Filed 10/10/14 P. v. Prado CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064289

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD241085)

JUAN ALBERTO PRADO et al.,

         Defendants and Appellants.


         APPEALS from a judgment of the Superior Court of San Diego County, Joan P.

Weber, Judge. Affirmed.

         Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and

Appellant Juan Alberto Prado.

         Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and

Appellant James John Rivas.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Eric A.

Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted defendants Alberto Prado and John Rivas of three counts of

premeditated attempted murder (Pen. Code, §§ 664/187, subd. (a), 189)1 involving three

victims: Mr. Monroe (count 1), Mr. Moats (count 2) and Mr. Slaughter-Cook (count 3).

The jury also found true Rivas personally used a knife in count 1 and Prado personally

used a knife in counts 2 and 3 (§ 12022, subd. (b)(1)), and that Rivas personally inflicted

great bodily injury in count 1 and Prado personally inflicted great bodily injury in count

3, within the meaning of sections 12022.7, subdivision (a), and 1192.7.2

       On appeal, defendants contend the judgment must be reversed as to all counts

because the instruction on attempted murder was prejudicially erroneous by equating the

aider and abettor's so-called "direct act" with his intent. Prado also contends the "natural

and probable consequences" portions of the aider and abettor instructions were erroneous

under Alleyne v. United States (2013) ___ U.S. ___ [133 S.Ct. 2151] (Alleyne) and/or

People v. Chiu (2014) 59 Cal.4th 155 (Chiu). Finally, Prado contends the instructions

inadequately informed the jury it could find him guilty of aiding and abetting attempted

voluntary manslaughter.




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

2       The jury also convicted defendants of one count of assault with a deadly weapon
as to the victim Slaughter-Cook (count 4) and, in a bifurcated proceeding, Prado and
Rivas admitted the truth of certain allegations of prior prison terms, prior serious felonies
and prior strike convictions. The present appeal raises no issues as to these convictions
and true findings.
                                              2
                                             I

                                          FACTS

       In the early morning hours of May 25, 2012, a group of homeless people,

including Messrs. Monroe, Moats, Slaughter-Cook and Parker, were sleeping near the

San Diego Public Library when they were awakened by Rivas, who was mumbling to

himself and banging a stick on an iron fence across the street. Slaughter-Cook yelled at

Rivas to "shut the fuck up" and Rivas yelled back at him. Monroe, Slaughter-Cook and

Parker crossed the street and confronted Rivas, and an altercation ensued during which

Slaughter-Cook punched Rivas, causing him to fall to the ground, and the others tried to

kick and punch Rivas. He was able to get to his feet, stated "you did me dirty, I'll be

back," and left. Monroe, Slaughter-Cook and Parker then returned to their sleeping spot.

       Approximately 15 minutes later, Rivas returned to the library with Prado. Parker

heard one of them say, "That's him in the white blanket," and saw Rivas and Prado (each

holding a knife in his hand) walk up to Moats and start trying to stab him through the

blanket.3 Moats got out of his blankets, screaming they had the wrong person and asking

what he had done, and Prado responded "you did something to my friend." Prado swung

a hooked knife at Moats; Parker came to Moats's aid and tried to disarm Prado.

       Meanwhile, Slaughter-Cook was awakened by Monroe's screams that "they're

stabbing me." Slaughter-Cook heard Rivas tell Monroe "you did me dirty, I'm going to

kill you," and saw Rivas (straddling Monroe as he lay on the ground in a sleeping bag)


3      The blanket protecting Moats was a thick, quilt-like blanket, and Moats testified it
sustained multiple puncture holes during the attack.
                                             3
making downward motions with the knife at Monroe's upper body. Slaughter-Cook ran

to aid Monroe and kicked Rivas, then grabbed him from behind and tried to wrestle the

knife from his hand. He punched and bit Rivas and the two men wrestled to the ground.

Prado then ran up to Slaughter-Cook and stabbed Slaughter-Cook in the back. Slaughter-

Cook told his friends to "handle the dude" that had stabbed him.

       As Slaughter-Cook struggled with Rivas, Parker and Moats grabbed Prado and,

after Monroe joined the fray, they were able to disarm Prado. Slaughter-Cook was then

able to strike Rivas several times, disarming him before he fled. Slaughter-Cook threw

the knife toward the library. Meanwhile, Prado asked the men to let him leave because

the police would be coming. When they released him, Prado also fled. Slaughter-Cook

called 911.

