 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Rizo4/24/2002
g foreseeability. Again, if defendants believed further clarification on this point was necessary under the circumstances of this case, they were obliged to ask for an appropriate instruction.
K. Refusal of Special Instruction on Aiding and Abetting Liability
The blue jury defendants contend the court erred in refusing a proposed defense instruction to the effect that murder was not a natural and probable consequence of assault, assault with a deadly weapon, or brandishing a firearm if the murder was "a fresh and independent product of the mind of" the perpetrator and was "outside of, and foreign to, the common design." The instruction also said there must be a "close connection" between the target crime and the murder for the natural and probable consequences doctrine to apply. We consider the "common design" and "close connection" portions of the proposed instruction in turn.
1. Common design
The "common design" part of the proposed instruction was based on language from several cases discussing aider and abettor liability. (See, e.g., Prettyman, supra, 14 Cal.4th 248, 260-261; People v. Durham (1969) 70 Cal.2d 171, 182-183.) It appears the language originated in People v. Kauffman (1907) 152 Cal. 331, 334 (Kauffman). Notably, Kauffman "involved the liability of conspirators for substantive crimes in the course of a conspiracy, not the liability of aiders and abettors . . . ." (Prettyman, supra, at p. 261.) Hence, it was appropriate in Kauffman to speak of whether the charged offense was within the "common design" of the conspirators.
In the context of the present case, however, the Kauffman language was potentially confusing. There need be no agreement, or common design, between an aider and abettor and the perpetrator. Unlike conspiracy, " iding and abetting does not require participation in an agreement to commit an offense, but merely assistance in committing the offense." (People v. Morante (1999) 20 Cal.4th 403, 433.)
A court properly may refuse proposed instructions which are potentially confusing. (People v. Garceau (1993) 6 Cal.4th 140, 193.) Injecting the concept of a common design into this case might have distracted the jury from the true inquiry - whether defendants intended to aid and abet a target crime, the foreseeable consequence of which was murder. To answer that question, the jury did not have to find there was a common plan or design to commit the target crime, only that one of the defendants intended to commit it and the others intended to facilitate its commission.
The Kauffman language is also internally confusing. Immediately before it stated that a conspirator was not liable for a crime which was "`outside of, or foreign to, the common design,'" the Kauffman court stated that a conspirator is liable for an offense committed in the course of the conspiracy "`even though it was not intended as a part of the original design or common plan.'" (Kauffman, supra, 152 Cal. at p. 334, italics added.) It likely would have been difficult for the jury to appreciate the distinction between an act which was "outside" of the common design, and therefore not a basis for liability, and one which was within the common design even though it was "not intended as a part of" the common design.
Finally, the term "common design" created the risk of suggesting defendants subjectively had to foresee the murder in order to be liable for it. In fact, however, the test for aiding and abetting liability under the natural and probable consequences doctrine is purely objective. The question "is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|