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Name: People v. Hart et al
Case #: C057652
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/11/2009

To convict a defendant of attempted premeditated murder under the natural and probable consequences doctrine, the jury must be instructed that attempted premeditated murder was a natural and probable consequence of the charged robbery. Codefendants Rayford and Hart entered a liquor store, and Hart showed a gun and demanded the clerk’s money. When Hart saw the clerk had a gun, he shot at the clerk, hitting him in the abdomen. Hart and Rayford were both convicted of attempted premeditated murder. On appeal, Rayford argued that the trial court erred in its natural and probable consequences instruction for aider and abettor liability (CALCRIM No. 402), because the jury was never instructed on natural and probable consequences in relation to the premeditation element. The Court of Appeal agreed, and reversed the premeditation finding. Under the Third District’s opinion in People v. Woods (1992) 8 Cal.App.4th 1570, the jury was legally allowed to find an aider and abettor (Rayford) guilty of a lesser crime than a perpetrator (Hart). Here, however, the instructions did not inform the jury that in order to find Rayford guilty of attempted premeditated murder even if Rayford did not intend that result, it was necessary to find that attempted premeditated murder, and not merely attempted murder, was a natural and probable consequence of the robbery. The general premeditation instruction did not suffice, because that focuses on a subjective state of mind, while natural and probable consequences requires an objective test (reasonable foreseeability). The error was prejudicial, because the jury may have found Rayford to have premeditated without finding either actual premeditation or the objective element required for natural and probable consequences.