Filed 10/10/14 P. v. Prado CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064289
Plaintiff and Respondent,
v. (Super. Ct. No. SCD241085)
JUAN ALBERTO PRADO et al.,
Defendants and Appellants.
APPEALS from a judgment of the Superior Court of San Diego County, Joan P.
Weber, Judge. Affirmed.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and
Appellant Juan Alberto Prado.
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and
Appellant James John Rivas.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Eric A.
Swenson, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted defendants Alberto Prado and John Rivas of three counts of
premeditated attempted murder (Pen. Code, §§ 664/187, subd. (a), 189)1 involving three
victims: Mr. Monroe (count 1), Mr. Moats (count 2) and Mr. Slaughter-Cook (count 3).
The jury also found true Rivas personally used a knife in count 1 and Prado personally
used a knife in counts 2 and 3 (§ 12022, subd. (b)(1)), and that Rivas personally inflicted
great bodily injury in count 1 and Prado personally inflicted great bodily injury in count
3, within the meaning of sections 12022.7, subdivision (a), and 1192.7.2
On appeal, defendants contend the judgment must be reversed as to all counts
because the instruction on attempted murder was prejudicially erroneous by equating the
aider and abettor's so-called "direct act" with his intent. Prado also contends the "natural
and probable consequences" portions of the aider and abettor instructions were erroneous
under Alleyne v. United States (2013) ___ U.S. ___ [133 S.Ct. 2151] (Alleyne) and/or
People v. Chiu (2014) 59 Cal.4th 155 (Chiu). Finally, Prado contends the instructions
inadequately informed the jury it could find him guilty of aiding and abetting attempted
voluntary manslaughter.
1 All further statutory references are to the Penal Code unless otherwise specified.
2 The jury also convicted defendants of one count of assault with a deadly weapon as to the victim Slaughter-Cook (count 4) and, in a bifurcated proceeding, Prado and Rivas admitted the truth of certain allegations of prior prison terms, prior serious felonies and prior strike convictions. The present appeal raises no issues as to these convictions and true findings. 2 I
FACTS
In the early morning hours of May 25, 2012, a group of homeless people,
including Messrs. Monroe, Moats, Slaughter-Cook and Parker, were sleeping near the
San Diego Public Library when they were awakened by Rivas, who was mumbling to
himself and banging a stick on an iron fence across the street. Slaughter-Cook yelled at
Rivas to "shut the fuck up" and Rivas yelled back at him. Monroe, Slaughter-Cook and
Parker crossed the street and confronted Rivas, and an altercation ensued during which
Slaughter-Cook punched Rivas, causing him to fall to the ground, and the others tried to
kick and punch Rivas. He was able to get to his feet, stated "you did me dirty, I'll be
back," and left. Monroe, Slaughter-Cook and Parker then returned to their sleeping spot.
Approximately 15 minutes later, Rivas returned to the library with Prado. Parker
heard one of them say, "That's him in the white blanket," and saw Rivas and Prado (each
holding a knife in his hand) walk up to Moats and start trying to stab him through the
blanket.3 Moats got out of his blankets, screaming they had the wrong person and asking
what he had done, and Prado responded "you did something to my friend." Prado swung
a hooked knife at Moats; Parker came to Moats's aid and tried to disarm Prado.
Meanwhile, Slaughter-Cook was awakened by Monroe's screams that "they're
stabbing me." Slaughter-Cook heard Rivas tell Monroe "you did me dirty, I'm going to
kill you," and saw Rivas (straddling Monroe as he lay on the ground in a sleeping bag)
3 The blanket protecting Moats was a thick, quilt-like blanket, and Moats testified it sustained multiple puncture holes during the attack. 3 making downward motions with the knife at Monroe's upper body. Slaughter-Cook ran
to aid Monroe and kicked Rivas, then grabbed him from behind and tried to wrestle the
knife from his hand. He punched and bit Rivas and the two men wrestled to the ground.
Prado then ran up to Slaughter-Cook and stabbed Slaughter-Cook in the back. Slaughter-
Cook told his friends to "handle the dude" that had stabbed him.
As Slaughter-Cook struggled with Rivas, Parker and Moats grabbed Prado and,
after Monroe joined the fray, they were able to disarm Prado. Slaughter-Cook was then
able to strike Rivas several times, disarming him before he fled. Slaughter-Cook threw
the knife toward the library. Meanwhile, Prado asked the men to let him leave because
the police would be coming. When they released him, Prado also fled. Slaughter-Cook
called 911.
When officers arrived, the group gave the officers one knife and directed them to
the front of the library, where they found a second knife. Blood and DNA on the knives
belonged to Slaughter-Cook and Monroe. Slaughter-Cook had a stab wound in his back
and had trouble breathing because of a collapsed lung. Monroe had a stab wound to the
upper left arm and a cut on his head. Moats had cuts on his hands along with other
injuries.
