PEOPLE v. CHIU

Respondent’s Opening Brief on the Merits

Cal.December 14, 2012

COPY Su the Supreme Court of the State of Caltfornia THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Case No. $202724 Vv SUPREME COURT BOBBY CHIU, be EZ Defendant and Appellant. DEC 14 2012 Frank A. McGuire Clerk Appellate District, Case No. C063913 Sacramento County Superior Court, Case No. Deputy The Honorable Lloyd G. Connelly, Judge BRIEF ON THE MERITS KAMALAD. HARRIS Attomey General of California DANER. GILLETTE Chief Assistant Attorney General MICHAELP. FARRELL Senior Assistant Attorney General Eric L. CHRISTOFFERSEN Supervising Deputy Attorney General DON DENICOLA Deputy State Solicitor General JENNEVEE H. DE GUZMAN Deputy Attorney General State Bar No. 197817 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 327-1145 Fax: (916) 324-2960 Email: Jennevee.DeGuzman@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Issue Presented oo...ec cccesesssesesscscsesscscsssussssseessassvsesassutesacasssaecatsaseceseesees 1 Statementof the Case... cccccccccccsesssssssessscssesesssececstatsterstsssscsecssessevesevenes 1 Summary of Argument........ccccccccscsssssssssssesesesesesesesscacssseseasstsccseesvecevenees 9 ATQUMENEoo.eeeeecceseeeceseeesesesesesscsessscssevecacssssssecacecsasavavasassusssicessessesavevene 11 I. Where Murderis a Foreseeable Consequenceofa Target Crime, then Liability for First Degree Murder Based on Premeditation May Be Properly Imposed on One Who Aids And Abets the Target Crime... 11 A. Overview of the Natural and Probable Consequences Doctrine .........ccccesseesesesesessesseseeeeeees 12 B. The Underlying Policy of the Doctrine Requires that Liability be Based on the Foreseeability of the Resulting Harm Rather than the Specific Crime; Therefore, An Aider Can Be Guilty of First Degree Murder Underthe Doctrine Where A Death was A Foreseeable Harm Flowing From the Intended Crime..........cccccesesssscesseseeeeeen 14 I. Error, If Any, was Harmless Beyond A Reasonable Doubt 0...eseceeeeceeeseseseeececsesesesecseseeecscssssssscsesassecaeereas 24 COMCIUSION o.oo. eee ecccseceseesssesesesescsesssssscscscssssevavsvacavacsevsansvsusasstateucserenesess 26 TABLE OF AUTHORITIES Page CASES Chapmanvy. California (1967) 386 U.S. 18.....cccccceeseeteeteeeteeeeeereeesaenens 11, 24 People v. Ayala (2010) 181 Cal.App.4th 1440 oo.ccces csseesseeesenseeeneneeeseeeeeseetesesieeregs 22 People v. Brigham (1989) 216 Cal.App.3d 1039 oc cccccccescsseseneesetecessenesesensesseseeseeneneees 9, 14 People v. Caesar (2008) 167 Cal.App.4th 1050, overruled ..........cccceeesesereeeeeeeereeteeteeneneees 13 People v. Canizalez (2011) 197 Cal.App.4th 832 oo. ceccscescesseseeteeenseneeeeeneesseeeerereraens 11,24 People v. Cooper (1991) 53 Cal.3d 1158 oescccseecee ces ereesesseteneneesenseeesnaeeeeenenes 12,15, 18 People v. Croy (1985) 41 Cal.3d 1 oo.seaseaseessesaseseecaueceuscaecasseesaeecaccuaeenaneseaeensensnens 13, 14 People v. Favor (2012) 54 Cal.4th 868 oo.ssecseneneeseeseenerssneeeteeseessenenseass Passim People v. Garrison (1989) 47 Cal.3d 746 oo. cccccecsesesseeeeeneceeseseneseneneneseseeteseeseaeneesersereenieneys 19 People v. Gonzales (2001) 87 Cal.App.4th Liceeccecscsecseenesensceeeseseneneeseeteereeeneeenes 18, 22, 24 People v. Gonzales (2011) 52 Cal.4th 254cececccseeeeseeeesseecsenesenenesesetesseeseseressaeensens 13, 18 People v. Hart (2009) 176 Cal.App.4th 662 0... ccccecsesseeeetenseeterseseerertenseentes 8, 19, 20, 21 People v. Kauffman (1907) 152 Cal. 331 oo eeeecceceesesenereeseenenesesseeseneneeneaenereteresessenetseenens 9,14 People v. King (1938) 30 Cal.App.2d 185 ...ccccccececseseeeeseseeseeeeereeereeenetseteetereteneeseneeeees 22 il People v. Lee (2003) 31 Cal.4th 613 oie cceccccccscscscsseesscscescssscstsvsvsssseavsesesaseuasavateneass 21 People v. Luparello (1986) 187 CalApp.3d 410 ooo ccccccccscccssssssessessssscsssssscesessetecsteranavasees 13 People v. Medina (2009) 46 Cal.4th 913 occccecccccssscsesesssscsecscessssvssscssessseveesaseatevanes Passim People v. Mendoza | (1998) 18 Cal.4th L114ccccecccccscseseceeescscscscstsvssseevauseaseeaeensatetnesass 12 People v. Nguyen (1993) 21 Cal.App.4th 518 oo cccccccccscesscscseesssesscscscssststssenseessavecateseseess 13 People v. Olguin (1994) 31 Cal-App.4th 1355, 37 CalRptr.2d 596.0... cccceccccssssscsesesseeces 22 People v. Prettyman (1996) 14 Cal4th 248occccccescsscscescassesstststsssscsssesseestensaes Passim People v. Superior Court (Sparks) (2010) 48 Cal4th Doneccccceccccscssscssescsescsecsssevsuevevsvevsesevacesasstsevevsnseenses 13 People v. Wheaton (1923) 64 CalApp. 