F 3.02

F 3.02 n1 No Murder Liability For Aiding And Abetting Misdemeanor.

In People v. Castillo DEPUBLISHED (91) 232 CA3d 132 [283 CR 636], the court held that the natural and probable consequences doctrine (see FORECITE F 3.02a and FORECITE F 3.02c) should not be extended to allow liability for murder to be predicated upon the consequences accruing from the commission of a misdemeanor. [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-525.]

F 3.02 n2 Natural and Probable Consequences: Objective Standard.

Aider and abetter liability under the natural and probable consequences rule “is not founded on the aider and abetter’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 (92) 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 abetter.” (Ibid.)

F 3.02 n3 Instruction On Uncharged Elements Of Target Offense.

Court of Appeal History

After rehearing, the First District Court of Appeal reversed the conviction in People v. Mouton (93) 15 CA4th 1313, 1318-19 [19 CR2d 423]. Mouton held that the trial court has a sua sponte duty to 1) specify and define the target offense upon which aiding and abetting liability is predicated and 2) instruct the jury that the target offense must be proven beyond a reasonable doubt.

In People v. Solis (93) 20 CA4th 264 [25 CR2d 184], the court disagreed with People v. Mouton (93) 15 CA4th 1313, 1318-19 [19 CR2d 423] and held that it is not necessary to instruct on the elements of the target offense when there was no issue raised at trial as to the criminality of the targeted acts. The Solis court reached this result in reliance upon the rule that if the defendant aids and abets any criminal act, the defendant is liable for any other crime which is the “natural and probable consequence of the act encouraged.” (Solis 20 CA4th at 270.) On this basis, the court concluded that it was unnecessary for the jury to be instructed upon the elements of the target offense so long as they are told that the target offense must be criminal and that the charged offense must be a natural and probable consequence of the target offense. (Solis 20 CA4th at 274.)

The problem with this analysis is that without instruction upon the elements of the target offense, the issue of the criminality of the target offense is effectively removed from the jury’s consideration. For example, as the Solis court recognized, encouraging a carpool of gang members to drive by and yell insults at rival gang members would not constitute the encouragement of a criminal act and could not be the predicate for aiding and abetting liability. However, without instructional guidance as to what constitutes a criminal act, the jury could reasonably conclude that such acts are criminal and sufficient to support a guilty verdict. (See People v. Williams (75) 13 C3d 559, 563 [119 CR 210] [failure to define “felony” for purposes of a burglary instruction allowed the triers of fact to indulge in unguided speculation as to what kinds of criminal conduct are serious enough to warrant punishment as felonies] [quoting People v. Failla (66) 64 C2d 560, 564 [51 CR 103].)

The Solis court’s observation that the criminality of the target offense was not contested by the defense (Solis, 20 CA4th at 274, fn 8) does not excuse the failure to adequately instruct upon this element of the charge. Rather, such a consideration goes to the analysis of whether or not the failure to instruct requires reversal. For example, in People v. Cummings (93) 4 C4th 1233, 1316 [18 CR2d 796], the failure to instruct upon the elements of robbery was reversible error even though the evidence of guilt was overwhelming and the defense did not contest the existence of those elements. The Solis situation is operatively identical to the Cummings case since the failure to instruct upon the elements of the target offense deprived the jury of any basis upon which to determine the question of criminality just as the failure to instruct upon robbery in Cummings deprived the jury of any basis upon which to determine whether the defendant had committed robbery.

The Solis decision also implicates the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments), by concluding that the defendant had no right to full instruction upon an element of the charge simply because such instruction would “have a tendency to extend and confuse jury deliberations….” The fact that complete and correct jury instructions would be extremely complex does not relieve the state of its obligation to obtain a jury determination of all necessary elements of the charge before convicting and imprisoning a citizen. If the laws are too complex for the jury to easily understand, then it is up to the legislature to change those laws if it so desires.

[Additional briefing on the requirement of instruction upon CJ 3.02 and the applicable target offenses is available to FORECITE subscribers. Ask for Brief Bank # B-530b.]

Supreme Court History

In People v. Prettyman (96) 14 C4th 248 [58 CR2d 827], the California Supreme Court agreed with Mouton and held that instruction on the elements of the target offense is required whenever the prosecution seeks to have the jury instructed on the natural and probable consequences doctrine and when substantial evidence supports such an instruction. The court need not instruct on all target offenses, only the ones the prosecution wishes the jury to consider. If no request for specific target offenses is made, the trial court should inquire as to the particular target offenses on which the instruction is desired. (Prettyman, at 269, fn 9.)