       When officers arrived, the group gave the officers one knife and directed them to

the front of the library, where they found a second knife. Blood and DNA on the knives

belonged to Slaughter-Cook and Monroe. Slaughter-Cook had a stab wound in his back

and had trouble breathing because of a collapsed lung. Monroe had a stab wound to the

upper left arm and a cut on his head. Moats had cuts on his hands along with other

injuries.




                                            4
                                              II

                                         ANALYSIS

       A. CALCRIM No. 600 Adequately States the Applicable Principles

       Defendants first claim all of the convictions must be reversed because the jury was

given a modified version of CALCRIM No. 600 on attempted murder and the instruction

was prejudicially incorrect. The trial court's instruction provided:

          "To prove that a defendant is guilty of attempted murder, the People
          must prove one, the defendant took at least one direct but ineffective
          step toward killing another person and, two, the defendant intended
          to kill a person. [¶] . . . [¶]

          "A direct step requires more than merely planning or preparing to
          commit murder or obtaining or arranging for something needed to
          commit murder. A direct step is one that goes beyond planning or
          preparation and shows that a person is putting his or her plan into
          action. [¶] A direct step indicates a definite and unambiguous intent
          to kill. It is a direct movement toward the commission of the crime
          after preparations are made. It is an immediate step that puts the
          plan in motion so that the plan would have been completed if some
          circumstance outside the plan had not interrupted the attempt."
          (Italics added.)

       The first paragraph of the instruction correctly states the law (People v. Lee (2003)

31 Cal.4th 613, 623 ["Attempted murder requires the specific intent to kill and the

commission of a direct but ineffectual act toward accomplishing the intended killing."]

(Lee)) and defendants do not contend otherwise. Instead, they contend the italicized

language in the second paragraph was prejudicially incorrect because it in effect instructs

the jury that a direct step equals an intent to kill, and therefore once the jury found the

"direct step" element, they would not need separately to determine the "intent" element.



                                               5
       Defendants acknowledge this identical argument was rejected by the court in

People v. Lawrence (2009) 177 Cal.App.4th 547, but argue we should not follow

Lawrence because it was wrongly decided. The Lawrence court, rejecting the same

argument, concluded the challenged language was substantively identical to the language

approved by the Supreme Court in People v. Dillon (1983) 34 Cal.3d 441, 452-453, and

also explained:

          "When the challenged portion of CALCRIM No. 600 is considered
          in context, it is clear there is no reasonable likelihood jurors
          understood it as appellant asserts. [Citations.] The instruction as a
          whole makes it clear that in order to find an attempt, the jury must
          find two distinct elements: an act and an intent. These elements are
          related; usually, whether a defendant harbored the required intent to
          kill must be inferred from the circumstances of the act. [Citation.]
          Read in context, it is readily apparent the challenged language refers
          to the act that must be found, and is part of an explanation of how
          jurors are to determine whether the accused's conduct constituted the
          requisite direct step or merely insufficient planning or preparation."
          (Id. at p. 557.)

       We agree with Lawrence that, viewed in context of both the instruction itself and

the entire charge to the jury, CALCRIM No. 600 adequately instructed the jury there

were two elements (the mens rea and the actus reas) the jury needed to separately

determine, and the italicized language referred to the latter element and was part of

explaining how jurors were to determine whether defendants' conduct constituted the

requisite direct step as distinguished from mere insufficient planning or preparation.

       B. Any Alleged Deficiency in the Aider and Abettor Instructions Was Harmless

       Prado argues the aider and abettor instructions, insofar as those instructions

enabled the jury to employ the "natural and probable consequences" doctrine to convict


                                             6
him of aiding and abetting Rivas's attempted premeditated murder under section 654,

subdivision (a), as permitted under People v. Favor (2012) 54 Cal.4th 868 (Favor), were

prejudicially erroneous because the rationales of Alleyne, supra, ___ U.S. ___ [133 S.Ct.

2151] and Chiu, supra, 59 Cal.4th 155 have undermined the continued vitality of Favor.4

Prado acknowledges that, under the majority opinion in Favor, the jury was properly

instructed and could properly convict him of attempted premeditated murder under the

natural and probable consequences doctrine. However, Prado asserts that, after Alleyne

and Chiu, a jury can never convict an aider and abettor of the nontarget offense of

attempted premeditated murder under the natural and probable consequences doctrine,

but instead may only convict the aider and abettor of attempted second degree murder

under that doctrine. Prado alternatively asserts at a minimum that, after Alleyne, a jury

cannot convict an aider and abettor of the nontarget offense of attempted premeditated

murder under the natural and probable consequences doctrine unless the jury is instructed



