Opinion Bank # O-266 (Re: 3.02g / F 3.02d [Lesser Offense Liability For Aider And Abettor])
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
Plaintiff and Respondent,
JOHN DOE et al.,
Defendants and Appellants.
In re JOHN DOE
On Habeas Corpus.
In re JANE DOE
On Habeas Corpus. OPINION
APPEAL from a judgment of the Superior Court of Kem County. Clarence Westra, Jr., Judge.
ORIGINAL PROCEEDINGS; petitions for writs of habeas corpus.
IV. The “Natural and Probable Consequences” Instructions
The trial court is required sua sponte to instruct the jury on those principles of law closely and openly connected with the facts of the case and which are necessary for the jury’s understanding of the issues. (People v. Elize (1999) 71 Cal.App.4th 605, 616.) In this case, we conclude the court failed adequately to instruct on the requirements for aider and abettor liability under the “natural and probable consequences” theory. In particular, the court failed to instruct the jury it could convict John Doe of involuntary manslaughter even if it found Jane Doe guilty of second degree murder. (People v. Woods (1992) 8 Cal.App.4th 1570, 1593.)
The court instructed the jury as follows (omitting para-raph breaks and optional language): “In order to find the defendant guilty of the crime of murder, you must be satisfied beyond a reasonable doubt that: (1) The crime of Felony Child Abuse, Neglect, Endangerment was committed, (2) That the defendant aided and abetted such crime, (3) That a co-principal in such crime committed the crime of Felony Child Abuse, Neglect, Endangerment, and (4) The crime of murder was a natural and probable consequence of the conu-nission of the crime of Felony Child Abuse, Neglect, Endangerment.”
That instruction does not accurately state the law. (See People v. Prettyman (1996) 14 Cal.4th 248, 267-269.) A defendant who aided and abetted felony child abuse, and whose coprincipal committed felony child abuse that resulted in the death of the child under circumstances constituting murder or involuntary manslaughter, would be guilty of murder if murder was a natural and probable consequence of the acts constituting felony child abuse. But such a defendant would be guilty only of involuntary manslaughter if “a reasonable person under like circumstances would recognize [only] that [involuntary manslaughter] was a reasonably foreseeable consequence of the crime aided and abetted…. The finding will depend on the circumstances surrounding the conduct of both the perpetrator and the aider and abettor.” (See People v. Woods, supra, 8 Cal.App.4th at p. 1587; see also People v. Nguyen, supra, 21 Cal.App.4th at p. 531; People v. Prettyman, supra, 14 Cal.4th at pp. 275-276 [assuming but not deciding that Woods was correctly decided].) In other words, in the present case there was evidence from which a jury could conclude that John Doe was unaware of Fumess’s “conscious disregard for human life” that he, instead, only knew about and shared Jane Doe’s bad judgment. The predicate mental state for the jury’s implied malice finding as to Jane Doe was most clearly established by Jane Doe’s extrajudicial statements-the very statements the jury could not consider as to John Doe because there was no evidence he was aware of the statements. (See People v. Blackwood (1939) 35 Cal.App.2d 728, 732-733; see also People v. Woods, supra, 8 Cal.App.4th at p. 1591, fn. 8.)
Putting aside Jane Doe’s extrajudicial statements, the record still supports an inference that John Doe knew Jane Doe was taping the baby’s mouth as a means of suppressing the sound of the baby’s crying. Taping a baby’s mouth is entirely inappropriate and might always constitute child abuse. The natural and probable consequences of that act, however, vary greatly in different contexts: leaving a taped baby unattended clearly would be dangerous to human life, whereas leaving the baby taped for a “time out” period while the parent continued to monitor the baby’s activity normally would not be dangerous to human life it would just be misguided and inappropriate.
We conclude the court should have instructed the jury on aiding and abetting involuntary manslaughter and should have instructed the jury it was not required to find John Doe guilty of the same offense of which it found Jane Doe guilty. Vicarious liability, like guilt itself, is not an all-or-nothing proposition. (People v. Woods, supra, 8 Cal.App.4th at p. 1588.) In the present case, in light of the limited admissibility of Fumess’s statements, it is reasonably probable the jury would have convicted John Doe of involuntary manslaughter had the jury been properly instructed on that issue. (People v. Breverman, supra, 19 Cal.4th at pp. 176-178 & fn. 26.)
In light of the strong evidence supporting John Doe’s guilt on the involuntary manslaughter lesser, and the much weaker evidence that implied malice second degree murder was a reasonably foreseeable consequence of Jane Doe’s actions, we will permit the prosecution to elect to consent to modification of his conviction on count 1 to involuntary manslaughter as a lesser included offense or to retry John Doe for second degree murder. (People v. Cameron (1994) 30 Cal.App.4th 591, 605.)