4 II
ANALYSIS
A. CALCRIM No. 600 Adequately States the Applicable Principles
Defendants first claim all of the convictions must be reversed because the jury was
given a modified version of CALCRIM No. 600 on attempted murder and the instruction
was prejudicially incorrect. The trial court's instruction provided:
"To prove that a defendant is guilty of attempted murder, the People must prove one, the defendant took at least one direct but ineffective step toward killing another person and, two, the defendant intended to kill a person. [¶] . . . [¶]
"A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. [¶] A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt." (Italics added.)
The first paragraph of the instruction correctly states the law (People v. Lee (2003)
31 Cal.4th 613, 623 ["Attempted murder requires the specific intent to kill and the
commission of a direct but ineffectual act toward accomplishing the intended killing."]
(Lee)) and defendants do not contend otherwise. Instead, they contend the italicized
language in the second paragraph was prejudicially incorrect because it in effect instructs
the jury that a direct step equals an intent to kill, and therefore once the jury found the
"direct step" element, they would not need separately to determine the "intent" element.
5 Defendants acknowledge this identical argument was rejected by the court in
People v. Lawrence (2009) 177 Cal.App.4th 547, but argue we should not follow
Lawrence because it was wrongly decided. The Lawrence court, rejecting the same
argument, concluded the challenged language was substantively identical to the language
approved by the Supreme Court in People v. Dillon (1983) 34 Cal.3d 441, 452-453, and
also explained:
"When the challenged portion of CALCRIM No. 600 is considered in context, it is clear there is no reasonable likelihood jurors understood it as appellant asserts. [Citations.] The instruction as a whole makes it clear that in order to find an attempt, the jury must find two distinct elements: an act and an intent. These elements are related; usually, whether a defendant harbored the required intent to kill must be inferred from the circumstances of the act. [Citation.] Read in context, it is readily apparent the challenged language refers to the act that must be found, and is part of an explanation of how jurors are to determine whether the accused's conduct constituted the requisite direct step or merely insufficient planning or preparation." (Id. at p. 557.)
We agree with Lawrence that, viewed in context of both the instruction itself and
the entire charge to the jury, CALCRIM No. 600 adequately instructed the jury there
were two elements (the mens rea and the actus reas) the jury needed to separately
determine, and the italicized language referred to the latter element and was part of
explaining how jurors were to determine whether defendants' conduct constituted the
requisite direct step as distinguished from mere insufficient planning or preparation.
B. Any Alleged Deficiency in the Aider and Abettor Instructions Was Harmless
Prado argues the aider and abettor instructions, insofar as those instructions
enabled the jury to employ the "natural and probable consequences" doctrine to convict
6 him of aiding and abetting Rivas's attempted premeditated murder under section 654,
subdivision (a), as permitted under People v. Favor (2012) 54 Cal.4th 868 (Favor), were
prejudicially erroneous because the rationales of Alleyne, supra, ___ U.S. ___ [133 S.Ct.
2151] and Chiu, supra, 59 Cal.4th 155 have undermined the continued vitality of Favor.4
Prado acknowledges that, under the majority opinion in Favor, the jury was properly
instructed and could properly convict him of attempted premeditated murder under the
natural and probable consequences doctrine. However, Prado asserts that, after Alleyne
and Chiu, a jury can never convict an aider and abettor of the nontarget offense of
attempted premeditated murder under the natural and probable consequences doctrine,
but instead may only convict the aider and abettor of attempted second degree murder
under that doctrine. Prado alternatively asserts at a minimum that, after Alleyne, a jury
cannot convict an aider and abettor of the nontarget offense of attempted premeditated
murder under the natural and probable consequences doctrine unless the jury is instructed
4 Rivas does not raise these claims as to his own convictions, except insofar as he generically states that he "joins in all arguments raised by [Prado] which may accrue to [Rivas's] benefit, and are not inconsistent with the above arguments raised by [Rivas]." In an analogous case involving aider and abettor principles, the court in People v. Nero (2010) 181 Cal.App.4th 504, 510, footnote 11 observed that "[a]lthough Nero, in his reply brief, joined in the arguments advanced by Brown, he did not supply any additional argument on the issue of aider and abettor liability as it applied to his unique circumstance. Joinder may be broadly permitted [citation], but each appellant has the burden of demonstrating error and prejudice [citations]. To the extent Nero's cursory joinder was an attempt to raise the aider and abettor issue, his reliance solely on Brown's arguments and reasoning is insufficient to satisfy his burden on appeal. We therefore consider the aider and abettor issue only as to Brown." Similarly, Rivas makes no effort to show either the instructions were erroneous under the facts as to his conduct, or how he was prejudiced by such alleged error. Accordingly, we consider the aider and abettor issues raised by Prado only as to Prado's convictions. 7 it must first find the premeditated murder was a natural and probable consequence of the
target offense and, because the jury was not so instructed in this case, reversal of his
convictions is required.
