Filed 6/2/14




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                               S202724
           v.                        )
                                     )                         Ct.App. 3 C063913
BOBBY CHIU,                          )
                                     )                        Sacramento County
           Defendant and Appellant.  )                      Super. Ct. No. 03F08566
____________________________________)


        There are two distinct forms of culpability for aiders and abettors. “First,
an aider and abettor with the necessary mental state is guilty of the intended crime.
Second, under the natural and probable consequences doctrine, an aider and
abettor is guilty not only of the intended crime, but also „for any other offense that
was a “natural and probable consequence” of the crime aided and abetted.‟ ”
(People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).) This case involves the
second form of aider and abettor culpability.
        In this case, a jury found defendant, Bobby Chiu, guilty of first degree
willful, deliberate and premeditated murder (premeditated murder), on the theory
that either he directly aided and abetted the murder or he aided and abetted the
“target offense” of assault or of disturbing the peace, the natural and probable
consequence of which was murder. On the natural and probable consequences
theory, the trial court instructed that the jury could find defendant guilty of first
degree murder if it determined that murder was a natural and probable
consequence of either target offense aided and abetted, and if in committing
murder, the perpetrator acted willfully, deliberately, and with premeditation.
       The Court of Appeal held that the trial court erred in failing to instruct that
the jury must find first degree premeditated murder was the natural and probable
consequence of either target offense. If the jury relied on the natural and probable
consequences theory to return the first degree murder conviction, it “necessarily
convicted defendant of first degree murder simply because that was the degree of
murder the jury found the perpetrator committed.” Being unable to find the error
harmless, it reversed defendant‟s first degree murder conviction.
       Like the Court of Appeal, we find instructional error, but for a different
reason. We now hold that an aider and abettor may not be convicted of first
degree premeditated murder under the natural and probable consequences
doctrine. Rather, his or her liability for that crime must be based on direct aiding
and abetting principles. (See McCoy, supra, 25 Cal.4th at pp. 1117-1118.)
Because the error here was prejudicial, we affirm the Court of Appeal‟s judgment
reversing defendant‟s first degree murder conviction.
                   I. FACTS AND PROCEDURAL HISTORY
       On September 29, 2003, McClatchy High School students Sarn Saeteurn
and Mackison Sihabouth argued over two girls in an instant message exchange.
Saeteurn challenged Sihabouth to an after-school fight outside a pizzeria, Famous
Pizza, the next day. Saeteurn told Sihabouth that he was going to bring his
“homies” with him, and threatened to shoot Sihabouth‟s father if his father tried to
stop the fight. Sihabouth called Simon Nim, a member of the Hop Sing gang, for
help. Defendant Bobby Chiu also learned about the fight.
       The next day, defendant told American Legion High School student Toang
Tran about the fight. Defendant asked Tran if he “want[ed to] see someone get
shot,” told Tran that there was going to be a fight over a girl, and said his “friend”

                                          2
would shoot if his “friend feels pressured.” Sihabouth showed up for the fight but
left after he saw a crowd. Saeteurn did not show up for the fight because he
learned that Hop Sing members planned to be there and he believed they “ „are
crazy and they kill people.‟ ” Defendant and his friends, Tony Hoong and Rickie
Che, went to Famous Pizza that day.
       McClatchy High School student Teresa Nguyen met her boyfriend,
American Legion student Antonio Gonzales, outside Famous Pizza the day of the
fight. Defendant said something to Nguyen which she did not hear. Defendant
snickered when Nguyen asked if he was mocking her. Nguyen told defendant to
“shut up,” and Gonzales left a conversation he was having with another friend to
see what was the matter. Gonzales and defendant exchanged fighting words, and
Gonzales walked toward defendant, who got off the trunk of the car on which he
had been sitting with Hoong and Che. As Gonzales walked toward defendant,
Gonzales‟s friend, Roberto Treadway, told Gonzales, “I got your back.” Che and
Hoong stood alongside defendant. After the groups exchanged more words and
glared at one another, Che punched Treadway. Defendant swung at Gonzales, and
Gonzales swung back. Defendant then tackled Gonzales and started hitting him
while he lay on the ground. Soon, a full-scale brawl was underway, with as many
as 25 people fighting. Gonzales‟s cousin, Angelina Hernandez, struck defendant
eight or nine times in the head with her fists, allowing Gonzales to get off the
ground and resume fighting defendant. Treadway‟s cousin, Joshua Bartholomew,
also hit defendant hard in the back of the head soon after.
       Bartholomew testified that after he struck defendant, he heard defendant tell
Che to “[g]rab the gun.” However, Gonzales, who had been fighting in close
contact with defendant, did not hear defendant mention a gun. Soon,
Bartholomew and Treadway attempted to leave the scene because they feared the
police officer assigned to McClatchy High School could appear at any moment.

                                          3
Hoong pulled out a pocket knife and stabbed Treadway in the arm. Che appeared
with a gun he had retrieved from a car trunk and pointed it at Gonzales‟s face and
said, “Run now, bitch, run.” Gonzales ran. Che then pointed the gun at
Bartholomew and Treadway. When he hesitated rather than shoot, defendant and
Hoong yelled “shoot him, shoot him.‟ ” Che shot Treadway dead. Che,
defendant, and Hoong then fled together in a car.
       Defendant testified that he heard about the fight the night before the
incident. He claimed that he did not know that Che had a gun. He said he mocked
Nguyen in an attempt to “hit on her.” Defendant testified that during the fight
with Gonzales, he felt continuous punches into the back of his head, received a
blow to the face, and bled from his nose. Defendant denied calling for anyone to
get a gun, and claimed that he did not want or expect Che to shoot Treadway.
       The prosecution charged defendant with murder (Pen. Code, § 187, subd.
(a)), with gang enhancement and firearm use allegations. At trial, the prosecution
set forth two alternate theories of liability. First, defendant was guilty of murder
because he directly aided and abetted Che in the shooting death of Treadway.
Second, defendant was guilty of murder because he aided and abetted Che in the
target offense of assault or of disturbing the peace, the natural and probable
consequence of which was murder.
       Regarding the natural and probable consequences theory, the trial court
instructed that before it determined whether defendant was guilty of murder, the
jury had to decide (1) whether he was guilty of the target offense (either assault or
disturbing the peace); (2) whether a coparticipant committed a murder during the
commission of the target offense; and (3) whether a reasonable person in
defendant‟s position would have known that the commission of the murder was a
natural and probable consequence of the commission of either target offense.
(CALCRIM No. 403.)

