PEOPLE v. MOUTON (1992)

Irving Mouton appeals his convictions for second degree murder (Pen.Code, § 187) ¹ and being an accessory to a felony (§ 32).   He raises several issues regarding application of the “natural and probable consequences” rule for extended liability of an aider and abettor, as well as other claims of error.   We affirm.

FACTS

This was a particularly senseless killing.   Although it originated with a lovers' quarrel, neither the man who shot the gun nor the intended target of the shooting was involved in that quarrel.   The bullets, moreover, missed their target, and one of them hit a completely uninvolved bystander, who died.   Defendant was prosecuted on the theory he aided and abetted the shooting.

On the evening of July 1, 1990, Albert Reed had an altercation with his girlfriend Candy at an apartment complex in East Palo Alto.   The police were called, and Reed argued with the officers.   Reed eventually calmed down, and the officers left.

Sometime later that night, Candy's brother Tony and her cousin Tometrius, called “T,” arrived at the complex armed with guns.   They said they were tired of Reed fighting with Candy.   Residents of the complex demanded they leave with their guns, and they complied.

When Reed went to apartment 140, where several of his friends were spending the evening, he learned that Tony and T had been at the complex with guns.   Reed became nervous and talked about getting some “manpower” of his own.

Around 11 p.m. or midnight, Reed drove to the store with Maurice McDonald and Corey Warren.   As they were returning, they encountered defendant and Raymond Jackson near the security gate to the complex.   Reed jumped out of the car to talk to defendant and Jackson.   According to McDonald, Reed said, “Those niggers want some funk.”   McDonald understood “funk” to mean trouble.   Defendant looked into the car and said, “Who?   Who?”  Reed said, “No, not them.”   Defendant excitedly said, “We'll go get some heat.”   Reed told defendant to meet him at the back of the complex.   Defendant and Jackson walked off, while the others returned to apartment 140.

Warren heard Reed tell defendant and Jackson, “Hey, you, two guys want some funk.   Get the nine milli [nine-millimeter handgun] and the Uzi.”   After talking to defendant and Jackson for half a minute, Reed got back in the car and said, “Let's see the fools try something now.”

Jackson and defendant came to apartment 140 sometime later.   They walked in, but Conray Blackburn escorted them out because he thought they probably had guns.   Reed left the apartment to join them, and some minutes later the three returned to the door.   Blackburn and Jessie Stratton, who with Regina Rushing rented the apartment, again told Reed, defendant and Jackson to leave.

Blackburn confronted Reed, Jackson and defendant outside the door to the apartment.   Blackburn was angry and spoke “face-to-face” with Jackson, telling him to respect Stratton's and Rushing's house and leave.   According to McDonald, Blackburn used “average” profanity.

Jackson said, “What nigger?”, then backed up, pulled a gun from his waistband and shot at Blackburn from a distance of about nine feet.   He fired three times.   One of the shots killed Beatrice Jackson, who was standing with others near the apartment doorway.

After the shots, Blackburn saw defendant by a fire hydrant.   According to Blackburn, defendant pulled out a gun, but Reed “dove” in front of him and they left.²  Warren heard Reed say, “No, Man, don't spray,” but he did not know to whom that was directed.³  Stratton testified that after the shots defendant started to run.   Reed grabbed him and said, “No, Man, don't do it.”

The shooting was reported in a “911” call at 1:04 a.m.   Defendant, Reed and Jackson were arrested together outside defendant's house at 1:54 a.m.   A jacket that Jackson had worn during the shooting was found in defendant's car, which he had left at a neighbor's house sometime during the night of the shooting.   Gunshot residue was found on defendant's hands, but not on Reed's or Jackson's.   Defendant could have acquired the residue by firing a weapon, handling one, or shaking hands with someone who had fired a weapon.   In his first statement to police, defendant denied being at the apartment complex at all.

Defendant testified he was on his way home from a friend's house when he was greeted by Jackson.   As they stood talking, Reed jumped out of a car.   Reed said he had had an argument with his girlfriend and suggested defendant come with him to his girlfriend's house.   Defendant asked why he needed all three of them to go talk to his girlfriend.   Reed said (either then or at some previous time;  defendant's testimony is unclear) that he and defendant should spend some time together, so as to get “close to each other.”   They passed Tony and another man, and Reed told defendant the men had guns.   Reed went into apartment 140.   When he emerged, Blackburn came with him.   Blackburn was swearing angrily at Jackson, his face very close, telling him they had to leave.   Jackson and Blackburn moved out of defendant's view.   He heard shots and ran.   Later, he was approaching his house when Jackson and Reed ran up to him.

DISCUSSION

I. LIABILITY AS AN AIDER AND ABETTOR

In addition to instructions explaining that one who aids and abets a crime is liable as a principal (CALJIC No. 3.00 (5th ed. 1988, bound vol.)) ⁴ and defining aiding and abetting (CALJIC No. 3.01), the jury was instructed with CALJIC No. 3.02:  “One who aids and abets is not only guilty of the particular crime which he knows his confederates are contemplating committing, but he is also liable for the natural and probable consequences of any criminal act that he knowingly and intentionally aided and abetted.   You must determine whether the defendant is guilty of the crime originally contemplated, and, if so, whether the crime charged in count one was a natural and probable consequence of such originally contemplated crime.”

