SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 402 NOTES
TABLE OF CONTENTS
F 402 Note 1 Natural And Probable Consequences Doctrine (Target And Non-Target Offenses Charged)—CALCRIM Cross References And Research Notes
F 402 Note 2 Natural And Probable Consequences: Objective Standard
F 402 Note 3 Instruction On Uncharged Elements Of Target Offense
F 402 Note 4 Requirement That Jury Find Target Offense To Have Been Committed
F 402 Note 5 Whether Jury Must Unanimously Agree Upon The Acts Constituting The Target Offense
F 402 Note 6 Homicide Not A Natural And Probable Consequence Of A Gang Attack
F 402 Note 7 Homicide Not A Natural And Probable Consequence Of Robbery Or Burglary
F 402 Note 8 No Aider And Abettor Liability When Defendant Is Perpetrator Of “Target” Offense
F 402 Note 9 Aider And Abettor Liability: Guilt As To Target Crime
F 402 Note 10 Aider And Abettor’s Liability For Consequences: Application Of Merger (Ireland) Doctrine
F 402 Note 11 Constitutional Challenge To Natural And Probable Consequences Rule
F 402 Note 12 Killing Of Third Party Not A Natural And Probable Consequence Of Plan To Kill Another Person
F 402 Note 13 Foreseeability Rule Inapplicable To Felony Murder
F 402 Note 14 Aiding And Abetting Liability Where The Target Offense Consists Of The Same Act As The Actual Offense
F 402 Note 15 Aiding And Abetting: Consideration Of All Circumstances
F 402 Note 16 Natural And Probable Consequences Sua Sponte Instruction on Target Offense
F 402 Note 17 Natural And Probable Consequence: Requirement Of “Close Connection” Between Target Crime And Charged Crime
F 402 Note 18 Relevance Of Intoxication To Natural And Probable Consequences
F 402 Note 19 Natural And Probable Consequences Must Not Be Based On Target Offense In Abstract
F 402 Note 20 Assault With Force Likely To Produce Great Bodily Injury Is Not A Natural And Probable Consequence Of Simple Battery
F 402 Note 21 Natural And Probable Consequences: Applicability To Specific Intent Offenses
F 402 Note 22 Reliance On Natural And Probable Consequences Doctrine Precludes Consecutive Sentencing For Both The Target And Resulting Offenses
F 402 Note 23 No Murder Liability For Aiding And Abetting Misdemeanor
F 402 Note 24 Natural And Probable Consequences And Premeditation
F 402 Note 25 Knowledge That Accomplice Is Armed Is Factor To Consider On Issue Of Whether Homicide Was Foreseeable
Return to Series 400 Table of Contents.
F 402 Note 1 Natural And Probable Consequences Doctrine (Target And Non-Target Offenses Charged)—CALCRIM Cross-References And Research Notes
Cross-References:
CALCRIM 400 [Aiding And Abetting: General Principles]
CALCRIM 401 [Aiding And Abetting: Intended Crimes—Elements]
CALCRIM 403 [Natural and Probable Consequences (Only Non-Target Offense Charged)]
CALCRIM 404 [Intoxication]
Research Notes: See CLARAWEB Forum, Core Set Warnings.
F 402 Note 2 Natural and Probable Consequences: Objective Standard
See FORECITE F 3.02 n2.
F 402 Note 3 Instruction On Uncharged Elements Of Target Offense
See FORECITE F 3.02 n3.
F 402 Note 4 Requirement That Jury Find Target Offense To Have Been Committed
See FORECITE F 402 Note 9.
F 402 Note 5 Whether Jury Must Unanimously Agree Upon The Acts Constituting The Target Offense
(See People v. Prettyman (1996) 14 C4th 248, 267-68 [no unanimity required as to target offenses which present different theories].)
CALJIC NOTE: See FORECITE F 3.02 n5.
