*1 Aug. C010320.Third Dist. [No. 1992.] PEOPLE,
THE Plaintiff and Respondent, al., BARRY DEWAYNE WOODS et Defendants and Appellants. [Opinion certified for partial publication.*] Court, * Pursuant to California Rules of rule opinion publication 976.1 this is certified exception parts through V XIV. Facts *6 Counsel Stuetz, Cutler, Thomas, Levine and J.
Mark E. Marcia C. Cynthia Jeffrey under the Court of Defendants Appeal, Appellants. appointments *7 Williamson, General, Chief Assistant Daniel E. George Lungren, Attorney General, General, Anderson, Robert R. Assistant Acting Attorney Attorney Bellet, General, Plain- for Attorneys and Lisbeth Deputy Ward A. Campbell tiff and Respondent.
Opinion
SCOTLAND, J. their shot friend was rival member by gang Mayse After Walker, Windham, defendants Woods and John with Barry Dewayne along several set out to find in an Walker effort retaliate accomplices, apparent for the ski masks and armed with went shooting. Wearing to the guns, they Johnson, Allen of Susan and two of apartment Walker’s Trudy acquaintan ces. After one Woods beat of the women’s Woods and his up neighbors, cohorts entered the Windham waited outside as a look forcibly apartment. out. At the intruders demanded to know Walker’s gunpoint, whereabouts. Johnson, assaulted both women and They shot but Allen and Johnson were Then, unable to tell them where could find Walker. after warned they being that “someone said the intruders police coming,” with departed, taking them two tires stored automobile Walker had at the Outside a apartment. the assailants loaded the nearby apartment complex, tires into their car. A few stalls Chmelik James parking away, Craig McMahon were preparing in Chmelik’s drew a depart Mustang. Noticing Woods pair, large it, and handgun, loaded fired six shots into the McMahon was Mustang. wounded, and Chmelik was killed. After Woods Windham shooting, house, went to a where hid friend’s Woods the murder and he and weapon Windham flushed bullet shells down the apparently toilet. Code, (Pen.
Defendants were convicted of murder first of Chmelik 187), Code, (Pen. 664), murder of attempted § McMahon and as- §§ Code, 245, saults (Pen. on Allen and (a)(2)). firearms Johnson subd. § true, Numerous enhancing allegations were and found charged including that Woods used a firearm in the allegations commission the offenses Code, 12022.5, (Pen. (a)), (Pen. subd. Windham was armed with a gun § Code, 12022, (a)(1), (Pen. subd. had served a term § Woods prior prison Code, 667.5, (b)). subd. §
In the of this we conclude the trial court erred published portion opinion, that instructing the Windham could not be found of second jury guilty Woods, degree murder as an aider and abettor if determined first As we perpetrator killing, murder. shall under Penal Code section aider and is liable vicari- explain, 31 an abettor crime committed is a ously which perpetrator act the criminal originally contemplated by and the that an aider and abettor abettor. It follows perpetrator be found a lesser crime than that committed ultimately was not a rea- where the evidence ultimate crime suggests of the criminal act aided and sonably originally abetted, but the accom- during a lesser committed by crime was such a even consequence. Accordingly, ultimate plishment *8 when included offense instructions are necessarily for the required that, all, because the evidence establishes if guilty perpe- offense, trator is the trial court has a guilty greater instruct sua duty on included sponte offenses for the aider and abettоr if the necessarily evidence raises a whether the question offense is a greater reasonably foreseeable of the criminal act consequence originally contemplated abetted, but would a that a lesser support finding included offense committed However, was such a the trial court need not consequence. instruct on a included offense if the evidence is such particular necessarily abettor, all, that the aider and that guilty something beyond offense, i.e., lesser if the evidence establishes offense was a greater foreseeable reasonably criminal act contem- originally and no evidence otherwise. plated, suggests case, these to the
Applying facts of this we conclude the principles evidence raised a whether the first murder of question degree Chmelik was a reasonably the armed assaults on Allen and However, Johnson which Windham aided and abetted. we find the evidence established that the beyond included offense of second question necessarily (i.e., murder degree intentional but or a unpremeditated killing killing from conduct resulting life) to human inherently dangerous was Thus, the trial court had a to inform the consequence. duty jurors could convict Windham of second murder they as an aider and abettor degree murder, even found Woods though of first but the they degree court was not to instruct on included offenses than second required less degree murder. error,
Due to the instructional Windham’s murder conviction cannot stand. Because the evidence established that Windham’s as an aider and guilt murder, abettor was not lеss than second we shall give him on the of first murder option retrying charge or accepting reduction of the conviction to second murder.
In the of this we unpublished portion defendants’ opinion, dispose numerous other contentions.1 one of them has merit. While the trial Only was called on judge another over the away military duty, judge presided bifurcated of the trial on the Woods had served a portion allegation prior 667.5, (b). term within the of Penal Code prison meaning section subdivision Because the misinstructed the on the elements of said replacement judge enhancement, the thereon must be reversed. finding joins
1 Eachdefendant his codefendant’s contentions.
Facts*
Discussion
I The was that and to Windham aided abetted Woods prosecution’s theory commit the criminal Johnson acts of Allen and with firearms assaulting order to coerce the into where victims defendants Walker telling was located so defendants could find harm him in and retaliation for the gang-related that, of shooting their friend. The prosecutor because the evidence argued was sufficient to he establish Woods committed first murder when degree Johnson, killed Chmelik the assaults on Allen and following because could find the first murder was a foreseeable conse- jury degree of the assaults with firearms on Allen and Johnson committed in quence Walker, to effort locate Windham was liable as an aider and abettor for first murder of Chmelik. firearm,
The trial court a instructed the on assault with murder in the jury second first and aider and degree, and abettor other liability. Among things, aids, that court informed the one who or advice jury act promotes, or encourages the commission of a crime with of the instigates knowledge unlawful of the and with intent to or purpose encourage facilitate crime is that to only his guilty knowledge but also for the natural and perpetrator contemplated committing, probable criminal act he consequences aided and knowingly intentionally 3.01, (CALJIC 3.02.) abetted. Nos. told it had was to determine jury whether the aider and abettor of the crime guilty contem- originally and, so, whether other crimes were natural and plated charged probable 3.02.) (CALJIC crime. No. consequences originally contemplated Moreover, the was informed the aider and abettor is a jury regarded in the crime committed” “thus who principal directly person perpe- the crime trated and is thereof” the crime is “equally guilty provided natural probable offense originally contemplated. 3.00, (CALJIC Nos. 3.02.) deliberations,
During sent the trial court following question: “Can defendant be found a murder in aiding abetting if the murder second actual of the same is determined be murder in the first After the matter with degree?” discussing counsel, answered, the trial “No.” court footnote, ante, page
* See 1570. Windham contends the court’s misinstructed the response According jury. Windham, an aider and abettor convicted “of different may lesser crime than the who commits a criminal act [perpetrator]” beyond view, In the aider and abettor. his the trier of fact contemplated by *10 determine the ultimate offense committed the was not by perpetrator foreseeable but of the criminal act aided and abetted reasonably that an offense subsumed within the ultimate crime was such a consequence. Thus, the trier of find fact could the of the ultimate crime perpetrator guilty and convict the aider and abettor of a lesser offense. case, to the facts of this Windham’s
Applied is that the position jurors could have found it was not reasonably Woods would commit the of an innocent but it was premeditated killing bystander, reasonably foreseeable that Woods commit might the included offense of necessarily murder, i.e., second kill degree but and intentionally premeditation without deliberation or kill as a result of an intentional act to human life dangerous with of the and with performed knowledge conscious for danger disregard Hence, so, human life. to do the could permitted have found jurors abettor, Windham of second murder as an aider guilty the despite fact found Woods of first they guilty degree murder. follows, did,
It Windham as it the trial argues, by answering inquiry court “withdrew from of fact which the jury question jury and constituted a directed responsible finding, verdict of first degree determined murder for aider and abettor once the any the actual of the murder was of first perpetrator murder.” guilty The that because People disagree, arguing aider and abettor is liability vicarious, it is an with all-or-nothing proposition crimes commit- respect ted that the aider and by perpetrator beyond by abettor: contemplated aider and abettor in in effect stands the shoes of the and is for the responsible ultimate crime and thereof committed view, or is In at all. if the crime guilty nothing People’s committed was a ultimately reasonably abetted,
criminal act aided the aider and abеttor is of the ultimate guilty foreseeable, If crime. that crime was not the aider and abettor is other than the and commit- guilty nothing originally contemplated ted and offenses he or she have committed in any personally aiding abetting perpetrator. case, that, this to the facts of because
Applied People’s position crime Woods committed Windham as an aider beyond contemplated by and abettor was murder in the first Windham was of that crime degree, or to the of Chmelik. nothing respect killing we has the better argument.