The prosecutor relied solely on an aiding and abetting theory, conceding that defendant did not himself kill the victim.   She further conceded that defendant, Jackson and Reed did not form a plan to kill Conray Blackburn.   Instead, she argued, they set out to “make a show of force, to back up their home boy,” to exhibit their weapons in a “challenging way to anyone who would get in their face at Apartment 140.”   She suggested their “target crime” might have been “to carry a concealed weapon, ․ to brandish a weapon, to exhibit, to point a weapon, which is also a crime, pointing, assaulting with a deadly weapon, or even to shoot at the apartment at 140․”  She then argued the “shooting was the natural and probable consequence of their plan to make a show of force, to come in with their armed boys to Apartment 140.”

A.

Defendant complains that two of the “target” crimes suggested by the prosecutor, brandishing a firearm and carrying a concealed weapon, are misdemeanors.  (§§ 417, subd. (a)(2), 12025, subd. (b).)  He urges us to hold that an aider and abettor cannot be guilty of murder unless the crime he intentionally facilitated was a felony.⁵  We have discovered neither the authority nor the rationale for creating such a limitation.

 Our Supreme Court has summarized the doctrine of “natural and probable consequences” as related to aiding and abetting as follows:  “[A] defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator.   His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator.   It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the [charged] offense, which ․ must be found by the jury.  [Citation.]”  (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5, 221 Cal.Rptr. 592, 710 P.2d 392, emphasis added.)   Although the exact statement of the doctrine has varied from case to case,⁶ in no formulation has the intended (“target”) offense been restricted to felonies.  (See, e.g., People v. Price, supra, 1 Cal.4th at p. 442, 3 Cal.Rptr.2d 106, 821 P.2d 610 [referring to target “offense”];  People v. Beeman, supra, 35 Cal.3d at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318 [“acts”];  People v. Durham, supra, 70 Cal.2d at p. 181, 74 Cal.Rptr. 262, 449 P.2d 198 [“crime”].)

 No case cited by the parties or discovered in our research squarely addresses the question whether a defendant prosecuted solely on an aiding and abetting theory may be liable for murder where he intended to facilitate or encourage only a misdemeanor.   Two decisions, however, do hold such liability may be imposed where complicity is based on participation in a criminal conspiracy.  (People v. King, supra, 30 Cal.App.2d 185, 85 P.2d 928;  People v. Ford (1914) 25 Cal.App. 388, 143 P. 1075.) ⁷

People v. Ford involved the leader of a farm workers' strike who, faced with imminent arrest, called from the podium for his supporters to stand loyal to him and prevent his arrest.   Some of the workers said if the officers came to get Ford they would “knock their dam [sic ] blocks off” or “cut them into dog meat first.”  (25 Cal.App. at pp. 409–410, 143 P. 1075, internal quotation marks omitted.)   Two officers were fatally shot as they entered the crowd.  (Id. at p. 404, 143 P. 1075.)   In Ford's trial for murder, the jury was instructed that when “ ‘several persons conspire or combine together to commit any unlawful act,’ ” each is liable for the “ ‘probable and natural consequences' ” of the criminal design.  (Id. at p. 399, 143 P. 1075.)

Ford argued that because the acts he had agreed upon or counseled—resisting arrest and breaching the peace—were at most misdemeanors, his liability as a conspirator was limited to manslaughter.   The court's holding was unequivocal:  “The law recognizes no such distinction.”  (25 Cal.App. at pp. 399–400, 143 P. 1075.)  “[W]here one person unites with one or more other persons in an enterprise to commit an unlawful act, whether a felony or misdemeanor, with the intention to withstand all opposition by force, and is present aiding and abetting the deed, and murder is committed by some one of the party in pursuance of the original design, or the unlawful act results in death, he is guilty as the principal or immediate offender.”   (Id. at p. 397, 143 P. 1075, emphasis added.)  “[W]e do not think that the grade of the crime involved in the conspiracy is material if the act or design is unlawful.”  (Id. at p. 398, 143 P. 1075.) ⁸

In People v. King, supra, several defendants had joined in a plan to beat up another man as “ ‘a lesson’ ” to him.  (30 Cal.App.2d at p. 190, 85 P.2d 928.)   In the beating, the victim was dealt a hard blow to the back of the head with a dull instrument, causing his death.  (Id. at p. 189, 85 P.2d 928.)   Those defendants who were not present at the actual beating contended the evidence was insufficient to show the death was a “natural or probable consequence” of any act on their part or of the planned crime, which was only to subject the decedent to a “simple assault,” a misdemeanor.  (Id. at p. 200, 85 P.2d 928.)   Citing People v. Ford, supra, the court held that all who conspire to commit an unlawful act, “whether a felony or a misdemeanor,” with the intention to overcome resistance by force, are liable for murder if one conspirator commits murder in furtherance of the plan.  (Id. at p. 201, 85 P.2d 928.)   Although, as defendant points out, the court earlier did state it was not dealing with a “question of death resulting from the commission of a simple assault or occurring in the commission of a misdemeanor” (id. at p. 200, 85 P.2d 928), this comment was not to limit application of the natural and probable consequences doctrine in misdemeanor cases;  to the contrary, the court was distinguishing cases where the death was in fact caused by a misdemeanor and hence governed by the misdemeanor-manslaughter rule of section 192, from those where, although only a misdemeanor was intended, the death was in fact caused by a life-threatening assault with a deadly weapon.   In the latter instance, “[t]he question is whether the use of such a deadly weapon ․ and [the] resulting death was a natural or probable consequence of the plan or agreement ․ for which the appellants may be held liable” (ibid.), notwithstanding their intent was only a misdemeanor be committed.   Depending on the “character of the plan” (ibid.), death resulting from what was an intended misdemeanor can be murder if, under the facts, the murder was a “natural and probable consequence of [the] undertaking.”  (Id. at p. 201, 85 P.2d 928.)

