People v. Prettyman

926 P.2d 1013, 14 Cal. 4th 248, 58 Cal. Rptr. 2d 827, 96 Cal. Daily Op. Serv. 8891, 96 Daily Journal DAR 14698, 1996 Cal. LEXIS 6520

• Court: California Supreme Court
• Decided: December 9, 1996
• Docket: S040008
• Status: Published

Opinions

Opinion

KENNARD, J.

Under California law, a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a “natural and probable consequence” of the crime originally aided and abetted. To convict a defendant of a nontarget crime as an accomplice under the “natural and probable consequences” doctrine, the jury must find that, with knowledge of the perpetrator’s unlawful purpose, and with the intent of committing, encouraging, or facilitating the commission of the target crime, the defendant aided, promoted, encouraged, or instigated the commission of the target crime. The jury must also find that the defendant’s confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate was a “natural and probable consequence” of the target crime that the defendant assisted or encouraged.

In this case, defendant Debra Jane Bray was charged with the crime of murder; the prosecution’s theory at trial was that she was guilty as an accomplice. The trial court instructed the jury that it could find Bray guilty of minder if it determined either that she had aided and abetted the murder or that the murder was a “natural and probable consequence” of any uncharged offense(s) that Bray had aided and abetted. The court did not, however, identify or describe any such uncharged target offense. At issue here is whether, absent a request by counsel, the court should have so instructed the jury.

We conclude that when the prosecutor relies on the “natural and probable consequences” doctrine, the trial court must identify and describe the target crimes that the defendant might have assisted or encouraged. An instruction identifying target crimes will assist the jury in determining whether the crime charged was a natural and probable consequence of some other criminal act. And an instruction describing the target crimes will eliminate the risk that the jury will engage in uninformed speculation with regard to what types of conduct are criminal.

I. Facts

Codefendant Richard D. Prettyman and defendant Debra Jane Bray were charged with the murder of Gaylord “Vance” Van Camp (Pen. Code, § 187; all subsequent statutory references are to the Penal Code), and with conspiring to murder Van Camp (§ 182). A jury convicted both of first degree murder, but acquitted them of conspiracy.¹ The following evidence was presented at their trial.

Defendant Bray and codefendant Prettyman held themselves out as husband and wife. They, as well as victim Van Camp, were among the homeless living in the Pacific Beach area of San Diego. Van Camp was beaten to death with a steel pipe on the morning of July 20, 1992, while asleep in the courtyard of the Pacific Beach Presbyterian Church. The prosecution contended that Prettyman beat Van Camp to death with the pipe, and that Bray, described by the prosecutor as an “argumentative drunk,” encouraged Prettyman to kill Van Camp in order to obtain Bray’s wallet, which Bray had given to Van Camp for safekeeping the previous evening.

On the evening preceding the murder, defendant Bray and Van Camp had dinner at the church. Codefendant Prettyman was not present during the dinner, but he attended the religious service that followed. After the service, Bray, who was intoxicated, argued with Prettyman. According to prosecution witness Dennis Charette, a homeless man who observed the argument, Bray demanded that Prettyman return to her certain identification papers that she needed to collect a benefit check. When the argument became heated, Van Camp asked the church’s preschool director, Stephanie Hansen, to intervene. At trial, Hansen mentioned that it was “pretty common” for the “street people” she knew to argue and to threaten one another, and that she had heard Bray arguing with Prettyman on other occasions.

After talking to Bray and Prettyman, Hansen asked Van Camp to take Prettyman away from the church until the latter had calmed down. The two men left. Before they went, Bray handed her wallet to Van Camp. According to Charette, Bray told Van Camp to hold the wallet for safekeeping, to prevent Prettyman from stealing it.

Prettyman and Van Camp returned to the church courtyard. Prettyman lay down next to Bray, while Van Camp found a sleeping spot a short distance away. When Charette got up at 2 a.m. to urinate, he noticed that Bray and Prettyman were gone, but that Van Camp was still asleep in the courtyard.

At 3:00 or 4:00 a.m., Edward Eash, a homeless man sleeping in a car near the church courtyard, was awakened by the sound of loud voices. Looking out a car window, he saw Bray and codefendant Prettyman. Bray repeatedly said: “We are going to get that fucker Vance. He has no idea who he is messing with. He ain’t getting away with this shit.” Prettyman nodded his head and said, “Yep. Okay.”

Between 4:00 and 5:30 a.m., Charette was awakened by the sound of thumping noises in the church courtyard. He heard codefendant Prettyman say, “Take that.” Sitting up, Charette saw Prettyman leave the courtyard with a three-to-four-foot pipe. Charette heard Van Camp make “gagging” noises.

Immediately after Prettyman’s departure, Bray came “flying up” to Charette. She told him to leave and not to look at Van Camp. Charette obeyed. He later met Bray and Prettyman in front of the church. Prettyman then went back into the church courtyard. He returned within a few minutes, and reported that Van Camp had choked on his own blood. Prettyman then said, “teach him to steal a wallet [and] to threaten us,” adding that Van Camp had “deserved it.” Both Bray and Prettyman told Charette not to tell anyone what had happened.

Shortly after 6:00 a.m., codefendant Prettyman told Robert Walker, another homeless man, that he had killed Van Camp with a metal pipe and then had started looking for Bray’s wallet. He told Walker that he eventually found the wallet under Van Camp’s head.

At 6:30 a.m., preschool director Hansen arrived at the church. She saw a figure lying in the church courtyard and heard a moaning sound, but she did not investigate, assuming that the person was waking up. At 7:20 a.m., the custodian told her there was a dead body in the courtyard, and she called the police.

When police officers arrived, they saw Van Camp’s body lying in the courtyard, a bloody jacket next to his head. Papers, items of clothing, and Van Camp’s backpack were strewn on the steps to the church sanctuary. The police retrieved a three-foot long piece of galvanized steel pipe from the ivy on church grounds.

Dr. Harry James Bonnell, Chief Deputy Medical Examiner for San Diego County, testified that Van Camp’s death was caused by three blows to the head from a blunt instrument, and that the blows could have been inflicted by the steel pipe that the police had found on the church grounds. The pipe had no bloodstains or fingerprints. Dr. Bonnell stated that if some garment had covered Van Camp’s head when the fatal blows were struck, this might explain the absence of bloodstains on the pipe. According to prosecution witness Dennis Charette, Van Camp customarily covered his head with his coat before going to sleep in the church courtyard.