As shall Windham explain, on the intent Legislature answer to the question depends posed and abettor liability. Code section which enacting governs Penal (Further are Penal Code unless otherwise specified.) section references to the “All in the commission of
Section 31 concerned provides: persons misdemeanor, crime, whether directly whether it be or felony they commission, or, offense, commit the or aid and abet in its constituting act commission, and all have advised and its being present, encouraged under or children advising encouraging age persons counseling, who, fraud, idiots, crime, fourteen lunatics or to commit years, *11 contrivance, force, drunkenness another for the or occasion the purpose who, menaces, crime, threats, him or to commit or command causing any by coercion, crime, another to are in principals any commit compel so An and abettor who acts “with knowl committed.” aider one intent of the criminal with an or and edge purpose perpetrator purpоse of, either of or of or commission the 60, committing, encouraging facilitating 547, (1984) offense.” v. Beeman 35 Cal. 3d 560 (People Cal.Rptr. 1318], 674 P.2d in original.) italics section 31 not been amended since its as adoption part
Because has 18722, at of the Penal Code of it is the intent the time Legislature’s (Keeler section was in 1872 which controls our Superior enacted analysis. 619, 617, (1970) 481, 40 A.L.R.3d Court Cal.3d 420].) intent, common law because
To ascertain said we must look law. were from the of common California’s first codes derived precedents that, Keeler, Code, 22.2; 625.) (See It is presumed Civ. Cal.3d at supra, p. § 31, in “was with the relevant rules enacting section familiar Legislature law, and, in common law of common when it couches its enactments was rules in form.” that its intent to continue those language, statutory 625.) (Keeler, supra, p. felonies, into and
For
“the common law divided
principals
guilty parties
actual
to the ancient
analysis only
perpetrator
accessories. According
governing
and
language
original statute
2 The
of section 31 differs from California’s
aids, abets,
by and
or
liability,
accessory
“An
is he or she who stands
provided:
abettor
which
assists;
encouraged
abetting,
assisting,
or
hath advised and
being present aiding,
or who not
assists,
aids,
encourages,
advises
He or she who thus
or
or
perpetration
of the crime.
abets
99,
1850,
(Stats.
accordingly.”
ch.
principal,
punished
considered as
shall
deemed and
230.)
punished
to mean
p.
“punished accordingly”
interpreted
was
phrase
§
had committed the offense.”
if the
by
abettor]
crime committed
“as
[aider
133, 134.)
(People (1855)
Davidson
5 Cal.
the felonious deed wаs a
Other
were called ‘acces-
principal.
guilty parties
sories,’ and to
these with reference to time and
distinguish among
place they
fact,
(1)
(2)
were divided into three classes:
accessories before the
accesso-
fact,
ries at the
accessories after the fact. At a
time
relatively early
who was
considered an
at the fact ceased to be
party
originally
accessory
classed in the
labeled a
To
accessorial
group
principal.
distinguish
him from the actual
of the crime he was called a
in the
principal
Thereafter,
second
there were two
degree.
cases
kinds of
felony
principals,
accessories,
first
and second
and two kinds of
the fact
before
degree,
(Perkins
and after the
(3d
1982)
fact.”
&
Criminal Law
ed.
Parties to
Boyce,
Crime,
6, 8,
omitted;
Scott,
ch.
fns.
see also LaFave &
Substantive
p.
§
Crime,
6, 6.6,
125;
Criminal Law
Parties to
ch.
1 Wharton’s
p.
§
Parties,
(14th
1978)
157.)
Criminal Law
ed.
ch.
§
A
in the
who
“not only
first
was one
a crime
principal
perpetrated
hands,
chemical
with his own
but
of mechanical or
‘through
agency
means,
instruments,
animal, child, or
or
other
poison
powder,
(Perkins
innocent
&
cit.
ch.
op.
supra,
at his direction.”
agent’ acting
Boyce,
6, 8,
who “did not
A
in the second
was one
principal
§
counseled,
“aided,
commit the
who
com
crime with his own hands” but
*12
manded
in
either actual
or
the commission thereof
his
encouraged
presence,
736,
(Id.,
738.)3
or
An
the fact was one
constructive.”
at
before
pp.
accessory
“aided,
crime], without
who
counseled or
the commission
encouraged
[of
of
been
either
or
at the moment
constructively
having
present
actually
6, 8,
744.) An
(Perkins
ch.
at
op.
supra,
p.
&
cit.
perpetration.”
Boyce,
§
crime,
who,
after the fact was one
after the commission of the
and
accessory
rendered assistance to hinder the
of the other’s
knowledge
guilt,
detection, arrest,
748;
(Id.,
trial or
of a
to the crime.
at
punishment
party
pp.
Scott,
6,
6.6,
126-130;
at
1
see also LaFave &
cit.
ch.
op.
supra,
pp.
§
Law,
4,
30-33,
159-171.)
Wharton's Criminal
cit.
ch.
at
op.
supra,
pp.
§§
with the
regarded
constructively present
person cooperated
3 One was
whenever the
“
other,
him,
aid
with a view known to the
to
perpetrator and was
‘so situated as to be able to
” (Id.,
741.)
typical
accomplishment
purpose.’
p.
in the
of the common
at
insure success
while
or her associates entered a
example was the lookout who was stationed outside
his
of the doctrine of ‘constructive
building
application
to commit a crime. “The most extreme
stationed himself on a
presence’
holdup
stagecoach.
conspirators
involved the
of a
One of the
ambush,
signaled
approach
of
mountain-top,
thirty
forty
miles from the intended
and
to be of assistance at the
the vehicle means of a controlled fire. Because he was so situated
moment,
(Ibid.;
v.
principal
degree.”
held
be a
in the second
see also United States
he was
California,
1974)
(9th
in
airplane hijacking
committed
Peichev
Cir.