The rule enunciated in Ford and King should be equally applicable where complicity is premised solely on aiding and abetting.   The two theories of complicity are closely related, as the Supreme Court in People v. Croy, supra, 41 Cal.3d 1, 221 Cal.Rptr. 592, 710 P.2d 392 implicitly recognized.   Thus, in explaining that the liability of an aider and abettor is vicarious, the court stated:  “Like the conspirator whose liability is predicated on acts other than and short of those constituting the elements of the charged offense, if the acts are undertaken with the intent that the actual perpetrator's purpose be facilitated thereby, he is a principal and liable for the commission of the offense.   Also like a conspirator, he is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets.  [Citation.]”  (Id. at p. 12, fn. 5, 221 Cal.Rptr. 592, 710 P.2d 392, emphasis added.)   In most cases, moreover, the same facts that support aiding and abetting will also support conspiracy.  (People v. Garewal (1985) 173 Cal.App.3d 285, 302, 218 Cal.Rptr. 690;  see People v. King, supra, 30 Cal.App.2d at p. 203, 85 P.2d 928.)   Conversely, evidence of a conspiracy is properly used to show one of the conspirators aided and abetted the crime.  (People v. Durham, supra, 70 Cal.2d at pp. 180, fn. 7, 182, fn. 9, 74 Cal.Rptr. 262, 449 P.2d 198;  People v. Brigham (1989) 216 Cal.App.3d 1039, 1048–1049, 265 Cal.Rptr. 486.)

This case illustrates the overlap between the two complicity theories.   The conversation between defendant, Jackson and Reed at the security gate, critical evidence of defendant's aiding and abetting, would also have supported a finding of criminal conspiracy.   The prosecutor repeatedly argued conspiracy, explaining to the jury that “if you conspire, if you plan to commit a crime,” you are liable for its natural and probable consequences and, further, arguing that defendant, Jackson and Reed had a “conspiracy” or a “plan” to commit the target crimes.   Defense counsel responded in kind, telling the jury the prosecutor's case depended on convincing them that “Mr. Mouton ․ got into an agreement with Albert Reed and Raymond Jackson to go take care of Tony and T” and that the prosecutor “gets to this transferred intent, natural and probable consequences of a target crime by a vehicle of an uncharged conspiracy which the Judge will instruct you on.”   Concluding, defense counsel argued there was no “evidence to show there's a conspiracy, that [defendant] committed any overt acts in the furtherance of that, in order to get him to be responsible for the actions of Mr. Jackson․  [T]hey are totally independent.   No knowledge, no scheme, no plan, no nothing.”

 The chief difference in the theories is that conspiracy requires an agreement to commit a crime, while aiding and abetting requires only that the accomplice intend to facilitate another's contemplated crime.  (People v. Luparello (1986) 187 Cal.App.3d 410, 439, 231 Cal.Rptr. 832.)   Under both theories, however, the extension of liability to additional, reasonably foreseeable offenses rests on the policy that accomplices “should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion.”  (Ibid.)  In either case, the justice of holding the accomplice responsible for acts of the perpetrator, acts unintended by the accomplice, derives from the criminal intent of the accomplice himself and the foreseeability that the perpetrator might go beyond the accomplice's original criminal goals.   For this reason, we reject defendant's argument that the natural and probable consequences rule should have a broader reach when it is couched in conspiracy terms than when it is presented as part of the aiding and abetting theory.⁹

To distinguish Ford and King, defendant argues that conspiracy liability should be more extensive because conspiracy is itself a crime, and conspiracy to commit even a misdemeanor may be a felony.  (§ 182, subd. (a) [conspiracy to commit misdemeanor is alternative felony/misdemeanor].)   This fact, however, has no bearing on the rationale for imposing extended liability on an accomplice.   The accomplice is held responsible for the foreseeable crimes of the perpetrator because, by his complicity, he has effectively adopted the perpetrator's acts and consented to have them viewed as his own.   (People v. Luparello, supra, 187 Cal.App.3d at pp. 440–441, 231 Cal.Rptr. 832.)   This is equally true whether the complicity consists of conspiratorial agreement or of intentional facilitation.