4      Rivas does not raise these claims as to his own convictions, except insofar as he
generically states that he "joins in all arguments raised by [Prado] which may accrue to
[Rivas's] benefit, and are not inconsistent with the above arguments raised by [Rivas]."
In an analogous case involving aider and abettor principles, the court in People v. Nero
(2010) 181 Cal.App.4th 504, 510, footnote 11 observed that "[a]lthough Nero, in his
reply brief, joined in the arguments advanced by Brown, he did not supply any additional
argument on the issue of aider and abettor liability as it applied to his unique
circumstance. Joinder may be broadly permitted [citation], but each appellant has the
burden of demonstrating error and prejudice [citations]. To the extent Nero's cursory
joinder was an attempt to raise the aider and abettor issue, his reliance solely on Brown's
arguments and reasoning is insufficient to satisfy his burden on appeal. We therefore
consider the aider and abettor issue only as to Brown." Similarly, Rivas makes no effort
to show either the instructions were erroneous under the facts as to his conduct, or how
he was prejudiced by such alleged error. Accordingly, we consider the aider and abettor
issues raised by Prado only as to Prado's convictions.
                                             7
it must first find the premeditated murder was a natural and probable consequence of the

target offense and, because the jury was not so instructed in this case, reversal of his

convictions is required.

       1. The Legal Landscape of Aider and Abettor Liability: Favor, Alleyne & Chiu

       Favor

       An aider and abettor may be convicted for crimes committed by the direct

perpetrator under two alternative theories: direct aiding and abetting principles and the

natural and probable consequences doctrine. (People v. McCoy (2001) 25 Cal.4th 1111,

1117-1118.) Under direct aiding and abetting principles, the defendant is guilty of the

intended (or target) offense if he or she acted with knowledge of the criminal purpose of

the direct perpetrator and with an intent or purpose either of committing, or of

encouraging or facilitating commission of, the target offense. (Id. at p. 1118.) However,

an aider and abettor can also be guilty of unintended crimes under the natural and

probable consequence doctrine: when the aider and abettor acts with knowledge of the

criminal purpose of the direct perpetrator and with an intent or purpose either of

committing, or of encouraging or facilitating commission of, the target offense, he or she

is guilty of both the intended crime and any other offense (the nontarget offense)

committed by his or her confederate that was a "natural and probable consequence" of the

target crime that he or she aided and abetted. (Id. at p. 1117.)

       In Favor, supra, 54 Cal.4th 868, the court examined whether an aider and abettor

who knew of and intended to facilitate the target offense of robbery could be convicted of

the nontarget offense of attempted premeditated murder under the natural and probable

                                              8
consequences doctrine if the direct perpetrator committed an attempted murder and such

an attempted murder was a natural and probable consequence of the target crime, without

the jury needing to find that premeditation also be a natural and probable consequence of

the robbery, or whether the jury must be instructed that attempted premeditated murder

(not just attempted murder) was a natural and probable consequence of the target offense.

(Id. at p. 872.) The Favor court, relying on its earlier decisions in People v. Bright

(1996) 12 Cal.4th 652 (Bright) (disapproved on other grounds by People v. Seel (2004)

34 Cal.4th 535, 550, fn. 6) and Lee, supra, 31 Cal.4th 613, concluded that because

section 664, subdivision (a), does not create different offenses of attempted premeditated

murder and attempted unpremeditated murder, but is merely a penalty provision imposing

a greater punishment for an attempt to commit a murder that is premeditated, the trial

court need only instruct (as to aiders and abettors under the natural and probable

consequences doctrine) that the jury must find the commission of an attempted murder

was a natural and probable consequence of the target crime of robbery to affix liability

for the ultimate crime on the aider and abettor, and premeditation is not a required

component of the aider and abettor's mental state. Instead, Favor concluded because

section 664, subdivision (a)'s penalty provision requires only that the attempted murder

itself was willful, deliberate, and premeditated, it is only necessary the attempted murder

be committed by one of the perpetrators with the requisite premeditation. Because the

jury does not decide the truth of the penalty premeditation allegation until it first has

reached a verdict on the substantive offense of attempted murder, Favor concluded that,

"with respect to the natural and probable consequences doctrine as applied to the

                                              9
premeditation allegation under section 664[, subdivision] (a), attempted murder―not

attempted premeditated murder―qualifies as the nontarget offense to which the jury must

find foreseeability. Accordingly, once the jury finds that an aider and abettor, in general

or under the natural and probable consequences doctrine, has committed an attempted

murder, it separately determines whether the attempted murder was willful, deliberate,

and premeditated." (Favor, at pp. 879-880.)