Both defendant Bray and codefendant Prettyman attempted to show that someone other than Prettyman had killed Van Camp. The chief defense witness was Charles Dunner, a homeless man. Between 12:00 and 1:30 on the night of the killing, Dunner was “dumpster diving” in an alley across the street from the Pacific Beach Presbyterian Church. As he left the alley, he saw a car with two occupants. A Hispanic man with a beard and slick hair got out of the car and ran into the church courtyard, carrying a bat or club. After looking around, the man repeatedly hit someone or something with the club. Dunner could not see what the man was hitting because his view was partially obstructed by a planter box. The man then returned to the car, got in, threw the club in the back seat, and the car took off. The defense also called Summer Boyd, a licensed vocational nurse. She testified that she attended a meeting at the Pacific Beach Presbyterian Church on the morning that Van Camp was killed, arriving about 7:10 a.m. During the meeting, at 7:17 a.m., she heard some men shouting, “Let’s get out of here, they are coming.” She then saw two Hispanic men and one White male with long scraggly light-brown hair run down the alley next to the church.

The defense also presented expert testimony. David Fortman, a defense investigator who had taught courses in forensics, blood spatter evidence, and criminology, testified that, based on blood spatters photographed at the scene, significant quantities of blood must have been transferred to the murder weapon when it was used to strike the fatal blows to Van Camp’s head. Because the steel pipe found by police bore no bloodstains and was dirty (indicating that it had not been washed), Fortman concluded that the pipe was not the murder weapon.

In an effort to impeach prosecution witnesses Charette and Bash, the defense presented evidence that Charette was “extremely intoxicated” on the night Van Camp was killed and that Bash, who had testified he was sober on the night of the murder, was a convicted felon, had a drinking problem, and once had given a written report to his probation officer falsely stating that he had not been arrested for alcohol-related offenses during the month preceding the report.

The trial court gave the jury the standard instructions defining aiding and abetting: CALJIC No. 3.00 (5th ed., 1988; unless otherwise stated, all subsequent CALJIC citations are to the 5th edition) (principals defined), CALJIC No. 3.01 (aiding and abetting defined), and CALJIC No. 3.03 (termination of liability of one who aids and abets). Also included was this instruction: “One who aids and abets is not only guilty of the particular crime aided and abetted, but is also liable for the natural and probable consequences of the commission of such crime. You must determine whether the defendant is guilty of the crime originally contemplated, and, if so, whether any other crime charged was a natural and probable consequence of such originally contemplated crime.” (Italics added.) This instruction was substantially similar to the original (1988) version of CALJIC No. 3.02.² The trial court did not give the 1992 revision of CALJIC No. 3.02, which would have specified the possible criminal acts that Bray might have “originally contemplated,” nor did the trial court give an instruction describing the elements of any such crimes.³ Although the record is unclear, the instruction on the “natural and probable consequences” rule was apparently given by the trial court on its own initiative.

As previously mentioned, the jury convicted both defendant Bray and her confederate, codefendant Prettyman, of first degree murder, but acquitted them of conspiracy to commit murder. The trial court sentenced Bray to a term of 25 years to life in prison. She appealed. (As stated in fn. 1, ante, Prettyman also appealed, but on different grounds.)

The Court of Appeal affirmed Bray’s conviction. It held that the trial court had properly instructed the jury on aiding and abetting, rejecting Bray’s contention that the trial court had erred in neither identifying nor describing any target or predicate crime that she might have “originally contemplated” within the meaning of CALJIC No. 3.02. The court, however, noted the disagreement in the Courts of Appeal regarding the need to so instruct the jury: People v. Mouton (1993) 15 Cal.App.4th 1313 [19 Cal.Rptr.2d 423] held that a trial court must name and define any target or predicate offense that the accomplice might originally have assisted or encouraged. In contrast, People v. Solis (1993) 20 Cal.App.4th 264 [25 Cal.Rptr.2d 184], expressly disagreeing with Mouton, held that such instructions are generally unnecessary. To resolve this conflict, we granted defendant Bray’s petition for review.

II. General Principles of Aiding and Abetting Liability

Under California law, a person who aids and abets the commission of a crime is a “principal” in the crime, and thus shares the guilt of the actual perpetrator. (§31.)

Accomplice liability is “derivative,” that is, it results from an act by the perpetrator to which the accomplice contributed. (See Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine (1985) 73 Cal.L.Rev. 323, 337.) “[W]hen an accomplice chooses to become a part of the criminal activity of another, she says in essence, ‘your acts are my acts,’ and forfeits her personal identity. We euphemistically may impute the actions of the perpetrator to the accomplice by ‘agency’ doctrine; in reality, we demand that she who chooses to aid in a crime forfeits her right to be treated as an individual.” (Dressier, Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem (1985) 37 Hastings L.J. 91, ill, fh. omitted.)

In People v. Beeman (1984) 35 Cal.3d 547 [199 Cal.Rptr. 60, 674 P.2d 1318], we discussed the mental state necessary for liability as an aider and abettor. To prove that a defendant is an accomplice, we said, the prosecution must show that the defendant acted “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.) When the offense charged is a specific intent crime, the accomplice must “share the specific intent of the perpetrator”; this occurs when the accomplice “knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” (Ibid.) Thus, we held, an aider and abettor is a person who, “acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (Id. at p. 561.)

It sometimes happens that an accomplice assists or encourages a confederate to commit one crime, and the confederate commits another, more serious crime (the nontarget offense). Whether the accomplice may be held responsible for that nontarget offense turns not only upon a consideration of the general principles of accomplice liability set forth in People v. Beeman, supra, 35 Cal.3d 547, but also upon a consideration of the “natural and probable consequences” doctrine, which is at issue in this case and will be discussed below.

III. The “Natural and Probable Consequences” Doctrine

At common law, a person encouraging or facilitating the commission of a crime could be held criminally liable not only for that crime, but for any other offense that was a “natural and probable consequence” of the crime aided and abetted. (1 Wharton’s Criminal Law (15th ed. 1993) Parties, § 35, p. 207.)

Although the “natural and probable consequences” doctrine has been “subjected to substantial criticism” (Dressier, Understanding Criminal Law (1987) § 30.05, p. 427; see also 2 LaFave & Scott, Substantive Criminal Law (1986) § 6.8, p. 159), it is an “established rule” of American jurisprudence (id. at p. 158). It is based on the recognition that “aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion.” (People v. Luparello (1986) 187 Cal.App.3d 410, 439 [231 Cal.Rptr. 832].) The first California decision to embrace this doctrine was People v. Kaujfman (1907) 152 Cal. 331 [92 P. 861].