Defendant contends allowing a misdemeanor target offense to create liability for murder would conflict with the line drawn between felony murder and involuntary manslaughter as a killing in the commission of a misdemeanor.  (§ 192, subd. (b).)  In its most appealing form, the claimed anomaly might be demonstrated this way:  If A commits a simple battery on B, without malice aforethought, and B dies, A is guilty at most of manslaughter.   But if A aids and abets C in what A intends to be a simple battery on B, and C kills B with malice aforethought, A may, depending upon the foreseeability of C's acts, be liable for murder.   As an aider and abettor, A's personal mental state need be no more culpable than negligence, i.e., failure to see that the intended battery could reasonably lead to murder (see People v. Luparello, supra, 187 Cal.App.3d at p. 453, 231 Cal.Rptr. 832 (conc. opn. of Wiener, J.) [failure to “appreciate the degree of risk”] ), while, as a perpetrator, he either would have had to commit a felony or harbor malice aforethought.

The difference in mens rea requirements, however, is a central part of the natural and probable consequences rule itself.   Because the perpetrator's ultimate crime need only be reasonably foreseeable, the accomplice's mental state as to the ultimate crime need only be negligence in failing to foresee that crime.   The doctrine has been criticized on just this ground, as “permit [ting] liability to be predicated upon negligence even when the crime involved requires a different state of mind.”  (2 LaFave & Scott, Substantive Criminal Law (1986) § 6.8, p. 158;  see also Model Pen.Code & Commentaries, com. 6(b) to § 2.06, pp. 310–313 and fn. 42.)   Defendant's argument, then, proves too much;  correction of the problem he points to would require eliminating the natural and probable consequences rule.   As an intermediate court, we are not able to take that step with a doctrine repeatedly endorsed by our Supreme Court.

Nor would the limitation proposed by defendant eliminate the problem he perceives.   Even requiring the target crime to be a felony would not make accomplice liability coextensive with liability of a single actor under the felony-murder rule.   Felony murder requires either a predicate felony that, viewed in the abstract, is inherently dangerous to human life (People v. Patterson (1989) 49 Cal.3d 615, 620–621, 262 Cal.Rptr. 195, 778 P.2d 549) or, for first degree murder, one of the felonies listed in section 189.   Yet, under the rule proposed by defendant, an accomplice could still be liable for murder if he intentionally facilitated any felony.   There are other important differences:  felony-murder liability, for example, is not limited to reasonably foreseeable killings, but includes accidental and unforeseeable deaths occurring in the commission of a felony.  (People v. Anderson, supra, 233 Cal.App.3d at p. 1658, 285 Cal.Rptr. 523.)   Exact correlation of the two types of liability could be achieved only by eliminating the natural and probable consequences rule.

In a related claim, defendant argues allowing murder liability in these circumstances amounts to the creation of a new offense, “misdemeanor-murder,” in violation of section 6 (no non-statutory offenses).   His argument mischaracterizes the principles under which the jury was permitted to convict him of murder.   A “misdemeanor-murder” instruction would have told the jury any killing committed in the course of a (presumably inherently dangerous) misdemeanor is murder and all participants in the misdemeanor are liable therefor.   Such an instruction would be patently improper and unauthorized.   But nothing of the sort was given here.   Rather, the jury was told unequivocally that a homicide is murder only if it is committed with malice aforethought and that defendant was liable for murder only if he aided and abetted that crime, either directly or by intentionally encouraging or facilitating some other criminal act that had murder as its foreseeable consequence.   This was not the creation of a new offense, but the application of settled principles from the law of homicide and vicarious criminal liability.

Defendant also argues that misdemeanor firearm offenses cannot, as a matter of law, have murder as a natural and probable consequence because, in the context of second degree felony murder, a felony weapons offense (possession of a gun by an ex-felon) has been held not to be inherently dangerous to human life.   (People v. Satchell (1971) 6 Cal.3d 28, 40, 98 Cal.Rptr. 33, 489 P.2d 1361.)   The two questions, however, are unrelated.   The predicate crime for felony murder must be highly dangerous viewed in the abstract.   That is a question of law for the court.  (People v. Patterson, supra, 49 Cal.3d at p. 625, 262 Cal.Rptr. 195, 778 P.2d 549.)   Under the natural and probable consequences rule, just the opposite is true.   Here the danger evaluated is that arising from the entire criminal scheme that the accomplice agreed to or intentionally facilitated, viewed with all its surrounding circumstances:  “The character of the plan is of great importance.”  (People v. King, supra, 30 Cal.App.2d at p. 200, 85 P.2d 928.)   The question, moreover, is one of fact for the jury.  (People v. Luparello, supra, 187 Cal.App.3d at p. 443, 231 Cal.Rptr. 832.)

The foregoing is not to deny that, in a proper case, the trial or appellate court may hold the evidence insufficient as a matter of law to show the murder was reasonably foreseeable from commission of a weapons offense.   The California Supreme Court recently did so in reviewing instructions on testimony of an accomplice.  (People v. Price, supra, 1 Cal.4th at pp. 442–443, 3 Cal.Rptr.2d 106, 821 P.2d 610.)   Defendant here has not contended the evidence was insufficient to support his conviction, nor would such a contention succeed on this record.

In most circumstances, aiding and abetting a misdemeanor will not have murder as its natural and probable consequence.   The paucity of case law on this question probably reflects the rarity with which such liability is imposed.   But where, as here, several people arm themselves with deadly weapons and go forth as a group with a broad or ill-defined criminal purpose embracing, at the least, a show of force, and one of them commits a murder in the course of the expedition, the question may legitimately be put to the jury whether the murder was reasonably foreseeable, even though it may be impossible to show the accomplice's original intent was more than to commit a misdemeanor.