Also, in Prettyman the court recognized the issue discussed in People v. Woods (92) 8 CA4th 1570, 1585 [11 CR2d 231] [that an aider and abettor can be found guilty of a crime less than the ultimate offense committed by the perpetrator], but did not resolve the issue. (See FORECITE F 3.00 n5.)

Prejudicial Impact Of The Failure To Instruct. People v. Hickles (97) 56 CA4th 1183 [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 (97) 55 CA4th 721, 729-31 [64 CR2d 282] concluded, in reliance upon People v. Prettyman (96) 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. Accordingly, the error 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.

F 3.02 n4 Requirement That Jury Find Target Offense To Have Been Committed.

See FORECITE F 402 Note 9.

F 3.02 n5 Jury Must Unanimously Agree Upon The Acts Constituting The Target Offense.

[See Brief Bank # B-526 (instruction on elements of target offense) for briefing on this issue.]

(But see People v. Prettyman (96) 14 C4th 248, 267-68 [58 CR2d 827] [no unanimity required as to target offenses which present different theories].)

F 3.02 n6 Homicide Not A Natural And Probable Consequence Of A Gang Attack.

In People v. Godinez (92) 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 F 3.02 n12; State v. Holloway (Or.App. 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 in the shooting].)

(See also FORECITE F 6.12a.)

F 3.02 n7 Homicide Not A Natural And Probable Consequence Of Robbery Or Burglary.

In People v. Fauber (92) 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.

F 3.02 n8 No Aider And Abettor Liability When Defendant Is Perpetrator Of “Target” Offense.

In People v. Olguin (94) 31 CA4th 1355, 1376 [37 CR2d 596], the court concluded that the perpetrator of a target offense is liable for the natural and probable consequences of that offense just as is an aider and abettor of the target offense. (But see FORECITE F 3.02f.)

F 3.02 n9 Aider And Abettor Liability: Guilt As To Target Crime.

See FORECITE F 402 Note 9.

F 3.02 n10 Aider And Abettor’s Liability For Consequences: Application Of Merger (Ireland) Doctrine.

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 (89) 47 C3d 746, 777 [254 CR 257]; People v. Hammond (86) 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 principles set forth by the Supreme Court in People v. Ireland (69) 70 C2d 522 [75 CR 188]. 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 for an aider and abettor even though the application of Ireland to conspiracy vicarious liability has been rejected in People v. Luparello (86) 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 co-conspirator 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.” [Fn 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 (85) 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.

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]

ALERT: People v. Farley (2009) 46 C4th 1053, 1118-20 overruled People v. Wilson (1969) 1 C3d 431 which precluded the application of the felony murder rule to assaultive burglaries. However, Wilson still applies to crimes committed prior to the finality of the Farley decision.

[See Brief Bank # B-527 for additional briefing on this issue.]

F 3.02 n11 Constitutional Challenge To Natural And Probable Consequences Rule.

A. Negligence Standard Violates Fundamental Common Law Principles. The natural and probable consequences doctrine permits criminal liability of the highest magnitude to be imposed upon an aider and abettor based on the finding that the crime committed by the perpetrator was a “natural and probable consequence” of the target crime which was aided and abetted. (People v. Croy (85) 41 C3d 1, 12, fn 5 [221 CR 592].) Such a result is “inconsistent with more fundamental principles of our system of criminal law. It would permit liability to be predicated upon negligence even when the crime involved requires a different state of mind. [Footnote omitted.] Such is not possible as to one who has personally committed a crime, and should likewise not be the case as to those who have given aid or counsel…otherwise, the legislative classification of offenses would lose all meaning.” (2 LaFave and Scott, Substantive Criminal Law (1986) sec. 6.8, p. 158; see also People v. Smith (97) 57 CA4th 1470, 1479 [67 CR2d 604] [use of natural and probable consequences standard for assault liability was erroneous since it improperly stated a “negligence standard.”

Moreover, because the prohibition against negligence-based criminal liability is firmly rooted in the common law, a state’s violation of that prohibition is a fundamental due process abridgement. (See Montana v. Eglehoff (96) 518 US 37 [135 LEd2d 361; 116 SCt 2013] [plurality opinion] [limitation on intoxication defense does not offend due process because intoxication was not a defense at common law]; see also Schad v. Arizona (91) 501 US 624 [115 LEd2d 555; 111 SCt 2491].) [Additional briefing on this issue is available to FORECITE subscribers. See Brief Bank # B-828 and ask for Brief Bank # B-752(a).]

