) Crim. B089161
) No. TA026047)
JOHN L. )
JANET J. GRAYATTORNEY AT LAW
STATE BAR NO. 99723
P.O. Box 51962
and other potential target crimes, such as brandishing, assault, and assault with a deadly weapon. The failure to so instruct the jury requires reversal of appellant’s conviction.
B. The Court Erred Because It Failed to Instruct the Jury With CALJIC 3.02
It is axiomatic that:
It is the trial court’s duty to see that the jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function. This duty is not always satisfied by a mere reading of wholly correct, requested instructions. A trial court has a sua sponte duty (1) to instruct on general principles of law relevant to issues raised by the evidence; and (2) to give explanatory instructions when terms used an instruction have a technical meaning peculiar to the law. A defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and a denial of that right constitutes a miscarriage of justice regardless of the strength of the prosecution’s case. (People v. Reynolds (1988) 205 Cal.App.3d 776, 779 (citations omitted); accord, People v. Shoals (1992) 8 Cal.App.4th 475, 489.)
The trial court failed in its basic duty of providing the jurors with the law governing the elements of the pertinent theory of liability in this case, and the legal principles necessary for them to make the determinations required by the law under the facts and circumstances of this case.
Penal Code, section 31 provides in relevant part: “all persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission…, are principals in any crime so committed.” An aider and abettor is one who acts “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.) The California Supreme court has held that an 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 (1985) 41 Cal.3d 1, 12, fn, 5.)
“‘One may aid or abet in the commission of a crime without having previously entered into a conspiracy to commit it. [Citations.] Moreover, the aider and abettor in a proper case is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable consequences of any act that he knowingly aided or encouraged. Whether the act committed was the natural and probable consequence of the act encouraged and the extent of defendant’s knowledge are questions of fact for the jury.”‘ (Ibid., citing People v. Durham (1969) 70 Cal.2d 171, 181.) The Croy court added:
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 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 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. (Ibid, citing People v. Beeman, supra, 35 Cal.3d 547, 556, emphasis added.)
Subsequent cases relying on these basic principles of aiding and abetting have identified a four‑part analysis where the aider and abettor may be guilty of not only the charge contemplated but other crimes which were reasonably foreseeable. (People v. Woods (1993) 8 Cal.App.4th 1570, 1586.) First the jury “must determine the crimes and degrees of crimes originally contemplated and committed, if any, by the perpetrator. Next, the jury must decide whether the aider and abettor knew of the perpetrator’s intent to commit the originally contemplated criminal acts and whether the aider and abettor intended to encourage or facilitate the commission of those acts. In other words, the jury must determine if the aider and abettor is liable vicariously for, i.e., guilty of, the crime or crimes originally contemplated. Then the jury must determine whether other crimes and degrees of crimes charged against the aider and abettor were committed by the perpetrator. If so, the jury must determine whether those crimes, although not necessarily contemplated at the outset, were reasonably foreseeable consequences of the original criminal acts encouraged or facilitated by the aider and abettor.” (Ibid, citing People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5.)
In the instant case, the prosecution’s theory based on the evidence was that the target crime, the crime originally contemplated by appellant, was to aid and abet a premeditated murder. However, evidence introduced by the prosecution, to wit, appellant’s taped statement, contained evidence suggesting that appellant’s involvement centered around a plan to scare the victim. The prosecution cannot disregard the evidence it introduces but is bound by it. (See, e.g. People v. Lines (1975) 13 Cal.3d 500, 505‑506.) The statement also suggests that appellant was aware that a weapon might be used to scare the victim, i.e. a brandishing, but that a killing was not contemplated. (Ex. 13, p.42.) Thus there is evidence that the target crime, from the defense perspective was something much less than a first degree murder, but rather a range of lesser crimes, such as brandishing, assault and/or assault with a deadly weapon. The proper question, then, for the jury to resolve, was whether under the circumstances of this case a murder was a natural and probable consequence of either brandishing a weapon, an assault or assault with a deadly weapon, depending on which target crime the jury ultimately determined was originally contemplated.
Note the question is whether murder is a natural and probable consequence of either of these target crimes, inasmuch as simply finding that a killing as a natural and probable consequence would effectively eliminate the intent requirement. (People v. Rogers (1985) 172 Cal.App.3d 502, 514‑15.) As Rogers, explained, “If this were not the case, if the test of aiding and abetting were to include the natural and probable consequences of the act of aid rather tha[n] the acts (offenses) aided, the intent requirement of Beeman would be emasculated.” (People v. Rogers, supra, 172 Cal.App.3d at p. 515, fn. 18.)
In the present case, the trial court essentially accepted the prosecution’s interpretation of the facts as written in stone, instructing only on first and second degree murder. In other words, the trial court approached this case from the prosecution’s perspective only, instructing the jury in essence that murder was in fact the target crime giving the jury little choice but to either convict appellant for murder or acquit him. It is apparent from the jury’s rejection of the prosecution’s theory of a premeditated act of revenge planned by both appellant and Pope, that there was in fact a question in their minds regarding the extent of appellant’s knowledge and intent in accompanying Pope to the Reyes’ front door. Thus the jury, in order to adequately deliberate with all applicable principles of law, needed to be instructed with CALJIC 3.02 to determine whether murder was in fact a natural and probable consequence of the target offenses.
