Opinion
[Reprinted without change for tracking pending review and disposition by the Supreme Court.]
Superior Court of Alameda County, No. C109316, William A. McKinstry, Judge. [Copyrighted Material Omitted] [Copyrighted Material Omitted] COUNSEL
A. J. Kutchins, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Aileen Bunney and Laurence K. Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PHELAN, J.
David R. Hickles was convicted by a jury of aiding and abetting the second degree murder (Pen. Code, section 187) of Leon Garrett, and an arming enhancement (Pen. Code, section 12022, subd. (d)) was found to be true. In this appeal, defendant challenges the jury selection process, he raises several evidentiary and instructional errors, and also claims the trial court erroneously denied his new trial motion. We conclude that the trial court's failure to instruct on the predicate or target offense defendant allegedly aided and abetted was prejudicial error and we reverse.
Factual and Procedural Summary
Introduction
On July 3, 1991, the victim, Leon Garrett, was shot by a man known as "Heavy D" at the Motel 5 on MacArthur Boulevard. The evidence established that the defendant arrived with the gunman and was standing nearby at the time of the murder. The prosecution sought to prove accomplice liability on one of two theories: (1) defendant planned the murder with Heavy D, or (2) that he aided and abetted a target crime, e.g., assault, from which the murder was a natural and probable consequence, i.e., derivative liability.
The name of the gunman was never revealed at trial. He was identified by several aliases: "Heavy D," "Big D," "Delano," "Derrick," or "Big Youngster."
1.
The Apartment
Just prior to the murder, the victim, Garrett, had been living with defendant, Jarred Scott and Heavy D in an apartment on East 19th Street. Garrett's girlfriend, Brenda McKinley, had been living there also, but moved out a few weeks before. McKinley, a three-time felon, testified that she had never seen a gun in the apartment or in Garrett's possession.
After being served with an eviction notice, Garrett moved out of the apartment on July 1. On that day Garrett's uncle, John Davis, drove him from the apartment to Motel 5. On July 2, Garrett telephoned Davis from the motel asking him to pick him up at 4 p.m. the next day, July 3, the day of the murder.
2.
Teresa Washington
The only eyewitness to the killing, besides defendant, was Teresa Washington. Washington testified that she visited her boyfriend Jarred Scott at Garrett's apartment several times. On several occasions she saw Garrett, appellant, and Heavy D inside the apartment. She saw no guns in Garrett's possession.
On the day of the murder she drove past Garrett's apartment and saw defendant and Heavy D standing on the sidewalk. Heavy D flagged her down. Defendant was standing on the sidewalk about three feet behind him. Defendant was wearing a white T-shirt with jeans, and Heavy D was wearing a matching tan shirt and pants. Heavy D asked her for a ride. She agreed and waited while the two men ran back into the apartment. When they returned, they asked her to drive them to see some friends.
Heavy D directed her to the motel. He instructed her to park in the street and let him out, rather than park in the motel's parking lot. He said that he would be right back. Defendant exited the car, followed by Heavy D. She saw both men walk to the motel driveway. A few moments later, she pulled over to the curb and left her car with the motor running. This testimony conflicts with her version given at the preliminary hearing in which she said she had turned the engine off. Washington testified she got out of the car and walked to the motel.
Upon entering the motel grounds, she saw Heavy D on the second floor landing in front of Garrett's room shouting at him. She testified variously that, when she first saw defendant, either he was on the same level as the other two men or he was climbing up and down the stairs from "top to middle," or that defendant was standing a few feet behind Heavy D on the stairs. She said that while Garrett and Heavy D argued loudly for several minutes, defendant was just standing there looking, and did not say anything. She testified that at one point defendant had reached the landing, but this was contradicted by her preliminary hearing testimony in which she stated that defendant never stood on the landing. She admitted telling Sergeant Cheault that defendant had also been on the landing, and that he and Heavy D called out, " 'Dude, dude, what's up?' " before Garrett walked out of his room. She testified that Garrett walked out the door looking scared. She did not see defendant pass the gun to Heavy D.
