People v. Smith (2014) 60 Cal. 4th 603 eliminated an element of the natural and probable consequences liability which the prosecution was required to prove by CC 402. However, in so doing Smith provided a basis for a defense pinpoint instruction relating the natural and probable consequences doctrine to evidence that the perpetrator of the non-target crime acted independently.
Based on CC 402 [para 6] the jury in Smith was instructed as follows:
“If the murder or voluntary manslaughter was committed for a reason independent of the common plan to commit the disturbing the peace or assault or battery, then the commission of murder or voluntary manslaughter was not a natural and probable consequence of disturbing the peace or assault or battery.” (Id. at p. 613.)
The CSC disapproved this language because “the prosecution … need not … prove the nontarget offense was not committed for a reason independent of the common plan to commit the target offense.” (Id. at p. 614.)
In reaching this conclusion the Court emphasized that the natural and probable consequences doctrines of conspiracy and aiding and abetting are not interchangeable. For conspiracy liability to extend to nontarget offenses the “connection between [the target and nontarget offenses must not be] a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design.” (Id at pp. 614-15; internal punctuation and citations omitted.) However, that limitation on conspirator liability does not apply equally to an aider and abettor:
If the prosecution can prove the nontarget crime was a reasonably foreseeable consequence of the crime the defendant intentionally aided and abetted, it should not additionally have to prove the negative fact that the nontarget crime was not committed for a reason independent of the common plan. [Citations.]” (Id at 617.)
Notwithstanding this conclusion the Smith emphasized that evidence of the perpetrator’s independent purpose may still be relevant to a defense theory that the prosecution did not prove that the non-target offense was reasonably foreseeable:
To be sure, whether an unintended crime was the independent product of the perpetrator’s mind outside of, or foreign to, the common design may, if shown by the evidence, become relevant to the question whether that crime was a natural and probable consequence of the target crime. In a given case, a criminal defendant may argue to the jury that the nontarget crime was the perpetrator’s independent idea unrelated to the common plan, and thus was not reasonably foreseeable and not a natural and probable consequence of the target crime. [Emphasis in original.] (Ibid.)
Accordingly, as with other defense theories that pinpoint evidence upon which the jurors may rely to conclude that the prosecution has not met its burden of proving an essential element of the charge (e.g., intoxication to negate mental state or intent, provocation to negate deliberation, return of stolen property to negate intent to steal, etc.) the defense should have the right, on request, to a defense theory instruction on the perpetrator’s independent purpose. The right to such an instruction has been recognized by the CC committee:
A defendant is entitled, on request, to a nonargumentative instruction that directs attention to the defense’s theory of the case and relates it to the state’s burden of proof. [Citation to People v. Sears (1970) 2 Cal.3d 180, 190 [error to deny requested instruction relating defense evidence to the element of premeditation and deliberation].] Such an instruction is sometimes called a pinpoint instruction. “What is pinpointed is not specific evidence as such, but the theory of the defendant’s case. It is the specific evidence on which the theory of the defense ‘focuses’ which is related to reasonable doubt. [Citations.] ” (Judicial Council Of California Criminal Jury Instruction 220, Judicial Council Of California Criminal Jury Instruction 220, Related Issues.)
Moreover, a number of established CC instructions provide templates for requesting such a defense theory instruction. Examples of how these instructions could be adapted to evidence of the perpetrator’s independent purpose include the following:
Sample Instruction [CC 3426 Format]:
Consider all the circumstances, including any evidence that the [alleged] _________________ <non-target crime. e.g., murder> was _____________’s <name of alleged perpetrator> independent idea unrelated to the common plan in deciding, if you can, whether a reasonable person in the defendant’s position would have known that the commission of the [alleged] _________________<non-target offense> was a natural and probable consequence of the commission of the [alleged] _______________ <target offense>.
Sample Instruction [CC 522 Format]:
If you conclude that the defendant committed the [alleged] _____________<target offense> consider all the circumstances, including any evidence that the [alleged] _________________ <non-target crime. e.g., murder> was _____________’s <name of alleged perpetrator> independent idea unrelated to the common plan in deciding, if you can, whether a reasonable person in the defendant’s position would have known that the commission of the [alleged] _________________<non-target offense> was a natural and probable consequence of the commission of the [alleged] _______________ <target offense>.
Xrefs:
F 402.5 Natural And Probable Consequences—Elements
F 402.6 Natural and Probable Consequences—Defense Theories
F403.5
F403.6
F 402.6 Inst 1
F 403.6 Inst 1