In Kauffman, the defendant and six friends planned to break into a safe at a cemetery. Armed with guns, a bottle of nitroglycerin (to blow open the safe), and burglary tools, they went to the cemetery, where they found an armed guard by the safe. They turned back. On their way home, an encounter with a police officer led to a gunfight in which the officer was killed. The defendant, who had been carrying the nitroglycerin, was unarmed and did not participate in the shooting, but he was charged with and convicted of the officer’s murder. (People v. Kauffman, supra, 152 Cal. at pp. 332-334.) On appeal, the defendant argued that the evidence was insufficient to support his conviction.

In affirming the defendant’s conviction in Kauffman, this court said: “ ‘The general rule is well settled that where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. . . . Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. Nevertheless the act must be the ordinary and probable effect of the wrongful act specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design.’ ” (People v. Kauffman, supra, 152 Cal. at p. 334, italics added, quoting 8 Cyclopedia of Law & Procedure (1903) p. 641.)

We then concluded in Kauffman that, based on the evidence presented, the jury could reasonably find that the plan in which the defendant had conspired included not only breaking into the safe at the cemetery, but also protecting all members of the group from arrest or detection while going to and returning from the scene of the proposed burglary, and that the policeman’s death was a natural and probable consequence of this unlawful enterprise. (People v. Kauffman, supra, 152 Cal. at pp. 335-337.)

People v. Kauffman, supra, 152 Cal. 331, involved the liability of conspirators for substantive crimes in the course of a conspiracy, not the liability of aiders and abettors, as does this case. But later decisions have applied the “natural and probable consequences” doctrine to aiders and abettors (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5 [221 Cal.Rptr. 592, 710 P.2d 392]; People v. Beeman, supra, 35 Cal.3d 547, 560; People v. Durham (1969) 70 Cal.2d 171, 181-185 [74 Cal.Rptr. 262, 449 P.2d 198]; People v. Bond (1910) 13 Cal.App. 175 [109 P. 150]) as well as to conspirators (People v. Hardy (1992) 2 Cal.4th 86, 189 [5 Cal.Rptr.2d 796, 825 P.2d 781]; People v. Price (1991) 1 Cal.4th 324, 442 [3 Cal.Rptr.2d 106, 821 P.2d 610]; People v. Bringhurst (1923) 192 Cal. 748, 751 [221 P 897]; People v. Creeks (1915) 170 Cal. 368, 374-375 [149 P. 821]; see CALJIC No. 6.11).

In People v. Croy, supra, 41 Cal.3d 1, we set forth the principles of the “natural and probable consequences" doctrine as applied to aiders and abettors: “[An aider and abettor] is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. ...[][] 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 . . . must be found by the jury.” (Id. at p. 12, fn. 5.) Thus, under Croy, a defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the “natural and probable consequence” of the target crime.

As we pointed out earlier, under the general principles of aiding and abetting, “an aider and abettor [must] 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.” (People v. Beeman, supra, 35 Cal.3d at p. 560, italics in original.) Therefore, when a particular aiding and abetting case triggers application of the “natural and probable consequences” doctrine, the Beeman test applies, and the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendant’s confederate committed an offense other than the target crime;⁴ and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted.

Until quite recently, the decisions involving application of the “natural and probable consequences” doctrine in aiding and abetting situations were limited to a consideration of whether the evidence was sufficient under the doctrine to support the defendant’s conviction. These decisions most commonly involved situations in which a defendant assisted or encouraged a confederate to commit an assault with a deadly weapon or with potentially deadly force, and the confederate not only assaulted but also murdered the victim. In those instances, the courts generally had no difficulty in upholding a murder conviction, reasoning that the jury could reasonably conclude that the killing of the victim death was a “natural and probable consequence” of the assault that the defendant aided and abetted. (People v. Martinez (1966) 239 Cal.App.2d 161 [48 Cal.Rptr. 521]; People v. Gayer (1951) 102 Cal.App.2d 643 [228 P.2d 70]; People v. Le Grant (1946) 76 Cal.App.2d 148 [172 P.2d 554]; People v. King (1938) 30 Cal.App.2d 185 [85 P.2d 928]; People v. Bond, supra, 13 Cal.App. 175; see also People v. Montano (1979) 96 Cal.App.3d 221, 226-227 [158 Cal.Rptr. 47] [attempted murder of rival gang member was natural and probable consequence of defendant’s suggestion that members of his gang beat up rival gang members]; but see People v. Butts (1965) 236 Cal.App.2d 817, 836-837 [46 Cal.Rptr. 362] [killing of victim held not to be a natural and probable consequence of an assault when the defendant did not know that his confederate would use a deadly weapon].) Other cases applied the “natural and probable consequences” doctrine in situations where a defendant assisted in the commission of an armed robbery, during which a confederate assaulted or tried to kill one of the robbery victims. In those cases, courts upheld jury verdicts convicting the defendant of assault and/or attempted murder, on the ground that the jury could reasonably conclude that the crime was a natural and probable consequence of the robbery aided by the defendant. (People v. Rogers (1985) 172 Cal.App.3d 502 [217 Cal.Rptr. 809]; People v. Fagalilo (1981) 123 Cal.App.3d 524 [176 Cal.Rptr. 698]; People v. Bradford (1972) 28 Cal.App.3d 695 [104 Cal.Rptr. 852]; People v. George (1968) 259 Cal.App.2d 424 [66 Cal.Rptr. 442].)

More recently, the appellate courts have had to deal with questions regarding the adequacy of jury instructions with respect to the “natural and probable consequences” doctrine. This case concerns one such question: whether the trial court should have identified and described the predicate or target offense(s) assisted and encouraged by the defendant.

IV. Instructions on the “Natural and Probable Consequences” Doctrine

In instructing a jury in a criminal case on the applicable law, California trial judges are guided in general by the standard jury instructions contained in California Jury Instructions, Criminal (CALJIC). These are prepared by the Committee on Standard Jury Instructions, Criminal, of the Superior Court of Los Angeles County. Although not mandated by statute, their use is recommended by the Judicial Council of California (Cal. Standards Jud. Admin., § 5).