As she stood at the foot of the stairs, she saw a gun suddenly drop at Heavy D's feet, about one to two arm's lengths from defendant, who was then standing on the steps behind Heavy D. Heavy D picked the weapon up and shot Garrett three times as he walked away. By the third shot, defendant had run down the stairway. He was followed by Heavy D. Both men ran by Washington who was still standing at the bottom of the stairs covering her ears. Once inside the car, Washington heard Heavy D say, "We peeled that fool" as he shook defendant's hands. According to the witness, defendant wore a blank expression and said nothing. After driving a couple of blocks, Washington ordered both men out of her car.
After stopping briefly at her home, Washington drove to the barbershop where her boyfriend, Scott, worked. This was about 25 minutes after the shooting. Defendant entered a little later and sat down in a barber chair. She took Scott aside and told him "his friends just killed" Garrett. That night, Washington, Scott, defendant, and his girlfriend drove to a motel in Pinole and spent the night.
3.
Other Witnesses
Several people in nearby office buildings heard the shots and saw two or three persons running out of the motel courtyard. Mary Stanton testified she saw a large, Black man dressed in khaki holding a gun to his side, walk to a dumpster and throw it in. She was unable to tell if the gunman or someone else opened the top to the dumpster. The police recovered a .357 magnum revolver with three live rounds and three expended casings from the dumpster. Three .38-caliber hollow point bullets were recovered from Garrett's body.
Diane Akers heard three gunshots, looked out the window of her office and observed a Black male and a heavyset Black female walk slowly from the motel driveway before breaking into a run.
Judith Heller heard three gunshots, looked out of her office window and watched as a small, Black male, apparently defendant, walk from the area of the dumpster, cross the street, and run away. He was followed by a heavyset couple, a Black man and woman, who ran towards a Chevrolet Nova and sped away. Heller supplied the police with the car's license number.
4.
Jarred Scott
Scott testified that he had been giving haircuts at the East 19th Street apartment ever since Heavy D had told him that many young people in the neighborhood would visit the apartment. During May and June, Scott would cut hair three or four times a week and often slept at the apartment. Defendant often accompanied Scott to the apartment and spent the night. Scott testified that he saw two handguns (a .357 magnum and a .38-revolver) and a rifle and saw Garrett clean the rifle. One time, Scott asked defendant if he could fire the .357 pistol.
During the week preceding Garrett's murder, defendant told Scott that he was moving some clothes from the apartment. Scott told an investigator, though he denied it at trial, that defendant became upset when he learned that Garrett was served with an eviction notice, and that Garrett had the telephone service cancelled after he (defendant) had been paying rent to Garrett.
Scott testified that defendant did not arrive at his shop until 45 minutes after Washington, in contrast to Washington's version. According to Scott, defendant appeared to be in shock. He told Scott that he was surprised Heavy D shot Garrett and that he did not want this to happen. Scott said defendant was not angry with the victim. He said that defendant called Pacific Bell to restart telephone service so he, Scott, could continue to cut hair in the apartment. A few days following the murder, defendant fled to Washington state where his mother lived. Scott telephoned him there. Defendant returned to Oakland in October 1991 and was arrested.
5.
Stanley McGraw
Stanley McGraw is a career criminal who agreed to testify for the prosecution if the People agreed not to prosecute him on recent charges for selling narcotics and to refrain from notifying his parole officer. On August 14, 1991, McGraw was arrested for selling heroin to an undercover officer. McGraw, also known as "Greedy," had more than five felony convictions, including assault with a deadly weapon, attempted murder and weapons offenses, and he was on parole for dealing drugs at the time of his arrest. Soon after his arrest, McGraw contacted Sergeant Raymond Conner and, according to Sergeant Conner, "right off the bat" he offered information about Garrett's murder, saying it involved a .38-caliber hollow point bullet fired from a .357 magnum. McGraw told the officer that he got this information from a man named "Dave." McGraw identified defendant's photograph as that of "Dave." McGraw also identified Scott's photograph as that of "Big Jay."