1583 31, In law section abolished the common enacting Legislature and second and the distinction between of first distinc principals v. (People tion between and accessories before fact. Hodges principals 68, 340, 341; 69.)4 10 (1865) (1858) 27 v. Bearss Cal. Cal. However, has which liability a common law rule aider abettor is doctrine that one who incites the commission survived California also for any a crime can be liable not for the crime incited but only result from be incidental which reasonably might expected consequences 745; 8, 6, at (Perkins & ch. supra, p. the intended cit. wrong. Boyce, op. § Law, 4, 35, 1 Criminal cit. ch. op. supra, Wharton's § noted, As the Court has an aider abettor “is Supreme California not only of the offense he intended to facilitate or but also encourage, foreseeable offense he aids abets.” committed by person 1, 592, 12, (1985) v. 710 P.2d (People fn. 5 Croy Cal.Rptr. [221 392].) “Like the whose on acts other than conspirator liability predicated offense, and short of those if the constituting charged elements acts are undertaken with intent actual that the purpose perpetrator’s facilitated is a and liable for the thereby, principal [the abettor] commission of the offense. Also like he is guilty only conspirator, but the offense he intended to facilitate or also of encourage, any reasonably (Ibid.; aids see foreseeable offense committed he and abets.” person 610]; 821 P.2d People Price Cal.4th 442 Cal.Rptr.2d 1158, 1162, fn. Cal.3d People Cooper Bеeman, 742]; 560.)5 supra, 35 Cal.3d at p. In rule (Croy, this of “vicarious” Cal.3d reciting liability supra, 5), fn. which it has relied did *13 the Court and decisions Supreme upon Nevertheless, refer must conclude the not to the of section 31. we language “Every accessory fact is defined in section 32: equivalent 4 Thecommon law of an after the committed, who, harbors, principal in such felony conceals or aids person after has been arrest, trial, escape that from conviction or felony, principal the intent said avoid or felony or been having knowledge principal that said has committed such has punishment, thereof, accessory felony.” where charged felony Except or with such convicted is an such statute, by a by accessory is fine punishment prescribed punishable a different is an and/or (§33.) years year county jail. in up prison up incarceration to three in state or to one not as an aider and abettor need liability predicated defendant whose is on his status 5 “[A] particular ultimately by committed the encourage have or the offense intended to facilitate intended, and his action taken knowledge act which criminal was perpetrator. His that an is facilitated, impose liability on encouraged be are sufficient to with the intent that the act by perpetrator.” the any reasonably consequence offense committed as him for foreseeable 746, 12, 5; (1989) supra, [254 47 Cal.3d 778 (Croy, p. Cal.3d at fn. see v. Garrison 41 560; Beeman, 257, 419]; People Durham 70 supra, 35 Cal.Rptr. P.2d Cal.3d 765 262, 198].) Cal.Rptr. Cal.2d 449 that, court determined in an aider and abettor is liable impliedly specifying for crime so сommitted” the intended— “any by perpetrator, Legislature consistent with common law—that the aider and abettor is only the criminal act and abetted but also of other originally contemplated crime which is a by reasonably perpetrator the offense the aider and abettor. originally contemplated by follows,
It for where crime so committed” example, “any by perpetra- murder, tor for is determined to be first it is murder in the first which section to an aider and abettor said assigns provided responsibility crime is a the criminal act reasonably originally and the aider and abettor. contemplated by perpetrator (Croy, supra, course, in for any Cal.3d fn. Of addition to vicarious liability foreseeable offenses committed the aider and by perpetrator, in abettor is liable for the crimes he or she commits directly personally in other offenses. abetting engage aiding whether, The issue raised in this as to crimes committed beyond appeal aider and abettor to be section 31 originally contemplated, permits crime or of crime than the ultimate convicted of a lesser lesser degree when offense committed Stated another way, perpe perpetrator. abettor, the aider and trator commits a other than that contemplated by (§ 31) crime so committed” does the aider and abettor’s liability “any it extend to the ultimate offense committed or does only (See included crimes within the offense committed? encompass necessarily 510, 517, 674 P.2d fn. People Geiger included in the charged 50 A.L.R.4th offense is necessarily [an 1055] offеnse if under the definition of the offense it cannot statutory charged offense, without the lesser or if the committing charging allega committed include offense describing tions of accusatory pleading language such a that if committed as the lesser offense is necessarily way specified committed].) an indicator
To answer this we look first to common law as question again intent. legislative law, were and accessories At common early principals *14 Even the after the fact was guilty original same crime. accessory of relating the known felon was as thought “His assistance to felony. offense.” him with the of that very back to that crime tainting guilt 727-728, 729, 757; 6, 8, see (Perkins ch. at & cit. Boyce, op. supra, pp. § 4, 34, Law, 172-174.) at cit. ch. op. supra, pp. also 1 Wharton's Criminal § Moreover, (Perkins op. & cit. Boyce, death. by all felonies were punishable 6, rule, 8, Hence, 730.) the ch. at supra, p. original ‘principals § “[u]nder ” such, felons, were, (Id., at were death.’ punishable by p. accessories 757.) Parliament numerous offenses to of common adding
As began group felonies, with the law there “came to be dissatisfaction rule great applying cases, (Perkins supra, the death in all . . .” & cit. felony Boyce, op. penalty 6, 8, 730, for 751.) at to the of devices ch. This “led invention various pp. § cases, of an number in excessive of executions avoiding felony purpose (Id., 751.) entitling . .” at devices were Among . of such p. examples technical- accessories after the fact to the benefit of and developing clergy6 (Perkins op. ities in trial and of jurisdiction, Boyce, & pleading, guilt. 730-731, Scott, 751-758; at cit. supra, cit. see also LaFave & supra, op. pp. 6, 6.6, 130-132.) at ch. pp. § abettors
As to of it became that some aiders and guilt, recognized could be convicted of a less than the ultimate offense committed thus, and, than could be less severely perpetra punished 757; 6, 738, 743, 753, 8, (Perkins tor. & cit. ch. at Boyce, op. supra, pp. § 4, Law, 34, 172-174.) Wharton's Criminal ch. at op. supra, pp. cit. § One basis for common which an aider and abettor this law rule permitted found a crime of than the to be or crime different perpetra- Perkins, ultimate does in tor’s offense not exist California—according “the reason for the ceased to when most distinction exist principal-accessory (Perkins were & felonies removed from the category capital crimes[.]” 6, 759, 765-766.) cit. ch. at Boyce, op. supra, pp. § Nevertheless, rule of of the common law continuing viability consequences liability abettor that, enacting act conclusion in criminal originally contemplated compels abettor be found intended that aider and section Legislature law, This from given exemption sentence. clergyman a could not be death 6 Atcommon Originally, it was allowed clergy.” known as the “benefit of capital punishment was church, Later, including were with the only. it was to all who connected clergymen extended officers, presumption there existed a point then called “clerks.” At one subordinate its most clergy or an officer of the church. read must a member of any man who could 730.) after supra, privilege The was claimed Boyce, op. (Perkins § & cit. ch. technically his judgment, ‘praying cаlled by a of motion in arrest of “species conviction ” (5th 1979) testing his (Black’s Dictionary ed. “As means clergy.’ Law and, character, reading it upon his psalm was to read . . . given accused] clerical [the courts, bishop tried correctly, to the ecclesiastical to be he turned over began enacting that (Ibid.) Parliament privilege became so abused that twelve clerks.” This privilege was abolished clergy.” “without the benefit of certain crimes were felonies (Ibid.) 1827. *15 1586 aof lesser crime or lesser of crime than the ultimate offense
guilty have the is found to committed. perpetrator
