Category Archives: Blog

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The Chiu Doctrine Explained

People v. Chiu (2014) 59 C4th 155 created an important exception to the natural and probable consequences doctrine with respect to premeditated malice murder and attempted murder.

As Chiu explained, “[t]here are two distinct forms of culpability for aiders and abettors. First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also for any other offense that was a ‘natural and probable consequence of the crime aided and abetted.” [internal quote marks omitted.] (Chiu, supra, 59 C4th at 158.)

In Chiu, the prosecution relied on both theories of aiding and abetting liability: (1) Chiu was guilty of murder because he directly aided and abetted the shooter, or (2) Chiu was guilty of murder because he aided and abetted the shooter in the target offense of assault or of disturbing the peace, the natural and probable consequence of which was murder. (Ibid.) The jury found Chiu guilty of first degree murder without specifying upon which aiding and abetting theory they relied. (Id. at 168.)

The Chiu court held that “where the direct perpetrator is guilty of first degree premeditated murder, the legitimate public policy considerations of deterrence and culpability would not be served by allowing a defendant to be convicted of that greater offense under the natural and probable consequences doctrine.” (Chiu, supra, 59 C4th at 166.)

This holding was based on a recognition that the mental state for willfulness, premeditation, and deliberation is “uniquely subjective and personal.” (Id. at p. 166.) “That mental state is uniquely subjective and personal. It requires more than a showing of intent to kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death.” (Ibid.)  “[T]he connection between the defendant’s culpability and the perpetrator’s premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine, especially in light of the severe penalty involved and the above stated public policy concern of deterrence.” (Ibid.)

However, “[a]iders and abettors may still be convicted of first degree premeditated murder based on direct aiding and abetting principles.” (Ibid.) “An aider and abettor who knowingly and intentionally assists a confederate to kill someone could be found to have acted willfully, deliberately, and with premeditation, having formed his own culpable intent. Such an aider and abettor, then, acts with the mens rea required for first degree murder.” (Id. at p. 167; compare In re Johnson (2016) 246 CA4th 1396 [conviction reversed because record did not demonstrate whether the jury found first degree murder based on direct aiding and abetting or natural and probable consequences].)

Chiu reversed the first degree murder conviction because the record did not demonstrate that all jurors relied solely on the direct aiding and abetting theory. (59 C4th at 168 [“…we cannot conclude beyond a reasonable doubt that the jury ultimately based its first degree murder verdict on … the legally valid theory that defendant directly aided and abetted the murder.”].)

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Kill Zone Theory Only Applies When Defendant Tried to Kill Everyone in the “Kill Zone” -– Correlation Between Number of Victims and Shots Fired or Existence of A Primary Target — Is Not Alone Determinative

The kill zone theory applies where the defendant attempts to kill an entire group of people in order to kill a specific victim. Because the defendant acts with the specific intent to kill everyone in the victim’s vicinity he is guilty of attempted murder of each member of the group. (See FORECITE F 600.2 Inst 2 [link] and F 600.2 Inst 3 [link].)

However, the “kill zone” theory does not apply, and the instruction should not be given, when there is no evidence of an intent to kill an entire group of people. (People v. Stone (2009) 46 C4th 131; see also People v. Perez (2010) 50 C4th 222, 232; People v. McCloud (2012) 211 CA 4th 788.) The number of shots fired or fact the defendant had a primary target are relevant factors for whether an instruction is appropriate, but are not dispositive.

For example, in People v. Cardona (2016) 246 CA4th 608 all of the evidence indicated that Cardona’s primary motivation in shooting the alleged victim was self-defense and there was no evidence that Cardona sprayed everyone near the alleged victim with gunfire. Because there was no evidence of an attempt to kill everyone in a particular area in order to kill the alleged victim, it was error to give the kill zone instruction.

The Attorney General argues that McCloud, Perez, and Stone are distinguishable because, in each case, the defendant did not fire enough shots to kill all of the victims for whom he was convicted of attempted murder. Here, however, Cardona was charged with only one count of murder and one count of attempted murder, and he fired at least five shots, including one that struck and seriously wounded Carrillo. But the defining test of the kill zone theory is whether “the evidence supports a reasonable inference that, as a means of killing the primary target, the defendant specifically intended to kill every single person in the area in which the primary target was located.” [Citation to McCloud.] A correlation between the number of shots fired and the number of victims in the alleged kill zone is merely one relevant factor. The Attorney General also points out that, unlike the defendants in McCloud and Stone, Cardona had a primary target, namely Jauregui. In McCloud [citation]we held that a kill zone instruction was inappropriate in part because there was no evidence that the attacker had a primary target. But the existence of a primary target, although relevant, is not sufficient for the application of the kill zone theory. Again, without evidence that the defendant intended to kill everyone in an area in order to kill the primary target, the kill zone theory is inapplicable. [Citation.] (246 CA4th at 615-16.)