F 402 Note 6 Homicide Not A Natural And Probable Consequence Of A Gang Attack
In People v. Godinez (1992) 2 CA4th 492, 500-02, the judge instructed the jury, pursuant to the aiding and abetting instructions, that homicide is a reasonable and natural consequence to be expected in a gang attack. The court of appeal held that such an instruction deprived the defendant of his/her right to have the jury determine the relevant factual issues in violation of settled due process principles. (See also, FORECITE F 402 Note 12; State v. Holloway (Or. App. 1990) 795 P2d 589, 591-92 [evidence showing that defendant accompanied gang members on drive-by shooting insufficient to support conviction for aiding and abetting in the shooting].)
See also FORECITE F 402 Note 25.
CALJIC NOTE: See FORECITE F 3.02 n6.
F 402 Note 7 Homicide Not A Natural And Probable Consequence Of Robbery Or Burglary
In People v. Fauber (1992) 2 C4th 792, 834, the court held that aiding a robbery or burglary did not give rise to accomplice liability for murder because there was no suggestion that accomplice “had any prior knowledge” that a murder was intended. Hence, the court apparently assumed that murder is not a natural and probable consequence of robbery or burglary.
CALJIC NOTE: See FORECITE F 3.02 n7.
F 402 Note 8 No Aider And Abettor Liability When Defendant Is Perpetrator Of “Target” Offense
In People v. Olguin (1994) 31 CA4th 1355, 1376, the court concluded that the perpetrator of a target offense is liable for the natural and probable consequences of that offense just as is an aider and abettor of the target offense. (But see FORECITE F 402.5 Inst 2.)
CALJIC NOTE: See FORECITE F 3.02 n8.
F 402 Note 9 Aider And Abettor Liability: Guilt As To Target Crime
The California Supreme Court has emphasized that “the ultimate factual question is one of reasonable foreseeability, to be evaluated under all the factual circumstances of the case.” (People v. Medina (2009) 46 C4th 913, 927.) “[A] defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator.” (People v. Croy (1985) 41 C3d 1, 12, fn. 5, italics added.) Therefore, it is not true that “the perpetrator must actually commit the criminal act which the aider and abettor intentionally aids and encourages. … [T]he aider and abettor may be liable where he intentionally aids and encourages one criminal act, but the perpetrator actually commits some other, more serious, criminal act.” (People v. Laster (1997) 52 CA4th 1450, 1464–1465; see also People v. Ayala (2010) 181 CA4th 1440, 1451-1452.)
F 402 Note 10 Aider And Abettor’s Liability For Consequences: Application Of Merger (Ireland) Doctrine
It is well established that an aider and abettor is guilty of all natural and probable resulting consequences of the originally contemplated criminal act. (People v. Garrison (1989) 47 C3d 746, 777; People v. Hammond (1986) 181 CA3d 463, 468-69.)
However, when the originally contemplated crime, e.g., an assault, is included within the charged crime, e.g., murder, to hold the defendant vicariously liable for the murder would violate the principles set forth by the Supreme Court in People v. Ireland (1969) 70 C2d 522. In Ireland, the court held felony murder instruction was improper “when it is based upon a felony which is an integral part of the homicide … ” (Id. at 539.) The court reasoned:
“To allow such use of the felony murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of felonious assaultC a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law … ” (Ibid.)
The same reasoning should apply to vicarious liability for an aider and abettor even though the application of Ireland to conspiracy vicarious liability has been rejected in People v. Luparello (1986) 187 CA3d 410, 435-38. Conspiracy is distinguishable from aiding and abetting. As to conspiracy, the law implicitly recognizes the greater threat of criminal agency and explicitly seeks to deter criminal combination by recognizing the act of one as the act of all. That is, it is the “evil plan” which underlies any conspiracy that creates the justification for strict co-conspirator liability. Also, the conspiracy’s independent threat is reinforced by the fact that it is a separate and distinct crime which “never merges with the resulting substantive offense.” [Fn omitted.] (Luparello, 187 CA3d at 438.)