1. The Legal Landscape of Aider and Abettor Liability: Favor, Alleyne & Chiu
Favor
An aider and abettor may be convicted for crimes committed by the direct
perpetrator under two alternative theories: direct aiding and abetting principles and the
natural and probable consequences doctrine. (People v. McCoy (2001) 25 Cal.4th 1111,
1117-1118.) Under direct aiding and abetting principles, the defendant is guilty of the
intended (or target) offense if he or she acted with knowledge of the criminal purpose of
the direct perpetrator and with an intent or purpose either of committing, or of
encouraging or facilitating commission of, the target offense. (Id. at p. 1118.) However,
an aider and abettor can also be guilty of unintended crimes under the natural and
probable consequence doctrine: when the aider and abettor acts with knowledge of the
criminal purpose of the direct perpetrator and with an intent or purpose either of
committing, or of encouraging or facilitating commission of, the target offense, he or she
is guilty of both the intended crime and any other offense (the nontarget offense)
committed by his or her confederate that was a "natural and probable consequence" of the
target crime that he or she aided and abetted. (Id. at p. 1117.)
In Favor, supra, 54 Cal.4th 868, the court examined whether an aider and abettor
who knew of and intended to facilitate the target offense of robbery could be convicted of
the nontarget offense of attempted premeditated murder under the natural and probable
8 consequences doctrine if the direct perpetrator committed an attempted murder and such
an attempted murder was a natural and probable consequence of the target crime, without
the jury needing to find that premeditation also be a natural and probable consequence of
the robbery, or whether the jury must be instructed that attempted premeditated murder
(not just attempted murder) was a natural and probable consequence of the target offense.
(Id. at p. 872.) The Favor court, relying on its earlier decisions in People v. Bright
(1996) 12 Cal.4th 652 (Bright) (disapproved on other grounds by People v. Seel (2004)
34 Cal.4th 535, 550, fn. 6) and Lee, supra, 31 Cal.4th 613, concluded that because
section 664, subdivision (a), does not create different offenses of attempted premeditated
murder and attempted unpremeditated murder, but is merely a penalty provision imposing
a greater punishment for an attempt to commit a murder that is premeditated, the trial
court need only instruct (as to aiders and abettors under the natural and probable
consequences doctrine) that the jury must find the commission of an attempted murder
was a natural and probable consequence of the target crime of robbery to affix liability
for the ultimate crime on the aider and abettor, and premeditation is not a required
component of the aider and abettor's mental state. Instead, Favor concluded because
section 664, subdivision (a)'s penalty provision requires only that the attempted murder
itself was willful, deliberate, and premeditated, it is only necessary the attempted murder
be committed by one of the perpetrators with the requisite premeditation. Because the
jury does not decide the truth of the penalty premeditation allegation until it first has
reached a verdict on the substantive offense of attempted murder, Favor concluded that,
"with respect to the natural and probable consequences doctrine as applied to the
9 premeditation allegation under section 664[, subdivision] (a), attempted murder―not
attempted premeditated murder―qualifies as the nontarget offense to which the jury must
find foreseeability. Accordingly, once the jury finds that an aider and abettor, in general
or under the natural and probable consequences doctrine, has committed an attempted
murder, it separately determines whether the attempted murder was willful, deliberate,
and premeditated." (Favor, at pp. 879-880.)
Thus, after Favor, it appears the jury assesses the aider and abettor's potential
liability for the heightened penalties provided by section 654, subdivision (a), under the
natural and probable consequences doctrine using a two-step inquiry: first, the jury
evaluates whether an attempted murder (regardless of the actual perpetrator's
premeditation) was a forseeable nontarget offense; if it so finds, the jury then separately
determines whether the attempted murder was committed by the perpetrator with the
requisite willfulness, deliberateness, and premeditation. If it find affirmatively on both
inquiries, the aider and abettor is subject to the heightened penalties provided by section
654, subdivision (a), for attempted premeditated murder.
Alleyne
In Alleyne, supra, ___ U.S. ___ [133 S.Ct. 2151], the court expanded on its
previous decision in Apprendi v. New Jersey (2000) 530 U.S. 466 in the context of a
statutory scheme that imposed enhancements to a sentence for a defendant who "uses or
carries a firearm" in relation to a "crime of violence." (Alleyne, at pp. 2155-2156.)
Under the statute, the defendant must be sentenced to a term of not less than five years
for that conduct, but also provided for a term of not less than seven years if the firearm
10 was brandished and a term of not less than 10 years if the firearm was discharged. (Ibid.)
