F 402.5 Natural And Probable Consequences—Elements

SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES

F 402.5 NATURAL AND PROBABLE CONSEQUENCES-ELEMENTS

TABLE OF CONTENTS
F 402.5 Inst 1 Reasonable Person: Objective Standard
F 402.5 Inst 2 Natural And Probable Consequences Doctrine Should Be Limited To Aider And Abettor Liability
F 402.5 Inst 3 Natural And Probable Consequences: Permits Consideration Only Of Circumstances Known To The Aider And Abettor
F 402.5 Inst 4 When Is First Degree Murder A Natural And Probable Consequence Of The Target Offense
F 402.5 Inst 5 Enumeration Of Target Offense Elements
F 402.5 Inst 6 Separation Of Compound Elements; Enumeration Of Non-Target Offense Elements
F 402.5 Inst 7 Clarification Of Ambiguous Language

Return to Series 400 Table of Contents.

F 402.5 Inst 1 Reasonable Person: Objective Standard

*Modify CC 402, Element 3, as follows [added language is underlined; deleted language is stricken]:

3. Under all of the circumstances, a reasonable person in the defendant’s ~~position~~ situation and knowing what the defendant knew would have known that the commission of _________ <insert non-target offense> was a natural and probable consequence of the commission of the _________ <insert target offense>.

*Modify CC 402, paragraph 5, sentence 1 as follows [added language is underlined]:

A natural and probable consequence is one that a reasonable person, in the same [situation] [circumstances], and knowing what the defendant knew, would know is likely to happen if nothing unusual intervenes.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

Objective Standard—“Whether the act committed was the natural and probable consequence of the act encouraged and the extent of the defendant’s knowledge are questions of fact for the jury.” [Internal quote marks omitted.] (People v. Croy (1985) 41 C3d 1, 12, fn 5 citing People v. Durham (1969) 70 C2d 171, 181; see also People v. Prettyman (1996) 14 C4th 248, 291 (Brown, J., concurring and dissenting); People v. Nguyen (1993) 21 CA4th 518, 531-32; People v. Smith (1997) 57 CA4th 1470, 1479-80.) [See Brief Bank # B-823 for additional briefing on this issue.]

Aider and abettor liability under the natural and probable consequences rule Ais not founded on the aider and abettor’s subjective view of what might occur. Rather, liability is based on an objective analysis of causation. (People v. Woods (1992) 8 CA4th 1570, 1587.) “The finding will depend on the circumstances surrounding the conduct of both the perpetrator and the aider and abettor.” (Ibid.) This requires a determination of “whether a reasonable person under like circumstances would recognize that the crime was a reasonably foreseeable consequence of the act aided and abetted.” (Ibid; compare People v. Gonzales (2001) 87 CA4th 1, 9 [conviction for first-degree murder arising from fist fight does not require that defendants knew gun would be used].)

“Position“ vs. “Situation”—In describing the required perspective for deciding whether the defendant’s conduct was objectively reasonable, the jury should be instructed to consider a reasonable person in the “defendant’s situation.” (See e.g., Revised Arizona Jury Instructions (Criminal) RAJI Inst. 4.04 [Justification For Self-Defense] (CLE State Bar of Arizona, 1996).) The phrase “in the defendant’s situation” should be used instead of “in the defendant’s position” because Alay jurors may consider ‘position’ to be limited to location.” (Ibid.)

“Knowing What Defendant Knew”—See FORECITE F 820.5 Inst 3.

Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.

WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

NOTES

“Probability” Is Higher Standard Than “Foreseeability”—Although the courts are prone to use the terms “reasonable foreseeability” and “probable” interchangeably, there is no doubt that “probability” requires greater proof than “foreseeability.” (See People v. Nguyen (1993) 21 CA4th 518, 535; see also People v. Brigham (1989) 216 CA3d 1039, 1047-8.) [See Brief Bank # B-823 for additional briefing on this issue.]

CALJIC NOTE: See FORECITE F 3.02a.

F 402.5 Inst 2 Natural And Probable Consequences Doctrine Should Be Limited To Aider And Abettor Liability

*Replace CC 402 Element 1 with the following:

1. The defendant aided and abetted _______________ <name of perpetrator> in committing the crime of _______________ <target crime>.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

Natural And Probable Consequences Should Not Be Applicable To Perpetrator—In People v. Olguin (1994) 31 CA4th 1355, 1376, it was suggested that the perpetrator of the target offense may be held vicariously liable for subsequent offenses committed by other persons so long as the subsequent offense is a natural and probable consequence of the target offense. (See also People v. Culuko (2000) 78 CA4th 307 [both perpetrator and aider and abettor are principals and all principals are liable for the natural and foreseeable consequences of their crimes].) This suggestion is erroneous.

