[Copyrighted Material Omitted]
Superior Court of Sacramento County, No. 03F08566, Lloyd G. Connelly, Judge. Court of Appeal, Third Appellate District, No. C063913.
Scott Concklin, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Donald E. de Nicola, Deputy State Solicitor General, Carlos A. Martinez, Eric L. Christoffersen and Jennevee H. de Guzman, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Chin, J., with Baxter, J., Werdegar, and Corrigan, JJ., concurring. Dissenting Opinion by Kennard, J., with Cantil-Sakauye, and Liu, JJ., concurring.
[325 P.3d 974] [172 Cal.Rptr.3d 440] CHIN, J.
There are two distinct forms of culpability for aiders and abettors. " First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also 'for any other offense that was a " natural and probable consequence" of the crime aided and abetted.' " ( People v. McCoy (2001) 25 Cal.4th 1111, 1117 [108 Cal.Rptr.2d 188, 24 P.3d 1210] ( McCoy ).) This case involves the second form of aider and abettor culpability.
In this case, a jury found defendant, Bobby Chiu, guilty of first degree willful, deliberate and premeditated murder (premeditated murder), on the theory that either he directly aided and abetted the murder or he aided and abetted the " target offense" of assault or of disturbing the peace, the natural and probable consequence of which was murder. On the natural and probable consequences theory, the trial court instructed that the jury could find defendant guilty of first degree murder if it determined that murder was a natural and probable consequence of either target offense aided and abetted, and if in committing murder, the perpetrator acted willfully, deliberately, and with premeditation.
The Court of Appeal held that the trial court erred in failing to instruct that the jury must find first degree premeditated murder was the natural and probable consequence of either target offense. If the jury relied on the natural and probable consequences theory to return the first degree murder conviction, it " necessarily convicted defendant of first degree murder simply because that was the degree of murder the jury found the perpetrator committed." Being unable to find the error [172 Cal.Rptr.3d 441] harmless, it reversed defendant's first degree murder conviction.
Like the Court of Appeal, we find instructional error, but for a different reason. We now hold that an aider and abettor may not be convicted of first
degree premeditated murder under the natural and probable consequences doctrine. Rather, his or her liability for that crime must be based on direct aiding and abetting principles. (See McCoy, supra, 25 Cal.4th at pp. 1117-1118.) Because the error here was prejudicial, we affirm the Court of Appeal's judgment reversing defendant's first degree murder conviction.
I. FACTS AND PROCEDURAL HISTORY
On September 29, 2003, McClatchy High School students Sarn Saeteurn and Mackison Sihabouth argued over two girls in an instant message exchange. Saeteurn challenged Sihabouth to an afterschool fight outside a pizzeria, Famous Pizza, the next day. Saeteurn told Sihabouth that he was going to bring his " homies" with him, and threatened to shoot Sihabouth's father if his father tried to stop the fight. Sihabouth called Simon Nim, a member of the Hop Sing gang, for [325 P.3d 975] help. Defendant Bobby Chiu also learned about the fight.
The next day, defendant told American Legion High School student Toang Tran about the fight. Defendant asked Tran if he " want[ed to] see someone get shot," told Tran that there was going to be a fight over a girl, and said his " friend" would shoot if his " friend feels pressured." Sihabouth showed up for the fight but left after he saw a crowd. Saeteurn did not show up for the fight because he learned that Hop Sing members planned to be there and he believed they" 'are crazy and they kill people.' " Defendant and his friends, Tony Hoong and Rickie Che, went to Famous Pizza that day.
McClatchy High School student Teresa Nguyen met her boyfriend, American Legion student Antonio Gonzales, outside Famous Pizza the day of the fight. Defendant said something to Nguyen which she did not hear. Defendant snickered when Nguyen asked if he was mocking her. Nguyen told defendant to " shut up," and Gonzales left a conversation he was having with another friend to see what was the matter. Gonzales and defendant exchanged fighting words, and Gonzales walked toward defendant, who got off the trunk of the car on which he had been sitting with Hoong and Che. As Gonzales walked toward defendant, Gonzales's friend, Roberto Treadway, told Gonzales, " I got your back." Che and Hoong stood alongside defendant. After the groups exchanged more words and glared at one another, Che punched Treadway. Defendant swung at Gonzales, and Gonzales swung back. Defendant then tackled Gonzales and started hitting him while he lay on the ground. Soon, a full-scale brawl was underway, with as many as 25 people fighting. Gonzales's cousin, Angelina Hernandez, struck defendant eight or nine times in the head with her fists, allowing Gonzales to get off the ground and resume fighting defendant. Treadway's cousin, Joshua Bartholomew, also hit defendant hard in the back of the head soon after.