The pattern instructions on accomplice responsibility in CALJIC’s first, second, and third editions (published in 1946, 1958, and 1970, respectively) made no reference to the “natural and probable consequences” doctrine.⁵ The rule was first mentioned in a 1976 supplement to the third edition of CALJIC, which suggested, at the end of a pattern instruction defining the “principals” of a crime, this optional instruction: “One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.” (CALJIC No. 3.00 (3d ed. 1976 rev.).) This sentence was retained in the fourth edition of CALJIC, which was published in 1979. Then, in 1988, in apparent response to a statement by the Court of Appeal in People v. Hammond (1986) 181 Cal.App.3d 463, 469 [226 Cal.Rptr. 475], which criticized the instruction as inadequate, the Committee on Standard Jury Instructions, Criminal drafted a separate new instruction to explain the “natural and probable consequences” doctrine. (CALJIC No. 3.02 (5th ed. 1988).)

The 1988 version of CALJIC No. 3.02 made no mention of identifying for the jury any target or predicate unlawful act that had been aided and abetted by the defendant and that led, as a natural and probable consequence, to the confederate’s commission of the crime with which the defendant was charged. (See fn. 2, ante.) In 1992, however, CALJIC No. 3.02 was revised to include this information. (See fn. 3, ante.) And an accompanying “use note” stated: “This instruction must be accompanied by . . . instructions defining all crimes encompassed in this instruction.” (CALJIC (5th ed. 1992 pocket pt.) p. 19.)

At issue here is whether, when a trial court instructs a jury on the “natural and probable consequences” doctrine, the identification and description of potential target offenses are “general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case” (People v. Montoya (1994) 7 Cal.4th 1027, 1047 [31 Cal.Rptr.2d 128, 874 P.2d 903]), thus triggering the trial court’s duty to so instruct the jury on the court’s own initiative. (Ibid/, People v. Estrada (1995) 11 Cal.4th 568, 574 [46 Cal.Rptr.2d 586, 904 P.2d 1197]; People v. Perez (1992) 2 Cal.4th 1117, 1129 [9 Cal.Rptr.2d 577, 831 P.2d 1159].) This issue first arose in a 1993 decision by the Court of Appeal in People v. Mouton, supra, 15 Cal.App.4th 1313. In Mouton, a man had a fight with his girlfriend. Hearing that the girlfriend’s relatives had armed themselves and were looking for him, the man asked the defendant and one Albert Reed to bring their guns to the apartment complex where the altercation had occurred. When the latter two came to the apartment building with guns, one of the residents told them to leave. An argument ensued. Reed then fired three shots at the resident, missing him but killing a bystander.

The defendant in Mouton was charged, as an aider and abettor, with murdering the bystander. At trial, the prosecution conceded that the defendant and Reed had not planned to kill the bystander; the prosecution argued, however, that the defendant was nevertheless guilty of the murder as an aider and abettor, because the killing of the bystander was a natural and probable consequence of target crimes whose commission the defendant had intentionally aided and abetted. Among those crimes, the prosecutor contended, were carrying a concealed firearm (§ 12025), brandishing a deadly weapon (§ 417), assault with a deadly weapon (§ 245), and shooting at an occupied dwelling (§ 246). The trial court instructed the jury that the defendant could be held responsible for any crime that was the “natural and probable consequence" of the unlawful act(s) the defendant had aided and abetted. But, as in this case, the trial court neither identified nor described the target crimes that, under the prosecutor’s theory, the defendant facilitated or encouraged and that could have led to the killing. The jury convicted the defendant of second degree murder.

The Court of Appeal in Mouton reversed the defendant’s murder conviction. It held that the trial court should, on its own initiative, have identified and defined the target offenses that the defendant might originally have aided and abetted, in view of the trial court’s general duty “to instruct the jury on all general legal principles raised by the evidence and necessary for the jury’s understanding of the case.” (People v. Mouton, supra, 15 Cal.App.4th at p. 1319, citing People v. Wickersham (1982) 32 Cal.3d 307, 323 [185 Cal.Rptr. 436, 650 P.2d 311].) As a result, the court said, the jury “was left to determine defendant’s guilt of the ultimate offense—the charged murder—without guidance concerning the identity or definition of the originally contemplated (or target) offenses . . . .” (People v. Mouton, supra, 15 Cal.App.4th at p. 1319.)

Six months later, the Court of Appeal in People v. Solis, supra, 20 Cal.App.4th 264, disagreed with the holding in People v. Mouton, supra, 15 Cal.App.4th 1313. In Solis, the defendant, a juvenile gang member, was challenged to a fight by members of another gang. He retreated but returned later that evening, driving a car containing two passengers, one of whom fired at members of the rival gang, killing one of them. The defendant was charged with murder. As in this case and in Mouton, the trial court in Solis instructed the jury on the “natural and probable consequences” doctrine, but neither specified nor described the elements of any target or predicate offense that the defendant might have aided or encouraged. (20 Cal.App.4th at p. 276.) The jury convicted the defendant of second degree murder.

In affirming the murder conviction, the court in Solis stated: “[T]he 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." (People v. Solis, supra, 20 Cal.App.4th at p. 273.) Therefore, the court concluded, “it is not necessary to provide instructions as to the possible predicate crimes, which ... are uncharged and irrelevant to the offense ultimately committed and charged.” (Ibid.) The Solis court acknowledged that “if there is a dispute as to whether the predicate planned acts are criminal, a determination as to the nature of those acts and instruction on the criminal definitional nature of such will be required.” (Id. at p. 274, fn. 8.) But in the court’s view such cases are uncommon, and in the “ordinary case” such an instruction is unnecessary. (Ibid.)

V. Duty of Trial Court to Identify and Describe the Elements of Potential Target Crimes Under the “Natural and Probable Consequences” Doctrine

In this case, defendant Bray, relying on People v. Mouton, supra, 15 Cal.App.4th 1313, contends that the trial court should, on its own initiative, have instructed the jury with the 1992 revision to CALJIC No. 3.02, specifying for the jury the target or predicate crime(s) that, under the evidence, Bray might have aided and abetted and that could have led, as a natural and probable consequence, to the murder of Van Camp by codefendant Prettyman. Again relying on Mouton, Bray argues that in addition to CALJIC No. 3.02, the court should have given an instruction describing or defining the elements of the target crimes. The Attorney General, relying on People v. Solis, supra, 20 Cal.App.4th 264, contends the contrary. We agree with Bray.

