Los Angeles County Ct.App. 2/4 B215387 Super. Ct. No. BA285265
The opinion of the court was delivered by: Chin, J.
In this case, a jury found defendant guilty of two counts of robbery, as an aider and abettor, and guilty of two counts of attempted murder, on the theory that the nontarget offenses of attempted murder were a natural and probable consequence of the target offenses of robbery which defendant had aided and abetted. The jury further found that the attempted murders were willful, deliberate, and premeditated, under Penal Code section 664, subdivision (a) (section 664(a)).*fn1 The statute increases the punishment for attempted murder beyond the maximum otherwise prescribed, when those findings are found true by the trier of fact.
In People v. Cummins (2005) 127 Cal.App.4th 667 (Cummins), the Court of Appeal held that as to the premeditation allegation under section 664(a), the trial court need only instruct that the jury must find that the commission of attempted murder was a natural and probable consequence of the target crime of robbery. It need not instruct that premeditation must also be a natural and probable consequence of the robbery. (Id. at pp. 680-681.) On the other hand, in People v. Hart (2009) 176 Cal.App.4th 662 (Hart), the Court of Appeal held the trial court must instruct that the jury must find that attempted premeditated murder, not just attempted murder, was a natural and probable consequence of the target offense. (Id. at p. 673.)
In a published opinion, the Court of Appeal here followed Cummins and concluded the instructions were sufficient with respect to the natural and probable consequences doctrine as applied to the premeditation allegation under section 664(a). We granted review to resolve the conflict.
We agree with Cummins and the Court of Appeal in this case that the jury need not be instructed that a premeditated attempt to murder must have been a natural and probable consequence of the target offense.
I. FACTS AND PROCEDURAL HISTORY
On November 8, 2004, defendant accompanied two companions to the A & J Liquor store, which also operated a check-cashing business. Owner Paul Lee and employees Pablo Castaneda and Jose Huerta were working. Huerta had his back turned when two or three individuals entered the store and locked the door. Huerta heard a gunshot fired from near his head, and felt its discharge burn his head. He fell to the floor and stayed there. After the shot near his head, he heard three more gunshots and a cash register being opened. One of the intruders ordered, "Get the telephone, get the cameras, and I'll find you. You already know where." A second person asked, "Where are the cameras?" Huerta answered that the cameras were in the back. When one of the men demanded his money, Huerta gave it to him. Huerta walked to the office in the back of the store, where the security videos were located. The man followed him, looked around inside the room, then exited the store. After the intruders left, Huerta locked the door and found that Castaneda had been shot once in the head and was dead. Lee was lying on the ground and had been shot twice, once in the neck and once in the chest. Although suffering grave injury, Lee ultimately survived.
It was later determined that the robbers took between $50,000 and $70,000 from the check-cashing portion of business, approximately $1,000 from the grocery portion of the business, as well as a mobile telephone, and prepaid telephone calling cards.
In June 2005, the police arrested defendant after a flyer was distributed, containing a photograph of defendant from the store security video. During a recorded interview, which was played at trial, defendant admitted that he went to the A & J Liquor Store earlier on the day of the robbery with an ex-gang member known as "Trouble." The two men noticed that the store was not very secure. Trouble said he would tell his partners about it, and they got on a bus to meet up with them. Defendant stated that he recognized one of the men from the streets as an active gang member. He was also fairly sure he had gone to high school with the other man, who was the shooter. Defendant described the shooter as a "shady character" who was not to be trusted.
After Trouble told the two men about the liquor store, defendant and the two men took the bus back to the store. Defendant went in the store first to see how many people were inside. Seeing nobody, he walked out. Defendant claimed that the two men then entered the store without him, and that he heard gunshots. In response to defendant's knock, the shooter opened the door with a gun in his hand and told defendant to "get the money." Defendant saw that several people had been shot and proceeded to take everything from the cash register. He also grabbed a mobile phone and gave it to the shooter.
However, the store's video showed that defendant and two men entered the store together. Defendant entered first, a man wearing a security jacket entered second, and the shooter entered third.