                                          4
       The trial court instructed that to find defendant guilty of murder, the People
had to prove that the perpetrator committed an act that caused the death of another
person, that the perpetrator acted with malice aforethought, and that he killed
without lawful justification. (CALCRIM No. 520.)
       The trial court further instructed that if the jury found defendant guilty of
murder as an aider and abettor, it had to determine whether the murder was in the
first or second degree. It then instructed that to find defendant guilty of first
degree murder, the People had to prove that the perpetrator acted willfully,
deliberately, and with premeditation, and that all other murders were of the second
degree. (CALCRIM No. 521.)
       The jury found defendant guilty of first degree murder and the gang and
firearm use allegations true.
       As noted, the Court of Appeal reversed the first degree murder conviction.
It held that the trial court erred in failing to instruct sua sponte that the jury must
determine not only that the murder was a natural and probable consequence of the
target crime, but also that the perpetrator‟s willfulness, deliberation, and
premeditation were natural and probable consequences.
       We granted the People‟s petition for review.
                                  II. DISCUSSION
       Penal Code section 31, 1 which governs aider and abettor liability, provides
in relevant part, “All persons concerned in the commission of a crime, whether it
be felony or misdemeanor, and whether they directly commit the act constituting
the offense, or aid and abet in its commission . . . are principals in any crime so
committed.” An aider and abettor is one who acts “with knowledge of the


1      All statutory references are to the Penal Code.



                                            5
criminal purpose of the perpetrator and with an intent or purpose either of
committing, or of encouraging or facilitating commission of, the offense.”
(People v. Beeman (1984) 35 Cal.3d 547, 560.)
       “ „A person who knowingly aids and abets criminal conduct is guilty of not
only the intended crime [target offense] but also of any other crime the perpetrator
actually commits [nontarget offense] that is a natural and probable consequence of
the intended crime.‟ ” (People v. Medina (2009) 46 Cal.4th 913, 920 (Medina),
citing People v. Prettyman (1996) 14 Cal.4th 248, 260-262 (Prettyman).) “Thus,
for example, if a person aids and abets only an intended assault, but a murder
results, that person may be guilty of that murder, even if unintended, if it is a
natural and probable consequence of the intended assault.” (McCoy, supra, 25
Cal.4th at p. 1117.)
       A nontarget offense is a “natural and probable consequence” of the target
offense if, judged objectively, the additional offense was reasonably foreseeable.
(Medina, supra, 46 Cal.4th at p. 920.) The inquiry does not depend on whether
the aider and abettor actually foresaw the nontarget offense. (Ibid.) Rather,
liability “ „is measured by whether a reasonable person in the defendant‟s position
would have or should have known that the charged offense was a reasonably
foreseeable consequence of the act aided and abetted.‟ ” (Ibid.) Reasonable
foreseeability “is a factual issue to be resolved by the jury.” (Id. at p. 920.)
       We have not previously considered how to instruct the jury on aider and
abettor liability for first degree premeditated murder under the natural and
probable consequences doctrine. In People v. Favor (2012) 54 Cal.4th 868
(Favor), we held that under the natural and probable consequences doctrine as
applied to the premeditation allegation under section 664, subdivision (a) (section
664(a)), a trial court need only instruct that the jury find that attempted murder,
not attempted premeditated murder, was a foreseeable consequence of the target

                                           6
offense. (Id. at p. 872.) The premeditation finding — based on the direct
perpetrator‟s mens rea — is determined after the jury decides that the nontarget
offense of attempted murder was foreseeable. (Id. at pp. 879-880.)
       Relying on People v. Bright (1996) 12 Cal.4th 652, 665-667, we reasoned
that section 664(a), which imposes an increased punishment for an attempt to
commit a murder that is willful, deliberate, and premeditated, was a penalty
provision and did not create a greater offense or degree of attempted murder.
(Favor, supra, 54 Cal.4th at pp. 877, 879.) Relying on People v. Lee (2003) 31
Cal.4th 613, 616 (Lee), we held that the direct perpetrator‟s heightened state of
mind would be a sufficient basis upon which to apply section 664(a)‟s penalty
provision to an aider and abettor under the natural and probable consequences
doctrine. (Favor, supra, 54 Cal.4th at p. 879.)
       In Lee, we applied section 664(a)‟s penalty provision to direct aiders and
abettors. Relying on its statutory language, we noted that section 664(a) “makes
no distinction between an attempted murderer who is guilty as a direct perpetrator
and an attempted murderer who is guilty as an aider and abettor” and does not
require personal willfulness, deliberation, and premeditation of an attempted
murderer. (Lee, supra, 31 Cal.4th at p. 623.) We observed that although the
Legislature would have been justified in refusing to extend section 664(a)‟s
penalty provision to an aider and abettor who fails to personally act with
premeditation, it did not. Although Lee did not involve the natural and probable
consequences doctrine, we commented in dictum that “where the natural-and-
probable consequences doctrine does apply, an attempted murderer who is guilty
as an aider and abettor may be less blameworthy. In light of such a possibility, it
would not have been irrational for the Legislature to limit section 664(a) only to
those attempted murderers who personally acted willfully and with deliberation
and premeditation. But the Legislature has declined to do so.” (Lee, at pp. 624-

