The opinion
MOSK, J.
I respectfully dissent.
Sua Sponte Instruction
An authority on California criminal law states, “Failure to instruct on an essential element of an offense charged is error ‘whenever there is any evidence deserving of any consideration from which the jury could have found in favor of the defendant on the omitted element.’ The error denies the defendant’s right to have the jury determine every material issue presented by the evidence, regardless of overwhelming evidence of guilt. [Citation.]” (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 609, p. 869.)
Here, the prosecutor argued a target offense that was something other than shooting at an occupied car—namely, planning to throw an object at a car and to fight—which target offense could have been conspiracy to commit a simple assault or a battery, possible misdemeanors. People v. Prettyman (1996) 14 Cal.4th 248 [ 58 Cal.Rptr.2d 827 , 926 P.2d 1013 ] (Prettyman) and People v. Baker (1999) 74 Cal.App.4th 243 [ 87 Cal.Rptr.2d 803 ] (Baker) compel the trial court to instruct the jury on such target offenses because there was sufficient evidence to support that instruction. Because the jury could have found Quan Le Huynh (Huynh) guilty of a killing during the course of a conspiracy to commit a misdemeanor, the court should have given an involuntary manslaughter instruction as a lesser included offense.
Prettyman supports the position that the trial court had a sua sponte duty to identify the target offenses that Huynh aided and abetted and to instruct the jury on those target offenses. The court in Prettyman said that “such an instruction is necessary and should be given whenever uncharged target offenses form a part of the prosecution’s theory of criminal liability and substantial evidence supports the theory.” ( Prettyman, supra, 14 Cal.4th at pp. 266-267.) The court added that the duty to so instruct arises “when the *681 prosecution has elected to rely on the ‘natural and probable consequences’ theory of accomplice liability and the trial court has determined that the evidence will support instructions on that theory.” (Id. at p. 269.) Thus, Prettyman requires the trial court to identify those target offenses on which the prosecutor relies or argues to the jury, and not just those that the prosecutor expressly requests be considered in an instruction.
Here, the prosecutor, in his closing argument, repeatedly relied on and asked the jury to consider target offenses other than shooting at an occupied car. The prosecutor argued that even if the jury believed Huynh’s version of the events, Huynh was still guilty of murder. This is so, according to the prosecutor, because under that version Huynh entered into a plan to stop Andrew and Vincent Vongkavivathanakul’s car by throwing a bottle at the car and to fight with the occupants of that car using a part of a car steering wheel locking device (Club) for protection, the natural and probable consequence of which plan was murder. The prosecutor having relied on and presented to the jury a target offense of conspiracy to commit an assault or possibly a battery, the trial court should have instructed the jury on that target offense and the consequences thereof.
A target offense of conspiracy to commit an assault or a battery can support as a natural and probable consequence involuntary manslaughter, a lesser included offense of murder, because an assault or battery or conspiracy to commit an assault or a battery, even with a deadly weapon, can be a misdemeanor, as well as a felony. (Pen. Code, §§ 17, 182, 241, subd. (a), 242, 243, 245, subd. (a); In re Larkin (1989) 48 Cal.3d 236, 241 [ 256 Cal.Rptr. 90 , 768 P.2d 604 ] [defendant convicted of misdemeanor conspiracy to commit assault with a deadly weapon].) For there to be a felony violation of Vehicle Code section 23110, subdivision (b), there must be an “intent to do great bodily injury maliciously and willfully.” Huynh, in effect, denied such intent.
In Baker, supra, 74 Cal.App.4th at page 251 , the court held that facts similar to those here could give rise to a simple assault and therefore the court had a duty to instruct sua sponte on that offense. In Baker , as here, there was. a confrontation. The defendants threatened revenge, left and returned to the victim’s home, armed with two knives, pieces of a steering wheel locking device, and wooden stakes. (Id. at p. 248.) Baker stabbed and killed the victim. (Ibid.) A codefendant said he thought there might be a fight and gave Baker a knife. (Id. at p. 253.) On appeal, defendants argued that the trial court should have instructed the jury on lesser included offenses of voluntary manslaughter, conspiracy to commit assault, and assault. (Id. at p. 251.) Division Two of this court held that the trial court committed prejudicial error in failing to instruct the jury on the lesser included offenses. (Id. at *682 pp. 252-254; see also People v. Hickles (1997) 56 Cal.App.4th 1183, 1197 [ 66 Cal.Rptr.2d 86 ] [evidence supported a finding of assault with a deadly weapon or a simple assault].) The appellate court said that the “jury could have found that appellants’ intent upon entering [the victim’s] home was not felonious. There was evidence . . . that [the defendant] . . . returned to [the victim’s] home ... at most to engage in a fistfight.” (Baker, supra, at p. 251 .)
