People v. Prettyman

BROWN, J., Concurring and Dissenting.

I concur solely in the judgment affirming the decision of the Court of Appeal; otherwise, I respectfully dissent.

The broad and amorphous rule formulated by the majority finds no support in either the general principles governing a trial court’s obligation to instruct sua sponte or the analytical underpinnings of the natural and probable consequences theory of aiding and abetting liability. Moreover, the rule is likely to confuse jurors and hopelessly derail the central fact-finding task.

*285 Two analytical mistakes undermine the majority’s rationale. First, the opinion fails to recognize that particularized evidence, not a general theory of liability, triggers the duty to instruct sua sponte. Second, it ignores the critical role of causation.

This court summarized the generic standard applicable to a trial court’s sua sponte duty in People v. Wickersham (1982) 32 Cal.3d 307, 323-324 [ 185 Cal.Rptr. 436 , 650 P.2d 311 ] (disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 201 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]): “ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citation.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions [on a particular rule of law] when the evidence raises a question as to whether [that rule applies to the facts], but not when there is no evidence [to which it might apply].’ ”

The duty to instruct sua sponte always extends to certain fundamentals: elements of the charged offense, any required specific intent, the prosecution’s burden of proof. (See also People v. Putnam (1942) 20 Cal.2d 885, 890-891 [ 129 P.2d 367 ], disapproved on other grounds in People v. Rincon-Pineda (1975) 14 Cal.3d 864, 882 [ 123 Cal.Rptr. 119 , 538 P.2d 247 , 92 A.L.R.3d 845 ].) In most other circumstances, however, the court’s obligation turns on an intensely fact-bound and case-specific inquiry. (See People v. Daniels (1991) 52 Cal.3d 815, 885 [ 277 Cal.Rptr. 122 , 802 P.2d 906 ]; People v. Kimble (1988) 44 Cal.3d 480, 503 [ 244 Cal.Rptr. 148 , 749 P.2d 803 ]; cf. People v. Geiger (1984) 35 Cal.3d 510, 531 [199 CaLRptr. 45, 674 P.2d 1303 , 50 A.L.R.4th 1055 ] [instruction on lesser related offense requires evidentiary basis for jury to find crime was less than that charged].) Hence, the court need only “give instructions whose necessity is ‘developed through the evidence introduced at trial.' [Citation.]” (People v. Putnam, supra, 20 Cal.2d at p. 890 , italics added.)

For example, in People v. Tidwell (1970) 3 Cal.3d 82, 85 [ 89 Cal.Rptr. 58 , 473 P.2d 762 ], “defendant raised the defense of diminished capacity by testifying” to facts that, if believed, would establish his intoxication at the time of the crimes. (Italics added.) That evidence “required instructions which would have fully presented the defense of diminished capacity to the jury.” (Id. at pp. 85-86.) In People v. Sedeño (1974) 10 Cal.3d 703, 714 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ] (disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12 [ 160 Cal.Rptr. 84 , 603 P.2d 1 ]), *286 the defense theory was also diminished capacity as “suggested by the evi dence.” (Italics added; see also People v. St. Martin (1970) 1 Cal.3d 524, 531 [ 83 Cal.Rptr. 166 , 463 P.2d 390 ] [trial court must instruct on diminished capacity “where there is substantial evidence that the defendant is relying upon such defense”].)

