B-795

Brief Bank # B-795 (Re: 3.02g [Lesser Offense Liability For Aider And Abettor].)

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[Brief 1]

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION TWO

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

JOHN DOE,

Defendant and Appellant.

________________________________________/

OPENING BRIEF OF APPELLANT JOHN DOE

Appeal From Final Judgment of Conviction

Superior Court, County of Riverside

The Honorable H. Dennis Myers

Presiding Judge

S. Michelle May

State Bar No. 111072

1800 Market St. # 38

San Francisco, CA 94102

(415) 585-5907

Attorney for John Doe

By appointment of the Court of Appeal

(Appellate Defenders, Inc. – Independent Case)

III. THE TRIAL COURT ERRED BY GIVING INSTRUCTIONS WHICH PERMITTED THE JURY TO FIND APPELLANT GUILTY OF FIRST-DEGREE MURDER IF THE ONLY NATURAL AND PROBABLE CONSEQUENCES OF THE OFFENSE HE AIDED AND ABETTED WERE SECOND-DEGREE MURDER

A. An Aider And Abettor Can Be Convicted Of A Lesser Offense Than The Perpetrator

The Third District Court of Appeal’s opinion in People v. Woods (1992) 8 Cal.App.4th 1570 is on point to this case. A defendant can be convicted as an aider and abettor of a lesser-included offense within that committed by the perpetrator. Appellant adopts Woods and would ask this Court to follow it.

What defines an aider and abettor’s liability is Penal Code section 31, which says all persons concerned in the commission of a crime, including aiders and abettors, are principals in any crime so committed. Section 31, however, does not itself define what an aider and abettor is; that is left to caselaw. A person aids and abets a criminal act when he aids a perpetrator in a crime and shares the specific intent of the perpetrator (People v. Beeman (1984) 35 Cal.3d 547, 560), or when that criminal act is a reasonably foreseeable result of the criminal act intentionally aided. (People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5.)

Under that settled definition, nothing prevents the crime aided and abetted from being a lesser included offense of the highest crime committed by the perpetrator, if that highest crime is not a reasonably foreseeable result of the crime intentionally aided and abetted. A defendant may thus be convicted of the highest crime that is a reasonably foreseeable result of the original crime aided and abetted, even if it is a lesser included offense of the highest crime committed by the perpetrator. Woods is an example.

A rational jury could have found appellant was not the shooter (and between 1 and 11 jurors actually did so (CT 346, RT 1095-1096)). Thus, as to the issues in this Part, this case is procedurally identical to Woods, which the trial court appears to have recognized as well. (RT 1054.) The issue here is whether appellant could properly have been convicted of second-degree murder based on a finding that he was not the shooter, and even though Mr. P committed first-degree murder, the natural and probable consequence of the gang assault in which appellant participated was no more than second-degree murder. That was the issue in Woods as well, on somewhat different facts. Appellant would thus ask this Court to follow Woods. [Footnote 1]

B. Errors In Instructing The Jury It Could Find Appellant Guilty Of First-Degree Murder If Only Second-Degree Murder Was A Natural And Probable Consequence Of Aiding And Abetting The Beating

There are two separate reasons why the trial court’s instructions erroneously permitted the jury to find appellant guilty of first-degree murder, even if it found that second-degree murder was the most severe “natural and probable consequence” of the beating.

A properly instructed jury could have made this finding, as it was not required to conclude that first-degree murder was a “natural and probable consequence” of the beating. Indeed, in People v. Woods, supra, on facts far more extreme than these (since Windham knew the gang members had brought guns to the assault), the Court of Appeal held that the question of whether first-degree murder was a natural and probable consequence of the assault Windham aided and abetted was one for the jury. (Id., 8 Cal.App.4th at p. 1578.) If it was in Woods, it certainly must be here.

1. First Error: Failing To Distinguish Among Degrees Of Murder

The trial court instructed the jury:

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 assault was committed;

(2) The defendant aided and abetted such crime;

(3) A co-principal in such crime committed the crime of murder; and

(4) The crime of murder was a natural and probable consequence of the commission of the crime of assault. (RT 1070-1071.)

By this instruction, the jury was led to conclude that if appellant aided and abetted the assault, he was also guilty of the crime of murder, if a co-principal committed the crime of murder.

The problem is that the instruction permitted the jury to convict appellant of the first-degree murder that Mr. P committed if appellant was not the shooter, if “the crime of murder” was a natural and probable consequence of the crime of assault. The instruction did not specify what degree of murder had to be the natural and probable consequence of assault.

A rational jury could have concluded that second-degree murder was a natural and probable consequence of assault, particularly assault without any weapon enhancement allegations, in that a beating can go too far and turn into implied malice murder (on which the jury was also instructed, RT 1076). Some of Detective Nalian’s testimony would have provided support for that conclusion as well.

However, the jury on these instructions would not have found appellant guilty of second-degree murder under those facts, as it should have. Rather, it would have found appellant guilty of first-degree murder, the crime committed by Mr. P.

According to the plain wording of the instruction, if any type of murder was a natural and probable consequence of the beating appellant aided and abetted, then appellant could be convicted of whatever type of murder was committed by the perpetrator, because appellant would have been “guilty of any other crime committed by a principal” which was a natural and probable consequence of the beating.

The jury was told there is only one “crime of murder” (RT 1073), albeit in two different degrees (RT 1076). However, the “natural and probable consequences” instruction given this jury would have made appellant guilty of the higher degree of murder, because first-degree murder would have been “any other crime committed by a principal” (Mr. P), and the jury would therefore have found appellant guilty of it. That would have been so even if the jury would have found the lower degree was the most severe “natural and probable consequence” of the assault.

The law is contrary to the instruction, because the law—unlike the instruction—does distinguish between first and second degree for purposes of aiding and abetting liability. Woods so holds, and appellant has shown why in any event. (Ante.)

Consequently, the trial court’s instructions were in legal error, as they permitted the jury to convict appellant of first-degree murder on an invalid legal theory, based on a set of facts that would not have warranted a conviction for first-degree murder. Such a legally erroneous instruction is a violation of both state law and the Fourteenth Amendment. (People v. Guiton, supra, 4 Cal.4th at pp. 1128-1129; Suniga v. Bunnell, supra, 998 F.2d at pp. 668-670.) The error is prejudicial, because there is no way to know what facts the jury found, and thus no way to know whether the conviction rested on a legally correct theory or erroneous theory. (Ibid.)

