PEOPLE v. CASTILLO (1991)

An amended information filed on December 26, 1989, in the Superior Court of Lake County, jointly charged Francisco Mendoza Castillo and Jose Mendoza Castillo with three felonies.   Count I charged second degree murder (Pen.Code, § 187) of Jorge Narvaez Suarez, and counts II and III charged assault with a firearm (Pen.Code, § 245, subd. (a)(2)) involving Francisco Cordova Parra and Ramiro Narvaez Suarez, respectively.¹  Count I charged both Francisco Mendoza and Jose Mendoza with two enhancements for being armed with a firearm (Pen.Code, § 12022, subd. (a)) and personal use of a firearm (Pen.Code, § 12022.5, subd. (a)).  Counts II and III charged Jose Mendoza with personal use of a firearm and charged Francisco Mendoza with infliction of great bodily injury (Pen.Code, § 12022.7).

After pleading not guilty, Jose Mendoza and Francisco Mendoza were tried on January 25 through February 7, 1990.   The jury found them guilty as charged on all counts and found the enhancement allegations to be true.   On March 2, 1990, the court sentenced Jose Mendoza to a sentence of 24 years and 8 months in state prison reflecting a sentence of 15 years to life on his conviction for second degree murder and a consecutive determinate sentence of 9 years and 8 months.   The same day the court similarly sentenced Francisco Mendoza to a sentence of 26 years, consisting of a sentence of 15 years to life for second degree murder and a consecutive determinate sentence of 11 years.   Both Jose Mendoza and Francisco Mendoza filed timely notices of appeal.

The convictions were based on a drunken melee on September 15, 1989, that left two persons gravely wounded and a third dead.   All the participants were Mexican laborers, with little education or knowledge of English, who worked for Mariani Dryers in Kelseyville, California.

Jose Mendoza, age 48, had lived in Lake County for 15 years, making annual trips to visit his family in Mexico.   Throughout this time, he had been regularly employed by Mariani Dryers for nine to ten months of the year and had commonly worked on weekends for a vineyard owned by Faye Wills.   Both employers had observed him suffering from blackout spells in recent years.   For almost three years he had lived in a house on Todd Road near Kelseyville with his older brother, Francisco Mendoza, who also worked for Mariani's.

The brothers both had a history of alcohol related problems.   Jose had been repeatedly convicted of driving under the influence but was always sober on the job.   His supervisor, William Jones, testified that he had never seen him intoxicated.   By his own admission, Francisco was a heavy drinker.   He had been suspended three times from his job at Mariani's for drinking during work hours.

According to their testimony, the brothers had each recently purchased guns at the Lake County Fairgrounds.   Jose acquired a 12–gauge shotgun, which he customarily carried loaded but locked in his pickup truck.   Francisco purchased a .38–caliber revolver with a holster and a supply of ammunition.   Although he did not drive, he sometimes would place the gun loaded in the front cabin of his brother's pickup.

The shootings occurred in front of a mobile home on Bell Hill Road that housed about ten Mexican laborers employed by Mariani Dryers, including Mariano Mendoza Mares, a young nephew of Jose and Francisco Mendoza, and Francisco Cordova Parra, a long-time friend of Jose Mendoza who had shared lodging with him for ten years.   The mobile home was 8.6 miles or a 12–minute drive from the Mendoza brothers' residence.

On September 15, 1989, Mariani Dryers hosted a pear harvest party for about 200 employees.   After arriving at work at 7:00 a.m., Jose Mendoza went with the supervisor, “Bill” Jones, to buy some piglets to roast for the party.   According to Jones, Jose was a trusted employee who often functioned as his “right-hand man.”   About 10:00 a.m., Jose Mendoza and his friend, Francisco Cordova, began cooking the piglets.   They drank beer as they roasted the pork and were joined at times by Francisco Mendoza and other employees.   Francisco left about 2:00 p.m. and returned later in the day.   He testified that he drank a bottle of rum at home and returned when he ran out of liquor.   The manager Jones observed that he was then visibly intoxicated.