Although the issue is one of first impression in this court, instructive here is our decision in People v. Failla (1966) 64 Cal.2d 560 [51 Cal.Rptr. 103, 414 P.2d 39]. In Failla, the defendant was charged with burglary. The trial court instructed the jury in the language of the statute prohibiting burglary (§ 459), which provides that one who enters a building with the intent to commit theft “or any felony” is guilty of burglary. But the court did not tell the jury what target act(s) the defendant might have intended to commit after entering the building would constitute felonies. We reversed the defendant’s burglary conviction, concluding that the trial court committed prejudicial error by failing to give, on its own initiative, an instruction “defining ‘felony’ and advising the jury which acts the defendant, upon entry, may have intended to commit would amount to felonies.” (People v. Failla, supra, 64 Cal.2d at p. 564.) We explained: “[W]here the evidence permits an inference that the defendant at the time of entry intended to commit one or more felonies and also an inference that his intent was merely to commit one or more misdemeanors or acts not punishable as crimes, the court must define ‘felony’ and must instruct the jury which acts, among those which the jury could infer the defendant intended to commit, amount to felonies. Failure to do so is error, for it allows the triers of fact to indulge in unguided speculation as to what kinds of criminal conduct are serious enough to warrant punishment as felonies and incorporation into the burglary statute.” (Ibid.)

As in People v. Failla, supra, 64 Cal.2d 560, the central issue here is whether the trial court must identify and describe uncharged target offenses for the jury. As in Failla, we conclude 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. When these conditions are satisfied, an instruction identifying and describing potential target offenses is necessary to minimize the risk that the jury, generally unversed in the intricacies of criminal law, will “indulge in unguided speculation” (People v. Fallia, supra, at p. 564) when it applies the law to the evidence adduced at trial.

In an aiding and abetting case involving application of the “natural and probable consequences” doctrine, identification of the target crime will facilitate the jury’s task of determining whether the charged crime allegedly committed by the aider and abettor’s confederate was indeed a natural and probable consequence of any uncharged target crime that, the prosecution contends, the defendant knowingly and intentionally aided and abetted. The facts of this case illustrate this point. If, for example, the jury had concluded that defendant Bray had encouraged codefendant Prettyman to commit an assault on Van Camp but that Bray had no reason to believe that Prettyman would use a deadly weapon such as a steel pipe to commit the assault, then the jury could not properly find that the murder of Van Camp was a natural and probable consequence of the assault encouraged by Bray. (People v. Butts, supra, 236 Cal.App.2d at p. 836.) If, on the other hand, the jury had concluded that Bray encouraged Prettyman to assault Van Camp with the steel pipe, or by means of force likely to produce great bodily injury, then it could appropriately find that Prettyman’s murder of Van Camp was a natural and probable consequence of that assault. Therefore, instructions identifying and describing the crime of assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245) as the appropriate target crime would have assisted the jury in determining whether Bray was guilty of Van Camp’s murder under the “natural and probable consequences” doctrine.

To apply the “natural and probable consequences” doctrine to aiders and abettors is not an easy task. The jury must decide whether the defendant (1) with knowledge of the confederate’s unlawful purpose, and (2) with the intent of committing, encouraging, or facilitating the commission of any target crime(s), (3) aided, promoted, encouraged, or instigated the commission of the target crime(s); whether (4) the defendant’s confederate committed an offense other than the target crime(s); and whether (5) the offense committed by the confederate was a natural and probable consequence of the target crime(s) that the defendant encouraged or facilitated. Instructions describing each step in this process ensure proper application by the jury of the “natural and probable consequences” doctrine.

As pointed out by the court in People v. Solis, supra, 20 Cal.App.4th 264, to convict a defendant of a crime under this doctrine, the jury need not unanimously agree on the particular target crime the defendant aided and abetted. (See People v. Santamaria (1994) 8 Cal.4th 903, 918 [35 Cal.Rptr.2d 624, 884 P.2d 81] [“It is settled that as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of murder as that offense is defined by statute, it need not decide unanimously by which theory he is guilty.”]; see also People v. Pride (1992) 3 Cal.4th 195, 249-250 [10 Cal.Rptr.2d 636, 833 P.2d 643] [jury may convict defendant of first degree murder despite lack of unanimity as to whether killing was premeditated murder or felony murder]; People v. Failla, supra, 64 Cal.2d at p. 569 [in burglary prosecution, jury need not agree on which felony defendant intended to commit upon entering building].) In many cases in which the doctrine is applicable, the defendant is not charged with the target crime, but with another crime that was allegedly committed by the defendant’s confederate.⁶ Nevertheless, at trial each juror must be convinced, beyond a reasonable doubt, that the defendant aided and abetted the commission of a criminal act, and that the offense actually committed was a natural and probable consequence of that act. Contrary to Solis, a conviction may not be based on the jury’s generalized belief that the defendant intended to assist and/or encourage unspecified “nefarious” conduct.⁷ To ensure that the jury will not rely on such generalized beliefs as a basis for conviction, the trial court should identify and describe the target or predicate crime that the defendant may have aided and abetted.⁸

In Failla, which we discussed earlier, we held that when a defendant is charged with burglary, the trial court, on its own initiative, must give instructions to the jury identifying and defining the target offense(s) that the defendant allegedly intended to commit upon entry into the building. (People v. Failla, supra, 64 Cal.2d at pp. 564-565.) Similarly, when the prosecution relies on the “natural and probable consequences” doctrine to hold a defendant liable as an aider and abettor, the trial court must, on its own initiative, identify and describe for the jury any target offense allegedly aided and abetted by the defendant. As we explained in Failla, such instructions are “necessary to the jury’s understanding of the charge and [are] ‘closely and openly connected with the facts of the case before the court.’ ” (People v. Failla, supra, 64 Cal.2d at p. 565.)

We recognize that the workload of our already heavily burdened trial courts is increased whenever we impose on trial judges an obligation to provide a particular jury instruction sua sponte. We also recognize that “the trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly.” (People v. Wade (1959) 53 Cal.2d 322, 334 [1 Cal.Rptr. 683, 348 P.2d 116].) But the sua sponte duty to instruct that is imposed here is quite limited. It arises only when the 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. The trial court, moreover, need not identify all potential target offenses supported by the evidence, but only those that the prosecution wishes the jury to consider.⁹

The trial court should grant a prosecutor’s request that the jury be instructed on the “natural and probable consequences” rule only when (1) the record contains substantial evidence that the defendant intended to encourage or assist a confederate in committing a target offense, and (2) the jury could reasonably find that the crime actually committed by the defendant’s confederate was a “natural and probable consequence” of the specifically contemplated target offense. If this test is not satisfied, the instruction should not be given, even if specifically requested.