On the other hand, aiding and abetting is merely a theory of liability rather than a distinct and independent offense. (People v. Forbes (1985) 175 CA3d 807, 816.) Moreover, aiding and abetting liability is not founded upon the formation of an “evil plan.” Hence, the vicarious liability of an aider and abettor is much more akin to felony murder vicarious liability than is the law of conspiracy. Accordingly, the principles of Ireland should apply to preclude aider and abettor liability when the originally contemplated crime is an integral part of the charged offense.
ALERT: People v. Farley (2009) 46 C4th 1053, 1118-20 overruled People v. Wilson (1969) 1 C3d 431 which precluded the application of the felony murder rule to assaultive burglaries. However, Wilson still applies to crimes committed prior to the finality of the Farley decision.
CALJIC NOTE: See FORECITE F 3.02 n10.
F 402 Note 11 Constitutional Challenge To Natural And Probable Consequences Rule
A. Negligence Standard Violates Fundamental Common Law Principles—The natural and probable consequences doctrine permits criminal liability of the highest magnitude to be imposed upon an aider and abettor based on the finding that the crime committed by the perpetrator was a “natural and probable consequence” of the target crime which was aided and abetted. (People v. Croy (1985) 41 C3d 1, 12, fn 5.) Such a result is “inconsistent with more fundamental principles of our system of criminal law. It would permit liability to be predicated upon negligence even when the crime involved requires a different state of mind. [Footnote omitted.] Such is not possible as to one who has personally committed a crime, and should likewise not be the case as to those who have given aid or counsel … otherwise, the legislative classification of offenses would lose all meaning.” [(2 LaFave and Scott, Substantive Criminal Law (1986) §6.8, p. 158; see also People v. Smith (1997) 57 CA4th 1470, 1479 [use of natural and probable consequences standard for assault liability was erroneous since it improperly stated a “negligence standard.” ]
Moreover, because the prohibition against negligence-based criminal liability is firmly rooted in the common law, a state’s violation of that prohibition is a fundamental due process abridgement. (See Montana v. Eglehoff (1996) 518 US 37 [135 LEd2d 361; 116 SCt 2013] [plurality opinion] [limitation on intoxication defense does not offend due process because intoxication was not a defense at common law]; see also Schad v. Arizona (1991) 501 US 624 [115 LEd2d 555; 111 SCt 2491].) [See Brief Bank # B-828 for additional briefing on this issue.]
B. Objective Standard Permits Liability Without Any Actual Awareness Or Intent—The natural and probable consequences doctrine defines an objective standard of culpability—the doctrine is based on what a reasonable person would foresee as “probable and natural consequences”—and then it uses that standard to conclusively impute a higher degree of criminal culpability to a person who may not in fact have foreseen, let alone intended or deliberated, such consequences. Thus, for example, in a prosecution for murder, the “natural and probable consequences” doctrine operates as an irrebuttable presumption that a non-killer has malice, even though such a state of mind would not be presumed and would have to be proven in order to convict the actual killer. (See 2 LaFave and Scott, Substantive Criminal Law (1986) §6.8, p. 158.)
C. Mental State Is Improperly Presumed—While the natural and probable consequences doctrine often appears as part of a general statement of principles in cases revealing a shared intent, it can be applied to extend liability of the accomplice for conduct of the principal outside the accomplice’s conscious objectives. (See People v. Luparello (1986) 187 CA3d 410, 435-38; 2 LaFave & Scott, Substantive Criminal Law (1986) §6.7b, p. 157.) Hence, the natural and probable consequences doctrine presents “a question of legal causation independent of any intention that the result obtain.” (People v. Rogers (1985) 172 CA3d 502, 515.)
However, “[i]t is impossible to make this proposition consistent with the usual requirement of intentionality.” (Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine, 73 Cal.L.Rev. 1985, p. 346.) As argued by Justice Wiener in his concurring opinion in Luparello, 187 CA3d at 452, the natural and probable consequences doctrine can produce anomalous results by basing an accomplice’s culpability, not on his own intent, but rather on the intent of the perpetrator or on other circumstances of the crime. Hence, the aider and abettor’s liability is not based on his individual mental state but instead turns on the jury’s finding as to the perpetrator’s mental state. (E.g., if the perpetrator lay in wait, then the aider and abettor is liable for first degree murder, yet if the perpetrator ingested drugs and/or alcohol to the point where he did not in fact harbor the requisite malice, the aider and abettor would presumably be guilty only of voluntary manslaughter.)
