P. v. Jones
Filed 5/15/12 P. v. Jones CA2/4
Reposted to correct file date; no change to opinion
text
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
LAWRENCE JONES,
Defendant and Appellant.
B226771
(Los Angeles County
Super. Ct. No. BA337608)
APPEAL from a judgment of the Superior Court of
County, Beverly R. O’Connell, Judge. Affirmed.
Mark David Greenberg, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Victoria B. Wilson and Chung L. Mar, Deputy Attorneys
General, for Plaintiff and Respondent.
A jury
convicted defendant Lawrence Jones of the first
degree murder of Shantell Martinez and the attempted premeditated murders
of Jaythia Muhammad, Laniece Dalcour, and Adrian Wade. (Pen. Code, §§ 187, subd. (a), 664/187,
subd. (a).)
title="">[1] In each count, the jury found true
allegations that the crime was committed for the benefit of a
subd. (b)(1)(C)) and that a principal intentionally discharged a handgun
causing death (§ 12022.53 subds. (d) and (e)(1)). The trial court sentenced defendant to a
total term of 125 years to life in state prison. He appeals from the judgment of conviction. We affirm.
BACKGROUND
The charges arose from a shooting by
unidentified gunmen following a turbulent day of argument and violence
involving defendant, his pregnant girlfriend, Rokeshia Quinn, and Quinn’s
female friends, including Chardae Johnson, Jaythia Muhammad, and Shantell
Martinez. Defendant was convicted as an
aider and abettor.
The following facts were
undisputed. The scene of the shooting
was West View Street, where Chardae Johnson and Jaythia
Muhammad lived. Earlier in the day,
defendant and his girlfriend, Rokeshia Quinn, argued. Defendant physically abused and threatened
Quinn while driving her to locations in Los Angeles.
Quinn called her good friend, Chardae Johnson, for help. Johnson and other friends ultimately located
Quinn and defendant at a Sprint cellular phone store. Johnson initiated a fight with defendant over
his treatment of Quinn in which Johnson received a knot on her head. Against defendant’s wishes, Quinn left with
Johnson and the other women. Throughout
the day, Johnson and defendant exchanged angry phone calls. Johnson tried to solicit her male cousin to
fight defendant, but the cousin refused.
A crowd gathered on West View Street in anticipation of a fight. Among the crowd were Quinn, Johnson, Jaythia
Muhammad, Shantell Martinez, Laniece Dalcour, and Adrian Wade. When defendant arrived, Jaythia Muhammad confronted
him and swung a small aluminum baseball bat at his head. She and defendant began to fight, and several
other women joined in. After a few
moments, at least two unidentified gunmen opened fire, wounding Jaythia
Muhammad, Laniece Dalcour, Adrian Wade, and Shantell Martinez. Martinez, shot in the head, died three hours
later.
The prosecution and defense theories
of defendant’s involvement in the shooting were starkly different. Relying on eyewitness accounts, the
prosecution theorized that defendant, a Rollin’ 60’s Crip, drove to West View Street, accompanied by fellow gang members
in at least two other vehicles, intending to confront and kill Chardae Johnson
and perhaps other friends of Rokeshia Quinn.
During the fight at that location, the gang members whom defendant had
brought opened fire, resulting in the murder and attempted murders.
The defense theory was that defendant,
a mere associate of the Rollin’ 60’s, not a member, went to West View Street
alone, not intending to fight but to collect money from Rokeshia Quinn to pay
for the car radio she had broken earlier in the day. He had no idea that a shooting might occur
and had no gang-related motive to encourage one.
In the summary of evidence that
follows, we observe the standard of appellate review, construing the evidence
in the light most favorable to the judgment.
Prosecution Evidence
Defendant is a member of the Rollin’
60’s Crips gang. In the morning and
afternoon of July 30, 2007, he argued with his girlfriend,
Rokeshia Quinn, a member of the Rimpau Boulevard Crips gang. Quinn was six months pregnant with his
child.