The judgment should be reversed on this ground alone. Because the reversal is for failure to give an instruction that would have permitted the jury to find the defendant guilty of the lesser offense of second-degree murder, the reversal should be subject to the People’s option to accept a conviction for second-degree murder if they so elect within a reasonable period of time after issuance of the remittitur. (People v. Edwards (1985) 39 Cal.3d 107, 118.)

2. Second Error: Instructing The Jury Appellant Was “Equally Guilty” With The Perpetrator

CALJIC No. 3.00, as given the jury (RT 1069), would have further reinforced this conclusion. The jury was instructed that appellant was “equally guilty” with the perpetrator (RT 1069) of any crime which he aided and abetted (RT 1069), and aiding and abetting liability extended to the natural and probable consequences of the crime he aided and abetted. (RT 1070.) The jury (as in Woods) could readily have found that nonpremeditated murder was a natural and probable consequence of the beating, but premeditated murder was not. In that situation, “the crime of murder” would have been a natural and probable consequence of the commission of the beating (RT 1071), and appellant would therefore have been “equally guilty” with Mr. P. (RT 1069.)

Again, appellant would have been found guilty of first-degree murder under a legally erroneous theory, and could have been so found even if the jury had found facts which warranted only a conclusion of second-degree murder. This is state-law and Fourteenth Amendment error for the same reasons as in Part III(B)(2) above, and prejudicial for those reasons as well; appellant incorporates that discussion by reference herein.

3. The Errors Above Also Warrant Reversal Cumulatively

The cumulation of the errors in this section and the previous section created further prejudicial legal error, adding the effects of one instruction to those of another, and thereby permitting the jury to find appellant guilty of first-degree murder under facts that would have warranted conviction in the lesser degree. The cumulative error under both state law and the Fourteenth Amendment warrants reversal. (See, e.g., People v. Buffum (1953) 40 Cal.2d 709, 726 [state law]; Walker v. Engle (6th Cir. 1983) 703 F.2d 959, 963 [Fourteenth Amendment].)

C. Error In Failing To Instruct The Jury Sua Sponte That If Appellant Was An Aider And Abettor (Through His Participation In The Assault), He Could Be Found Guilty Of A Lesser Offense Than The Perpetrator

Apart from the above, the instructions also failed to inform the jury that it could convict appellant of a lesser offense than that committed by the perpetrator. The jury would have had no way to know that without being told by the trial court. Although the jury knew it could convict appellant of second-degree murder (RT 1076-1077), it was not given a proper legal basis on which to do so if it found Mr. P committed a premeditated murder.

Nor could the jury be expected to create such a legal basis on its own. It was obligated to follow the law given by the court, and only that law. (RT 1057.) The court gave no law to the jury that would have permitted the result discussed in this section.

The trial court is obligated to instruct sua sponte on each essential element of the charged offense as defined by law. (People v. Enriquez (1996) 42 Cal.App.4th 661, 665.) More generally, it is required to instruct sua sponte on the general principles of law relevant to the issues raised by the evidence, “those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” (People v. Wickersham, supra, 32 Cal.3d at pp. 323-324.)

Here, the facts of the case clearly delineated the issue of whether the jury would find the shooting a natural and probable consequence of the beating, if it found appellant was not the shooter. The trial court recognized it had to give the jury a second-degree murder option, and it even recognized the import of People v. Woods, supra, on that issue. (RT 1054.)

However, merely instructing the jury that it could find appellant guilty of second-degree murder was not enough, because the jury would not have had a specific legal basis on which to do that. The missing link which would have given that specific legal basis was the instruction that an aider and abettor can be found guilty of the same offense as or a lesser offense than the perpetrator. That instruction should have been given sua sponte. The need for such an instruction would have been particularly important, in light of the other instructional problems discussed earlier in this section.

Failure to give a sua sponte instruction is only harmless when the jury necessarily found according to the omitted instruction under other, properly given instructions. (People v. Sedeno, supra, 10 Cal.3d at pp. 720-721.) Here, no other instruction told the jury it could find appellant guilty of only second-degree murder even if it found Mr. P was the perpetrator and his own act was first-degree murder. Accordingly, the error is prejudicial.

The error was a violation of the Sixth and Fourteenth Amendments as well. Due process requires the trial court to charge the jury on all the elements of the crimes alleged in the information. (United States v. Gallerani (2d Cir. 1995) 68 F.3d 611, 617.) Here, the charged offense was murder, and both degrees were supported by the evidence so the trial court was obligated to instruct the jury on all applicable elements of both first- and second-degree murder.

Without the omitted instruction, the jury had an instruction on abstract elements of second-degree murder, but no legal basis to get there, since the shooting itself was obviously first-degree murder. The error thus deprived the jury of legal guidance on an essential element of the offense of second-degree murder as applied to appellant’s case, which deprived appellant of his federal jury trial and due process guarantees. (See United States v. Gaudin (9th Cir. 1995) 28 F.3d 943, 951 [cert. grd. o.g. and aff’d, ___ U.S. ___ [115 S.Ct. 2310, 132 L.Ed.2d 444]].) Since the jury could not have found in accordance with the omitted instruction under other proper instructions, the error was prejudicial. (See Carella v. California (1989) 491 U.S. 263, 269 [109 S.Ct. 2419, 105 L.Ed.2d 218] [conc. opn. of Scalia, J.] [quoted with approval in Sullivan v. Louisiana, supra, 508 U.S. at p. 281]; Martinez v. Borg (9th Cir. 1991) 937 F.2d 422, 425.)

Finally, this error as well is cumulative with one or both of the errors discussed earlier in this section, and on that basis as well is state-law and Fourteenth Amendment error. (People v. Buffum, supra, 40 Cal.2d at p. 726; Walker v. Engle, supra, 703 F.2d at p. 963.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION TWO

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

JOHN DOE,

Defendant and Appellant.

_____________________________________/

REPLY BRIEF OF APPELLANT JOHN DOE

Appeal From Final Judgment of Conviction

Superior Court, County of Riverside

The Honorable H. Dennis Myers

Presiding Judge

S. Michelle May

State Bar No. 111072

1800 Market St. # 38

San Francisco, CA 94102

(415) 585-5907

Attorney for John Doe

By appointment of the Court of Appeal

(Appellate Defenders, Inc. – Independent Case)

The People make no effort to argue that if People v. Woods (1992) 8 Cal.4th 1570 was correctly decided, any of the arguments in Part III of the AOB are in error. Instead, the only issue raised by the People is: Did Woods reach the correct result? If it did, the People have no other argument.