Such an anomalous result raises 14th Amendment due process considerations. For example, in Clark v. Jago (6th Cir. 1982) 676 F2d 1099, the jury was instructed that “the essential element of purpose to kill could be found in the mind of the defendant ‘and/or’ his accomplice.” (Id. at 1104.) The 6th Circuit concluded that the charge “could easily have been interpreted to mean” that the accomplice “personally did not have to have purpose to kill,” but that the principle purpose was “sufficient to convict [the accomplice], even if not shared by [the accomplice].” (Id. at 1105.) As so construed, the instruction violated due process by relieving the state of the burden of proving the defendant to be in violation of an essential element of the crime for which he was convicted. (See Sandstrom v. Montana (1979) 442 US 510, 520 [61 LEd2d 39; 99 SCt 2450].)
Hence, to the extent that the natural and probable consequences doctrine and the instructions thereon permit the jury to find essential elements of the charge by reference to the perpetrator’s mental state rather than the aider and abettor’s, they are subject to constitutional challenge. (See People v. Castillo DEPUBLISHED (91) 232 CA3d 132, 144, recognizing the issue but deferring for further guidance from the California Supreme Court; see also FORECITE F 402 Note 9.)
But see People v. Anderson (1991) 233 CA3d 1646; note dissenting opinion at 233 CA3d at 1667-69.
(See FORECITE PG VII(C)(48).)
[See Brief Bank # B-817 for additional briefing on this issue.]
CALJIC NOTE: See FORECITE F 3.02 n11.
F 402 Note 12 Killing Of Third Party Not A Natural And Probable Consequence Of Plan To Kill Another Person
When the defendant aids and abets pursuant to a plan to kill one person, the intentional killing of a third party by one of the accomplices is not a natural and probable consequence of the original plan. (See U.S. v. Andrews (9th Cir. 1996) 75 F3d 552.) This is so because the actions of the accomplice in shooting the third party are beyond the natural and probable consequences of the plan to kill the other person. The actions of the accomplice are akin to those of a robber who, as part of an agreed scheme to steal a safe, robs the watchman in the building on his own. (See LaFave & Scott (1986) Substantive Criminal Law, §6.8, p. 158 [asserting that those stealing the safe are not accomplices to the robbery of the watchman under the natural and probable consequences doctrine].) Allowing the jury to infer that the accomplice’s actions in killing the third party were the natural and probable consequence of the defendant’s aiding and abetting of the original plan to kill the other person would “take the natural and probable consequences doctrine to an extreme, ‘inconsistent with more fundamental principles of our system of criminal law.’ [Citation.]” (See also Joshua Dressler, Understanding Criminal Law (1987), §30.05, p. 426 [remarking that in the context of aiding and abetting, “[t]he natural-and-probable-consequences doctrine has been subjected to substantial criticism.” ]; U.S. v. Pena (6th Cir. 1993) 983 F2d 71, 72-73 [fact that defendant accompanied driver on car trip, was promised a plane ticket, and knew there was something illegal in the car was insufficient to sustain conviction for aiding and abetting possession of cocaine with intent to distribute]; State v. Holloway (Or.App. 1990) 795 P2d 589, 591-92 [evidence showing that the defendant accompanied gang members on drive-by shooting insufficient to support conviction for aiding and abetting in the shooting].)
CALJIC NOTE: See FORECITE F 3.02 n12.
F 402 Note 13 Foreseeability Rule Inapplicable To Felony Murder
People v. Escobar (1996) 48 CA4th 999, 1018-19 held that when the defendant has aided and abetted a felony specified in PC 189, the felony murder rule imposes first degree murder when a person is killed during the felony even if the killing was not foreseeable. This is so because the felony murder rule, which imposes strict liability for killings which occur during the commission of specified felonies, is much broader than the aiding and abetting rule.