B. Objective Standard Permits Liability Without Any Actual Awareness Or Intent. The natural and probable consequences doctrine defines an objective standard of culpability — the doctrine is based on what a reasonable person would foresee as “probable and natural consequences” — and then it uses that standard to conclusively impute a higher degree of criminal culpability to a person who may not in fact have foreseen, let alone intended or deliberated, such consequences. Thus, for example, in a prosecution for murder, the “natural and probable consequences” doctrine operates as an irrebuttable presumption that a non-killer has malice, even though such a state of mind would not be presumed and would have to be proven in order to convict the actual killer. (See 2 LaFave and Scott, Substantive Criminal Law (1986) sec. 6.8, p. 158 [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-752(b)].)

C. Mental State Is Improperly Presumed. While the natural and probable consequences doctrine often appears as part of a general statement of principles in cases revealing a shared intent, it can be applied to extend liability of the accomplice for conduct of the principal outside the accomplice’s conscious objectives. (See People v. Luparello (86) 187 CA3d 410, 435-38 [231 CR 832]; 2 LaFave & Scott, Substantive Criminal Law, 1986, § 6.7b, p. 157.) Hence, the natural and probable consequences doctrine presents “a question of legal causation independent of any intention that the result obtain.” (People v. Rogers (85) 172 CA3d 502, 515 [217 CR 809].)

However, “[i]t is impossible to make this proposition consistent with the usual requirement of intentionality.” (Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine, 73 Cal.L.Rev. 1985, p. 346.) As argued by Justice Wiener in his concurring opinion in Luparello, 187 CA3d at 452, the natural and probable consequences doctrine can produce anomalous results by basing an accomplice’s culpability, not on his own intent, but rather on the intent of the perpetrator or on other circumstances of the crime. Hence, the aider and abettor’s liability is not based on his individual mental state but instead turns on the jury’s finding as to the perpetrator’s mental state. (E.g., if the perpetrator lay in wait, then the aider and abettor is liable for first degree murder, yet if the perpetrator ingested drugs and/or alcohol to the point where he did not in fact harbor the requisite malice, the aider and abettor would presumably be guilty only of voluntary manslaughter.)

Such an anomalous result raises 14th Amendment due process considerations. For example, in Clark v. Jago (6th Cir. 1982) 676 F2d 1099, the jury was instructed that “the essential element of purpose to kill could be found in the mind of the defendant ‘and/or’ his accomplice.” (Id. at 1104.) The 6th Circuit concluded that the charge “could easily have been interpreted to mean” that the accomplice “personally did not have to have purpose to kill,” but that the principle purpose was “sufficient to convict [the accomplice], even if not shared by [the accomplice].” (Id. at 1105.) As so construed, the instruction violated due process by relieving the state of the burden of proving the defendant to be in violation of an essential element of the crime for which he was convicted. (See Sandstrom v. Montana (79) 442 US 510, 520 [61 LEd2d 39; 99 SCt 2450].)

Hence, to the extent that the natural and probable consequences doctrine and the instructions thereon permit the jury to find essential elements of the charge by reference to the perpetrator’s mental state rather than the aider and abettor’s, they are subject to constitutional challenge. (See People v. Castillo DEPUBLISHED (91) 232 CA3d 132, 144 [283 CR 636], recognizing the issue but deferring for further guidance from the California Supreme Court; see also FORECITE F 3.02 n9.)

But see People v. Anderson (91) 233 CA3d 1646 [285 CR 523]; note dissenting opinion at 233 CA3d at 1667-69.

(See FORECITE PG VII(C)(48).)

[See Brief Bank # B-817 for additional briefing on this issue.]

F 3.02 n12 Killing Of Third Party Not A Natural And Probable Consequence Of Plan To Kill Another Person.

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.) 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. 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 (1986) Substantive Criminal Law, § 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.]” (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.”]; U.S. v. Pena (6th Cir. 1993) 983 F2d 71, 72-73 [fact that defendant accompanied driver on car trip, was promised a plane ticket, and knew there was something illegal in the car was insufficient to sustain conviction for aiding and abetting possession of cocaine with intent to distribute]; State v. Holloway (Or.App. 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].)

F 3.02 n13 Foreseeability Rule Inapplicable to Felony Murder.