In People v. Hood (1969) 1 Cal.3d 444 [ 82 Cal.Rptr. 618 , 462 P.2d 370 ], the defendant was charged with assault with a deadly weapon upon a police officer. In determining whether the trial court had a sua sponte duty to instruct on the lesser included offense of assault with a deadly weapon, the court had to determine “whether the evidence in this case clearly indicated [the officer] might not have been engaged in the performance of his duties or that defendant might not have known or had reason to know that he was so engaged.” (Id. at p. 450, italics added.) In other words, the duty to instruct arose not from the nature of the charge in the abstract but from the particular facts adduced at trial raising the possibility of a factual defense. In People v. Bevins (1960) 54 Cal.2d 71, 77 [ 4 Cal.Rptr. 504 , 351 P.2d 776 ], “the testimony as to the circumstances surrounding the manner in which defendant’s confession was obtained was in direct conflict, thus [requiring the trial court] to submit to the jury for its determination under proper instructions the question whether under all the circumstances the confession was made freely and voluntarily.” (Italics added; see also People v. Wilson (1967) 66 Cal.2d 749, 759 [ 59 Cal.Rptr. 156 , 427 P.2d 820 ] [“Under the evidence here presented, instructions on [brandishing a weapon] were closely and openly connected with the facts before the court.”]; People v. Wade (1959) 53 Cal.2d 322, 335 [ 1 Cal.Rptr. 683 , 348 P.2d 116 ] [“facts of the instant case” did not require or justify instruction on lesser included offense].)

Imposing a duty to “identify and describe the elements” of the target offense(s) in all cases involving a natural and probable consequences theory of accomplice liability neither comports with the general rule nor conforms to applicable case law. Focus on the target offense is logically necessary only when the evidence supports an inference the defendant facilitated or encouraged noncriminal conduct. (People v. Solis (1993) 20 Cal.App.4th 264, 274, fn. 8 [ 25 Cal.Rptr.2d 184 ]; see, e.g., People v. Mouton (1993) 15 Cal.App.4th 1313, 1320-1321 [ 19 Cal.Rptr.2d 423 ].) In other words, additional explanation is warranted only when one reasonable determination of the facts might legally exonerate the defendant. (Cf. People v. Failla (1966) 64 Cal.2d 560 [ 51 Cal.Rptr. 103 , 414 P.2d 39 ].) In most instances, however, the evidence leaves no room for doubt. Thus, “the facts before the court” would not warrant further instruction. (People v. Wickersham, supra, 32 Cal.3d at p. 323 .)

In People v. Failla, supra, 64 Cal.2d 560 , the defendant was charged with burglary, but “the evidence presented” was ambiguous and “subject to [the] *287 inference not only that defendant intended to commit one or more felonies .... but also intended to commit one or more misdemeanors ... or acts which are not crimes” (id. at p. 565), in which event the jury was bound to acquit. In these circumstances, this court concluded the definition of “felony” was “ ‘closely and openly connected with the facts of the case’ ” and should have been given sua sponte by the trial court. (Ibid.) The duty arose, however, only upon evidence permitting a factual finding favorable to the defendant. (Id. at p. 564.)

By a parity of reasoning, in a case of natural and probable consequences liability, the opportunity for the jury to “indulge in unguided speculation” does not present itself when the antecedent conduct is clearly criminal. (People v. Failla, supra, 64 Cal.2d at p. 564 .) Here, the majority concedes “[t]here was no evidence of any other possible ‘target’ apart from Pretty-man’s assault on Van Camp, an act that was indisputably criminal. There was no evidence that Bray aided and abetted any noncriminal behavior which led, as a ‘natural and probable consequence,’ to Prettyman’s murder of Van Camp . . . .” (Maj. opn., ante, at p. 273, italics added.) Since the criminality of Prettyman’s precedent acts was not open to reasonable doubt, the particulars of the target offense(s) became superfluous and irrelevant. (See People v. Solis, supra, 20 Cal.App.4th at p. 275 .) As in most cases, they were not “closely and openly connected to the facts before the court. . . .” (People v. Montoya (1994) 7 Cal.4th 1027, 1047 [ 31 Cal.Rptr.2d 128 , 874 P.2d 903 ], italics added.)

The additional instruction will not only fail to enlighten, it will distract from the jury’s more fundamental determination: the causal nexus between the intended or perpetrated target offense and the ultimate crime. (See People v. Solis, supra, 20 Cal.App.4th at pp. 275-276.)

