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People v. Rizo4/24/2002
as a natural and probable consequence of the target crime. As another court put it, "We cannot look to the naked elements of a target crime but must consider the full factual context which the defendant faced." (People v. Lucas, supra, 55 Cal.App.4th 721, 732.)
Defendants assert that the Supreme Court in Prettyman, supra, 14 Cal.4th 248 rejected the proposition that a defendant can be guilty of murder under the natural and probable consequences doctrine for aiding and abetting a simple assault. In discussing the reasons for its holding that a trial court must identify the potential target crimes for the jury, the court in Prettyman said: "The facts of this case illustrate this point. If, for example, the jury had concluded that defendant Bray [the aider and abettor] had encouraged co-defendant Prettyman [the perpetrator] to commit an assault on Van Camp but that Bray had no reason to believe that Prettyman would use a deadly weapon such as a steel pipe to commit the assault, then the jury could not properly find that the murder of Van Camp was a natural and probable consequence of the assault encouraged by Bray. [Citation.] If, on the other hand, the jury had concluded that Bray encouraged Prettyman to assault Van Camp with the steel pipe, or by means of force likely to produce great bodily injury, then it could appropriately find that Prettyman's murder of Van Camp was a natural and probable consequence of that assault." (Id., at p. 267.)
We do not read this passage as defendants do. That is, we do not believe the court in saying that the murder could only be a natural and probable consequence of the assault if the assault were committed with the steel pipe or by means of force likely to produce great bodily injury meant that only felony target crimes can support liability for murder. Notably, the crimes to which the court referred - assault with a deadly weapon and assault by means of force likely to produce great bodily injury - are wobblers, not straight felonies. (Pen. Code, § 245, subd. (a)(1), (2).)
Instead, we think the Prettyman court's point was the same one we made earlier: whether an offense is a proper target crime depends on the facts of the case. Depending on the circumstances, a simple assault may or may not be the kind of act of which murder is a natural and probable consequence. Under the circumstances in Prettyman, the court evidently believed it was not. It does not follow that murder could not be a foreseeable consequence of simple assault, or brandishing a firearm, under the circumstances here.
Defendants also cite People v. Munn (1884) 65 Cal. 211 and People v. Southack (1952) 39 Cal.2d 578 for the proposition that a killing which arises from misdemeanor assault or brandishing cannot be murder unless malice is shown. Neither case involved aider and abettor liability, and they therefore are not relevant to our discussion.
Defendants additionally argue that allowing liability for murder to be based upon a target crime which is a misdemeanor would undermine the statutory scheme relating to felony murder and misdemeanor manslaughter. Under that scheme, if a killing results from any of certain enumerated felonies, it is first degree murder. (Pen. Code, § 189.) If it results from a nonenumerated felony which is inherently dangerous, it is second degree murder. (People v. Hansen (1994) 9 Cal.4th 300, 308.) If it results from a misdemeanor, it is involuntary manslaughter. (Pen. Code, § 192, subd. (b).) According to defendants, this scheme reflects a legislative intent that only an underlying act which is a felony can support liability for murder.
Defendants' argument is inapposite. The statutes cited do not deal with aider and
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