The prosecution charged defendant with one count of first degree murder, with the special circumstance that it was committed while he was engaged in the commission of a robbery (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(A)), two counts of attempted murder (§§ 664/187, subd. (a)), and two counts of second degree robbery (§ 211). The information further alleged that a principal was armed with a firearm (§ 12022, subd. (a)(1)), and that the attempted murders were committed willfully, deliberately and with premeditation. Under the prosecution's theory at trial, defendant was guilty of first degree murder under the felony-murder rule, of robbery as an aider and abettor, and of attempted murder under the natural and probable consequences doctrine.
A jury found defendant guilty as charged and the enhancement allegations to be true. The trial court imposed a sentence of life imprisonment without possibility of parole for the murder and consecutive terms of life imprisonment with the possibility of parole for the attempted murders, with an additional year on each term for the arming enhancement. It stayed the sentences for robbery.
The Court of Appeal affirmed the convictions. Relying on our decision in People v. Lee (2003) 31 Cal.4th 613 (Lee) and on Cummins, supra, 127 Cal.App.4th 667, and disagreeing with Hart, supra, 176 Cal.App.4th 662, the court concluded that the trial court did not err in failing to relate the premeditation and deliberation instruction to the natural and probable consequences instruction.
We granted defendant's petition for review.
Defendant contends that the willful, deliberate, and premeditated findings should be vacated. He argues that the trial court failed to instruct that the jury had to find, not only that the attempted murder was a natural and probable consequence of the robberies, but also that the perpetrator's willfulness, deliberation, and premeditation were natural and probable consequences.
" 'A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.]' [Citation.] Liability under the natural and probable consequences doctrine 'is measured by whether 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.' [Citation.]" (People v. Medina (2009) 46 Cal.4th 913, 920; see People v. Prettyman (1996) 14 Cal.4th 248, 254.) A reasonably foreseeable consequence is a factual issue to be resolved by the jury who evaluates all the factual circumstances of the individual case. (People v. Medina, supra, 46 Cal.4th at p. 920.)
Under the prosecution's theory at trial, defendant was guilty of the target offense of robbery as an aider and abettor, and of the nontarget offense of attempted murder as a natural and probable consequence of the robbery. Regarding that theory, the trial court instructed (pursuant to CALCRIM No. 402) as follows: "The defendant is charged in Counts 4 through 5 with robbery and in Counts 2 through 3 with attempted murder. [¶] You must first decide whether the defendant is guilty of robbery. If you find the defendant is guilty of this crime, then you must decide whether he is guilty of attempted murder. [¶] Under certain circumstances, a person who is guilty of one crime also may be guilty of other crimes that were committed at the same time. [¶] To prove that the defendant is guilty of attempted murder, the People must prove that: [¶] 1. The defendant is guilty of robbery; [¶] 2. During the commission of robbery, a co-participant in that robbery committed the crime of attempted murder, and [¶] 3. Under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of attempted murder was a natural and probable consequence of the commission of the robbery."
The prosecution alleged that the attempted murder was willful, deliberate, and premeditated under the penalty provision of section 664(a). Section 664(a) provides that a defendant convicted of attempted murder is subject to a determinate term of five, seven, or nine years. However, a defendant convicted of attempted murder is subject to a sentence of life with the possibility of parole if the jury finds that the attempted murder was "willful, deliberate, and premeditated murder, as defined in Section 189." (Ibid.)
Regarding the attempted murder/premeditation allegation, the trial court instructed (pursuant to CALCRIM No. 601) as follows: "If you find the defendant guilty of attempted murder in Count 2 and/or Count 3, then you must decide whether the People have proved the additional allegation that the attempted murder was done willfully and with deliberation and premeditation, within the meaning of Penal Code section 664(a). [¶] The defendant and/or a principal acted willfully if he intended to kill when he acted. The defendant and/or a principal deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant and/or a principal premeditated if he decided to kill before acting. [¶] The attempted murder was done willfully and with deliberation and premeditation if either the defendant or a principal or both of them acted with that state of mind."
Relying primarily on Hart, supra, 176 Cal.App.4th 662, defendant argues that the trial court committed reversible instructional error by failing to instruct the jury on the natural and probable consequences doctrine as to the nontarget offense of attempted willful, deliberate, and premeditated murder.
The facts in Hart are similar to the present case. The defendant and a confederate attempted to rob a store employee, who was shot by the confederate during the commission of the offense. The store employee survived. The jury found defendant guilty of attempted murder and that the attempted murder was willful, deliberate, and premeditated. One of the prosecution's theories of guilt was that the attempted murder was a natural and probable ...