People v. Escobar (96) 48 CA4th 999, 1018-19 [55 CR2d 883] held that when the defendant has aided and abetted a felony specified in PC 189, the felony murder rule imposes first degree murder when a person is killed during the felony even if the killing was not foreseeable. This is so because the felony murder rule, which imposes strict liability for killings which occur during the commission of specified felonies, is much broader than the aiding and abetting rule.

People v. Dawson (97) 60 CA4th 534 [71 CR2d 33] assumed that the natural and probable consequences doctrine applied to a charge of aiding and abetting a robbery which resulted in a felony murder conviction. (Dawson,60 CA4th at 546 fn 4.) Dawson then held that because the jury was instructed upon the predicate offense of robbery, CJ 3.02 was not required under People v. Prettyman (96) 14 C4th 248, 266-69 [58 CR2d 827].

F 3.02 n14 Aiding And Abetting Liability Where The Target Offense Consists Of The Same Act As The Actual Offense.

People v. Laster (97) 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 (85) 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 F 3.02e.)

F 3.02 n15 Aiding And Abetting: Consideration Of All Circumstances.

Liability for aiding and abetting is determined by whether a reasonable person in the defendant’s position 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. 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. The standard CJ instructions (CJ 3.02 and CJ 6.11) do not make this clear and should be clarified upon request. (People v. Aguilera UNPUBLISHED PORTION (12/19/96, H013728) 51 CA4th 1151 [59 CR2d 587]. [A copy of the UNPUBLISHED portion of People v. Aguilera is available to FORECITE subscribers. Ask for Opinion # 0-222].)

F 3.02 n16 Natural and Probable Consequences Sua Sponte Instruction on Target Offense.

People v. Prettyman (96) 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; see also People v. Sakarias (2000) 22 C4th 596, 627 [94 CR2d 17]; People v. Gonzalez (2002) 99 CA4th 475, 484-85 [121 CR2d 279] [if prosecutor fails to identify any potential target crimes, then there is no duty to sua sponte instruct on target offenses].) 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.)

F 3.02 n17 Natural and Probable Consequence: Requirement Of “Close Connection” Between Target Crime And Charged Crime.

“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 (96) 14 C4th 248, 269 [58 CR2d 827]; see also FORECITE F 3.02 n12, 3.02 n6, and 3.02 n7.)

F 3.02 n18 Relevance Of Intoxication To Natural And Probable Consequences.

People v. Mendoza (98) 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 per CJ 3.02. However, while intoxication is irrelevant for purposes of negating the natural and probable consequences doctrine, because the doctrine is based on objective reasonableness, the defendant’s intoxication must 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 (93) 6 C4th 1199, 1204 [26 CR2d 23]; see also People v. Mathews (94) 25 CA4th 89, 99 [30 CR2d 330]; People v. Humphrey (96) 13 C4th 1073, 1083 [56 CR2d 142].)

F 3.02 n19 Natural And Probable Consequences Must Not Be Based On Target Offense In Abstract.

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 (85) 41 C3d 1, 12, fn 5 [221 CR 592]; accord People v. Durham (69) 70 C2d 171, 181 [74 CR 262]; People v. Luparello (86) 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 (93) 21 CA4th 518, 531 [26 CR2d 323].) [See Brief Bank # B-787a and # B-787b for additional briefing on this issue.]

F 3.02 n20 Assault With Force Likely To Produce Great Bodily Injury Is Not A Natural And Probable Consequence Of Simple Battery.

Assault with force likely to produce great bodily injury (PC 245(a)) should not normally be a natural and probable consequence of aiding and abetting a simple battery. (PC 242.) (See generally People v. Prettyman (96) 14 C4th 248 [58 CR2d 827] [setting forth natural and probable consequences elements]; but see People v. Montes (99) 74 CA4th 1050 [88 CR2d 482].) [See Brief Bank # B-829 for briefing on this issue.]

F 3.02 n21 Natural And Probable Consequences: Applicability To Specific Intent Offenses.

Although the natural and probable consequences doctrine has been validated in California (see FORECITE F 3.02 n11), it has been "harshly criticized" as "both incongruous and unjust." (See Sharma v. State (NV 2002) 56 P3d 868 [doctrine should not 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"].)

F 3.02 n22 Reliance On Natural And Probable Consequences Doctrine Precludes Consecutive Sentencing For Both The Target And Resulting Offenses.

(See People v. Bradley (2003) 111 CA4th 765.)

