SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 402.6 NATURAL AND PROBABLE CONSEQUENCES—DEFENSE THEORIES
F 402.7 NATURAL AND PROBABLE CONSEQUENCES—PRELIMINARY FACT ISSUES [RESERVED]
F 402.8 NATURAL AND PROBABLE CONSEQUENCES—UNANIMITY/ DUPLICITY/ MULTIPLICITY
F 402.9 NATURAL AND PROBABLE CONSEQUENCES—LESSER OFFENSE ISSUES
TABLE OF CONTENTS
F 402.6 NATURAL AND PROBABLE CONSEQUENCES—DEFENSE THEORIES
F 402.6 Inst 1 Prosecution Burden To Prove The Crime Was Not Independent Of The Common Plan
F 402.6 Inst 2 Lesser Offense Liability For Aider And Abettor
F 402.7 NATURAL AND PROBABLE CONSEQUENCES—PRELIMINARY FACT ISSUES [RESERVED]
F 402.8 NATURAL AND PROBABLE CONSEQUENCES—UNANIMITY/ DUPLICITY/ MULTIPLICITY
F 402.8 Inst 1 Multiple Target Offenses: Non-Target Offense Must Be Natural And Probable Consequence Of Whichever Target Offense The Jurors Find
F 402.9 NATURAL AND PROBABLE CONSEQUENCES—LESSER OFFENSE ISSUES
F 402.9 Inst 1 Lesser Offense Liability For Aider And Abettor
Return to Series 400 Table of Contents.
F 402.6 Natural and Probable Consequences—Defense Theories
F 402.6 Inst 1 Prosecution Burden To Prove The Crime Was Not Independent Of The Common Plan
Alternative a:
*Modify CC 402, paragraph 5, sentence 3 to provide as follows [added language is underlined; deleted language is stricken]:
If the The prosecution is required to prove that the__________ <insert non-target offense> was not committed for a reason independent of the common plan to commit the __________ <insert target offense>, then the commission of __________<insert non-target offense> was not a natural and probable consequence of __________ <insert target offense>. If any juror concludes that the prosecution failed to meet this burden, then that juror must vote to acquit the defendant of the charge[s] of __________ <insert non-target offense> in Count[s] _______.
Alternative b [CC 3400 Format]:
*Replace CC 402 with the following:
The prosecution must prove that the _______________ <charged offense> was a natural and probable consequence of the _______________ <target offense>. The defendant contends that the _______________ <charged offense> was not a natural and probable consequence of _______________ <target offense> because ____________ committed it for a reason independent of the common plan to commit the _______________ <target offense>. The defendant does not need to prove this contention. If you have a reasonable doubt about whether the _______________ <charged offense> was a natural and probable consequence of the _______________ <target offense>, you must find [him] [her] not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Improper Burden Shifting—CALCRIM 402 improperly shifts the burden to the defense on the question of independent commission. (See generally FORECITE F 404.2 Inst 1.)
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.]
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.
F 402.6 Inst 2 Lesser Offense Liability For Aider And Abettor
See FORECITE F 402.9 Inst 1.
F 402.7 Natural and Probable Consequences—Preliminary Fact Issues [Reserved]
F 402.8 Natural and Probable Consequences—Unanimity/Duplicity/Multiplicity
F 402.8 Inst 1 Multiple Target Offenses: Non-Target Offense Must Be Natural And Probable Consequence Of Whichever Target Offense The Jurors Find
*Replace CC 402, paragraph 7, sentence 2, with:
The prosecution alleges that the defendant aided and abetted either __________ <insert target offense> or __________ <insert alternative target offense>. Any juror who finds beyond a reasonable doubt that the defendant aided and abetted one [or both] of these offenses may vote to convict defendant of __________ <insert non-target offense> only if that juror also finds beyond a reasonable doubt that __________ <insert non-target offense> was a natural and probable consequence of the offense[s] which that juror found the defendant to have aided and abetted.
You do not have to agree as a whole on which of these two crimes the defendant aided and abetted so long as you each find that __________ <insert non-target offense> was a natural and probable consequence of the crime you found the defendant to have aided and abetted.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Need To Tailor Instructions To The Charges — Since the jury instructions should reflect what happened in the case at bar, tailoring the instructions to the specific charges will provide greater precision and clarity as well as notice to the defendant. (See generally FORECITE PG XI(B)(2).)
Moreover, the judge may not properly “refuse[] to tailor [an] instruction to the fact of the case.” (People v. Hall (1980) 28 C3d 143, 159; see also People v. Falsetta (1999) 21 C4th 903, 924; People v. Fudge (1994) 7 C4th 1075, 1110; People v. Woods (1991) 226 CA3d 1037, 1054-55 [court has duty to “tailor instructions to fit the facts” ]; U.S. v. Blankenship (7th Cir. 1992) 970 F2d 283, 286 [buyer-seller instruction should be tailored to facts].)
Unless this instructional request is granted the instructions will abridge the defendant’s rights by failing to assure that the jury will fairly, impartially and accurately apply the law to the facts. (U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444] [it is “the jury’s constitutional responsibility … not merely to determine the facts, but to apply the law to those facts … ” ]; Estelle v. McGuire (1991) 502 US 62, 70-72 [112 SCt 475; 116 LEd2d 385] [due process implicated if jurors misunderstood the instructions];Wainwright v. Witt (1985) 469 US 412 [83 LEd2d 841; 105 SCt 844]; cf., Johnson v. Armontrout (8th Cir. 1992) 961 F2d 748 [same].)