McGraw gave a lengthy, taped statement to the police which was read to the jury in edited form. In that interview, McGraw told Sergeant Conner that he was buying crack from Dave, who sold it out of the victim's apartment together with "Big Jay" and "Youngster" (also know as Heavy D). McGraw told the officer that the victim received cocaine in return for allowing Dave and his friends to sell crack from the apartment. The victim was evicted because he spent his rent money on drugs. McGraw stated he knew the victim owed Dave from $200 to $500.
After the victim moved out of the apartment and into the motel, the phone service was stopped. However, Dave got service restored by pretending to be Garrett. When Garrett found out, he had the phone service terminated again. According to McGraw, Garrett became upset because "Dave had mostly all the drugs. He was mostly in control of everything. He mostly told Youngster and Jay what to do." On the day of the murder, Dave told McGraw that he located the motel where Garrett was staying and asked McGraw to help "serve," i.e., beat up Garrett. McGraw refused. McGraw stated that defendant went with Heavy D and they were both armed.
The day following the murder, Dave visited McGraw and told him he was in trouble, that he and Youngster went to the motel in order to talk to Garrett "or to fight him behind getting the phone cut off." Dave told McGraw that he "had the gun on him and he's the one that got to tussling with the guy. Dave told me when he, when he pulled out the gun, the guy seen the gun and tried to grab it and they got to wrestling for the gun and the gun dropped on the ground and him and, Big Youngster got, they was all tussling together. Big Youngster got loose and picked up the gun. Dave stepped back away from him and Big Youngster shot him three times in the chest area with the gun. [¶] ... [¶] ... They left the car there at the scene of the crime also."
McGraw described the weapon and the hollow point bullets used to murder Garrett. McGraw stated that he knew Dave bought the gun from his sister's boyfriend for $75. McGraw said that Dave told him he threw the weapon off the Berkeley pier. Following the murder, defendant borrowed $175 from McGraw to visit his mother in Tacoma, Washington.
At trial, McGraw recanted his statement to Sergeant Conner, claiming that he did not recognize nor did he remember the defendant because he was then under the influence of drugs. He recognized his voice on the tape and admitted that the handwriting on the photographs he identified were his. He testified that he was "high" that day and simply repeated what the police instructed him to say, that it was all untrue, and that defendant never said anything to him. The witness testified he could not recall loaning defendant any money.
Sergeant Raymond Conner repeated the statements McGraw had given. He testified that he did not see any signs that McGraw was under the influence or suffering withdrawal symptoms at the time of his statement.
6.
Defense Case
Defendant testified that he was good friends with the victim and had visited his apartment many times, but that he did not live there. He stated that there was lots of traffic through the apartment and he assumed drugs were being sold. He also saw Garrett cleaning a gun. On the afternoon of the murder, he was walking from class at Laney College to a friend's house where he had hoped to get a ride to A.J.'s barbershop when he saw Heavy D. After a brief conversation, defendant continued on his way when he saw Heavy D flag down Teresa Washington as she drove by. She agreed to drive him to the barbershop, after she dropped Heavy D off at some undisclosed destination. This version conflicts with Washington's, who testified that she saw defendant standing three feet behind Heavy D, when the latter flagged her down. She drove them to the motel, where Heavy D got out of the car. Defendant and Ms. Washington waited for 15 minutes before they left and went looking for Heavy D. In contrast, Washington testified that defendant and Heavy D got out of the car at the same time and walked to the motel. Defendant testified that he and Washington saw Heavy D arguing with Garrett on the second floor landing. Defendant sat down on the stairs leading to the landing and watched the two men. He testified that he could not hear their conversation. Ms. Washington stood at the bottom of the stairs.
A few minutes later, Garrett and Heavy D began struggling. During this time, defendant walked towards them, and just before he reached the landing he saw a gun drop to the ground. Heavy D picked up the weapon and fired three shots into Garrett. Defendant testified that he was already at the bottom of the stairs when he heard the second shot, and that he and Ms. Washington were on their way out of the parking lot when the third shot was fired.
Once all three were in the car, Washington drove off. Some distance away, Heavy D ordered defendant out of the car. Defendant took a bus to the barbershop. A few days after the murder, he and a woman friend and his son rode a bus to Tacoma and stayed with his mother. He returned to Oakland in October and was arrested on a warrant while riding in a car driven by Scott.