       Thus, after Favor, it appears the jury assesses the aider and abettor's potential

liability for the heightened penalties provided by section 654, subdivision (a), under the

natural and probable consequences doctrine using a two-step inquiry: first, the jury

evaluates whether an attempted murder (regardless of the actual perpetrator's

premeditation) was a forseeable nontarget offense; if it so finds, the jury then separately

determines whether the attempted murder was committed by the perpetrator with the

requisite willfulness, deliberateness, and premeditation. If it find affirmatively on both

inquiries, the aider and abettor is subject to the heightened penalties provided by section

654, subdivision (a), for attempted premeditated murder.

       Alleyne

       In Alleyne, supra, ___ U.S. ___ [133 S.Ct. 2151], the court expanded on its

previous decision in Apprendi v. New Jersey (2000) 530 U.S. 466 in the context of a

statutory scheme that imposed enhancements to a sentence for a defendant who "uses or

carries a firearm" in relation to a "crime of violence." (Alleyne, at pp. 2155-2156.)

Under the statute, the defendant must be sentenced to a term of not less than five years

for that conduct, but also provided for a term of not less than seven years if the firearm

                                             10
was brandished and a term of not less than 10 years if the firearm was discharged. (Ibid.)

The jury found the defendant " '[u]sed or carried a firearm during and in relation to a

crime of violence' but did not indicate a finding that the firearm was 'brandished.' " (Id.

at p. 2156.) However, the trial court sentenced the defendant to seven years, concluding

brandishing was not an element the jury was required to determine beyond a reasonable

doubt but was instead a sentencing factor the trial court could find by a preponderance of

the evidence. (Ibid.) The Alleyne court reversed, declaring Apprendi established that a

fact "is by definition an element of the offense and must be submitted to the jury if it

increases the punishment above what is otherwise legally prescribed" for purposes of the

maximum term a defendant is to be punished, and Alleyne concluded this same definition

applied to facts that also increase the mandatory minimum sentence. (Alleyne, at

p. 2158.)

       Chiu

       In Chiu, supra, 59 Cal.4th 155, the court addressed whether an aider and abettor

who knew of and intended to facilitate a target offense could be convicted of the

nontarget offense of premeditated murder under the natural and probable consequences

doctrine if the direct perpetrator committed premeditated murder and premeditated

murder was a natural and probable consequence of the target crime. The Court of Appeal

held it was prejudicially erroneous not to instruct the jury it was necessary to find the first

degree premeditated murder actually committed by the perpetrator was a natural and

probable consequence of the target offense, and therefore reversed the conviction. Chiu

went further and held that, although an aider and abettor may be convicted of

                                              11
premeditated murder under direct aiding and abetting principles, an aider and abettor

cannot be convicted of the nontarget offense of first degree premeditated murder under

the natural and probable consequences doctrine. (Id. at pp. 158-159.)

       Chiu began by noting the court had not considered aider and abettor liability for

first degree premeditated murder under the natural and probable consequences doctrine.

It acknowledged its decision in Favor held that, under the natural and probable

consequences doctrine as applied to the premeditation allegation under section 664,

subdivision (a), a trial court need only instruct that the jury find attempted murder (not

attempted premeditated murder) was a foreseeable consequence of the target offense, and

the premeditation finding (based on the direct perpetrator's mens rea) was to be

determined after the jury decided the nontarget offense of attempted murder was

foreseeable. However, Chiu explained Favor's analysis turned on the reasoning in

Bright, supra, 12 Cal.4th 652 (which held § 664, subd. (a), imposed an increased

punishment for an attempt to commit a premeditated murder, was a penalty provision and

did not create a greater offense or degree of attempted murder) and in Lee, supra, 31

Cal.4th 613, which construed the language of section 664, subdivision (a), to evince a

legislative intent to apply section 664, subdivision (a)'s enhanced penalties to all aiders

and abettors (even those who did not personally act with premeditation) and reasoned the

direct perpetrator's more culpable state of mind would be a sufficient basis upon which to

apply section 664, subdivision (a)'s penalty provision to an aider and abettor under the

natural and probable consequences doctrine. (Chiu, supra, 59 Cal.4th at pp. 162-163.)



                                             12
       The Chiu court, however, rejected the government's argument to follow Favor and

apply the same reasoning to an aider and abettor charged with premeditated murder. The

Chiu court, explaining its grounds for distinguishing and not applying Favor, stated:

          "[Favor is] 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. [Citing 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[, subdivision] (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. [Citation.] 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).)" (Chiu, supra, 59
          Cal.4th at p. 163.)