At one point that morning, on the way
back from court where defendant had driven in his gold Jaguar to pay a traffic
ticket, but had left when the line was too long, Quinn broke defendant’s car
radio in a struggle. Later, defendant
tossed Quinn’s belongings outside the apartment where he lived with his
grandfather, and dragged her outside by her hair. Still later, while she was at a pay phone
trying to arrange a ride home, he forced her into his Jaguar and drove
recklessly, saying that he was going to kill them and that he did not want the
baby or to be around Quinn.
Defendant drove to a car stereo store
in downtown Los Angeles to fix his car radio. When he went inside, he locked the doors with
Quinn inside and put on the car alarm.
Quinn went to another store and called her close friend, Chardae
Johnson. She told Johnson that she and
defendant were fighting and he was trying to kill her, and asked Johnson to
pick her up. Before Johnson could get
there, defendant located Quinn and threatened to tear up the store if she did
not come out. He forced her into his car
and drove off.
After Quinn’s call, Johnson and
another friend of Quinn’s, Jaythia Muhammad, and Muhammad’s sister Janae, went
looking for Quinn in Jaythia’s car. They
went to the car stereo store in downtown Los Angeles, but defendant and Quinn
had already left. The women then drove
to the home of defendant’s mother, where they spoke to his mother and learned
Quinn was not there. While they were
there, another car pulled up with three other women, Shantell Martinez,
Lakeisha and Brittany. All of the women
later drove to West View Street, where Johnson and Muhammad lived.
After he left the car stereo store,
defendant drove onto the freeway, opened the car door, and told Quinn to get
out. With Quinn still inside the car, he
then closed the door, and drove into the neighborhood claimed by his gang, the
Rollin’ 60’s, where he stopped his car several times to ask passersby to beat
Quinn up, all of whom refused. Defendant
then drove to a Sprint cellular phone store (his cell phone was broken) in
Culver City, at which Quinn used a display phone to call Chardae Johnson again
and ask for help. Johnson arrived with
Shantell Martinez in Martinez’s car, accompanied by two other women (Brittany
and Lakeisha).
Outside the store, Johnson confronted
defendant. She said that she was tired
of defendant abusing Quinn and that Quinn was going to leave with her. Defendant said that Quinn was not
leaving. Johnson struck defendant and
they began fighting. After they fell to
the ground, defendant grabbed Johnson’s hair and banged her forehead on the
concrete. Eventually they were pulled
apart. Johnson had a knot on her
forehead from the fight.
Johnson, Quinn, and the other women
got in Martinez’s car. Defendant backed
up his Jaguar and struck Martinez’s car as the women attempted to drive
off. He then followed them briefly, but
they lost sight of him.
The women ultimately drove back to
West View Street. Jaythia Muhammad
received a phone call from defendant, and they argued about his treatment of
Quinn. She heard someone else grab the
phone, and then heard a male voice speaking.
On West View Street, a short
cul-de-sac, there were people congregated in the parking lot of the apartment
building where Johnson and Muhammad lived.
Johnson telephoned defendant and told him to come to West View Street to
fight her male cousin, Chris (a West View Crip). Defendant later called back, and said that he
had spoken to Chris and Chris was not going to get involved.
Later, defendant drove onto West View
Street in his Jaguar and stopped at the end of the cul-de-sac. According to Jaythia Muhammad, two other vehicles,
one a dark colored Avalanche SUV, and the other a green Explorer, followed
defendant’s car. They arrived at the
same time and stopped in the middle of the street, double parked.
Laniece Dalcour, a member of the
Rollin’ 30’s gang who was present, testified that defendant arrived with
another vehicle, a black truck that contained African American males. She believed that the truck and defendant’s
vehicle came together.
Chardae Johnson saw two or three
people in defendant’s Jaguar, African American males who got out of the
vehicle. She also believed that another
person got out of the other car.
Rokeshia Quinn testified that she saw a passenger in defendant’s car when
it arrived on West View.
When defendant arrived, Jaythia
Muhammad walked into the street with several women. Defendant got out of his car and approached
them. Muhammad called defendant a “punk
bitch.” According to Muhammad, defendant
replied, “On 6-0 [referring to the Rollin’ 60’s Crips]. It’s nothing.
I’ll fight anybody.”