                                         7
625.) Thus, we indicated in Lee that section 664(a) applies to all aiders and
abettors. (Favor, supra, 54 Cal.4th at p. 878.)
       Relying on Favor, the People urge us to reach the same result here.
However, we find that case distinguishable in several respects. Unlike Favor, the
issue in the present case does not involve the determination of legislative intent as
to whom a statute applies. Also, unlike Favor, which involved the determination
of premeditation as a requirement for a statutory penalty provision, premeditation
and deliberation as it relates to murder is an element of first degree murder. In
reaching our result in Favor, we expressly distinguished the penalty provision at
issue there from the substantive crime of first degree premeditated murder on the
ground that the latter statute involved a different degree of the offense. (Favor,
supra, 54 Cal.4th at pp. 876-877.) Finally, the consequence of imposing liability
for the penalty provision in Favor is considerably less severe than in imposing
liability for first degree murder under the natural and probable consequences
doctrine. Section 664(a) provides that a defendant convicted of attempted murder
is subject to a determinate term of five, seven, or nine years. If the jury finds the
premeditation allegation true, the defendant is subject to a sentence of life with the
possibility of parole. (Ibid.) With that life sentence, a defendant is eligible for
parole after serving a term of at least seven years. (§ 3046, subd. (a)(1).) On the
other hand, a defendant convicted of first degree murder must serve a sentence of
25 years to life. (§ 190, subd. (a).) He or she must serve a minimum term of 25
years before parole eligibility. (§ 3046, subd. (a)(2).) A defendant convicted of
second degree murder must serve a sentence of 15 years to life, with a minimum
term of 15 years before parole eligibility. (§§ 190, subd. (a), 3046, subd. (a)(2).)
       Finding Favor not dispositive, we turn to the statutory and doctrinal bases
of the natural and probable consequence doctrine to determine its application. The
natural and probable consequences doctrine was recognized at common law and is

                                           8
firmly entrenched in California law as a theory of criminal liability. (Prettyman,
supra, 14 Cal.4th at pp. 260-261; People v. Durham (1969) 70 Cal.2d 171, 181-
185 & fn. 11; cf. People v. Kauffman (1907) 152 Cal. 331, 334 [conspiracy
liability]; see Keeler v. Superior Court (1970) 2 Cal.3d 619, 625 [“It will be
presumed . . . that in enacting a statute the Legislature was familiar with the
relevant rules of the common law, and, when it couches its enactments in common
law language, that its intent was to continue those rules in statutory form”],
superseded by statute on other grounds as stated in People v. Taylor (2004) 32
Cal.4th 863, 870.)
       As noted, section 31 provides in relevant part that “[a]ll persons concerned
in the commission of a crime, whether it be felony or misdemeanor, and whether
they directly commit the act constituting the offense, or aid and abet in its
commission . . . are principals in any crime so committed.” It does not expressly
mention the natural and probable consequences doctrine. Where the statutory
language is vague, “the statutory definition permits, even requires, judicial
interpretation.” (People v. Chun (2009) 45 Cal.4th 1172, 1181.) We may, as a
court, determine the extent of aiding and abetting liability for a particular offense,
keeping in mind the rational function that the doctrine is designed to serve and
with the goal of avoiding any unfairness which might redound from too broad an
application. (See Chun, at pp. 1188-1189; People v. Patterson (1989) 49 Cal.3d
615, 622, 627 (lead opinion of Kennard, J.).)2




2      “[A]iding and abetting is one means under which derivative liability for the
commission of a criminal offense is imposed. It is not a separate criminal
offense.” (People v. Francisco (1994) 22 Cal.App.4th 1180, 1190; accord, People
v. Brigham (1989) 216 Cal.App.3d 1039, 1049, fn. 8.)



                                           9
       Aider and abettor culpability under the natural and probable consequences
doctrine is vicarious in nature. (People v. Garrison (1989) 47 Cal.3d 746, 778
[accomplice liability is vicarious]; People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5
[“The requirement that the jury determine the intent with which a person tried as
an aider and abettor has acted is not designed to ensure that his conduct constitutes
the offense with which he is charged. His liability is vicarious.”]; People v.
Brigham, supra, 216 Cal.App.3d at p. 1054 [aider and abettor is derivatively liable
for reasonably foreseeable consequence of principal‟s criminal act knowingly
aided and abetted].) “By its very nature, aider and abettor culpability under the
natural and probable consequences doctrine is not premised upon the intention of
the aider and abettor to commit the nontarget offense because the nontarget
offense was not intended at all. It imposes vicarious liability for any offense
committed by the direct perpetrator that is a natural and probable consequence of
the target offense. [Citation.] Because the nontarget offense is unintended, the
mens rea of the aider and abettor with respect to that offense is irrelevant and
culpability is imposed simply because a reasonable person could have foreseen the
commission of the nontarget crime.” (People v. Canizalez (2011) 197 Cal.App.4th
832, 852, italics added.)
       The natural and probable consequences doctrine is based on the principle
that liability extends to reach “the actual, rather than the planned or „intended‟
crime, committed on the policy [that] . . . aiders and abettors should be responsible
for the criminal harms they have naturally, probably, and foreseeably put in
motion.” (People v. Luparello (1986) 187 Cal.App.3d 410, 439, italics added; see
Prettyman, supra, 14 Cal.4th at p. 260, quoting Luparello.) We have never held
that the application of the natural and probable consequences doctrine depends on




