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People v. Rizo4/24/2002
foreseeable. [Citation.]" (People v. Mendoza, supra, 18 Cal.4th 1114, 1133.)
Thus, for example, an aider and abettor may be liable for the perpetrator's use of a gun even though there is no evidence the aider and abettor knew the perpetrator intended to use a gun, if the gun use was a reasonably foreseeable consequence of the target offense. (People v. Gonzales, supra, 87 Cal.App.4th 1, 10.) Yet the proposed instruction suggested an aider and abettor would not be liable for unexpected gun use, because the gun use would be "outside" of the "common design."
The trial court need not give instructions which are covered by other properly given instructions. (People v. Tapia (1994) 25 Cal.App.4th 984, 1028.) The point of the "common design" language was simply that defendants should not be held liable for independent acts of co-defendants which were not reasonably foreseeable consequences of the target crime or crimes. That point was adequately made, without the potential for confusion inherent in the "common design" language, in the instructions actually given, when the court stated: "A natural consequence is one which is within the normal range of outcomes that may reasonably be expected to occur if nothing unusual has intervened." (Italics added.)
2. Close connection
The "close connection" portion of the proposed defense instruction also was potentially confusing. The language appears to have originated in Prettyman. (Prettyman, supra, 14 Cal.4th at p. 269.) The context of the statement, however, was the court's discussion of a statement in a prior Court of Appeal decision to the effect that an aider and abettor may be liable for a serious crime even though the target offense may have been trivial. The Prettyman court stated: "Rarely, if ever, is that true. Murder, for instance, is not the `natural and probable consequence' of `trivial' activities. To trigger application of the `natural and probable consequences' doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed." (Ibid.)
Thus, all the court meant was that a "trivial" target offense could not support a murder conviction. But as pointed out in People v. Montes, supra, 74 Cal.App.4th 1050, that issue does not arise on facts like those present here. Montes, like this case, involved a parking lot confrontation between rival groups which escalated into a shooting. The court stated: "Under the circumstances presented in this case, the targeted offenses of simple assault and breach of the peace for fighting in public were not trivial. . . . [ ] . . . There can be little question that the target offenses of assault and breach of the peace were closely connected to the shooting." (Id., at p. 1055.) Accordingly, the "close connection" portion of the instruction was unnecessary in this case.
L. Failure to Instruct on Accomplice Testimony
Defendants contend the court should have instructed, sua sponte, that accomplice testimony must be viewed with caution and must be corroborated in order to support a conviction. They contend the lack of an instruction left the jury with no guidance with which to evaluate accomplice statements which were critical to the case: Ivan's threat to kill Galvan, Jesus's statement about Krazy Crowd, and unidentified voices at the crime scene saying "Krazy Crowd" and threatening to kill Galvan.
Where it applies, an instruction on accomplice testimony must be given sua sponte. (People v. Box, supra, 23 Cal.4th 1153, 1208.) However, as the California Supreme Court explained in People v. Williams (1997) 16 Cal.4th 635, the duty to give the instruction exists "only for accomplice testimo
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