than "foreseeability." (See People v. Nguyen (CA 1993) 21 CA4th 518, 535 [26 CR2d 323]; see also People v. Brigham (CA 1989) 216 CA3d 1039, 1047-8 [265 CR 468].)

RESEARCH NOTES:

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

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RATIONALE: A person should not be held liable under a standard which is measured by circumstances about which the person was not aware.

POINTS AND AUTHORITIES: In making the objective, reasonable person determination of whether the charged offense is a natural and probable consequence of the target offense (see FORECITE National™ 65.4.1 [Natural And Probable Consequences: Objective Reasonable Person Standard]), the jury should only consider "the circumstances leading up to the last act by which the participant directly or indirectly aided or encouraged the principal actor in the commission of the crime. [Citation]." (People v. Nguyen (CA 1993) 21 CA4th 518, 532 [26 CR2d 323]; see also FORECITE National™ 65.4.6 [Natural And Probable Consequences: Consideration Of All Circumstances].) This is so because "[a] person who aids and abets before the fact can only act in light of the circumstances prevailing before the fact. In contrast, a person who was present at the commission of a crime for the purpose of assisting in its perpetration has additional opportunity to observe and understand the manner in which the target offense will be committed." (Nguyen, 21 CA4th at 531.)

   Hence, in a case where the defendant has aided and abetted before commission of the target offense, the jury should be instructed to limit its consideration of the natural and probable consequence issue to the circumstances which were actually known to the defendant. Otherwise, there is a danger that a finding of the requisite intent for aiding and abetting liability may be based upon circumstances about which the defendant was unaware.

   Thus, the instructions should require that the natural and probable consequences be judged on facts and circumstances which were not known to the defendant at the time that he or she aided and abetted the target offense.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

RESEARCH NOTES:

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

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    65.4.3    Natural And Probable Consequences: Instruction On Elements Of Uncharged Target Offense

RATIONALE: Because the natural and probable consequences depends on the intent to commit a target or predicate offense, full instruction on the elements of the target offense should be given to the jury.

POINTS AND AUTHORITIES: People v. Prettyman (CA 1996) 14 C4th 248, 269 [58 CR2d 827] held that the trial court is obligated to instruct sua sponte on target offenses which the prosecution elects to rely upon as a predicate for the "natural and probable consequences" theory of liability. If the prosecutor does not rely on this doctrine, the trial court is under no duty to instruct the jury on it. (Prettyman, 14 C4th at 270.) Alternatively, the court may ask the prosecutor if he or she wants the jury instructed on that rule, and if so what target crime or crimes the prosecutor believes to be appropriate. However, once the trial court, without a request therefor, decides to instruct the jury on the natural and probable consequences rule, it has a duty to issue instructions identifying and describing each potential target offense supported by the evidence. (Ibid.)

    Instruction upon the "natural and probable consequences" rule may only be triggered by substantial evidence of a "close connection" between the target crime aided and abetted and the offense actually committed. (Prettyman, 14 C4th at 269.)

    See also FORECITE National™ 65.1.1 [Natural And Probable Consequence: Prejudicial Impact Of The Failure To Instruct On Elements Of Uncharged Target Offense].

    See FORECITE National™ 66.1.2 [Attempt: Requirement Of Intent To Commit Every Element Of The Underlying Offense].

    See FORECITE National™ 92.9.2.2 [Felony Murder: Instruction On Elements Of Underlying Felony].

    See FORECITE National™ 68.2 [Accessory After the Fact: Defense Theory That Elements Of Underlying Felony Were Not Committed].

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

NOTE: Under the Prettyman analysis the jury should be instructed upon all elements of the target offense and should be required to find that those elements were satisfied beyond a reasonable doubt.

RESEARCH NOTES:

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

    You may not find the defendant guilty of _____________ (charged offense) unless the prosecution proves beyond a reasonable doubt that the defendant intentionally aided and abetted the commission of the crime of ______________ (target offense), that _____________ [charged crime] was committed, and that under the circumstances, _________________ [charged crime] was a natural and probable consequence of  ________________ (target offense).  This requires that you make the following determination:

    1.    You must first decide whether the defendant intentionally aided and abetted the crime of  ______________ (target offense).

    The elements of aiding and abetting are as follows:

[Insert elements of aiding and abetting]

     The elements of the crime of _______________ (target offense) are the following:

[Insert elements of target offense]

    2.    If the requirements of # 1, above, have been proven beyond a reasonable doubt, you must next decide whether the crime of ________________ (charged crime)  was committed by _________________ (perpetrator).

    The elements of ______________ (charged crime)  which must be proven beyond a reasonable doubt are the following:

[Insert elements of charged offense]

    3.    If the requirements of # 1 and # 2, above, have been proven beyond a reasonable doubt you must next decide whether under the circumstances, _______________ (charged crime) was a natural and probable consequence of _______________ [target offense].

