The language of CALJIC No. 3.40, requiring an injury or death to be a direct, natural, and probable consequence of a defendant’s act necessarily refers to consequences that are reasonably foreseeable and the court need not provide a sua sponte instruction on supervening cause. Appellant was convicted of second degree murder, conspiracy to commit assault, gang enhancements and a criminal gang offense. According to the evidence, he and four juvenile members of the street gang Sons of Death were sitting on a porch drinking when a rival gang member walked past and threw a gang sign. The group caught up to the victim, and punched and kicked him and left him on the ground unconscious. They then returned to the porch and resumed drinking. Shortly thereafter, Johnson arrived on the scene and he and the juveniles returned to the fallen victim and continued to viciously assault him. Appellant was either in the house or the back yard and was not present. The victim died. The autopsy surgeon attributed death to blunt force trauma to the head, the result of a combination of blows, none of which alone was sufficient to cause death by itself. The appellate court upheld the second degree verdict, finding CALJIC No. 3.40 which discusses causation was a correct statement of the law as Johnson’s involvement was not a superseding, intervening act and the death of the victim due to beating was foreseeable.
Conviction for possession of an assault weapon is not a predicate offense for the purpose of establishing a pattern of criminal gang activity for either the gang enhancement or the crime of gang participation.
The gang enhancement of ten years that attaches to a violent felony does not apply if the conviction is for a crime for which an indeterminate term of life in prison is proscribed. The enhancement of appellant’s sentence for second degree murder with the gang enhancement was error and was ordered stricken.