Muhammad swung a small, 13-inch
aluminum baseball bat at defendant. They
began to fight, and other women, as many as eight or nine, joined in against
defendant.
Muhammad backed away and saw a man get
out of the passenger side of the black Avalanche. She also saw an African American man walking
back toward the black Avalanche as if holding a gun, and she then heard
shooting.
Rokeshia Quinn saw the passenger from
defendant’s Jaguar trying to pull defendant away from the women. Then she saw two men walking up and heard
shooting. She looked and saw a black
male with his arm extended as if shooting, and another black male next to him
whom she believed was also shooting.
Chardae Johnson saw one or two black
males running from the corner and shooting.
In an interview in January 2008, she told Los Angeles Police Detective
James Yoshida that just before the shooting began, defendant said, “Cuz, on
60. Y’all really gonna let these bitches
jump me This is how the West Boulevards
get down.”
Jaythia Muhammad ran toward the end of
the cul-de-sac and was struck by a bullet in the lower back. Laniece Dalcour was shot in the thigh. Adrian Wade, a man who was present, was shot
in the leg. Shantell Martinez was shot
in the head and died three hours later.
After the last shot, defendant ran to
his car. Johnson saw one gunman enter
the defendant’s car on the driver’s side, and another enter a second vehicle
that others described as an Avalanche.
Muhammad saw one gunman enter the Avalanche. The Avalanche drove off first and then
defendant followed in his car.
Later, at the scene, police recovered
nine .40 caliber and three .22 caliber shell casings. When interviewed by Detective Yoshida by
telephone on August 6, 2007, Laniece Dalcour said that the men with defendant
were “all from 6-0,” referring to the Rollin’ 60’s Crips. When interviewed about five hours after the
shooting, Rokeshia Quinn told Detective Yoshida that defendant’s “friends”
committed the shooting, and that they belonged to the “60 Crip” set.
Jaime Garcia, who did not know
defendant or the victims, witnessed the shooting from his friend’s house on
West View Street. He saw a crowd in the
middle of the cul-de-sac. He also saw
defendant’s Jaguar in the middle of the street in front of the third residence
from the end, and an SUV parked in front of the fourth residence. Two African American men walked north, away
from the SUV and toward the crowd. They
were crouching and armed with guns. He
did not see anyone exit the SUV. The men
started firing, and after the shooting stopped, the men ran toward the Jaguar,
which was moving slowly, and entered though the left rear door. Garcia did not see anyone enter the driver’s
door; it appeared that someone was already in the driver’s seat. The SUV backed up and the Jaguar followed,
both vehicles leaving at the same time.
According to Los Angeles Police
Officer John Flores, a gang expert, who was asked a hypothetical question based
on the facts of the instant case, the actions of women leaving with the
girlfriend of a Rollin’ 60’s member against his wishes is disrespectful to the
gang member and his gang. The member
would be expected to retaliate, and it is common for a gang member to call for
back-up from other members to do so.
Defense Evidence
Defendant testified that although he
had tattoos pledging allegiance to the Rollin’ 60’s and the Neighborhood Crips
alliance, and although he knew many Rollin’ 60’s members, he was only an
associate of the Rollin’ 60’s and was never jumped into the gang. He did not commit any crimes for the benefit
of the Rollin’ 60’s.
According to defendant, he and Quinn
argued frequently over his seeing other women while she was pregnant. On the day of the shooting, he forced Quinn
to come with him to the radio store in downtown Los Angeles. He locked the car while she was still
inside. After Quinn left the car,
defendant went to look for her. He found
her in another store. He asked her to
come with him. He did not use force or
threaten her. He drove toward his home,
and did not attempt to push Quinn out of the car or solicit people to beat her
up.
Defendant then drove to a Sprint store
in Culver City. As he left the store, he
noticed Shantell Martinez’s car parked behind his. When he went to his car to get Quinn’s back
pack, Chardae Johnson punched him in the back of his head. They fought for a few minutes, grabbing and
pushing. After the fight, Johnson
entered Martinez’s car and sat in the driver’s seat. As defendant tried to leave, Johnson taunted
him, saying that defendant wasn’t going anywhere. Defendant put his car in reverse, and bumped
Martinez’s car. Johnson then drove off
with Quinn and the others.