Appellant agrees with one thing: “Aiding and abetting liability is ‘derivative,’ meaning it results from an act by the perpetrator to which the accomplice contributed.” (RB 27.) The question remains: Derivative of what? Appellant’s argument is that it is derivative of the perpetrator’s act, but that the aider and abettor is punished based on his own mental state—either directly based on his intent, or based on the natural and probable consequences of what he intended. This merely restates the law as it has always been.

Contrary to the People’s claim, an aider and abettor is punished based on his own mens rea. The general rule is in People v. Beeman (1984) 35 Cal.3d 547, 556, that an aider and abettor must have the mens rea to further the perpetration of a target offense. Of course, when a target offense is a reasonably foreseeable consequence of the offense intended by the perpetrator, then the aider and abettor is punished for that reasonably foreseeable consequence as well; that is the rule of People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5 [citing People v. Beeman, supra, 35 Cal.3d at p. 560]. But even then, the aider and abettor cannot be punished unless he has the mens rea to commit an act constituting a criminal offense, and that act—under the facts of the case—had the reasonably foreseeable consequence of an act constituting a greater criminal offense. Whether something is “reasonably foreseeable,” in the sense of whether that harm was objectively likely, is a question of fact for the jury. (AOB 33, and authorities cited; Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6.)

Appellant obviously does not argue aider and abettor liability can never extend beyond the intent of the aider and abettor. (See AOB 41, 47 [citing People v. Croy, supra].) He does argue that it can never extend beyond the natural and probable consequences of the act intended by the aider and abettor. He also argues that it extends to every offense which is a natural and probable consequence of the act intended by the aider and abettor; whether those offenses are charged in the accusatory pleading, or are lesser-included offenses of charged offenses which are cognizable under Penal Code section 1159. (See also People v. Barton (1996) 12 Cal.4th 186, 196 [prosecutors do not generally charge lesser-included offenses, but they are considered under section 1159; neither side has an interest in preventing the jury from utilizing section 1159 as part of its truth-seeking function].)

To artificially cut off criminal liability at only charged offenses, without consideration of lesser offenses, is to artificially limit the ability of the finder of fact to return a verdict. Our Supreme Court has repeatedly held, however, that neither the People nor the defendant have any proper interest in such a limitation. (E.g., People v. Barton, supra, 12 Cal.4th at p. 196; People v. St. Martin, supra, 1 Cal.3d at p. 533.)

Thus, the position taken by the People, apart from being contrary to Penal Code section 31 (post), is contrary to longstanding law. It is also illogical, since it could greatly harm the prosecution of many major crimes.

Suppose for example, Defendant X participates in a violent beating of rival gang members in the rival gang’s territory, and X is also carrying a gun. Although X was not then intending to use his gun, Y, a new member of X’s gang with no prior acts of violence, decides during the beating that it would help his standing in his gang to kill someone, so Y grabs X’s gun and shoots a rival gang member dead; Y later confesses and pleads guilty to premeditated murder. X is charged with murder, and defends by claiming it wasn’t foreseeable to him that Y would grab his gun or kill anyone, and he had no idea that was going to happen. Believing the evidence is strong that a premeditated murder by Y was not foreseeable, X argues what the People argue here—that Woods is wrong; and since the only evidence is that the murder was premeditated, the jury must be instructed that it cannot convict X of second-degree murder on an aider and abettor theory. The District Attorney, on the other hand, wants the jury to have the second-degree murder option, to maximize the likelihood of a murder conviction. Who prevails?

Under the People’s theory, the defendant gang member X prevails. According to the People, the DA’s theory is legally nonexistent, and it is legally impossible to convict a defendant of second-degree murder under an aiding and abetting theory, when the perpetrator committed a first-degree murder. According to the People, the DA’s theory is nonexistent even though a rational jury could find that some murder was reasonably foreseeable on these facts—because X carried a gun into a fight in a rival gang’s territory—and that same rational jury might find the greatest foreseeable murder was one in the second degree, if given the option.

Needless to say, the above is exactly the type of case in which one would expect the law to allow for the possibility of convicting a defendant of a lesser murder (second-degree) as an aider and abettor, in order to ensure he could be convicted of some murder if the jury found that to be a reasonably foreseeable consequence of his actions. The DA in the above case would be extremely unhappy with any other result, for precisely the reason of which the People complain—the District Attorney is in the best position to know when it is in the People’s best interests to seek particular verdicts. (RB 32.)

If a defendant could eliminate this potential form of culpability altogether, over the District Attorney’s objection, that would permit the same type of practice condemned by the Supreme Court in cases such as People v. Barton, supra: “‘Our courts are not gambling halls but forums for the discovery of truth.’ [Citation.] . . . . [N]either the prosecution nor the defense should be allowed, based on their trial strategy, to preclude the jury from considering guilt of a lesser offense included in the crime charged.” (Id., 12 Cal.4th at p. 196.) That applies to the defense, and as Barton makes clear, it applies to the prosecution too.

Of course, if our statutes required such an “all-or-nothing” result in all aiding and abetting cases, then that would have to be the result. But our statutes don’t require that result; they require the opposite result. Appellant quotes Penal Code section 31 in pertinent part:

WHO ARE PRINCIPALS. 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.

The statute says aiders and abettors are principals in “any crime so committed” (emphasis added). It does not say aiders and abettors are principals only in a charged crime so committed. The statute says what it says, and must be so construed, under state law and the Fourteenth Amendment. (Code Civ. Proc., § 1858; Pacific Southwest Realty Co. v. County of Los Angeles, supra, 1 Cal.4th at p. 167; McBoyle v. United States, supra, 283 U.S. at p. 27.) (Any ambiguities must be construed favorably to the defendant under both sources of law. Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 831; United States v. Bass (1971) 404 U.S. 336, 347 [92 S.Ct. 515, 30 L.Ed.2d 488]. But there are no ambiguities here.)

Furthermore, section 31 must be construed harmoniously with other penal statutes. (People v. Woodhead (1987) 43 Cal.3d 1002, 1009.) Penal Code section 1159 states:

The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.

Thus, whenever there is a valid legal theory which permits conviction of a lesser-included offense, that legal theory must go to the jury, and cannot be blocked by either side. (People v. Barton, supra, 12 Cal.4th at p. 196.) Penal Code section 31 states such a valid legal theory, when more than one reasonably foreseeable offense could emanate from a target offense, and one of those is a lesser-included offense of the highest one charged. The District Attorney may be in the best position to determine what (s)he thinks is the best offense to put in the charging documents (RB 32), but the Legislature has expanded all charging documents as a matter of law to include lesser-included offenses, in section 1159.