Defendant gave a different statement to the police. He told them that Garrett introduced him to Heavy D, saying he was his nephew. Contrary to his trial testimony, he told the officers that he never saw Garrett with a gun in the apartment. He said that on the day of the murder, Washington picked him up at Laney College, "like she usually does." This statement was contradicted by Washington who testified that she had never picked him up at Laney College, and had given him a ride only a few times. Defendant also stated he told Washington to let him out of the car. When he arrived at the barber shop, he saw Scott, Washington, and Heavy D.
Discussion
Of the several instructional errors assigned by defendant, we focus on his contention that the trial court prejudicially erred in not instructing, sua sponte, on the target offense defendant allegedly aided and abetted.
The Target Crime
1.
In closing argument, the district attorney contended that the jury could find defendant guilty either as the perpetrator or as an aider and abettor under one of two theories: (1) that he and Heavy D went to the motel planning to kill Garrett; or (2) that the two men intended to assault Garrett and "rough him up," the natural and probable consequence of which was the murder. The district attorney suggested the evidence could support an inference that defendant and Heavy D went to kill Garrett out of revenge, i.e., first degree murder, or that they planned to injure Garrett, making them guilty under the implied malice theory of second degree murder.
The jury was instructed on premeditated first degree murder (CALJIC No. 8.20), unpremeditated second degree murder (CALJIC No. 8.30), and implied malice second degree murder based on an intentional act dangerous to human life (CALJIC No. 8.31). The trial court further instructed the jury that an aider and abettor is liable as a principal (CALJIC No. 3.00) and defined aiding and abetting (CALJIC No. 3.01). The court additionally instructed on derivative accomplice liability contained in the former version of CALJIC No. 3.02 (5th ed. 1989) as follows: "One who aids and abets is not only guilty of the particular that to his knowledge his confederates are contemplating committing, but he's also liable for the natural and probable consequences of any criminal acts that he knowingly and intentionally aided and abetted. You must determine whether the Defendant is guilty of the crime originally contemplated, and, if so, whether the crime charged was such a natural and probable consequence of such originally contemplated crime."
By refusing to return a verdict of first degree murder, the jury necessarily rejected any contention that defendant and Heavy D had planned to kill Garrett. This conclusion would also rule out a finding that he was an accomplice to unpremeditated second degree murder, an express malice crime which requires a specific intent to kill. And, though the jury was instructed on implied malice second degree murder (CALJIC No. 8.31), the evidence does not support defendant's conviction as the perpetrator, on this theory. The intentional act to which criminal liability conceivably might attach under this concept would be the act of "roughing-up" or assaulting Garrett. But that act did not result in his death. (Cf. People v. Nieto Benitez (1992) 4 Cal.4th 91, 98-99, 106-108 [13 Cal.Rptr.2d 864, 840 P.2d 969] [misdemeanor brandishing of firearm supports conviction of implied malice murder].) Since it was uncontradicted that Heavy D picked up the gun and shot Garrett, the jury must then have adopted the theory that defendant aided and abetted the target crime, which naturally and probably resulted in the murder. 2.
The jury specifically requested amplification of the aiding and abetting instructions during the second day of deliberations. In discussing jury instructions, the prosecutor observed: "This entire case is based on the theory of aiding and abetting."
The prosecutor argued that derivative accomplice liability for the natural and probable consequence of the target crime, could be based on a finding that defendant and Heavy D "went there to rough him up, to hurt him, to injure him." On appeal, defendant complains that the jury had no guidance on how to determine his guilt on a range of possible predicate offenses (e.g., simple assault, brandishing a weapon, battery and assault with a deadly weapon), and that the jury could have convicted defendant of being an accomplice to murder without ever finding that he knowingly and intentionally facilitated the predicate crime.
We agree and conclude that the court prejudicially erred in failing to define the target offense.
An accomplice's derivative liability was explained in People v. Croy (1985) 41 Cal.3d 1 [221 Cal.Rptr. 592, 710 P.2d 392]: "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 [People v. Beeman (1984) 35 Cal.3d 547, 556 (199 Cal.Rptr. 60, 674 P.2d 1318)] holds must be found by the jury." (Id. at p. 12, fn. 5, italics added.)