The majority’s second analytical misstep is its failure to consider causation. To this end, some historical perspective is helpful. The natural and probable consequences theory of aider and abettor liability traces its ancestry more than 400 years back to The Queen v. Saunders & Archer (1576) 75 Eng.Rep. 706. Wishing to murder his wife, Saunders procured poison from one Archer and inserted it in an apple, which he gave to his wife upon Archer’s advice. She gave the apple to their young daughter, who ate it and died. Although Saunders’s guilt was readily predicated on the doctrine of transferred intent, the question arose whether Archer incurred any criminal liability for his part in the scheme. Even at the time, aiders and abettors were for the most part treated as principals under the law. However, “Archer did not precisely procure [the daughter’s] death, nor advise [Saunders] to kill her, and therefore whether or no he should be accessary to this murder which *288 happened by a thing consequential to the first act, seemed . . . doubtful.” (Id. at p. 709.)

“Plowden, at the conclusion of his report of the case, sets forth a comprehensive note stating his view of the law; and this note, as echoed and reiterated by subsequent writers down through the centuries, has furnished the foundations of the criminal law upon the subject with comparatively little change even to our own day.” (Sayre, Criminal Responsibility for the Acts of Another (1930) 43 Harv. L.Rev. 689, 697-698, fns. omitted; hereafter Sayre.) “Plowden’s note is as follows: ‘Note, it seems to me reasonable that he who advises or commands an unlawful Thing to be done shall be adjudged Accessary to all that follows from that same Thing, but not from any other distinct Thing. As if I command a Man to rob such a one, and he attempts to rob him, and the other defends himself, and a Combat ensues between them, and the Person attempted to be robbed is killed, I shall be Accessary to this Murder, because when he attempted to rob him, he pursued my Command, and then when he pursued my Command, and in the Execution thereof another Thing happened, I ought in Reason to be deemed a Party therein, because my Command was the Cause of it. So if I command one to beat another, and he beats him so that he dies thereof, I shall be Accessary to this Murder, for it is a Consequence of my Command, which was the original Foundation thereof, and which naturally tended to endanger the Life of the other. . . .’” (Id. at p. 698, fn. 37.)

The early law incorporated the rationale of Plowden’s note as well as similar principles previously set forth by Staunford in his Pleas of the Crown in 1557. (Sayre, supra, 43 Harv. L.Rev. at p. 699.) It continued “with surprisingly little change through the barren centuries following,” being reiterated essentially intact by Coke (1644), Hale (1678), Hawkins (1716), and Blackstone (1769). (Sayre, supra, 43 Harv. L.Rev. at p. 699, fn. omitted.) “Hawkins’ only original contribution is a caution against extending the liability of the accessory too far, perhaps prompted by the fear that the doctrine [of respondeat superior] then being initiated by Lord Holt in the law of torts should obtain a hold upon the criminal law.” (Ibid., fns. omitted.) Several years later, the court in Rex v. Huggins (1730) 2 Strange 882 expressly refused to apply agency principles to the criminal law. (Sayre, supra, 43 Harv. L.Rev. at pp. 700-701.)

“It is not surprising, therefore, that courts today as a general rule . . . make criminal liability exclusively dependent upon causation.” (Sayre, supra, 43 Harv. L.Rev. at p. 702.) Accordingly, “even if the particular criminal act has not been authorized or consented to, if it grows out of and is the proximate consequence of one that has been authorized or procured, the *289 defendant is criminally liable . . . (Id., at pp. 703-704, fn. omitted.) In this manner, the law has maintained criminal responsibility commensurate with culpability. (People v. Luparello (1986) 187 Cal.App.3d 410, 439 [ 231 Cal.Rptr. 832 ]; cf. People v. Washington (1965) 62 Cal.2d 111, 783 [ 44 Cal.Rptr. 442 , 402 P.2d 130 ] [felony-murder rule limited to killings “committed by the defendant or by his accomplice acting in furtherance of their common design” to avoid further eroding “relation between criminal liability and moral culpability”]; Neal v. State of California (1960) 55 Cal.2d 11, 20 [ 9 Cal.Rptr. 607 , 357 P.2d 839 ] [statutory limitation on multiple punishment to ensure defendant’s “punishment will be commensurate with his criminal liability”].) Deeply rooted in the common law, this causative theory of aider and abettor liability remains the standard. Indeed, some jurisdictions have incorporated it into their statutory definitions of accomplices. (See 1 Wharton’s Criminal Law (15th ed. 1993) Parties, § 35, pp. 209-210; see also, e.g., Me. Rev. Stat. Ann. tit. 17-A § 57(3)(A); Minn. Stat. Ann. § 609.05 (2).)

