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Name: People v. Favor
Case #: B215387
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 12/02/2010
Subsequent History: rev. granted 3/16/11 (S189317)

An instruction relating the natural and probable consequences doctrine specifically to premeditated attempted murder, and not just attempted murder, is not necessary if the jury is also properly instructed on premeditated attempted murder. During the course of a robbery appellant and two cohorts shot a store owner, the manager, and an employee. The employee died but the other two victims survived. Appellant was convicted of, inter alia, murder and two counts of attempted murder. Appellant appealed the attempted murder convictions, alleging the court’s instruction on the natural and probable consequences doctrine was faulty. Appellant complained the jury was not told it had to find that a premeditated attempted murder, as opposed to a “simple” attempted murder, was a natural and probable consequence of the robbery. The appellate court held such an instruction is not required. Although not a natural and probable consequences case, in People v. Lee (2003) 31 Cal.4th 613 the Supreme Court held that an individual could be convicted of premeditated attempted murder, even if he did not personally act with deliberation and premeditation because the Legislature could have, but did not, limit the attempt statute (Pen. Code, sec. 664, subd. (a)) to those who personally acted willfully and with premeditation and deliberation. Applying the reasoning in Lee to the natural and probable consequences theory, the jury need only be instructed on the natural and probable consequences doctrine and on the elements of premeditated attempted murder. (See People v. Cummings (2005) 127 Cal.App.4th 667.) The case of People v. Hart (2009) 176 Cal.App.4th 662, which held otherwise, is not as persuasive because it did not address Lee or Cummings Here, it was enough that the jury was properly instructed on the elements of attempted murder based on the natural and probable consequences theory, and on the necessary findings for willful, premeditated and deliberate attempted murder.