The version of CALJIC No. 3.02 given to the jury required them to determine "whether the defendant is guilty of the crime originally contemplated," and whether the crime ultimately committed "was a natural and probable consequence of such originally contemplated crime." The prosecutor urged that the jury could find that defendant went to the motel with Heavy D to assault or "rough up" Garrett. But at no time did the trial court define any potential target crime, nor did it instruct the jury that the target crime must be proven beyond a reasonable doubt.
It is settled law that the court must instruct, sua sponte, on the general principles of law relevant to the issues raised by the evidence which are necessary for the jury's understanding of the case. (People v. Jackson (1989) 49 Cal.3d 1170, 1199 [264 Cal.Rptr. 852, 783 P.2d 211]; People v. Wickersham (1982) 32 Cal.3d 307, 323 [185 Cal.Rptr. 436, 650 P.2d 311].) As a prerequisite to finding defendant guilty as an accomplice of the ultimate crime committed, the jury must first determine if defendant had aided and abetted the predicate crime. But here, it had no guidance about the nature or elements of that crime. It requires no extensive analysis to see that the elements of the target crime and the degree of proof needed to support the jury's determination are general principles of law necessary for the jury's understanding of its duty. The failure to so instruct, sua sponte, was error.
The 1992 revision to CALJIC No. 3.02 attempts to avoid such errors. It reads: "One who aids and abets [another] in the commission of a crime [or crimes] is not only guilty of [that crime] [those crimes], but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime[s] originally aided and abetted. [¶] In order to find the defendant guilty of the crime[s] of ___, [as charged in Count[s] ___,] you must be satisfied beyond a reasonable doubt that: [¶] (1) The crime [or crimes] of ___ [was] [were] committed, [¶] (2) The defendant aided and abetted such crime[s], [¶] (3) A co-principal in such crime committed the crime[s] of ___, and [¶] (4) The crime[s] of ___ was a natural and probable consequence of the commission of the crime[s] of ___." (5th ed. pocket pt.)
Importantly, the use note to that instruction observes that all crimes encompassed in this instruction must be defined. (Use Note to CALJIC No. 3.02 (1992 rev.) (5th ed. 1994 pocket pt.) p. 30.)
We appreciate that the trial judge did not have the benefit or the revised instruction when this case was tried in January 1992 and that the grounds for objection now raised were not then presented. Nevertheless, we must consider the issue. (People v. Croy, supra, 41 Cal.3d at p. 12.)
In the recent decision of People v. Mouton (1993) 15 Cal.App.4th 1313 [19 Cal.Rptr.2d 423], review denied August 19, 1993 (S033582), Division Three of this court reached the same conclusion. There, the defendant accompanied the gunman (Jackson) to an apartment complex following an earlier argument with some residents. The prosecutor argued that the resulting murder was the natural and probable consequence of their plan to " 'make a show of force, to back up their home boy,' to exhibit their weapons in a 'challenging way to anyone who would get in their face at Apartment 140.' " She suggested the target crime might have been " 'to carry a concealed weapon, ... to brandish a weapon, to exhibit, to point a weapon, which is also a crime, pointing, assaulting with a deadly weapon, or even to shoot at the apartment at 140 ....' " (Id. at p. 1318.) It was not proven that defendant was personally armed.
The trial court did not define the target offenses for the jury, nor did it inform them that the offense(s) must be proved beyond a reasonable doubt. The court held that failure to define the crime of assault, the legal definition of which is not commonly understood by the average juror, was prejudicial error. (People v. Mouton, supra, 15 Cal.App.4th at p. 1320.) The court reasoned: "In the instant case, not having been instructed on this element, the jury could have determined the target crime was assault with a deadly weapon, without making the necessary determinations first, that Jackson intended to commit a battery and second, that defendant, as required for aider and abettor liability, intentionally assisted Jackson with knowledge he intended to commit a battery." (Id. at p. 1319.)