The jury found the defendant " '[u]sed or carried a firearm during and in relation to a
crime of violence' but did not indicate a finding that the firearm was 'brandished.' " (Id.
at p. 2156.) However, the trial court sentenced the defendant to seven years, concluding
brandishing was not an element the jury was required to determine beyond a reasonable
doubt but was instead a sentencing factor the trial court could find by a preponderance of
the evidence. (Ibid.) The Alleyne court reversed, declaring Apprendi established that a
fact "is by definition an element of the offense and must be submitted to the jury if it
increases the punishment above what is otherwise legally prescribed" for purposes of the
maximum term a defendant is to be punished, and Alleyne concluded this same definition
applied to facts that also increase the mandatory minimum sentence. (Alleyne, at
p. 2158.)
Chiu
In Chiu, supra, 59 Cal.4th 155, the court addressed whether an aider and abettor
who knew of and intended to facilitate a target offense could be convicted of the
nontarget offense of premeditated murder under the natural and probable consequences
doctrine if the direct perpetrator committed premeditated murder and premeditated
murder was a natural and probable consequence of the target crime. The Court of Appeal
held it was prejudicially erroneous not to instruct the jury it was necessary to find the first
degree premeditated murder actually committed by the perpetrator was a natural and
probable consequence of the target offense, and therefore reversed the conviction. Chiu
went further and held that, although an aider and abettor may be convicted of
11 premeditated murder under direct aiding and abetting principles, an aider and abettor
cannot be convicted of the nontarget offense of first degree premeditated murder under
the natural and probable consequences doctrine. (Id. at pp. 158-159.)
Chiu began by noting the court had not considered aider and abettor liability for
first degree premeditated murder under the natural and probable consequences doctrine.
It acknowledged its decision in Favor held that, under the natural and probable
consequences doctrine as applied to the premeditation allegation under section 664,
subdivision (a), a trial court need only instruct that the jury find attempted murder (not
attempted premeditated murder) was a foreseeable consequence of the target offense, and
the premeditation finding (based on the direct perpetrator's mens rea) was to be
determined after the jury decided the nontarget offense of attempted murder was
foreseeable. However, Chiu explained Favor's analysis turned on the reasoning in
Bright, supra, 12 Cal.4th 652 (which held § 664, subd. (a), imposed an increased
punishment for an attempt to commit a premeditated murder, was a penalty provision and
did not create a greater offense or degree of attempted murder) and in Lee, supra, 31
Cal.4th 613, which construed the language of section 664, subdivision (a), to evince a
legislative intent to apply section 664, subdivision (a)'s enhanced penalties to all aiders
and abettors (even those who did not personally act with premeditation) and reasoned the
direct perpetrator's more culpable state of mind would be a sufficient basis upon which to
apply section 664, subdivision (a)'s penalty provision to an aider and abettor under the
natural and probable consequences doctrine. (Chiu, supra, 59 Cal.4th at pp. 162-163.)
12 The Chiu court, however, rejected the government's argument to follow Favor and
apply the same reasoning to an aider and abettor charged with premeditated murder. The
Chiu court, explaining its grounds for distinguishing and not applying Favor, stated:
"[Favor is] distinguishable in several respects. Unlike Favor, the issue in the present case does not involve the determination of legislative intent as to whom a statute applies. Also, unlike Favor, which involved the determination of premeditation as a requirement for a statutory penalty provision, premeditation and deliberation as it relates to murder is an element of first degree murder. In reaching our result in Favor, we expressly distinguished the penalty provision at issue there from the substantive crime of first degree premeditated murder on the ground that the latter statute involved a different degree of the offense. [Citing Favor, supra, 54 Cal.4th at pp. 876- 877.] Finally, the consequence of imposing liability for the penalty provision in Favor is considerably less severe than in imposing liability for first degree murder under the natural and probable consequences doctrine. Section 664[, subdivision] (a) provides that a defendant convicted of attempted murder is subject to a determinate term of five, seven, or nine years. If the jury finds the premeditation allegation true, the defendant is subject to a sentence of life with the possibility of parole. [Citation.] With that life sentence, a defendant is eligible for parole after serving a term of at least seven years. (§ 3046, subd. (a)(1).) On the other hand, a defendant convicted of first degree murder must serve a sentence of 25 years to life. (§ 190, subd. (a).) He or she must serve a minimum term of 25 years before parole eligibility. (§ 3046, subd. (a)(2).) A defendant convicted of second degree murder must serve a sentence of 15 years to life, with a minimum term of 15 years before parole eligibility. (§§ 190, subd. (a), 3046, subd. (a)(2).)" (Chiu, supra, 59 Cal.4th at p. 163.)
Chiu then articulated its reasons for concluding, as a matter of first impression,
that an aider and abettor cannot be convicted of the nontarget offense of first degree
premeditated murder under the natural and probable consequences doctrine. (Chiu,
supra, 59 Cal.4th at pp. 163-167.) Chiu noted the natural and probable consequences
doctrine is a common law doctrine "firmly entrenched in California law" (id. at p. 163)
13 but, because it is not part of the statutory scheme, the court "may . . . determine the extent
of aiding and abetting liability for a particular offense, keeping in mind the rational
function that the doctrine is designed to serve and with the goal of avoiding any
unfairness which might redound from too broad an application." (Id. at p. 164.)