                                          10
the foreseeability of every element of the nontarget offense. 3 Rather, in the
context of murder under the natural and probable consequences doctrine, cases
have focused on the reasonable foreseeability of the actual resulting harm or the
criminal act that caused that harm. (See, e.g., Medina, supra, 46 Cal.4th at pp.
922, 928 [“shooting” or “escalation of the confrontation to a deadly level” was a
foreseeable consequence of simple assault]; People v. Ayala (2010) 181
Cal.App.4th 1440, 1450 [“fatal shooting” was a natural and probable consequence
of aiding and abetting an assault with a deadly weapon during a gang
confrontation]; People v. Gonzales (2001) 87 Cal.App.4th 1, 10 [“fatal shooting”
was a natural and probable consequence of a gang fight]; People v. Olguin (1994)
31 Cal.App.4th 1355, 1376) [“shooting” was a natural and probable consequence
of assault and “escalation of this confrontation to a deadly level was much closer
to inevitable than it was to unforeseeable”]; People v. Rogers (1985) 172
Cal.App.3d 502, 515 [“ „the natural and probable consequences of any armed
robbery are that someone may be hurt, someone may be shot, [an] innocent
bystander may be hurt‟ ”].)
       In the context of murder, the natural and probable consequences doctrine
serves the legitimate public policy concern of deterring aiders and abettors from
aiding or encouraging the commission of offenses that would naturally, probably,
and foreseeably result in an unlawful killing. A primary rationale for punishing
such aiders and abettors — to deter them from aiding or encouraging the
commission of offenses — is served by holding them culpable for the perpetrator‟s

3      Although our cases have referred generally to the foreseeability of the
nontarget “crime” or “offense” (see, e.g., Medina, supra, 46 Cal.4th at p. 920;
Prettyman, supra, 14 Cal.4th at pp. 261, 267, 269, 271), we were not called on in
those cases to decide whether all of the elements of the nontarget offense must be
foreseeable.



                                         11
commission of the nontarget offense of second degree murder. (People v. Knoller
(2007) 41 Cal.4th 139, 143, 151-152 [second degree murder is the intentional
killing without premeditation and deliberation or an unlawful killing proximately
caused by an intentional act, the natural consequences of which are dangerous to
life, performed with knowledge of the danger and with conscious disregard for
human life].) It is also consistent with reasonable concepts of culpability. Aider
and abettor liability under the natural and probable consequences doctrine does not
require assistance with or actual knowledge and intent relating to the nontarget
offense, nor subjective foreseeability of either that offense or the perpetrator‟s
state of mind in committing it. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531
[inquiry is strictly objective and does not depend on defendant‟s subjective state of
mind].) It only requires that under all of the circumstances presented, a reasonable
person in the defendant's position would have or should have known that the
nontarget offense was a reasonably foreseeable consequence of the act aided and
abetted by the defendant. (Ibid.)
       However, this same public policy concern loses its force in the context of a
defendant‟s liability as an aider and abettor of a first degree premeditated murder.
First degree murder, like second degree murder, is the unlawful killing of a human
being with malice aforethought, but has the additional elements of willfulness,
premeditation, and deliberation which trigger a heightened penalty. (People v.
Knoller, supra, 41 Cal.4th at p. 151.) That mental state is uniquely subjective and
personal. It requires more than a showing of intent to kill; the killer must act
deliberately, carefully weighing the considerations for and against a choice to kill
before he or she completes the acts that caused the death. (People v. Koontz
(2002) 27 Cal.4th 1041, 1080; People v. Anderson (1968) 70 Cal.2d 15, 26-27.)
Additionally, whether a direct perpetrator commits a nontarget offense of murder
with or without premeditation and deliberation has no effect on the resultant harm.

                                          12
The victim has been killed regardless of the perpetrator‟s premeditative mental
state. Although we have stated that an aider and abettor‟s “punishment need not
be finely calibrated to the criminal‟s mens rea” (Favor, supra, 54 Cal.4th at p.
878), the connection between the defendant‟s culpability and the perpetrator‟s
premeditative state is too attenuated to impose aider and abettor liability for first
degree murder under the natural and probable consequences doctrine, especially in
light of the severe penalty involved and the above-stated public policy concern of
deterrence.
       Accordingly, we hold that punishment for second degree murder is
commensurate with a defendant‟s culpability for aiding and abetting a target crime
that would naturally, probably, and foreseeably result in a murder under the
natural and probable consequences doctrine. We further hold that where the direct
perpetrator is guilty of first degree premeditated murder, the legitimate public
policy considerations of deterrence and culpability would not be served by
allowing a defendant to be convicted of that greater offense under the natural and
probable consequences doctrine. An aider and abettor‟s liability for murder under
the natural and probable consequences doctrine operates independently of the
felony-murder rule. (People v. Culuko (2000) 78 Cal.App.4th 307, 322.) Our
holding in this case does not affect or limit an aider and abettor‟s liability for first
degree felony murder under section 189.
       Aiders and abettors may still be convicted of first degree premeditated
murder based on direct aiding and abetting principles. (McCoy, supra, 25 Cal.4th
1111, 1117-1118.) Under those principles, the prosecution must show that the
defendant aided or encouraged the commission of the murder with knowledge of
the unlawful purpose of the perpetrator and with the intent or purpose of
committing, encouraging, or facilitating its commission. (Id. at p. 1118.) Because
the mental state component — consisting of intent and knowledge — extends to

