Brief Bank # B-829 (Re: F 3.02 n20 [Assault With Force Likely To Produce Great Bodily Injury Is Not A Natural And Probable Consequence Of Simple Battery].)
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COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant.
_______________________________________)
Excerpt From
APPELLANT’S OPENING BRIEF
ARGUMENT
I. THE EVIDENCE WAS INSUFFICIENT BECAUSE ON THESE FACTS, THE ASSAULT WITH FORCE LIKELY TO PRODUCE GREAT BODILY INJURY WAS NOT A NATURAL AND PROBABLE CONSEQUENCE OF AN INTENT TO COMMIT A SIMPLE BATTERY
The jury convicted appellant of assault with force likely to produce great bodily injury. (Pen. Code, sec. 245, subd. (a).) The evidence was consistent that appellant did not actually commit the assault. Rather, the prosecution’s case rested on the theory that appellant was guilty as an aider and abettor.
All persons who commit a crime, whether directly, or indirectly as aiders and abettors, are principals in that crime. (Pen. Code, sec. 31.) Thus, an aider and abettor “shares the guilt of the actual perpetrator.” (People v. Prettyman (1996) 14 Cal.4th 248, 259.) And while the actual perpetrator must have the requisite mental state for whatever crime is charged, the aider and abettor need not necessarily share that intent. Rather, he or she must “act 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.” (People v. Beeman (1984) 35 Cal.3d 547, 560.) But the aider and abettor “need not have intended to encourage or facilitate the particular offense ultimately 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 . . .” (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5, emphasis added.)
The aider and abettor’s liability based on encouragement or facilitation of a criminal act is not open-ended. Liability for unintended offenses is limited to those offenses that are the “natural and probable consequence” of the crime aided and abetted. (People v. Prettyman, supra, 14 Cal.4th at p. 260.) “[L]ike a conspirator, [the aider and abettor] is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets.” (People v. Croy, supra, citing People v. Beeman, supra.) Once the mental state for the target offense is established, the aider and abettor is guilty of not only that offense, but also of any other crime the perpetrator commits, so long as that “other” offense is a “natural and probable consequence” of the target offense. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.)
Thus, when criminal liability is based on an aiding and abetting/natural and probable consequences theory, the jury must find the following: 1) the defendant acted with knowledge of the unlawful purpose of the perpetrator; 2) the defendant acted with intent or purpose of committing, encouraging or facilitating the commission of a predicate or target offense; 3) the defendant, by act or advice, aided, promoted, encouraged or instigated the commission of the target crime; 4) the defendant’s confederate committed an offense other than the target crime; and 5) the offense committed by that confederate was a natural and probable consequence of the target crime that the defendant aided and abetted. (People v. Prettyman, supra, 14 Cal.4th at p. 262.)
In this case the evidence indicated that the intended offense was a simple battery. Accordingly, the trial court instructed, pursuant to CALJIC No. 3.12, that if the jury found that the intended offense was a battery, then it also had to find that the offense of assault with a deadly weapon or assault with force likely to produce great bodily injury [Footnote 1] was a natural and probable consequence of the commission of the battery. (CT 219; RT 527-529.) However, appellant submits that notwithstanding that instruction, these facts show that the Penal Code section 245 conviction was not a “natural and probable consequence” of a simple battery.
Whether one offense is the “natural and probable consequence” of another offense depends on the specific facts of the individual case. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) It is an objective, rather than a subjective inquiry, “depend[ing] on 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.” (Ibid.)
Appellant submits that on these facts the intensity of this assault was not a natural and probable consequence of the battery. First of all, it is worth noting that the trial court found that the most that appellant intended when he entered the house was that the others would commit only a misdemeanor battery, and not an assault with force likely to produce great bodily injury. The jury originally convicted appellant of a first degree burglary. (RT 626.) But appellant moved to have that conviction dismissed based on his contention that there was insufficient evidence that appellant intended that a felony be committed when he entered Mr. A’s apartment. (RT 652-662.) The trial court agreed and ordered the burglary conviction dismissed. In doing so, the court stated its belief that “at the time [appellant] entered, [he] had intent in his mind then to commit a – – a – – to aid and abet the commission of some kind of battery. But it got out of hand and he’s liable for the natural and reasonable consequences of it. Therefore, it wouldn’t be with the intent to commit a felony inside.” (RT 663.)
In this case there was evidence showing that Mr. A was severely injured as a result of the beating. But the evidence also showed that those injuries were caused not by hands and fists (i.e., the intended battery) but rather were caused by the metal pipe. And it was clear from the evidence that the metal pipe was already at Mr. A’s, and that it was only used because it was conveniently located where the assault began. Thus, appellant contends that the use of the pipe was what made this an assault under Penal Code section 245, and that the use of that pipe was not a natural and probable consequence of the intent to commit a simple battery.
The doctor who saw Mr. A in the emergency room described his condition. He had seven deep scalp lacerations between three and four inches in length. He also had seven welt, abrasion injuries to his back. (RT 84.) In addition, Mr. A had multiple compound fractures to the fingers in both hands that were consistent with defensive wounds; his bones had come through the skin. (RT 88-89.) Finally, Mr. A also had a bruised nose and a bruised lip. (RT 84.) Mr. A estimated that he was hit with the bar between twenty and thirty times, on both his head and his back. (RT 152.) When asked whether he was injured before Mr. T began hitting him with the pipe, Mr. A replied that he had cuts on his face and a bleeding lip. (RT 181.)