Chiu recognized that aider and abettor culpability under the natural and probable
consequences doctrine "is vicarious in nature" because it 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.'
[Quoting People v. Canizalez (2011) 197 Cal.App.4th 832, 852]." (Chiu, supra, 59
Cal.4th at p. 164.) Chiu explained the natural and probable consequences doctrine is
based on the principle that liability extends to reach " 'the actual, rather than the planned
or "intended" crime, committed on the policy [that] . . . aiders and abettors should be
responsible for the criminal harms they have naturally, probably, and foreseeably put in
motion.' [Quoting People v. Luparello (1986) 187 Cal.App.3d 410, 439.]" (Id. at p. 164,
italics added by Chiu.) Chiu concluded that, because the application of the natural and
probable consequences doctrine does not depend on the foreseeability of every element of
the nontarget offense but instead (at least in the context of murder under the natural and
probable consequences doctrine) has focused on the reasonable foreseeability of the
14 actual resulting harm, "the legitimate public policy concern of deterring aiders and
abettors from aiding or encouraging the commission of offenses that would naturally,
probably, and foreseeably result in an unlawful killing . . . is served by holding them
culpable for the perpetrator's commission of the nontarget offense of second degree
murder." (Id. at p. 165.)
Chiu declared that limiting aider and abettor liability under the natural and
probable consequences doctrine to second degree murder is:
"consistent with reasonable concepts of culpability. Aider and abettor liability under the natural and probable consequences doctrine does not require assistance with or actual knowledge and intent relating to the nontarget offense, nor subjective foreseeability of either that offense or the perpetrator's state of mind in committing it. [Citation.] It only requires that under all of the circumstances presented, a reasonable person in the defendant's position would have or should have known that the nontarget offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. [Citation.] [¶] However, this same public policy concern loses its force in the context of a defendant's liability as an aider and abettor of a first degree premeditated murder. First degree murder, like second degree murder, is the unlawful killing of a human being with malice aforethought, but has the additional elements of willfulness, premeditation, and deliberation which trigger a heightened penalty. [Citation.] That mental state is uniquely subjective and personal. It requires more than a showing of intent to kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death. [Citations.] Additionally, whether a direct perpetrator commits a nontarget offense of murder with or without premeditation and deliberation has no effect on the resultant harm. The victim has been killed regardless of the perpetrator's premeditative mental state. Although we have stated that an aider and abettor's 'punishment need not be finely calibrated to the criminal's mens rea' [quoting Favor, supra, 54 Cal.4th at p. 878], the connection between the defendant's culpability and the perpetrator's premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and
15 probable consequences doctrine, especially in light of the severe penalty involved and the above stated public policy concern of deterrence." (Chiu, supra, 59 Cal.4th at pp. 165-166, italics added.)
However, Chiu cautioned that aiders and abettors could still be convicted of first
degree premeditated murder based on direct aiding and abetting principles if the
prosecution showed the defendant aided or encouraged the commission of the murder
with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose
of committing, encouraging, or facilitating its commission. Accordingly, Chiu turned to
an examination of whether erroneously instructing the jury that an aider and abettor could
be convicted of the nontarget offense of first degree premeditated murder under the
natural and probable consequences doctrine was harmless error. Chiu applied the
familiar principles that, "[w]hen a trial court instructs a jury on two theories of guilt, one
of which was legally correct and one legally incorrect, reversal is required unless there is
a basis in the record to find that the verdict was based on a valid ground. [Citations.]
Defendant's first degree murder conviction must be reversed unless we conclude beyond
a reasonable doubt that the jury based its verdict on the legally valid theory that
defendant directly aided and abetted the premeditated murder." (Chiu, supra, 59 Cal.4th
at p. 167.) Chiu ultimately concluded that, because the record showed the jury could
have based its verdict on the erroneous natural and probable consequences doctrine,
reversal was required.
2. Prado's Arguments of Error
Prado asserts that, even before Chiu, Favor's approach was of dubious validity
because it rested on the analysis of Bright, supra, 12 Cal.4th 652, and Lee, supra, 31
16 Cal.4th 613, which viewed section 664, subdivision (a), as a penalty provision rather than
as creating a distinct or different offense. He argues Alleyne, by eviscerating that
distinction and requiring a jury to determine every element necessary to applying an
enhanced penalty to a defendant, in effect determined the approach approved by Favor
violated federal constitutional protections because Favor's approach permitted an aider
and abettor to be punished for premeditated attempted murder without having the jury
decide whether the aider and abettor personally premeditated an offense, or even whether
the aider and abettor reasonably could have foreseen a nontarget offense encompassing
premeditation.