F 3.02a

Natural And Probable Consequences: Objective Standard

(PC 31)

*Add at end of CJ 3.02 the following:

You may not find the defendant guilty as an aider and abettor unless a reasonable person under like circumstances [in the same situation as the defendant] would have recognized that the crime charged was a natural and probable consequence of the act aided and abetted.

Points and Authorities

“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 (85) 41 C3d 1, 12, fn 5 citing People v. Durham (69) 70 C2d 171, 181 [74 CR 262]; see also People v. Prettyman (96) 14 C4th 248, 291 [58 CR2d 827] (Brown, J., concurring and dissenting); People v. Nguyen (93) 21 CA4th 518, 531-32 [26 CR2d 323]; People v. Smith (97) 57 CA4th 1470, 1479-80 [67 CR2d 604].) [See Brief Bank # B-823 for additional briefing on this issue.]

Aider and abetter liability under the natural and probable consequences rule “is not founded on the aider and abetter’s subjective view of what might occur. Rather liability is based on an objective analysis of causation. (People v. Woods (92) 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 abetter.” (Ibid.) 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; compare People v. Gonzales (2001) 87 CA4th 1, 9 [104 CR2d 247] [conviction for first-degree murder arising from fist fight does not require that defendants knew gun would be used].)

NOTES

“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 (93) 21 CA4th 518, 535 [26 CR2d 323]; see also People v. Brigham (89) 216 CA3d 1039, 1047-8 [265 CR 468].) [Additional briefing on this issue is available to FORECITE subscribers. See Brief Bank # B-823 and ask for Brief Bank # B-6120.

F 3.02b

No Aider And Abettor Liability When Perpetrator Acquitted

(PC 31)

*Add to CJ 3.02 when appropriate:

The defendant may not be convicted as an aider and abetter if the perpetrator of the crime has been acquitted.

Points and Authorities

ALERT: People v. Superior Court (Sparks) (2010) 48 C4th 1 overruled People v. Taylor (1974) 12 C3d 686 and notes similar position taken by U.S. Supreme Court in Standefer v. United States (1980) 447 US 10, 25-26 [64 LEd2d 689; 100 SCt 1999].

In People v. Taylor (74) 12 C3d 686 [117 CR 70], the Supreme Court unanimously held that collateral estoppel precludes prosecution “where an accused’s guilt must be predicated upon his vicarious liability for the acts of a previously acquitted confederate.” (Taylor 12 C3d at 698; see also People v. Superior Court (Jackson) (75) 44 CA3d 494 [118 CR 702] [collateral estoppel prevents the last alleged co-conspirator from being convicted of conspiracy, when all of his alleged co-conspirators have been acquitted].) This holding was based upon the court’s determination that a factual finding which was rejected by the trier of fact at a prior trial may not be relitigated at a second trial. (12 C3d at 692.) Moreover, the rule also applies to a case where the aider and abetter and perpetrator are tried in the same trial. (12 C3d at 693, fn 8; but see People v. Palmer (2001) 24 C4th 856 [103 CR2d 13] [Taylor analysis does not preclude conviction of person for conspiracy even though the only other alleged co-conspirator was acquitted in the same trial]; People v. Wilkins (94) 26 CA4th 1089, 1095 [31 CR2d 764] [Taylor should be limited to situations where there was “factual issue identity” (i.e., the same evidence was presented on the issue]; People v. Rose (97) 56 CA4th 990 [65 CR2d 887] [reduction of perpetrator’s crime to a misdemeanor by the trial judge at sentencing does not preclude felony liability for aider and abettor]; People v. Mata (78) 85 CA3d 233, 236-39 [149 CR 327] [no collateral estoppel where perpetrator acquitted in separate trial].)

Even though U.S. v Powell (84) 469 US 57 [83 LEd2d 461; 105 SCt 471] may preclude reliance upon federal principles of collateral estoppel under the 5th and 14th Amendments, the unreliability of inconsistent verdicts implicates the Due Process Clause of the 14th Amendment and the Cruel and Unusual Punishment Clause of the 8th Amendment in capital cases. (See People v. Klingenberg (96) 665 NE2d 1370 [172 Ill.2d 270] [distinguishing Powell and holding that legally inconsistent verdicts are unreliable].)

NOTE: People v. McCoy (2001) 25 C4th 1111 [108 CR2d 188] held that in situations not involving the natural and probable consequences doctrine the aider and abettor may be convicted of a greater crime than the perpetrator. (See FORECITE F 3.01n and F 3.01o.)