In People v. Solis, supra, 20 Cal.App.4th at page 272, the court stated that an aider and abettor can “become liable for the commission of a very serious crime” committed by the aider and abettor’s confederate even though “the target offense contemplated by his aiding and abetting may have been trivial.” Rarely, if ever, is that true. Murder, for instance, is not the “natural and probable consequence” of “trivial” activities. To trigger application of the “natural and probable consequences” doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed.

In this case, the record does not show that the prosecutor sought to have the jury instructed on the “natural and probable consequences” doctrine as a basis for convicting defendant Bray of the murder of Van Camp committed by codefendant Prettyman, and the prosecutor made no mention of the doctrine in his closing argument to the jury. Because the prosecutor did not rely on this doctrine, the trial court was under no duty to instruct the jury on it, for it was not one of the “general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case.” (People v. Montoya, supra, 7 Cal.4th at p. 1047.) Alternatively, the court could have asked the prosecutor if he wanted the jury instructed on the rule, and, if so, what target crime(s) the prosecutor believed to be appropriate.¹⁰ But once the trial court, without a request therefor, chose to instruct the jury on the “natural and probable consequences” rule, it had a duty to issue instructions identifying and describing each potential target offense supported by the evidence. By failing to do so, the trial court erred. Was the error prejudicial? That is the question we turn to in the section that follows.

VI. Prejudicial Effect of Trial Court’s Inadequate Instructions on the “Natural and Probable Consequences” Doctrine

Defendant Bray contends that the trial court’s instructional error denied her due process of law under the Fourteenth Amendment to the United States Constitution. Because the error violated a federal constitutional right, she contends, the error was either “reversible per se” (People v. Cummings (1993) 4 Cal.4th 1233, 1314-1315 [18 Cal.Rptr.2d 796, 850 P.2d 1] [failure to instruct on four of the five elements of robbery reversible per se]), or was prejudicial under the “harmless-beyond-a-reasonable-doubt” test 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 disagree. As we shall explain, the trial court’s failure to identify and describe target crimes when instructing on the “natural and probable consequences” rule did not violate defendant’s federal due process rights.

Bray likens the instructional error here to a failure to instruct the jury on certain elements of the crime charged. (See United States v. Gaudin (1995) 515 U.S. 506, _ [132 L.Ed.2d 444, 449, 115 S.Ct. 2310, 2313] [federal Constitution requires “criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime . . . charged . . . .”].) Bray contends that under the “natural and probable consequences” doctrine, the elements of target offenses aided and abetted are “functionally” elements of the crime actually charged. Thus, she reasons, by instructing the jury on the “natural and probable consequences” doctrine as to the charge of murder, without also instructing on the elements of any target crime originally contemplated, the trial court in effect failed to instruct the jury on all of the elements of the murder she was charged with aiding and abetting.

We do not agree with Bray that because the trial court instructed the jury on the “natural and probable consequences” doctrine, the elements of any target crime Bray might have intentionally encouraged or assisted codefendant Prettyman in committing thereby became elements of the crime with which Bray was charged, namely, murder, the crime actually perpetrated by Prettyman. The elements of murder are set forth in the statutes defining first and second degree murder. (§§ 187,189.) Not included in those elements are general rules of accomplice liability, such as the identification and description of target offenses under the “natural and probable consequences” doctrine.

True, this court has held that “Beeman error”—a trial court’s failure to instruct the jury that an aider and abettor must have the specific intent to aid the principal’s crime, as required by People v. Beeman, supra, 35 Cal.3d at pages 550-551—is federal constitutional error. (People v. Croy, supra, 41 Cal.3d at pp. 12-16.) Federal courts reviewing claims of Beeman error by prisoners convicted in California state courts and seeking federal habeas corpus relief have reached the same conclusion. (Roy v. Gomez (9th Cir. 1996) 81 F.3d 863, 866, revd. on other grounds sub nom. California v. Roy (1996) _ U.S. _ [136 L.Ed.2d 266, 117 S.Ct. 337]; Martinez v. Borg (9th Cir. 1990) 937 F.2d 422, 423.) Beeman error, however, “consists of failing to instruct the jury that it must find a particular intent in order to find guilt . . . .” (People v. Croy, supra, 41 Cal.3d at p. 13.) Here, by contrast, no such error occurred in the trial court’s instructions on the “natural and probable consequences” doctrine.

Under the “natural and probable consequences” doctrine, as we have previously explained, the jury must decide: whether the defendant (1) with knowledge of the confederate’s unlawful purpose; and (2) with the intent of committing, encouraging, or facilitating the commission of any target crime(s); (3) aided, promoted, encouraged, or instigated the commission of the target crime(s). The jury must also determine whether (4) the defendant’s confederate committed an offense other than the target crime(s); and whether (5) the offense committed by the confederate was a natural and probable consequence of the target crime(s) that the defendant encouraged or facilitated. The trial court’s instructions in this case encompassed each of these aspects of the “natural and probable consequence” rule. Therefore, “as worded, the instruction[s] [do] not withdraw an element from the jury’s determination or otherwise interject an impermissible presumption into the deliberative process” (People v. Cox (1991) 53 Cal.3d 618, 669 [280 Cal.Rptr. 692, 809 P.2d 351]), nor do they “fail[] to instruct the jury that it must find a particular intent in order to find guilt . . . .” (People v. Croy, supra, 41 Cal.3d at p. 13.)

As we pointed out earlier, however, when a trial court instructs the jury on the “natural and probable consequences” doctrine, but fails to identify and describe the target crime(s) allegedly contemplated by the defendant, there is a risk that the jury will “indulge in unguided speculation” (People v. Failla, supra, 64 Cal.2d at p. 564) in making the requisite factual findings. Thus, the trial court’s instructions in this case, which did not identify or describe any target offenses, were somewhat ambiguous, because they left open the possibility that the jury might engage in unguided speculation.

The United States Supreme Court has held that “in reviewing an ambiguous instruction . . . , we inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” (Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 399, 112 S.Ct. 475], quoting Boyde v. California (1990) 494 U.S. 370, 380 [108 L.Ed.2d 316, 328-329, 110 S.Ct. 1190]; see also People v. Avena (1996) 13 Cal.4th 394, 417 [53 Cal.Rptr.2d 301, 916 P.2d 1000].) As we shall explain, here there is no “reasonable likelihood” that the jury misapplied the trial court’s instructions on the “natural and probable consequences” doctrine, and thus no federal constitutional error occurred.