To determine a defendant’s or innocence based guilt (assum on aider and abettor must liability, jury employ four-part analysis the and abettor with aider is the ing charged originally contemplated which the as well as other crimes were allegedly reasonably perpetrator crime).7 the foreseeable consequences original Although first and the aider and abettor need not be tried the perpetrator jointly, jury must determine the crimes and of crimes degrees originally contemplated committed, Next, whether if the the must decide any, by jury perpetrator. the aider and abettor knew of the intent to commit the origi perpetrator’s criminal acts and whether the aider and abettor intended nally contemplated words, to In or facilitate the commission of those acts. other encourage for, i.e., must determine if aider and is liable vicariously abettor jury of, Then must the crime or crimes guilty originally contemplated. jury determine whether other crimes and of crimes charged against degrees so, If must and abettor were committed by perpetrator. jury crimes, determine whether those not necessarily contemplated although outset, were foreseeable crimi original reasonably consequences and abettor. 41 (Croy, supra, nal acts or facilitated the aider encouraged Durham, 181; 12, 5; v. People 70 Cal.2d at supra, Rogers Cal.3d fn. words, 502, 809].) In (1985) 515 other 172 Cal.Rptr. Cal.App.3d for, i.e., if the aider and abettor is liable vicariously must determine of, crimes beyond contemplated originally. other those (1) factual determinations for what Because this analysis requires separate committed, (2) are the fore reasonably crimes have been what crimes it is self- seeable of the offense originally contemplated, consequences as the does stand in the same position evident that the aider and abettor acts, his or her criminal While the is liable for all of perpetrator. for those crimes committed by the aider and abettor is liable vicariously only under the circumstances. which were reasonably of crimes abettor be found an aider and Accordingly, required charge the aider why prosecution should be 7 We know of no reason and committed or with all of the originally contemplated the crime abettor discretion, prosecutorial As a matter of crimes which resulted therefrom. crimes, charge against an aider and abettor. any, empowered to select which prosecutor 14, 1193]; 132, (1977) (Daly Superior Cal.Rptr. 560 P.2d Court Cal.3d 148 [137 v. 1039, 486]; (1974) People v. Adams Brigham Cal.Rptr. Cal.App.3d Municipal 905]; Davis Court Cal.Rptr. cf. Cal.App.3d 707-708 [117 (2d 11]; Law Cal. Criminal Epstein, 4 Witkin & 757 P.2d Cal.3d 77 [249 Procedure, 2110-2112.) 1989) pр. § to Criminal ed. Introduction *16 1587 are less serious than the offense gravest committed the which perpetrator commits, i.e., and abettor the perpetrator may the the aider perpetrator on which on the same conduct depending have based degrees guilt differing of under were the reasonably criminal acts the perpetrator’s foreseeable of (See 4 the Penal Code which not. [provisions circumstances and were § terms, the fair of their with view import “are construed to according to be to and to justice”].) effect its objects promote the whether a crime committed by
The factual determination perpe trator crime or was a crimes reasonably consequence foreseeable on the and abettor’s subjective not founded originally contemplated Rather, view is based of what occur. on an might liability “objective analysis causation”; i.e., whether a reasonable under like circumstances person reasonably consequence would crime was a foreseeable recognize Cal.App.3d act aided and abetted. v. 216 (People Brigham, supra, p. 1051.) will con surrounding The on the circumstances finding depend id., at duct the aider and of both the abettor. perpetrator (E.g., pp. 1054-2056.) if would simple
The of aider abettor analysis liability relatively crime committed were not prosecution required charge only greatest crime, but also for a e.g., included every necessarily with a violations rang homicide committed firearm prosecution charged from to assault a firearm to could evaluate ing murder. battery each determine if the crime was committed and if it was reasonably However, of the crime aided and abetted. included every need file offense. prosecution charges necessarily 216 1052 has discretion to (Brigham, supra, prosecutor Cal.App.3d [the which crimes and on what will be charged theory they determine will be 7, ante.) see fn. prosecuted]; need charged, perpetra included offenses not be
Although necessarily committed as he or she committed the criminal greater tor nevertheless them 822, 408, 2 Mincey (1992) Cal.Rptr.2d Cal.4th 452 (People offense. [6 583, 388]; (1990) 50 v. Clark Cal.3d Cal.Rptr. 827 P.2d [268 Trial, 2936, 399, 127]; Witkin, (2d 1989) Criminal Law ed. § Cal. Court, 3603-3604, in Trial and Attack Judgment pp. § both a and a greater cannot be found The fact 42 Cal.3d v. Pearson (People included offense necessarily crime subsumes lesser 721 P.2d greater Cal.Rptr. 595] [the 1011, 1030 crime]; accord People Griffin from 103]) being an aider and abettor should not preclude 761 P.2d lesser, when the included offense uncharged, necessarily found of an but not the offense is greater, aided and abetted.
crime originally *17 Therefore, of the in aider and abettor crimes liability determining the must be permit the act originally contemplated, jury perpetrator beyond offenses where the facts ted to consider included uncharged, necessarily crime was not a reasonably would a determination that the support greater but the lesser offense was such a consequence. foreseeable consequence unwarranted, Otherwise, discuss, we shall the would be jury given as (See aider and abettor People choice for Wicker all-or-nothing liаbility. 307, 436, 311], 650 P.2d sham 324 Cal.Rptr. [185 discussion, post.) the that vicarious liability in section 31
Nothing supports People’s position i.e., the aider and abettor is of the is an that all-or-nothing proposition, guilty or is not liable for crime any offense committed the greatest perpetrator As we have the committed that beyond originally contemplated. explained, in make and abettor a intent of section 31 is to the aider principal apparent the which is reasonably crime committed by a fact Accordingly, of the criminal act originally contemplated. find the aider and abettor the of one crime and finder can convict establishes that included offense where the evidence of a necessarily of the foreseeable consequence the lesser offense was a reasonably only crime originally contemplated. Take, for example, could lead to absurd results.
A contrary interpretation under aids and abets a shoplifter peculiar scenario: one following the of violence during it is debatable whether the eruption circumstances where is a e.g., shoplifter reasonably consequence, is a incident, and the before without who has been arrested known pacifist it is highly unlikely indicate circumstances of the intended shoplift Nonetheless, stabs caught the shoplifter would be detected. shoplifter the perpetrator charges flees. shoplifter prosecutor the store owner as murder. The jury with robbery attempted and the aider and abettor not offenses were but concludes the of both crimes convicts the perpetrator facil- and abettor’s act of of the aider foreseeable consequences view of section 31 Under People’s the commission itating shoplift. even aider and abettor have to would acquit vicarious liability, abettor. as an aider and theft it is clear that he is guilty petty though (In re this absurd result. did not intend the Legislature We must presume Thus, 184, we 65].) P.2d 721 Cal.Rptr. 232 Head Cal.3d [228 vicarious liability of section 31 must a reasonable interpretation adopt (People that which would lead to an and absurd result. Catelli unjust reject 452].) (1991) Cal.Rptr. Cal.App.3d in the can avoid the absurd result One retort the prosecution offense of petty aforesaid scenario included by charging necessarily noted, However, we theft. have cannot compelled prosecution Moreover, (See ante.) fn. all included offenses. charge necessarily necessarily on as to the court is to instruct required trial perpetrator, that, included offenses when the evidence establishes if guilty, perpetra (1974) 10 Cal.3d tor is offense. v. Sedeno greater (People 1,518 913], on other grounds disapproved *18 668, 684, 84, 1]; (1979) v. Flannel 25 fn. 12 603 Cal.Rptr. Cal.3d [160 707, 874].) (1964) v. Morrison 228 713 People Cal.Rptr. Cal.App.2d [39 Therefore, the trial court has a to inform the that duty jury unless of less aider abettor convicted a crime than the ultimate offense committed the when the evidence raises a whether question the is a aided offense foreseeable act greater reasonably consequence and abetted a a the but establishes that lesser offense such consequence, would be with an unwarranted choice all-or-nothing jury provided scenario, to the aider and In the when faced with respect abettor. aforesaid evidence liable for vicariously uncontroverted that the and abettor was theft, of if left a be reluctant to the crimes petty jury may greater acquit Wickersham, (See without the alternative of a verdict for theft. guilty petty 411, 324; (1991) 54 32 Cal.3d at accord v. Webster Cal.3d supra, People 444, 31, 1273]; fh. 17 814 P.2d v. Ramkeesoon Cal.Rptr. People [285 455, 613].) 702 P.2d Cal.Rptr. the
Either of the aider and abettor evidence although result (acquittal offense, a offense greater establishes of lesser or conviction for guilt no for because the has of the defendant liable the lesser jury option finding has crime) is the California Court As unjust unacceptable. Supreme observed, a no interest in conviction legitimate obtaining “the have evidence, a defendant on a offense than that established greater [and] a has no to an when the evidence is sufficient establish right acquittal (Sedeno, citing People Cal.3d at supra, lesser included offense.” 390].) 463 P.2d Martin Cal.3d St. as an aider his liability Windham properly recognizes that, on a factual determination for the killing depended abettor Chmelik of the offense foreseeable killing reasonably consequence not was the only i.e., the degree of the killing, but that the gravity originally contemplated, of this murder, opinion In unpublished part was such a consequence. VIII), determination we conclude the facts of this case (pt. support jury’s deliberated, i.e., We that the the first killing premeditated degree. find determination that also there is sufficient evidencе to support jury’s the assaults first murder was a degree reasonably Allen committed in an effort to locate and with firearms on and Johnson Ill, However, (see harm Walker made the second determi post). pt. an alternative. The court told the nation without effectively benefit of aider and must convict Windham of first murder as an jurors they degree him Had the abettor or trial court acquit any liability killing. answered in the affirmative when whether a defendant asked by jurors could be of murder in the second as an aider and abettor if the guilty degree is determined to be of murder in the first we can degree, envision the that Windham was of second not jury deciding case, the first murder. Under the circumstances of this jury, given choice, it foreseeable Woods could have determined was reasonably of an innocent would commit the cold-blooded premeditated, killing by stander, but it that Woods that was murder, i.e., commit the included offense of second necessarily might kill but without and deliberation or kill as intentionally premeditation *19 human life with knowl result of an intentional act dangerous performed III, (See for human life. and conscious edge danger disregard pt. post.) effect,