People v. Dawson (1997) 60 CA4th 534 assumed that the natural and probable consequences doctrine applied to a charge of aiding and abetting a robbery which resulted in a felony murder conviction. (Dawson, 60 CA4th at 546 fn 4.) Dawson then held that because the jury was instructed upon the predicate offense of robbery, CJ 3.02 was not required under People v. Prettyman (1996) 14 C4th 248, 266-69.
CALJIC NOTE: See FORECITE F 3.02 n13.
F 402 Note 14 Aiding And Abetting Liability Where The Target Offense Consists Of The Same Act As The Actual Offense
People v. Laster (1997) 52 CA4th 1450, 1463-65 held that aiding and abetting liability applies even where the target offense and the charged offense are based upon the same act and the only difference is the perpetrator’s state of mind. In so doing, the court disagreed with People v. Rogers (1985) 172 CA3d 502, 515 fn 18. In reaching this result the court of appeal stated that it was necessary for the jury to “consider whether it was reasonably foreseeable that the perpetrator harbored an intent to kill.” However, as with other mental-state issues, this strains the logic of the reasonable consequences rule because the actual inquiry should be whether the perpetrator would harbor an intent to kill as a result of the defendant’s aiding and abetting the target offense. Such a determination—i.e., what mental state the perpetrator will form when committing the act—is speculative, unreliable and unsuitable for the traditional principles of causation. (See e.g., FORECITE F 402.5 Inst 4.)
CALJIC NOTE: See FORECITE F 3.02 n14.
F 402 Note 15 Aiding And Abetting: Consideration Of All Circumstances
Liability for aiding and abetting is determined by whether a reasonable person in the defendant’s position should have known that the charged offense was a reasonably foreseeable consequence of the act which was aided and abetted or which was the object of the conspiracy. Accordingly, the jury should consider all circumstances leading up to the last act by which the participant directly or indirectly aided or encouraged the perpetrator in the commission of the crime. The standard CJ instructions (CJ 3.02 and CJ 6.11) do not make this clear and should be clarified upon request. (People v. Aguilera UNPUBLISHED PORTION (12/19/96, H013728) 51 CA4th 1151.)
CALJIC NOTE: See FORECITE F 3.02 n15.
F 402 Note 16 Natural and Probable Consequences Sua Sponte Instruction on Target Offense
People v. Prettyman (1996) 14 C4th 248, 269 held that the trial court is obligated to instruct sua sponte on target offenses which the prosecution elects to rely upon as a predicate for the “natural and probable consequences” theory of liability. If the prosecutor does not rely on this doctrine, the trial court is under no duty to instruct the jury on it. (Prettyman, 14 C4th at 270; see also People v. Sakarias (2000) 22 C4th 596, 627; People v. Gonzalez (2002) 99 CA4th 475, 484-85 [if prosecutor fails to identify any potential target crimes, then there is no duty to sua sponte instruct on target offenses].) Alternatively, the court may ask the prosecutor if he or she wants the jury instructed on that rule, and if so what target crime or crimes the prosecutor believes to be appropriate. However, once the trial court, without a request therefor, decides to instruct the jury on the natural and probable consequences rule, it has a duty to issue instructions identifying and describing each potential target offense supported by the evidence. (Ibid.)
Instruction upon the “natural and probable consequences” rule may only be triggered by substantial evidence of a “close connection” between the target crime aided and abetted and the offense actually committed. (Prettyman, 14 C4th at 269.)
CALJIC NOTE: See FORECITE F 3.02 n16.
F 402 Note 17 Natural and Probable Consequence: Requirement Of “Close Connection” Between Target Crime And Charged Crime
“To trigger application of the ‘natural and probable consequences’ doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed.” (People v. Prettyman (1996) 14 C4th 248, 269; see also FORECITE F 3.02 n12, F 402 Note 6, and F 402 Note 7.)
CALJIC NOTE: See FORECITE F 3.02 n17.