58 ooo eccccccsccsesesesssecsessescsevsvscsssusssseecerssecauscucatecaneasas 22 People v. Woods (1992) 8 Cal.App.4th 1570 .o..cccccccccccccccsessessscessssesenstsvsverseesesesvassees Passim STATUTES Penal Code SBDceecceeceesenseseenececeesetsesseseeseassesacscseseeseessscseevevscsesisssssacaceusseeseetataes 12 § STsceesceesesssscaseeeescseessesesssesecsesessesssassescessssssececsecsacausesevauestevanees 3 § 664, SUD. (8) oeeeceecesseeesseseesesesseseceessscrsssessecsessescsseeeuscarsceareass 20, 21 OTHER AUTHORITIES CALCRIM NO, 400... cceccceccnsseneseeseeeecseceeseesesesesscseacseecsessscassesssusesscensceuevaceasatacacere 11 NO. 402.eeececcseneesesecseseeseesesscessssssevsseecescsecsescsssscsssscsevaeesaessssevacaceaeess 20 NO. 403 occee eeeceeeeeeeseeceseseesecsesseecseeseaccaessesscsesesssscesseeesessesscesuaeeceesneass 8, 11 NO. S20.eeeeeeceescnceeseesceeseesseseeseessccsecsesseseceescssssvsnsccasuesaseaeersaees 5, 6, 23, 24 NO. S21 oeeececcecccsccsetesscesenceseeesseessesensesensesesuesssusesstssscsessssecsasenevesseesseacarenteres 7 ill ISSUE PRESENTED In order for an aider and abettor to be convictedoffirst degree premeditated murderby application of the natural and probable consequences doctrine, must a premeditated murder have been a reasonably foreseeable consequenceofthe target offense, or is it sufficient that a murder would be reasonably foreseeable? STATEMENT OF THE CASE On September 29, 2003, Sarn Saeteurn argued with Mackinson Sihabouth overa girl, and Saeteurn challenged Sihabouth, both high school students, to an after-school fight for the following day. (1 RT 190, 204, 241-242, 249-250, 276, 278, 280, 285.) Sihabouth learned that Saeteurn plannedto bring both back-ups and a gunto the fight, which caused Sihabouth to make his own additional arrangements. (1 RT 288.) Sihabouth knew appellant, Tony Hoong, and Simon Nim and called Nim for help. (10 CT 2750-2752, 2796; I RT 282-284, 290, 292; 3 RT 635- 637.) The next day, appellant promoted the fight. He asked American Legion high school student Toang Tran,“‘Do you want to watch someone get shot?’” (9 CT 2661-2663; 2 RT 537-538, 551.) Appellant further explained that the fight would be worth watching andthat his “friend” would shootifhe felt pressured. (9 CT 2661-2663; 2 RT 540-541, 551.) Sihabouth hadalso told a friend at school, Anthony Montes,that there would be a fight involving gunplay. (3 RT 854-855.) A large crowd of spectators gathered at the fight location; however, Saeturn failed to show due to fear and Sihabouth left. (2 RT 254-260, 300- 301, 305.) Membersof the crowd, including appellant, Tony Hoong, and Rickie Che, remained at the scene. Also present was McClatchy High School student Teresa Nguyen, who was waiting for her boyfriend, American Legion High School student Antonio Gonzales. (3 RT 631.) When Nguyenfinally found Gonzales, they greeted each other with a hug and a kiss. Appellant, sitting on the trunk of a car, said somethingto Nguyen,and she asked if he was mocking her. (3 RT 645, 648, 700-701; 5 RT 1250-1251.) Appellant laughed. That angered Nguyen, whotold appellant to “shut up.” (3 RT 649, 697; 5 RT 1252.) Nguyen then asked Gonzales to defend her. (3 RT 777.) Gonzales and appellant walked towards each other. (10 CT 2753;3 RT 653, 701.) Roberto Treadway, Gonzales’s friend, ran next to Gonzales andsaid, “‘Come on. IJ got your back.’” (3 RT 655, 694-695, 703-705.) Rickie Che and Tony Hoongalso walked towards them. (3 RT 703-705, 744, 822.) There followed a fight between appellant, Che, and Hoong versus Gonzales, Treadway, and Joshua Bartholomew, Treadway’s cousin. (3 RT 744-745.) Words were exchanged, including appellantcalling Gonzalesa “bitch.” Rickie Che stared’ at Treadway then punched him. (3 RT 701-702, 707, 739-743, 782-784, 858.) Appellant swung at Gonzales’s face, causing Gonzalesto fall to the ground. (10 CT 2753; 3 RT 709, 785.) Bartholomew then hit appellant hard on the back ofthe head. (3 RT 743, 746.) Atthat point, Gonzales’s cousin, Angel Hernandez, jumpedinto the . fight and hit appellant on the head, causing him to fall on the ground. (2 RT 661-662, 787-788.) Gonzales then got up and continued his fight with appellant. (3 RT 789.) Hernandez stoppedfighting, but Roberto Reyes, Gonzales’ friend, steppedinto the fight in her place. (3 RT 790.) " At trial, the act of staring at Treadway was described as “mean- mugged.” (3 RT 739.) It gives “a bad vibe” and may beaninvitation for a physicalaltercation. (3 RT 740.) Appellant then said, “‘[g]rab the gun.’” (3 RT 746.) Che got the gun from the car and placed it under his shirt. (10 CT 2719-2720, 2757-2758, 2787, 3 RT 826-828, 859-860.) Treadway and Bartholomew tried to run away but were stopped by Hoong, who brandished a knife and stabbed Treadway in the arm. (10 CT 2813-2814; 3 RT 749, 793-794.) Gonzales yelled “gun.” Che pointed a black semi-automatic firearm at Gonzales’s face and said, “‘Run now,bitch, run.”” (3 RT 712-715, 749, 751-752, 797-798.) Gonzales complied with the order and ran from the fight. (3 RT 716-717.) After Gonzales ran, Che pointed the gun at Treadway,but hesitated. (3 RT 861- 862.) Appellant and Hoong then chanted,“‘Shoot him, shoot _ him, shoot him.’” (3 