Brief Bank # B-682 (Re: F 3.02e [When Is First Degree Murder A Natural And Probable Consequence Of The Target Offense].)
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II.
IN THE ATTEMPTED MURDER COUNT, THE JURY WAS NOT INSTRUCTED AS TO THE MENS REA NECESSARY FOR ESTABLISHING APPELLANT’S CULPABILITY AS AN AIDER IN CONNECTION WITH THE FINDING OF PREMEDITATION.
Both the California and the United States Supreme Courts have consistently disapproved of criminal liability based upon a “strict liability” interpretation of a statute which would permit culpability despite the defendant’s ignorance of the facts which make an act punishable. (See People v. Simon (1995) 9 Cal.4th 493, 519-522; Staples v. United States (1994) 511 U.S. ___ [128 L.Ed.2d 608, 114 S.Ct. 1793]; Lambert v. California (1957) 355 U.S. 225 [2 L.Ed.2d 228, 78 S.Ct. 240].) “(W]e are mindful that ‘[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.’ [Citations.]” (People v. Simon, supra, 9 Cal. 4th at 519. The issue is one of federal and state due process (id. at 520; Lambert v. California, supra, 355 U.S. at 228 [2 L.Ed.2d at 231]), and although there are “’generally disfavored’”, exceptions, “felony offenses which bear harsh punishment are not the type of ‘public welfare’ offenses in which the court will readily dispense with a mens rea requirement when construing a statute.” (People v. Simon, supra, 9 Cal.4th at 520; ibid, at fn. 17.)
In Count 1 of the information, appellant was charged with the “substantive offense” of attempted murder; in seeking a jury finding of premeditation, the prosecution was attempting to invoke “a penalty provision specifying a greater term” for that offense. (People v. Bright (1996) 12 Cal.4th 652, 668.) Much greater: A premeditation finding increases the sentence for attempted murder from a maximum of nine years to an indeterminate life term. (§ 664, subd. (a).) [Footnote 1] Consistent with the federal and state constitutions, the statutory provision for such a finding cannot be construed so as to permit strict liability.
Where the defendant who actually perpetrated the attempted murder is being prosecuted, there is no problem: The necessary finding clearly defines a mental element, by reference to the identical finding as a basis for first degree murder in section 189. “A finding of first degree murder on a theory of premeditation and deliberation is proper only when the slayer killed as the result of careful thought and weighing of considerations, as a deliberate judgment or plan, carried on coolly and steadily, especially according to a preconceived design. [Citations.]” (People v. Bunyard (1988) 45 Cal.3d 1189, 1214.) But where the defendant is being prosecuted for attempted murder as an accomplice, the standard jury instructions permit a finding of premeditation without any determination whatsoever of the defendant’s mens rea beyond that required for the substantive offense of attempted murder. “There is no question that an aider and abettor must have criminal intent in order to be convicted of a criminal offense. [Citations.]” (People v. Beeman (1984) 35 Cal.3d 547, 556.) Because the jury instructions in the instant case omitted this element, the finding of premeditation must be reversed.
As the accused driver of a car in a drive-by shooting, appellant was prosecuted for attempted murder as an accomplice. Thus, the jury was instructed according to aiding and abetting theory. (CALJIC Nos. 3.00, 3.01, 3.02; CT 614-616; RT 1235-1236.) The court separately identified both “those who directly and actively commit or attempt to commit the act constituting the crime” and “those who aid and abet the commission or attempted commission of the crime” as “principals in the crime thus committed or attempted . . . .” (RT 1235; CALJIC No. 3.00.) The court then explained the distinction between “[a] person who aids and abets the commission or attempted commission of a crime,” and “the perpetrator” of the crime, adding that the aider must be aware of the “unlawful purpose of the perpetrator . . . .” Moreover, the aider must act with “the intent or purpose of committing, encouraging, or facilitating the commission of the crime . . . .” (RT 1235; CALJIC No. 3.01.)
In order to convict appellant of the offense of attempted murder as an aider, the jury was told, first, that there must have been “a certain specific intent in the mind of the perpetrator.” (RT 1229; CT 604; CALJIC No. 3.31. That intent was defined for the jury as follows: “The person committing such act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.” (RT 1231; CT 606; CALJIC No. 8.66.)