       Chiu then articulated its reasons for concluding, as a matter of first impression,

that an aider and abettor cannot be convicted of the nontarget offense of first degree

premeditated murder under the natural and probable consequences doctrine. (Chiu,

supra, 59 Cal.4th at pp. 163-167.) Chiu noted the natural and probable consequences

doctrine is a common law doctrine "firmly entrenched in California law" (id. at p. 163)

                                             13
but, because it is not part of the statutory scheme, the court "may . . . 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." (Id. at p. 164.)

       Chiu recognized that aider and abettor culpability under the natural and probable

consequences doctrine "is vicarious in nature" because it 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.'

[Quoting People v. Canizalez (2011) 197 Cal.App.4th 832, 852]." (Chiu, supra, 59

Cal.4th at p. 164.) Chiu explained 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.' [Quoting People v. Luparello (1986) 187 Cal.App.3d 410, 439.]" (Id. at p. 164,

italics added by Chiu.) Chiu concluded that, because the application of the natural and

probable consequences doctrine does not depend on the foreseeability of every element of

the nontarget offense but instead (at least in the context of murder under the natural and

probable consequences doctrine) has focused on the reasonable foreseeability of the

                                              14
actual resulting harm, "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 . . . is served by holding them

culpable for the perpetrator's commission of the nontarget offense of second degree

murder." (Id. at p. 165.)

       Chiu declared that limiting aider and abettor liability under the natural and

probable consequences doctrine to second degree murder is:

          "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. [Citation.] 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. [Citation.] [¶] 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. [Citation.] 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 of murder
          with or without premeditation and deliberation has no effect on the
          resultant harm. 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' [quoting 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

                                             15
           probable consequences doctrine, especially in light of the severe
           penalty involved and the above stated public policy concern of
           deterrence." (Chiu, supra, 59 Cal.4th at pp. 165-166, italics added.)

       However, Chiu cautioned that aiders and abettors could still be convicted of first

degree premeditated murder based on direct aiding and abetting principles if the

prosecution showed 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. Accordingly, Chiu turned to

an examination of whether erroneously instructing the jury that an aider and abettor could

be convicted of the nontarget offense of first degree premeditated murder under the

natural and probable consequences doctrine was harmless error. Chiu applied the

familiar principles that, "[w]hen 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. [Citations.]

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." (Chiu, supra, 59 Cal.4th

at p. 167.) Chiu ultimately concluded that, because the record showed the jury could

have based its verdict on the erroneous natural and probable consequences doctrine,

reversal was required.

       2. Prado's Arguments of Error

       Prado asserts that, even before Chiu, Favor's approach was of dubious validity

because it rested on the analysis of Bright, supra, 12 Cal.4th 652, and Lee, supra, 31

                                              16
Cal.4th 613, which viewed section 664, subdivision (a), as a penalty provision rather than

as creating a distinct or different offense. He argues Alleyne, by eviscerating that

distinction and requiring a jury to determine every element necessary to applying an

enhanced penalty to a defendant, in effect determined the approach approved by Favor

violated federal constitutional protections because Favor's approach permitted an aider

and abettor to be punished for premeditated attempted murder without having the jury

decide whether the aider and abettor personally premeditated an offense, or even whether

the aider and abettor reasonably could have foreseen a nontarget offense encompassing

premeditation.

       More importantly, Prado urges us to recognize that the analysis employed by the

Chiu court applies with equal force to aider and abettor liability for attempted

premeditated murder under the natural and probable consequences doctrine. Although

Prado acknowledges Chiu's discussion of Favor involved distinguishing (rather than

expressly disapproving) Favor, Prado asserts the grounds articulated in Chiu for

distinguishing Favor's treatment of aider and abettor liability for attempted premeditated

murder under the natural and probable consequences doctrine cannot withstand serious

scrutiny, and argues we should therefore construe Chiu as overruling Favor sub silencio

and precluding of aider and abettor liability for attempted premeditated murder under the

natural and probable consequences doctrine notwithstanding Favor.

       3. Any Error Was Harmless

       Prado presents cogent arguments that, considering Chiu, the jury was

misinstructed on aider and abettor liability for attempted premeditated murder under the

                                             17
natural and probable consequences doctrine. However, we conclude it is unnecessary to

definitively determine whether Chiu overruled Favor sub silencio because, even

assuming the jury was misinstructed on aider and abettor liability under the natural and

probable consequences doctrine for the attempted premeditated murder of Monroe,5 we

are convinced beyond a reasonable doubt that any such purported error must be deemed

harmless. (Chiu, supra, 59 Cal.4th at pp. 166-167.)