More importantly, Prado urges us to recognize that the analysis employed by the
Chiu court applies with equal force to aider and abettor liability for attempted
premeditated murder under the natural and probable consequences doctrine. Although
Prado acknowledges Chiu's discussion of Favor involved distinguishing (rather than
expressly disapproving) Favor, Prado asserts the grounds articulated in Chiu for
distinguishing Favor's treatment of aider and abettor liability for attempted premeditated
murder under the natural and probable consequences doctrine cannot withstand serious
scrutiny, and argues we should therefore construe Chiu as overruling Favor sub silencio
and precluding of aider and abettor liability for attempted premeditated murder under the
natural and probable consequences doctrine notwithstanding Favor.
3. Any Error Was Harmless
Prado presents cogent arguments that, considering Chiu, the jury was
misinstructed on aider and abettor liability for attempted premeditated murder under the
17 natural and probable consequences doctrine. However, we conclude it is unnecessary to
definitively determine whether Chiu overruled Favor sub silencio because, even
assuming the jury was misinstructed on aider and abettor liability under the natural and
probable consequences doctrine for the attempted premeditated murder of Monroe,5 we
are convinced beyond a reasonable doubt that any such purported error must be deemed
harmless. (Chiu, supra, 59 Cal.4th at pp. 166-167.)
The jury was instructed on three separate theories for imposing liability on Prado
for all of the murders: he could be guilty as a direct perpetrator of attempted premeditated
murder; he could be guilty on "direct" aiding and abetting principles; and he could be
guilty under the "natural and probable consequences" doctrine. As to Prado's liability for
Rivas's attempted murder of Monroe, only the latter two theories were applicable
5 On appeal, Prado principally argues the count involving Monroe (count 1) was based on the natural and probable consequences doctrine because Rivas was the attacker of Monroe, and Prado was not even charged with personal use of a knife in connection with that count. Although Prado also briefly asserts the prosecutor "proffered aiding and abetting as one theory of Prado's liability" on the other counts, the prosecutor primarily argued Prado was guilty of all counts as a direct perpetrator or under direct aiding and abetting principles, and the only evidence as to the count involving the attempted murder of Slaughter-Cook (count 3) was that Prado was the direct and sole perpetrator of that attempted murder, which convinces us beyond a reasonable doubt (and Prado offers no argument to the contrary) that the jury necessarily concluded Prado personally possessed the requisite mens rea as to that attempted murder. Moreover, as to the conviction for the attempted murder of Moats (count 2), the only evidence was (1) Prado was also a direct perpetrator of that attempted murder and (2) his personal attack on Moats preceded his later attack (on Slaughter-Cook), which the jury necessarily found was accompanied by the requisite premeditation. Prado offers no argument or view of the evidence demonstrating how a jury might have concluded Prado personally lacked premeditation when he first approached to begin his attack (on Moats) but thereafter premeditated as he continued his attack (on Slaughter-Cook). On this record, we are convinced beyond a reasonable doubt that the jury concluded Prado personally possessed the requisite mens rea as to both attempted murders as to which he was the direct perpetrator. 18 considering the evidence that Rivas, not Prado, was the direct perpetrator. The
prosecutor, although explaining the natural and probable consequences doctrine was an
available theory for holding Prado liable for the charged crimes, expressly stated and
restated that the natural and probable consequences doctrine "isn't the People's theory of
liability because we think . . . Prado had the intent to kill." The prosecutor emphasized
the evidence showing Rivas's premeditated intent to kill in retribution for the victims'
earlier assault on him, and noted Prado knew of and shared that intent because Prado
(after being enlisted by Rivas) armed himself to accompany Rivas to exact retribution
and, after Rivas identified the target (by saying, "That's him in the white blanket"),
immediately joined with Rivas in approaching and trying to stab Moats. Indeed, the
prosecutor noted that when Moats screamed they had the wrong person, Prado responded
"you did something to my friend," evidencing Prado subjectively shared with Rivas the
intent to extract revenge on the persons who had earlier attacked Rivas, one of whom was
Monroe. Indeed, the prosecutor noted, when Rivas turned his attack away from the
mistaken target (Moats) and attacked "the person he was meaning to attack" (Monroe),
the prosecutor noted Prado also turned away from Moats and went several feet away to
"protect[] . . . Rivas as [Rivas is] attacking Mr. Monroe" by stabbing Slaughter-Cook in
the back when he tried to come to Monroe's aid.
We are convinced beyond a reasonable doubt, because of the evidence and the
argument of the prosecutor, the jury found Prado liable for Rivas's premeditated
attempted murder of Monroe under direct aiding and abetting principles because the
evidence showed, and the prosecutor argued, that (1) Monroe was one of the persons
19 whom Rivas intended to target for retribution by trying to kill Monroe with planning and
premeditation, (2) Prado knew of this intention and shared that purpose, and (3) Prado
joined in the attack with the intent or purpose either of committing (or of encouraging or
facilitating commission of) Rivas's premeditated attempt to kill Monroe. We are
convinced beyond a reasonable doubt that the instruction as to the alternative natural and
probable consequences doctrine, even if erroneous, was harmless error.
