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People v. Rizo4/24/2002
er, the lesser offense of voluntary manslaughter was available if the jury was willing to find an intent to kill. It is simply irrational to assume that, if the jury did not truly believe defendants were guilty of murder, it would opt to disobey the murder instructions and convict of that offense but be unwilling to disobey the erroneous voluntary manslaughter instruction and convict of that offense even without finding an intent to kill. A jury willing to disobey the murder instructions would be no less willing to disobey the erroneous voluntary manslaughter instruction.
The presumption of the law, of course, is that jurors obey all instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.) While the lack of prejudice in this case would have been clearer had the jury been given, and rejected, the option of convicting of involuntary manslaughter, for the reasons stated we conclude it is not reasonably probable absent the erroneous voluntary manslaughter instruction that the jury would have convicted of that offense instead of murder. Accordingly, the instructional error was not prejudicial.
G. Instruction that Target Crime for Aiding and Abetting Murder Can Be a Misdemeanor
Defendants argue that where the charged offense is murder, only a felony and not a misdemeanor can serve as a target crime for aiding and abetting liability under the natural and probable consequences doctrine. Since some of the potential target crimes on which the court instructed in this case - such as simple assault and brandishing a firearm - were misdemeanors, defendants argue the jury was erroneously instructed. Case law, while not definitively resolving the issue, does not support defendants' argument.
In People v. Gonzales (2001) 87 Cal.App.4th 1, the defendants were convicted as aiders and abettors of first degree murder. The jury was given CALJIC No. 3.02, on the liability of an aider and abettor for the natural and probable consequences of the target offense. The jury also was given CALJIC No. 9.00, defining the elements of the target offense of simple assault. Although there was evidence the perpetrator was armed when the assault occurred, the court held the trial court had no duty to instruct that the defendants had to have known the perpetrator was armed or would use a firearm in order to be guilty of murder under the natural and probable consequences doctrine. (Gonzales, supra, at p. 11.) Thus, at least implicitly, it rejected any requirement that the intended target offense had to be more than simple assault.
People v. Montes (1999) 74 Cal.App.4th 1050, though it involved a conviction for attempted murder rather than murder, also is instructive. The court held the jury was properly instructed the defendant could be convicted of attempted murder if that offense was a natural and probable consequence of (1) assault with a semiautomatic firearm, (2) simple assault, or (3) breach of the peace for fighting in public. It rejected the defendant's claim that the latter two offenses were improperly included, noting that under the circumstances of the case those two offenses were serious and not trivial. As did the court in Gonzales, the court in Montes also held there was no requirement that the defendant know the perpetrator had a gun. (Montes, supra, at pp. 1054-1056.)
These decisions suggest that whether liability for murder under the natural and probable consequences doctrine may be based on a particular target crime should not depend on the legal character of the target crime, whether misdemeanor or felony. Instead, it should depend on whether the target crime was serious enough under the particular facts of the case that the jury reasonably could find murder w
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