Defendant spoke to Chardae Johnson
several times by phone, arguing. Johnson
said that her cousin Chris was going to get him. But defendant had already talked to Chris,
who said it was none of his business. In
one conversation with Johnson, Quinn got on the phone and said she would give
him money for his broken stereo and said she was on Rimpau Boulevard. Defendant drove to Quinn’s home on Rimpau,
but learned from Quinn’s sister Brittany that Quinn was not there. He then called the cell phone Johnson and Quinn
were using, and was told that they were at West View, so he drove there, parked
and got out. He did not come with
anyone, did not ask anyone to follow him in other cars, and did not know if
anyone pulled up behind him.
There were perhaps 20 to 25 people in
the street. A group of women moved
toward him. One of them, Jaythia
Muhammad, called him a punk and a bitch, and struck him in the face with a
bat. Defendant then struck her, and
other people joined in fighting defendant.
In the midst of the fighting, defendant heard gunshots coming from
behind him. He went to the ground. When the shooting stopped there was
chaos. Defendant got into his car alone
and drove home.
Adrian Wade, defendant’s childhood
friend, testified that there were two other people with defendant in the
cul-de-sac. Wade was shot in the right
calf while running away. Defendant and
others were lying down when the shooting stopped.
Quinn’s younger sister, Brittany
Thompson, testified that she spoke to defendant in the driveway of her home on
the day of the shooting. Defendant was
alone in his car and asked if Rokeshia had left any money for him.
Defendant’s mother (Yvette Jones) and
younger sister (Devine Edmond) testified that Chardae Johnson, Jaythia
Muhammad, Janae Muhammad, Shantell Martinez, and a few other women came to
their home on the day of the shooting, looking for defendant and Quinn. Jaythia Muhammad was holding a bat, Janae
Muhammad had brass knuckles, and Martinez had an empty bottle.
DISCUSSION
I.
Modification of Jury Instructions
Defendant contends that the trial
court erred in modifying the jury instructions on self defense, imperfect self
defense, and sudden quarrel or heat of passion, to refer to the
“defendant/perpetrator” rather than simply “defendant,” thereby focusing the
jury’s consideration on the shooter’s state of mind rather than
defendant’s. We conclude that even
assuming the modifications might have confused the jury, defendant suffered no
prejudice.
As the California Supreme Court has
stated: “We analyzed aiding and abetting
liability in detail in People v. McCoy
(2001) 25 Cal.4th 1111. There, we
explained that an aider and abettor’s guilt ‘is based on a combination of the
direct perpetrator’s acts and the aider and abettor’s own acts and own mental
state.’ (Id. at p. 1117, italics omitted.)
‘“[O]nce it is proved that ‘the principal has caused an
secondary parties should be assessed according to his own mens rea.’”’ (
Understanding Criminal Law (2d ed. 1995) § 30.06[C], p. 450.) Thus, proof of aider and abettor liability
requires proof in three distinct areas:
(a) the direct perpetrator’s actus reus—a crime committed by the direct
perpetrator, (b) the aider and abettor’s mens rea—knowledge of the direct
perpetrator’s unlawful intent and an intent to assist in achieving those
unlawful ends, and (c) the aider and abettor’s actus reus—conduct by the aider
and abettor that in fact assists the achievement of the crime. (See McCoy,
at p. 1117.)” (People v. Perez (2005) 35 Cal.4th 1219, 1225.) Further, “[t]hough McCoy concluded that an aider and abettor could be guilty of a
greater offense than the direct perpetrator, its reasoning leads inexorably to
the further conclusion that an aider and abettor’s guilt may also be less than
the perpetrator’s.” (
Cal.App.4th 1148, 1164.)
In the instant case, the trial court
instructed the jury pursuant to the pattern instruction on
No. 401), which required proof that “1.
The perpetrator committed the crime;
[¶] 2. The defendant knew that the perpetrator
intended to commit the crime; [¶] 3.
Before or during the commission of the crime, the defendant intended to
aid and abet the perpetrator in committing the crime; AND [¶]
4. The defendant’s words or
conduct did in fact aid and abet the perpetrator’s commission of the crime.”