Moreover, the People’s concern about what the District Attorney can charge (RB 32) is misplaced in a murder case. Murder cases are routinely charged as “murder,” and so was this one. (CT 136.) Since the information in this case and other murder case charges both second-degree and first-degree murder, there should be no concern over convicting a person of second-degree murder as an aider and abettor, when he aids and abets an assault for which second-degree murder is foreseeable.

The People rely on the dissent in People v. Woods, supra, and ask that Justice Scotland’s opinion for the Court be rejected. Notably, the People’s argument in Woods which was rejected by the Court was that aider and abettor liability “is an all-or-nothing proposition.” (Id., 8 Cal.App.4th at p. 1580.) As discussed above, our laws are truth-seeking and not gambling in nature, and forced all-or-nothing verdicts are generally rejected under California law. (E.g., People v. Barton, supra; People v. St. Martin, supra.) One can readily understand why the Court rejected the People’s “all-or-nothing” claim in Woods.

The Woods Court’s analysis was firmly centered around the natural and probable consequences doctrine, as interpreted in cases such as People v. Croy, supra. Its holding was also based on exactly the statutory language quoted above by appellant—that section 31 says aiders and abettors are principals in “any crime so committed” (emphasis added), not merely in a charged crime so committed. (Woods, supra, 8 Cal.App.4th at pp. 1583-1584.) And its holding was also based on exactly the principle of section 1159 stated above by appellant (and on which Barton was also based)—that even if the prosecution doesn’t charge it, a defendant can be found guilty of a lesser-included offense within a charged offense. (Woods, supra, 8 Cal.App.4th at pp. 1587-1588.) One can hardly find the Court in error for following the statutes. [Footnote 2]

The People’s “aider and abettor is guilty only of precisely the same offense as the perpetrator” theory (see ante, fn. 3) brings to mind Justice Weiner’s well-known concurring opinion:

Here . . . Luparello’s liability is not based on his individual mental state but instead turns on the jury’s finding that the unidentified shooter intentionally killed Martin while lying in wait. Thus, Luparello is guilty of first degree murder. If the circumstances of Luparello’s participation were exactly the same but the shooter did not “lie in wait,” Luparello could only be convicted of second degree murder. I am intrigued by the notion that if unknown to Luparello, the shooter ingested drugs and/or alcohol to the point where he did not in fact harbor the requisite malice, Luparello would presumably be guilty only of voluntary manslaughter. And to take it a step further, if it turned out the shooter was insane, would Luparello have no liability at all for Martin’s homicide? . . . I find such fortuity of result irrational.

(People v. Luparello (1987) 187 Cal.App.3d 410, 453 [conc. opn. of Weiner, J.].) While Justice Weiner was making a different point with this example, the example also makes appellant’s point perfectly. It yields results that are just plain silly, as Justice Weiner intended, but it is the result that the People’s theory (aider and abettor liable for precisely the same crime as perpetrator) necessarily creates. Appellant’s view, by contrast, leads to punishment commensurate with culpability, which is how our legal system is supposed to work. Under sections 31 and 1159, that is how it does work.

Finally, nothing in People v. Prettyman (1996) 14 Cal.4th 248 “contradicts the Woods majority[],” “flatly” or otherwise. (RB 30.) Prettyman did not reach the Woods issue, and did not reach any of the arguments in this brief. Cases are never authority for propositions not considered. (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 65-66.)

Our Supreme Court held in People v. Barton, supra, that the jury cannot be instructed in a way that would prevent it from returning a lesser-included offense conviction, which it would otherwise have found justified by the facts. That is one of the errors which appellant argues here. The jury could easily have convicted appellant on first-degree murder though it found facts which as a matter of law would have required a second-degree murder conviction.

The other error is that the jury was not given a legal basis with which to find that an aider and abettor could be convicted of an offense less than the perpetrator, and in fact it was steered away from that result. (See generally AOB 49-54.) As appellant showed in his opening brief, these errors fall under both state law and the Sixth and Fourteenth Amendments.

In short, an aider and abettor is not always “equally guilty” with the perpetrator. (Compare RB 33.) He can only found guilty of what he intends, or what the jury finds to be the natural and probable consequences of what he intends. However, he can be found guilty of either of those, when they are a charged offense or a lesser-included offense. The trial court erred in failing to recognize this.

FOOTNOTES:

Footnote1: The argument raised in People v. Prettyman (Dec. 9, 1996) ___ Cal.4th ___ [96 Daily Journal D.A.R. 14698] was a variation on that in Woods, but did not raise the actual issue in Woods. (See Prettyman, supra, ___ Cal.4th at p. ___ [96 Daily Journal D.A.R. at p. 14707, fn. 11].) The issue here, procedurally, is the actual issue in Woods.

Footnote 2: The view of the dissent in Woods, by contrast, seems to fail to recognize that the distinction between two crimes often depends solely on mental state. If a crime that is lesser solely because of a lesser mental state is foreseeable, and a crime that is greater solely because of a greater mental state is not, then the jury must be allowed to convict of the latter.

To hold otherwise would be to eliminate the distinction between first- and second-degree murder for purposes of aider and abettor liability, which as shown above is not only contrary to law, but would also be contrary to the interests of the People in many situations. Thus, although the Woods dissenter stated “[w]hat is crucial is that the aider and abettor either knew or should have known that a killing was a likely result” (id., 8 Cal.App.4th at p. 1603), that begs the question: Of what crime is a person guilty when he is deemed to intend “a killing”? Is he guilty of the greatest “killing” crime because that is what the prosecution wants? Is he guilty only of whatever crime the perpetrator commits—which could be no crime at all if the perpetrator is acting in self-defense, even if the aider and abettor’s intent is murder and not self-defense? (See also post, p. .) Or rather, does the law require inquiry into the aider and abettor’s own intent and actions, and fasten culpability based on his own intent plus actions (including the reasonably foreseeable consequences of his intent and actions)?

Penal Code section 20 provides the common-sense answer; it is the latter. And with that, Penal Code sections 31 and 1159 direct that all possible verdicts, based on all combinations of intent plus actions supported by substantial evidence, may be considered by the jury.

[Brief 2] Date Of Brief: September, 1997.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

IN AND FOR THE FIFTH APPELLATE DISTRICT

THE PEOPLE OF THE STATE OF CALIFORNIA, No. FO00000

Plaintiff and Respondent,

vs. Superior Court

No. 00000 A & B

Kern County

JANE DOE and JOHN DOE,

Defendants and Appellants.