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]

[Additional briefing on the question of whether Taylor applies to a situation where the perpetrator was tried under alternate theories is available to FORECITE subscribers. Ask for Brief Bank # B-593.]

RESEARCH NOTES

See Annotation, Inconsistency of criminal verdict with verdict on another indictment or information tried at same time, 16 ALR3d 866 and Later Case Service.

F 3.02c

Definition Of Natural And Probable Consequence

*Supplement CJ 3.02 with the following:

A criminal act is not a natural and probable consequence of the target act if the act was a fresh and independent product of the mind of one of the participants, outside of, or foreign to, the common design.

Points and Authorities

In People v. Van Nguyen (93) 21 CA4th 518, 531 [26 CR2d 323], the court of appeal relied on the California Supreme Court case of People v. Kauffman (07) 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.”

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 (49) 94 CA2d 197, 207 [210 P2d 238].) 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 (38) 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 (69) 70 C2d 171, 182-83 [74 CR 262]; see also, People v. Woods (92) 8 CA4th 1570, 1600-01 [11 CR2d 231], dissenting opinion.)

F 3.02d

Natural And Probable Consequences:

Permits Consideration Only Of Circumstances Known To The Aider And Abetter

*Supplement CJ 3.02 with the following:

As you have been instructed, to find guilt based on aiding and abetting, one element you must determine is whether a reasonable person in the defendant’s position would have known that the charged offense would be a natural and probable consequence of the target offense. In making this determination, you may only consider those circumstances which the defendant knew at the time the act[s], upon which the aiding and abetting allegation is based, were committed.

Points and Authorities

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 test. It depends upon whether, under all of the circumstances presented, 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 (92) 8 CA4th 1570, 1587 [11 CR2d 231]; see also People v. Price (91) 1 C4th 324, 443 [3 CR2d 106]; 2 LaFave & Scott, Substantive Criminal Law (1986) § 7.4, p. 201 [“it is what the defendant should realize to be the degree of risk, in the light of the surrounding circumstances which he knows”].) “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.” (People v. Van Nguyen (93) 21 CA4th 518, 531 [26 CR2d 323].) Hence, in making the objective determination of whether the charged offense is a natural and probable consequence of the target offense, the jury may 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. Van Nguyen, 21 CA4th at 532; see also People v. Covino (80) 100 CA3d 660 [in determining objectively probable result of force used for assault (PC 245(a)) "trier of fact should not consider factors which the defendant does not know or would not reasonably be expected to know…"]; FORECITE F 3.02 n15.)

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.

(See also FORECITE F 3.02g.)

F 3.02e

When Is First Degree Murder A Natural

And Probable Consequence Of The

Target Offense

*Add to CJ 3.02:

If you determine beyond a reasonable doubt that the defendant aided and abetted a __________ [insert target offense] and that the killing was a natural and probable consequence of __________, you must then further determine whether the killing was murder and if so, what degree? To find that the murder is first degree, you must make the following determinations: (1) the actual killer committed first degree murder under the definitions supplied in the other instructions defining first degree murder. [(2) The circumstances which make the murder first degree as to the actual killer were a natural and probable consequence of the commission of the __________ [insert target offense] rather than the independent product of the mind of the actual killer.] [or] [(2) The killer’s formulation of the enhanced mental state necessary for first degree murder, as opposed to a simple intent to kill, was a natural and probable consequence of the commission of the __________ [insert target offense] rather than the independent product of the mind of the actual killer.]

If you have a reasonable doubt whether the offense committed was first degree murder or second degree murder, you must give the defendant the benefit of the doubt and find [him] [her] guilty of second degree murder.

Points and Authorities

The “natural and probable consequences” doctrine of vicarious liability for aiding and abetting and conspiracy presents a particularly difficult situation when the offense charged is first degree murder based upon the mental state of the actual killer. It is well-settled that the aider and abetter 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 abetter acted with knowledge of and intent to facilitate a first degree murder. (See People v. Croy (85) 41 C3d 1, 12, fn 5 [221 CR 592].) In such a case, the aider and abetter’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 abetter. 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.

Accordingly, because an aider and abetter may be convicted of a lesser offense than the perpetrator if the target offense contemplates only the lesser offense (see FORECITE F 3.00 n3 and FORECITE F 3.00 n5) and because any doubt as to whether the offense is first degree or second degree must be resolved in favor of the defendant (see CJ 8.71), the above instruction is necessary to assure that 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 abetter 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.

