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People v. Rizo4/24/2002
e subject; the instruction may simply have been unnecessary. (People v. Johnson (1993) 6 Cal.4th 1, 43.)
E. Failure to Require Unanimity on Target Crime for Aiding and Abetting
The blue jury defendants argue the court erred in not instructing the jury it must unanimously agree on the "target" crime committed by defendants in order to find them guilty of murder as aiders and abettors.
"Under California law, a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a `natural and probable consequence' of the crime originally aided and abetted. To convict a defendant of a nontarget crime as an accomplice under the `natural and probable consequences' doctrine, the jury must find that, with knowledge of the perpetrator's unlawful purpose, and with the intent of committing, encouraging, or facilitating the commission of the target crime, the defendant aided, promoted, encouraged, or instigated the commission of the target crime. The jury must also find that the defendant's confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate was a `natural and probable consequence' of the target crime that the defendant assisted or encouraged." (People v. Prettyman, supra, 14 Cal.4th 248, 254 (Prettyman).)
Here, the court instructed the jury that the possible target crimes were simple assault, battery, brandishing a firearm, assault by means of force likely to produce great bodily injury, and assault with a firearm. The court further instructed, in accordance with CALJIC No. 3.02 (2000 Re-revision), that the jury "need not unanimously agree on the particular target crime the defendant aided and abetted."
The provision of CALJIC No. 3.02 stating unanimity as to the target crime is not required is based on Prettyman. In Prettyman, the California Supreme Court concluded that, when the prosecution relies on the "natural and probable consequences" doctrine, the trial court must identify and describe the target crimes that the defendant might have assisted or encouraged. (Prettyman, supra, 14 Cal.4th at pp. 254, 266-267.)
However, the court also stated that "to convict a defendant of a crime under this doctrine, the jury need not unanimously agree on the particular target crime the defendant aided and abetted." (Id., at pp. 267-268.)
Defendants argue the latter statement was dictum, because there is no indication the issue of unanimity was raised in Prettyman; instead, the issue was whether the court was required to identify and describe the target offense. Strictly speaking, defendants may be correct. However, the Supreme Court in Prettyman undertook to clarify and set forth for the benefit of trial judges the principles on which the jury must be instructed in a case of aider and abettor liability based on the natural and probable consequences doctrine. The court clearly believed the lack of a unanimity requirement was one of those principles. Even dicta of the Supreme Court "`should be considered persuasive'" and generally speaking should be followed, especially where, as in Prettyman, the court "conducted a thorough analysis of the issues and such analysis reflects compelling logic . . . ." (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169.)
In addition, we note that at least one subsequent Court of Appeal decision has viewed Prettyman's statement that unanimity is not required as a holding entitled to binding effect. In People v. Lucas (1997) 55 Cal.App.4th 721, the defendant argued that the trial court's
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