In choice with all-or-nothing was an unwarranted jury given and abettor for the of Chmelik. Faced with liability killing to aider respect was evidence from which it could conclude that second murder only degree of Windham’s and aiding abetting reasonably Johnson, to convict Woods in Allen and but no assaulting having option murder, have been reluctant to Windham of second degree jury may him offense of first murder. Stated another way, of the greater acquit murder to avoid have returned a verdict of on first guilt jury may for a killing the absurd result of Windham of absolving any responsibility of his act of aiding which was a This illustrates why the violent assaults on Allen and Johnson. abetting find a defendant of second guilty should have been told it could jury was even if it determined perpetrator murder as an aider abettor murder. of first degree guilty can found of a
Our that an aider and abettor guilty conclusion is consistent with committed less than the ultimate offense (1939) 728 Blackwood 35 Cal.App.2d this court’s decision in v. People [96 murder in Blackwood, guilty found the perpetrator P.2d In jury 982]. as an in the second degree and his wife of murder guilty the first degree 1591 conviction to manslaugh reduced the wife’s and abettor. The trial court in the second of murder wife “if she is not guilty On argued ter. appeal, abettor, she as an aider and with her husband as being guilty degree, equally a homicide did not commit held for since she manslaughter, cannot be her entered against which the crime for judgment herself and that is not “We do not 732.) The Blackwood court (Id., disagreed: husband.” inflexible is so are the rule that the two equally believe that principals crime even degrees find them of different that a might them is not necessarily the evidence against are tried For they jointly. though the same.”8 precisely the evidence against
Blackwood’s recognition to the case present aider and abettor is not same” applicable “precisely of Woods’s foreseeability turns on the reasonable where Windham’s liability conduct, himself. which has no to Woods an element application accused, an aider and have held “an that оther cases
We also note abettor, when they crime than the perpetrator be convicted of lesser 686, 693, 8 (1974) 12 fn. Taylor v. Cal.3d are tried together.” (People [117 v. Braun People Blackwood 622], as well as P.2d citing Cal.Rptr. 56], on other (1973) disapproved Cal.Rptr. 973-974 29 Cal.App.3d [106 1, 25, fn. 10 v. Green Cal.Rptr. People grounds [164 752, 777 v. Finch 468], (1963) 213 Cal.App.2d People [29 420]; (1960) 181 Cal.App.2d People see also Cal.Rptr. Griffith 161, 164, Martinez 620]; Cal.App.2d *20 8 Blackwood, the an inference of “warranted firing by the shots the noted of murder, might not be Blackwood crime of while Mrs. malice which is essential to the malice, aiding be might nevertheless guilty knowledge of that but chargeable heat quarrel a sudden voluntary manslaughter ‘upon abetting him in the commission of and finding principals the two might justified be ... jury this a passion.’ For reason crime, one of the . . . reduce might properly the trial court degrees of and of different 733, omitted.) (Id., citation p. not the at judgments and other.” the test rather than subjective applied it seems to have analysis troubling is because This 1051.) As the (See p. at Brigham, supra, Cal.App.3d 216 objective test of causation. required noted, have intended to need not the aider and abettor Supreme recently Court California His or her by perpetrator. the ultimately committed encourage particular the or facilitate intended, the intent to her action taken with and his or act was knowledge that criminal act, reasonably impose liability are sufficient to encourage or facilitate the Hence, 12, 5.) the fact supra, p. at fn. (Croy, 41 Cal.3d by perpetrator. the offense committed she was which indicate under circumstances the homicide Blackwood aided and abetted Mrs. liability for her of vicarious would not absolve passion heat of acting upon quarrel or sudden the if, murder in commission of objectively, the killing viewed premeditated perpetrator’s the facilitating act Mrs. Blackwood’s consequence of reasonably foreseeable degree first was a killing.
1592 P.2d 521]; (1944) 66 Simpson Cal.App.2d Cal.Rptr. 339].)9
II jn court contends the trial Windham a related argument, could him of second have told the convict jurors they should only abettor, on but had a to instruct sua duty sponte murder as an aider and also foresee which have been all included offenses necessarily in the assaults and Woods abetting able of Windham’s aiding consequences Wickersham, 32 Cal.3d supra, Johnson.10 Citing with firearms on Allen and “In for the Windham order argues: Cal.3d supra, 307 and Geiger, of any and consequences particular to determine the natural probable jury indeed be a act, of offenses that might have the full it must spectrum that could be a . All offenses of the aided and abetted act... to the jury jury must be submitted natural and probable (Italics in original.) decide the issue.” properly on had no to instruct sua duty sponte we the trial court As shall explain, Woods. of offenses committed conceivably the full spectrum Woods, on vol entitled to instructions was not perpetrator, or any assault with deadly weapon, or involuntary manslaughter, untary that his killing did not suggest lesser offense because the evidence other A court need not murder. trial less than second degree Chmelik anything less the offense was there is no evidence lesser offenses where instruct on Cal.3d v. Duncan that charged. (People than Wickersham, 323-324.) at 131]; pp. supra, Finch, degree murder and of first 9 In Braun perpetrators were convicted Braun accomplice’s claim rejected of second murder. accomplices were convicted first murder jury was instructed on inconsistency, explaining that the of fatal guilty of the accomplice found the jury could have degree kidnap-murder second addition, based on the (29 974.) could have been In the verdict Cal.App.3d latter. Finch, hand, (Ibid.) not hold on the other does capacity. assertion of diminished accomplice’s than the ultimate crime for a crime less of an aider and abettor proper it is to convict complain “cannot and abettor Finch simply concluded perpetrator. committed (213 warranted.” law and the evidence to her than the finding by more favorable of a that, However, Simpson held under section Cal.App.2d Griffith convicted, of a lesser convicted “may severally and the aider and abettor *21 (Griffith, offense, of the other.” acquittal or reference to the conviction acquitted without part by Taylor undermines this 719; 329.) assertion Simpson, supra, supra, p. at p. at vicarious, pre that, estoppel wholly collateral accomplice’s liability holding where the (12 pp. at perpetrator. Cal.3d following acquittal of the accomplice conviction of cludes 689, 691-698.) failing to instruct on lesser erred in that the trial court reject Windham’s contention 10 We crimes, the trial related on lesser request instructions Windham did not relatеd offenses. supra, pp. at (Geiger, Cal.3d sponte. sua give such instructions duty had no to court 526-530.) are not for the Even when lesser offense instructions required that, all, at guilty perpe because the evidence establishes offense, a to the trial court have duty trator is of the guilty greater abettor as to aider and instruct sua on included offenses necessarily sponte charged If the evidence raises a whether offense liability. question of the the aider and abettor is a foreseeable reasonably consequence against a that and abetted but would a finding criminal act aided support originally a con was such included offense committed necessarily necessarily the trial court has a to instruct sua on the duty sponte sequence, aider and liability. included offense as of the instructions on abettor jury part Otherwise, I, ante, unwar as discussed in would jury given part ranted, and abettor liability. choice all-or-nothing concerning
However, the trial court need not instruct on a necessarily particular abettor, if at included offense if the evidence is such that the aider and offense, i.e., all, if the evidence that lesser something beyond is guilty establishes that a offense was a reasonably consequence greater other of the criminal act and no evidence suggests originally contemplated, Wickersham, 970; Cal.3d at (Duncan, wise. supra, supra, p. Morrison, Sedeno, 715; 323-324; People see 10 Cal.3d at supra, pp. supra, Cal.App.2d case, that