    If you are not satisfied that all the requirements of # 1, # 2 and # 3, above, have been proven beyond a reasonable doubt, you must find the defendant not guilty.

[Cf. WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 406 [Party To Crime: Aiding And Abetting: The Crime Charged Is The Natural And Probable Consequence Of The Intended Crime] p. 1, ¶ 3 (University of Wisconsin Law School, 2000).]

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    But see People v. Prettyman (CA 1996) 14 C4th 248, 267-68 [58 CR2d 827] [no unanimity required as to target offenses which present different theories].

RESEARCH NOTES:

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

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    65.4.5    Natural And Probable Consequences: Requirement That Perpetrator Be Proven Guilty Of The Target Crime

PRACTICE NOTE: By analogy to the law of conspiracy, the natural and probable consequences theory of aiding and abetting/accomplice liability should not apply unless the perpetrator is guilty of the target offense. (See People v. Brigham (CA 1989) 216 CA3d 1039, 1058-64 [265 CR 486] dissenting opinion.; see also People v. Prettyman (CA 1996) 14 C4th 248, 262 fn 4 [58 CR2d 827] [recognizing but failing to resolve the issue of whether the perpetrator's guilt of the target crime is required].)

    See FORECITE National™ 83.3.7.3 [Defense Theory That The Acts Of The Coconspirators Were Independent Of The Conspiratorial Objective Or "Common Design"].

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PRACTICE NOTE: Liability for aiding and abetting under the natural and probable consequences doctrine is determined by whether a reasonable person in the defendant's situation should have known that the charged offense was a reasonably foreseeable consequence of the act which was aided and abetted or which was the object of the conspiracy. (See FORECITE National™  Chapter 48 [Objective Unreasonableness (Reasonable Person Standard)].) Accordingly, the jury should consider all circumstances leading up to the last act by which the participant directly or indirectly aided or encouraged the perpetrator in the commission of the crime. (Ibid.) Most standard pattern instructions do not make this clear and should be clarified upon request. (See e.g., People v. Aguilera UNPUBLISHED PORTION (12/19/96, H013728) 51 CA4th 1151 [59 CR2d 587].)

BRIEFING AVAILABLE:  To read the unpublished portion of People v. Aguilera click here. [Opinion Bank # 0-222].)

RESEARCH NOTES:

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

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PRACTICE NOTE: People v. Mendoza (CA 1998) 18 C4th 1114, 1133 [77 CR2d 428] limited the applicability of intoxication to the question of whether the defendant had the required mental state to be an aider and abettor. According to Mendoza, intoxication is not relevant on the question of whether a charged crime was a natural and probable consequence of the target crime. However, the natural and probable consequences doctrine is based on objective reasonableness. (See People v. Woods (CA 1992) 8 CA4th 1570, 1587 [11 CR2d 231].) Hence, the defendant's intoxication should be considered by the jury in determining whether a reasonable person in the defendant's state of intoxication would have foreseen the consequences. (See People v. Ochoa (CA 1993) 6 C4th 1199, 1204 [26 CR2d 23]; see also People v. Humphrey (CA 1996) 13 C4th 1073, 1083 [56 CR2d 142]; People v. Mathews (CA 1994) 25 CA4th 89, 99 [30 CR2d 330]; see also FORECITE National™ 48.1.9 [Reasonable Person Standard: Consideration Of Intoxication].)

RESEARCH NOTES:

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

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    65.4.8    Natural And Probable Consequences -- Use Of Perpetrator's Name If Known

PRACTICE NOTE: In a natural and probable consequences instruction the name of the perpetrator, if known, should be used throughout the instruction to promote clarity. (See WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 406 [Party To Crime: Aiding And Abetting: The Crime Charged Is The Natural And Probable Consequence Of The Intended Crime] example, comment p. 5 (University of Wisconsin Law School, 2000).)

RESEARCH NOTES:

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

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PRACTICE NOTE: Vicarious liability under the natural and probable consequences doctrine requires that the "act committed" be the natural and probable consequence of "any act [the defendant] knowingly aided and encouraged." (People v. Croy (CA 1985) 41 C3d 1, 12, fn 5 [221 CR 592]; accord People v. Durham (CA 1969) 70 C2d 171, 181 [74 CR 262]; People v. Luparello (CA 1986) 187 CA3d 410, 441 [231 CR 832].) Since this is the finding the jury is required to make, the trial court must instruct the jury in accordance with this rule. Otherwise, there can be no assurance the jury has convicted the defendant on a proper legal theory.

    "The determination of whether a particular criminal act was a natural and probable consequence of another criminal act aided and abetted by a defendant requires application of an objective rather than subjective test. [Citations.] This does not mean that the issue is to be considered in the abstract as a question of law. [Citation.]" (People v. Nguyen (CA 1993) 21 CA4th 518, 531 [26 CR2d 323].)

RESEARCH NOTES:

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