Defendant was properly convicted of murdering members of his own gang as a natural and probable consequence of his participation in a gang “jump out.” Smith, a member of the Gateway Posse gang, was involved in arranging for his brother, McMorris, to be “jumped out” of a gang that was affiliated with Gateway Posse’s rival, the Pueblo Posse gang. Smith wanted to make sure McMorris was not too badly beaten. During the “jumping out,” gunfire erupted and Smith’s friend and cousin, both associated with his gang, were killed. At trial, the prosecution argued that Smith was guilty of murder under the natural and probable consequence theory of aiding and abetting. While Smith’s gang and members of Pueblo Posse gang were normally enemies, they cooperated for the purpose of staging this “jump out.” The prosecution argued that the murders, which were committed by Pueblo Posse members, were the reasonably foreseeable result of the target offenses of disturbing the peace and assault or battery. Smith was found guilty of two counts of second degree murder and participating in a gang. The jury also found true a gang enhancement. Smith appealed, arguing in part that he was not liable under the natural and probable consequence doctrine for the acts of a person that he did not directly aid and abet. Held: Affirmed. Under the natural and probable consequence doctrine, an aider and abettor is guilty not only of the intended, or target, crime but also of any other crime a principal in the target crime actually commits (the nontarget crime) that is a natural and probable consequence of the target crime. The statutes governing aider and abettor liability and principals (Pen. Code, §§ 31, 971) do not distinguish among principals on the basis of whether they directly or indirectly aided and abetted the target crime or the perpetrator of the nontarget crime. As a result, liability under the natural and probable consequence doctrine is not limited to those who directly aid and abet the perpetrator who commits the target crime or the nontarget crime.
CALCRIM No. 402 incorrectly states that if a murder was committed for a reason independent of the common plan to commit the target offense, then it is not a natural and probable consequence of the target offense. The limitation set forth in the instruction applies to conspirator liability for crimes outside of or foreign to the common design. This limitation is inapplicable to an aider and abettor, who furthers the commission or attempted commission of an actual crime and who is therefore liable for any offense that is the natural and probable consequence of the crime they aided and abetted. Whether an unintended crime was the independent product of the perpetrator’s mind may be relevant to whether the crime was the natural and probable consequence of the target offense, but it does not negate the aider and abettor’s culpability. However, the erroneous instruction inured to Smith’s benefit, so there was no prejudice.
Smith’s murder convictions were supported by sufficient evidence even if the jury could not agree as to the killer’s identity. Smith claimed the evidence was insufficient because the jury could not identify the actual killer. However, this did not matter so long as the jury unanimously agreed that, whoever the killer was, he committed murder and was a principal in the target crimes. If the jury also found that Smith aided and abetted the target offenses, and that the murders were a foreseeable consequence of the target offenses, this was sufficient.