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.”].)