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People v. Rizo4/24/2002
th 619, 662), it could not have convicted of murder without finding at least one defendant, the perpetrator, acted with malice. Therefore, although the instructions included both perpetrators and aiders and abettors within the definition of principals, the jury could not have failed to understand that the requirement that a coprincipal committed murder meant that at least one coprincipal had to have acted with malice.
That was all that was required under the natural and probable consequences doctrine. The doctrine allows an aider and abettor to be convicted of murder, without malice, as long as the state has proven that one of the defendants actually harbored the malice necessary for a murder conviction. (People v. Culuko, supra, 78 Cal.App.4th 307, 322.) That requirement was made plain by the instructions here. The fact that not all of the coprincipals had to have acted with malice did not make the instructions erroneous. As this court noted in Culuko, " he Supreme Court has repeatedly rejected the contention that an instruction on the natural and probable consequences doctrine is erroneous because it permits an aider and abettor to be found guilty of murder without malice. [Citations.]" (Ibid.)
I. Aiding and Abetting Liability for Murder Based on Target Crime of Assault
Defendants contend that the state should not be able to prove murder under the natural and probable consequences doctrine where the target crime is assault. Otherwise, defendants contend, the state would be relieved of proving malice in almost every murder case, since almost all murders involve assaultive conduct. Defendants note that the recognition that murder almost always follows an assault has led to the "merger" doctrine in the context of the felony-murder rule, which provides that the state cannot prove murder under a felony-murder theory where the underlying felony is assault. (See People v. Hansen, supra, 9 Cal.4th 300, 311-312.)
Defendants' analogy between the natural and probable consequences doctrine and the felony-murder rule is not persuasive. As noted previously, this court explained in Culuko: "The natural and probable consequences doctrine operates independently of the second degree felony-murder rule." (People v. Culuko, supra, 78 Cal.App.4th 307, 322.) Unlike the felony-murder rule, the doctrine does not permit the defendant's underlying crime to be used as a surrogate for malice. Rather, as explained ante, malice on the part of at least one defendant is still required.
Consequently, the consideration that led to adoption of the merger doctrine in the felony-murder context - the recognition that since most murders involve assault, allowing assault to be used as the predicate felony will effectively eliminate malice from most murder prosecutions -does not apply to the natural and probable consequences doctrine. Since the state must still prove actual malice on the part of at least one defendant, the malice element of murder remains intact.
Far from giving any indication that it believes the merger doctrine should apply to the natural and probable consequences doctrine, the Supreme Court has repeatedly recognized that assault can serve as the target crime for a murder conviction based on the natural and probable consequences doctrine. In Prettyman, supra, 14 Cal.4th 248, the court noted the decisions applying the doctrine "most commonly involved situations in which a defendant assisted or encouraged a confederate to commit an assault with a deadly weapon or with potentially deadly force, and the confederate not only assaulted but also murdered the victim." (Id., at p. 262.) The court also stated that instructions identifying assault with a deadly weapon or b
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