RT 799-800, 836, 861-863.) Che continued pointing the gun at Treadway, again hesitated, and shot him. (10 CT 2787-2788; 3 RT 753, 837, 861-863.) As Gonzales ran away, he heard the gunshot. (3 RT 716-717.) Gonzales turned around and saw Treadwayon the ground with a gunshot wound to his head. Appellant, Hoong, and Cheran to the car and drove off. (10 CT 2732, 2734, 2760; 3 RT 716-717, 801, 862-863.) Treadway died from the gunshot woundto the head. (3 RT 614.) Appellant was charged with murderin violation of Penal Code section 187. At the trial, the prosecution proceeded with two theories ofliability: (1) that appellant was guilty of murder because he directly aided and abetted Che in the shooting death of Treadway; and (2) that he was guilty of murder becauseheindirectly aided and abetted Che in the target offenses of assault and/or disturbing the peace. Accordingly, the jury was instructed with several standard CALCRIMinstructions pertaining to indirect aiding and abetting and the natural and probable consequences doctrine.” Thetrial court first instructed the jury with CALCRIM No.403, * The jury wasalso instructed with the standard CALCRIM instructions on direct aiding and abetting, which are notat issue here. (continued...) which providedthat the jury had to first find that appellant intendedto aid and abetthe target offenses ofeither assault or disturbing the peace. It further provided that the jury had to then find that the commission of a _ murder wasa natural and probable consequence of the commission of either an assault or disturbing the peace.’ (10 CT 2864-2865.) (...continued) 3 CALCRIM No.403 provided as follows: © Before you may decide whetherthe defendantis guilty of murder, you must decide whether he is guilty of the crime of assault or disturbing the peace. To prove that the defendant is guilty of murder, the People must provethat: 1. The defendantis guilty of assault or disturbing the peace; 2. During the commissionofassault or disturbing the peace; a coparticipantin that assault or disturbing the peace committed the crime of murder; AND 3. Underall of the circumstances, a reasonable person in the defendant’s position would have knownthat the commission of the crime of murder was a natural and probable consequence of the commission of the assault or disturbing the peace. A coparticipant in a crimeis the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander. A natural and probable consequenceis one that a reasonable person would knowis likely to happen if nothing unusual intervenes. In deciding whether a consequenceis natural and probable, considerall of the circumstances established by the evidence. If the murder was committed for a reason independent of the commonplan to committhe assault or disturbing the (continued...) The jury also received Special Instruction Nos. 2 and 3 as follows: [Special No. 2] In determining whether a homicideis the natural and probable consequence ofassault and/or disturbing the peace you must considerall the surrounding circumstances. It is not a prerequisite that the defendant knew the perpetrator possessed a firearm prior to the homicide. However, you may consider knowledgeof that fact or the absence of knowledge ofthat fact in determining the foreseeability of the homicide. [Special No. 3] Under natural and probable consequences the manneror precise form of the ensuing violence need not be foreseeable, the test is whether a reasonable person in the defendant’s position would have or should have knownthat a murderor lesser crime was a reasonably foreseeable consequencesofthe act aided and abetted by the defendant. (10 CT 2865-2866; see also 10 CT 2878-2879 [CALCRIM Nos. 915 (assault), 2688 (disturbing the peace)].) Thetrial court then instructed the jury on murder with CALCRIM No. 520. The instruction provided that, in order for appellant to be found guilty of murder, the jury had to find that (1) Che committed an act that caused (...continued) peace, then the commission of murder wasnot a natural and probable consequence of murder. To decide whether the crime of assault or disturbing the peace was committed, please refer to the separate instructionsthat | will give you on those crimes. The People are alleging that the defendantoriginally intended to aid and abeteither the crimeofassault or the crime of disturbing the peace. The defendantis guilty of assault or disturbing the peace if you decide that the defendant aided and abetted one of these crimes and that murder wasthe natural and probable result of one of these crimes. However, you do not need to agree about which of these two crimes the defendant aided and abetted. (10 CT 2864-2865.) Treadway’s death; (2) Che’s act was conducted with malice aforethought; and (3) Che killed without lawful justification.