The trial court instructed the jury in these words: “One who aids and abets is not only guilty of the particular crime aided and abetted, but is also liable for the natural and probable consequences of the crimes they abet. You must determine whether the defendant is guilty of the crime originally contemplated, and, if so, whether any other crime charged was a natural and probable consequence of such originally contemplated crime.” None of the parties, however, mentioned this instruction in their closing arguments to the jury.

The prosecutor’s theory at trial was that defendant Bray was guilty as an aider and abettor to the murder of Van Camp committed by codefendant Prettyman because Bray intentionally assisted the commission of the murder itself, not because she facilitated or assisted some predicate or target offense of which murder was the natural and probable consequence. As the prosecutor argued to the jury: “Miss Bray is also guilty. She did not swing the pipe. She did not do the act which caused the death, because the death was caused by Mr. Prettyman. But she aided and abetted and assisted and conspired with Mr. Prettyman in the killing. . . . She encouraged, she facilitated and she intended to have . . . Mr. Prettyman do the killing, and he did. And under the law, she is just as guilty of murder, and that’s first degree murder.”

The defense, in closing argument, attacked the credibility of prosecution witnesses Edward Bash (who testified he heard Bray threaten to “get” victim Van Camp) and Dennis Charette (who testified that Bray approached him immediately after the killing and told him to leave and not to tell anyone about the matter). According to the defense, the prosecution had not shown beyond a reasonable doubt that Bray had intended to bring about the death of Van Camp. Like the prosecution, the defense did not mention the “natural and probable consequences” rule in its argument to the jury.

Because the parties made no reference to the “natural and probable consequences” doctrine in their arguments to the jury, it is highly unlikely that the jury relied on that rule when it convicted defendant Bray. Rather, it appears that the jury was persuaded by the prosecutor’s argument that Bray encouraged or assisted codefendant Prettyman to murder Van Camp, and thus was guilty of murder as an accomplice to that crime, not as an accomplice to some other unlawful act of which the murder was a natural and probable consequence.

Even if the jury relied on the “natural and probable consequences” doctrine in convicting Bray, there is little likelihood in this case that the trial court’s failure to identify and describe potential target crimes caused the jury to misapply the doctrine. Prettyman bludgeoned Van Camp to death shortly after Bray was heard exhorting Prettyman to “get” Van Camp. There was no evidence of any other possible “target” apart from Prettyman’s assault on Van Camp, an act that was indisputably criminal. There was no evidence that Bray aided and abetted any noncriminal behavior which led, as a “natural and probable consequence,” to Prettyman’s murder of Van Camp, and neither the prosecution nor the defense mentioned any such behavior in their closing arguments to the jury. Under these circumstances, it is unlikely that the trial court’s failure to specify assault with a deadly weapon as a target crime led the jury to misapply the “natural and probable consequences” doctrine by convicting Bray of murder on the theory that she assisted or encouraged some noncriminal target act.

Thus, there is not “ ‘a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution” (Estelle v. McGuire, supra, 502 U.S. at p. 72 [116 L.Ed.2d at p. 399]). Accordingly, the trial court’s failure to issue instructions to the jury identifying or describing any target offense(s) that Bray might have encouraged or assisted codefendant Prettyman to commit in this case did not violate defendant’s federal constitutional right to due process of law.

Although this omission by the trial court did not violate the federal Constitution, it was nonetheless improper under state law. As previously explained, the trial court should either have made no mention of the “natural and probable consequences” doctrine, or if it chose to instruct the jury on the doctrine, it should have done so in a more complete fashion by instructing on potential target crimes. The error, however, was harmless. As explained above, the prosecution proceeded on the theory that Bray encouraged or assisted codefendant Prettyman to murder Van Camp and was guilty of murder as an accomplice to that crime. This theory was amply supported by the evidence, and it is not reasonably probable that the trial’s outcome would have been different in the absence of the trial court’s instructional error. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

VII. Failure to Instruct on Involuntary Manslaughter

Bray contends the trial court should have instructed the jury on the crime of involuntary manslaughter, a lesser offense necessarily included in the charged crime of murder. Bray did not request such an instruction. She asserts, however, that the court should have given the instruction on its own initiative.

The rules governing instruction on lesser included offenses are well established. As we reiterated recently, a trial court must, sua sponte, instruct the jury on lesser included offenses “ ‘when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.’ ” (People v. Barton (1995) 12 Cal.4th 186, 194-195 [47 Cal.Rptr.2d 569, 906 P.2d 531], quoting People v. Sedeño (1974) 10 Cal.3d 703, 715 [112 Cal.Rptr. 1, 518 P.2d 913], brackets in original.)

Manslaughter is “the unlawful killing of a human being without malice.” (§ 192.) Involuntary manslaughter is a killing committed “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).) Generally, involuntary manslaughter is a lesser offense included within the crime of murder. (People v. Edwards (1985) 39 Cal.3d 107, 116, fn. 10 [216 Cal.Rptr. 397, 702 P.2d 555]; In re McCartney (1966) 64 Cal.2d 830, 831 [51 Cal.Rptr. 894, 415 P.2d 782].)

In this case, there was no evidence that as to codefendant Prettyman, the offense was less than the charged crime of murder; as to Prettyman, therefore, the trial court had no duty to instruct the jury, sua sponte, on involuntary manslaughter. Defendant Bray does not contend otherwise. She argues, however, that as to her the evidence supported an instruction on involuntary manslaughter. She reasons: “When a defendant perpetrates an assault that results in an unintended death, and the defendant lacks malice, the defendant is guilty of involuntary manslaughter. Similarly, the liability of a defendant who aids and abets a fatal assault should be limited to involuntary manslaughter if she did not intend the victim be killed and the killing was not a natural and probable consequence of the assault she intentionally aided." Therefore, Bray asserts, in her case the evidence would have supported a jury determination that she was guilty only of involuntary manslaughter, and the trial court should, on its own initiative, have instructed the jury on this lesser offense.