                                           13
the entire crime, it preserves the distinction between assisting the predicate crime
of second degree murder and assisting the greater offense of first degree
premeditated murder. (McCoy, supra, 25 Cal.4th at p. 1118 [“an aider and
abettor‟s mental state must be at least that required of the direct perpetrator”]; cf.
Rosemond v. United States (2014) 572 U.S. __, __ [134 S.Ct. 1240, 1248].) An
aider and abettor who knowingly and intentionally assists a confederate to kill
someone could be found to have acted willfully, deliberately, and with
premeditation, having formed his own culpable intent. Such an aider and abettor,
then, acts with the mens rea required for first degree murder.
       Because we now hold that a defendant cannot be convicted of first degree
premeditated murder under the natural and probable consequences doctrine, we
must determine whether giving the instructions here allowing the jury to so
convict defendant was harmless error. When a trial court instructs a jury on two
theories of guilt, one of which was legally correct and one legally incorrect,
reversal is required unless there is a basis in the record to find that the verdict was
based on a valid ground. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129;
People v. Green (1980) 27 Cal.3d 1, 69-71.) Defendant‟s first degree murder
conviction must be reversed unless we conclude beyond a reasonable doubt that
the jury based its verdict on the legally valid theory that defendant directly aided
and abetted the premeditated murder. (People v. Chun, supra, 45 Cal.4th at pp.
1201, 1203-1205.) We cannot so conclude.
       The record shows that the jury may have based its verdict of first degree
premeditated murder on the natural and probable consequences theory. During
deliberations, the jury sent the trial court a note asking, “We are stuck on Murder I
or Murder II due to personal views. What do we do?” While the court and
counsel were discussing the note, the jury sent another note, stating, “We are at a
stalemate.”

                                          14
       The trial court then questioned several jurors. Some of the jurors stated that
one juror was unable to follow or objected to the law relating to aiding and
abetting. The foreman explained, “Well, she could not see [defendant] stepping
in. Basically, the way we explained it was [defendant] stepping into Rickie Che‟s
position as the murder happened, and she could not understand how he could be
put into that position at that time with those circumstances that it happened after
we had deliberated through what we thought was murder one or murder two which
she went along with.” Another juror also stated that the holdout juror said
“something along the lines of not being able to put [defendant] in [Che‟s] shoes as
the shooter.”
       The court then asked the holdout juror if she ever expressed the view that
she could not put defendant in the perpetrator‟s shoes because she “object[ed] to
the law that the Judge has given.” She responded that she was bothered by the
principle of aiding and abetting and putting an aider and abettor in the shoes of a
perpetrator. The trial court removed the juror and replaced her with an alternate
juror. The jury continued deliberating and found defendant guilty of first degree
premeditated murder.
       From the trial court‟s discussion with the jurors, it appears that the jury was
deadlocked on whether defendant should be held guilty of first degree murder or
of second degree murder. Also, it appears that the holdout juror could not find
defendant guilty of first degree murder, being unable to place defendant in the
“shoes of” Che, and thus could not attribute Che‟s premeditated murder to
defendant. These events indicate that the jury may have been focusing on the
natural and probable consequence theory of aiding and abetting and that the
holdout juror prevented a unanimous verdict on first degree premeditated murder
based on that theory. Thus, we cannot conclude beyond a reasonable doubt that



                                         15
the jury ultimately based its first degree murder verdict on a different theory, i.e.,
the legally valid theory that defendant directly aided and abetted the murder.
       The Court of Appeal found the trial court‟s instructions on murder relating
to the natural and probable consequences doctrine to be error for reasons different
than in our decision. However, the effect of the instructional error was the same,
affecting only the degree of the crime of which defendant was convicted.
Moreover, like us, the Court of Appeal determined there was no basis in the record
to conclude that the verdict was based on the legally valid theory that defendant
directly aided and abetted the murder. Regarding the remedy, the Court of Appeal
reversed the first degree murder conviction, allowing the People to accept a
reduction of the conviction to second degree murder or to retry the greater offense.
That disposition is also appropriate under our decision. If the People choose to
retry the case, they may seek a first degree murder conviction under a direct aiding
and abetting theory.
                                III. CONCLUSION
       Accordingly, we affirm the judgment of the Court of Appeal.

                                                   CHIN, J.

WE CONCUR:

BAXTER, J.
WERDEGAR, J.
CORRIGAN, J.




                                          16
     CONCURRING AND DISSENTING OPINION BY KENNARD, J.*



       I agree with the majority‟s affirmance of the Court of Appeal‟s decision,
which reverses the judgment convicting defendant of first degree murder. I
disagree, however, with the majority‟s reasons for the affirmance.
       As pertinent here, first degree murder requires that the killing be willful,
deliberate, and premeditated, whereas second degree murder does not.1 Defendant
was convicted of first degree murder, not as the perpetrator but as an accomplice.
An accomplice to a crime is guilty not only of the intended, or target, crime, but
also of “any other offense that was a „natural and probable consequence‟ of the
crime aided and abetted.” (People v. Prettyman (1996) 14 Cal.4th 248, 260
(Prettyman).)
       An offense is the natural and probable consequence of a target crime if the
perpetrator‟s commission of that nontarget offense was foreseeable by a
reasonable person in the defendant accomplice‟s position. This court granted


*      Retired Associate Justice of the Supreme Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
1      For convenience, I refer to willful, deliberate, and premeditated first degree
murder, at issue here, as “premeditated murder” or “premeditated first degree
murder.” An unlawful killing is also first degree murder when it is committed
with certain specified weapons; by poison, lying in wait, or torture; or when it
occurs in the commission of certain specified felonies. (§ 189.) Here, however,
there was no evidence that any of these circumstances applied.
review on the following question: Did the trial court here correctly instruct the
jury that it could convict defendant of first degree murder under the natural and
probable consequences rule if the jury found that some form of murder,
irrespective of degree, was a natural and probable consequence of the target crime
of either assault or disturbing the peace? I would hold, as did the Court of Appeal,
that the trial court committed prejudicial error by instructing the jury that it could
convict defendant as an accomplice to first degree murder under the natural and
probable consequences rule without any need to determine whether the particular
circumstances that elevated the murder to first degree were reasonably
foreseeable.
       The majority, however, sidesteps that question. Instead, the majority
establishes a new exception to the scope of accomplice liability under the natural
and probable consequences rule, holding that the rule does not apply to first degree
murder (maj. opn., ante, at pp. 2, 13). As I explain, this court lacks the authority
to create exceptions to rules governing criminal liability.
                                           I
       Defendant, a Sacramento high school student, was a member of Hop Sing,
a local Asian street gang. He heard that two youths planned to have a fight on
September 29, 2009, in front of a local pizza place. Defendant told a classmate
about the upcoming fight and asked if the classmate “want[ed to] see someone get
shot,” adding that an unspecified friend of defendant‟s would use a gun if
“pressured.”
       On September 29, a crowd of high school students gathered in front of the
pizza place. Among them were defendant and two friends (Tony Hoong and
Rickie Che) who, like defendant, were Hop Sing members. Also present were
members of the Norteños, a Hispanic street gang. Defendant began arguing with
Antonio Gonzales, a Norteño, and their friends gathered around them. When