The party, which featured roast pork and beer, began about 5:30 p.m. and lasted about three hours until a fight broke out between two of the Mendoza brothers' younger relatives.   Around 8:00 or 8:15, Mariano Mendoza and Fernando Mendoza began fighting in the bathroom, ripping out certain fixtures.   When the fight continued outside in a parking lot, Jose Mendoza and Francisco Cordova intervened by physically restraining Mariano Mendoza.   Following a company policy, Jones terminated the entire party immediately after the fight.   Around 8:30 p.m., Jose Mendoza visited Jones in his office to talk about the incident.   Jones testified, “Jose was very upset.   First time I've seen him upset.   I've never seen Jose mad before.   He was very mad.   I mean, he was to the point of shaking almost.”   Describing him as “a company man,” Jones thought that Jose Mendoza was most upset about the damage to the bathroom caused by his young relations and tried to calm him down.

Not long after the party ended, Jose Mendoza visited the mobile home on Bell Hill Road, asking for Francisco Cordova.   Not finding him there, he entered the trailer and began talking in a belligerent manner to a much younger worker, Ramiro Narvaez Suarez.   In a few minutes, the two men emerged from the trailer and began a fist fight.   The younger man soon knocked Jose Mendoza to the ground and bloodied his mouth a little.   About five other residents of the trailer ended the fight by separating the two men.   Jose Mendoza got up and walked to his pickup where he appeared to be looking for something.   When someone shouted that he was carrying guns, the on-lookers ran to take cover in the darkness and he drove away.

Francisco Cordova arrived at the mobile home about 15 minutes after the fight.   Joining a group of workers who had resumed drinking beer on the porch, he cautioned Ramiro Narvaez to avoid fighting with Jose Mendoza because he was dangerous when he drank.   In another 15 minutes, Jose Mendoza returned, driving the pickup with his brother, Francisco Mendoza, in the passenger seat.   After parking about ten meters in front of the mobile home, Jose Mendoza got out of the truck carrying his 12–gauge shotgun and pointed it at the people gathered in front of the mobile home.   Francisco Cordova walked toward him, as other workers followed some distance behind.

At trial, Francisco Cordova testified that he “tried to calm” Jose Mendoza down and then grabbed the barrel of the shotgun with both hands “so he wouldn't shoot.”   The two men fell on the ground, struggling for possession of the weapon.   Francisco Cordova, who managed to get on top of the other man, soon appeared to be on the point of wresting the weapon from him.   At this point, Francisco Mendoza got out of the truck carrying his revolver.

Saying, “you turned” on me or words to this effect, Francisco Mendoza shot Francisco Cordova in a trajectory that grazed his head and neck and entered his upper arm.   Ramiro Narvaez, who was standing about two meters away, urged him to calm down and not shoot.   Francisco replied, “how could [I] not shoot [you] ․” and shot him in the chest below the rib cage and again in the right thigh.   Other shots were also fired although none of the witnesses could give a precise account.   A later investigation disclosed an expended shotgun shell and an expended bullet at the scene and one expended cartridge shell in the revolver.   One of the bullets fatally pierced the heart of a 19–year–old worker, Jorge Narvaez Suarez, who was watching the fray from a position of apparent safety near the porch.   Francisco Cordova also suffered a fracture to his left fibula caused by a blow to his lower leg during the fight with Jose Mendoza.   At the time of trial, Ramiro Narvaez had apparently recovered from his injuries, but Francisco Cordova had not regained full use of his arm.

Taking the witness stand, Jose Mendoza gave a separate account of the incident that conflicted not only with other testimony but with some of the physical evidence.   He professed to have no memory of his nephew's fight, the conversation with Jones, or the fist fight with Ramiro Narvaez.   He testified rather that he pulled over in front of the mobile home because his pickup was malfunctioning.   When he got out of the truck to look at the motor, three or four men ran toward him.   One of the men, Francisco Cordova, hit him behind the head, knocked him to the ground, and pounced on him.   As his assailants kicked him, he heard a single shot fired.   Someone shouted to his brother in the truck, “get down, you goddamn son of a bitch.”   The men then rushed Francisco Mendoza, giving him an opportunity to get up and go back to the truck where he got his shotgun from behind the seat.   He could not remember whether he had fired it.   For his part, Francisco Mendoza testified that he remembered nothing of the incident.