In this the evidence established second beyond question (i.e., murder an intentional in circumstances insufficiеnt to establish killing act deliberation and or a from an intentional killing resulting premeditation of, life dangerous knowledge to human committed inherently for, life) foresee conscious to human disregard danger reasonably Be initial armed on Allen and Johnson. able assaults from the ensuing that second murder cause no evidence suggested III, (see it was not necessary was unforeseeable onslaught post)11, armed pt. murder.12 to instruct on included offenses less than second (1992) 2 v. Godinez Cal.App.4th mistakenly 11 Windham asserts that, in this case. Godinez jury held if the Cal.Rptr.2d manslaughter authorizes a verdict 325] the fatal stab wounds testimony, believed the “it could have concluded appellant’s in that case knowingly encouraged—a fight fight of the he were not event, aiding not be unarmed combatants.” In that Godinez would between Here, however, reached a similar conclusion in abetting killing. could not have conducted an armed assault in order light undisputed evidence that the assailants for another assault in which a victim was shot. retaliate armed be reversed because attempted 12 Windham his murder conviction must contends alternative, suggests the conviction on offenses. In the Windham failure to instruct lesser nature of the disagree. We Given the deadly weapon. modified to with a should be assault Johnson, attempt murder an might it was foreseeable that Woods armed attack on Allen and Johnson) identify him as (unlike might be able to Allen and bystander innocent who
III contends his murder convictions must be attempted Windham murder the evidence does not support jury’s implied finding reversed because shootings reasonably that thе Chmelik and McMahon were which of the on Allen and Johnson Windham armed assaults consequences disagree. aided abetted in an to locate and attack Walker. We effort Viewed most to the v. Hernandez judgment (People favorably 1289]), (1988) 47 Cal.3d 345-346 [253 Walker, a rival that Windham was when present gang evidence shows member, Later, Windham’s in the foot. Windham shot friend accompanied Allen Woods and his associates to the Walker’s apartment acquaintances, Woods, Windham and the wore ski masks and were Johnson. others After one women’s neighbors, armed with Woods beat guns. up others entered the apartment, Windham acted as a lookout while the forcibly whereabouts, women, and to know assaulted both shot demanded Walker’s Windham From Allen’s it be inferred that warned Johnson. testimony, The to leave he believed someone had called police. others because his could Windham knew of and shared associ deduce that jury reasonably on and Johnson to coerce ates’ intent to commit armed assaults Allen harm location so defendants could Walker them into Walker’s revealing (Beeman, friend and member. for his of their fellow shooting gang retaliation 560.) at supra, p. 35 Cal.3d McMahon were reasonably
Whether the Chmelik and shootings attacks Allen and Johnson was of the armed on consequences Durham, 12; supra, of fact for the Cal.3d question jury. (Croy, supra, p. in the could have answered that question 70 Cal.2d at and McMahon were shot because they affirmative that Chmelik by inferring had Allen and offenses during witnessed the Johnson perpetrators (See supra, tires Coopеr, theft of the from the ongoing apartment. It is while loot is carried away].) continues [robbery victims, having of armed assaults on three foreseeable that another, seek with deliberation premeditation beaten one and shot might and his without group the perpetrator to eliminate witnesses who had seen Thus, Windham’s with the wrongdoing. and could connect them their masks an aider and murder as first murder and attempted convictions for evidence. abettor are substantial supported III, disagree post.) might as to (See though jurors reasonable perpetrator. pt. Even murder, they upon which perceive we no basis foreseeability premeditated of a first Thus, lesser included offense attempted foreseeability of an murder. disagree as to the could required. count were not instructions on that *23 fortiori, A the evidence that Windham supports finding is liable as an aider and abettor for second murder as a degree necessarily included II, offense within the first (See ante.) murder of Chmelik. I and degree pts. he, Woods was in a violent mood when Windham and the others went for
looking Walker. Armed with guns ski masks to conceal their wearing identities, the intended to harm Allen and group obviously Johnson to coerce them when, into Walker’s revealing whereabouts. attacks began Windham’s beat Woods an innocent presence, up outside the bystander that, women’s It was apartment. reasonably having violently attacked Johnson, one bystander to the armed on prior assaults Allen and Woods would attack other he came across bystanders the search for during armed, Walker. Becausе Woods was it was Woods would kill a or at least kill intentionally bystander while an committing intentional act the natural of which were to human consequences dangerous life, e.g., shoot at a bystander. sum,
In the intentional of Chmelik killing with deliberation and premed- itation by means of a firearm included necessarily conduct sufficient for murder, i.e., second degree both an intentional and a killing killing resulting from the commission of an intentional at Chmelik—the natu- act—shooting ral of which were consequences to human dangerous life and which was to, performed deliberately of the knowledge danger with conscious for, disregard human life. Considering apparent planning episode which led to Chmelik’s death the facts the armed (including them- culprits masks, selves with weapons, donned assaulted one kicked in the bystander, door, Allen, death, threatened apartment Johnson and Walker with and shot Johnson), no evidence absolutely suggested second murder of degree Chmelik, another bystander, was unforeseeable. at a mini- Consequently, mum, the evidence Windham’s conviction for second murder supports degree as an aider and abettor.
IV I, ante, In we concluded the trial court erred in part to instruct failing that it could find Windham of second murder guilty as degree and abettor even it determined Woods was of first though guilty degree murder as the of Chmelik’s Windham claims this error killing. us to reverse his first compels murder conviction and to remand the degree alternative, matter for retrial on that count. In the he conviction argues his should be modified to second murder. III, ante,
As discussed in II and an aider and abettor parts Chmelik, Windham of at least second killing Hence, only court’s error affected murder. instructional *24 “Where to only Windham convicted. error goes crime which was convicted, the appellate of the offense for which defendant is degree the and affirm the judgment to a lesser degree court reduce the conviction modified, necessity (People the for a retrial.” v. Ordonez thereby as obviating 1207, 382], 1260.) (1991) 226 1223 Cal.Rptr. citing § Cal.App.3d [277 reversed, However, but included must be a lesser offense greater “[w]hen affirmed, the the of retrying offense could be we the give prosecutor option offense, (People v. a reduction to the lesser offense.” greater accepting 495, 677, 385].) 822 Kelly 1 Cal.4th Cal.Rptr.2d If, court, do after in trial of the remittitur filing People limit set forth retrial on the murder count within the time bring Windham to defend- (a)(2)—60 in unless waived days section subdivision if a modifica- ant—the trial shall as the remittitur constituted court proceed murder and of the to a conviction second tion reflect judgment degree v. Edwards shall resentence Windham accordingly. (People 555].) P2d V-XIV*
Disposition first murder reversed unless Defendant Windham’s conviction If, murder. a reduction of the conviction to second degree the People accept court, the do not bring the remittitur in the trial after filing forth in the time limit set to retrial on the murder count within Windham waived the defendant— (a)(2)—60 unless days section subdivision modification of if constituted a trial court shall the remittitur proceed murder and shall reflect a of second conviction judgment resentence Windham accordingly. enhancement pursuant sentence
That portion judgment imposing 667.5, Woоds is reversed. (b), defendant section subdivision upon as to defendant is affirmed. each In all other respects, judgment J., concurred. Raye, concludes J., mistakenly
SPARKS, The majority P. Dissenting. Acting could aider and jury abettor] in instructing “the trial court erred [the ante, footnote, page 1570. * See
not be found of second murder as an aider and abettor Woods, determined that of first killing, ante, 1577.) degree murder.” Because the fundamen- (Maj. opn., majority the derivative tally nature of the “natural and misapprehends probable doctrine of aider and abettor I consequence” dissent. liability, statute, those who aid and abet By the commission of a crime are deemed Code, in (Pen. crime so “principals committed.” Penal Code § section relevant “All concerned in the commis- provides part: persons *25 crime, misdemeanor, sion of a whether it be or and whether felony they offense, commit the act directly or aid and abet in its constituting commission, or, not have advised and its commis- being present, encouraged sion, are ... in crime so principals committed.”1