                                           2
defendant‟s friend Che punched Gonzales‟s friend Roberto Treadway, a Norteño,
a fight broke out between Asian and Hispanic youths.
       Treadway‟s cousin, Joshua Bartholomew, hit defendant and then heard
defendant tell Che to “[g]rab the gun.” Gonzales (who was fighting defendant at
the time) did not hear this. When Treadway and Bartholomew tried to leave,
defendant‟s friend Hoong stabbed Treadway in the arm. Che retrieved a gun from
the trunk of a car, pointed it in Gonzales‟s face, and told him to run. Gonzales did
so. Che then pointed the gun at Bartholomew and Treadway. When defendant
and Hoong yelled “shoot him,” Che shot and killed Treadway.
       Defendant was charged with murder. At trial, he denied being a Hop Sing
member, denied knowing that Che had a gun at the fight, denied telling Che to
grab the gun, and denied telling Che to shoot. Defendant claimed he did not want
or expect Che to shoot Treadway.
       In closing argument to the jury, the prosecutor said that defendant was
guilty of premeditated first degree murder based on two theories. First, the
prosecutor argued that Che‟s killing of Treadway was premeditated first degree
murder and that defendant, by telling Che to “grab the gun” and to shoot, was
guilty of the same offense because he had encouraged Che to commit it. Second,
the prosecutor argued that under the natural and probable consequences rule
defendant was guilty of premeditated first degree murder because he had aided and
abetted Che in committing the target crimes of assault and disturbing the peace;
because some form of murder, irrespective of degree, was a natural and probable
consequence of those target crimes; and because Che, the actual killer, committed
premeditated first degree murder.
       The trial court gave the jury this instruction on the natural and probable
consequences rule: “Before you may decide whether the defendant is guilty of
murder under a theory of natural and probable consequences, you must decide

                                          3
whether he is guilty of the crime of assault or disturbing the peace. To prove the
defendant is guilty of murder, the People must prove that: [¶] 1. The defendant is
guilty of assault or disturbing the peace; [¶] 2. During the commission of assault
or disturbing the peace, a co-participant in that assault or disturbing the peace
committed the crime of murder, and [¶] 3. Under all of the circumstances, a
reasonable person in the defendant‟s position would have known that the
commission of the murder was a natural and probable consequence of the
commission of the assault or disturbing the peace.” (Italics added.) The court also
instructed the jury that to prove defendant guilty of first degree murder the
prosecution had to prove that the perpetrator acted willfully, deliberately, and
with premeditation, but it did not tell the jury that it must find that a willful,
deliberate, and premeditated act of murder was a natural and probable
consequence of assault or disturbing the peace.
       The jury convicted defendant of first degree murder. The Court of Appeal
reversed the judgment of conviction. The court explained that the trial court
committed prejudicial error by failing to instruct the jury that to convict defendant
of first degree murder under the natural and probable consequences rule it must
decide “whether a reasonable person in defendant‟s position would have known
that premeditated murder (i.e., first degree murder) was likely to happen . . . as a
consequence of either target offense.” The Court of Appeal gave the prosecution a
choice between retrying defendant for first degree murder and accepting a
reduction of the conviction to second degree murder. This court granted the
Attorney General‟s petition for review.
                                           II
       Penal Code section 31 (all later citations are to the Penal Code) states: “All
persons concerned in the commission of a crime, . . . whether they directly commit
the act constituting the offense, or aid and abet in its commission, . . . are

                                            4
principals in any crime so committed.” (Italics added.) Section 31 does not
expressly define the term “aid and abet,” but this court has described two types of
accomplices who fall within the statutory definition: those who directly encourage
or assist in the commission of the charged offense and those who are liable under
the natural and probable consequences rule.
       A defendant is a direct aider and abettor if “ „he or she, (i) with knowledge
of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of
committing, facilitating or encouraging commission of the crime, (iii) by act or
advice, aids, promotes, encourages or instigates the commission of the crime.‟ ”
(People v. Delgado (2013) 56 Cal.4th 480, 486, quoting People v. Cooper (1991)
53 Cal.3d 1158, 1164.) Indirect liability of the aider and abettor, under the natural
and probable consequences rule, is more complex, requiring a five-step process.
The jury must find that “the defendant (1) with knowledge of the confederate‟s
unlawful purpose; and (2) with the intent of committing, encouraging, or
facilitating the commission of any target crime(s); (3) aided, promoted,
encouraged, or instigated the commission of the target crimes.” (Prettyman,
supra, 14 Cal.4th at p. 271.) The jury must also find that “(4) the defendant‟s
confederate committed an offense other than the target crime(s); and . . . (5) the
offense committed by the confederate was a natural and probable consequence of
the target crime(s) that the defendant encouraged or facilitated.” (Ibid., italics
omitted.) Requirements (4) and (5) are at issue here.
       Under the natural and probable consequences rule, liability “is „derivative,‟
that is, it results from an act by the perpetrator to which the accomplice
contributed.” (Prettyman, supra, 14 Cal.4th at p. 259.) A crime is the natural and
probable consequence of an intended or target crime if its commission by the
perpetrator was reasonably foreseeable. “The . . . question is not whether the aider
and abettor actually foresaw the additional crime, but whether, judged objectively,

