v.
Defendant and Appellant.
P.O. Box 40105
III.
THE TRIAL COURT’S GIVING OF CALJIC NO. 3.01 (DEFINITION OF AIDING AND ABETTING) AND CALJIC NO. 3.02 (LIABILITY OF PRINCIPALS FOR NATURAL AND PROBABLE CONSEQUENCES) VIOLATED APPELLANT’S RIGHT TO DUE PROCESS AND A FAIR TRIAL.
The trial court here gave CALJIC No. 3.01 (definition of aiding and abetting) and CALJIC No. 3.02 (1992 revision)(liability of principals for natural and probable consequences).
CALJIC No. 3.01 as given by the court read as follows:
“A person aids and abets the commission or attempted commission of a crime when he,
“(1) with knowledge of the unlawful purpose of the perpetrator and
“(2) with the intent or purpose of committing, encouraging, or facilitating the commission of the crime, by act or advice aids, promotes, encourages or instigates the commission of the crime.
“A person who aids and abets the commission or attempted commission of a crime need not be personally present at the scene of the crime.
“Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.
“Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.” (CT 1501.)
The trial court also gave the 1992 revision of CALJIC No. 3.02 which read as follows:
“One who aids and abets is not only guilty of the particular crime that to his confederates are contemplating committing, but he is also liable for the natural and probable consequences of any criminal act that he knowingly and intentionally aided and abetted. You must determine whether the defendant is guilty of the crime originally contemplated and, if so, whether the crime charged was a natural and probable consequence of such originally contemplated crime.” (CT 1506.)
The giving of these two instructions in this case was error on two separate grounds. First, CALJIC No. 3.01 does not sufficiently and clearly set forth the different legal requirements for the actus reus and mens rea for aiding and abetting. That instruction does not clearly state that there is a separate actus reus for aiding and abetting which is distinct from the required mental states of knowledge and intent to encourage or facilitate the commission of a crime.
The second ground this instruction is erroneous is that neither of those instructions specifically informed the jury that it must determine whether the aider and abettor is liable for the natural and probable consequences of any criminal acts on the basis of an objective test. That test is based on all of the circumstances a reasonable person in the defendant’s position should have known would foreseeably result in the consequence of the act aided and abetted by the defendant.
A. Summary of legal standards for determining aiding and abetting liability and the natural and probable consequences doctrine.
It is well settled that mere presence at the scene of a crime is not sufficient to constitute aiding and abetting; nor is the failure to take action to prevent the crime sufficient to constitute aiding and abetting as a co-principal pursuant to Penal Code section 31. (People v. Durham (1969) 70 Cal.2d 171, 181; People v. Nguyen (1993) 21 Cal.App.4th 518, 530.)
In the seminal decision of People v. Beeman (1984) 35 Cal.3d 547, the California Supreme Court held that to find a defendant guilty under the theory of aiding and abetting, it must be proved that the aider and abettor acted with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing or of encouraging or facilitating commission of the offense. (Id. at p. 560.) If the offense required specific intent, the aider and abettor must share the specific intent of the perpetrator. By “share,” the Supreme Court meant that the aider and abettor must “know the full extent of the perpetrator’s criminal purpose and give aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” (Id. at p. 560.) The liability of an aider and abettor also extends to the natural and reasonable consequences of the acts he or she knowingly and intentionally aids and encourages. (Ibid.)
The Supreme Court in People v. Croy (1985) 41 Cal.3d 1, 11-12, expounded upon this theory of liability for aiders and abettors. The Croy court explained at length how the required mental state for an aider and abettor relates to that of the perpetrator and the doctrine of liability for the natural and probable consequences of their acts. The Supreme Court explained:
“The requirement that the jury determine the intent with which a person tried as an aider and abettor has acted is not designed to ensure that his conduct constitutes the offense with which he is charged. His liability is vicarious. Like the conspirator, whose liability is predicated on acts other than and short of those constituting the elements of the charged offense, if the acts are undertaken with the intent that the actual perpetrator’s purpose be facilitated thereby, he is a principal and liable for the commission of the offense. Also, like a conspirator, he is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by temperature person he aids and abets.” (Id. at p. 12, fn. 5, citation omitted.)
The Supreme Court in Croy further expounded upon this theory of aiding and abetting by explaining:
“It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense openly committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury.” (Id. at p. 12, fn. 5, citation omitted.)
The determination whether a particular crime 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. (People v. Woods (1992) 8 Cal.App.4th 1570, 1587; People v. Nguyen, supra, 21 Cal.App.4th at p. 531.) The question of whether the ultimate crime was a natural and probable consequence of the target offense is not a question of law to be decided in the abstract, but is a factual question to be resolved by the jury in light of all of the circumstances surrounding the incident. (People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5; People v. Durham, supra, 70 Cal.2d at p. 181.) That issue does not turn on the defendant’s objective state of mind, but depends upon whether, under all of the circumstances, a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. (People v. Woods, supra, 8 Cal.App.4th at p. 1587, People v. Nguyen, supra, 21 Cal.App.4th at p. 531.)
The aider and abettor must form the requisite intent to facilitate a criminal act and, in fact, aid, promote, encourage or facilitate the crime before or during the commission of that crime. It is legally impossible for the aider and abettor to form the requisite intent after the commission of the offense, or in fact aid or encourage or facilitate that crime after the commission of that crime has ended. (People v. Cooper (1991) 53 Cal.3d 1158, 1164; People v. Esquivel (1994) 28 Cal.App.4th 1386, 1396-1397.)