“ (10 CT 2867-2868.) * CALCRIM No. 520 provides as follows: The defendantis charged in Count One with murderin violation of Penal Code section 187. To prove that the defendantis guilty of this crime, the People mustprovethat: 1. The perpetrator committed an act that caused the death of another person; 2. Whenthe perpetrator acted, he had a state of mind called malice aforethought; AND 3. He killed without lawful justification. There are two kinds of malice aforethought, express malice and implied malice. Proofof either is sufficient to establish the state of mind required for murder. The perpetrator acted with express maliceifhe unlawfully intended to kill. The perpetrator acted with implied maliceif: 1. He intentionally committed an act; 2. The natural and probable consequencesofthe act were dangerous to humanlife; 3. At the time he acted, he knew his act was dangerous to human life; AND (continued...) Finally, the trial court instructed the jury with CALCRIM No. 521 as follows: If you decide that the defendant is guilty of murder as an aider and abettor, you must decide whetherit is murder ofthe first or second degree. Theperpetrator is guilty of first degree murderif the People have provedthat he acted willfully, deliberately, and with premeditation. The perpetrator acted willfully if he intended to kill. The perpetrator acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The perpetrator acted with premeditation if he decided to kill before completing the act that caused death. The length of time the person spends considering whetherto kill does not alone determine whetherthe killing is deliberate and premeditated. The amountoftime required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. Thetest is the extent of the reflection, not the length of time. All other murders are of the second degree. The People have the burden of proving beyond a reasonable doubtthat the killing wasfirst degree murder rather than a lesser crime. If the People have not met this burden, you mustfind the (...continued) 4, He deliberately acted with conscious disregard for humanlife. Malice aforethought does not require hatredorill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time. (10 CT 2867-2868.) defendantnotguilty of first degree murder.(10 CT 2868-2869, emphasis in original.) Appellant was found guilty as charged. (9 CT 2906-2907, 2916.) Onappeal, appellant arguedthat the standard instructions on the natural and probable consequences doctrine and degrees of murder (CALCRIM Nos. 403 and 521) together failed to instruct the jury that it had to find that first degree murder was a natural and probable consequence of either assault or disturbing the peace. Rather, the instructions allowed the jury to convict appellant of first degree murder based solely on Che’s mens rea. The California Court of Appeal agreed. Citing People v. Woods (1992) 8 Cal.App.4th 1570, 1586-1587, and People v. Hart (2009) 176 Cal.App.4th 662, 673, the court reasoned that the aider and abettor is liable vicariously only for those crimes committed by the perpetrator that the jury foundto have been reasonably foreseeable under the circumstances. In the appellate court’s view,the trial court should have instructed the jury sua sponte that it needed to decide whether first degree murder, rather than simply murder, was a natural and probable consequenceofthe target offense. Becausethe trial court failed to do so, the Court of Appeal concludedthat the jury could have convicted appellant offirst degree murder simply because that was the degree of murderthe jury found the perpetrator had committed and without determining whether a premeditated murder was foreseeable. Consequently, the appellate court reduced appellant’s first degree murder conviction to one of second degree murder. SUMMARY OF ARGUMENT Underthe natural and probable consequencesdoctrine, an aider and abettor is guilty not only of the target offenses he or she actually intends, but also “for 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.) “Liability under the natural and probable consequencesdoctrine ‘is measured by whether a reasonable person in the defendant’s position would have or should have knownthat the charged offense was a reasonably foreseeable consequence of the act aided and abetted.’” (People v. Medina (2009) 46 Cal.4th 913, 920.) Thus, an aider “shares the guilt of the actual perpetrator.” (Prettyman, at p. 259.) The policy underlying the doctrine is that a person should be liable for the ultimate result of engaging in conduct dangerousto society, even if that result is “worse than the bad result he intended.” (LaFave & Scott, Criminal Law (1972) Crimes Against the Person, p. 560; Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine, 73 Cal.L.Rev. (1985) pp. 352-353.) The law’s policy is simply to extend criminal liability to one who knowingly andintentionally encourages,assists, or influences a criminalact of another,if the latter’s crimeis naturally and probably caused by(i.e., is