C. The Court Failed To Instruct On All Target Offenses Applicable To the Case At Bar
It follows that the jury needed instruction of the “target” offenses and on their specific elements, for they were essential to the determination of appellant’s ultimate liability for the charged offense.
Throughout the evolution of our criminal law, whenever a defendant’s liability for one crime has been predicated on the guilt of another, trial courts have been required, sua sponte, to instruct the jury on the nature and elements of the predicate crime. Thus a defendant cannot be convicted of manslaughter on a theory of “misdemeanor‑manslaughter” in the absence of a supplemental instruction “defining the misdemeanor or misdemeanors that are inherently dangerous to human life and … stating what specific facts under the evidence could constitute such misdemeanor or misdemeanors.” (CALJIC 8.45 (1988) (Use Note); People v. Williams (1975) 13 Cal.3d 559, 562‑63.) Such instruction of the definition of the predicate misdemeanor has long been acknowledged to be a sua sponte duty of the trial court. (People v. Escarcega (1969) 273 Cal.App.3d 853, 859‑60.)
Similarly, the use notes to the jury instruction for first degree felony‑murder warn the trial courts that, “This instruction must be supplemented by an instruction defining the underlying felony involved.” (CALJIC 8.21 (1988); see also, People v. Whitehorn (1963) 60 Cal.2d 256, 264‑65.) To take another example, when the charge is burglary (which requires both unlawful entry and an intent to commit some other felony), the trial court’s failure to instruct, sua sponte, on the elements of the intended felony is reversible error:
[T]he court must define “felony” and must instruct the jury which acts, among those which the jury could infer the defendant intended to commit, amount to felonies. Failure to do so is error, for it allows the triers of fact to indulge in unguided speculations as to what kinds of criminal conduct are serious enough to warrant punishment. (People v. Failla (1966) 64 Cal.2d 560, 564.)
The failure to instruct the jury regarding the possible target offenses in the case at bar permitted‑ ‑indeed encouraged‑just such “unguided speculation.” Here the jury was completely unguided as to what criminal acts appellant may have intended to aid and abet as well as informed that they must determine whether a murder was the natural and foreseeable consequence of such contemplated acts. The jurors were left at complete liberty to determine whether appellant had aided and abetted some act, without so much as informing the jury that such act must not only be a criminal act, but also that murder must be the natural and probable consequence of that act.
In fact there was nothing in the instructions, as delivered, that would have precluded the jurors from believing that anything that John L. did that day to assist or encourage the killer was sufficient to comprise the target crime, and to make him liable for aiding and abetting the ultimate offense. It would have been very easy for one or more of the jurors to simply conclude that Mr. L. was intentionally involved somehow in the shooting and to believe that was enough for him to be held liable under the porous instructions they had received.
Appellant recognizes that there is a split of authority regarding the necessity to sua sponte instruct regarding the elements of contemplated target crimes: (People v. Solis (1993) 20 Cal.App.4th 264 [no need to instruct on the elements of any predicate crime unless there is a dispute as to whether the predicate acts were criminal]; People v. Mouton (1993) 15 Cal.App.4th 1313, 1320 [court has sua sponte duty to instruct on predicate crimes].) The issue is presently on review in the Supreme Court in People v. Hickles (1994) 26 Cal.App.4th 1070, review granted 10/19/94). Regardless of how this issue is ultimately resolved, there is error because unlike either of those cases, the jury in the instant case was not even instructed with CALJIC 3.02 regarding the natural and probable consequences principles.
It is altogether likely that John L. was convicted of the crime of murder without a jury finding that the elements of any crime had been proved against him. Such a result would insult any notion of fairness, justice or due process and it is clearly forbidden by the due process clause of the United States Constitution (See, Carella v. California (1989) 491 U.S. 263, 109 S.Ct. at 2420‑21 and cases discussed therein. ). The law requires a more rigorous application of elements to facts before a defendant can be convicted of this most serious of crimes; but the jury was deprived of the tools necessary to assure that the process was properly completed. The trial court’s failure to both instruct the jury on the natural and probable consequences theory and identify and define the target offense or offenses was prejudicial error, and the resulting judgment must be reversed. (People v. Cummings (1993) 4 Cal.4th 1233; People v. Hernandez (1988) 46 Cal.3d 194, 210.) Appellant discusses at length below, how the instructional error present in this case deprived appellant of his right to have the jury decide all factual issues as well as several indicia of prejudice present in this case.
Based on the foregoing, appellant respectfully requests that his conviction be reversed.
 While it is true that the prosecution does not have to charge all crimes originally contemplated and committed or with all of the reasonably foreseeable crimes which resulted therefrom, the court nevertheless has the duty to instruct on all applicable elements of the charge. (See e.g. People v. Woods, supra, 8 Cal.App. 4th at p. 1586, fn. 7 & p. 1587‑1588.)