       The jury was instructed on three separate theories for imposing liability on Prado

for all of the murders: he could be guilty as a direct perpetrator of attempted premeditated

murder; he could be guilty on "direct" aiding and abetting principles; and he could be

guilty under the "natural and probable consequences" doctrine. As to Prado's liability for

Rivas's attempted murder of Monroe, only the latter two theories were applicable


5       On appeal, Prado principally argues the count involving Monroe (count 1) was
based on the natural and probable consequences doctrine because Rivas was the attacker
of Monroe, and Prado was not even charged with personal use of a knife in connection
with that count. Although Prado also briefly asserts the prosecutor "proffered aiding and
abetting as one theory of Prado's liability" on the other counts, the prosecutor primarily
argued Prado was guilty of all counts as a direct perpetrator or under direct aiding and
abetting principles, and the only evidence as to the count involving the attempted murder
of Slaughter-Cook (count 3) was that Prado was the direct and sole perpetrator of that
attempted murder, which convinces us beyond a reasonable doubt (and Prado offers no
argument to the contrary) that the jury necessarily concluded Prado personally possessed
the requisite mens rea as to that attempted murder. Moreover, as to the conviction for the
attempted murder of Moats (count 2), the only evidence was (1) Prado was also a direct
perpetrator of that attempted murder and (2) his personal attack on Moats preceded his
later attack (on Slaughter-Cook), which the jury necessarily found was accompanied by
the requisite premeditation. Prado offers no argument or view of the evidence
demonstrating how a jury might have concluded Prado personally lacked premeditation
when he first approached to begin his attack (on Moats) but thereafter premeditated as he
continued his attack (on Slaughter-Cook). On this record, we are convinced beyond a
reasonable doubt that the jury concluded Prado personally possessed the requisite mens
rea as to both attempted murders as to which he was the direct perpetrator.
                                            18
considering the evidence that Rivas, not Prado, was the direct perpetrator. The

prosecutor, although explaining the natural and probable consequences doctrine was an

available theory for holding Prado liable for the charged crimes, expressly stated and

restated that the natural and probable consequences doctrine "isn't the People's theory of

liability because we think . . . Prado had the intent to kill." The prosecutor emphasized

the evidence showing Rivas's premeditated intent to kill in retribution for the victims'

earlier assault on him, and noted Prado knew of and shared that intent because Prado

(after being enlisted by Rivas) armed himself to accompany Rivas to exact retribution

and, after Rivas identified the target (by saying, "That's him in the white blanket"),

immediately joined with Rivas in approaching and trying to stab Moats. Indeed, the

prosecutor noted that when Moats screamed they had the wrong person, Prado responded

"you did something to my friend," evidencing Prado subjectively shared with Rivas the

intent to extract revenge on the persons who had earlier attacked Rivas, one of whom was

Monroe. Indeed, the prosecutor noted, when Rivas turned his attack away from the

mistaken target (Moats) and attacked "the person he was meaning to attack" (Monroe),

the prosecutor noted Prado also turned away from Moats and went several feet away to

"protect[] . . . Rivas as [Rivas is] attacking Mr. Monroe" by stabbing Slaughter-Cook in

the back when he tried to come to Monroe's aid.

       We are convinced beyond a reasonable doubt, because of the evidence and the

argument of the prosecutor, the jury found Prado liable for Rivas's premeditated

attempted murder of Monroe under direct aiding and abetting principles because the

evidence showed, and the prosecutor argued, that (1) Monroe was one of the persons

                                             19
whom Rivas intended to target for retribution by trying to kill Monroe with planning and

premeditation, (2) Prado knew of this intention and shared that purpose, and (3) Prado

joined in the attack with the intent or purpose either of committing (or of encouraging or

facilitating commission of) Rivas's premeditated attempt to kill Monroe. We are

convinced beyond a reasonable doubt that the instruction as to the alternative natural and

probable consequences doctrine, even if erroneous, was harmless error.

       C. Any Alleged Deficiency in the Lesser Included Offenses Instruction Was

Harmless

       Prado contends the court erred when it did not sua sponte instruct the jury that

attempted voluntary manslaughter was an option of which the jury could have convicted

him under the natural and probable consequences theory, and that this error was

prejudicial and requires reversal on all three counts.

       The Case Law

       An aider and abettor may be convicted of a greater crime than the crime for which

the actual perpetrator is convicted. (People v. McCoy, supra, 25 Cal.4th at p. 1116.)