B.

 One of the target offenses identified by the prosecutor was assault with a deadly weapon.   Defendant contends this crime could not form the basis for murder liability because it would “merge” with the killing itself, as it has been held to do under the felony-murder doctrine.  (People v. Ireland (1969) 70 Cal.2d 522, 539–540, 75 Cal.Rptr. 188, 450 P.2d 580.)

The same contention has been made, and rejected, regarding complicity of a conspirator.  (People v. Luparello, supra, 187 Cal.App.3d at pp. 435–438, 231 Cal.Rptr. 832.)   As discussed in connection with the previous contention, we see no reason for a conspirator's liability under the natural and probable consequences rule to be broader than that of an aider and abettor.

In addition, we do not see how the rationale of Ireland applies to accomplice liability under the natural and probable consequences rule.   The Ireland court reasoned:  “To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault—a category which includes the great majority of all homicides.   This kind of bootstrapping finds support neither in logic nor in law․”  (70 Cal.2d at p. 539, 75 Cal.Rptr. 188, 450 P.2d 580.)

Use of a felonious assault as the accomplice's target crime, in contrast, does not preclude the jury from considering the issue of malice aforethought.   The jury must still find that the perpetrator committed murder.   The jury in this case was instructed on malice aforethought as a required element of murder and on heat of passion as a defense to murder, and the arguments of both attorneys put to the jury the question whether Jackson acted out of malice or in a heat of passion.   As is true in all aiding and abetting cases, defendant's liability was derivative;  although the prosecution had to show Jackson harbored malice aforethought (no felony-murder theory was presented), a showing defendant shared the identical mental state was unnecessary.  (People v. Luparello, supra, 187 Cal.App.3d at p. 439, 231 Cal.Rptr. 832.) ¹⁰

The problem addressed by Ireland and its progeny is simply not presented by application of the natural and probable consequences doctrine.   The merger rule, therefore, should not apply to preclude use of a felonious assault as a target crime for aider and abettor or conspirator liability.

C.

Finally, defendant contends the trial court had a sua sponte duty to instruct the jury on the elements of each target offense relied upon by the prosecutor.

The jury was instructed, in the words of CALJIC No. 3.02, to determine “whether the defendant is guilty of the crime originally contemplated, and, if so, whether the crime charged in count one was a natural and probable consequence of such originally contemplated crime.”  (Emphasis added.)   We agree with defendant it is illogical to require the jury to determine defendant's guilt of one or more crimes without giving the jury any definitions of those offenses.   However, no authority supports the proposition that operation of the natural and probable consequences rule requires defendant to be guilty of the target offense.   What is required is that he have acted with the intent to facilitate the target crime.   In People v. Croy, supra, 41 Cal.3d at page 12, footnote 5, 221 Cal.Rptr. 592, 710 P.2d 392, the Supreme Court stated of an aider and abettor:  “His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator.”  People v. Hammond (1986) 181 Cal.App.3d 463, 226 Cal.Rptr. 475, the only decision cited in the 1988 Comment to CALJIC No. 3.02, states only that the jury should be instructed to determine “whether the act committed was in fact a natural and probable consequence of the criminal act knowingly and intentionally encouraged.”  (Id. at p. 469, 226 Cal.Rptr. 475.)   Although in most cases the perpetrator will also have committed the target offense, logic does not require that the target offense be completed.   What is essential is that the defendant have intended to facilitate or encourage some criminal act and that the ultimate offense be a natural and probable result of pursuing that original criminal goal.

 Defendant argues, by analogy with felony murder, that “[w]hen a defendant's liability for one crime is predicated on his guilt of another, a trial court is plainly required to instruct the jury sua sponte on the elements of the predicate crime․”  Under the natural and probable consequences rule, however, guilt of the ultimate offense is not “predicated” upon guilt of the target crime in any way resembling operation of the felony-murder rule.   First, as just discussed, actual commission of, or attempt to commit, the target crime is not necessary to operation of the natural and probable consequences rule, as is commission of, or attempt to commit, the felony to the felony-murder rule.   Second, guilt of the target crime is not sufficient for guilt of the ultimate crime, as is commission of a felony to make any killing in the course of that felony a felony murder.   What matters under the natural and probable consequences rule is not whether all the elements of a particular target crime as legally defined were met, but whether the criminal scheme agreed to or intentionally facilitated by the defendant, considered with all its surrounding circumstances, led naturally and probably to the offense actually committed.   (Cf. People v. Shields (1990) 222 Cal.App.3d 1, 4–5, 271 Cal.Rptr. 228.)

The trial court's obligation is to instruct on all general legal principles raised by the evidence and necessary for the jury's understanding of the case.  (People v. Wickersham (1982) 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311.)   In a proper case, the jury's consideration of accomplice liability may require instruction on the definition of the offense the prosecution claims was actually intended.   Where, for example, there is evidence of ambiguous actions or statements that could be interpreted to show either a criminal or an innocent intent, the jury should not be expected to evaluate that intent without knowing the definition of the crime or crimes against which it is to be measured.  (Cf. People v. Failla (1966) 64 Cal.2d 560, 564–565, 51 Cal.Rptr. 103, 414 P.2d 39 [in burglary trial, instruction defining felonies required where the defendant's actions and statements were ambiguous as to whether felony or misdemeanor was intended upon entry].)