                                          5
it was reasonably foreseeable.” (People v. Medina (2009) 46 Cal.4th 913, 920.)
“A reasonably foreseeable consequence is to be evaluated under all the factual
circumstances of the individual case . . . and is a factual issue to be resolved by the
jury.” (Ibid.)
       The Court of Appeal here agreed with defendant accomplice, as I do, that
the trial court erred in its instructions to the jury. The jury was instructed that it
could convict him of first degree murder under the natural and probable
consequences rule simply by finding that some form of murder (irrespective of
degree) was a natural and probable consequence of the target crimes of either
assault or disturbing the peace that defendant had aided and abetted. Under the
instructions, the jury was not required to decide whether first degree murder was a
natural and probable consequence of the target crime.
       As mentioned earlier (see p. 1, ante), to convict an accomplice defendant
under the natural and probable consequences rule, the jury must find that “the
offense” committed by the perpetrator was “a natural and probable consequence of
the target crime that the defendant aided and abetted.” (Prettyman, supra, 14
Cal.4th at p. 262, italics added.) Every offense is made up of factual elements,
each of which must be proven by the prosecution to establish the commission of
the offense. (Richardson v. U.S. (1999) 526 U.S. 813, 817.) Thus, under the
natural and probable consequences rule, every element of the offense must be
foreseeable to a reasonable person in the accomplice defendant‟s position. If any
element is not reasonably foreseeable, the commission of the offense is not
reasonably foreseeable.
       Here, the jury convicted defendant of first degree murder, which, as
pertinent here, is statutorily defined as a willful, deliberate, and premeditated
killing with malice aforethought. (See fn. 1, ante.) But the trial court did not
instruct the jury that to convict defendant accomplice of first degree murder the

                                            6
jury must find that it was reasonably foreseeable that the actual perpetrator, Che,
would commit a premeditated murder. Instead, the court essentially instructed the
jury that it could convict defendant of first degree murder if any murder was
reasonably foreseeable. Murder includes not only premeditated (first degree)
murder, but also unpremeditated (second degree) murder. Thus, the trial court‟s
instructions here permitted the jury, applying the natural and probable
consequences rule, to convict defendant of premeditated first degree murder based
on a conclusion that only second degree murder was a reasonably foreseeable
consequence of the target crimes of either assault or disturbing the peace.
       Insisting that the jury instructions were proper, the Attorney General
contends that to convict an accomplice of first degree murder under the natural
and probable consequences rule, the prosecution need not prove that the actual
killer‟s mental state of premeditation (a requirement for first degree murder) was
reasonably foreseeable; the prosecution, the Attorney General argues, need prove
only that the perpetrator‟s homicidal act was foreseeable. Although the majority
does not expressly say so, it appears to embrace the Attorney General‟s view.
(See maj. opn., ante, at p. 11 [“cases have focused on the reasonable foreseeability
of the actual resulting harm or the criminal act that caused that harm”].) I do not
share that view. As this court has repeatedly held, the natural and probable
consequences rule does not apply unless the perpetrator‟s crime, not just the
perpetrator‟s act, is reasonably foreseeable. (See, e.g., People v. Favor (2012) 54
Cal.4th 868, 874; People v. Pearson (2012) 53 Cal.4th 306, 321; People v. Medina
(2009) 46 Cal.4th 913, 920; People v. Mendoza (1998) 18 Cal.4th 1114, 1133;
Prettyman, supra, 14 Cal.4th at pp. 254, 259, 261, 267, 269, 271; People v. Croy
(1985) 41 Cal.3d 1, 12, fn. 5.) Because the mental state of premeditation is an
element of first degree murder, an accomplice may be convicted of first degree
murder under the natural and probable consequences rule only if the killer‟s

                                          7
premeditation of the homicide was foreseeable by a reasonable person in the
accomplice‟s position.
                                         III
       The majority sidesteps the question I discussed in the preceding section —
that is, whether under the natural and probable consequences rule the jury here had
to find that each element of premeditated first degree murder was reasonably
foreseeable, or whether, as the Attorney General argues, only the actual
perpetrator‟s homicidal act was reasonably foreseeable. Instead, the majority
creates an exception to the natural and probable consequences rule, declaring that
it can never be the basis for a first degree murder conviction. (Maj. opn., ante, at
pp. 2, 13.) That exception was not sought by defendant, and thus it could not have
been anticipated by the Attorney General. The majority‟s justifications for its
newly created exception are unpersuasive, as explained below.
       The majority says that imposing liability for first degree murder under the
natural and probable consequences rule does not serve the purpose of that rule,
which, according to the majority, is to “deter[] aiders and abettors from aiding or
encouraging the commission of offenses that would naturally, probably, and
foreseeably result in an unlawful killing.” (Maj. opn., ante, at p. 11.) Noting that
an unlawful killing is first degree murder only if it is premeditated, the majority
observes: “That mental state is uniquely subjective and personal. It requires more
than a showing of intent to kill; the killer must act deliberately, carefully weighing
the considerations for and against a choice to kill before he or she completes the
acts that caused the death. [Citations.] Additionally, whether a direct perpetrator
commits a nontarget offense with or without premeditation and deliberation has no
effect on the resultant harm.” (Maj. opn., ante, at p. 12, italics added.) Thus, the
majority concludes, “the connection between the defendant‟s culpability and the
perpetrator‟s premeditative state is too attenuated to impose aider and abettor