Although we are cited no Supreme Court authority specifically determining whether a

defendant can be guilty of a homicide-based offense of a lesser degree than that

committed by the perpetrator under the natural and probable consequences doctrine, a

series of cases have concluded a defendant can be guilty under the natural and probable

consequences doctrine of a lesser crime than the perpetrator, and instruction on this

principal is required in appropriate factual circumstances. This line of authority began

with People v. Woods (1992) 8 Cal.App.4th 1570 (Woods). In Woods, two defendants

                                             20
assaulted two people and stole some property. During the getaway, one of the defendants

shot and killed the occupant of a nearby car. Both defendants were convicted of first

degree murder. During deliberations, the jury asked if it could convict the accomplice of

second degree murder even if the shooter was guilty of first degree murder, and the trial

court responded in the negative. Woods held the trial court's response was erroneous

because an aider and abettor may be found guilty under the natural and probable

consequences doctrine of a lesser crime than that committed by the perpetrator, when the

evidence suggests the ultimate crime was not reasonably foreseeable but a lesser crime

committed by the perpetrator during the accomplishment of the ultimate crime was

foreseeable. (Id. at pp. 1577, 1586-1587.) Woods concluded that, under the facts of the

case, the jury could have determined it was not reasonably foreseeable the codefendant

would commit premeditated murder of an innocent bystander but it was foreseeable that

he might kill intentionally but without premeditation, and therefore reversed as to the

accomplice's premeditation. (Id. at pp. 1590, 1595-1596.)

       Woods was followed, and extended by, the court in People v. Samaniego (2009)

172 Cal.App.4th 1148 (Samaniego).6 In Samaniego, the court again held an aider and



6       The rationale in Woods was also followed in, and extended by, the court in People
v. Hart (2009) 176 Cal.App.4th 662 in the context of charged offenses more closely
aligned with the present case, where both defendants were charged with and convicted of
first degree attempted murder. The Hart court concluded the jury was not properly
instructed on the natural and probable consequences doctrine because the instructions
failed to inform the jury that to find the accomplice guilty of attempted premeditated
murder, "it was necessary to find that attempted premeditated murder, not just attempted
murder, was a natural and probable consequence of the attempted robbery." (Id. at
p. 673.) Hart held the trial court had "a duty, sua sponte, to instruct the jury in a case
                                            21
abettor's guilt may be less than the perpetrator's, but also concluded an instruction that

informed the jury " '[a] person is equally guilty of the crime . . . whether he or she

committed it personally or aided and abetted the perpetrator who committed it' [citation]

[is] generally correct in all but the most exceptional circumstances" (id. at p. 1165),

although under the peculiar facts of that case the court concluded it was potentially

misleading and should have been modified. (Ibid.) However, Samaniego ultimately

found the misinstruction to be harmless beyond a reasonable doubt because the jury

necessarily found each of the defendants acted with the intent to kill (because the jury

found a multiple murder special circumstance allegation to be true) and "[i]t would be

virtually impossible for a person to know of another's intent to murder and decide to aid

in accomplishing the crime without at least a brief period of deliberation and

premeditation, which is all that is required." (Id. at p. 1166.)

       Finally, in People v. Nero, supra, 181 Cal.App.4th 504, defendant Nero stabbed

the victim to death with a knife that the prosecution argued defendant Brown had handed

to him. (Id. at p. 519.) During deliberations, the jury asked if it could find an aider and

abettor guilty of a greater or lesser crime than the direct perpetrator, and the trial court

replied that the principals in a crime are equally guilty. (Id. at pp. 511-513.) Both of the

such as this one that it must determine whether premeditation and deliberation, as it
relates to attempted murder, was a natural and probable consequence of the target crime"
(ibid.), and that it was prejudicial error not to inform the jury it could convict the
accomplice of a lesser crime than the perpetrator under the natural and probable
consequences doctrine. (Id. at pp. 672-674.) However, Hart was expressly disapproved
in Favor, supra, 54 Cal.4th at page 879, footnote 3, although the Favor court apparently
left Woods untouched. (Favor, supra, 54 Cal.4th at p. 877.) If, as Prado contends, Chiu
has overruled Favor sub silencio, it is equally arguable Hart's extension of Woods to the
context of attempted murder has been resurrected sub silencio.
                                              22
defendants were convicted of second degree murder, but the Nero court concluded this

was error because an aider and abettor may be found guilty of a lesser homicide-related

offense than the actual perpetrator. It concluded the "equally guilty" language for aider

and abettor liability can be misleading, and it could not find beyond a reasonable doubt

that Brown would have been found guilty of second degree murder in the absence of the

erroneous response to the jury's question. (Id. at pp. 513-520.)