 In the particular circumstances of this case, the evidence did not require such instructions.   No evidence was presented of ambiguous statements or actions that would support either an innocent or a criminal intent.   The prosecution evidence, if believed, clearly showed defendant's intent to obtain firearms and take them to the apartment complex in a show of force.   The defense did not dispute that the criminal acts asserted by the prosecutor were in fact criminal or that they were the acts defendant originally intended, if he intended any.   Rather, defendant denied making or hearing any statements about weapons at the security gate or having any gun that night.   Defense counsel argued to the jury that the conversation at the gate “just didn't happen.”   Defendant, according to the defense attorney, went with Reed just to cool him down.  “I don't think he went there to back up his home boy with a gun, that's pretty dumb.”   Jackson's actions, counsel argued, were totally independent of defendant;  there was “[n]o knowledge, no scheme, no plan, no nothing.”   The jury, then, was faced primarily with determining whether any plan involving weapons and a show of force was made at the gate and, if so, whether defendant obtained any weapons in furtherance of the plan.   Resolution of this factual question did not require the jury be instructed on the elements of carrying concealed weapons, brandishing, assault with a concealed weapon or shooting at an inhabited dwelling.

For the same reason, we would find the omission of these instructions harmless if it were deemed error.   The jury's verdict indicates it believed that some criminal scheme was undertaken and disbelieved defendant's entirely exculpatory explanation of the events.   Because there was no evidence or argument to the effect that defendant, Reed and Jackson entered upon some plan that did not satisfy the definitions of the suggested target offenses, it is not reasonably probable the jury would have reached a different verdict had it been instructed on the elements of those offenses.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243;  cf. People v. Hammond, supra, 181 Cal.App.3d at p. 469, 226 Cal.Rptr. 475 [harmless error not to instruct that “natural and probable consequences” was a fact question].) ¹¹

II.–III **

IV. CONVICTION OF BOTH MURDER AND ACCESSORY TO MURDER

 Citing People v. Prado (1977) 67 Cal.App.3d 267, 136 Cal.Rptr. 521 and People v. Francis (1982) 129 Cal.App.3d 241, 180 Cal.Rptr. 873, defendant contends the jury should not have been permitted to convict him of both murdering Beatrice Jackson and being an accessory to her murder.   He urges us to vacate or reverse the accessory conviction, whether or not the murder conviction is affirmed.

In People v. Prado, supra, the defendant was convicted of robbery and acting as an accessory to the same crime by aiding his codefendant to escape.   The trial court dismissed the accessory conviction and sentenced the defendant on the robbery count.   On appeal, the defendant argued the robbery conviction should be reversed because the jury's verdict of guilt on the accessory count was an implied acquittal of the robbery, hence the two verdicts were irreconcilable.   The court agreed, stating:  “[W]hen an accused is convicted of violation of Penal Code section 32, which necessarily requires that a principal have committed a specific completed felony and that he knowingly aided that principal with intent that the principal escape arrest, he cannot be convicted as a principal in that completed felony.   His state of mind—the intent required to be an accessory after the fact—excludes that intent and state of mind required to be a principal.”  (67 Cal.App.3d at p. 273, 136 Cal.Rptr. 521, emphasis in original.)   The court noted that the rule of mutual exclusivity might not apply in “[e]xceptional factual circumstances.”  (Id. at p. 273, fn. 1, 136 Cal.Rptr. 521.)   In Prado, however, because “[e]ssentially the same acts” were relied upon to prove defendant participated in the robbery as an aider and abettor and to prove he was an accessory after the fact, reversal was required;  the court remanded to permit the prosecutor to seek reinstatement of the accessory conviction or to retry both counts with proper instructions that the defendant could be guilty of only one.  (Id. at pp. 274, 277, 136 Cal.Rptr. 521.)

No case since Prado has accepted its broad principle of mutual factual exclusivity or inconsistency between the offenses of principal and accessory;  rather, the courts have assumed, without deciding, that convictions of being both a principal and an accessory, although not necessarily factually inconsistent, are precluded as a matter of law by virtue of legislative intent.   Thus, in People v. Francis, supra, the court accepted the People's concession that multiple convictions of murder and accessory to murder were error and vacated the accessory conviction.  (129 Cal.App.3d at pp. 246, 253, 180 Cal.Rptr. 873.)   The court, however, disagreed with the Prado court's rationale that the offenses were mutually exclusive or inconsistent:  “Though the offenses are distinct and different, the elements of the crime of murder are not inconsistent with the elements of the crime of accessory to murder.   One guilty of the former is not necessarily not guilty of the latter or vice-versa.   If, as the People here concede, a defendant may not be convicted as both a principal and as an accessory to the same offense absent exceptional circumstances, it is not because the elements of the two offenses are inconsistent, but because the Legislature, in proscribing the conduct of an accessory to a felony, did not intend to embrace such conduct of the principal felon.  [Citations.]”  (Id. at p. 252, 180 Cal.Rptr. 873.)