The problem with Olguin is its failure to recognize the mens rea prerequisite to vicarious liability. Olguin’s suggestion that “all principals are liable for the naturally and reasonably foreseeable consequences of their crimes” [original emphasis] (Olguin, 31 CA4th at 1376) is plainly wrong when applied to vicarious liability. To be sure, causation is one prerequisite to vicarious liability but it is not the only one. The other prerequisite is a mens rea which encompasses an intent to participate in a criminal enterprise with another person or persons.

In the case of conspiracy, such intent is proven by the existence by an agreement entered into between two or more persons with the specific intent to agree to commit a particular crime. (See People v. Horn (1974) 12 C3d 290, 296.)

In the case of aiding and abetting, the requisite intent is shown by proving that the defendant acted with knowledge of the unlawful purpose of the perpetrator and with the intent of facilitating the commission of the crime by the perpetrator. (People v. Beeman (1984) 35 C3d 547, 560-61.)

Hence, the principles of vicarious liability, whether conspiracy or aiding and abetting, presuppose that at least two people acted together to commit a crime, and that the defendant who is being subjected to vicarious liability had knowledge of and an intent to facilitate the criminal act of another. (See People v. Slaughter (1984) 35 C3d 629, 659-60; see also People v. Ford (1914) 25 CA 388, 398 [vicarious liability through aiding and abetting occurs “where one person unites with one or more other persons in an enterprise to commit an unlawful act … .” ].) In sum, a perpetrator should not be held vicariously liable for the acts of those who aid and abet him/her unless the perpetrator knowingly intended to engage in a joint criminal enterprise with the aider and abettor. As a complimentary principle to Beeman, this should require that the perpetrator: (1) has knowledge that the other person is facilitating commission of the target offense and (2) intended for the other person to aid and abet the commission of the target offense.

WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.— To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 402.5 Inst 3 Natural And Probable Consequences: Permits Consideration Only Of Circumstances Known To The Aider And Abettor

*Supplement CC 402 with the following:

As you have been instructed, to find guilt based on aiding and abetting, one element you must determine is whether a reasonable person in the defendant’s situation, and knowing what the defendant knew, would have known that the charged offense would be a natural and probable consequence of the target offense. In making this determination, you may only consider those circumstances which the defendant knew at the time the act[s], upon which the aiding and abetting allegation is based, were committed.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

Objective Reasonable Turns Circumstance Actually Known To The Defendant—The determination of whether a particular criminal act was a natural and probable consequence of another criminal act aided and abetted by a defendant requires application of an objective test. It depends upon 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. Woods (1992) 8 CA4th 1570, 1587; see also People v. Price (1991) 1 C4th 324, 443; 2 LaFave & Scott, Substantive Criminal Law (1986) §7.4, p. 201 [“it is what the defendant should realize to be the degree of risk, in the light of the surrounding circumstances which he knows” ].) “A person who aids and abets before the fact can only act in light of the circumstances prevailing before the fact. In contrast, a person who was present at the commission of a crime for the purpose of assisting in its perpetration has additional opportunity to observe and understand the manner in which the target offense will be committed.” (People v. Van Nguyen (1993) 21 CA4th 518, 531.) Hence, in making the objective determination of whether the charged offense is a natural and probable consequence of the target offense, the jury may only consider “the circumstances leading up to the last act by which the participant directly or indirectly aided or encouraged the principal actor in the commission of the crime. [Citation].” (People v. Van Nguyen, 21 CA4th at 532; see also People v. Covino (1980) 100 CA3d 660 [in determining objectively probable result of force used for assault (PC 245(a)) “trier of fact should not consider factors which the defendant does not know or would not reasonably be expected to know … ” ]; FORECITE F 402 Note 15.)

In a case where the defendant has aided and abetted before commission of the target offense, the jury should be instructed to limit its consideration of the natural and probable consequence issue to the circumstances which were actually known to the defendant. Otherwise, there is a danger that a finding of the requisite intent for aiding and abetting liability may be based upon circumstances about which the defendant was unaware.

(See also FORECITE F 402.9 Inst 1.)

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

CALJIC NOTE: See FORECITE F 3.02d.