       Prado's Claim

       Prado argues that, in light of Woods, the court sua sponte should have more clearly

articulated that the jury had the option of convicting him of either attempted murder or

attempted voluntary manslaughter as natural and probable consequences of his aiding and

abetting an assault with a deadly weapon, regardless of whether the jury concluded Rivas

was guilty of the greater offenses. He asserts that if attempted murder was a foreseeable

nontarget offense of the target crime (e.g. assault with a deadly weapon) he aided and

abetted, attempted voluntary manslaughter was necessarily an equally foreseeable

nontarget offense of that target crime. The People argue the jury instructions were

adequate but, to the extent the instructions were unclear, any ambiguity was harmless.

       Analysis

       We conclude that, even assuming there was an absence of clarity in the

instructional charge to the jury, any deficiency was harmless beyond a reasonable doubt.

As a preliminary matter, although Prado asserts all three convictions were infected by this

deficiency, the only evidence as to the count involving the attempted murder of

Slaughter-Cook was Prado was the sole perpetrator of that attempted murder, which

                                            23
convinces us beyond a reasonable doubt that the jury necessarily convicted Prado of that

count because it found he personally possessed the requisite mens rea as to that attempted

murder, and therefore we conclude (and Prado offers no argument to the contrary) the

vicarious liability principles of the natural and probable consequences doctrine had no

impact on that count. Similarly, the evidence supporting the conviction for the attempted

murder of Moats again showed Prado was a direct perpetrator of that attempted murder,

and he offers no argument or view of the evidence demonstrating how a jury might have

concluded Prado personally lacked the intent and premeditation when he first approached

to begin his attack (on Moats) but thereafter personally intended and premeditated as he

continued his attack on Slaughter-Cook. On this record, we are convinced beyond a

reasonable doubt the jury concluded Prado personally possessed the requisite mens rea as

to both attempted murders in which he was the direct perpetrator and we are therefore

convinced beyond a reasonable doubt the vicarious liability principles (as to which he

asserts the instructions were defective) played no role in either of those convictions.

       On appeal, the only theory of prejudice Prado attempts to articulate involves his

conviction as to count one involving Rivas's attack on Monroe. He argues that, because

the prosecutor actually proceeded on the theory of natural and probable consequences,

and because the jury could have concluded Prado only intended to aid and abet an assault

with a deadly weapon, and could have also concluded Rivas's attempted murder of

Monroe was not a reasonably foreseeable crime but his attempt to commit voluntary

manslaughter on Monroe was a reasonably foreseeable crime, the verdict might have

been impacted by the imprecision. We are not persuaded by Prado's arguments for

                                             24
several reasons. First, unlike Samaniego, supra, 172 Cal.App.4th 1148, the record

contains no indication the jury thought Prado was less culpable than Rivas, or wanted to

convict Prado of something less than attempted first degree murder but erroneously

believed that it could not do so, or made any inquiries indicating it was confused on the

point. More importantly, as previously discussed, the prosecutor mentioned the natural

and probable consequences doctrine but expressly admonished that it was relying on

direct aiding and abetting principles, and focused on Prado's guilt as a direct perpetrator

(as to Moats and Slaughter-Cook) and under direct aider and abettor principles (as to

Monroe). Moreover, during the prosecutor's brief remarks about the natural and probable

consequences doctrine, he did not tell the jury it was barred from convicting Prado of any

offense less than any offense of which it found Rivas guilty. Finally, we are convinced

the jury found Prado possessed the intent to kill and premeditated that intention because

of its verdict as to Slaughter-Cook, which makes it highly likely the jury relied on the

direct aiding and abetting principles rather than the natural and probable consequences

doctrine.

       The entirety of the evidence overwhelmingly proved Prado aided and abetted in

the attempted premeditated murder of Monroe. Prado armed himself with a knife and

accompanied his friend to extract revenge and, after one of them identified (albeit

mistakenly) their target by stating, "That's him in the white blanket," Prado accompanied

Rivas to try to repeatedly stab Moats through the blanket, telling him (when Moats

claimed they had the wrong person and asked what he had done) that "you did something

to my friend." Moreover, when Rivas shifted his attack to Monroe, Prado continued to

                                             25
back Rivas up by stabbing the person who was trying to restrain him. Considering all of

the circumstances, we conclude it is not reasonably possible any ambiguity in the

instruction affected the verdict, and therefore the error is harmless beyond a reasonable

doubt. (Samaniego, supra, 172 Cal.App.4th at pp. 1165-1166.)

                                      DISPOSITION

       The judgments are affirmed.




                                                                          McDONALD, J.

WE CONCUR:


HALLER, Acting P. J.


O'ROURKE, J.




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