In California, People v. Kauffman (1907) 152 Cal. 331, 334-335 [ 92 P. 861 ], contains one of the first extensive discussions, but the principles were recognized well before. Our decision in People v. Keefer (1884) 65 Cal. 232 [ 3 P. 818 ], does not expressly refer to the “natural and probable consequences” theory of accomplice liability. The analysis, however, manifestly ratifies its rationale premised on a fact-specific assessment of causation: “In the case at bar, if defendant simply encouraged the tying of the deceased—a misdemeanor which did not and probably could not cause death or any serious injury—as the killing by Chapman was neither necessarily nor probably involved in the battery or false imprisonment, nor incidental to it, but was an independent and malicious act with which defendant had no connection, the jury were not authorized to find defendant guilty of the murder, or of manslaughter. If the deceased had been strangled by the cords with which he had been carelessly or recklessly bound by Chapman, or had died in consequence of exposure to the elements while tied, defendant might have been held liable. But, if the testimony of defendant was true—and as we have said, he was entitled to an instruction based upon the assumption that the facts were as he stated them to be—the killing of deceased was an independent act of Chapman, neither aided, advised, nor encouraged by him, and not involved in nor incidental to any act by him aided, advised, or encouraged.” (Id. at pp. 233-234, italics in original.)

Until today, modem decisions remained grounded in the historical rationale of causation. “[A] defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the *290 intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator.” (People v. Croy (1985) 41 Cal.3d 1, 12 , fh. 5 [ 221 Cal.Rptr. 592 , 710 P.2d 392 ]; see People v. Beeman (1984) 35 Cal.3d 547, 560 [ 199 Cal.Rptr. 60 , 674 P.2d 1318 ]; People v. Durham (1969) 70 Cal.2d 171, 181 [ 74 Cal.Rptr. 262 , 449 P.2d 198 ].) “[The] derivative criminal liability of an aider and abettor centers on causation.” (People v. Brigham (1989) 216 Cal.App.3d 1039, 1052 [ 265 Cal.Rptr. 486 ]; see id. at pp. 1050-1051, 1056, fn. 13; People v. Solis, supra, 20 Cal.App.4th at p. 271 ; People v. Luparello, supra, 187 Cal.App.3d at p. 440 .) “This is a question of legal causation independent of any intention that the result obtain.” (People v. Rogers (1985) 172 Cal.App.3d 502, 515 [ 217 Cal.Rptr. 809 ]; People v. Butts (1965) 236 Cal.App.2d 817, 837 [ 46 Cal.Rptr. 362 ].)