The Mendoza brothers were promptly arrested by a Fish and Game Warden, James Branston, who was driving home at the time of the shooting.   Branston had earlier observed the pickup slowly weaving from one side of the road to the center.   The brothers had a “hard time walking” and were “pretty close to being staggering.”   A search of the pickup revealed the revolver, a quantity of live .38–caliber ammunition, some expended .38–caliber cartridge casings, and the shotgun with three live rounds.   Francisco Mendoza wore a holster which fit the revolver:  when booked at the Lake County jail, he was found to be carrying 15 rounds of ammunition in his left front hip pocket.   At the time of his arrest, Jose Mendoza wore a vest with a pocket bulging with shotgun shells.   A search of his pants later disclosed two shotgun shells in his left front pocket and three in his right front pocket.

A blood sample of Jose Mendoza drawn at 2:15 a.m. showed a blood alcohol level of 0.11 percent.   A sample taken from Francisco Mendoza at 1:45 a.m. tested at 0.19 percent.   An expert witness testified that these test results indicated a blood level at the time of the shooting of approximately 0.16 for Jose and .24 for Francisco.

While incarcerated awaiting trial, Jose Mendoza suffered a blackout of the sort his employers had observed.   Taken to the hospital, he was diagnosed as suffering from multiple brain cysts caused by larvae of the pork tapeworm.   One of the cysts was as large as a golf ball.

A neurological surgeon, John Grollmus, testified that “one of the most prominent signs or early things that are seen with” such cysts is a form of behavioral abnormality known as psychomotor epilepsy, which is sometimes stimulated by stress or alcohol.   While psychomotor epilepsy is “a very variable seizure phenomenon,” one category of seizure involves “automatic behavior ․ [in which victims] do things that may or may not be appropriate, but look to be relatively normal behavior for a period of time.”   A “hallmark” of psychomotor epilepsy is loss of memory during the time of the episode.   Victims function “without consciousness” and “almost never” know that they have had a seizure.   Dr. Grollmus could not express an opinion as to whether Jose Mendoza suffered from a psychomotor epilepsy on the evening of the shooting.

APPEAL OF JOSE MENDOZA

 In prosecuting the murder charge against Jose Mendoza, the People rested its case on what we view as an unprecedented extension of traditional principles of accomplice liability.   The jury was instructed pursuant to CALJIC 3.02 that the defendant could not only be found guilty for aiding and abetting the crimes originally contemplated but that he was also liable for the “natural and probable consequences” of any criminal act that he aided and abetted.   Though the prosecution might have regarded assault with a firearm as the crime originally contemplated, it chose instead to rely on two misdemeanors—Penal Code section 12031 (carrying a loaded firearm on a public street) and section 417 (exhibiting a firearm in a threatening manner).   The jury was therefore instructed as to the elements of those offenses and asked to determine whether the crime of second degree murder was a “natural and probable” consequence of the defendant's act of aiding and abetting his brother, Francisco Mendoza, in the commission of the two misdemeanors.

In arguments to the jury, the prosecutor based the People's case against Jose Mendoza for second degree murder entirely on this theory.   For example:  “In this case Jose Mendoza intentionally aided Francisco in carrying a loaded firearm into that area, and I'll show you why that's a crime.   He also intentionally aided him in exhibiting the firearm in that area, and that is a crime․  The natural and probable consequences of reasonably foreseeable consequences of the crimes Jose knowingly and intentionally aided, were what happened out there.   It doesn't matter that Jose even didn't intend that anyone be shot out there.”

Our search of California case law has revealed no decision in which liability for second degree murder has been premised on aiding and abetting the commission of a misdemeanor.²  In analyzing the validity of this theory, we must begin with the relation of the “natural and probable consequences” doctrine to the principles of accomplice liability.

The common law has generally required that an accomplice “act with the intention of influencing or assisting the primary actor to engage in the conduct constituting the crime.”  (Kadish, Complicity, Cause and Blame:  A Study in the Interpretation of Doctrine, 73 Cal.L.Rev. (1985) p. 346;  2 LaFave & Scott, Substantive Criminal Law (1986) § 6.7(b), p. 141.)   A widely cited statement of this required intent is found in the opinion of Judge Learned Hand in United States v. Peoni (2d Cir.1938) 100 F.2d 401, 402.   “[D]efinitions [of aiding and abetting] ․ all demand that [the defendant] in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.”