the natural and probable consequenceof) the criminal act so encouraged, assisted, or influenced. (People v. Brigham (1989) 216 Cal.App.3d 1039, 1052-1053.) Accordingly, this Court has characterized the aider and abettor’s exposure underthe doctrine as being “everything done by his confederates, which follows incidentally in the execution of the commondesign as one of its probable and natural consequences.” (People v. Kauffman (1907) 152 Cal. 331, 334.) In other words,“.. . the act of oneis the act of all.” (/bid.) Because the natural and probable consequences doctrine is one of equity, its application should turn on the factual question ofthe foreseeablity of the actual harm that results rather than on the foreseeability of a specific crime (and its elements). Thus, in the case of a murder,the key question should be whether an unlawful homicide was a reasonably foreseeable consequenceofthe target crime. In other words, the jury should only determine if a natural and probable consequenceofthetarget crime wasthat a death would result. “If so, then an aider and abetter of the target crime would be held criminally liable for the death and share[] the guilt of the actual perpetrator.” (People v. Prettyman, supra, 14 Cal.4th at p. 259, internal quotations omitted.) Theaideris criminally liable for an unintended criminalactthat “srows out of andis the proximate consequencesofonethat has been authorized or procured.” (People v. Prettyman, supra, 14 Cal.4th at p. 289 (conc. opn. of Brown, J.).) It follows that determining whethera nontarget offense is a natural and reasonable consequenceofa target crime does not turn on a question-of-law “comparison ofthe offenses and their individual requirements in the abstract. It is rather the resolution of a pure question of fact that turns on an assessmentofthe circumstances surrounding the commission of the crimes in the concrete.” (People v. Prettyman, supra, 14 Cal.4th at p. 279 (conc. opn. of Mosk,J.).) Thus, [w]hatis crucial is that the aider and abettor either knew or should have knownthat a killing was a likely result of this abetted criminal rampage, not whetherthis foreseeable killing mightconstitute first degree murder as opposedto second degree murder or some variety of manslaughter. Aiders and abettors are not lawyers andtheirliability should not turn on the abstruse distinctions between the various types of criminal homicide. “A primary rationale for punishing aiders and abettorsas principals- to deter them from aiding or encouraging the commission of offenses” (People v.Cooper [1991] 53 Cal.3d [1158,] 1168), 10 would not be advanced by engrafting such rarefied distinctions on the derivative liability of accomplices. (People v. Woods, supra, 8 Cal.App.4th 1570, 1603 (dis. opn. of Sparks, J.) (emphasis added).) In any event, evenif the trial court erred in failing to instruct the jury that it had to find that a premeditated murder was reasonably foreseeable, any error was harmless beyond a reasonable doubt. (Chapmanv., California (1967) 386 U.S.18, 24; see, e.g,. People v. Canizalez (2011) 197 ~ Cal.App.4th 832, 853 [CALCRIM Nos.400, 403].) It is not reasonably possible that the jury, on the facts in this case, would have concludedthat a murder was foreseeable but that a premeditated murder wasnot. ARGUMENT I. WHERE MURDERIS A FORESEEABLE CONSEQUENCEOF ATARGET CRIME, THEN LIABILITY FOR FIRST DEGREE MURDERBASED ON PREMEDITATION MAY BE PROPERLY IMPOSED ON ONE WHOAIDS AND ABETS THE TARGET CRIME In murder cases wherethe aider’s liability is based on the natural and probable consequencesdoctrine, a conviction for first degree murder is appropriate where the aider could reasonably foresee the victim’s death and the perpetrator acted with premeditation and deliberation. The purpose of the doctrine is to punish aiders for the foreseeable harmsthat directly result from their actions. To assign liability strictly based on the foreseeability of a specific unintended crime goes against this purpose and defeats the vicarious nature of the doctrine. Indeed, as set forth in more detail below, liability under the doctrine requires a careful factual analysis focusing on the foreseeability of the harm,e.g., a shooting death, rather than a legal analysis of whethera first degree murder, as opposed to simple murder, was foreseeable. If a jury finds that the resulting death was a natural and probable consequenceofthe intended offense, then the aider’s liability 11 under the doctrineis strictly vicarious andis therefore guilty of the same degree of murderas the perpetrator. A. Overview of the Natural and Probable Consequences Doctrine Generally, “[a]ll persons concerned in the commission ofa crime,... whetherthey directly commit the act constituting the offense, or aid and abet in its commission,... are principals in any crime so committed.” (§ 31.) Accordingly, an aiderand abettor “shares the guilt