The trial court also instructed the
jury on murder, attempted murder, self defense, voluntary manslaughter, and
attempted voluntary manslaughter using the applicable pattern instructions
(CALCRIM Nos. 520, 600, 505, 570, 571, 603, and 604). However, in an attempt to tailor the
instructions to the prosecution’s aiding and abetting theory, as well as the
defense’s secondary theory of self-defense
and voluntary manslaughter, the trial court modified these pattern instructions
by replacing the word “defendant” with “defendant/perpetrator.”
Thus, the murder instruction (CALCRIM
No. 520) required proof that “1. The defendant/perpetrator committed an act that caused the death of
another person; AND [¶] 2.
When the defendant/perpetrator
acted, he had a state of mind called malice aforethought.” (Italics added.) Similarly, the attempted murder instruction
required proof that “1. The
ineffective steps toward killing another person; AND [¶]
2. The defendant /perpetrator intended to kill that person.” (CALCRIM No. 600, italics added.)
The modified instructions on self
defense or defense of another (CALCRIM 505) required proof that “1. The defendant/perpetrator
reasonably believed that he was in imminent danger of being killed or suffering
great bodily injury. [¶] 2. The
defendant/perpetrator reasonably
believed that the immediate use of deadly force was necessary to defend against
that danger. AND [¶] 3. The defendant/perpetrator
used no more force than was reasonably necessary to defendant against that
danger.” (Italics added.)
Likewise, the modified voluntary
manslaughter instructions based on imperfect self defense or defense of another
(CALCRIM No. 571) required proof that “1.
The defendant/perpetrator
actually believed that he was in imminent danger of being killed or suffering
great bodily injury; AND [¶] 2. The
defendant/perpetrator actually
believed that the immediate use of deadly force was necessary to defend against
the danger; BUT [¶] 3. At
least one of those beliefs was unreasonable.”
(Italics added.)
In like fashion, the modified
voluntary manslaughter instructions based on sudden quarrel or heat of passion
(CALCRIM No. 570) stated that a killing is reduced to voluntary manslaughter
if: “1.
The defendant/perpetrator was
provoked; [¶] 2. As
a result of the provocation, the defendant/perpetrator
acted rashly and under the influence of intense emotion that obscured his
reasoning or judgment; AND [¶] 3. The
provocation would have caused a person of average disposition to act rashly and
without due deliberation, that is, from passion rather than from
judgment.” (Italics added.) These same modifications were made to the
attempted voluntary manslaughter instructions based on imperfect self defense
or defense of another (CALCRIM No. 604) and sudden quarrel or heat of passion
(CALCRIM No. 603).
Assuming that these instructions might
have been confusing in referring (in part) to the
perpetrator, for several reasons we conclude that defendant suffered no
prejudice, whether considered under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (see
142, 178 [Watson standard applies to
instructional error on lesser included offenses]) or Chapman v. California (1967) 386 U.S. 18.
First, in instructing on premeditation
and deliberation in connection with murder (CALCRIM No. 521), and in connection
with the allegation in the attempted murder counts that the crimes were
willful, deliberate and premeditated (CALCRIM No. 601), the court did not
modify the instructions to refer to the “defendant/perpetrator.” Thus, the murder instruction stated: “The defendant
is guilty of first degree murder if the People have proved that
with premeditation.” (Italics
added.) The instruction defined the
terms “willfully,” “deliberately,” and “with premeditation” with reference only
to “the defendant”: “The defendant acted
willfully if he intended to
kill. The defendant acted
considerations for and against his choice and, knowing the consequences,
decided to kill. The defendant acted
with premeditation if he decided to
kill before committing the act that caused death.” The terms were similarly defined with
reference to defendant’s state of mind in the instruction on the allegation of
premeditated attempted murder. Thus,
under the instructions, by convicting defendant of first degree murder, and
finding true the allegation that the attempted murders were willful, deliberate
and premeditate, the jury necessarily concluded that defendant acted with the
intent to kill, and with premeditation and deliberation. These findings make it clear that the jury
rejected any notion that defendant aided and abetted the actual killers with
the state of mind requisite for complete self defense, imperfect self defense,
or sudden quarrel or heat of passion.