Consistent with this accepted common law principle, California decisions have stated that criminal liability “attaches to those who aid in the commission of a crime only if they also share in the criminal intent․”  [Emphasis added.]  (People v. Tewksbury (1976) 15 Cal.3d 953, 960, 127 Cal.Rptr. 135, 544 P.2d 1335;  People v. Yarber (1979) 90 Cal.App.3d 895, 912, 153 Cal.Rptr. 875;  Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 287, 42 Cal.Rptr. 676;  People v. Hill (1946) 77 Cal.App.2d 287, 293, 175 P.2d 45.)   Enclosing the word share in quotation marks, our high court in People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318 defined the term as follows:  “an aider and abettor will ‘share’ the perpetrator's specific intent when he or she knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime.”  (Id. at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318).

The courts have avoided a narrow interpretation of shared intent that would relieve the accomplice of liability for crimes, which, while embraced by the accomplice's general objectives, the principal commits in a manner different from that originally contemplated.   That is, an accomplice will be liable even if the principal used an unintended means to commit the criminal act (Benchwick v. United States (9th Cir.1961) 297 F.2d 330;  McGhee v. Com. (1980) 221 Va. 422, 270 S.E.2d 729) or mistakenly identified the intended victim.  (State v. Kennedy (1910) 85 S.C. 146, 67 S.E. 152;  see People v. Brigham (1989) 216 Cal.App.3d 1039, 1062, 265 Cal.Rptr. 486 (dis. opn. of Kline, J.).)

While the natural and probable consequences doctrine often appears as part of a general statement of principles in cases revealing a shared intent, it can be applied to extend liability of the accomplice for conduct of the principal outside the accomplice's conscious objectives.  (People v. Luparello, supra, 187 Cal.App.3d 410, 231 Cal.Rptr. 832;  2 LaFave & Scott, supra, § 6.8(b), p. 157.)   In such cases, the criminal liability of the accomplice for acts of the principal is premised on a causal connection, defined by a standard of “natural and probable consequences,” linking the intended crime and that for which the accomplice is held liable.  People v. Rogers (1985) 172 Cal.App.3d 502, 514–515, 217 Cal.Rptr. 809, states plainly that the natural and probable consequences doctrine presents “a question of legal causation independent of any intention that the result obtain.”   Professor Kadish comments:  “The cases that most clearly challenge the intent requirement are those in which no reasonable construction of the secondary party's intent can embrace the course of action of the principal.   Courts sometimes nonetheless hold the secondary party liable, on the ground that the criminal action of the primary party was a probable consequence of the action of the secondary party․  It is impossible to make this proposition consistent with the usual requirement of intentionality.”  (Kadish, supra, 73 Cal.L.Rev. pp. 351–352, fn. deleted.)

 The origin of the natural and probable consequences doctrine in California is closely entwined with the law of conspiracy.³  (See People v. Kauffman (1907) 152 Cal. 331, 92 P. 861;  People v. Wheaton (1923) 64 Cal.App. 58, 220 P. 451;  People v. King, supra, 30 Cal.App.2d 185, 85 P.2d 928;  People v. Martinez (1966) 239 Cal.App.2d 161, 48 Cal.Rptr. 521.)   Because both conspiracy and aiding and abetting involve a combination of two or more persons, it has been said that “most aiding and abetting cases could also be prosecuted as conspiracies and it is common to find cases in which conspiracy and aiding and abetting are presented as alternative or joint theories of liability.”  (People v. Brigham, supra, 216 Cal.App.3d at 1060, 265 Cal.Rptr. 486 (dis. opn. of Kline, J.) fn. deleted.)   The natural and probable consequences doctrine today is found both in the law of conspiracy and the law of aiding and abetting.  (CALJIC 3.02, 6.11.)   But as it appears in the law of aiding and abetting, the doctrine does not require proof of an agreement to commit a public offense—itself an anti-social act that may justify criminal sanctions of some sort—and the doctrine is not subject to limitations on criminal liability found in the law of conspiracy, such as the “independent product” rule.  (People v. Brigham, supra, 216 Cal.App.3d 1039, 265 Cal.Rptr. 486;  CALJIC 6.15.)