By ambiguously referring to “that crime” CC 402 fails to adequately tailor the instruction to the charges. (See e.g., People v. Prettyman (1996) 14 C4th 248, which requires that the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted. n5 (Id. at pp. 262, 267; compare CJ 3.02, last paragraph [providing for specification of the target crime]; see also CC 640 (Fall 2009 Revision) [reference to “a lesser crime” replaced with a provision for inserting the specific crime].)
Unanimity Requirement – CALCRIM 402, paragraph 7, erroneously permits the jury to convict the defendant of the non-target crime without necessarily finding it to be a natural and probable consequence of the crime which was aided and abetted. Under CC 402 the jurors can find that “either” target offense and the non-target offense must be a natural and probable consequence of “either” target offense. Hence, six jurors could find that the defendant aided and abetted target offense “A” but that the non-target offense is a natural and probable consequence of target offense “B.” The other six jurors could find just the opposite and the jury as a whole could convict without any juror making the required findings for natural and probable consequence liability. The following illustrates the problem:
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Target Offense “A”
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Target Offense “B”
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Six jurors find defendant:
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Guilty
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Not Guilty
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Same six jurors find:
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Non-target Not N & P C
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Non-target Is N & P C
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Six jurors find defendant:
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Not Guilty
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Guilty
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Same six jurors find:
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Non-target Is N & P C
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Non-target Not N & P C
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A conviction based on the above findings would be invalid because no single juror would have found all the elements necessary to convict. (See FORECITE F 3500.1 Note 7.)
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.]
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 3.7 [Failure To Tailor Elements To The Facts And Charge]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 12.2 [Duplicity/Unanimity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
* * *
*Unpublished Reversal Alert: People v. Lopez UNPUBLISHED 2009 Cal. App. Unpub. LEXIS 2485. Although this opinion is NOT CITABLE (See PG I(I)) it illustrates the importance of correcting the ambiguity in CC 403 when more than one target offense is alleged.
F 402.9 Natural and Probable Consequences—Lesser Offense Issues
F 402.9 Inst 1 Lesser Offense Liability For Aider And Abettor
*Add to CC 402 when appropriate:
In light of the natural and probable consequence requirement set forth above, you may convict an aider and abettor of a lesser offense than the person who actually committed the crime (the perpetrator). This is so because you may not convict the aider and abettor of any crime which was not a natural and probable consequence of the commission of the crime of ____________. In this case, the crimes which you may consider to have been committed are the following:______________ <Insert greater and lesser crimes>. Even if the perpetrator committed one of the greater of these crimes, you may still convict the aider and abettor of one of the lesser crimes if the greater crime was not a natural and probable consequence under the circumstances, of the target crime of ______________.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Lesser Offense Liability For Aider And Abettor—Because the natural and probable consequences doctrine “requires separate factual determinations for (1) what crimes have been committed, (2) what crimes are the reasonably foreseeable consequences of the offense originally contemplated, it is self-evident that the aider and abettor does not stand in the same position as the perpetrator.” [Emphasis added.] (People v. Woods (1992) 8 CA4th 1570, 1586.) “While the perpetrator is liable for all of his or her criminal acts, the aider and abettor is liable vicariously only for those crimes committed by the perpetrator which were reasonably foreseeable under the circumstances. Accordingly, an aider and abettor may be found guilty of crimes committed by the perpetrator which are less serious than the gravest offense the perpetrator commits, i.e., the aider and abettor and the perpetrator may have differing degrees of guilt based on the same conduct depending on which of the perpetrator’s criminal acts were reasonably foreseeable under the circumstances and which were not.” (Id. at 1587 [original emphasis.].)
Accordingly, CC 400 incorrectly informs the jury that all principals are “equally guilty.” Moreover, CC 402 is deficient in failing to set forth the basis upon which an aider and abettor may be convicted of a lesser offense than the perpetrator. (See People v. McCoy (2001) 25 C4th 1111.) Moreover, the trial court is required to instruct sua sponte on the general principles of law relevant to the issues raised by the evidence, which includes an absolute duty to instruct on all lesser included offenses. (People v. Barton (1995) 12 C4th 186, 196; see also People v. Prettyman (1996) 14 C4th 248, 272 recognizing the issue discussed in Woods but not addressing it; see also People v. Padilla (1995) 11 C4th 891, 920-21 [same].)
It should be noted that People v. Solis (1993) 20 CA4th 264 disagreed with Woods. However, People v. Yarber (1979) 90 CA3d 895, a case which was a direct predecessor of Beeman, and was repeatedly cited with approval in Beeman, provides further support for Woods. In Yarber the court observed that it is a “well-established principle that perpetrators and their aiders and abettors may be found guilty of different degrees of a crime.” (Id. at 914; see also FORECITE F 402.5 Inst 4 re: whether first degree murder is a natural and probable consequence of target offense.) [See Brief Bank # B-795 for additional briefing on this issue.]
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]
FORECITE CG 8.4 [Right To Jury Determination Of Lesser Included Offense]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
APPELLATE NOTE: In People v. Williams UNPUBLISHED (F031285), the 5th District Court of Appeal reversed a second degree murder conviction for failure to instruct the jury that the aider and abettor could be convicted of a lesser offense than the perpetrator. (See Brief Bank # B-795 [Brief 2].) The Court of Appeal emphasized that the aider and abettor’s liability cannot be based solely on the mental state of the perpetrator unless the aider and abettor had knowledge of the circumstances upon which that mental state was predicated. The appeal was handled by FORECITE Editor, Tom Lundy. [See Opinion Bank # O-266 for a portion of the Williams opinion dealing with this issue.]
ALERT: See discussion of People v. McCoy (2001) 25 C4th 1111 in FORECITE F 400.9 Inst 1.
CALJIC NOTE: See FORECITE F 3.02g.