The necessity for explaining this difficult concept to the jury is illustrated by People v. Francisco (94) 22 CA4th 1180, 1188-91 [27 CR2d 695]. Francisco purported to consider the applicability of CJ 3.02 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. (Compare People v. Cummins (2005) 127 CA4th 667, 680 [premeditated attempted murder need not be natural and probable consequence].)

PRACTICE NOTE

The above instruction contains alternative ways to express this difficult concept. Ultimately it will probably be necessary to more fully explain this point during argument.

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 abetter 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:

To find that the killing was murder, you must make the following determinations: (1) The actual killer committed murder. (2) The circumstances which made the killing a murder were a natural and probable consequence of the commission of the __________. If you have a reasonable doubt whether the offense committed was murder, you must give the defendant the benefit of the doubt and find [him] [her] not guilty of murder.

NOTES

This issue also applies when the defendant is charged with aiding and abetting a premeditated and deliberate attempted murder (PC 664(a)). [See Brief Bank # B-682 for additional briefing regarding aiding and abetting and premeditation.]

F 3.02f

Vicarious Liability of Perpetrator for Acts Committed by Another Person

*Add to CJ 3.02 when appropriate:

However, if you find that another person aided and abetted the defendant in commission of the crime of __________ (insert target offense), you may only find defendant guilty of other crimes committed by the other person if the prosecution has proven beyond a reasonable doubt that:

1. When the crime of __________ (insert target offense), was committed, the defendant had knowledge that the other person aided and abetted [him] [her] in the commission of said crime;

2. When the crime of __________ (insert target offense), was committed, the defendant intended that the other person aid and abet [him] [her] in the commission of said crime;

3. The crime of __________ (insert subsequent offense), was a natural and probable consequence of the commission of the crime of __________ (insert target offense).

Points and Authorities

In People v. Olguin (94) 31 CA4th 1355, 1376 [37 CR2d 596], it was suggested that the perpetrator of the target offense may be held vicariously liable for subsequent offenses committed by other persons so long as the subsequent offense is a natural and probable consequence of the target offense. (See also People v. Culuko (2000) 78 CA4th 307 [92 CR2d 789] [both perpetrator and aider and abettor are principals and all principals are liable for the natural and foreseeable consequences of their crimes].) This suggestion is erroneous.

The problem with Olguin is its failure to recognize the mens rea prerequisite to vicarious liability. Olguin’s suggestion that “all principals are liable for the naturally and reasonably foreseeable consequences of their crimes” [original emphasis] (Olguin, 31 CA4th at 1376) is plainly wrong when applied to vicarious liability. To be sure, causation is one prerequisite to vicarious liability but it is not the only one. The other prerequisite is a mens rea which encompasses an intent to participate in a criminal enterprise with another person or persons.

In the case of conspiracy, such intent is proven by the existence by an agreement entered into between two or more persons with the specific intent to agree to commit a particular crime. (See People v. Horn (74) 12 C3d 290, 296 [115 CR 516].)

In the case of aiding and abetting, the requisite intent is shown by proving that the defendant acted with knowledge of the unlawful purpose of the perpetrator and with the intent of facilitating the commission of the crime by the perpetrator. (People v. Beeman (84) 35 C3d 547, 560-61 [199 CR 60].)

Hence, the principles of vicarious liability, whether conspiracy or aiding and abetting, presuppose that at least two people acted together to commit a crime, and that the defendant who is being subjected to vicarious liability had knowledge of and an intent to facilitate the criminal act of another. (See People v. Slaughter (84) 35 C3d 629, 659-60 [200 CR 448]; see also People v. Ford (14) 25 CA 388, 398 [143 P 1075] [vicarious liability through aiding and abetting occurs “where one person unites with one or more other persons in an enterprise to commit an unlawful act ….”].) In sum, a perpetrator should not be held vicariously liable for the acts of those who aid and abet him/her unless the perpetrator knowingly intended to engage in a joint criminal enterprise with the aider and abettor. As a complimentary principle to Beeman, this should require that the perpetrator: (1) has knowledge that the other person is facilitating commission of the target offense and (2) intended for the other person to aid and abet the commission of the target offense.

See also, FORECITE F 3.02 n12, Killing Of Third Party Not A Natural And Probable Consequence Of Plan To Kill Another Person.

F 3.02g

Lesser Offense Liability For Aider And Abettor

ALERT: See discussion of People v. McCoy (2001) 25 C4th 1111 [108 CR2d 188] in FORECITE F 3.00b.

