Brief Bank # B-819 (Re: F 6.11e [Natural And Probable Consequences: Objective Standard].)
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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 TRIAL COURT ERRED BY GIVING CALJIC NO. 6.11
(CONSPIRACY — JOINT RESPONSIBILITY) WHICH APPLIES IN AN
OVERBROAD FASHION THE DOCTRINE OF NATURAL AND PROBABLE
CONSEQUENCES IN A CONSPIRACY PROSECUTION.
Appellant was charged with three separate counts of conspiracy — conspiracy to commit an assault with a deadly weapon or firearm, conspiracy to commit robbery, and conspiracy to commit extortion. Appellant was convicted in counts 2 and 4 of conspiracy to commit an assault with a deadly weapon or firearm and of conspiracy to commit extortion. The jury could not reach a verdict as to count 3 (conspiracy to commit robbery); that count was dismissed.
The trial court gave a whole series of instructions describing the relevant legal principles of conspiracy law. (CT 1516-1530.) The trial court gave not only 6.10 and 6.10.5, which define conspiracy and overt acts, but also CALJIC No. 6.11 (1991 revision) defining joint responsibility for co-conspirators. CALJIC No. 6.11 as given by the court here read as follows:
“Each member of a criminal conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if such act or such declaration is in furtherance of the object of the conspiracy.
“The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators.
“A member of a conspiracy is not only guilty of the particular crime that to his knowledge his confederates agreed to and did commit, but is also liable for the natural and probable consequences of any crime or act of a co-conspirator to further the object of the conspiracy, even though such crime or act was not intended as a part of the agreed upon objective and even though he was not present at the time of the commission of such crime or act.
“You must determine whether the defendant is guilty as a member of a conspiracy to commit the originally agreed upon crime or crimes, and, if so, whether the crime alleged was perpetrated by co-conspirators in furtherance of such conspiracy and was a natural and probable consequence of the agreed upon criminal objective of the conspiracy. A ‘natural and probable consequence’ is a consequence that is reasonably foreseeable.” (CT 1518, emphasis added.)
The trial court’s giving of CALJIC No. 6.11 was error here for the same reasons as stated in Arguments III and IV, ante, because that instruction applies the natural and probable consequences doctrine in an overbroad fashion far beyond the holdings of the Supreme Court in People v. Beeman, supra, and People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5. That instruction is problematic because it permits a co-conspirator to be found guilty of an ultimate offense which was the natural and probable consequence of “any crime or act” committed by any co-conspirator in furtherance of the conspiracy.
This instruction establishes an even broader standard for derivative liability than CALJIC No. 3.02 because it permits the target act to be any “crime or act” which would include not only a criminal act but any overt act (or even any other act) which is not necessarily criminal or unlawful. CALJIC No. 6.11 does not define what type of “act” it is referring to in paragraph three of that instruction. It does not state whether the word “act” means an overt act charged in the information, or any act whatsoever committed by any co-conspirator in furtherance of the conspiracy. Given that that instruction does not use the term “overt act” as opposed to any “act,” one can only assume that a reasonable jury would construe that word to mean that the “act” referred to therein is not limited to just an overt act charged in the information. By including the single term “act” in this instruction, the trial court opened the door to the jury applying the natural and probable consequences doctrine here in a way which far exceeds the limitations imposed thereon by the Supreme Court in Beeman and Croy.
Given that appellant was charged here not with just three counts of conspiracy but also murder, the jury could have easily used this instruction to find appellant guilty of murder if it found that any co-conspirator committed any crime or act the natural and probable consequence of which resulted in the death of the decedent. For the reasons stated in more detail in Argument III and IV, this would violate appellant’s right to due process because he could be found guilty of murder without the jury finding beyond a reasonable doubt that he had the required mental state(s) for murder.
CALJIC No. 6.11 effectively lowers the burden of proof because the prosecution does not have to prove beyond a reasonable doubt that the defendant had the required mental states for the ultimate offense the co-conspirator is convicted of.
For the reasons stated in more detail in Argument III, ante, this instruction is suspect because it does not advise the jury that it should apply an objective standard test to determining whether the natural and probable consequence is reasonably foreseeable, and that the objective test should be applied to a reasonable person in the defendant’s position. (People v. Woods, supra, 8 Cal.App.4th at p. 1587; People v. Nguyen, supra, 21 Cal.App.4th at p. 531.)
The giving of this instruction was especially prejudicial here because appellant was not a knowing co-conspirator with Mr. G and Mr. F to kidnap Mr. M. The later shooting of Mr. M at Ms. T’s house was an independent product of his own mind which was outside the common design and not in furtherance of any conspiracy involving Mr. F and Mr. G. For these reasons, and the reasons stated in Arguments II, III, and IV, appellant’s convictions for conspiracy and murder must be reversed because the giving of this instruction violated appellant’s rights to due process, a fair trial, and a jury trial under the state and federal constitutions.