Both Kadish and LaFave & Scott see the “natural and probable consequences” doctrine in the law of aiding and abetting as serving the same policy as the felony-murder rule;  that is, it reflects a policy that a person should be liable for the result of engaging in conduct dangerous to society, even if the result is “worse than the bad result he intended.”  (LaFave & Scott, Criminal Law (1972) Crimes Against the Person, p. 560;  Kadish, supra, 73 Cal.L.Rev., at pp. 352–353.)   This insight probably accounts for the general acceptance of the doctrine, although it is by no means confined in application to homicide cases.   The common policy of the two doctrines is suggested by the fact that they may sometimes apply to the same facts.   The natural and probable consequences doctrine may appear as an alternative theory to felony-murder (People v. Garrison (1989) 47 Cal.3d 746, 776, 254 Cal.Rptr. 257, 765 P.2d 419) or may be based on facts that might have supported a theory of felony-murder.  (People v. Jones (1934) 136 Cal.App. 722, 29 P.2d 902.)

The prosecution's theory in the present case appears to be based on a literal reading of a footnote in People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5, 221 Cal.Rptr. 592, 710 P.2d 392, which explains the natural and probable consequence doctrine 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.”  [Emphasis added.]   Literally construed, either a felony or a misdemeanor is “an act which is criminal,” but the language clearly should be read in light of the case law.   Since no reported case applying the natural and probable consequences doctrine has premised liability for second degree murder on aiding and abetting the commission of a misdemeanor, the footnote summarizing the decisional law should not be taken as authorizing this theory of liability.   The issue of whether second degree murder can be premised on commission of a misdemeanor under the doctrine presents a question of first impression.

As an exception—of somewhat obscure origin—to the general principles of intentionality in the law of aiding and abetting, the natural and probable consequences doctrine has drawn its share of legal criticism and constitutional challenges.   We see no need here to enter into a detailed evaluation of the rule, but two judicial criticisms of it as it pertains to homicide should be briefly noted because they have some relevance to the question whether the rule should be extended in this field.

In People v. Luparello, supra, 187 Cal.App.3d at p. 452, 231 Cal.Rptr. 832 (conc. opn.), Justice Wiener has argued that, as it applies to homicide, the natural and probable consequences doctrine can produce anomalous results by basing an accomplice's culpability, not on his own intent, but rather on the intent of the perpetrator or on other circumstances of the crime.   The defendant, Luparello, had hired thugs to intimidate the victim in order to secure information about his girlfriend's residence.   The thugs surprised and killed the victim.   Justice Wiener writes, “We can assume (although there was no jury finding on the issue) that Luparello was criminally negligent in failing to appreciate the degree of risk.   Under usual circumstances, a person negligently causing the death of another is guilty, at most, of involuntary manslaughter.   Here, however, Luparello's liability is not based on his individual mental state but instead turns on the jury's finding that the unidentified shooter intentionally killed [the victim] while lying in wait.   Thus, Luparello is guilty of first degree murder.   If the circumstances of Luparello's participation were exactly the same but the shooter did not ‘lie in wait,’ Luparello could only be convicted of second degree murder.   I am intrigued by the notion that if unknown to Luparello, the shooter ingested drugs and/or alcohol to the point where he did not in fact harbor the requisite malice, Luparello would presumably be guilty only of voluntary manslaughter.”

A federal case, Clark v. Jago (6th Cir.1982) 676 F.2d 1099, has raised a possible constitutional obstacle in applying the natural and probable consequences doctrine to homicide cases.   In an Ohio trial for aggravated murder, the jury was instructed that “the essential element of purpose to kill could be found in the mind of the defendant ‘and/or’ his accomplice.”  (Id. at p. 1104.)   The court reasoned that the charge “could easily have been interpreted to mean” that the accomplice “personally, did not have to have purpose to kill,” but that the principal's purpose “was sufficient to convict [the accomplice], even if not shared by [the accomplice].”  (Id. at p. 1105.)   As so construed, the court held that the instruction violated due process under Sandstrom v. Montana (1978) 442 U.S. 510, 520, 99 S.Ct. 2450, 2457, 61 L.Ed.2d 39 by relieving the state of the burden of proving the defendant to be in violation of an essential element of the crime for which he was convicted.