                                          8
liability for first degree murder under the natural and probable consequences
doctrine.” (Maj. opn., ante, at p. 13.)
       The essence of the majority‟s reasoning is that premeditation is “uniquely
subjective” and does not affect the “resultant harm.” (Maj. opn., ante, at p. 12.)
But the majority does not explain why malice is any less subjective, or has any
greater effect on the resultant harm. Therefore, the majority‟s reasoning proves
too much. It precludes not only a first degree murder conviction based on the
natural and probable consequences rule, but also a second degree murder
conviction based on that rule.
       Yet the majority insists that holding defendants liable for second degree
murder under the natural and probable consequences rule “serves the legitimate
public policy concern of deterring aiders and abettors from aiding or encouraging
the commission of offenses that would naturally, probably, and foreseeably result
in an unlawful killing.” (Maj. opn., ante, at p. 11.) Why is the mental state of
malice foreseeable, but not the mental state of premeditation? The majority does
not say. And why are the deterrent purposes of the natural and probable
consequences rule served by applying it to second degree murder, but not to first
degree murder? Again, the majority does not say.
       When the California Legislature enacted the Penal Code in 1872, it said in
section 31 that persons who “aid and abet” the commission of a crime are
punishable as principals, but it left undefined the words “aid and abet.” Because
the natural and probable consequences rule has long been “an „established rule‟ of
American jurisprudence” (Prettyman, supra, 14 Cal.4th at p. 260) and was part of
English common law (ibid), it is reasonable to infer that the 1872 Legislature
intended to include that rule within the meaning of “aid and abet” as that phrase is
used in section 31. But it is not reasonable to infer, as the majority impliedly does
here, that the 1872 Legislature intended to apply the rule to every crime except

                                          9
first degree murder. The majority makes no effort to tether that inference to
anything in the common law, in this court‟s decisions preceding the Legislature‟s
enactment of the Penal Code in 1872, or in the legislative history of section 31 to
show a legislative intent to create a “first degree murder exception” to the
applicability of the natural and probable consequences rule. What research does
reveal is that for more than 40 years this court has upheld first degree murder
convictions by juries instructed on the natural and probable consequences rule,
without any hint that this might be legally problematic. (See, e.g., People
v. Gonzales and Soliz (2011) 52 Cal.4th 254, 297-300; People v. Richardson
(2008) 43 Cal.4th 959, 1021-1022; People v. Coffman and Marlow (2004) 34
Cal.4th 1, 106-108; People v. Williams (1997) 16 Cal.4th 635, 691; Prettyman,
supra, 14 Cal.4th 248; People v. Garrison (1989) 47 Cal.3d 746, 777-778; People
v. Bunyard (1988) 45 Cal.3d 1189, 1231-1232; People v. Durham (1969) 70
Cal.2d 171, 181-185.)
       In the majority‟s view here, the punishment for second degree murder
(imprisonment for 15 years to life) is “commensurate with a defendant‟s
culpability for aiding and abetting a target crime that would naturally, probably,
and foreseeably result in a murder.” (Maj. opn., ante, at p. 13; see id. at p. 8.) But
as this court has repeatedly stated, “in our tripartite system of government it is the
function of the legislative branch to define crimes and prescribe punishments, and
. . . such questions are in the first instance for the judgment of the Legislature
alone,” not the judiciary. (In re Lynch (1972) 8 Cal.3d 410, 414; see People
v. Superior Court (Romero) (1996) 13 Cal.4th 497, 516 [“ „the power to define
crimes and fix penalties is vested exclusively in the legislative branch‟ ”].) It is
thus for the Legislature, not this court, to determine whether a defendant who aids
a target crime that naturally and probably results in first degree murder deserves a



                                          10
prison sentence of 25 years to life (the punishment for first degree murder) or 15
years to life (the punishment for second degree murder).
                                          IV
       The trial court‟s instructional error here requires reversal of defendant‟s
first degree murder conviction. In the words of the Court of Appeal, with which I
agree: “[T]he instructions were deficient because they failed to inform the jury it
needed to decide whether first degree murder, rather than just „murder,‟ was a
natural and probable consequence of the target offense. The absence of such an
instruction means that if the jury used the natural and probable consequences
theory to return the first degree murder conviction, the jury necessarily convicted
defendant of first degree murder simply because that was the degree of murder the
jury found the perpetrator committed, and the jury never determined whether a
reasonable person in defendant‟s position would have known that premeditated
murder (i.e., first degree murder) was likely to happen . . . as a consequence of
either target offense. Because this possibility exists, we must reverse defendant‟s
first degree murder conviction. When a trial court instructs a jury on two theories
of guilt, one of which was legally correct and one legally incorrect, reversal is
required unless there is a basis in the record to find that the verdict was actually
based on a valid ground. (People v. Guiton (1993) 4 Cal.4th 1116, 1126-1129.)
There is no such basis here, as it is impossible for us to determine from the
instructions given, the verdict returned, or other circumstances of the case on
which theory the jury based its first degree murder conviction.”




                                          11
      I would affirm the Court of Appeal‟s judgment.


                                               KENNARD, J.*
      WE CONCUR:

      CANTIL-SAKAUYE, C. J.
      LIU, J.




*      Retired Associate Justice of the Supreme Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.



                                       12
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Chiu
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 4/23/12, 3d Dist.
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S202724
Date Filed: June 2, 2014
__________________________________________________________________________________

Court: Superior
County: Sacramento
Judge: Lloyd G. Connelly

__________________________________________________________________________________

Counsel:

Scott Concklin, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P.
Farrell, Assistant Attorney General, Donald E. de Nicola, Deputy State Solicitor General, Carlos A.
Martinez, Eric L. Christoffersen and Jennevee H. de Guzman, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Scott Concklin
2205 Hilltop Drive, No. PMB-116
Redding, CA 96002
(530) 243-8510

Jennevee H. de Guzman
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 327-1145




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