_____________________________________________/

APPELLANT’S OPENING BRIEF

On Appeal From the Judgement of the Superior Court

of the State of California

In and For the County of Kern

HONORABLE CLARENCE WESTRA, JR., JUDGE

THOMAS LUNDY

Attorney at Law

2500 Vallejo Street, Suite 200

Santa Rosa, CA 95405

(707) 524-8112

Attorney for Appellant John Doe

By Appointment of Court of Appeal

Under the Central California Appellate Project

THE NATURAL AND PROBABLE CONSEQUENCES

INSTRUCTION WAS PREJUDICIALLY ERRONEOUS IN SEVERAL RESPECTS

Understanding and applying the natural and probable consequences doctrine is “not an easy task” for the jury — even under correct instructions. (People v. Prettyman, supra, 14 Cal.4th at 267.) However, in the present case, the court’s instruction on this theory was erroneous and confusing in several respects. These errors were prejudicial, individually and cumulatively, under state law and the federal constitution (Due Process, 14th Amendment; trial by jury, 6th and 14th Amendments; People v. Buffum, supra, 40 Cal.2d at 726; Walker v. Engle, supra, 703 Fed.2d at 963.) They also implicated federal due process by arbitrarily denying his state law rights to due process and trial by jury (Hicks v. Oklahoma (1980) 447 U.S. 343.)

A. The Court Prejudicially Failed to Require a Jury Determination of Jane Doe’s’ Guilt Without onsidering Her Statements for Purposes of John Doe’s Aiding And Abetting Liability

CALJIC 3.02 as given in the present case removed from the jury’s determination of John Doe’s guilt the question of whether Jane Doe was guilty of murder. Hence, the judgment should still be reversed because the jury was never required to make an essential factual determination required to properly convict John Doe as an aider and abettor.

CALJIC 3.02 provides a form which specifies the essential elements of aiding and abetting liability under the natural and probable consequences doctrine. In the present case the trial court filled out this form in such a way as to remove from the jury the determination that Appellant Jane Doe actually committed the offense of murder. Removal of this element was reversible error as to Appellant John Doe:

“To apply the “natural and probable consequences” doctrine to aiders and abettors is not an easy task. The jury must decide whether the defendant (1) with knowledge of the confederate’s unlawful purpose, and (2) the intent of committing, encouraging, or facilitating the commission of any target crime(s), (3) aided, promoted, encouraged, or instigated the commission of the target crime(s); whether (4) the defendant’s confederate committed an offense other than the target crime(s); and whether (5) the offense committed by the confederate was a natural and probable consequence of the target crime(s) that the defendant encouraged or facilitated. Instructions describing each step inthis process ensure proper application by the jury of the “natural and probable consequences” doctrine.” [Original emphasis.] (People v. Prettyman (1996) 14 Cal.4th 248, 267.)

“Instructions describing each step in this process ensure proper application by the jury of the ‘natural and probable consequences’ doctrine.” (Ibid.) The failure of the instructions to “encompass” each step may result in the withdrawal of an essential element of the charge from the jury’s consideration. (Id., at 271-72.)

In the present case the standard instruction on this issue, CALJIC 3.02, was utilized to describe each element to the jury. However, instead of requiring the jury to find that defendant’s confederate (ie., Jane Doe) committed an “offense other than the target crime” (ie., murder) the instruction merely required the jury to find that Jane Doe committed the crime of “Felony Child Abuse, Neglect, Endangerment.” (CT 576.) [Footnote 1] Hence, the jury was never required to find an essential element of aiding and abetting liability under the natural and probable consequences doctrine: whether Jane Doe committed murder.

By removing an essential element of the charge this instruction violated Appellant John Doe’s federal constitutional rights to due process and trial by jury. (See People v. Kobrin (1995) 11 Cal.4th 416.)

In, Kobrin the Supreme Court recognized, but did not resolve, the question of whether the failure to instruct on a single element of the charge is reversible per se. (Kobrin, supra, 11 Cal.4th at 429, fn 8.) Instead, the court reversed under the circumstances of this case because “the defense did not concede the issue … and the trial court’s instruction completely deprived the jury of an opportunity to consider the materiality [issue].” (Kobrin, supra, 11 Cal.4th at 430.)

Under this analysis reversal is also required in the present case even if the error is not reversible per se. The defense did not concede the omitted issue. To the contrary, one of the central focuses of John Doe’s defense was that Jane Doe did not commit the killing. Nor did the jury’s conviction of Jane Doe resolve this issue as to John Doe. In convicting Jane Doe of murder under Count I the jury was permitted to consider the highly incriminatory statements of Jane Doe. (See pp. 26-7, herein.) However, this evidence was inadmissible as to John Doe and was not to be considered “in any way whatsoever” in determining his guilt. (RT 208.) Hence, the jury’s determination that Jane Doe was guilty under all the evidence, including her statements, cannot substitute for the determination omitted from CALJIC 3.02, of whether, without considering her statements, the remaining evidence was sufficient to find that Jane Doe both killed the baby and harbored malice. [Footnote 2] The court’s instruction deprived the jury of an opportunity to determine whether Jane Doe was guilty of murder without considering her statements. Accordingly the judgement should be reversed.

B. The Trial Court Erred by Requiring the Jury to Find John Doe “Equally Guilty” to Jane Doe

The jury instructions, as well as the argument of the D.A., told the jury that if John Doe was an aider and abettor he was “equally guilty” of the crime committed by Jane Doe. (CT 574; RT 1454, 1456.) Furthermore, CALJIC 3.02 (CT 576) told the jury that John Doe was guilty of murder if she committed murder and he aided and abetted her in committing a target offense of which murder was a natural and probable consequences.

This was prejucicial error.

A person aids and abets a criminal act when he aids a perpetrator in a crime and shares the specific intent of the perpetrator (People v. Beeman (1984) 35 Cal.3d 547, 560), or when that criminal act is a reasonably foreseeable result of the criminal act intentionally aided. (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.)

In the present case, a rational jury could have concluded that involuntary manslaughter rather than murder was not the natural and probable consequence of the the crime of child abuse/endangerment (PC §237a) especially because that crime may be committed by a negligent ommission as opposed to actual malice. (See CT 564-66.) Such a construction is consistent with the court’s analysis in People v. Lee (1991) 234 Cal.App.3d 1214, 1218-29, which held that PC §237a is not an inherently dangerous felony.