The first under this statute question is what mental state the aider and abettor must in order to be liable for possess the criminal acts of the “Considerable perpetrator. confusion exists as to what the accomplice’s mental state must in be order to hold him accountable for an offense committed In another. this by attributable to some part, uncertainty as to whether the law should be concerned with the mental state relating his own acts of assistance or to his awareness of the encouragement, state, mental principal’s the fault for the substantive offense requirements involved, Scott, or some (2 combination of the above.” LaFave & Substan- 6.7, tive (1986) Criminal Law 141-142.) Accomplice Liability, pp. § California, Beeman, In any uncertainty was resolved in supra, 35 Cal.3d 547. “There is no that an aider and must have question abettor criminal intent in criminal (Id. 556.) order to be convicted of a offense.” And what is that There intent? must be that an aider and abettor “proof with of the criminal knowledge of the and with purpose act[ed] an intent or either of purpose committing, or of or encouraging facilitating offense, of, commission When the definition of the offense includes [fl] the intent to do some act or achieve some the actus reus consequence beyond crime, of the the aider and abettor must intent of the share specific ‘share’ we mean neither that the aider and abettor must be perpetrator. By to commit the offense his or her own act should the prepared so, fail to do nor that the aider and abettor must seek to share the fruits of the noted, Supreme persons 1 As the California Court has “those who at common law would principals have been termed accessories before the in the well fact and second as as offense, actually perpetrate prosecuted, punished who are to be tried and those Code, (See 971.) in California. Pen. abettor’ is now often principals term ‘aider and § principals perpetrator, they present used to refer to other than the whether or not are at the (People Beeman cоmmission of the 554-555 offense.” 1318], omitted.) 674 P.2d fn. Rather, an aider and abettor will ‘share’ the specific crime. perpetrator’s criminal intent when he or she knows the full extent of the perpetrator’s with the intent or aid or gives encouragement purpose purpose (Id. the crime.” italics commission of facilitating perpetrator’s short, omitted.) & citations In “a aids and abets original person she, commission of a crime when he or with acting knowledge (2) of com unlawful intent or purpose perpetrator; purpose offense, (3) the commission of the act or mitting, encouraging, facilitating aids, or advice the commission encourages instigates, promotes, (Id. crime.” at p. Unlike
But what about aider and abettor for other crimes? liability states,2 deal statutes in some the California statute does not explicitly Nevertheless, intended, for crimes other than the crime. early liability target have the common law rule of derivative on the California courts engrafted have on aiders and liability onto Penal Code section 31 and liability imposed “ conse for other crimes which are the and natural abettors ‘probable *26 ” (1907) 152 of the aided and abetted crime. v. (People quence’ Kauffman 861].) “‘The rule is well settled that where Cal. 334 P. general [92 act, to commit unlawful several or combine parties conspire together for the of his associates or confederates each is acts criminally responsible in of the common for committed furtherance of any prosecution design the act of all. which combine. In of law the act of one is they cоntemplation confederates, for done his which follows Each is responsible everything by in of the common as one of its design probable the execution incidentally intended as of the and natural even it was not though part consequences, noted, explicitly deal with the LaFave and have the statutes in some states 2 As Scott (where persons liability commit problem § of for other crimes. “Iowa Code Ann. 703.2 concert, in of the for the acts of the other done furtherance responsible offense in ‘each is reasonably person which the could not commission of the offense . . . unless the act was one offense’); of the commission Kan.Stat.Ann. expect to be done in the furtherance 21-3205(2) any other of another ‘is also liable for (person criminally responsible for crimes § reasonably by him as a pursuance crime committed in of the intended crime intended’); committing attempting to commit the crime probable of or 17-A, any crime the commission (‘person accomplice is an ... Me.Rev.Stat.Ann. tit. 57§ conduct’); Minn.Stat.Ann. reasonably which of his of was a (same Kan.); criminally for crime of (person responsible as Wis.Stat.Ann. 939.05 § § 609.05 any other in the commission of conspiracy procuring another on or basis ‘is also concerned and which under the circum pursuance committed in of the intended crime crime which is Scott, crime.’)” (2 LaFave & probable consequence natural of the intended stances is a 6.8, 24.) Law, supra, Other Accomplice Liability, p. of fn. § Substantive Criminal Limits California, states, requisite entertain the intent for require the aider and abettor to unlike Aid and Abet the Should Court (See Carpenter, collected in charged crime. statutes Complicity Accomplice: in 24 Santa Clara L.Rev. Unintending The Status of California 343, 346, 13.) fn.
1599 ” 334.)3 (Id. original common This of design plan.’ p. expanded scope derivative liability intentionality mental poses comparable problems whether, states.4 “A somewhat similar on an question accomplice liability one be held for a because theory, accountable it was natural and of the crime which that intended to aid or probable consequence person tests the limits of the mental state encourage. This outer requirement asks, effect, for it accomplice liability, whether intent with respect one offense should suffice as to another which offense was the consequence rule, of the one intended. The established it is []|] stated courts usually commentators, is that extends accomplice to acts liability princi in the first which were a ‘natural and pal probable consequence’ (2 criminal scheme the or aided.” LaFave & accomplice encouraged Scott, Law, Substantive Criminal supra, Limits Accomplice Liability, 6.8, p. §
California follows this established rule although doctrinal terminology Thus, of this derivative has liability doctrine often varied. it has been said “ confederates, that an aider and abettor ‘for is liable done everything by his which follows in the execution of the common as one of incidentally design its probable and natural consequences,”’ (People Kauffman, 152 supra, 334), Cal. at for the “natural and reasonable the acts he consequenсes Beeman, aids and knowingly intentionally (People v. encourages” supra, 560), Cal.3d at and for “any foreseeable offense committed 1, 12, he aids and person Croy (1985) abets” (People fn. 392]; accord, 710 P.2d Cal.Rptr. People v. Cooper 1158, 1162, Nevertheless, Cal.3d ]). fn. 3 *27 case, referring language 3 In to the or conspiracy” high of “combination in the the Kauffman emphasized court later language conspiracy “that the resort to in of cases such as that under only consideration not refer does to the crime of that name to but the fact of combination as question aiding it has relevance the abetting to of and in the of charged commission the 262, (People (1969) 171, 182, v. Durham 198].) crime.” Cal.Rptr. fn. [749 449 “ Thus, where the of conspiracy charged, is not defendant the ‘is convicted as a connection, all; accessory principal or or not in principals may and this the fact that be conspirators liability is immaterial.’. of by . . ‘The a defendant for a is fixed criminal act the of 31 of the Code provisions defining section Penal and no instruction on the principals; subject of conspiracy anything liability. Liability anyone can add to that . . to . attaches “concerned,” be, slight may however such concern for the law no establishes of the ” (Id. 184-185, fix required liability pp. concern to some principal.’ fn. internal omitted.) quotation marks imposition liability probable 4 The under consequences derivative the natural and doc Fletcher, (See, e.g., (1978) Rethinking trine is not without its pp. critics. Criminal Law 581-682; Scott, Law, supra, 2 Accomplice Liability, LaFave & Criminal Limits of Substantive 6.8, 158; Kadish, Study Complicity, Interpretatiоn Cause the Doctrine Blame: A § 324; People Luparello (1986) Cal.App.3d 73 Cal.L.Rev. 187 452-454 v. [231 however, Wiener, doctrine, (conc. J.).) Cal.Rptr. firmly opn. of The is entrenched in 832] 502, 515, Rogers Cal.App.3d California law and as we noted in v. 172 footnote 809], disregard Cal.Rptr. we are not free it. has to describe ‘conse in the the court used adjectives variations “[t]he of the test.” the basic structure and meaning have never changed quence’ 486].) (1989) (People Brigham Cal.App.3d a crime which is So what intent must the harbor accomplice concerning crime? Must he target possess the natural and consequence probable ultimate, for the offense? answer charged intent required requisite “The found in Cal.3d 1. People Croy, supra, is no is question with which a tried as an that the determine the intent person requirement not to ensure that his conduct designed aider and abettor has acted is His is vicarious. with which he is charged. liability constitutes offense is on acts other than and short Like the whose conspirator liability predicated offense, are if the acts charged of those the elements of constituting be facilitated undertaken with the intent that the actual perpetrator’s purpose of the offense. Also