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Aiding & Abetting Murder, Natural and Probable Consequences
As the astute reader of recent developments in the law, specifically the revisions to California’s felony murder law under SB 1437, may appreciate, it is now legally impossible to be convicted of second degree murder as an aider and abettor under the natural and probable consequences doctrine.
However, to see how old convictions can be vacated under SB 1437, it is helpful to understand that this was not always the law. A little historical perspective is helpful to appreciate the recent changes more clearly in the law and how they now apply to a recent California Supreme Court ruling that reverses and remands a ruling summarized by us in Article 1104.
In a Nutshell: A petition for resentencing pursuant to Penal Code § 1170.95 (SB 1437) is proper for a conviction for second degree murder under the natural and probable consequences doctrine, even if it was a negotiated plea after an appeal was granted, as the following summary explains.
When an accomplice aids and abets a crime, the accomplice is culpable for both that crime and any other offense committed that is the natural and probable consequence of the aided and abetted crime. Indeed, under Penal Code § 31, a person who aids and abets the commission of a crime is culpable as a principal in that crime. Aiding and abetting is not a separate offense, but a form of derivative liability for the underlying crime. People v. Francisco (1994) 22 Cal.App.4th 1180, 1190.
Our law recognizes two forms of liability for aiders and abettors. People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).
First, under direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another if the accomplice aides in the commissioner of the offense with “knowledge of the direct perpetrator’s unlawful intent and [with] an intent to assist in achieving those unlawful ends.” People v. Perez (2005) 35 Cal.4th 1219, 1225.
Second, under the natural and probable consequences doctrine, an accomplice is guilty of not only of the offense he or she directly aided or abetted, but also of any other offense committed by the direct perpetrator that was the “natural and probable consequence” of the crime the accomplice aided and abetted (i.e., the nontarget offense). People v. Chiu (2014) 59 Cal.4th 155, 161. A nontarget offense is the natural and probable consequence of a target offense, “if, judged objectively, the [nontarget] offense was reasonably foreseeable.”
California Supreme Court San FranciscoThe accomplice need not actually foresee the nontarget offense. “Rather, liability is measured by whether a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.” Chiu, at 162.
In Chiu, the California Supreme Court held that natural and probable consequences liability cannot extend to first degree premeditated murder because punishing someone for first degree premeditated murder when that person did not actually perpetrate or intend the killing. This is another way of saying the mental state of malice cannot be imputed to someone who did not intend or plan a killing.
This critical holding, as well as the trend of restricting felony murder to only those who are the actual killers, or those who have the intent to kill or who are major participants in a crime and act with reckless indifference to human life, led to the passage of Senate Bill 1437.
In Article 1104, the killing of Guillermo Saavedra in La Casita restaurant in Indio was discussed. Joseph Gentile was convicted of first-degree murder under a natural and probable consequences theory based on a jury instruction that violated the law as described by Chiu.
Gentile appealed on this ground and the conviction was reversed and remanded either to try him again or reduce the conviction to second degree murder. The prosecution agreed to accept a reduction to second degree murder, again under the natural and probable consequence theory and Gentile’s sentence was reduced from 25 years to life to 15 years to life.
Senate Bill 1437 was then passed and Gentile filed a petition for resentencing under it, using the procedure provided under Penal Code § 1170.95 because it eliminated second degree murder liability under a natural and probable consequences theory.
The Fourth Appellate District rejected Gentile’s arguments and so Gentile appealed up to the California Supreme Court. In People v. Joseph Gentile, Jr. (2020 DJDAR 132377), it ruled that a person cannot be convicted of second degree murder as an aider and abettor of a crime, the natural and probable consequences of which was murder. Unlike direct aiding and abetting, culpability under a natural and probable consequences theory does not require an accomplice to share the direct perpetrator’s intent.
Indeed, by its terms, Penal Code § 188(a)(3) permits a second degree murder conviction only if the prosecutor can prove defendant acted with the mental state of malice aforethought. Therefore, the second degree murder conviction of Gentile was reversed and the case was remanded again for further proceedings.
We present this article to first and foremost clarify the requirements of aider and abettor liability in murder, but also to exemplify how one, even if convicted and in custody, should pay attention to new developments in the law because, as in this case, they may reduce one’s time in prison.
The citation for the California Supreme Court ruling discussed above is People v. Joseph Gentile, Jr. (2023) 10 Cal. 5th 830, 272 Cal. Rptr. 3d 814, 477 P. 3d 539.
For more information about Senate Bill 1437 and resentencing under Penal Code § 1170.95, please click on the following articles:
