P. v. Le
Appellant admittedly fired a gun only a few feet away from the location of an unarmed struggle between two other young men, one of whom was appellants close friend. A bullet from appellants gun entered the thigh of the man with whom appellants friend was fighting. The victim was then shot twice in the back by a different friend of appellants, and later died of his wounds. Appellant was convicted of second degree murder. The prosecution sought a murder conviction on either of two grounds, aiding and abetting a battery, the natural and probable consequence of which was the victims death (the aiding and abetting theory), or implied malice. We accept appellants argument that the prosecutions aiding and abetting theory is not supported by sufficient evidence of the underlying battery, because there was no evidence that appellants friend was the aggressor in his fight with the homicide victim. Court reject appellants claims of error as to the implied malice theory, however, and therefore affirm appellants conviction.
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