(See People v. Manriquez (2005)
37 Cal.4th 547, 582-583 [jury finding of first degree murder rendered any error
in failing to instruct on imperfect self defense harmless].)
Second, the evidence that defendant
acted with the state of mind required for self defense, imperfect self defense,
or sudden quarrel or heat of passion was virtually nonexistent. Defendant did not testify that he acted in
the belief that he was in danger, or that he acted as the result of sudden
quarrel or heat of passion. To the
contrary, he denied any connection with the shooters and any instigation of the
shooting.
Third, the primary defense theory was
consistent with defendant’s testimony:
defendant was a mere associate of the Rollin’ 60’s, not a true member of
the gang; he went to West View Street alone, not intending to fight but to
collect money from Rokeshia Quinn to pay for the car radio she had broken
earlier in the day; he had no idea that a shooting might occur and had no
gang-related motive to encourage one.
The alternate theories of self defense (or defense of another),
imperfect self defense (or defense of another), and sudden quarrel or heat of
passion were only secondary theories briefly mentioned in defense counsel’s
argument. As defense counsel
stated: “I’m not saying [defendant] knew
these people [the shooters]. I’ve taken
the position, [defendant] has taken the position, he didn’t know who they
were. He arrived by himself. He left by himself. I have an obligation to present this [voluntary
manslaughter by imperfect self defense or defense of another and heat of
passion] to try to explain it to you because there is some evidence, and how
much weight you choose to give it, it’s up to you.”
Fourth, defendant actually benefitted
from the modified instructions, insofar as his attorney argued a theory that
would not otherwise have been available, namely, defense of another. His attorney argued: “[I]f you conclude that [defendant] had
people there and other people were with him, and that they saw that all of a
sudden he was getting jumped, and they rashly, pulled their guns out and
started firing. The shooters would be
responsible, would act under the heat of passion, or this notion of self
defense of another, and therefore reduce[] what otherwise would be a killing [
Finally, on this record, it is
difficult to imagine a scenario in which defendant would have been entitled to
claim self defense, imperfect self defense, or heat of passion while in a fight
with eight or more women, and the actual shooters, witnessing that fight, would
not have been entitled to claim defense of another, imperfect defense of
another or heat of passion. In other
words, even if the jury focused on the mental state of the shooters, the jury’s
rejection of the notion that the shooters acted in complete or imperfect
defense of another or in the heat of passion, suggests that had they focused on
defendant’s state of mind, his alternative defense would have been rejected as
well.
For all these reasons we conclude that
even if the jury instructions were confusing in referring to the “defendant/perpetrator,”
defendant suffered no prejudice.
II.
Natural and Probable Consequences
Doctrine
Defendant acknowledges that
the natural and probable consequences doctrine.
Nonetheless, defendant contends, as best we understand him, that the
rationale of McCoy compels the
conclusion that the natural and probable consequences doctrine is no longer
viable, because it premises aiding and abetting liability on the mental state
of the actual perpetrator rather than the defendant. According to defendant, “the necessary
implication of McCoy is that indirect
aiding and abetting [through the natural and probable consequences doctrine]
has no application to the mental states involved in criminal homicide.”
We do not agree that
the natural and probable consequences doctrine, because, unlike direct aiding
and abetting considered in McCoy, the
natural and probable consequences doctrine is a species of liability dependent
not on the subjective mental state of the aider and abettor, but rather on
“‘whether, under all of the circumstances presented, a reasonable person in the
defendant’s position would have or should have known that the charged offense
was a reasonably foreseeable consequence of the act aided and abetted by the
defendant.’ [Citation.]” (People
v. Caesar (2008) 167 Cal.App.4th 1050, 1058, disapproved on another ground
in People v. Superior Court (2010) 48
Cal.4th 1, 18.)
