8 Cal. App. 4th 1570, 11 Cal. Rptr. 2d 231 (1992)
After their friend was shot by rival gang member Mayse Walker, defendants Barry Dewayne Woods and John Windham, along with several accomplices, set out to find Walker in an apparent effort to retaliate for the shooting. Wearing ski masks and armed with guns, they went to the apartment of Susan Allen and Trudy Johnson, two of Walker's acquaintances. After Woods beat up one of the women's neighbors, Woods and his cohorts forcibly entered the apartment while Windham waited outside as a lookout. At gunpoint the intruders demanded to know Walker's whereabouts, assaulted both women, and shot Johnson, but Allen and Johnson could not tell them where to find Walker. After being warned that someone said the police were coming, the intruders departed with two automobile tires Walker had stored at the apartment.1
Outside a nearby apartment complex the assailants loaded the tires into their car. A few parking stalls away Craig Chmelik and James McMahon were preparing to depart in Chmelik's Mustang. Noticing the pair, Woods drew a large handgun, loaded it, and fired six shots into the Mustang, wounding McMahon and killing Chmelik. After the shooting Woods and Windham went to a friend's house where Woods hid the murder weapon and he and Windham apparently flushed bullet shells down the toilet.2
Defendants were convicted of first degree murder of Chmelik, attempted murder of McMahon, and assaults with firearms on Allen and Johnson, with numerous enhancing allegations found true including that Woods used a firearm and Windham was armed with a gun.3
During deliberations, the jury sent the trial court the question whether a defendant can 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.4 After discussing the matter with counsel, the trial court answered no.5 Windham appealed the conviction to the Court of Appeal of the State of California, Third District, contending the trial court's response misinstructed the jury on aider and abettor liability.6 The published portion of the opinion addresses the instructional issue arising from the jury's question and the trial court's answer.7
Whether the trial court misinstructed the jury by answering no to the question whether a defendant can be found guilty of aiding and abetting second degree murder if the actual perpetrator is determined to be guilty of first degree murder?8
Under Penal Code section 31, an aider and abettor is liable vicariously for any crime committed by the perpetrator which is a reasonably foreseeable consequence of the criminal act originally contemplated by the perpetrator and the aider and abettor.9 An aider and abettor may be found guilty of a lesser degree of crime than the ultimate offense committed by the perpetrator where the evidence suggests the ultimate crime was not a reasonably foreseeable consequence but a lesser crime committed by the perpetrator during the accomplishment of the ultimate crime was such a consequence.10
Yes. The trial court erred when it answered the jury's question in the negative.11 The prosecution's theory was that Windham aided and abetted Woods to commit the criminal acts of assaulting Allen and Johnson with firearms to coerce the victims into telling defendants where Walker was located so defendants could find and harm him in retaliation for the gang-related shooting of their friend.12 The evidence raised a question whether the first degree murder of Chmelik was a reasonably foreseeable consequence of the armed assaults on Allen and Johnson which Windham aided and abetted.13 The evidence established beyond question that the necessarily included offense of second degree murder was a reasonably foreseeable consequence.14
The jury's question during deliberations showed they were considering whether Windham could be convicted of second degree murder even if Woods was guilty of first degree murder.15 The court's negative answer withdrew from the jury a question of fact which the jury was responsible for finding.16
The instructional error requires reversal of Windham's first degree murder conviction unless the People accept a reduction of the conviction to second degree murder.17
Related opinions on this issue
Justice Sparks dissents on the ground that the trial court's answer was correct.18 Aider and abettor liability under Penal Code section 31 is derivative.19 It is an all-or-nothing proposition with respect to the ultimate crime committed by the perpetrator if that crime is a natural and probable consequence of the abetted crime.20
The majority misapprehends the doctrine by slicing the foreseeability requirement too thin.21 It is enough that an unlawful killing was a likely consequence of the target crime.22 The aider's fate is inexorably tied to the perpetrator.23