he is a and liable for commission thereby, principal he intended to facilitate like he is not of the offense a conspirator, only offense committed or but also of by encourage, any of a One aid or abet in the commission he aids and abets. person it. entered into a to commit conspiracy crime without having previously Moreover, not abettor in a case is only guilty the aider and proper are contemplating crime that to his his confederates knowledge particular for the natural and reasonable consequences but he is also liable committing, Whether the act commit he aided or encouraged. act that knowingly act and the encouraged ted was the natural probable It of fact for the jury. of defendant’s are knowledge questions extent [1J] status as an aider on his liability predicated follows that a defendant whose or facilitate the particular not have intended to encourage and abettor need that an act knowledge committed His offense ultimately by perpetrator. intended, taken with the intent that which is criminal was and his action facilitated, on him for are sufficient to impose liability act encouraged committed as a foreseeable offense any reasonably conduct that is intent to about encourage bring It is the perpetrator. offense, criminal, an element of the target intent that is specific 5, internal (Id. at fn. must be found jury.” which Beeman holds *28 omitted; deleted.) & citations italics marks quotation act and abettor need not himself all it follows that an aider From of this of to be convicted malice order or even harbor express premeditation abettor knowingly as the aider and first murder. So long premeditated degree crime, other of he is liable any aids the commission a and intentionally natural, and foresee- the probable the that is crime committed by crime, first including degree premeditated of the abetted able consequence case, that оnce we conclude to the instant these principles murder. “Applying the found defendant as an aider and abettor of the first jury wife], murder of Elaine the could have Bunyard pregnant properly [his him of murder Bunyard convicted the first of Girl even without Baby Girl of towards the The murder of finding the malice fetus. express Baby of a under the circumstances this case—the of planned killing Bunyard and, indeed, woman—was a inevitable pregnant of the offense first murder of Elaine which defendant Bunyard knowingly and facilitated." v. encouraged (People Bunyard intentionally 71, 795].) 45 Cal.3d 1231-1232 P.2d [249 ultimate, natural, ifBut crime is not a reasonable charged probable, abetted, crime, of then is the aider consequence target not of the crime. An aider and simply charged abettor may of a convicted crime which he did not intend or but specifically contemplate, to the extent of “only his or of the natural and knowledge reasonable of the acts aided consequences [knowingly intentionally] and encour him." v. Beltran aged (People P.2d Cal.App.2d Thus, act, 238].) “one is who a not liable has counseled criminal particular and the has committed a different one within falling that of advised.” v. probable consequences (1938) 30 (People King 928].) Cal.App.2d is Consequently, pivotal question or not “whether the act committed was of ordinary probable effect the common or it was design whether a fresh and independent of product of, to, mind of one of the outside conspirators, foreign common design Durham, . . . .” (People 182-183.) supra, at pp.
However phrased, extension the doctrine of derivative criminal for the natural and of an liability assisted crime thus probable consequences cause, two entails in fact and components cause proximate foreseeability. The crime aided and abetted must be to the linked causally charged foreseen, foreseen, aider and and the abettor must either have or should have natural, charged crime was a reasonable probable and Thus, of crime abetted. offense is the natural and charged probable offense under the circumstances it both a target is of, to, outcome and is linked crime. likely causally target These compo- nents are of intention of the independent aider and abettor. As this court noted in supra, 172 Rogers, page Cal.App.3d “[t]his causation intention that the result question legal independent obtain.” hand,
On
other
charged
likely
if the
crime is not
outcome
crime,
crime or
causally
abetted
is not
linked to the abetted
then the aider
*29
liable
and abettor is not
for the
crime. This is illustrated
criminally
charged
contention that the trial court
in which the
court
rejected
a case
high
of vicarious
sua
on the
liability.
had a
to instruct
duty
sponte
principle
relies, first,
that
asserted aider and
on evidence
Myers
“Defendant
[the
Brotherhood,
AB
gang] by smug-
assisted the
Aryan
prison
abettor]
[the
and
This
by carrying messages.
and knives into state prisons
gling drugs
shows, most,
abetted
drug activity
evidence
at
that
aided and
Myers
illegal
relative,
violence;
outside of
of an AB defector’s
the killing
in-prison
of such crimes. Defendant
not a natural and probable consequence
prison,
felon,
defendаnt,
knew that
a convicted
also relies on evidence that Myers
he
at her
and sawed-off
while
shotgun
stayed
was in
of a revolver
possession
that
was guilty
aiding
house.
without
Assuming
deciding
Myers
Code,]
(see
12020-
defendant’s illegal weapons possession
§§
abetting
[Pen.
have
12021),
evidence that
knew or should
Myers
there was no substantial
otherwise
had
to commit a murder or was
known that defendant
agreed
a murder in the near
to commit
to use the
likely
illegally possessed weapons
future,
not a
the murder of Barnes was
natural
probable
and therefore
with the
him to
at her residence
stay
of permitting
temporarily
before the
did not
plainly support
Because the evidence
weapons.
murder, the trial court
liable for Barnes’s
that
was
finding Myers
vicariously
of vicarious criminal
to instruct on the
did not err in failing
principle
v. Price
1 Cal.4th
443 Cal.Rptr.2d
liability.” (People
610].)5
too thin and needlessly
the foreseeability requirement
slices
majority
and the court. Since
the jury
another layer
complexity upon
superimposes
crime he did not intend (People
be liable for a
an aider and abettor may
5),
that he foresee
at
fn.
it is not necessary
Croy, supra,
p.
crime. It has been
charged
manner or method of the execution of
precise
in the context of foreseeable causes
precise
said
“[t]he
foreseen;
should have
it is
that the defendant
enough
need not have been
result from
of the kind which might
of some harm
foreseen
possibility
1988)
(2d
Elements of
(1
Cal. Criminal Law
ed.
Witkin & Epstein,
his act.”
Crime,
in the context of aider
150.) This same rule applies
§
have
knew or should
All that is
is that defendant
requirеd
abettor liability.
P.
Since the abettor’s he is liability responsible either for the ultimate crime because it is the foreseeable consequence abetted crime or he not His fate liable because it is not. then is inexorably case, tied to the In this the real is not whether the aider perpetrator. question *31 no) (the is but lesser than the answer be convicted of a crime principal a foreseeable conse- murder was both is rather whether this premeditated crime. But was linked to that target of the abetted crime and causally quence and no contention ask about this appellate did not jury any questions instructions on the doctrine give failure to further raised about court, simply Rather the upon inquiry, and natural probable consequences. was found of first degree that if the instructed jury murder, degree could not be found of second the aider and abettor view, no for reversal. In this was correct and furnishes grounds murder. my does not this change analysis. majority The hypothetical posed ante, 1588) store owner in the example If the stabbing (Maj. opn., (and of the abetted theft not a natural and petty was probable if the facts are then the aider is guilty only that is a disputed), jury question he is entitled to acquitted. theft аnd if that offense is charged, petty result, an absurd this follows settled law. Far from which the aider cites cases in In of its novel the majority support position, But a lesser than principal. and abettor has been convicted of And of inconsistent verdicts. best understood as problems these cases are Cal.App.2d in v. Finch are best they explained did the actual showed that defendant Finch “The evidence Cal.Rptr. 420]. act. abetted the commission and that aided and Tregoff shooting, thus, in the Code both were guilty; Under section 31 of the Penal equally commit- crime Finch committed defendant Tregoff of the law whatever eyes to Finch and second of first murder as ted. In that sense the verdicts conflict, defendant complains defendant do but neither as to Tregoff however, a Even if such were lodged, on of this conflict. complaint appeal offense, murder of the lesser of defendant Tregoff guilty finding by jury verdicts nor be prejudicial would not vitiate such in the second degree, Finch. effect on defendant It would have no adverse defendant Tregoff. of murder holding Tregoff guilty evidence warranted jury Since the more favorable of a finding by she cannot complain the first degree (Id. warranted.” at p. than the law and the evidence to her I would of the majority Because I with the remainder opinion, agree 667.5, subdi- Code section for the Penal affirm all of the judgment, except (b), defendant Woods. vision enhancement as to and the denied A for a rehearing September petition Court review the Supreme of both respondent appellants petitions Kennard, J., was of opinion November were denied 1992. should be granted. petition