C. Any Alleged Deficiency in the Lesser Included Offenses Instruction Was
Harmless
Prado contends the court erred when it did not sua sponte instruct the jury that
attempted voluntary manslaughter was an option of which the jury could have convicted
him under the natural and probable consequences theory, and that this error was
prejudicial and requires reversal on all three counts.
The Case Law
An aider and abettor may be convicted of a greater crime than the crime for which
the actual perpetrator is convicted. (People v. McCoy, supra, 25 Cal.4th at p. 1116.)
Although we are cited no Supreme Court authority specifically determining whether a
defendant can be guilty of a homicide-based offense of a lesser degree than that
committed by the perpetrator under the natural and probable consequences doctrine, a
series of cases have concluded a defendant can be guilty under the natural and probable
consequences doctrine of a lesser crime than the perpetrator, and instruction on this
principal is required in appropriate factual circumstances. This line of authority began
with People v. Woods (1992) 8 Cal.App.4th 1570 (Woods). In Woods, two defendants
20 assaulted two people and stole some property. During the getaway, one of the defendants
shot and killed the occupant of a nearby car. Both defendants were convicted of first
degree murder. During deliberations, the jury asked if it could convict the accomplice of
second degree murder even if the shooter was guilty of first degree murder, and the trial
court responded in the negative. Woods held the trial court's response was erroneous
because an aider and abettor may be found guilty under the natural and probable
consequences doctrine of a lesser crime than that committed by the perpetrator, when the
evidence suggests the ultimate crime was not reasonably foreseeable but a lesser crime
committed by the perpetrator during the accomplishment of the ultimate crime was
foreseeable. (Id. at pp. 1577, 1586-1587.) Woods concluded that, under the facts of the
case, the jury could have determined it was not reasonably foreseeable the codefendant
would commit premeditated murder of an innocent bystander but it was foreseeable that
he might kill intentionally but without premeditation, and therefore reversed as to the
accomplice's premeditation. (Id. at pp. 1590, 1595-1596.)
Woods was followed, and extended by, the court in People v. Samaniego (2009)
172 Cal.App.4th 1148 (Samaniego).6 In Samaniego, the court again held an aider and
6 The rationale in Woods was also followed in, and extended by, the court in People v. Hart (2009) 176 Cal.App.4th 662 in the context of charged offenses more closely aligned with the present case, where both defendants were charged with and convicted of first degree attempted murder. The Hart court concluded the jury was not properly instructed on the natural and probable consequences doctrine because the instructions failed to inform the jury that to find the accomplice guilty of attempted premeditated murder, "it was necessary to find that attempted premeditated murder, not just attempted murder, was a natural and probable consequence of the attempted robbery." (Id. at p. 673.) Hart held the trial court had "a duty, sua sponte, to instruct the jury in a case 21 abettor's guilt may be less than the perpetrator's, but also concluded an instruction that
informed the jury " '[a] person is equally guilty of the crime . . . whether he or she
committed it personally or aided and abetted the perpetrator who committed it' [citation]
[is] generally correct in all but the most exceptional circumstances" (id. at p. 1165),
although under the peculiar facts of that case the court concluded it was potentially
misleading and should have been modified. (Ibid.) However, Samaniego ultimately
found the misinstruction to be harmless beyond a reasonable doubt because the jury
necessarily found each of the defendants acted with the intent to kill (because the jury
found a multiple murder special circumstance allegation to be true) and "[i]t would be
virtually impossible for a person to know of another's intent to murder and decide to aid
in accomplishing the crime without at least a brief period of deliberation and
premeditation, which is all that is required." (Id. at p. 1166.)
Finally, in People v. Nero, supra, 181 Cal.App.4th 504, defendant Nero stabbed
the victim to death with a knife that the prosecution argued defendant Brown had handed
to him. (Id. at p. 519.) During deliberations, the jury asked if it could find an aider and
abettor guilty of a greater or lesser crime than the direct perpetrator, and the trial court
replied that the principals in a crime are equally guilty. (Id. at pp. 511-513.) Both of the
such as this one that it must determine whether premeditation and deliberation, as it relates to attempted murder, was a natural and probable consequence of the target crime" (ibid.), and that it was prejudicial error not to inform the jury it could convict the accomplice of a lesser crime than the perpetrator under the natural and probable consequences doctrine. (Id. at pp. 672-674.) However, Hart was expressly disapproved in Favor, supra, 54 Cal.4th at page 879, footnote 3, although the Favor court apparently left Woods untouched. (Favor, supra, 54 Cal.4th at p. 877.) If, as Prado contends, Chiu has overruled Favor sub silencio, it is equally arguable Hart's extension of Woods to the context of attempted murder has been resurrected sub silencio. 22 defendants were convicted of second degree murder, but the Nero court concluded this
was error because an aider and abettor may be found guilty of a lesser homicide-related
offense than the actual perpetrator. It concluded the "equally guilty" language for aider
and abettor liability can be misleading, and it could not find beyond a reasonable doubt
that Brown would have been found guilty of second degree murder in the absence of the
erroneous response to the jury's question. (Id. at pp. 513-520.)