Causation is the pivot around which natural and probable consequences liability turns, requiring—like the sua sponte duty to instruct—a fact-specific analysis. (See People v. Durham, supra, 70 Cal.2d at p. 181 .) Identifying and describing the elements of the predicate offense(s) in the abstract cannot assist that inquiry because the answer to whether crime “x” was a natural and probable consequence of advising, encouraging, or facilitating crime “y” will always be: It depends. (See, e.g., People v. Keefer, supra, 65 Cal. at pp. 233-234.) “[T]he legal elements of the predicate offense are irrelevant to the determination of whether the ultimate crime was a natural and probable consequence of the predicate. Whether there is a nexus of foreseeability between the predicate and the perpetrated offense depends not on crime definitions but on the specific facts of each offense.” (People v. Solis, supra, 20 Cal.App.4th at pp. 273-274.) “The determination whether a particular criminal act was a natural and probable consequence of another criminal act aided and abetted by a defendant requires application of an objective rather than subjective test. [Citations.] This does not mean that the issue is to be considered in the abstract as a question of law. [Citation.] Rather, the issue is a factual question to be resolved by the jury in light of all of the circumstances surrounding the incident.” (People v. Nguyen (1993) 21 Cal.App.4th 518, 531 [ 26 Cal.Rptr.2d 323 ].) 1 Causation not only supersedes abstract consideration of the target offense(s), it renders identification and *291 description of the elements immaterial to the question of natural and probable consequences. The trial court here thus did not err in failing sua sponte to modify CALJIC No. 3.02 (5th ed. 1988).

The pattern instruction may, however, suffer a deficiency more directly related to the jury’s central inquiry. Currently, “natural and probable consequences” is nowhere defined; juries receive no explication of causation, the fimdamental rationale for imposing criminal responsibility. The more attenuated cause and effect, the less compelling the case for finding derivative liability. The analytical measure must be more exacting than a hindsight determination that the actual, if unintended, consequence was not unforeseeable. Nor is a strict but-for test appropriate; a mere chain of events will not suffice.

In Roy v. United States (D.C. 1995) 652 A.2d 1098, 1105 , the Court of Appeals for the District of Columbia considered the scope of its accessory liability standard—comparable to our own—for “ ‘any criminal act which in the ordinary course of things was the natural and probable consequence of the crime that [the defendant] advised or commanded, although such consequence may not have been intended by him.’ [Citations.]” The court explained, “The phrase ‘in the ordinary course of things’ refers to what may reasonably ensue from the planned events, not to what might conceivably happen, and in particular suggests the absence of intervening factors. ‘Natural’ has many meanings, but the most apposite dictionary definition is ‘in accordance with or determined by nature.’ A natural consequence is thus one which is within the normal range of outcomes that may be expected to occur if nothing unusual has intervened.” (Ibid., fhs. omitted.) “Intervention in this sense may refer not only to physical happenings but also to mental events, such as an inexplicable shift of mind unrelated to the original plan.” (Ibid., fn. 15.) “We need not define ‘probable,’ except to note that, even standing alone, this adjective sets a significantly more exacting standard than the word ‘possible.’ Accordingly, if we accord to the words of our cases their ordinary everyday meaning, it is not enough for the prosecution to show that the accomplice knew or should have known that the principal might conceivably commit the offense which the accomplice is charged with aiding and abetting. Without inserting additional phrases or adjectives into the calculus, we think that our precedents require the government to prove a good deal more than that. A ‘natural and probable’ consequence in the ‘ordinary course of things’ presupposes an outcome within a reasonably predictable range.” (Id. at p. 1105.)

*292 The majority holding yields no such guidance. Indeed, it compounds the problem by placing its imprimatur on the 1992 revision of CALJIC No. 3.02. The majority declines to decide “whether a defendant may be convicted under the ‘natural and probable consequences’ doctrine when the target criminal act was not committed.” (Maj. opn., ante, at p. 262, fn. 4.) Nevertheless, by its terms this version of CALJIC No. 3.02 directs that the jury “must be satisfied beyond a reasonable doubt that” a coprincipal actually committed a predicate crime the defendant aided and abetted. Without apparent judicial support, the CALJIC committee departed radically from the language of prior formulations, which referred only to “the crime originally contemplated’ and “such originally contemplated crime.” (CALJIC No. 3.02 (5th ed. 1988) italics added; see also CALJIC No. 3.00 (4th ed. 1987 pocket pt.) [“the particular crime . . . confederates are contemplating”; “crime allegedly contemplated”]; CALJIC No. 3.00 (4th ed. 1984) [“the particular crime . . . confederates are contemplating”]; CALJIC No. 3.00 (3d ed. 1976 pocket pt.) [same].)