F 402 Note 18 Relevance Of Intoxication To Natural And Probable Consequences
People v. Mendoza (1998) 18 C4th 1114, 1133 limited the applicability of intoxication to the question of whether the defendant had the required mental state to be an aider and abettor. According to Mendoza, intoxication is not relevant on the question of whether a charged crime was a natural and probable consequence of the target crime per CJ 3.02. However, while intoxication is irrelevant for purposes of negating the natural and probable consequences doctrine, because the doctrine is based on objective reasonableness, the defendant’s intoxication must be considered by the jury in determining whether a reasonable person in the defendant’s state of intoxication would have foreseen the consequences. (See People v. Ochoa (1993) 6 C4th 1199, 1204; see also People v. Mathews (1994) 25 CA4th 89, 99; People v. Humphrey (1996) 13 C4th 1073, 1083.)
CALJIC NOTE: See FORECITE F 3.02 n18.
F 402 Note 19 Natural And Probable Consequences Must Not Be Based On Target Offense In Abstract
Vicarious liability under the natural and probable consequences doctrine requires that the “act committed” be the natural and probable consequence of “any act [the defendant] knowingly aided and encouraged.” (People v. Croy (1985) 41 C3d 1, 12, fn 5; accord People v. Durham (1969) 70 C2d 171, 181; People v. Luparello (1986) 187 CA3d 410, 441.) Since this is the finding the jury is required to make, the trial court must instruct the jury in accordance with this rule. Otherwise, there can be no assurance the jury has convicted the defendant on a proper legal theory.
“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 rather than subjective test. [Citations.] This does not mean that the issue is to be considered in the abstract as a question of law. [Citation.]” (People v. Nguyen (1993) 21 CA4th 518, 531.) [See Brief Bank # B-787a and # B-787b for additional briefing on this issue.]
CALJIC NOTE: See FORECITE F 3.02 n19.
F 402 Note 20 Assault With Force Likely To Produce Great Bodily Injury Is Not A Natural And Probable Consequence Of Simple Battery
Assault with force likely to produce great bodily injury (PC 245(a)) should not normally be a natural and probable consequence of aiding and abetting a simple battery. (PC 242.) (See generally People v. Prettyman (1996) 14 C4th 248 [setting forth natural and probable consequences elements]; but see People v. Montes (1999) 74 CA4th 1050.) [See Brief Bank # B-829 for briefing on this issue.]
CALJIC NOTE: See FORECITE F 3.02 n20.
F 402 Note 21 Natural And Probable Consequences: Applicability To Specific Intent Offenses
Although the natural and probable consequences doctrine has been validated in California (see FORECITE F 402 Note 11), it has been “harshly criticized” as “both incongruous and unjust.” (See Sharma v. State (NV 2002) 56 P3d 868 [doctrine should not be applied to specific intent crimes for the reason that “it permits conviction without proof that the accused possessed the state of mind required by the statutory definition of the crime” ].)
CALJIC NOTE: See FORECITE F 3.02 n21.
F 402 Note 22 Reliance On Natural And Probable Consequences Doctrine Precludes Consecutive Sentencing For Both The Target And Resulting Offenses
(See People v. Bradley (2003) 111 CA4th 765.)
CALJIC NOTE: See FORECITE F 3.02 n22.
F 402 Note 23 No Murder Liability For Aiding And Abetting Misdemeanor
See FORECITE F 3.02 n1.
F 402 Note 24 Natural And Probable Consequences And Premeditation
To convict a defendant of attempted premeditated murder under the natural and probable consequences doctrine, the jury must be instructed that attempted premeditated murder was a natural and probable consequence of the charged robbery. (People v. Hart (2009) 176 CA4th 662.)
F 402 Note 25 Knowledge That Accomplice Is Armed Is Factor To Consider On Issue Of Whether Homicide Was Foreseeable
See, e.g., People v. Ayala (2010) 181 CA4th 1440, 1451 [even if the jury credited defendant’s claimed ignorance of the gun – and found the deadly weapon in the targeted assault to be a baseball bat instead of a gun – the jury could still find murder to be a foreseeable consequence of the violent gang confrontation].