Brief Bank # B-670 (Re: F 3.00 n5 [Lesser Offense Liability For Aider And Abettor].)
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COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SEVEN
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
(Los Angeles County
Defendant and Appellant.
APPEAL FROM THE JUDGMENT
OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
Honorable Rose Hom, Judge Presiding
APPELLANT’S OPENING BRIEF
JANET J. GRAY
ATTORNEY AT LAW
STATE BAR NO. 99723
P.O. Box 51962
Pacific Grove, CA 93950
Attorney for Appellant
IT IS REVERSIBLE ERROR FOR THE TRIAL COURT NOT TO INSTRUCT THE
JURY WITH LESSER INCLUDED OFFENSES SUPPORTED BY THE EVIDENCE
AGAINST APPELLANT, AS THE ALLEGED AIDER AND ABETTOR
In the present case there is evidence that appellant did not intend to aid and encourage a murder, but only intended to aid what he thought was Mr. P’s plan to scare the victim. As detailed above, there is some evidence suggesting that appellant knew Mr. P had access to a gun, and that brandishing the gun may have been the intended method to scare the victim. Thus there is evidence in the record suggesting that appellant only intended to aid and abet a crime such as a brandishing, an assault or an assault with a deadly weapon. Since brandishing is a misdemeanor, the evidence also supports instruction with involuntary manslaughter instructions. While the jury could have reached a different conclusion it was a jury question to determine the crime which appellant intended to aid and abet. The court’s failure to instruct the jury with these lesser crimes requires that appellant’s conviction be reversed.
B. The Jury Should Have Been Instructed That Appellant Could Be Found Guilty of Crimes Lesser Than Murder
In People v. Woods, supra, the court held that an aider and abettor can be found guilty of aiding the commission of a crime lesser than the crime the perpetrator was convicted of actually committing, if the lesser crime was foreseeable but the greater crime was not. (People v. Woods (1992) 8 Cal.App.4th 1570, 1585, citations omitted.) In such cases, the jury must be instructed as to the lesser crime or crimes. In the present case, there was evidence that appellant believed that Mr. P’s intention was only to scare the victim, Mr. R, believing Mr. R to be responsible for Mr. D’s death. However, the court did not instruct as to the lesser crimes of brandishing, assault, assault with a deadly weapon or involuntary manslaughter. The Woods court wrote:
If the evidence raises a question whether the offense charged against the aider and abettor is a reasonably foreseeable consequence of the criminal act originally aided and abetted but would support a finding that a necessarily included offense committed by the perpetrator was such a consequence, the trial court has a duty to instruct sua sponte on the necessarily included offense as part of the jury instructions on aider and abettor liability. Otherwise, as discussed in part I, ante, the jury would be given an unwarranted, all-or-nothing choice concerning aider an abettor liability.
However, the trial court need not instruct on a particular necessarily included offense if the evidence is such that the aider and abettor, if guilty at all, is guilty of something beyond that lesser offense, i.e., if the evidence establishes that a greater offense was a reasonably foreseeable consequence of the criminal act originally contemplated, and no evidence suggests otherwise. (Id. at p. 1593.)
In this case, the jury was not instructed that appellant could be convicted of something less than murder if the jury determined murder was not, under the facts of this case, a natural and probable consequence of the plan to scare the victim. As discussed above, the jury was not even instructed with CALJIC 3.02 but was instructed as if murder was the only possible target offense. The prosecutor exacerbated this error by arguing to the jurors that appellant was “just as guilty as Mr. P.” (RT 651.)
The court prejudicially erred in failing to instruct the jury that appellant could be convicted of a lesser crime if he aided and abetted a criminal act of which a lesser crime was a foreseeable consequence but murder was not. This error requires reversal of the second degree murder conviction, as the evidence raised a question as to whether murder was a reasonably foreseeable consequence of the intended crime, but would support a finding that a necessarily include offense committed by the perpetrator was such a consequence. (People v Woods, supra, 8 Cal.App.4th 1570, 15861587; see also, People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.
In Woods, the defendant was charged with aiding and abetting the target crime of assault with a firearm. The defendant was also charged with first degree murder which was premised on the theory that murder was a natural and probable consequence of the target crime that the defendant aided and abetted. The appellate court held an aider and abettor could be guilty of a lesser degree of crime than the perpetrator and, thus, was entitled to lesser included offense instructions on that theory. The court reversed the defendant’s first degree murder conviction based on the trial court’s failure to instruct as to second degree murder. The Woods court stated:
[I]t is self-evident that the aider and abettor does not stand in the same position as the perpetrator. While the perpetrator is liable for all of his criminal acts, the aider and abettor is liable vicariously only for those crimes committed by the perpetrator which were reasonably 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… (Id. at pp. 1586-1587.)
The Woods court concluded that in determining aider and abettor liability for crimes of the perpetrator beyond the act originally contemplated, the jury must be permitted to consider uncharged, necessarily included offenses where the facts would support a determination that the greater crime was not a reasonably foreseeable consequence but the lesser offense was such a consequence. Otherwise, the jury would be given an unwarranted, all-or-nothing choice for aider and abettor liability. (Id. at p. 1588.)