of the actual perpetrator.” (People v. Prettyman, supra, 14 Cal.4th at p. 259; see also People v. Mendoza (1998) 18 Cal.4th 1114, 1122.) A person aids and abets the commission of a crime whenhe or she, (i) with knowledge of the unlawful purposeof the perpetrator, (ii) and with the intent or purpose of committing, facilitating, or encouraging commission ofthe crime, (111) by act or advice, aids, promotes, encourages orinstigates the commission of the crime. (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) The mentalstate necessary for conviction as an aider and abettoris “knowledge of the perpetrator’s criminal purpose and the intent or purpose of committing, encouraging, or facilitating the commission ofthe target offense.” (Mendoza,at p. 1118.) Underthe natural and probable consequencesdoctrine, an aider and abettor maybeheld liable for crimes beyond those “target crimes” specifically aided. Suchlibility “is based on the recognition that ‘aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion.’ [Citation.]” (People v. Prettyman, supra, 14 Cal.4th 248, 260.) Accordingly, “Under California law, a person whoaids and abets a confederate in the commission ofa criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a ‘natural and 12 probable consequence’ of the crime originally aided and abetted. To convict a defendant of a nontarget crime as an accomplice underthe ‘natural and probable consequences’ doctrine, the jury mustfind that, with knowledgeofthe perpetrator’s unlawful purpose,and with the intent of committing, encouraging,or facilitating the commissionofthe target crime, the defendant aided, promoted, encouraged,or instigated the commission of the target crime. The jury mustalso find that the defendant’s confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate wasa ‘natural and probable consequence’ ofthe target crime that the defendant assisted or encouraged.” (People v. Gonzales (2011) 52 Cal.4th 254, 298-299, quoting People v. Prettyman, supra, 14 Cal.4th at p. 254; see also People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.) Thus, “[t]he [] question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.” (People v. Medina (2009) 46 Cal.4th 913, 920, citing People v. Prettyman, supra, 14 Cal.4th at pp. 260-262.) “Liability under the natural and probable consequences doctrine ‘is measured by whether a reasonable person in the defendant’s position would have or should have knownthat the charged offense was a reasonably foreseeable consequence ofthe act aided and abetted.’” (Medina,at p. 920,citing People v. Nguyen (1993) 21 Cal.-App.4th 518, 535; People v. Luparello (1986) 187 Cal.App.3d 410, 439 [“aiders and abettors should be responsible for the criminal harmsthey havenaturally, probably and foreseeably put in motion”].) The “inquiry is strictly objective, and does not depend on the defendant’s state ofmind as to the confederate’s crime.” (People v. Caesar (2008) 167 Cal.App.4th 1050, 1058, overruled on another point in People v. Superior Court (Sparks) (2010) 48Cal.4th 1, 18.) 13 B. The Underlying Policy of the Doctrine Requires that Liability Be Based on the Foreseeability of the Resulting Harm Rather than the Specific Crime; Therefore, an Aider Can Be Guilty of First Degree Murder Underthe Doctrine Where a Death Was a Foreseeable Harm Flowing From the Intended Crime The underlying policy of the doctrine is that a person should be liable for the result of engaging in conduct dangerousto society, even if the result is “worse than the badresult he intended.” (LaFave & Scott, Criminal Law (1972) Crimes Against the Person, p. 560; Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine, 73 Cal.L.Rev. (1985) pp. 352-353.) This Court has characterized the aider and abettor’s exposure underthe doctrine as being “everything done by his confederates, which follows incidentally in the execution of the common design as one ofits probable and natural consequences.” (People v. Kauffman, supra, 152 Cal. at p. 334; see also People v. Croy, supra, 41 Cal.3dat p. 12,fn. 5 [“any reasonably foreseeable offense committed by the person he aids and abets.”].) In other words,“... the act of one is the act of all.” (Kauffman,at p. 334.) Indeed, [t]his derivative criminal liability of an aider and abettor centers on causation. The law’s policy is simply to extend criminal liability to one who knowingly and intentionally encourages, assists, or influences a criminal act of another, if the latter’s crimeis naturally and probably causedby(i.e., is the natural and probable consequenceof) the criminal act so encouraged, assisted, or influenced. (People v. Brigham, supra, 216 Cal.App.3d at pp. 1052-1053.) As Justice Brownindicated in her concurrence in Prettyman,the justification for the natural and probable consequencetheory ofliability is causation. (People v. Prettyman, supra, 14 Cal4th at p. 289 [“‘[E]ven if the particular criminal act has not been authorized or consentedto,if it growsoutof andis the proximate consequenceofone that has been 14 authorized or procured, the defendant is criminally liable ... .’