Inherent in Bray’s contention are the propositions that an accomplice to a criminal offense may in some circumstances be guilty of a crime less serious than that committed by the principal, and that the trial court must, even in the absence of a request by the defense, instruct the jury on a lesser included offense arguably committed by the aider and abettor, even if the evidence would not support a jury finding that the actual perpetrator was guilty only of that offense. In support, Bray cites a Court of Appeal decision, People v. Woods (1992) 8 Cal.App.4th 1570 [11 Cal.Rptr.2d 231].

In Woods, the defendant and a companion went in search of a rival gang member. They entered the apartment of two acquaintances of the member of the rival gang, and assaulted the occupants. As they were leaving, they saw two people getting into a car. The defendant’s companion fired into the car, killing one occupant and injuring the other. At trial, the prosecution’s theory was that the defendant was criminally responsible for the shootings committed by his companion, contending that the shootings were a natural and probable consequence of the crimes committed in the apartment that the defendant had aided and abetted. During deliberations, the jury asked, “Can a defendant be found guilty of aiding and abetting a murder in the second degree if the actual perpetrator of the same murder is determined to be guilty of murder in the first degree?” The trial court answered, “No." The Court of Appeal held that this answer was prejudicial error. (People v. Woods, supra, 8 Cal.App.4th at pp. 1579-1590.)

The Woods court reasoned that when the prosecution contends that the defendant is guilty as an accomplice under the “natural and probable consequences” doctrine, the defendant “does not stand in the same position as the perpetrator"; hence, “the aider and abettor and the perpetrator may have differing degrees of guilt based on the same conduct depending on which of the perpetrator’s criminal acts were reasonably foreseeable under the circumstances and which were not.” (People v. Woods, supra, 8 Cal.App.4th at pp. 1586-1587, italics omitted.)

Woods also addressed the question whether the trial court should have instructed the jury on the lesser included offenses of voluntary and involuntary manslaughter. Although the court concluded that under the facts of that case such instructions were unnecessary, it held that in some cases such instructions would be necessary at the trial of an aider and abettor even if the evidence did not show that the actual perpetrator was guilty only of the lesser included offense. As the court explained: “If the evidence raises a question whether the offense charged against the aider and abettor is a reasonably foreseeable consequence of the criminal act originally aided and abetted but would support a finding that a necessarily included offense committed by the perpetrator was such a consequence, the trial court has a duty to instruct sua sponte on the necessarily included offense as part of the jury instructions on aider and abettor liability.” (People v. Woods, supra, 8 Cal.App.4th at p. 1593.)¹¹

In this case, even if one were to assume that the trial court erred in failing to instruct the jury on involuntary manslaughter as a lesser offense necessarily included in the crime of murder, the error was harmless. The trial court instructed the jury on the crime of second degree murder, a lesser offense included within the crime of first degree murder. The jury, by convicting Bray of first degree murder rather than second degree murder, necessarily rejected the possibility that the only natural and probable consequence of the crime she aided and abetted was involuntary manslaughter, a less serious crime. Because “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions” (People v. Sedeño, supra, 10 Cal.3d at p. 721), Bray suffered no prejudice from any possible error in failing to instruct on involuntary manslaughter.

Conclusion

The judgment of the Court of Appeal is affirmed.

George, C. J., Werdegar, J., and Chin, J., concurred.

1 The Court of Appeal affirmed codefendant Prettyman’s murder conviction. We denied Prettyman’s petition for review, which challenged his conviction on grounds other than those addressed here.

2 The 1988 version of CALJIC No. 3.02 stated: “One who aids and abets is not only guilty of the particular crime that to [his] [her] knowledge [his] [her] confederates are contemplating committing, but [he] [she] is also liable for the natural and probable consequences of any criminal act that [he] [she] 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 [in Count[s]_] was a natural and probable consequence of such originally contemplated crime.” Although in this case the instruction that the trial court gave (quoted in the text) is not identical to the instruction just quoted, the parties do not suggest that the differences affect the outcome of this case.

3 The 1992 revision of CALJIC No. 3.02 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: [<JD (1) The crime [or crimes] of_[was] [were] committed, [1 (2) The defendant aided and abetted such crime[s], fiQ (3) A co-principal in such crime committed the crime[s] of_, and [1 (4) The crime[s] of_was a natural and probable consequence of the commission of the crime[s] of__"

4 In this case we need not address, and therefore we do not decide, whether a defendant may be convicted under the “natural and probable consequences” doctrine when the target criminal act was not committed.

5 Early editions of CALJIC did, however, cite the “natural and probable consequences” rule as a principle of conspiracy law. (CALJIC No. 932 (1st ed. 1946); CALJIC No. 932 (2d ed. 1958); CALJIC No. 6.11 (3d ed. 1970).)

6 Of course, in some cases the defendant will be charged with the target crime in addition to the offense that is a natural and probable consequence thereof. (See, e.g., People v. Nguyen (1988) 204 Cal.App.3d 181 [251 Cal.Rptr. 40] [defendant charged and convicted as an aider and abettor both of the target crime of robbery and of attempted murder as a natural and probable consequence of the robbery.].)

7 We disapprove People v. Solis, supra, 20 Cal.App.4th 264, to the extent that it is inconsistent with the views expressed herein.

8 Justice Brown’s concurrence and dissent asserts that our “new instructional requirements” will “vex trial judges and perplex juries.” (Cone, and dis. opn. of Brown, J., post, at p. 292.) But jury instructions on target crimes under the “natural and probable consequences” doctrine are hardly “new.” For more than four years the pattern CALJIC instructions on the doctrine have included target crimes (see CALJIC No. 3.02 (1992 rev.)), and we have seen no evidence of vexation or perplexity.

9 If the the prosecutor requests that the jury be instructed on the “natural and probable consequences” doctrine, but fails to identify potential target crimes, the trial court should inquire about the particular target offenses on which instruction is desired.

10 Had the prosecutor so elected, for example, the evidence in this case would have supported an instruction on the “natural and probable consequences” rule that identified assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245) as a target crime.

11 Bray’s argument appears to be based on reasoning similar to, but slightly different from, the analysis of the Court of Appeal in People v. Woods, supra, 8 Cal.App.4th 1570. She does not argue that the jury could have convicted her of involuntary manslaughter because that crime was a natural and probable consequence of a crime she encouraged or assisted; rather, she contends that she could have been found guilty of that offense under the general rules of liability for aiders and abettors described in People v. Beeman, supra, 35 Cal.3d 547. She reasons that the jury could have convicted her of involuntary manslaughter if it concluded that she aided and abetted an assault on victim Van Camp which resulted in his death, but that the death was not a natural and probable consequence of the assault.