Brief Bank # B-823 (Re: F 3.02a [Natural And Probable Consequences: Objective Standard (PC 31)].)
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COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant.
_____________________________________)
Excerpt From
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
(415) 647-2797
Attorney for Appellant
JOHN DOE
Under appointment by the
Court of Appeal through the
Central California Appellate Program
on an independent case basis
C. The trial court erred by not modifying CALJIC No. 3.02.
The trial court also erred by not modifying CALJIC No. 3.02 to inform the jury that the determination of whether a particular crime was a natural and probable consequence of a criminal act requires the application of an objective rather than subjective test. (People v. Woods, supra, 8 Cal.App.4th at p. 1587; People v. Nguyen, supra, 21 Cal.App.4th at p. 531.) Given that the question of whether the ultimate crime was the natural and probable consequence of the target offense was a factual question for the jury (People v. Croy, supra, 41 Cal.3d at p. 12, fn.5), the court should have specifically instructed the jury that a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. (Woods, supra, at p. 1587; Nguyen, supra, at p. 531.)
Whether the shooting of Mr. M was a natural and probable consequence of his kidnaping was a critical factual question for the jury to decide. The evidence suggested one possible theory that appellant did not knowingly and intentionally aid and abet the kidnaping of Mr. M, and that the shooting of Mr. M was an independent act done under the heat of passion in response to adequate provocation by Mr. M. Whether the killing of Mr. M was in fact a natural and probable consequence of the kidnaping was a key factual question which only could have been resolved by the jury if they were properly instructed to apply an objective test. Unfortunately for appellant, the trial court did not inform the jury that it should apply an objective test to determine whether a reasonable person in appellant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act he allegedly aided and abetted.
By not so modifying CALJIC Nos. 3.01 and 3.02, the trial court deprived appellant of his state and federal constitutional rights to a fair trial, due process and a jury trial, and there is a reasonable likelihood the jury applied those instructions in an unconstitutional fashion (Boyde v. California, supra.) Because of these erroneous jury instructions, appellant’s convictions for first degree murder and in two counts of kidnaping must be reversed.
