Brief Bank # B-817 (Re: F 3.02 n11 [Constitutional Challenge To Natural And Probable Consequences Rule].)
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COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
Defendant and Appellant.
APPELLANT’S OPENING BRIEF
On Appeal from the Judgment of the Superior Court
of the State of California
for the County of Shasta
THE HONORABLE WILSON CURLE, JUDGE
KIM MALCHESKI #98181
Attorney at Law
P.O. Box 40105
San Francisco, CA 94140
Attorney for Appellant
Under appointment by the
Court of Appeal through the
Central California Appellate Program
on an independent case basis
THE OVERBROAD DEFINITION OF NATURAL AND
PROBABLE CONSEQUENCES IN CALJIC NO. 3.02
VIOLATES DUE PROCESS BECAUSE APPELLANT WAS
CONVICTED OF A CRIME OF WHICH HE DID
NOT HAVE THE REQUIRED MENTAL STATE.
The natural and probable consequences doctrine as set forth in CALJIC No. 3.02 (1992 revision) permits an aider and abettor to be convicted of a crime which was a natural and probable consequence of the commission of a target criminal act even though the aider and abettor did not share the perpetrator’s mental state for the ultimate crime; or even if the aider and abettor did not knowingly and intentionally facilitate the commission of the ultimate crime.
Some California courts have construed this natural and probable consequence doctrine in an overbroad fashion extending it to ultimate criminal acts far beyond that intended by the Supreme Court in its seminal decision in People v. Beeman (1984) 35 Cal.3d 547, 560-561. The application of this natural and probable consequences doctrine is especially problematic in murder prosecutions where an aider and abettor may be found guilty of first or second degree murder without the jury finding that they had the required mental state of express or implied malice, or even the specific intent to commit the predicate felony for first degree felony murder as defined by Penal Code section 189. At least one California court has stated that the natural and probable consequence doctrine presents “a question of legal causation independent of any intention that the result may obtain.” (People v. Rogers (1985) 172 Cal.App.3d 502, 515, emphasis added.) This view of the required mental state for aiders and abettors goes far beyond the holding of the Beeman court that an aider and abettor must share the intent of the actual perpetrator. (35 Cal.3d at p. 560.)
Professors LaFave and Scott, two widely recognized experts in criminal law, have expressed concern about the extension of the natural and probable consequence doctrine. They have written:
“The natural and probable consequence rule of accomplice liability, if viewed as a broad generalization, is inconsistent with more fundamental principles of our system of criminal law. It would permit liability to be predicated upon negligence even when the crime involved requires a different state of mind. Such is not possible as to one who has personally committed a crime, and should likewise not be the case as to those who have given aid or counsel.” (2 LaFave and Scott, Substantive Criminal Law, § 6.8(b) at p. 158.)
Professors LaFave and Scott further explained:
“… general application of the ‘natural and probable consequence’ rule of accomplice liability is unwarranted. A’s guilt as an accomplice to one crime should not per se be a basis for holding A accountable for a related crime merely because a latter offense was carried out by A’s principal, for this as well would result in A’s guilt of a crime as to which he did not have the requisite mental state. Some courts have recognized this point. [footnote 31] E.g., United States v. Greer (7th Cir. 1972) 467 F.2d 1064 [defendant convicted of aiding theft from interstate shipment may not also be convicted of aiding interstate transportation of the stolen goods merely because it is a ‘foreseeable consequence of a theft’ as that would base criminal liability upon negligence rather than criminal intent.]” (Ibid.)
Under such an overbroad interpretation and application of the natural and probable consequences doctrine, a defendant’s state and federal due process rights would be violated if he could be convicted of a crime without the essential mental state element of that crime being found to be true beyond a reasonable doubt by the jury. For example, in Clark v. Jago (6th Cir. 1982) 676 F.2d 1099, the jury was instructed that the “essential element of purpose to kill could be found in the mind of the defendant and/or his accomplice.” (Id. at p. 1104.) The Sixth Circuit concluded that the charge “could easily have been interpreted to mean” that the accomplice “personally did not have to have purpose to kill,” but that the principal purpose was “sufficient to convict [accomplice], even if not shared by [the accomplice].” (Id. at p. 1105.) So, as construed, the instruction violated due process by relieving the state of the burden of proving the defendant to be in violation of an essential element of the crime for which he was convicted. (See Sandstrom v. Montana (1979) 442 U.S. 510, 520.)
In California, there are only two kinds of first degree murder under section 189: premeditated and deliberate malice murder, and first degree felony murder. (People v. Dillon (1983) 34 Cal.3d 441, 483-487.) All other kinds of murder are second degree murder as a matter of law. Second degree murder requires a finding of either express or implied malice. (Ibid.) Under the overbroad interpretation of the natural and probable consequences doctrine as expressed in CALJIC No. 3.02, an accused could be convicted of first or second degree murder if a jury were to find that he or she committed a criminal act — which could be any misdemeanor or felony — and the natural and probable consequences of that criminal act resulted in the murder of someone by the actual perpetrator.
This overbroad application of the natural and probable consequences doctrine would violate due process because a defendant could be found guilty of first or second degree murder without the jury finding that the defendant either had the required mental state of malice or the specific intent to commit the predicate felony for first degree felony murder. CALJIC No. 3.02 effectively creates a new class of murder which is not authorized by sections 187 or 189; that is, what could only be described as aiding and abetting a murder under the natural and probable consequence doctrine.
For these reasons, CALJIC No. 3.02 as given by the court here, which permitted the jury to find appellant guilty of murder without finding the requisite mental state for the crime, violated appellant’s right to due process, a fair trial, and a jury trial under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and the comparable provisions of the California Constitution.