Moreover, the fact that Appellant Jane Doe’s statements — which evinced some evidence of malice toward the baby but were inadmissable against John Doe — provided further support for the a finding that murder was not a natural and probable consequences of the taping which John Doe aided and abetted.

Consequently, the trial court was obligated to instruct the jury that could be found guilty of a lesser crime than Jane Doe if it concluded that murder was not a natural and probable consequence of the target offense. The trial court is required to instruct sua sponte on the general principles of law relevant to the issues raised by the evidence, “those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” (People v. Wickersham, supra, 32 Cal.3d at 323-324.)

The failure to do so was reversible error because it left the jury with an unwarranted all-or-nothing choice as to John Doe and effectively removed the natural and probable consequences issue from the jury’s consideration. Failure to give a sua sponte instruction is only harmless when the jury necessarily found according to the omitted instruction under other, properly given instructions. (People v. Sedeno, supra, 10 Cal.3d at 720-721.) Here, no other instruction told the jury it could find appellant guilty of only involuntary manslaughter if it found Jane Doe guilty of murder as the perpetrator. Since the jury could not have found in accordance with the omitted instruction under other proper instructions, the error was prejudicial. (See Carella v. California (1989) 491 U.S. 263, 269 [conc. opn. of Scalia, J.] [quoted with approval in Sullivan v. Louisiana, supra, 508 U.S. at p. 281]; Martinez v. Borg (9th Cir. 1991) 937 Fed.2d 422, 425.) [Footnote 3]

C. CALJIC 3.02 Erroneously Failed to Require That the Murder Be Committed During the Commission of the Target Offense [Footnote 4]

The D.A. relied upon the “natural and probable consequences doctrine” as the basis for Appellant John Doe’s liability. (RT 1455; see also, 1395.) Under this doctrine the jury was instructed that Appellant John Doe should be found guilty of murder if he aided and abetted “the crime of felony child abuse, neglect, endangerment” and the crime of murder was a natural and probable consequence of the commission of that crime. (CT 576.)

However, the jury should not have been permitted to rely on the earlier child abuse/endangerment violation alleged in Count II as the “target offense” for the natural and probable consequences doctrine because the homicide was not committed during that offense. Alternatively, the jury should have been required to find that the homicide was committed during the Count II violation before it could rely on it as the predicate “target offense” under the natural and probable consequences instruction.

1. The Natural And Probable Consequences Doctrine Should Apply Only To Offenses Committed By The Perpetrator

During The Commission Of The Target Offense

The cases which have approved the natural and probable consequences doctrine involved fact situations where the charged offense was obviously committed during the commission of the target offense. As recently recognized in People v. Prettyman (1996) 14 Cal.4th 248, 262, the decisions most commonly involve situations where either: (1) a defendant aided a confederate in committing an assault during which the confederate also murdered the victim, or (2) “a defendant assisted in the commission of an armed robbery, during which a confederate assaulted or tried to kill one of the robbery victims.” [Emphasis added.] Hence, the cases do not specifically authorize authorized imposition of criminal liability under the natural and probable consequences doctrine in situations where the charged offense is not committed during the commission of or escape from the target offense.

People v. Durham (1969) 70 Cal.2d 171, a case often cited with approval in the decisions discussing the natural and probable consequences doctrine (see, e.g., People v. Prettyman, supra, 14 Cal.4th at 261), includes dicta supporting limitation of the doctrine to crimes committed during the commission of the target offense: “All persons concerned in the commission of a crime . . . are principals and, when two or more are concerned, they are bound by the acts and declarations of each other, when such acts and declarations are part of the transaction in which they are engaged because they are principals . . . .” [Internal quote marks deleted; emphasis added.] Hence, Durham recognized that the natural and probable consequences doctrine should be limited to crimes committed by co-principals during the transaction in which they are engaged; i.e., the target offense.

Such a limitation is consistent with the rules regarding other doctrines which base liability upon a predicate felony. For example, felony murder does not apply unless the underlying felony and the killing are part of “a continuous transaction.” (People v. Thompson (1990) 50 Cal.3d 134, 171.) Therefore, when the evidence may be interpreted to conclude that the underlying felony had ended before the killing occurred, the trial court is under a sua sponte obligation to instruct the jury as to when the underlying felony ends and that murder may not be predicated upon the killing which occurs after the felony has ended. (See People v. Pearch (1991) 229 Cal.App.3d 1282, 1299; see also, Annotation, What constitutes termination of felony for purpose of felony-murder rule, 58 ALR3d 851.)

Similarly, a conspirator is vicariously liable for the acts of a co-conspirator committed “in the course of the conspiracy.” (See People v. Prettyman, supra, 14 Cal.4th at 261.) If a similar limitation is not also placed upon the natural and probable consequences, it would be so far expanded as to produce absurd results. For example, consider a situation where (A) an employee of a business aids and abets (B) in embezzling money from the business by assisting him in falsifying the books. If two days later (B) falsifies the books on his own, without help from (A), (B)’s conduct could be viewed as being a natural and probable consequence of the first embezzlement which (A) aided and abetted. But, (A)’s liability should not extend to the second embezzlement because that was a separate, independent crime committed after the termination of the first embezzlement. Otherwise, there would be no limit to (A)’s liability for the events he set in motion by aiding and abetting the target offense. If (B) continued to commit additional embezzlements for months or even years, (A) would be liable. Obviously, this absurdity requires that the natural and probable consequences doctrine be limited to crimes committed during the commission of the target offense.

2. The Error Was Prejudicial

The additional tapings, which allegedly occurred sometime between 5/20/95 and 5/27/95, were distinct and separate from the fatal taping which occurred on 5/28/95. They were the subject of separate counts and separate charges. [Footnote 5]

Hence, on this record the judgment should be reversed because there cannot be determined that no juror relied upon the legally erroneous theory that John Doe aided and abetted the earlier target offense which was already completed before the killing occurred. (People v. Guiton, supra.) Conviction based upon a legally erroneous theory violates the defendant’s state and federal (6th and 14th Amendments) constitutional rights to due process and trial by jury. (Suniga v. Bunnell (9th Cir. 1993) 998 Fed.2d 664; Sullivan v. Louisiana, supra, 508 U.S. at p. 281.)

Moreover, even if reliance on the earlier target was not erroneous as a matter of law, the jury should have been required to determine whether the murder occurred during the commission of the target offense. The failure to require jury determination of this element violated the state and federal (6th and 14th Amendments) rights to due process and trial by jury and requires reversal. (People v. Kobrin, supra,11 Cal.4th 416.)

