Brief Bank # B-828 (Re: F 3.02 n11 [Natural And Probable Consequences: Constitutional Challenge].)
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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
II. THE NATURAL AND PROBABLE CONSEQUENCES DOCTRINE CREATES AN UNCONSTITUTIONAL PRESUMPTION AND IMPROPERLY ALLOWS CONVICTION BASED ON A MERE NEGLIGENCE STANDARD
An aider and abettor may be convicted of any unintended offense that the perpetrator committed so long as the jury determines that the unintended offense is a “natural and probable consequence” of the commission of the target offense. (People v. Prettyman, supra, 14 Cal.4th at p. 260.) In other words, the aider and abettor need not share the perpetrator’s mental state or actual intent as long as the crime committed was reasonably foreseeable. (People v. Woods (1992) 8 Cal.App.4th 1570, 1587.)
Whether one offense is a natural and probable consequence of another calls for an objective inquiry. To find a defendant guilty as an aider and abettor, the jury must determine “whether, under all of the circumstances presented, 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.” (People v. Nguyen, supra, 21 Cal.App.4th at p. 531.)
As noted in the previous argument, this Court has criticized the “natural and probable consequences” language as that language is used in the assault instruction, because it sets out a mere negligence standard for imposing criminal liability. The same analysis should apply to the identical language when that language is used to impose criminal liability on an aider and abettor. Thus, when a court asks the jury to base an aider and abettor’s liability on whether the perpetrator’s act was a natural and probable consequence of the intended act, it forces the jury to consider what a reasonable person would consider a “natural and probable” consequence. By doing so the instruction erroneously precludes the jury from considering what this particular defendant might have believed was a natural and probable consequence. (People v. Williams, supra, 68 Cal.App.4th at pp. 523-524.)
Before it may convict an actual perpetrator of assault, the jury must find that he or she subjectively “intended [a] forcible and unlawful touching as a desired consequence or one that is known to be substantially certain to result.” (People v. Smith, supra, 57 Cal.App.4th at p. 1488.) But the aider and abettor, who, as in this case, may not even have physically participated in the act, may be found guilty on a mere negligence standard.
Statutes that impose criminal liability based on negligence are disfavored. Generally, a person must act with some type of mens rea before he or she will be found criminally liable. (Staples v. United States (1994) 511 U.S. 600, 605; People v. Simon (1995) 9 Cal.4th 493, 519-520.) “The contention that an injury can amount to a crime only when inflicted by intention is not provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and consequent ability and duty of the normal individual to choose between good and evil.” (Morisette v. United States (1952) 342 U.S. 246, 250.) A criminal statute that imposes liability without requiring the offender to have a mental state will likely violate the due process clause. (See Lambert v. California (1957) 355 U.S. 225 – conviction for failing to register as a felon was set aside when the statute applied to persons with no knowledge of the statute; a violation of the statute could thus be based on just passive behavior.)
Here, the court instructed the jury that it could convict appellant so long as the assault with force likely to produce great bodily injury was a natural and probable consequence of appellant’s original intent to aid and abet a simple battery. (CT 219.) Appellant submits that this instruction, because it defines an objective standard of culpability, acts as an irrebuttable presumption. It instructs the jury that: 1) if it finds that appellant intended to aid and abet a battery, and 2) if it finds that the assault with force likely to produce great bodily injury was a natural and probable consequence of that intended battery, then 3) appellant must be convicted as an aider and abettor notwithstanding his subjective intent. Thus, the instruction indirectly told the jury to presume that appellant would have the mental state of a “reasonable person.”
Instructions that create a mandatory rebuttable presumption of intent “violate the Fourteenth Amendment’s requirement that the State prove every element of a criminal offense beyond a reasonable doubt.” (Francis v. Franklin (1985) 471 U.S. 307, 350.) If a reasonable juror would construe that instruction to be a mandatory rebuttable presumption, the instruction will violate due process. (Sandstrom v. Montana (1979) 442 U.S. 510, 516-517.)
An erroneous instruction that creates a mandatory presumption must be evaluated for prejudice under the Chapman [Footnote 1] harmless beyond a reasonable doubt standard. (Yates v. Evatt (1991) 500 U.S. 391, 402-403, disapproved on another point in Estelle v. McGuire (1991) 502 U.S. 62, 73.) The review must focus only on the evidence that the jury was told to evaluate under the instructions, and then the reviewing court must decide if there is a reasonable likelihood that the jury that found the predicate facts would have found anything other than the presumed facts. (Id., at pp. 404-405.) “The issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption. Since that enquiry cannot be a subjective one into the jurors’ minds, a court must approach it by asking whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption.” (Ibid.)
Appellant submits that on these facts the erroneous instruction cannot be held harmless beyond a reasonable doubt. The issue is whether there is overwhelming evidence to support the contention that appellant believed that this assault with force likely to produce great bodily injury was a natural and probable consequence of his intent to aid and abet a simple battery. (Ibid.) As discussed in the first argument of this brief, the “force” in this assault came from the use of the metal bar, a bar that was already at Mr. A’s. It was clear that Mr. T used the bar only after the battery began, and only because it happened to be nearby. In addition, there was no evidence to suggest that Mr. T and the three juveniles took any weapons or implements into the apartment. Thus, the evidence showed at most that the intent was to “merely” beat up Mr. A.
Mr. L, one of the juveniles, testified that he knew beforehand that Mr. T was going to beat up Mr. A, but he claimed that he did not hear appellant discuss it. [Footnote 2] (RT 239.) Mr. L also said that just before they entered the house, appellant cautioned Mr. T just to talk about the incident between Mr. A and Mr. T’s girlfriend. (RT 267.) Mr. M, the other juvenile, testified that when they were riding in the car, Mr. T urged him and the other juveniles to jump Mr. A and scare him. However, appellant said nothing. (RT 289.)
Appellant testified that he intended to attend a college class that night, and that he planned to drop Mr. T and the juveniles off at the park before proceeding to school. He said that they only stopped at Mr. A’s at the last minute, and on the way to the park. (RT 374-376.) Mr. T was more perplexed than upset about the affair between his girlfriend and Mr. A, and Mr. T said nothing about an intent to injure Mr. A. (RT 376.) Appellant did not think there would be a fight because Mr. T and Mr. A were “like brothers.” (RT 396.) At most, appellant thought there could be a fight if Mr. T and Mr. A were unable to resolve their troubles by talking. (RT 444-445.) But appellant’s testimony, and the testimony of the juveniles for that matter, fails to even hint that appellant subjectively believed there would be the type of bloody assault that ensued.
Thus, appellant submits that the while there may be sufficient evidence to support an objective belief that, on these facts, the assault with force likely to produce great bodily injury was a natural and probable consequence of an intent to commit a battery, the same cannot be said when looking at appellant’s subjective intent. For that reason, appellant believes that the erroneous instruction cannot be deemed harmless beyond a reasonable doubt. (Chapman v. California, supra.)
Footnote 1: Chapman v. California (1967) 386 U.S. 18.
Footnote 2: But this testimony was contradicted by a police officer who claimed that Mr. L told him that he overheard appellant and Mr. T discuss beating up Mr. A. (RT 273.)