Natural and Probable Consequences Doctrine California

Under the natural and probable consequences doctrine ". . . the aider and abettor in a proper case is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable consequences of any act that he knowingly aided or encouraged." ' " ( People v. Croy (1985) 41 Cal. 3d 1, 12, fn. 5 [221 Cal. Rptr. 592, 710 P.2d 392], italics omitted, quoting People v. Durham (1969) 70 Cal. 2d 171, 181 [74 Cal. Rptr. 262, 449 P.2d 198], cert. den. 395 U.S. 968 [89 S. Ct. 2116, 23 L. Ed. 2d 755], quoting People v. Villa (1957) 156 Cal. App. 2d 128, 134 [318 P.2d 828].) The natural and probable consequences doctrine operates independently of the second degree felony-murder rule. It allows an aider and abettor to be convicted of murder, without malice, even where the target offense is not an inherently dangerous felony. (See, e.g., People v. Lucas (1997) 55 Cal. App. 4th 721, 732-733 [64 Cal. Rptr. 2d 282] [target offense of brandishing a firearm]; People v. Laster (1997) 52 Cal. App. 4th 1450, 1463-1466 [61 Cal. Rptr. 2d 680] [target offense of discharging a firearm from a motor vehicle].) The Supreme Court has not clearly specified whether the natural and probable consequences doctrine looks to the consequences of an "act" or a "crime." In earlier cases, the court stated the doctrine in terms of an "act." for example, in People v. Durham, it said: "'The aider and abettor in a proper case is . . . also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.' " ( People v. Durham, supra, 70 Cal. 2d at p. 181, italics added by Durham omitted, new italics added; accord, People v. Croy, supra, 41 Cal. 3d at p. 12, fn. 5.) Similarly, in People v. Beeman (1984) 35 Cal. 3d 547 [199 Cal. Rptr. 60, 674 P.2d 1318], it said: "The liability of an aider and abettor extends also to the natural and reasonable consequences of the acts he knowingly and intentionally aids and encourages." ( Id., at p. 560, italics added.) More recently, however, the court has stated the natural and probable consequences doctrine in terms of a "crime" or "offense." In People v. Prettyman (1996) 14 Cal. 4th 248 [58 Cal. Rptr. 2d 827, 926 P.2d 1013], it said: "A person who aids and abets a confederate in the commission of a criminal act is liable . . . for any other offense (nontarget crime) committed by the confederate as a 'natural and probable consequence' of the crime originally aided and abetted." ( Id., at p. 254, italics added.) Likewise, in People v. Mendoza, it said: "The aider and abettor is guilty . . . of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense." ( People v. Mendoza, supra, 18 Cal. 4th at p. 1123, italics added.) On a few occasions, the court has spoken out of both sides of its mouth. ( People v. Williams (1997) 16 Cal. 4th 635, 679, fn. 16 [66 Cal. Rptr. 2d 573, 941 P.2d 752], cert. den. (1998) 523 U.S. 1027 [118 S. Ct. 1314, 140 L. Ed. 2d 478] [". . . the four murders were the natural and probable consequence of criminal acts (assault with a deadly weapon or shooting at an inhabited dwelling) that defendant knowingly aided and abetted" (italics added)]; People v. Bunyard, supra, 45 Cal. 3d at pp. 1231 [" 'The liability of an aider and abettor extends also to the natural and reasonable consequences of the acts he knowingly and intentionally aids and encourages' " (italics added)], 1232 [murder of fetus "was a reasonably foreseeable and, indeed, inevitable [consequence of the] offense of the first degree murder" of mother (italics added)].) The Supreme Court's waffling on this point is no doubt due to the fact that, in most cases, the fine sophistic distinction between an "act" and a "crime" is irrelevant. Felony child abuse, however, has been held to be a continuous course of conduct crime. ( People v. Vargas (1988) 204 Cal. App. 3d 1455, 1460-1464 [251 Cal. Rptr. 904]; People v. Sheffield (1985) 168 Cal. App. 3d 158, 167 [214 Cal. Rptr. 40]; People v. Ewing (1977) 72 Cal. App. 3d 714, 717 [140 Cal. Rptr. 299].) A continuous course of conduct crime is one in which the actus reus is defined as a series of acts over a period of time. ( People v. Whitham (1995) 38 Cal. App. 4th 1282, 1295 [45 Cal. Rptr. 2d 571]; People v. Jenkins (1994) 29 Cal. App. 4th 287, 300 [34 Cal. Rptr. 2d 483].) Typical continuous course of conduct crimes include misdemeanor child annoyance, pimping, pandering, failure to provide for a minor child, contributing to the delinquency of a minor, and dissuading a witness from testifying. ( People v. Gear (1993) 19 Cal. App. 4th 86, 92 [23 Cal. Rptr. 2d 261], cert. den. (1994) 511 U.S. 1088 [114 S. Ct. 1846, 128 L. Ed. 2d 471], and cases cited.) The primary significance of defining a crime as a continuous course of conduct is that the jury need not agree unanimously that the defendant committed any particular act or acts; it need only agree unanimously that he or she engaged in the prohibited conduct. ( People v. Adames (1997) 54 Cal. App. 4th 198, 206-208 [62 Cal. Rptr. 2d 631]; People v. Whitham, supra, 38 Cal. App. 4th at pp. 1294-1297.)