In People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 222 Cal.Rptr. 686, the defendant was convicted of grand theft and being an accessory to grand theft.   The trial court vacated the accessory conviction and sentenced the defendant on the theft charge.   As in People v. Prado, supra, the defendant argued it was reversible error not to instruct the jury the charges were mutually exclusive.   The appellate court disagreed.  “[A]ssuming the legal principle of mutual exclusivity is correct,” the failure to instruct was not prejudicial under the facts, where it was “logical to presume that [the defendant] could be guilty of both offenses—as a principal in the initial planning and execution of the theft, and thereafter as an accessory in assisting his accomplice to flee the state and avoid detention.”  (Id. 176 Cal.App.3d at p. 1257, 222 Cal.Rptr. 686, fn. omitted.)

In accord with the criticism made in Francis and the distinction drawn in Laskiewicz, we believe Prado should be limited to the factual circumstance presented therein, i.e., to cases in which the two convictions rest upon “[e]ssentially the same acts.”  (People v. Prado, supra, 67 Cal.App.3d at p. 274, 136 Cal.Rptr. 521.)   Nothing in section 32, defining accessories, suggests the Legislature intended as a matter of law to exclude those who, having perpetrated or intentionally assisted in the commission of a felony, then act further to harbor, conceal or aid the escape of another of the principals.

In arriving at its general rule of mutual exclusivity, the court in Prado relied in part on treatises summarizing common law.  (67 Cal.App.3d at pp. 271–272, 136 Cal.Rptr. 521.)   This reliance, however, is questionable in light of the significant differences between the common law of accessory and principal and California law as codified in the Penal Code.   For example, one treatise states:  “A principal in either the first or second degree may not also become an accessory after the fact by his subsequent acts.   However, it has been held that one who was only an accessory before the fact may also be an accessory after the fact.”  (2 LaFave & Scott, Substantive Criminal Law, op. cit. supra, § 6.9, p. 169, fns. omitted.)   In California, however, the distinction between accessories before the fact and principals has been abrogated;  those who under common law would have been accessories before the fact are simply prosecuted as principals in the crime.  (§§ 31, 971.)   The common law rule described by LaFave and Scott, therefore, cannot be adopted unaltered by California courts;  translated into the terms of the Penal Code, the rule would suggest that some, but not all, principals may also be convicted as accessories.

Prado also relied, by analogy, on cases holding a thief cannot be convicted of both the theft and receiving the stolen property and, in particular, on People v. Jaramillo (1976) 16 Cal.3d 752, 129 Cal.Rptr. 306, 548 P.2d 706.  (67 Cal.App.3d at pp. 271, 273–274, 136 Cal.Rptr. 521.)   Yet Jaramillo, which concerned convictions for unlawful driving or taking of an automobile (Veh.Code, § 10851) and receiving stolen property (§ 496, subd. 1), expressly recognized that convictions of both crimes would be proper if the evidence established factually independent bases for the two convictions.   Thus, if the evidence established the defendant did not intend to steal the car but only to drive it, an additional conviction for receiving would be proper if there was also “evidence of the independent theft of the vehicle and the accused's knowing receipt thereof.”  (16 Cal.3d at pp. 758–759, 129 Cal.Rptr. 306, 548 P.2d 706, fn. omitted.)   More generally, the court stated that the rule barring conviction for both theft and receiving does not apply “when there is evidence of complete divorcement between the theft and a subsequent receiving, such as when the thief has disposed of the property and subsequently receives it back in a transaction separate from the original theft․”  (Id. at p. 759, fn. 8, 129 Cal.Rptr. 306, 548 P.2d 706.)

Similarly, there is no bar to conviction as both principal and accessory where the evidence shows distinct and independent actions supporting each crime.   When a felony has been completed and a person knowingly and intentionally harbors, conceals, or aids the escape of one of the felons (other than himself), that person is guilty as an accessory to a felony under section 32, whatever his or her prior participation in the predicate felony.  (See People v. Wallin (1948) 32 Cal.2d 803, 806–807, 197 P.2d 734 [actual killer could also be liable as accessory on theory that, after completion of the murder, she encouraged another to help her avoid arrest].)

The exclusivity rule of Prado does not apply here.   As in People v. Laskiewicz, supra, 176 Cal.App.3d at page 1259, 222 Cal.Rptr. 686, the failure to instruct on mutual exclusivity of convictions as accessory and principal was unlikely to mislead the jury as to facts required for each conviction.   The prosecution theory of murder was based primarily on defendant's actions before and during the shooting incident:  agreeing to make an armed show of force with Jackson and Reed, bringing Jackson to the apartment, and standing ready to assist with an additional weapon as Jackson confronted Blackburn.   The People's argument for accessory guilt, in contrast, depended on defendant's help in concealing Jackson's jacket and gun and his false statements to the police.   Unlike Prado, supra, 67 Cal.App.3d 267, 136 Cal.Rptr. 521, the two convictions were not based on the same acts.

