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People v. Rizo4/24/2002
elated to the victims of the crime originally contemplated, the assault in the apartment. The homicide occurred well after the assault, at a different location, as the defendants were preparing to leave the scene. From all appearances, it was a spur of the moment afterthought and not a planned offense.
In this case, in contrast, Ivan stated his intention to kill Galvan while they were still in the nightclub. Although not all of the other defendants may have heard him, there was also evidence that threats to kill Galvan were being shouted outside the club, as defendants and the others prepared to attack him. At some point, defendants obtained and distributed firearms to one another for use in the fight. Galvan was clearly the intended victim of the originally contemplated crime, whatever that crime may have been.
If, as the court in Woods held, the jury could not reasonably find second degree murder was not foreseeable on the facts in Woods, much less could the jury make such a finding in this case. Under Woods, to hold that involuntary manslaughter instructions were required, we would have to conclude the jury could reasonably find not only that involuntary manslaughter was foreseeable but that second degree murder was not. We cannot reach that conclusion on this record. Therefore, instructions on involuntary manslaughter were not required.
C. Alleged Failure to Instruct on Voluntary Manslaughter Under Natural and Probable Consequences Doctrine
The blue jury defendants argue the court also failed to instruct on voluntary manslaughter as an alternative to murder under the natural and probable consequences doctrine. The record, however, shows the court did so instruct. The court told the jury:
"In order to find the defendant guilty of the crime charged in Count I, first-degree murder, or any of the lesser-included offenses to Count I, including second-degree murder or voluntary manslaughter, you must be satisfied beyond a reasonable doubt that:
"1, the crime of simple assault or the crime of battery or of brandishing of a firearm or of assault by means of force likely to produce great bodily injury or of assault with a firearm was committed;
"2, that the defendant aided and abetted one of those crimes hereafter known as the target crime;
"3, that a co-principal in that target crime also committed the crime of murder or any of the lesser-included offenses to Count I, and
"4, the crime of murder or the lesser-included offenses to Count I committed by a co-principal was a natural and probable consequence of the commission of the target crime." (Italics added.)
Thus, the instructions made clear to the jury that voluntary manslaughter was a lesser included offense of murder and that defendants could be convicted of voluntary manslaughter if the jury found that crime was a natural and probable consequence of the target crimes.
In any event, as discussed in the preceding section, instructions on lesser included offenses under the natural and probable consequences doctrine are only required where the facts would support a determination that the greater crime was not a reasonably foreseeable consequence but the lesser offense was such a consequence. (Woods, supra, 8 Cal.App.4th at p. 1588.) As also discussed in that section, the facts in this case do not support a determination that murder was not a reasonably foreseeable consequence of the target crimes. Hence, as in Woods no instructions under the natural and probable consequences doctrine on offenses less than second degree murder, whether voluntary or involuntary manslaughter, were required.
D. Failure to Inst
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