Brief Bank # B-787b (Re: FORECITE F 3.02 n19: Natural And Probable Consequences Must Not Be Based On Target Offense In Abstract.)
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D. The Instructions Failed to Require the Jury to Find That Murder Was a Natural and Probable Consequence of the Target Offense Committed by Appellant W.
Liability under the natural and probable consequences doctrine requires that the defendant aid and abet a specific target offense and that the charged offense be a natural and probable consequence of that target offense. (People v. Prettyman, supra, 14 Cal.4th 267.)
However, the natural and probable consequences instruction erroneously failed to require the jury to make this determination.
The jury was instructed as follows:
“One who aids and abets [another] in the commission of a crime [or crimes] is not only guilty of [that crime] [those crimes], but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime[s] originally aided and abetted.
In order to find the defendant guilty of the crime[s] of murder, you must be satisfied beyond a reasonable doubt that:
(1) The crime of Felony Child Abuse-Neglect, Endangerment [were] committed,
(2) That the defendant aided and abetted such crime[s],
(3) That a co-principal in such crime committed the crime[s] of Felony Child Abuse, Neglect-Endangerment and
(4) The crime of murder was a natural and probable consequence of the commission of the crime of Felony Child Abuse-Neglect-Endangerment.” (CT 576.)
This instruction was erroneous because Element number three should have referred to murder rather than child endangerment/abuse. This error permitted the jury to find that Appellant W aided and abetted one target offense per Element number one which may not have met the natural and probable consequence requirement but that Appellant F committed a different violation of child endangerment/abuse in Element number three which did meet the requirement. This is so because, in the present case, there were at least two alleged target offenses upon which Appellant W’s liability could have been predicated. (See pp. 73-76, herein.) Hence, the jury was not required to find that murder was a natural and probable consequence of the offense specified in Element number one.
The failure to require a jury determination as to this essential element of the charge was reversible error. (See People v. Kobrin, supra; Suniga v. Bunnell, supra, 998 Fed.2d 664.)
E. The Court’s Instructions Were Prejudicially Erroneous in Allowing the Jury to Consider Whether the Crime of Murder in the Abstract Is a “Natural and Probable Consequence” of the Crime of Felony Child Endangerment/Abuse in the Abstract
The trial court’s aiding and abetting instructions erroneously permitted the jury to make its “natural and probable consequences” determination based on whether the crime of murder in the abstract is a natural and probable consequence of the crime of felony child endangerment/abuse in the 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 (1985) 41 Cal.3d 1, 12, fn. 5; accord People v. Durham (1969) 70 Cal.2d 171, 181; People v. Luparello (1986) 187 Cal.App.3d 410, 441.) 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 (1993) 21 Cal.App.4th 518, 531.)
However, the trial court instructed the jury as follows:
One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted.
In order to find the defendant guilty of the crime of murder as charged in Count I, you must be satisfied beyond a reasonable doubt that:
(1) The crime of felony child abuse-neglect, endangerment was committed,
(2) The defendant aided and abetted such crime,
(3) That a co-principal in such crime committed the crime of felony child abuse-neglect, endangerment, and
(4) The crime of murder was a natural and probable consequence of the commission of the crime of felony child abuse-neglect, endangerment
(CT 576 [emphasis added].)
The trial court’s instruction spoke solely about whether the charged offense was the natural and probable consequence of another crime aided and abetted by appellant. The phrase of the instruction challenged here, the last one [numbered paragraph (4)], told the jury it was supposed to determine whether “the crime of murder” was a natural and probable consequence of “the crime of felony child abuse-neglect, endangerment.” The instruction did not tell the jury to consider whether the perpetrator’s act of murder was a natural and probable consequence of the defendant’s act of felony child abuse etc—i.e., whether the “act committed” was the natural and probable consequence of the “act [the defendant] knowingly aided and abetted.” (Compare People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5; People v. Nguyen, supra, 21 Cal.App.4th at p. 531.)
A juror may have concluded from common use of language that the word “crime” in this instruction referred generically to the “crime” of felony child abuse-neglect, endangerment, in the abstract, and not to the particular act constituting an assault.
The above is not merely appellant’s reading. It is also the reading given the trial court’s instruction, the 1992 revision of CALJIC No. 3.02, in People v. Mouton (1993) 15 Cal.App.4th 1313, 1320. In approving of the 1992 revision, Mouton held that the trial court was required to set forth the essential elements of the originally contemplated crime, and the jury was required to find those elements. Thus, Mouton held that the jury first had to find the existence of some crime as defined by statute—“the crime of assault”—before it could determine whether the charged crime was a “natural and probable consequence” of the originally intended crime. (Accord People v. Prettyman (1996)14 Cal.4th 248.)
Even if the instruction were merely ambiguous, jurors could still have been confused. As is shown by People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5, the trial court was required to direct the jury to consider whether the murder in this case was a natural and probable consequence of the particular act appellant aided and abetted. However, not once did the court’s instruction refer to a “criminal act” or an “act.”
The instructional problem was exacerbated in the present case by the fact that more than one act could have qualified as the target offense. The jury should have been required to find that murder was the natural and probable consequence of one or more of those acts, not the target crime in the abstract.
As a result, this instruction, as given in this case, was incorrect and created a substantial probability jurors would be misled into determining appellant’s criminal liability under the natural and probable consequences doctrine based on whether the crime of murder in the abstract is a natural and probable consequence of the crime of felony child abuse-neglect, endangerment in the abstract, and not, as is required, based on whether this crime of murder was a natural and probable consequence of this crime of assault.
The error falls under both state law and the Sixth and Fourteenth Amendments, because aiding and abetting was the only theory advanced by the D.A. as to Appellant W and thus it is likely that one or more jurors convicted Appellant W under a legally invalid theory based on “natural and probable consequences” as applied to crimes in the abstract. (See People v. Guiton (1992) 4 Cal.4th 1116, 1128-1129; Suniga v. Bunnell (9th Cir. 1993) 998 Fed.2d 664, 668-670; see generally Sullivan v. Louisiana (1993) 508 U.S. 275, 278-280 [without actual jury verdict on legally valid theory, there can be no conviction under Sixth and Fourteenth Amendments].)
Accordingly, the judgment should be reversed, and the cause remanded for a new trial.