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 John Doe

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 John Doe aided and abetted one target offense per Element number one which may not have met the natural and probable consequence requirement but that Appellant Jane Doe 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 John Doe’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:

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 John Doe and thus it is likely that one or more jurors convicted Appellant John Doe 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.

OPENING BRIEF FOOTNOTES [Footnote 1-5]:

Footnote 1: The second paragraph of CALJIC 3.02 as given in the present case provided as follows:

In order to find the defendant guilty of the crime of murder, you must be satisfied beyond a reasonable doubt that: (1) The crimes 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. [Emphasis added.] (CT 576.)

Footnote 2: Both the determinations of identity (whether Jane Doe committed the killing) and malice (whether she intended to kill or formed implied malice) would have been substantially affected depending on whether or not her statements were considered.

Footnote 3: The error was a violation of the Sixth and Fourteenth Amendments as well. Due process requires the trial court to charge the jury on all the elements of the crimes alleged in the information. (United States v. Gallerani (2d Cir. 1995) 68 Fed.3d 611, 617.)

Footnote 4: The instruction was taken from the 1992 revision of CALJIC 3.02 which required that the appropriate blanks be filled in. In the present case the instruction provided as follows [material added in the blanks is underlined]:

PRINCIPALS–LIABILITY FOR NATURAL AND PROBABLE CONSEQUENCES

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.

Footnote 5: For purposes of juror unanimity, the continuous course of conduct exception can apply to PC §273a. (People v. Ewing (1977) 72 Cal.App.3d 714.) However, Ewing involved a situation where “the information alleged a course of conduct . . . which had occurred between two designated dates. The issue before the jury was whether the accused was guilty of the course of conduct, not whether he had committed a particular act on a particular day.” (Ewing, supra, 72 Cal.App.3d at 717.) Under these circumstances a juror unanimity instruction was not required.

In the present case, by contrast, the information charged separate acts in separate counts. Hence, the crimes alleged in Count II must be viewed to have terminated on 5/27/95 prior to the commission of the crime alleged in Count I, to have occurred on 5/28 or 5/29/95.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

IN AND FOR THE FIFTH APPELLATE DISTRICT

THE PEOPLE OF THE STATE OF CALIFORNIA, No. FO00000

Plaintiff and Respondent,

vs. Superior Court

No. 00000 A & B

Kern County

JANE DOE and JOHN DOE,

Defendants and Appellants.

_____________________________________________/

APPELLANT’S REPLY BRIEF

On Appeal From the Judgement of the Superior Court

of the State of California

In and For the County of Kern

HONORABLE CLARENCE WESTRA, JR., JUDGE

THOMAS LUNDY

Attorney at Law

2500 Vallejo Street, Suite 200

Santa Rosa, CA 95405

(707) 524-8112

Attorney for Appellant John Doe

By Appointment of Court of Appeal

Under the Central California Appellate Project

THE NATURAL AND PROBABLE CONSEQUENCES INSTRUCTION WAS PREJUDICIALLY ERRONEOUS IN SEVERAL RESPECTS (AOB 66-80)

A. Failure to Require A Separate Jury Determination of Whether Jane Doe Was Guilty Of Murder

1. There Was No Waiver

Respondent first asserts that the error was waived because John Doe does not claim that CALJIC 3.02 “was an improper instruction.” (RB 100.) This is patently wrong.

It is the very heart of John Doe’s argument that CALJIC 3.02 as given in this case improperly omitted an essential element of the charge. (AOB 67-68.) When it comes to instructions, nothing is more “improper” than the omission of an element of the offense in issue. (See People v. Buchholz (April 3, 1998, F027264) 98 Daily Journal D.A.R. 3411, 1313-14.) Perhaps if respondent had considered the cases relied upon by John Doe, such as People v. Prettyman, supra, 14 Cal.4th 248, the error would have been more apparent to respondent. Indeed, Prettyman, 14 Cal.4th at 267, plainly establishes that the third element of CALJIC 3.02 was improperly completed in the present case. (See CT 576.) Moreover, Prettyman also leaves no question that each of the specified findings in CALJIC 3.02 is an element of the charge which the jury must find. (Id. at 271-72.) Hence, the judge was under a sua sponte obligation to instruct on the required elements. “[I]t is [the] court’s duty to see to it that the jury are adequately informed on the law governing all elements of the case submitted to them to an extent necessary to enable them to perform their function in conformity with the applicable law. [Citation.]” (People v. Sanchez (1950) 35 Cal.2d 522, 528; see also People v. Smith, supra, 9 Cal.App.4th 196, 207 fn. 20; McDowell v. Calderon (9th Cir. 1997)130 Fed.3d 833, 836; see also p. 2, above.)

In sum, respondent’s waiver argument is unavailing. (See also Penal Code § 1259; pp. 2-3, fn. 1, above.)

2. The Error Was Prejudicial

Respondent maintains that the failure of CALJIC 3.02 to require the jury to separately find that Jane Doe was guilty of murder in finding John Doe vicariously liable for murder was harmless because the jury had already found her guilty of murder in deciding the charges against Jane Doe. (RB 101-03.) However, respondent misunderstands the important distinction between the finding of Jane Doe’s guilt for the purposes of her liability and the finding of Jane Doe’s guilt for the purposes of John Doe’s liability. (See pp. 7-9, above.) The difference is subtle yet crucial. In the former, the jury was permitted to consider all of the evidence against Jane Doe, including her damaging statements. In the latter, the jury could only consider the evidence against John Doe which, of course, did not include her statements. (See pp. 7-9, above.)

Hence, respondent wrongly assumes that the finding of Jane Doe’s guilt for purposes of her liability can simply be interchanged or substituted for purposes of finding John Doe’s aiding and abetting liability. This cannot be done anymore than a separate conviction of Jane Doe in another trial could be substituted for the required finding in John Doe’s trial based only on the evidence presented against him. (See pp. 7-9, above.)