The analysis of the court of appeal in
People v. Canizalez (2011) 197
Cal.App.4th 832, 852, with which we agree, dispels defendant’s contention: “Aider and abettor culpability under the
natural and probable consequences doctrine for a nontarget, or unintended,
offense committed in the course of committing a target offense has a different
theoretical underpinning than aiding and abetting a target crime. Aider and abettor culpability for the target
offense is based upon the intent of the aider and abettor to assist the direct
perpetrator commit the target offense.
By its very nature, aider and abettor culpability under the natural and
probable consequences doctrine is not premised upon the intention of the aider
and abettor to commit the nontarget offense because the nontarget offense was
not intended at all. It imposes
vicarious liability for any offense committed by the direct perpetrator that is
a natural and probable consequence of the
target offense. [Citation.] Because the nontarget offense is unintended,
the mens rea of the aider and abettor with respect to that offense is
irrelevant and culpability is imposed simply because a reasonable person could
have foreseen the commission of the nontarget crime. It follows that the aider and abettor will
always be ‘equally guilty’ with the direct perpetrator of an unintended crime
that is the natural and probable consequence of the intended crime.” In short, the analysis in
abetting has no application to the natural and probable consequences doctrine.
III.
In the instant case, the target
offenses on which the jury was instructed for application of the natural and
probable consequences doctrine were three misdemeanors: disturbing the peace, assault, and battery. Relying primarily on People v. Chun (2009) 45 Cal.4th 1172, 1179, defendant contends
that it was a violation of due process and equal protection to instruct on the
natural and probable consequences doctrine based on these assaultive-type
crimes. He contends, in substance, that the merger doctrine bars
liability, because assaultive-type crimes are an integral part of, and merge
into, the murder. We disagree.
In Chun,
the defendant was one of four people in a Honda stopped at a traffic
light. “[G]unfire erupted from the
Honda” toward a Mitsubishi that was also stopped at the light; a passenger in
the Mitsubishi was killed and two other people in that car were wounded. (Chun, supra, 45 Cal.4th at p.
1179.) “The prosecution sought a first
degree murder conviction. The court also
instructed the jury on second degree felony murder based on shooting at an
occupied motor vehicle (§ 246) either directly or as an aider and
abettor. The jury found defendant guilty
of second degree murder.” (Ibid.)
The
California Supreme Court concluded the trial court erred by instructing the
jury on felony murder as a theory of second degree murder. (Chun, supra, 45 Cal.4th at p.
1201.) The Chun court explained
that when “the underlying felony is assaultive in nature, such as a violation
of section 246 or section 246.3, we now conclude that the felony merges with
the homicide and cannot be the basis of a felony-murder instruction.” (Id. at p. 1200.) The court held that “all assaultive-type
crimes, such as a violation of section 246, merge with the charged homicide and
cannot be the basis for a second degree felony-murder instruction.” (Id. at p. 1178.)
Chun
does not apply here for several reasons.
First, Chun involved the felony murder rule, which has no
application to the present case. Second,
in Chun, the court held that a defendant cannot be convicted of second
degree felony-murder on the basis of aiding and abetting an assaultive
crime. (Ibid.) The court did not address the application of
the natural and probable consequences doctrine, which “operates independently
of the second degree felony-murder rule.”
(People v. Karapetyan (2006) 140 Cal.App.4th 1172, 1178.) “The natural and probable consequences
doctrine does not merge all assaults into the felony-murder rule. Rather, it is a theory of liability for murder
that applies when the assault has the foreseeable result of death. For aider and abettor liability, it is the
intention to further the acts of another that creates criminal liability and
not the felony-murder rule.
[Citation.]” (Id. at p.
1178.)
Third,
courts before and after Chun have affirmed convictions for aiding and
abetting assaults with a deadly weapon that resulted in murder. (Karapetyan, supra, 140 Cal.App.4th at
p. 1178; People v. Francisco (1994) 22 Cal.App.4th 1180, 1189-1190; People
v. Ayala (2010) 181 Cal.App.4th 1440, 1450.)
For
these reasons, defendant’s claim is not well taken.
DISPOSITION
The
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We concur:
EPSTEIN, P. J. SUZUKAWA, J.
was defendant’s second trial on the charges.
The jury in the first trial deadlocked and a mistrial was declared.
statements were made in a recorded interview, which was played in its entirety
for the jury.