B. The trial court erroneously gave CALJIC No. 3.01.
The trial court erred by giving the standard version of CALJIC No. 3.01 which defines aiding and abetting. That instruction does not clearly define for the jury the different legal requirements of actus reus and mens rea for aiding and abetting. The requisite mental state for a principal tried under the theory that he was an aider and abettor is that he had knowledge of the unlawful purpose of the perpetrator, and intentionally encouraged or facilitated the commission of that crime or the target criminal act or crime. In the standard instruction, subparagraph (2) of CALJIC No. 3.01 merges the actus reus requirement for aiding and abetting into the mens rea requirement for aiding and abetting. Subparagraph (2) incorrectly incorporates the actus reus requirement of “by act or advice aids, promotes, encourages or instigates the commission of a crime” with the mens rea requirement of “with the intent or purpose of committing, encouraging, or facilitating the commission of a crime. …”
It is axiomatic that the law does not punish for intent alone, or an act alone. There must be a concurrence or joint union of both act and intent. (People v. Green (1980) 27 Cal.3d 1, 53; Lupo v. Superior Court (1973) 34 Cal.App.3d 657, 661.) The “act or advice” language quoted above is a statement of the actus reus for aiding and abetting rather than the mens rea. (See People v. Beeman (1984) 34 Cal.3d 547, 562; Penal Code § 31.)
CALJIC No. 3.01 in its current state fails to clearly convey the actus reus requirement as to aiding and abetting. The current language of that instruction is ambiguous as to whether the “act or advice” element is part of the mens rea or the actus reus of the crime. As currently phrased, the language “by act or advice” immediately follows the language describing the necessary intent. Therefore, the jury could reasonably conclude that the defendant need only intend to act or advise, rather than actually act or advise with the required mental state of knowledge and intent to encourage or facilitate.
This instructional error was especially prejudicial here because appellant was tried, in part, under the theory that he was an aider and abettor in the kidnaping of Mr. M and Mr. G. The prosecutor argued that they were all aiders and abettors and principals for first degree felony murder and were also liable for murder under the doctrine of natural and probable consequences. (RT 4795-4797.) Appellant, unquestionably, was not the direct perpetrator of the alleged kidnaping of Mr. M and Mr. G. He could only be convicted of those counts, and for the natural probable consequences of the kidnaping, as an aider and abettor and/or co-conspirator.
It is entirely possible that the jury based its guilty verdicts on the kidnaping and murder charges on the theory that appellant aided and abetted a kidnaping and that the natural and probable consequence of that kidnaping was murder. Given the general verdict returned by the jury, it is impossible to determine the precise legal theory the jury based its guilty verdicts on. Therefore, appellant’s convictions for first degree murder and two counts of kidnaping must be reversed because the jury may have based its verdict on a legally erroneous definition of aiding and abetting.
As discussed in Argument I, ante, it is well settled in a criminal case that, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. St. Martin, supra, 1 Cal.3d 531; People v. Sedeno, supra, 10 Cal.3d at p. 716.) Even in the absence of a defense request here, the trial court had an obligation to correctly instruct on the fundamental principles of aiding and abetting. [Footnote 1]
C. The trial court erred by not modifying CALJIC No. 3.02.
The trial court also erred by not modifying CALJIC No. 3.02 to inform the jury that the determination of whether a particular crime was a natural and probable consequence of a criminal act requires the application of an objective rather than subjective test. (People v. Woods, supra, 8 Cal.App.4th at p. 1587; People v. Nguyen, supra, 21 Cal.App.4th at p. 531.) Given that the question of whether the ultimate crime was the natural and probable consequence of the target offense was a factual question for the jury (People v. Croy, supra, 41 Cal.3d at p. 12, fn.5), the court should have specifically instructed the jury that
a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. (Woods, supra, at p. 1587; Nguyen, supra, at p. 531.)
Whether the shooting of Mr. M was a natural and probable consequence of his kidnaping was a critical factual question for the jury to decide. The evidence suggested one possible theory that appellant did not knowingly and intentionally aid and abet the kidnaping of Mr. M, and that the shooting of Mr. M was an independent act done under the heat of passion in response to adequate provocation by Mr. M. Whether the killing of Mr. M was in fact a natural and probable consequence of the kidnaping was a key factual question which only could have been resolved by the jury if they were properly instructed to apply an objective test. Unfortunately for appellant, the trial court did not inform the jury that it should apply an objective test to determine whether a reasonable person in appellant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act he allegedly aided and abetted.
By not so modifying CALJIC Nos. 3.01 and 3.02, the trial court deprived appellant of his state and federal constitutional rights to a fair trial, due process and a jury trial, and there is a reasonable likelihood the jury applied those instructions in an unconstitutional fashion (Boyde v. California, supra.) Because of these erroneous jury instructions, appellant’s convictions for first degree murder and in two counts of kidnaping must be reversed.
FOOTNOTE:
The trial court should have modified CALJIC No. 3.01 to read as follows: “A person aids and abets the commission or attempted commission of a crime when he or she, by act or advice aids, promotes, encourages or instigates the commission of a crime: (1) with knowledge of the unlawful purpose of the perpetrator, and (2) with the intent or purpose of committing, encouraging or facilitating the commission of a crime.”