Prado's Claim
Prado argues that, in light of Woods, the court sua sponte should have more clearly
articulated that the jury had the option of convicting him of either attempted murder or
attempted voluntary manslaughter as natural and probable consequences of his aiding and
abetting an assault with a deadly weapon, regardless of whether the jury concluded Rivas
was guilty of the greater offenses. He asserts that if attempted murder was a foreseeable
nontarget offense of the target crime (e.g. assault with a deadly weapon) he aided and
abetted, attempted voluntary manslaughter was necessarily an equally foreseeable
nontarget offense of that target crime. The People argue the jury instructions were
adequate but, to the extent the instructions were unclear, any ambiguity was harmless.
We conclude that, even assuming there was an absence of clarity in the
instructional charge to the jury, any deficiency was harmless beyond a reasonable doubt.
As a preliminary matter, although Prado asserts all three convictions were infected by this
deficiency, the only evidence as to the count involving the attempted murder of
Slaughter-Cook was Prado was the sole perpetrator of that attempted murder, which
23 convinces us beyond a reasonable doubt that the jury necessarily convicted Prado of that
count because it found he personally possessed the requisite mens rea as to that attempted
murder, and therefore we conclude (and Prado offers no argument to the contrary) the
vicarious liability principles of the natural and probable consequences doctrine had no
impact on that count. Similarly, the evidence supporting the conviction for the attempted
murder of Moats again showed Prado was a direct perpetrator of that attempted murder,
and he offers no argument or view of the evidence demonstrating how a jury might have
concluded Prado personally lacked the intent and premeditation when he first approached
to begin his attack (on Moats) but thereafter personally intended and premeditated as he
continued his attack on Slaughter-Cook. On this record, we are convinced beyond a
reasonable doubt the jury concluded Prado personally possessed the requisite mens rea as
to both attempted murders in which he was the direct perpetrator and we are therefore
convinced beyond a reasonable doubt the vicarious liability principles (as to which he
asserts the instructions were defective) played no role in either of those convictions.
On appeal, the only theory of prejudice Prado attempts to articulate involves his
conviction as to count one involving Rivas's attack on Monroe. He argues that, because
the prosecutor actually proceeded on the theory of natural and probable consequences,
and because the jury could have concluded Prado only intended to aid and abet an assault
with a deadly weapon, and could have also concluded Rivas's attempted murder of
Monroe was not a reasonably foreseeable crime but his attempt to commit voluntary
manslaughter on Monroe was a reasonably foreseeable crime, the verdict might have
been impacted by the imprecision. We are not persuaded by Prado's arguments for
24 several reasons. First, unlike Samaniego, supra, 172 Cal.App.4th 1148, the record
contains no indication the jury thought Prado was less culpable than Rivas, or wanted to
convict Prado of something less than attempted first degree murder but erroneously
believed that it could not do so, or made any inquiries indicating it was confused on the
point. More importantly, as previously discussed, the prosecutor mentioned the natural
and probable consequences doctrine but expressly admonished that it was relying on
direct aiding and abetting principles, and focused on Prado's guilt as a direct perpetrator
(as to Moats and Slaughter-Cook) and under direct aider and abettor principles (as to
Monroe). Moreover, during the prosecutor's brief remarks about the natural and probable
consequences doctrine, he did not tell the jury it was barred from convicting Prado of any
offense less than any offense of which it found Rivas guilty. Finally, we are convinced
the jury found Prado possessed the intent to kill and premeditated that intention because
of its verdict as to Slaughter-Cook, which makes it highly likely the jury relied on the
direct aiding and abetting principles rather than the natural and probable consequences
doctrine.
The entirety of the evidence overwhelmingly proved Prado aided and abetted in
the attempted premeditated murder of Monroe. Prado armed himself with a knife and
accompanied his friend to extract revenge and, after one of them identified (albeit
mistakenly) their target by stating, "That's him in the white blanket," Prado accompanied
Rivas to try to repeatedly stab Moats through the blanket, telling him (when Moats
claimed they had the wrong person and asked what he had done) that "you did something
to my friend." Moreover, when Rivas shifted his attack to Monroe, Prado continued to
25 back Rivas up by stabbing the person who was trying to restrain him. Considering all of
the circumstances, we conclude it is not reasonably possible any ambiguity in the
instruction affected the verdict, and therefore the error is harmless beyond a reasonable
doubt. (Samaniego, supra, 172 Cal.App.4th at pp. 1165-1166.)
DISPOSITION
The judgments are affirmed.
McDONALD, J.
WE CONCUR:
HALLER, Acting P. J.
O'ROURKE, J.