In this light, the failure of CALJIC 3.02 to require the jury to find Jane Doe guilty of murder for purposes of John Does’s aiding and abetting liability was prejudicial because the required finding of her guilt — without consideration of the damaging statements — was never made. (People v. Kobrin (1995) 11 Cal.4th 416, 430.) In other words, reversal is “automatic” because there was a “failure to instruct on an element of the offense in issue and it is not possible to assess whether the factual question posed by the omitted instruction was in some manner decided in substance or effect, adversely to the defendant under other properly given instructions.” (People v. Buchholz, supra, 98 Daily Journal D.A.R. 3411, 3413-14.) [Footnote 6]

B. The Instructions Erroneously Failed to Permit the Jury to Convict John Doe of a Lesser Offense than Jane Doe (AOB pp. 81-82)

Once again respondent has failed to even mention the key case cited and relied upon by John Doe and, consequently, once again respondent fails to answer the claim. This time respondent ignores People v. Woods, supra, 8 Cal.App.4th 1570 which held that an aider and abettor may be convicted of a lesser crime than the perpetrator under the natural and probable consequences doctrine.

Of course, since the attorney general doesn’t even cite Woods, he doesn’t challenge Woods’ basic holding that an aider and abettor may be convicted of a lesser offense than the perpetrator. [Footnote 7] Instead, respondent claims the error was waived and cured by other instructions. These assertions are both wrong.

As to waiver, People v. Barton, supra, 12 Cal.4th 186, imposes upon the court a sua sponte duty to instruct on all lesser included offenses supported by the evidence. Hence, when the evidence supports instruction of a lesser included based on Woods, the trial court should be required to do so under Barton. Moreover, the principles enunciated in Woods should also be subject to sua sponte instruction under the judge’s duty to correctly instruct the jury on the general legal principles applicable to the case. (People v. Marquez, supra, 1 Cal.4th at 581; (People v. Wickersham, supra, 32 Cal.3d 307, 323-24; People v. Smith, supra, 9 Cal.App.4th at 207 fn. 20.) Additionally, the error should be reviewable under Penal Code § 1259. (See pp. 2-3, fn 1, above.)

As to respondent’s claim that CALJIC 17.00 and 17.02 were sufficient, this is simply not true. Those instructions dealt with whether the defendants were “guilty or not guilty.” (CT 579-80.) They had nothing to do with finding Appellant John Doe guilty of a lesser offense than Jane Doe, and they certainly didn’t encompass the Woods rule as applied to the natural and probable consequences doctrine.

In sum, the failure to instruct on the Woods doctrine was reversible error. (People v. Wickersham, supra, 32 Cal.3d at 324; see also People v. Ramkeesoon (1985) 39 Cal.3d 346, 350.)

C. CALJIC 3.02 Erroneously Failed to Require That the Murder Be Committed During the Commission of the Target Offense (AOB 72-75)

Once again respondent erroneously asserts that an error in failing to instruct on an element of the offense may not be considered by an appellate court absent an objection below. (RB 105.) This assertion is wrong because the trial court has a sua sponte duty to correctly instruct on all elements of the charge and because the instructional error impacted Appellant John Doe’s substantial rights. (See People v. Smith, supra, 9 Cal.App.4th at 207 fn. 20; Penal Code §1259; see also e.g., CALJIC 8.21 [“during the commission” included as element of standard instruction on felony murder]; see also p. 2, above.)

As to the merits, respondent does not contest Appellant John Doe basic premise that it was necessary for the jury to find that the murder occurred during the commission of the target offense. Instead respondent contends that the instructions and argument made this requirement clear. Not so.

As to the instructions, respondent relies on the fact that CALJIC 3.02 does not specifically refer to the Count II offenses. (RB 105.) This is true. But the problem is, the instruction doesn’t refer to the Count I charges either. Hence, the jury was free to pick whichever act it wanted as the target offense, including those prior acts upon which Count II was founded. Hence, rather than curing the error, the language referred to by respondent actually exacerbated it.

And the same can be said for the district attorney’s argument upon which respondent relies. (RB 105-6.) That argument focused upon the question of “Did [John Doe] know that that act [taping the child’s mouth] was going on.” (Emphasis added.) (RT 1455-56.) The use of the phrase “was going on” obviously referred to the prior tapings. Hence, rather than focusing only on the fatal taping, the district attorney invited the jury to rely on Appellant John Doe’s alleged encouragement of the earlier tapings as a basis for his liability under the natural and probable consequences rule. And, respondent does the same thing in another context in arguing that the evidence was sufficient to find Appellant John Doe guilty as an aider and abettor. (See pp. 24-25, above.)

This is precisely why the jury should have been instructed on the essential element that the murder occur during the commission of the target offense. (See AOB 72-75.) The failure to instruct on this element of the charge was reversible error because the element was at issue and was not resolved under other properly given instructions. (People v. Kobrin, supra, 11 Cal.4th 416.)

D. Failure To Specify Target Offense (AOB 76-77)

For the same reasons discussed in the preceding argument, respondent’s assertions regarding the failure to specify the target offense are erroneous. The issue was not waived because it alleged improper instruction on an element of the charge. (People v. Smith, supra, 9 Cal.App.4th 196.) Moreover, neither the instructions given, nor the argument of the prosecutor, necessarily focused the jury on the fatal taping as the sole target offense. CALJIC 3.02 did not refer to any specific act and the prosecutor’s reference to taping that was “going on” (RT 1455-56) improperly suggested that the earlier acts of taping could be the target offense.

Respondent contends that Appellant John Doe’s argument is defeated by Mouton’s approval of CALJIC 3.02. (People v. Mouton (1993) 15 Cal.App.4th 1313, 1320.) However, Mouton did not specifically address the question of whether the use of the term “crime” permitted the jury to rely on the crime in the abstract. Hence, Mouton is not authority for this proposition which it did not consider. (People v. Dillon (1983) 34 Cal.3d 441, 473-74 [cases are not authority for matters not considered].)

REPLY BRIEF FOOTNOTES [Footnote 6-7]:

Footnote 6: Moreover, even if a Chapman (Chapman v. California (1967) 386 U.S. 18) analysis is used, the error was not harmless. Jane Doe’s statements undeniably provided “highly probative” evidence of her malicious intent as well as her identity as the perpetrator. (See RT 154-55; AOB 25.) Hence, the prosecution cannot meet its burden under Chapman (Id. at 24) of demonstrating beyond a reasonable doubt that the jury would have found Jane Doe guilty of murder without consideration of her statements.

Footnote 7: It should be noted that People v. Solis (1993) 20 Cal.App.4th 264, 273 disagreed with the Woods court. However, People v. Yarber (1979) 90 Cal.App.3d 895, a case which was a direct predecessor of Beeman and was repeatedly cited with approval in Beeman provides further support for Woods. In Yarber the court observed that it is a “well-established principle that perpetrators and their aiders and abettors may be found guilty of different degrees of crime.” (Id. at 914.)