We agree with the holding in Mouton, and conclude that failure to instruct on the elements of the target offense was error. (See also People v. Woods (1992) 8 Cal.App.4th 1570, 1586 [11 Cal.Rptr.2d 231] [jury must utilize the same four-part analysis set forth in 1992 version of CALJIC No. 3.02].)
At oral argument and in their post argument letter brief, the People claim that this court's decision in People v. Brigham (1989) 216 Cal.App.3d 1039 [265 Cal.Rptr. 486], supports their contention that derivative accomplice liability does not require the jury unanimously to agree on a specific predicate crime, so long as the jury was instructed that it must find the charged offense was the natural and probable consequence of the predicate crime. This case does not bear on the issue before us.
In Brigham, supra, the defendant armed himself and accompanied the perpetrator in an attempt to find and shoot a person identified as Chuckie, an enemy of his group. Defendant's companion intentionally killed an innocent bystander despite defendant's entreaties to stop because the youth was not Chuckie. (216 Cal.App.3d at pp. 1044-1045.) Defendant contended the trial court erred in refusing to amend the aiding and abetting instructions (CALJIC Nos. 3.00 and 3.02 with language from CALJIC No. 6.15 (liability for independent acts of coconspirators), to provide that an aider and abettor is not derivatively liable for an act of a perpetrator which is an "independent product" of the perpetrator's own mind and is outside the common design and not in furtherance of that design. (216 Cal.App.3d at pp. 1046, fn. 3, and 1050, fn. 10.)
This court's majority opinion held that the principles behind coconspirator liability were inapplicable to aiding and abetting based on derivative liability theory. We concluded that derivative liability turns on the factual determination of whether the ultimate crime is the natural and probable consequence of the criminal act encouraged and facilitated by the defendant. We reasoned that it is irrelevant, in this analysis, whether the principal's criminal act was intentional or whether it differed from the offense defendant agreed to facilitate. (People v. Brigham, supra, 216 Cal.App.3d at pp. 1050-1051.) The court held that a subjective inquiry into "whether the perpetrator's committed crime was the 'independent product' of his mind" was improper "because the ultimate factual determination of the jury as to the liability of an aider and abettor is based instead on an objective analysis of causation; i.e., whether the committed crime was the natural and probable consequence of the principal's criminal act the aider and abettor knowingly encouraged or facilitated." (Id. at p. 1051.)
The Brigham decision does not address the issue concerning us-whether the jury must be instructed on the predicate crime-and it does not disparage the former aider and abettor instructions which are similar to those given in this case. (216 Cal.App.3d at pp. 1045-1046, fn. 2.) In fact, the revised language was cited approvingly. (Id. at p. 1050, fn. 11.) The conclusion in Brigham that the act ultimately committed may be different from and not be in furtherance of the originally contemplated act, and yet produce a foreseeable result from the act aided and abetted (id. at p. 1054), does not eliminate the need for the jury to determine if defendant aided and abetted the originally contemplated crime. People v. Brigham simply is inapposite.
The People contend that CALJIC No. 3.02, as revised, is simply wrong. Specifically, they argue: "It is immaterial whether the defendant or the perpetrator contemplated a specific 'target crime,' whether they agreed on such a crime (i.e., committed the crime of conspiracy), whether either the defendant or the perpetrator or both intended to commit the 'target crime,' or whether any such 'target crime' took place. It is also immaterial whether the defendant knew, when he acted to aid the principals, what if any crime they intended to commit. Finally, it is immaterial whether the defendant intended to commit the ultimate crime." (Fn. omitted.)
Except for the last sentence, the People's position is untenable. [4] Derivative accomplice liability for the natural and probable consequences of the target offense depends wholly on the knowing and intentional promotion or assistance of the originally contemplated crime. As People v. Beeman (1984) 35 Cal.3d 547 [199 Cal.Rptr. 60, 674 P.2d 1318] instructs: "[T]he weight of authority and sound law require proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (Id. at p. 560, italics in original.) The People's theory-the perpetrator and accomplice need not intend to commit the same target crime, or that the target crime need not be committed at all-undermines the very foundation of accomplice liability.