F 402.5 Inst 4 When Is First Degree Murder A Natural And Probable Consequence Of The Target Offense

*Add to CC 402:

If you determine beyond a reasonable doubt that the defendant aided and abetted a __________ <insert target offense> and that the killing was a natural and probable consequence of __________, you must then further determine whether the killing was murder and if so, what degree? To find that the murder is first degree, you must make the following determinations: (1) the actual killer committed first degree murder under the definitions supplied in the other instructions defining first degree murder. [(2) The circumstances which make the murder first degree as to the actual killer were a natural and probable consequence of the commission of the __________ <insert target offense> rather than the independent product of the mind of the actual killer.] [or] [(2) The killer’s formulation of the enhanced mental state necessary for first degree murder, as opposed to a simple intent to kill, was a natural and probable consequence of the commission of the __________ <insert target offense> rather than the independent product of the mind of the actual killer.]

If you have a reasonable doubt whether the offense committed was first degree murder or second degree murder, you must give the defendant the benefit of the doubt and find [him] [her] guilty of second degree murder.

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

When Is Natural And Probable Consequence First Degree Murder, As Opposed To Second Degree Or Manslaughter – The “natural and probable consequences” doctrine of vicarious liability for aiding and abetting and conspiracy presents a particularly difficult situation when the offense charged is first degree murder based upon the mental state of the actual killer. It is well-settled that the aider and abettor need not personally harbor the mental state necessary for first degree murder so long as the actual killer formed the requisite mental state and the aider and abettor acted with knowledge of and intent to facilitate a first degree murder. (See People v. Croy (1985) 41 C3d 1, 12, fn 5.) In such a case, the aider and abettor’s knowledge that he/she is aiding and abetting a first degree murder is sufficient to impose first degree murder liability upon the aider and abettor. However, a different situation arises when the murder is not the target offense, but is charged under the theory that it is a natural and probable consequence of some other target offense. In such a case, the defendant’s liability depends not on his/her knowledge of the actual circumstances of the killing, but rather upon his/her legally presumed awareness that commission of the target offense would naturally and probably result in the commission of the murder. (See People v. Hart 176 CA4th 662 [the instructions did not inform the jury that in order to find the defendant guilty of attempted premeditated murder even if defendant did not intend that result, it was necessary to find that attempted premeditated murder, and not merely attempted murder, was a natural and probable consequence of the robbery. The general premeditation instruction did not suffice, because that focuses on a subjective state of mind, while natural and probable consequences requires an objective test; i.e., reasonable foreseeability].) This is a very difficult concept because while it may be said that an intentional killing may be the natural and probable consequence of a certain act, it is difficult to conceptualize what characteristics of the target offense would produce a deliberate and premeditated killing as opposed to merely an intentional killing.

Accordingly, because an aider and abettor may be convicted of a lesser offense than the perpetrator if the target offense contemplates only the lesser offense (see FORECITE F 400 Note 3 and FORECITE F 400 Note 5) and because any doubt as to whether the offense is first degree or second degree must be resolved in favor of the defendant (see CJ 8.71), the above instruction is necessary to assure that the jury understands that a finding of first degree murder as to the actual killer does not justify a finding of first degree as to the aider and abettor unless the prosecution proves beyond a reasonable doubt that the circumstances which justified the finding of first degree murder as to the actual killer, including his actual mental state (i.e., premeditation and deliberation), were a natural and probable consequence of the target offense.

The necessity for explaining this difficult concept to the jury is illustrated by People v. Francisco (1994) 22 CA4th 1180, 1188-91. Francisco purported to consider the applicability of CJ 3.02 in a case where the defendant was convicted of first degree attempted murder based on aiding and abetting the target offense of assault. In addressing this issue, the Court of Appeal erroneously focused entirely upon the question of whether the “act” committed by the perpetrator was the natural and probable consequence of the target offense without any consideration of whether the “mental state” necessary to first degree murder was also a natural and probable consequence. (Compare People v. Cummins (2005) 127 CA4th 667, 680 [premeditated attempted murder need not be natural and probable consequence].)

An aider and abettor may be convicted of a crime which he or she did not specifically intend or contemplate, but “only to the extent of his or her knowledge or of the natural and reasonable consequences of the acts ‘knowingly and intentionally’ aided and encouraged by him.” (People v. Beltran (1949) 94 CA2d 197, 207.) Thus, “one is not liable who has counseled a particular criminal act, and the perpetrator has committed a different one not falling within the probable consequences of that advice.” (People v. King (1938) 30 CA2d 185, 203.) Consequently, the pivotal question is “whether or not the act committed was the ordinary and probable effect of the common design or whether it was a fresh and independent product of the mind of one of the conspirators, outside of, or foreign to, the common design … .” (People v. Durham (1969) 70 C2d 171, 182-83; see also, People v. Woods (1992) 8 CA4th 1570, 1600-01, dissenting opinion.)