Until we receive further guidance from our high court, we must assume that, as traditionally applied, the natural and probable consequences doctrine will withstand constitutional challenge in California.  (See People v. Garrison, supra, 47 Cal.3d 746, 777, 254 Cal.Rptr. 257, 765 P.2d 419.)   Nevertheless, the constitutional challenge to the Ohio variant of the rule, together with Justice Wiener's insightful comments, gives us reason to view with caution any novel extension of the natural probable consequences rule in the field of homicide.

Furthermore, the prosecution's theory in this case, if accepted, would tend to encroach on the statutory misdemeanor-manslaughter rule.   The felony-murder rule, as the term implies, applies only to a killing committed in the perpetration of a felony.   Killings which occur in the commission of a misdemeanor are normally subject to the misdemeanor-manslaughter rule of Penal Code section 192, subdivision (b).  (CALJIC 8:45;  1 Witkin & Epstein, Cal. Criminal Law (2d ed.1988) § 470, p. 528.)   We are unable to find any case of a killing linked with violation of Penal Code section 12031—a fact that suggests the remote connection of this misdemeanor to the crime of second degree murder.   At least two decisions, however, have concerned a killing which occurred in the course of violating Penal Code section 417.   (People v. Southack (1952) 39 Cal.2d 578, 248 P.2d 12;  People v. Hubbard (1923) 64 Cal.App. 27, 33, 37, 220 P. 315.)   Significantly, the defendant in each case was prosecuted under a misdemeanor-manslaughter theory.

In the present case, the facts would have abundantly supported a charge of aiding and abetting a misdemeanor-manslaughter under Penal Code section 192, subdivision (b), but the prosecution sought by means of the natural and probable consequences doctrine to attach criminal liability for second degree murder to the commission of the misdemeanor.   If this theory were sanctioned, it would give the prosecution in similar cases the option of pursuing a conviction for either involuntary manslaughter or second degree murder.   We see policy reasons to avoid this result.   First, unless it serves a legislative purpose of general application, it is not conducive to the equal administration of justice to broaden the power of the prosecution to select the level of criminal liability.   Moreover, the legislative policy of Penal Code section 192, subdivision (b), will be undermined to some degree by allowing the conduct that the statute proscribes to be prosecuted under an alternative theory, involving a higher level of criminal liability.  (Cf. In re Lynch (1972) 8 Cal.3d 410, 414, 105 Cal.Rptr. 217, 503 P.2d 921, [“it is the function of the legislative branch to define crimes and prescribe punishments, and that such questions are in the first instance for the judgment of the legislature alone.”]   While the potential tension between the manslaughter-misdemeanor rule and the natural and probable consequences doctrine may be limited to unusual circumstances, we have noted that the two rules reflect similar policies.   To this extent, it is particularly appropriate for the courts to avoid altering by a judicial doctrine the lines drawn by the Legislature.

 In construing a judge-made doctrine, such as the natural and probable consequences doctrine, we are reluctant to extend the doctrine in ways that will not serve any recognized legal policy.   To achieve consistency with the misdemeanor-manslaughter rule, we therefore hold that under the natural and probable consequences doctrine, the violation of a misdemeanor will support a conviction of manslaughter, but not one for second or first degree murder.   The conviction of Jose Mendoza on count I is therefore reduced to involuntary manslaughter.⁴

In a further assignment of error, Jose Mendoza claims that the trial court erred in deleting from the jury instruction on manslaughter the standard language that “[t]here is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion․”  In view of our resolution of the previous question, we do not need to address this issue.   Since the judgment of conviction must be reduced to manslaughter in any event, he will not have been prejudiced by the claimed error.⁵

The judgment of conviction of Francisco Mendoza is affirmed.

The conviction of Jose Mendoza for second degree murder is reduced to involuntary manslaughter, the enhancements for personal use of a firearm pursuant to Penal Code section 12022.5, subdivision (a), in connection with counts I and III, are stayed, and the matter is remanded to the trial court for resentencing.   In all other respects, the judgment of conviction of Jose Mendoza is affirmed.

FOOTNOTES

1.   The defendants, the victim and most of the witnesses were of Hispanic origin.   The record refers sometimes to their compound Hispanic surnames and sometimes either to their paternal or maternal surnames.   Upon the first mention of a person with a Hispanic surname, this opinion will give both the paternal and maternal surnames and thereafter will give only the paternal surname.