The recent case of People v. Solis (1993) 20 Cal.App.4th 264 [25 Cal.Rptr.2d 184], review denied March 3, 1994 (S037139), supports the People's interpretation. The Solis court expressly rejected Mouton, supra, and held that derivative liability for second degree murder may be based on a target crime of misdemeanor brandishing of a firearm, so long as it can be said that "the ultimate crime be a 'natural and reasonable consequence' of the predicate offense." (20 Cal.App.4th at p. 272.) Instructions as to the target offense were deemed unnecessary so long as the evidence demonstrates that the activity was criminal. (Id. at p. 273.)
It is useful to quote the court's reasoning in full: "Accordingly, the finder of fact need identify the nature of the predicate offense only in a generalized manner, reaching a conclusion that some 'criminal' or 'nefarious' conduct was intended by the defendant. The intent required to be shown respecting the predicate criminal act is only 'the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the [predicate] offense.' [Citation.] Further, it is not necessary to provide instructions as to the possible predicate crimes, which may or may not have been committed but are uncharged and irrelevant to the offense ultimately committed and charged. [Citation.] [¶] The reason we need not focus on the specifics of the predicate offense (at least where it is not a charged offense) is that the legal elements of the predicate offense are irrelevant 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 offenses depends not on crime definitions but on the specific facts of each offense. In this case, for instance, the jury was obliged to consider whether a plan to drive by the Linda Vista youths with a passenger equipped with a firearm, who could be expected to either brandish or fire the gun into the air, should objectively have raised in the mind of the aider the expectation of a possible homicide (including in this consideration the background of animosity that existed between the two groups). It makes no difference to this deliberation whether the drive-by and use of the gun be deemed misdemeanor brandishing, assault with a deadly weapon, or any other possible definitional crime. So long as it is understood that the activity is in fact in some way criminal (which is not disputed) there is no need to focus on the legal definition of the elements of the predicate crime." (People v. Solis, supra, 20 Cal.App.4th at pp. 273-274.) This same issue is currently before our Supreme Court in People v. Prettyman (1994) 24 Cal.App.4th 211, 217 [29 Cal.Rptr.2d 299], review granted June 30, 1994 (S040008), which was authored by the same justice who authored People v. Solis.)
We find the same flaw with the Solis analysis as we found with the People's argument-the jury is not given any direction to aid them in finding if the target crime, or any predicate crime, has been committed. To permit a jury to determine the predicate offense only in a "generalized" manner is an unprincipled concept which provides no meaningful guidance. (People v. Solis, supra, 20 Cal.App.4th at pp. 273-274.) Such an amorphous rule blurs any determination that there existed a concurrence of defendant's act and criminal intent. (See CALJIC Nos. 3.30, 3.31.) It also would make it difficult for the jurors to assess, with any consistency, if the ultimate crime is the natural and probable consequence of the crime intentionally aided and abetted.
Derivative accomplice liability depends on the accomplice's intent to aid and abet the originally contemplated predicate offense. (See People v. Beeman, supra, 35 Cal.3d at p. 560 ["The liability of an aider and abettor extends also to the natural and reasonable consequences of the acts he knowingly and intentionally aids and encourages."].) If the perpetrator committed an offense which was different from the crime the accomplice intentionally assisted or promoted, or which was no crime at all, the accomplice cannot automatically be held derivatively liable for the natural and probable consequences of that act, unless it was also found to be the natural and probable result of the act that he intentionally aided and abetted. Any other result would broaden the definition of who is an accomplice beyond the justifiable limits of extended criminal responsibility. As the court in People v. Jones (1989) 207 Cal.App.3d 1090 [255 Cal.Rptr. 464] observed: "The critical element which must be found to establish vicarious liability for the targeted offense is the aider and abettor's intent to facilitate and encourage that offense.... [Another] critical element which must be found to establish vicarious liability for an unplanned offense is that the offense was in fact a natural and probable consequence of the targeted offense." (Id. at p. 1096, internal citations omitted.) Without knowing what the elements of the planned offenses are, a jury cannot intellige ntly resolve either one of these critical factual issues. Accordingly, we decline to follow People v. Solis, and instead, adopt the reasoning of our colleagues in People v. Mouton. Prejudice