*Add to CJ 3.02 when appropriate:

In light of the natural and probable consequence requirement set forth above, you may convict an aider and abettor of a lesser offense than the person who actually committed the crime (the perpetrator). This is so because you may not convict the aider and abettor of any crime which was not a natural and probable consequence of the commission of the crime of ____________. In this case, the crimes which you may consider to have been committed are the following:______________. (Insert greater and lesser crimes.) Even if the perpetrator committed one of the greater of these crimes, you may still convict the aider and abettor of one of the lesser crimes if the greater crime was not a natural and probable consequence under the circumstances, of the target crime of ______________.

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 (92) 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.” Ibid. (id at 1587 [original emphasis.])

Accordingly, CJ 3.00 incorrectly informs the jury that all principals are “equally guilty.” Moreover, CJ 3.02 is deficient in failing to set forth the basis upon which an aider and abettor may be convicted of a lesser offense than the perpetrator. 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 (95) 12 C4th 186, 196 [47 CR2d 569]; see also People v. Prettyman (96) 14 C4th 248, 272 [58 CR2d 827] recognizing the issue discussed in Woods but not addressing it; see also People v. Padilla (95) 11 C4th 891, 920-21 [47 CR2d 426] [same].)

It should be noted that People v. Solis (93) 20 CA4th 264 [25 CR2d 184] disagreed with Woods. However, People v. Yarber (79) 90 CA3d 895 [153 CR 875], a case which was a direct predecessor of Beeman, and was repeatedly cited with approval in Beeman, provides further support for Woods. In Yarber the court 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 F 3.02e re: whether first degree murder is a natural and probable consequence of target offense.) [See Brief Bank # B-795 for additional briefing on this issue.]

In People v. Williams UNPUBLISHED (F031285), the 5th District Court of Appeal reversed a second degree murder conviction for failure to instruct the jury that the aider and abettor could be convicted of a lesser offense than the perpetrator. (See FORECITE F 3.02g; see also Brief Bank # B-795 [Brief 2].) The Court of Appeal emphasized that the aider and abettor’s liability cannot be based solely on the mental state of the perpetrator unless the aider and abettor had knowledge of the circumstances upon which that mental state was predicated. (See FORECITE F 3.02d.) The appeal was handled by FORECITE Editor, Tom Lundy. [See Opinion Bank # O-266 for a portion of the Williams opinion dealing with this issue.]

POSTSCRIPT: On remand, the prosecution acquiesced in reduction of the offense to involuntary manslaughter (PC 192(a)) and, therefore, Mr. Williams will be released.

The failure to adequately instruct on a lesser offense may implicate the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) to a fair trial by jury and due process and in a capital case may also implicate the 8th Amendment. [See FORECITE PG VII(C).]

F 3.02h

Natural And Probable Consequences Limited To Offenses Committed During The

Commission Of The Target Offense

*Add the following element to CJ 3.02:

5. The crime[s] of ____ [was][were] committed during the commission of the crime [or crimes] of ____ (insert target offense[s]).

Points and Authorities

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 recently recognized in People v. Prettyman (96) 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.” [Emphasis added.] 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 (69) 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 co-principals 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 (90) 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 (91) 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 co-conspirator 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.

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-756.]

F 3.02i

Natural And Probable Consequences:

Improper To Define “Natural” As “In Accordance With Human Nature, Not Abnormal,” And

“Probable” As “Not Unlikely”

*Add to CJ 3.02:

A natural and probable consequence is a consequence which a reasonable person in the defendant’s situation, under all the circumstances presented, would have foreseen.

Points and Authorities

The definition of “natural” and “probable” in CJ 3.02 and 6.11 appears to have been taken from the definition of a treatise author which was included in the opinion of People v. Rogers (85) 172 CA3d 502, 515 fn 17 [217 CR 809]: “It has been observed that ‘the description of the reaction as “natural” means that it is in accordance with human nature, not abnormal, while “probable” must be taken as meaning “not unlikely.”’ (Hart & Honare, Causation and the Law (1959) p. 140.)”

However, these definitions are incorrect. Something that is “not abnormal” and “not unlikely” is not necessarily “foreseeable,” either subjectively or objectively. Hence, the CALJIC definition should be replaced with an instruction which advises the jury that a natural and probable consequence is a consequence which a reasonable person in the defendant’s situation, under all the circumstances presented, would have foreseen.