2.   The People wrongly rely on People v. King (1938) 30 Cal.App.2d 185, 85 P.2d 928, as affirming a conviction of murder on evidence that the defendant had intended only to aid and abet simple assault and battery.   The defense indeed argued “that the evidence discloses nothing more than a plan to subject the decedent to a simple assault.”  (Id. at p. 200, 85 P.2d 928.)   But in rejecting this argument, the court construed the facts differently:  “In the present case, there is presented no question of death resulting from commission of a simple assault or occurring in the commission of a misdemeanor.”   (Ibid.)  In the court's view, the “character of the plan” implied a willingness to use life-threatening force and was hence felonious.As the People note, certain cases, such as People v. Luparello (1986) 187 Cal.App.3d 410, 231 Cal.Rptr. 832, do not describe the intended crime in such a way that it can easily be categorized as a misdemeanor or a felony.   While it may be these cases reflect an assumption that the distinction is unimportant, it would be unsound to rely on them as precedents since the question at issue here was not briefed or argued.It is true that an early conspiracy case, People v. Ford (1914) 25 Cal.App. 388, 397, 143 P. 1075, affirmed the convictions of I.W.W. labor organizers for second degree murder on the ground that they joined with coconspirators in the commission of “an unlawful act, whether a felony or misdemeanor, ․”  Whatever may be the merits of the decision, it is clearly distinguishable.   Since criminal liability for conspiracy requires the additional element of an agreement, the decision presents significantly different issues than those analyzed in this opinion.

3.   As noted in several opinions, the doctrine has been formulated in varying language.  (People v. Brigham, supra, 216 Cal.App.3d at 1047–1048 and 1050, 265 Cal.Rptr. 486;  People v. Luparello, supra, 187 Cal.App.3d 410, 452, fn. 2, 231 Cal.Rptr. 832 (conc. opn. of Wiener, J.);   People v. Rogers, supra, 172 Cal.App.3d 502, 515, fn. 17, 217 Cal.Rptr. 809.)   Since the matter has no importance in this appeal, we follow the language of CALJIC 3.02 without expressing any opinion as to the preferred formulation.

4.   Our decision, based on analysis of homicide decisions, has no bearing on Jose Mendoza's conviction for aiding and abetting the crimes of assault with a firearm, and we express no opinion on the validity of the prosecution's theory for this crime.   As it is unnecessary for the decision in this case, we also decline to examine the complex legislative history of Penal Code section 659 to determine its relevance, if any.

5.   Both parties assume without discussion that if Jose Mendoza acted without malice aforethought in a sudden quarrel or heat of passion, he can be convicted only of manslaughter, not second degree murder, even though the principal is found to have acted with malice aforethought.   This is indeed the rule that has been uniformly adopted in other jurisdictions.  (Jahnke v. State (Wyo.1984) 692 P.2d 911;  State v. Lord (1938) 42 N.M. 638, 84 P.2d 80;  Speer v. State (1935) 52 Ga.App. 209, 182 S.E. 824;  Moore v. Lowe (1935) 116 W.Va. 165, 180 S.E. 1, overruled on other grounds in State v. Petry (1980) 166 W.Va. 153, 273 S.E.2d 346;  Thomas v. State (1917) 73 Fla. 115, 74 So. 1;  Red v. State (1898) 39 Tex.Crim. 667, 47 S.W. 1003;  Dorsey v. Commonwealth (1891) 13 Ky.L.Rptr. 359, 17 S.W. 183.)   A series of California decisions reach the same result.  (People v. Lapierre (1928) 205 Cal. 462, 470, 271 P. 497;  People v. Braun (1973) 29 Cal.App.3d 949, 106 Cal.Rptr. 56, overruled on other grounds in People v. Green (1980) 27 Cal.3d 1, 25, 164 Cal.Rptr. 1, 609 P.2d 468;  People v. Pickens (1969) 269 Cal.App.2d 844, 852, 75 Cal.Rptr. 352;  People v. Martinez, supra, 239 Cal.App.2d 161, 48 Cal.Rptr. 521;  People v. Finch (1963) 213 Cal.App.2d 752, 29 Cal.Rptr. 420;  People v. Blackwood (1939) 35 Cal.App.2d 728, 96 P.2d 982.)

NEWSON, Acting Presiding Justice.

STEIN, and DOSSEE, JJ., concur.