APPEAL from a judgment of the Superior Court of Yolo County, David Rosenberg, Judge. Reversed in part and affirmed in part. (Super. Ct. No. 05-7051).
The opinion of the court was delivered by: Nicholson , Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendants Cedric Hart and Tyrone Rayford entered a liquor store intending to rob the husband and wife working there. Hart exhibited a gun and demanded money. When Hart saw a gun in an open drawer below the cash register, he fired on the husband, hitting him in the abdomen.
Convicted of attempted robbery, attempted murder, and assault with a firearm, the defendants appeal. They make contentions of error relating to the sufficiency of the evidence, the jury instructions, and sentencing.
In the published portion of this opinion, we focus on the trial court‟s instructions with respect to the natural and probable consequences doctrine. Under the instructions as given, the jury may have convicted Rayford of attempted premeditated murder as an aider and abettor under the natural and probable consequences doctrine. The instructions on natural and probable consequences, however, referred to "attempted murder" without noting that, in order to convict Rayford of attempted premeditated murder under the natural and probable consequences doctrine, the jury would have to find that attempted premeditated murder was a natural and probable consequence of the attempted robbery. We therefore conclude that Rayford‟s conviction for attempted premeditated murder must be reversed and remanded.
In the unpublished portion of this opinion, we conclude that the defendants‟ remaining contentions are without merit.
On a November evening, Zakkiyyah Spikes, who was defendant Cedric Hart‟s girlfriend, drove Hart and defendant Tyrone Rayford from south Sacramento to West Sacramento in her Buick. She got off the freeway in West Sacramento, and Hart took over driving. Hart stopped the Buick on a residential street, and he and Rayford got out but left the engine running. Spikes stayed in the car.
Hart and Rayford went into the Poplar Food and Liquor Store where Parvinder Singh and Rupindir Kaur (also known as Rimpi Parher), husband and wife, were working. Hart and Rayford entered the store and raised Singh‟s suspicions by the way they were acting, looking out the window.
When the only other customer in the store left, Hart and Rayford approached the counter. Singh was behind the counter, at one of the cash registers. Hart and Rayford paid for some items, and Singh gave them change. Hart asked for a plastic bag, and Singh gave him one. After Singh gave Hart the bag, Hart opened his coat, revealing a gun and pointing it at Singh, and told Singh to put all the money in the bag.
Rayford moved behind the counter, and Hart moved to the edge of the counter. Singh opened a drawer under the cash register, where money was kept. There was also a gun in the drawer. As Singh put his hand on the money in the drawer, Hart saw the gun and shot at Singh. Hart rapidly fired the gun three times, hitting Singh in the abdomen once. Hart and Rayford moved away from Singh, Hart walking backwards toward the door, and Singh grabbed the gun and shot back. Singh shot Hart in the chest. During the exchange, Kaur was hit in the left hand and Rayford in the left foot.
Hart and Rayford rejoined Spikes in the Buick, and Spikes drove away. Officers of the West Sacramento Police Department soon gave chase but did not detain the three occupants until they had driven to Methodist Hospital in south Sacramento.
The two victims survived and testified at trial. Additional evidence is summarized as it becomes relevant to the discussion.
The district attorney charged Hart and Rayford by information with two counts of attempted second degree robbery (Pen. Code, §§ 21a, 211, 212.5, subd. (c) -- counts 1 and 2); two counts of attempted murder (Pen. Code, §§ 21a, 187, subd. (a) -- counts 3 and 4); and two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2) -- counts 5 and 6). As to the attempted robbery and attempted murder counts, the district attorney alleged that Hart personally discharged a firearm causing great bodily injury (Pen. Code, § 12022.53, subd. (d)) and that Rayford participated in a crime in which a principal was armed (Pen. Code, § 12022, subd. (a)(1)). As to the attempted murder counts, the district attorney alleged the attempted murders were willful, deliberate, and premeditated (Pen. Code, § 189). As to the assault with a firearm charged in count 5, the district attorney alleged that Hart personally used a firearm (Pen. Code, § 12022.5, subd. (a)) and personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). As to the assault with a firearm charged in count 6, the district attorney alleged that Hart personally used a firearm (Pen. Code, § 12022.5, subd. (a)).
A jury found Rayford not guilty on count 4 (attempted murder of Rupindir Kaur), and could not reach of verdict concerning Hart on the same count. The jury convicted Hart and Rayford on all other counts and found all allegations associated with those counts true.
Count 4 against Hart was dismissed on the district attorney‟s motion.
The trial court sentenced Hart to an indeterminate term of life with possibility of parole on count 3 (attempted murder) and consecutive indeterminate terms of 25 years to life for the Penal Code section 12022.53, subdivision (d) enhancements (personally discharging a firearm causing great bodily injury) on counts 1 and 2. The court imposed consecutive determinate terms for counts 1 and 2 (attempted robbery) -- the upper term of three years for count 1 and eight months (one-third of the middle term) for count 2. The court imposed and stayed terms on counts 5 and 6 (with enhancements) and on the Penal Code section 12022.53, subdivision (d) enhancement associated with count 3. The aggregate sentence imposed on Hart is a determinate term of three years eight months, plus an indeterminate term of 50 years to life, plus an indeterminate term of life with possibility of parole.
The trial court sentenced Rayford to an indeterminate term of life with possibility of parole on count 3 (attempted murder). The court imposed consecutive determinate terms on counts 1 and 2 (attempted robbery) -- the middle term of two years for count 1 and eight months (one-third the middle term) for count 2. The court also imposed a one-year firearm enhancement on count 1 under Penal Code section 12022, subdivision (a)(1). The court imposed and stayed terms on counts 5 and 6 and on the firearm enhancements associated with counts 2 and 3. The aggregate sentence imposed on Rayford is a determinate term of three years eight months, plus an indeterminate term of life with possibility of parole.
I. Natural and Probable Consequences Instruction
One of the prosecution‟s theories of guilt as to Rayford was that he aided and abetted Hart in the attempted robbery of Singh and that the attempted murder of Singh was a natural and probable consequence of the attempted robbery. Convicted of attempted murder of Singh with premeditation and deliberation, Rayford contends that the trial court did not sufficiently instruct the jury concerning the relationship between the natural and probable consequences doctrine and the premeditation and deliberation element of attempted premeditated murder. We agree. And we further determine that the error was prejudicial.
A. 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. [Citations.] [¶] Although the "natural and probable consequences‟ doctrine has been "subjected to substantial criticism‟ [citation], it is an "established rule‟ of American jurisprudence [citation]. 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.‟ [Citation.]" (People v. Prettyman (1996) 14 Cal.4th 248, 260 (Prettyman).)
"The determination whether a particular criminal act was a natural and probable consequence of another criminal act aided and abetted by a defendant requires application of an objective rather than subjective test. [Citations.] This does not mean that the issue is to be considered in the abstract as a question of law. [Citation.] Rather, the issue is a factual question to be resolved by the jury in light of all of the circumstances surrounding the incident. [Citations.] Consequently, the issue does not turn on the defendant‟s subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendant‟s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. [Citations.]" (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)
B. Instructions on Natural and Probable Consequences
The trial court instructed the jury concerning the natural and probable consequences doctrine. It used CALCRIM No. 402 and inserted "attempted robbery" for the target crime and "attempted murder or assault with a firearm" for the nontarget crime. This instruction on the natural and probable consequences doctrine did not mention the premeditation element of attempted premeditated murder as charged and prosecuted in this case.
The instruction stated: "The defendants are charged in Counts 1 and 2 with attempted second [degree] robbery, and in Counts 3 and 4 with attempted murder, and in ...