. In this manner, the law has maintained criminal responsibility commensurate with culpability.”], (conc. opn. of Brown, J.); see also People v. Cooper, supra, 53 Cal.3d at p. 1168 [“A primary rational for punishing aiders and abettors as principals [is] to deter them from aiding or encouraging the commission of offenses.”].) In Prettyman,this Court opined: Rarely,if everis [it] true [that an aider and abettor can become liable for the commission of a very serious crime commited by the aider and abettor’s confederate even thoughthetarget offense contemplated by his aiding and abetting may have been trivial]. Murder, for instance, is not the “natural and probable consequence”of “trivial” activities. To trigger application of the “natural and probable consequences”doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed. (People v. Prettyman, supra, 14 Cal.4th at p. 269.) Accordingly, derivative liability underthe doctrine is not unfair or inconsistent with notions of criminal responsibility. In cases where the unintended offense involves a homicide,the policy considerations underlying the doctrine strongly support the position that, for an aiderto be liable for first degree murder, all that is required is that a death had to be foreseeable. The doctrine is one of equity: the aideris criminally liable if the unintended criminal act “growsout of and is the proximate consequencesof one that has been authorized or procured.” (People v. Prettyman, supra, 14 Cal.4th at p. 289 (conc. opn. of Brown,J.).) “In this manner, the law has maintained criminal responsibility’ commensurate with culpability.” (/bid.) Accordingly, [w]hat is crucial is that the aider and abettor either knew or should have known that a killing wasa likely result of this abetted criminal rampage, not whetherthis foreseeable killing might constitute first degree murder as opposed to second degree murder or somevariety of manslaughter. Aiders and abettors are not lawyers andtheirliability should not turn on the abstruse 15 distinctions between the various types of criminal homicide. “A primaryrationale for punishing aiders and abettors as principals- to deter them from aiding or encouraging the commission of offenses” (People v. Cooper, supra, 53 Cal.3d at p. 1168), would not be advanced by engrafting such rarefied distinctions on the derivative liability of accomplices. (People v. Woods, supra, 8 Cal.App.4th at p. 1603 (dis. opn. of Sparks,J.).) It followsthat determining whether a nontarget offense is a natural and reasonable consequenceofa target crime does not turn on a purely legal “comparison of the offenses and their individual requirements in the abstract. It is rather the resolution of a pure question of fact that turns on an assessment of the circumstances surrounding the commission of the crimes in the concrete.” (People v. Prettyman, supra, 14 Cal.4th at p. 279 (conc. opn. of Mosk,J.).) This Court’s opinion in People v. Medinais illustrative. Medina involved a gang-related verbal altercation that had escalated to a physical fight and ended in the defendant shooting to death a memberofthe opposite gang. While celebrating at a New Year’s Eve party, the defendant and his fellow gang members approached an individual and asked him, “Where are you from?” The intent was to inquire about gang membership, and the question was commonly knownas an “aggressive step.” (People v. Medina, supra, 46 Cal.4th at p. 917.) Predictably, the conduct resulted in a physical altercation, with someone yelling out “get the heat.” The victim eventually returned to his car but, as he drove away, the defendantfired shots at the car and killed the victim. (/bid.) The defendant was charged with first-degree murder and wasalleged to be the actual perpetrator, while the co-defendants were charged as aiders and abettors. (/bid.) With the exception of one co-defendant, the remaining were found guilty as charged as aiders and abettors. (/d. at p. 919.) On appeal, the Court of Appeal reversed the aiders’ convictions on the groundthat there was insufficient 16 evidence that murder and attempted murder were reasonably foreseeable consequencesof simple assault. ([bid.) In reversing the Court of Appeal andfinding sufficient evidencethat murder and attempted murder were reasonably foreseeable consequences of simple assault, this Court reasoned as follows: “[A]lthough variations in phrasing are found in decisions addressing the doctrine—‘probable and natural,’ ‘natural and reasonable,’ and ‘reasonably foreseeable’—the ultimate factual question is one of foreseeability.” (People v. Coffman and Marlow (2004) 34 Cal4th 1, 107, 17 Cal.Rptr.3d 710, 96 P.3d 30.) Thus, ““‘[a] natural and probable consequenceis a foreseeable consequence’....” ([bid.) But “to be reasonably foreseeable ‘[t]he consequenceneednot have beena strong probability; a possible consequence which might reasonably have been contemplatedis enough...’ (1 Witkin & Epstein, Cal.Criminal Law (2d ed.1988) § 132, p. 150.)” (Peoplev. Nguyen, supra, 21 Cal.App.4th at p. 535, 26 Cal.Rptr.2d 323.) A reasonably foreseeable consequenceis to be evaluated under all the factual circumstancesofthe individual case (ibid.) andis a factualissue to be resolved by the jury. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1376, 37 Cal.Rptr.2d 596; Peoplev. Godinez (1992) 2 Cal.App.4th 492, 499, 3 Cal.Rptr.2d 325.) (People v. Medina, supra, 46 Cal.4th at pp. 919-920.) This Court then concluded that, after examiningthe recordin its entirety and in the light mostfavorable to the prosecution, “a rational trier of fact could have found that the shooting of the victim was a reasonably foreseeable consequence of the gang assault.” (/d. at p. 922.) This Court explained that“the jury could reasonably have foundthat a person in defendants'position (i.e., a gang member) would have or should have knownthatretaliation waslikely to occur andthatescalation of the confrontation to a deadly level was reasonably foreseeable.” (/d. at pp. 922-923.) Though the issue before this Court in Medina involved sufficiency of the evidence, this Court’s rationale is instructive on the issue here. Specifically, when analyzing the sufficiency of the evidence, this Court did 17 not evaluate whether the evidence wassufficient to support a finding that a first-degree murder wasforeseeable. Rather, this Court focused on the extent that a “shooting of the victim” was foreseeable. This Court therefore demonstrated that, at least in the context of an assult that leads to a first-degree murder, the appropriate inquiry is whether a “shooting” or “escalation of the confrontation to a deadly level” was foreseeable. (People v. Medina, supra, 46 Cal4th at p. 927.) That this Court did not address whetherit was foreseeable that Medina committed a first-degree premeditated murder further demonstrates that the foreseeablity analysis should focus on the likely results or harm and not on a specific crime. A similar approach wasfollowedby the court in People v. Gonzales (2001) 87 Cal.App.4th 1, 10. There, the court determinedthat a “fatal shooting” was the natural and probable consequencesof a gang fight that supported the first-degree murder conviction ofthe aiders and abetters of the fight. Like Medina, the Gonzales court did not consider whether a premeditated murder was a foreseeable consequence, even though that was the crimethatthe perpetrator actually committed. ([bid.) In this case, like the circumstances in Medina and Gonzales, the shooting death of Treadway wasa reasonableresult to be expected from the target crime[s] of assault and/or disturbing the peace. Like the aiders in Medina, appellant was aware that Che was armed, wouldusethe gunif provoked, andinstigated a fight with Gonzales knowingthat it would likely result in gunplay. In light of the doctrine’s policy considerations,the trial court correctly instructed the jury on indirect aider and abettorliability. The doctrine’s purposeis to “deter aiders from engaging in criminal activity that could lead to results far worse than the intended target crime.” (People v. Cooper, supra, 53 Cal.3d at p. 1168.) The aider’s liability is vicarious and he/she could beliable for first-degree murder as long as a death was reasonably foreseeable. (People v. Woods, supra, 8 Cal.App.4th 18 at pp. 1602-1603 (dis. opn. of Sparks, J.) [All that is required is that defendant knew or should have knownthat the charged crime waslikely to happen in some manneras a result of the commission ofthe targeted crime. ‘If the principal’s criminal act chargedto the aider and abettoris a reasonably foreseeable consequence of any criminalact of thatprincipal, knowingly aided and abetted, the aider and abettor of such criminalact is derivatively liable for the act charged.’ (People v. Brigham, supra, 216 Cal.App.3d at p. 1054, 265 Cal-Rptr. 486, emphasisin original.) As applied to homicide,it is enough that an unlawful killing was likely consequence ofthe target crime.”’].) The Court of Appeals’ approach in the instant case undermined the “derivative”liability intended by the natural and probable consequences doctrine by allowingthe aider and abettor’s liability to be reduced if he could foresee the perpetrator’s actus reas, but not the specific mens rea involved. (See People v. Garrison (1989) 47 Cal.3d 746, 778 [accomplice liability is vicarious].) An aider’s culpability in a homicide that was - reasonably foreseeable should not be reduced simply becausethe aider could not also predict with precision the manner within which the perpetrator would commit the murder. Rather, the aider’s fate is “