Bartholomew testified that after he struck defendant, he heard defendant tell Che to " [g]rab the gun." However, Gonzales, who had been fighting in close contact with defendant, did not hear defendant mention a gun. Soon, Bartholomew and Treadway attempted to leave the scene because they feared the police officer assigned to McClatchy High School could appear at any moment. Hoong pulled out a pocket knife and stabbed [172 Cal.Rptr.3d 442] Treadway in the arm. Che appeared with a gun he had retrieved from a car trunk and pointed it at Gonzales's face and said, " Run now, bitch, run." Gonzales ran. Che then pointed the gun at Bartholomew and Treadway. When he hesitated rather than shoot, defendant and Hoong yelled " shoot him, shoot him.' " Che shot Treadway dead. Che, defendant, and Hoong then fled together in a car.
Defendant testified that he heard about the fight the night before the incident. He claimed that he did not know that Che had a gun. He said he mocked Nguyen in an attempt to " hit on her." Defendant testified that during the fight with Gonzales, he felt continuous punches into the back of his head, received a blow to the face, and bled from his nose. Defendant denied calling for anyone to get a gun, and claimed that he did not want or expect Che to shoot Treadway.
The prosecution charged defendant with murder (Pen. Code, § 187, subd. (a)), with gang enhancement and firearm use allegations. At trial, the prosecution set forth two alternate theories of liability. First, defendant was guilty of murder because he directly aided and abetted Che in the shooting death of Treadway. Second, defendant was guilty of murder because he aided and abetted Che in the target offense of assault or of disturbing the peace, the natural and probable consequence of which was murder.
Regarding the natural and probable consequences theory, the trial court instructed that before it determined whether defendant was guilty of murder, the jury had to decide (1) whether he was guilty of the target offense (either assault or disturbing the peace); (2) whether a coparticipant committed a murder during the commission of the target offense; and (3) whether a reasonable person in defendant's position would have known that the commission of the murder was a natural and probable consequence of the commission of either target offense. (CALCRIM No. 403.)
[325 P.3d 976] The trial court instructed that to find defendant guilty of murder, the People had to prove that the perpetrator committed an act that caused the death of another person, that the perpetrator acted with malice aforethought, and that he killed without lawful justification. (CALCRIM No. 520.)
The trial court further instructed that if the jury found defendant guilty of murder as an aider and abettor, it had to determine whether the murder was in
the first or second degree. It then instructed that to find defendant guilty of first degree murder, the People had to prove that the perpetrator acted willfully, deliberately, and with premeditation, and that all other murders were of the second degree. (CALCRIM No. 521.)
The jury found defendant guilty of first degree murder and the gang and firearm use allegations true.
As noted, the Court of Appeal reversed the first degree murder conviction. It held that the trial court erred in failing to instruct sua sponte that the jury must determine not only that the murder was a natural and probable consequence of the target crime, but also that the perpetrator's willfulness, deliberation, and premeditation were natural and probable consequences.
We granted the People's petition for review.
Penal Code section 31,  which governs aider and abettor liability, provides in relevant part, " [172 Cal.Rptr.3d 443] All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission ... are principals in any crime so committed." An aider and abettor is one who acts " 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 (1984) 35 Cal.3d 547, 560 [199 Cal.Rptr. 60, 674 P.2d 1318].)
" '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.' " ( People v. Medina (2009) 46 Cal.4th 913, 920 [95 Cal.Rptr.3d 202, 209 P.3d 105] ( Medina ), citing People v. Prettyman (1996) 14 Cal.4th 248, 260-262 [58 Cal.Rptr.2d 827, 926 P.2d 1013] ( Prettyman ).) " Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that ...