Either result (acquittal of the aider and abettor although the evidence establishes guilt of a lesser offense, or conviction for the greater offense because the jury has no option of finding the defendant liable for the lesser crime) is unjust and unacceptable. As the California Supreme Court has observed, ‘the People have no legitimate interest in obtaining a conviction on a greater offense than that established by the evidence, [and] a defendant has no right to an acquittal when the evidence is sufficient to establish a lesser included offense.’ (Id. at p. 1589, quoting People v. Sedeno, supra,  10 Cal.3d 703, 716; citing People v. St. Martin (1970) 1 Cal.3d 524, 533.)
The Woods court determined the facts of that case supported the jury’s determination that the killing was premeditated and deliberate, a first degree murder. The court also found sufficient evidence to support the jury’s determination that first degree murder was a reasonably foreseeable consequence of the assaults with firearms. “However, the jury made the second determination without the benefit of an alternative.” (Id. at p. 1590.) The jury had the choice of either convicting the aider and abettor of the assault of first degree murder, or acquitting him. (Ibid.)
C. The Evidence In This Case Raised A Question As To Whether Second Degree Murder Was A Natural And Probable Consequence of Assault and Supported A Finding That Involuntary Manslaughter or Some Lesser Crime Was Such A Consequence
The evidence in this case in fact raised a question as whether murder was a natural and probable consequence of the plan to scare the victim. As set forth above, Mr. P’s weapon was not drawn prior to his shooting at the victim’s residence. The evidence supports a conclusion that appellant believed that the only plan was to scare the victim and not kill him. Appellant was not dressed in any manner suggesting that he was about to engage in a revenge killing, such as wearing head gear covering his face or nondescript clothing. None of Mr. P’s statements at the hospital, that he was going to do something about Mr. D’s death, specified the extent to which Mr. P was willing to go. There is also a conflict in the record as to whether appellant was even present when some of Mr. P’s statements were made, inasmuch as Mr. C’s taped interview indicates that he was not. (Ex. 3.)
The jury could have concluded that it was not reasonably foreseeable that Mr. R would be murdered but, rather, that it was reasonably foreseeable that his death would result from an involuntary manslaughter [Footnote 1] or some other lesser offense. While it is true that the jury may have chosen to disregard appellant’s statement that he believed that Mr. P was only intending to scare the victim, it was the jury’s function to resolve this question. (See, e.g. People v. Hedgecock (1990) 51 Cal.3d 395, 407-409.) The jury could also have accepted the statement’s validity and apparently did inasmuch as it obviously rejected his in-court alibi defense. (See, People v. Godinez, supra, 2 Cal.App.4th at p. 502, fn. 7.) Therefore, the trial court had a duty to instruct sua sponte as to all lesser included offenses and in such a way that the jury could understand that appellant could be found guilty of aiding and abetting a involuntary manslaughter or a lesser crime–even if the shooter was guilty of murder–if the lesser crime was foreseeable but the greater crime was not.
The aiding and abetting instructions in this case required a finding that appellant aided and abetted a murder in order to find him guilty on a aiding and abetting theory. The jury was actually forced to find that appellant had aided and abetted a murder, or acquit him. It is unlikely under the facts of this case that the jury would be inclined to absolve appellant of any wrong-doing once it had rejected his alibi defense. Thus the jury was presented with a all-or-nothing choice. The jury clearly should have been given the option of finding appellant aided and abetted an involuntary manslaughter, or some lesser included crime.
D. The Trial Court’s Failure to Properly Instruct the Jury Is Reversible Error
The failure to instruct on a lesser included offense requires reversal unless it can be determined that the factual question posed by the omitted instruction was necessarily resolved adversely to appellant under the properly given instructions. (People v. Sedeno (1974) 10 Cal.3d 703, 721; People v. Ramkeesoon, supra, 39 Cal.3d at pp. 351-352.) Such error cannot be cured by weighing the evidence and finding it not reasonably probable that a correctly instructed jury would have convicted the defendant of the greater offense. (People v Wickersham (1982) 32 Cal.3d 307, 335.)
In the present case, the factual question posed by the omitted instruction was not necessarily resolved adversely to appellant under the first degree or second degree murder instructions. While it is true that in the Woods case the court found that if the defendant there was guilty of anything, it was of second degree murder, thereby precluding the necessity of instructing on a lesser included crime the facts of that case are markedly different than the present case. There the alleged aider and abettor had planned to execute another victim, as indicated by strong evidence that he was armed and wearing a hood covering his face. (People v. Woods, supra, 8 Cal.App.4th at pp. 1594-1595.) Also evidence that Woods and the actual perpetrator had expressed an intent to execute the intended victim. When the pair could not locate their intended victim, they stole tires off his car outside of his residence. Some uninvolved bystanders witnessed the pair with the tires without their masks. Defendant Wood’s accomplice opened fire on the bystanders, killing one of them. This is markedly different in the present case where appellant was not armed and the evidence is ambiguous as to whether he even knew if Mr. P was.
Footnote 1: The involuntary manslaughter instruction provides, in relevant part: Every person who unlawfully kills a human being without malice aforethought and without an intent to kill is guilty of the crime of involuntary manslaughter in violation of Penal Code Section 192(b). [§] In order to prove such crime, each of the following elements must be proved: 1) A human being was killed, and 2) The killing was unlawful. [§] A killing is unlawful within the meaning of this instruction if it occurred: 1) During the commission of a misdemeanor which is inherently dangerous to human life, namely, the offense[s] of _________; or 2) In the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection. (CALJIC 8.45)