The earlier versions hewed more faithfully to both the decisional and statutory authority undergirding the natural and probable consequence theory of accomplice liability. “It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury. [Citation.]” (People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5 , italics added; see also Pen. Code, § 31; People v. Durham, supra, 70 Cal.2d at p. 181 ; People v. Villa (1957) 156 Cal.App.2d 128, 134 [ 318 P.2d 828 ]; cf. People v. Kauffman, supra, 152 Cal. 331 [victim killed on return from uncommitted burglary defendant aided and abetted].)

Instead of clarifying the doctrine of natural and probable consequences, these new instructional requirements will vex trial judges and perplex juries. The former, who previously had the option of utilizing the unrevised version of CALJIC No. 3.02 (5th ed. 1988), will search in vain for a limiting principle; the latter will understandably wonder if they can convict an aider and abettor of an ultimate crime if the predicate was never completed. Moreover, the burden on trial judges to divine how to “describe” elements of the target offense(s) has no offsetting benefit and the rule offers no real guidance. In what manner does a “description” differ from a “definition”? *293 (See People v. Mouton, supra, 15 Cal.App.4th 1313, 1318 ; see also CALJIC No. 3.02 (5th ed. pocket pt.) (1992 rev.).) If not stated in terms of constituent elements, how elaborate must the description be? Is a “nonunanimity” instruction required? (See People v. Solis, supra, 20 Cal.App.4th at p. 275 .)

Busy trial courts have long labored to keep pace with the proliferation of instructional duties imposed by appellate courts. More than three decades ago, in a case reversed for failure to give an instruction on diminished capacity, Justice Gardner justifiably lamented the “ever-expanding law of sua sponte instructions,” which does little to improve the quest for justice in the trial courts while frequently generating an argument for reversal on appeal. (People v. Rodriguez (1969) 274 Cal.App.2d 487, 494 [ 79 Cal.Rptr. 187 ].) Illustrating his point, he noted that a consultant for the CALJIC committee had recently compiled “a miscellaneous list of sua sponte instructions which was not intended to be exhaustive,” but “containing] approximately 114 situations in which the appellate courts have indicated that the giving of certain instructions was mandatory.” (Ibid., fh. 1.) Today, the majority needlessly contributes to what is now undoubtedly a much longer list already teeming with the potential for reversible error. (See Cal. Judges Benchguide S216: Mandatory Criminal Jury Instructions (4th ed. 1988).) Anticipating the natural and probable consequences, I decline to encourage or facilitate that enterprise.

See, e.g., People v. Creeks (1915) 170 Cal. 368, 375 [ 149 P. 821 ] (killing of prison guard was natural and probable consequence of escape plan, which contemplated overcoming guards by whatever force necessary); People v. Nguyen, supra, 21 Cal.App.4th at pp. 529-534 (sex offenses were natural and probable consequence under circumstances of planned robberies); People v. Butts, supra, 236 Cal.App.2d at pp. 836-837 (no aiding and abetting liability because no causal nexus between defendant’s joining in brawl and victim’s death where defendant did not know assailant was armed with knife); People v. Simpson (1944) 66 Cal.App.2d 319,328 [ 152 P.2d 339 ] (aider and abettor liability for unplanned kidnapping that was one of “a variety of ways” planned robbery could be committed); People v. King (1938) *291 30 Cal.App.2d 185, 200 [ 85 P.2d 928 ] (“character of the plan is of great importance” in determining whether defendant liable for unintended killing resulting from knowingly encouraged assault); see also People v. Kauffman, supra, 152 Cal. at pp. 335-337; cf. State v. Bridges (1992) 254 N.J.Super. 541, 555 [ 604 A.2d 131, 139 ],