Under these circumstances, defendant's responsibility both as an accomplice to the murder and for the separate and distinct crime of acting as an accessory to a felony was neither logically inconsistent nor legally prohibited.   Although defendant is technically convicted of being an accessory to his own crime, in substance he is convicted for two different sets of actions.   The court, therefore, did not err in failing to instruct the jury the two offenses were mutually exclusive.¹²

Finally, defendant complains the prosecutor's special instruction concerning “affirmatively false statements” made to shield the perpetrator, as evidence on the charge of accessory, permitted the jury to conclude he was an accessory, even if the statements were made to protect himself, not Jackson.¹³  The instruction could not have been misleading.   It clearly identified Jackson as the perpetrator for purposes of the accessory charge, and it was given in conjunction with the standard instructions on the crime of acting as an accessory, which clearly distinguish between the accessory and the principal whom the accessory “harbors, conceals, or aids.”   The information, evidence, and argument all made clear defendant was accused of assisting Jackson to avoid apprehension.

DISPOSITION

The judgment of the superior court is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise specified.

2.   Blackburn was partly impeached on this point with his statement to police that he “really” did not see a gun and did not know “exactly” what defendant got out of the bushes.

3.   Warren defined “spray” as a term used “when you got an automatic weapon, and you're just going to open fire in any direction.   Just unleash all your bullets.”

4.   All further CALJIC references are to the fifth edition, bound volume.

5.   Defendant has not clearly specified the ruling or omission by the court, if any, to which this contention relates.   The question of whether a misdemeanor could serve as a target offense was not raised below.   Nor did defendant object to the prosecutor's argument setting out the possible target offenses.   But, in light of defendant's related claim that the court had a sua sponte duty to instruct on the elements of the target offenses (see part I.C., infra ), we assume he is claiming the court should also, sua sponte, have precluded the prosecutor from relying on misdemeanor target offenses.

6.   Croy's reference to “reasonably foreseeable” offenses was recently repeated in People v. Price (1991) 1 Cal.4th 324, 442, 3 Cal.Rptr.2d 106, 821 P.2d 610.   In prior cases, the causal link was defined by the phrases “natural and reasonable consequences” (People v. Beeman (1984) 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318), “natural and probable consequences” (People v. King (1938) 30 Cal.App.2d 185, 203, 85 P.2d 928), “natural and reasonable or probable consequences” (People v. Durham (1969) 70 Cal.2d 171, 181, 74 Cal.Rptr. 262, 449 P.2d 198, internal quotation marks and emphasis omitted), and “ordinary and probable effect” (People v. Kauffman (1907) 152 Cal. 331, 335, 92 P. 861).

7.   The Attorney General states that King held a misdemeanor target offense sufficient to support murder on an aiding and abetting theory.   A close reading of the King opinion, however, reveals the prosecution proceeded on a conspiracy theory as well as one of aiding and abetting, and the jury was instructed on both theories.  (30 Cal.App.2d at p. 203, 85 P.2d 928.)   The King court, moreover, in its discussion of the present point, repeatedly refers to the defendants' criminal plan as a conspiracy or agreement.  (Id. at pp. 200–202, 85 P.2d 928.)

8.   Defendant argues Ford is a “legal embarrassment” because it was a “blatant frame-up” of a labor organizer.   Whatever political feelings may have influenced the Ford jury or court in finding the evidence sufficient to support the verdicts, there is no apparent relationship between such feelings and the court's legal analysis, which remains valid and persuasive precedent.

9.   Indeed, the only cases finding a significant difference in the way the rule operates in the two contexts hold the accomplice's liability more restricted in the conspiracy context.  (See People v. Anderson (1991) 233 Cal.App.3d 1646, 1654–1658, 285 Cal.Rptr. 523;  People v. Brigham, supra, 216 Cal.App.3d at pp. 1050–1051, 265 Cal.Rptr. 486 [both holding aider and abettor not entitled to instruction precluding liability for crime which is “independent product” of perpetrator's mind, although conspiracy instructions contain that limitation].)

10.   Defendant complains that Jackson, in a later trial, was acquitted of murder, and eventually pled guilty to an assault.   He does not maintain this legally invalidates his conviction, but only that the overall result is unfair.   The trial court considered Jackson's acquittal of murder in connection with defendant's motion for a new trial and found the evidence was sufficient to support defendant's conviction despite the different result in Jackson's trial.   The court also found the Jackson trial did not provide cause to reduce defendant's offense.   Defendant challenges neither of these rulings on appeal.

11.   Defendant argues omission of instructions defining the target offenses was tantamount to a failure to instruct on an element of the offense charged and, thus, deprived him of due process.   As we have explained, however, commission of the target offense is not an element of the charged crime under the natural and probable consequences rule.   In the absence of any constitutional violation, we apply the Watson standard for assessing prejudice.  (People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243;  see People v. Cox (1991) 53 Cal.3d 618, 669–670, fn. 16, 280 Cal.Rptr. 692, 809 P.2d 351.)

FOOTNOTE.   See footnote *, ante.

12.   With the prosecutor's agreement, the court stayed defendant's sentence on the accessory conviction.

13.   The instruction stated:  “A factor which you may, but are not required to, consider in determining whether the defendant abetted or was an accessory to a felony committed by Raymond Jackson ․ is whether the defendant made affirmatively false statements to police officers with the intent to shield the perpetrator of the crime․”

WERDEGAR, Associate Justice.

MERRILL, Acting P.J., and CHIN, J., concur.