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People v. Rizo4/24/2002
abettor liability under the natural and probable consequences doctrine. They deal with liability of a direct perpetrator. In the context of the felony-murder doctrine, they allow conviction of murder even without a showing of malice where the underlying act is a serious enough crime to be deemed an adequate substitute for malice.
The natural and probable consequences doctrine has an entirely different purpose. As this court recently stated: "The natural and probable consequences doctrine operates independently of the second degree felony-murder rule." (People v. Culuko (2000) 78 Cal.App.4th 307, 322.) The natural and probable consequences doctrine only applies to aiding and abetting liability, and only applies where at least one party - the perpetrator - has first been found by the jury to have satisfied all the elements of the charged crime. In the case of murder, those elements include malice.
The natural and probable consequences doctrine thus is not concerned with whether the aider and abettor's underlying conduct is a surrogate for malice. Instead, it is concerned with whether murder is a foreseeable consequence of the underlying conduct. That determination can only be made under the particular facts of the case. In contrast, in determining whether a felony is inherently dangerous for purposes of the felony-murder doctrine, "the court looks to the elements of the felony in the abstract, `not the "particular" facts of the case,' i.e., not to the defendant's specific conduct. [Citation.]" (People v. Hansen, supra, 9 Cal.4th 300, 309.)
For these reasons, we reject defendants' contention that the court erred in permitting the jury to base aider and abettor liability on misdemeanor target crimes.
H. Malice Requirement for Murder on Aiding and Abetting Theory
Following standard instructions, the court instructed the blue jury that aiders and abettors are considered principals in the crimes they aid and abet; that aiders and abettors are guilty of any offense committed by a principal which is a natural and probable consequence of the crime originally aided and abetted; and that, to convict defendants of murder, the jury had to find that "a co-principal" in the target crime committed murder. The blue jury defendants contend that since a "co-principal" in the target crime could by definition include another aider and abettor, all of the defendants could have been convicted of murder without any finding that any defendant directly perpetrated the crime, and specifically, that any defendant acted with malice aforethought.
In order to prevail on a claim that jury instructions are misleading, the claimant must prove a reasonable likelihood that the jury misunderstood the instructions as a whole. (People v. Van Winkle (1999) 75 Cal.App.4th 133, 147.) Jurors are presumed to be capable of understanding instructions and applying them to the facts of the case. (People v. Lewis (2001) 26 Cal.4th 334, 390.) The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.)
The record in this case fails to support defendants' contention that the jury may have believed it could convict them of murder without finding that any defendant directly perpetrated the crime with malice aforethought. The jury was told that one of the elements the prosecution had to establish to prove the crime of murder was that the killing "was done with malice aforethought." Thus, it was clear that the actual killer had to have acted with malice.
Presuming, as we must, that the jury followed this instruction (People v. Holt, supra, 15 Cal.4
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