Substantial evidence here established that Huynh may be guilty of involuntary manslaughter. Huynh testified that, on the night of the incident, Tina Trang called him and told him that she was being followed by the men who had just been involved in a fight at the club. Huynh said he did not have a gun and he did not know that Max Khaolaeiad did have a gun. He said that it was his intent to throw a beer bottle at the Vongkavivathanakuls ’ car, to cause the car to pull over, and, if necessary, to fight with the car’s occupants. Huynh stated there was no “concrete plan.” He asserted he wanted to prevent the Vongkavivathanakuls from following Huynh’s friends, and he added that “hopefully they’ll [the Vongkavivathanakuls’ car] just veer off and we can take off . . . .” Huynh picked up a part of the Club because he thought the Vongkavivathanakuls had a Club. He said he had no intent to do anything that might result in a death. According to Huynh, when he and his companions neared the car, Max Khaolaeiad—to Huynh’s surprise—pulled out a gun and fired shots at the victims’ car.
Based on the conflicting testimony, the jury could have believed that Max Khaolaeiad fired the gun and that the natural and probable consequence of Huynh’s conduct—a plan to throw a beer bottle at the car and fight the car’s occupants—was involuntary manslaughter, arising out of a plan to commit a simple assault or a battery. (See Baker, supra, 74 Cal.App.4th 243 ; People v. Hickles, supra, 56 Cal.App.4th 1183 ; People v. Lee (1937) 23 Cal.App.2d 168 [ 72 P.2d 572 ] [jury verdict of simple assault was supported despite evidence that defendant used a deadly weapon]; compare People v. Woods (1992) 8 Cal.App.4th 1570, 1577, 1593 [ 11 Cal.Rptr.2d 231 ] [because evidence was that defendant engaged in an assault armed with a gun, defendant could not be guilty of anything less than second degree murder; thus there was no error in failing to instruct on involuntary manslaughter].) If the jury believed Huynh and believed he did not fire the gun or know of its intended use, the jury might have concluded that involuntary manslaughter, and not second degree murder, was the natural and probable consequence of Huynh’s intent or conspiracy to throw a bottle at a car and engage in a fight.
It appears reasonably probable that the jury did believe Huynh’s version of the events because the jury verdicts cannot be reconciled with a finding *683 that Huynh fired the gunshots. (See People v. Milwee (1998) 18 Cal.4th 96, 157 [ 74 Cal.Rptr.2d 418 , 954 P.2d 990 ] [proper to review jury verdicts actually rendered to determine whether prejudicial error occurred].) The jury did not find Huynh guilty of attempted murder of David Tran and the Vongkavivathanakuls; of weapon enhancement allegations; or of being a felon in possession of a gun—charges on which the jury would have rendered guilty verdicts had it believed that Huynh was the shooter. Thus, the jury convicted Huynh of murder through an aider and abettor theory of liability. An aider and abettor can be guilty of a lesser included offense even if the actual perpetrator of the crime is guilty of a greater offense. (People v. Woods, supra, 8 Cal.App.4th 1570 .)
The failure to give the instructions requires reversal. (See generally People v. Breverman (1998) 19 Cal.4th 142, 176-178 [ 77 Cal.Rptr.2d 870 , 960 P.2d 1094 ] [miscarriage of justice occurs when it appears reasonably probable that the defendant would have achieved a more favorable result had the error not occurred under the test for harmless error set forth in People v. Watson (1956) 46 Cal.2d 818 [ 299 P.2d 243 ]].)
............... * petition for a rehearing was denied July 15, 2002, and the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied September 25, 2002.
See footnote, ante, page 662.