Accordingly, the nature of the injuries and Mr. A’s testimony show that it is the metal pipe that caused the vast majority of the injuries. The head gashes, the welts on the back, and the cut and broken fingers are intuitively the types of injuries that are more consistent with having been hit by a hard metal object – not hands and fists. Further, Mr. A admitted that the only injuries he had before the beating with the metal rod were cuts to his face and a cut lip. (RT 181.) Thus, appellant submits that it was only through the use of the metal pipe that this offense came to be an assault with force likely to produce great bodily injury.
The evidence also showed that the use of that metal pipe was not planned and that it came to be used only because it was handy. Mr. A explained that he owned the metal bar and that it part of the apparatus that came with his security front door. When Mr. A installed the door he was unable to install the bar on the door; the bar was left over. (RT 151-152.) The last time Mr. A noticed, the bar was by a speaker inside his apartment. (RT 152.) On these unique facts, appellant believes that Mr. T’s use of the bar cannot reasonably be deemed a natural and probable consequence of his original intent to commit a battery.
In People v. McManis et. al. (1954) 122 Cal.App.2d 891 the court held that the common design between the defendants to beat up the victim, and the fact that both defendants participated in the beating, made them both liable for manslaughter after the victim died. On those facts, the death was the natural and probable consequence of the beating. (Id., at p. 900-901.) The court in People v. Cayer (1951) 102 Cal.App.2d 643 came to the same conclusion on similar facts. In People v. Hopkins (1951) 101 Cal.App.2d 704, the court held that the defendant could be charged with manslaughter as an aider and abettor when the victim died from a self-injected heroin overdose, and when the defendant assisted by placing a tourniquet around the victim’s arm to assist with the injection. And two courts have held that those who aid and abet gang attacks on other gangs should expect that a death is a natural and probable consequence. (People v. Martinez (1966) 239 Cal.App.2d 161, 177-179; People v. Montano (1979) 96 Cal.App.3d 221, 227. “The frequency with which gang attacks result in homicide fully justified the trial court in finding that homicide was a ‘reasonable and natural consequence’ to be expected in any such attack.” People v. Montano, supra.) Finally, in People v. Le Grant (1946) 76 Cal.App.2d 148, the court found the defendant guilty as an aider and abettor to manslaughter, when his companion engaged in a fight with the victim. The court found the evidence sufficient because the defendant was the owner and driver of the car, and he willfully stopped the car knowing that a fight was likely to ensue. Further, the defendant did nothing to stop the fight, and he prevented others from “butting in” to stop it. (Id., at pp. 153-154.)
But the facts of this case are far different than those in the cases cited above. This assault was not a function of inherently dangerous gang warfare. Here, appellant did not participate in the actual assault or the actual battery. He did not prevent others from stopping the fight. Nor did appellant provide any physical assistance to the attack. The evidence was unrefuted that he remained entirely apart from the fracas.
The facts of this case are more akin to those in People v. Butts (1965) 236 Cal.App.2d 817. There, the defendant and his confederate were driving to a restaurant. The defendant was intoxicated. On the way they encountered another car containing three men. The cars stopped, and the defendant hit one of the other car’s occupants before that car left. The defendant and his friend went into the restaurant, and the other car and its occupants returned soon after. There was evidence that the defendant started a fight with one of the men. His friend fought another of the men; the two skirmishes were 45 to 100 apart. Defendant’s confederate stabbed and killed the person with whom he was fighting. (Id., at pp. 823-825.) The court found that this evidence was insufficient to establish that the defendant aided and abetted the killing. “The evidence shows Butts’ awareness of participation in a fist fight, not a knife fight. Thus, there is no substantial evidence upon which to base a finding of guilt of aiding and abetting a homicide.” (Id., at p. 837.)
In the present case, unlike in Butts, appellant did not even participate in the fist fight. Yet he submits that the same reasoning should apply. “The evidence shows [appellant’s] awareness of participation in a fist fight, not a fight [in which Mr. A was pummeled by an iron bar.]” (Ibid.) Thus, under the rationale of Butts, appellant may not be convicted of assault with force likely to produce great bodily injury.
When deciding whether evidence was sufficient for conviction, a reviewing court must view that evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Lewis (1990) 50 Cal.3d 262, 277.) The reviewing court does not determine “whether it believes that the evidence at trial establishes guilt beyond a reasonable doubt.” Instead, the court must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) The test on appeal becomes whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Protopappas (1988) 201 Cal.App.3d 152, 167, quoting People v. Love (1980) 111 Cal.App.3d 98, 106.)
Here, appellant does not contest that there was sufficient evidence for the jury to have determined that he aided and abetted a battery. However, for the reasons stated above, he submits that on these facts that the assault with force likely to produce great bodily injury was not a natural and probable consequence of the intended battery. What started as a misdemeanor battery only became a section 245 assault because the perpetrator used an iron pipe; the pipe was used only at the last minute, and only as an afterthought. For that reason appellant believes that the conviction should be reversed.
FOOTNOTES:
Footnote 1: The actual instruction referred to great bodily harm rather than great bodily injury. (CT 219; RT 527-529.)