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Propriety of Juror and Factual Finding Re: Aggravating Circumstance

The California Supreme Court has expressly ruled that the determination of whether there were aggravating circumstances to permit an enhanced sentence is not an issue which should be presented to a jury. (People v. Sandoval (2007) 41 Cal. 4th 825.) The Court of Appeal has ruled that the prosecution is not permitted to allege aggravating circumstances in an accusatory pleading. (People v. Superior Court (2007) 159 Cal. App. 4th 1.) Thus, CC 3250 should never be given.

 

Although not discussed by the CC’s Bench Notes, assuming that the defendant has the right to a jury trial on the factual finding at issue, the court would have a sua sponte duty to instruct on the finding, just as it has a sua sponte duty to instruct on any necessary element of a crime. (See e.g. CC 2541, Bench Notes; People v. Reynolds (1988) 205 Cal. App. 3d 776, overruled in part by People v. Flood (2008) 18 Cal. 4th 470.)

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Destructive Device: Definition Not Required

People v. Adams (2009) 170 Cal App. 4th 893, held that a court has no sua sponte duty to define “destructive device” beyond the definition provided in PC 16460(a)(5). The Court of Appeal affirmed a conviction for offering to sell a destructive device where the trial court used CC 2575, an instruction identical to CC 2570 used for the more common crime of possession of a destructive device.

 

The reviewing court rejected the defense argument that the court had a sua sponte duty to define “breakable” because, “[t]he term ‘breakable’ is not a technical term; persons of common intelligence know what ‘breakable’ means.” The Court of Appeal approved giving the jury the definition of “destructive device” derived from PC 16460 in conjunction with CC 2575.

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Defense Theory: BAC of Less than 0.05% Warrants Rebuttal Presumption That Defendant Was Not Under the Influence

VC § 23610(a)(1), provides “[i]f there was at that time less than 0.05 percent, by weight, of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of an alcoholic beverage at the time of the alleged offense.” Thus, there is a statutory presumption that a defendant was not under the influence of alcohol at the time of the driving if the defense shows that the defendant’s blood alcohol level at that time was less than 0.05%. Since CC 2111 includes the presumption that the defendant was driving under the influence of alcohol if the prosecution shows that the defendant was driving at or above 0.08% blood alcohol, reciprocity and simple fairness call for the defense to receive a jury instruction that the defendant is presumed not to have been under the influence of alcohol if the defense shows that the blood alcohol reading was less than 0.05%.

 

If the defense has proved by a preponderance of the evidence that a sample of the defendant’s (blood/breath) was taken within three hours of the defendant’s [alleged] driving and that a chemical analysis of the sample showed a blood alcohol level of less than 0.05 percent, you may, but are not required to, conclude that the defendant was not under the influence of an alcoholic beverage at the time of the alleged offense.

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MMPA Is Broader than CUA

The instruction in People v. London was found to be inadequate because it was based solely on the Compassionate Use Act (“CUA”) and did not comport with provisions of the Medical Marijuana Program Act (“MMPA”). (People v. London (2014) 228 Cal. App. 4th 544, 564.) The CUA allows a patient and his or her primary care giver to grow or possess marijuana solely for the patient’s medical purposes, and for no other persons or groups of persons. (Ibid.) However, the MMPA is broader and its Guidelines allow marijuana grown through a nonprofit collective or cooperative to be “allocated based on fees that are reasonably calculated to cover overhead costs and operating expenses,” even if the defendant is not the primary care giver of other members of the collective. (H&S § 11362.775, Guidelines, § IV B6, p. 10.) Accordingly, when a defendant asserts a medical marijuana defense to cultivating marijuana, it is important that the court give a defense instruction that covers both the CUA and MMPA. The court should provide an instruction that clearly provides that the defendant may receive reimbursement for out-of-pocket costs incurred in cultivating the marijuana and the reasonable value of the cultivation services provided. (People v. London, supra, 228 Cal. App. 4th at 566.)

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Small Amount of Controlled Substance Relevant to Knowledge

CC 2376 defines usable amount as an amount in a quantity sufficient to be used as a controlled substance, claiming that there is no requirement that the amount be enough to affect the user. However, the California Supreme Court has made it clear that a very small amount of a controlled substance is relevant to the element of knowledge: “. . .the form, not the purity, of the substance, is most pertinent to the question of knowledge. But purity may in some cases also be relevant. If, for example, the substance was found in a package of talcum powder, testimony that it contained only a microscopic amount of cocaine might be relevant to defendant’s knowledge of the presence of the contraband.” (People v. Rubalcava (1993) 6 Cal. 4th 62.)

 

Thus, the jury should be told that a small amount of the controlled substance may show that the defendant lacked knowledge that contraband was present:

 

The lack of the defendant’s knowledge of the presence of a controlled substance may be shown by the fact that the amount of the controlled substance suggests that the defendant was unaware of the presence of the controlled substance.

 

So long as there is substantial evidence supporting a defense such as the Compassionate Use defense, on request of the defense the court must give an instruction on that defense. (People v. Panah (2005) 35 Cal. 4th 395, 484.)