Whether the trial court has a duty to instruct sua sponte on necessarily included offenses for an aider and abettor when the evidence raises a question whether the greater offense is a reasonably foreseeable consequence of the criminal act originally aided and abetted but would support a finding that a lesser included offense was such a consequence?24
Even when necessarily included offense instructions are not required for the perpetrator because the evidence establishes that if guilty at all the perpetrator is guilty of the greater offense, the trial court has a duty to instruct sua sponte on necessarily included offenses for the aider and abettor if the evidence raises a question whether the greater offense is a reasonably foreseeable consequence of the criminal act originally contemplated and abetted but would support a finding that a lesser included offense committed by the perpetrator was such a consequence.25 The trial court need not instruct on a particular necessarily included offense if the evidence is such that the aider and abettor if guilty at all is guilty of something beyond that lesser offense.26
Yes. The trial court had a duty to inform the jurors they could convict Windham of second degree murder as an aider and abettor even though they found Woods was guilty of first degree murder.27 The evidence established beyond question that second degree murder was a reasonably foreseeable consequence of the initial armed assaults on Allen and Johnson.28 No evidence suggested that second degree murder ensuing from the armed onslaught was unforeseeable.29
Because the evidence raised a question whether first degree murder was a reasonably foreseeable consequence but supported a finding that second degree murder was such a consequence, the trial court was required to give the instruction on the lesser included offense as part of the jury instructions on aider and abettor liability to avoid giving the jury an unwarranted all-or-nothing choice.30
The trial court had a duty to instruct on second degree murder for the aider and abettor but did not have a duty to instruct on included offenses less than second degree murder.31
Whether the evidence supports the jury's implied finding that the shooting of Chmelik and McMahon was a reasonably foreseeable consequence of the armed assaults on Allen and Johnson which Windham aided and abetted?32
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.33 The determination whether a crime committed by the perpetrator was a reasonably foreseeable consequence of the crime or crimes originally contemplated is founded on an objective analysis of causation rather than the aider and abettor's subjective view.34
Yes. Viewed most favorably to the judgment the evidence shows that Windham was present when Walker a rival gang member shot Windham's friend in the foot.35 Windham accompanied Woods and his associates to the apartment of Walker's acquaintances Allen and Johnson.36 Woods Windham and the others wore ski masks and were armed with guns.37
Windham acted as a lookout while the others forcibly entered the apartment demanded to know Walker's whereabouts assaulted both women and shot Johnson.38 Windham warned the others to leave because he believed someone had called the police.39 The jury could have answered the foreseeability question in the affirmative by inferring that Chmelik and McMahon were shot because they had witnessed the perpetrators during the ongoing theft of the tires.40 It was reasonably foreseeable that a perpetrator of armed assaults on three victims having beaten one and shot another might with deliberation and premeditation seek to eliminate witnesses.41
The evidence supports the jury's implied finding that the shootings were reasonably foreseeable consequences of the armed assaults Windham aided and abetted.42 A fortiori the evidence supports a finding that Windham is liable as an aider and abettor for second degree murder as a necessarily included offense.43
Whether the trial court erred in failing to instruct on lesser included offenses less than second degree murder for the aider and abettor?44
The trial court need not instruct on a particular necessarily included offense if the evidence is such that the aider and abettor if guilty at all is guilty of something beyond that lesser offense i.e. if the evidence establishes that a greater offense was a reasonably foreseeable consequence of the criminal act originally contemplated and no evidence suggests otherwise.45
No. The evidence established beyond question that second degree murder was a reasonably foreseeable consequence of the initial armed assaults on Allen and Johnson.46 No evidence suggested that second degree murder ensuing from the armed onslaught was unforeseeable. Because the evidence was such that Windham if guilty at all as an aider and abettor was guilty of at least second degree murder, the trial court was not required to instruct on included offenses less than second degree murder.47
The trial court did not err in failing to instruct on lesser included offenses less than second degree murder for the aider and abettor.48