Use Of The Term “Defendant” – The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.

WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization – To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

PRACTICE NOTE: The above instruction contains alternative ways to express this difficult concept. Ultimately it will probably be necessary to more fully explain this point during argument.

Applicability To Other Theories Of First Degree Murder And Lesser Offenses – This instruction would be equally applicable to other theories of first degree murder as well. For example, if the defendant aided and abetted a fist fight but the perpetrator instead, after lying in wait, surprised the victim and shot him to death, the jury would have two determinations to make in applying the natural and probable consequences rule. First, was murder (i.e., an intentional killing) a natural and probable consequence of aiding and abetting the fist fight. Second, was first degree murder (i.e., a killing perpetrated by lying in wait) a natural and probable consequence of the fist fight which the aider and abettor facilitated.

This concept also applies to cases where manslaughter is a lesser offense of murder. In such a case, the killer’s formation of malice must be a natural and probable consequence of the target offense. The jury could be instructed, with appropriate modifications depending on the type and degree of manslaughter, as follows:

To find that the killing was murder, you must make the following determinations: (1) The actual killer committed murder. (2) The circumstances which made the killing a murder were a natural and probable consequence of the commission of the __________. If you have a reasonable doubt whether the offense committed was murder, you must give the defendant the benefit of the doubt and find [him] [her] not guilty of murder.

NOTES

This issue also applies when the defendant is charged with aiding and abetting a premeditated and deliberate attempted murder (PC 664(a)). [See Brief Bank # B-682 for additional briefing regarding aiding and abetting and premeditation.]

CALJIC NOTE: See FORECITE F 3.02e.

F 402.5 Inst 5 Enumeration Of Target Offense Elements

*Replace CC 402, Element 1, with the following:

1. The defendant aided and abetted _______________ <name of perpetrator> in committing the crime of _______________ <name of target crime>. To prove this element the prosecution must prove beyond a reasonable doubt:

[Insert elements of target offense tailored to perpetrator and alleged facts of the target offense.]

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

Tailoring To Perpetrator And Crime—See FORECITE F 400.2 Inst 1.

Enumeration Of Target Offense Elements—See People v. Prettyman (1996) 14 C4th 248, 269-70; see also People v. Sakarias (2000) 22 C4th 596, 627; People v. Gonzalez (2002) 99 CA4th 475, 484-85.

No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 402.5 Inst 6 Separation Of Compound Elements; Enumeration Of Non-Target Offense Elements

*Replace CC 402, Element 2, with the following:

2. _______________ <name of perpetrator of non-target offense> committed the crime of _______________ <insert non-target offense>. To prove this element the prosecution must prove beyond a reasonable doubt that:

[Insert elements of non-target offense tailored to perpetrator and alleged facts.]

3. _______________ <name of perpetrator of non-target offense> committed the alleged _______________ <insert non-target offense> during the commission of the _______________ <insert target offense> by _______________ <name of perpetrator of target offense>.

[Renumber Remaining Elements.]

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]

Tailoring To Name Perpetrators—See FORECITE F 400.2 Inst 1.

Incorporation Of Elements: Avoiding Requiring The Jurors To Cross-Reference And Sort Through Other Instructions—Jury instructions may be unduly complex and potentially confusing or misleading if the required components of each element are not kept together. Unless all instructions relating to a given element are discussed in the same place the jurors must refer to explanations, definitions, and elements from elsewhere. The jurors will be able to better understand the required elements if all relevant components of that element are together in a clear and direct recitation of what must be found. See FORECITE F 3500.2 Inst 1.

Separation Of Compound Elements: Whether Non-Target Offense Was (1) Committed And (2) Was During The Commission Of The Target Offense— See FORECITE F 3500.2 Inst 1.

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

F 402.5 Inst 7 Clarification Of Ambiguous Language

*Modify bracketed paragraph 8, last sentence as follows [added language is underlined; deleted language is stricken]:

However, you do not need to agree on ~~which of these two crimes~~ whether the defendant aided and abetted _______________ <insert target offense> or _______________ <insert other target offense>.]

Points and Authorities

This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # C.M.-001.]

Need For Modification – CALCRIM’s reference back to “these two crimes” is unclear since the preceding sentence refers to three crimes.

WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]

In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.