Based on the above instructions, the jury could have found appellant guilty of the substantive offense of attempted murder as an aider. But at that point, a separate finding was required as to the penalty provision triggered by premeditation. (§ 664, subd. (a).) The finding that appellant was aware of and intentionally acted in support of the perpetrator’s specific intent to kill is clearly insufficient to establish premeditation. “[T]he legislative classification of murder into two degrees would be meaningless if ‘deliberation’ and ‘premeditation’ were construed as requiring no more reflection than may be involved in the mere formation of a specific intent to kill. [Citations.]” (People v. Anderson (1968) 70 Cal.2d 15, 26.)
The court gave a single instruction dealing with premeditation. (RT 1231-1232; CT 608-609; CALJIC No. 8.67.) [Footnote 2] While this lengthy instruction offered the jury a great deal of information to be used in determining whether “the crime attempted was . . . premeditated murder[,]” its only comment as to who must have had the requisite mental state was a reference to “the would be slayer[.]” That phrase, reasonably construed in the context of accomplice liability according to the above instructions, referred to the perpetrator, not the aider. It is the perpetrator and not the aider, after all, who must have intended to “slay” the victim. (People v. Garrison (1989) 47 Cal.3d 746, 778.) Thus, the standard jury instruction permits a finding of premeditation against a defendant whose only connection with the attempted murder was as an aider aware of the perpetrator’s intent to kill, but not of his premeditation.
The accomplice liability issue is not resolved by the other pertinent instructions; on the contrary, they help to create the problem. “It is the intent to encourage and bring about the criminal conduct of the planned offense which the jury must find, not the specific intent that is an element of the target offense. [Citation.]” (People v. Francisco (1994) 22 Cal.App.4th 1180, 1189, emphasis added. The standard jury instructions are worded accordingly: CALJIC Nos. 3.00, 3.01, 3.31 and 8.66 (all discussed above) apply to determination of culpability for the “crime” of attempted murder–which requires only the specific intent to kill. By their terms, they do not apply to the separate finding of premeditation described only in CALJIC No. 8.67. [Footnote 3]
Thus, as presented to the jury according to the standard instructions, a defendant charged with premeditated attempted murder as an aider is denied due process and a fair trial: The jury can–indeed, should–find premeditation without any examination of the defendant’s own intent, knowledge or any other mens rea. Moreover, in the context of the premeditation finding, the instructions entirely remove the issue of the aider-defendant’s intent from the jury, violating due process for that reason alone, and requiring reversal. (People v. Kobrin (1995) 11 Cal.4th 416, 428.)
FOOTNOTES:
Footnote 1: At subdivision (a), section 664 makes special provision for sentencing in attempted murder cases: “ . . . [I]f the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punishable in the state prison for life with the possibility of parole; provided, further, that if the crime attempted is any other one in which the maximum sentence is life imprisonment or death the person guilty of the attempt shall be punishable by imprisonment in the state prison for a term of five, seven, or nine years. . . . .”
Footnote 2: As read to the jury, the instruction provided in its entirety as follows: “It is also alleged in Count One of the Information that the crime attempted was willful, deliberate, and premeditated murder. [¶] If you find the defendant guilty of attempt to commit murder, you must determine whether this allegation is true or not.
“‘Willful, means intentional. [¶] ‘Deliberate’ means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. [¶] ‘Premeditated’ means considered beforehand.
“If you find that the attempt to commit murder was preceded and accompanied by a clear, deliberate intent to kill which was the result of deliberation premeditation [sic], so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is attempt to commit willful, deliberate and premeditated murder.
“The law does not undertake to measure in units of time, the length of the period before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. The true test is not the duration of time but, rather, the extent of the reflection. [¶] A cold, calculated judgment and decision may be arrived at in a short time; but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation.
“To constitute willful, deliberate, and premeditated attempt to commit murder, the would-be slayer must weigh and consider the question of killing and the reasons for and against such a choice and having in mind the consequences, decides to kill and. makes a direct but ineffectual act to kill another human being.
” The People have the burden of proving the truth of this allegation. if you have a reasonable doubt that it is true, you must find it to be not true.
“You will include in your finding on that question in your verdict [sic], using a form that will be supplied for that purpose.” (RT 1231-1232, emphasis added.)
Footnote 3: Similarly, the issue is not resolved by CALJIC No. 3.02 (CT 616; RT 1235-1236) which deals with accomplice liability for “natural and probable consequences.” Like the others, this instruction refers only to culpability for “any other crime”’–not to the mens rea of a particular crime. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1379 [distinguishing between “the specific intent of the perpetrators of the crime to commit the target offense and the specific intent of an aider and abettor to aid, facilitate, encourage, or promote criminal conduct.” (Emphasis in original.)