Respondent's post argument letter brief, citing People v. Salvato (1991) 234 Cal.App.3d 872 [285 Cal.Rptr. 837], expresses great concern that where the target offense is not also charged, the defense could force the prosecution at the earliest possible time, "to identify the discrete uncharged criminal act upon which the prosecution relies as the target offense, to be tried, as it were, in absentia. If so, the defendant might be entitled as well to seek limiting instructions, if not exclusion, for other predicate uncharged criminal conduct aided and abetted, to which the charged offense is a reasonably foreseeable consequence." (Italics in original.) We do not see cause for such concern nor the "confusing path" respondent claims. First, Salvato is neither a murder case nor does it involve aiding and abetting criminal liability. It stands for the unremarkable rule that where numerous and distinct acts may support a charged offense, that upon request by the defense the prosecution may be required to elect the specific act or acts upon which it will rely to prove the charge. (234 Cal.App.3d at p. 879; cf. CALJIC No. 17.01.) We are not asked to extend the language in Salvato to a situation which it did not consider. Nevertheless, we do not perceive great difficulty in prosecutors identifying the originally contemplated predicate crime, something which must be done when that crime is also charged. (See, e.g., People v. Hammond (1986) 181 Cal.App.3d 463, 469 [226 Cal.Rptr. 475] [defendant charged with predicate crime of robbery and ultimate offense of murder].)
We also conclude that the error was reversible per se. [7] The trial court's duty to instruct, sua sponte, on the general principles of law relevant to the case requires instructions on all of the elements of the charged offense. (See People v. Cummings (1993) 4 Cal.4th 1233, 1311-1312 [18 Cal.Rptr.2d 796, 850 P.2d 1] [failure to instruct on four out of the five elements of robbery is federal constitutional error and is automatically reversible].) Although defendant was not charged with the crime of assaulting Garrett, we see no legal distinction between the situation where the defendant is charged with both the predicate crime and the ultimate crime, or, as in this case, when the defendant is charged only with the ultimate crime. In the former scenario, defendant would be entitled to an instruction of the elements of the predicate offense as a matter of due process. In our view, such an instruction is just as important to the defendant's federal constitutional right to have the People prove beyond a reasonable doubt every fact necessary to the crime charged, as when the predicate offense is not charged. (See generally, Sandstrom v. Montana (1979) 442 U.S. 510, 520 [61 L.Ed.2d 39, 48-49, 99 S.Ct. 2450] [due process requires the jury to determine all elements of the offense beyond a reasonable doubt].) Since the court's failure to instruct on the elements of the target offense was total, we conclude the error must be deemed reversible per se. (See People v. Acero (1984) 161 Cal.App.3d 217, 228-229 [208 Cal.Rptr. 565] [failure to instruct on specific intent to kill in prosecution of defendant as accomplice to attempted murder is reversible per se]; Cummings, supra, 4 Cal.4th at p. 1315 [instructional error which precludes jury consideration of an element of an offense is automatically reversible].)
Even if we viewed this constitutional error under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065], we would conclude that the error was prejudicial. (Cf. People v. Jones, supra, 207 Cal.App.3d 1090 [failure to instruct jury that it must determine whether crime charged was a natural and probable consequence of target crime harmless under Chapman standard].) No other jury instructions were given from which the jury could find the necessary elements of the target offense. (See People v. Sedeno (1974) 10 Cal.3d 703, 720-721 [112 Cal.Rptr. 1, 518 P.2d 913] [failure to instruct, sua sponte, on lesser included offense was harmless because jury had rejected that crime under other, properly given instructions].) Nor can we say with any confidence, that the jury made factual findings under proper instructions, from which they could only conclude that the target crime of assault was committed. (See Carella v. California (1988) 491 U.S. 263, 271 [105 L.Ed.2d 218, 225-226, 109 S.Ct. 2419] (conc. opn. of Scalia, J.) [error in instructing on a conclusive presumption is harmless where "no rational jury could find those [predicate] facts without also finding the ultimate fact ...."].)
In light of our conclusion that this error was reversible, it is unnecessary to address defendant's remaining contentions.
The judgment is reversed.
Kline, P. J., and Smith, J., concurred.