Nguyen

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 186 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 187 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 188 Under California law, a conspirator who withdraws from the conspiracy affirmatively and in good faith, and communicates that withdrawal to the other conspirators, remains liable for the conspiracy itself but avoids liability for the target offense or any subsequent acts committed by coconspirators. (People v. Sconce (1991) 228 Cal.App.3d 693 , 701 ; 1 Witkin Epstein, Cal. Criminal Law Cal. Criminal Law (3d ed. 2000) Elements, § 92, pp. 309-310.) This case involves an unusual implication of the withdrawal defense. Appellants presented evidence that they withdrew from a conspiracy to commit robbery before their coconspirators commenced the assault on the targeted premises, during which a victim was shot and killed. Were appellants entitled to a verdict form on…

I concur with the majority opinion, but write separately due to a concern regarding the formulation of the jury instruction. There is a substantial risk of juror confusion if the discussion in People v. Mower (2002) 28 Cal.4th 457 , 476-484 , on burden of proof is not carefully applied in framing instructions. It is axiomatic that the People bear the burden of proving a defendant's guilt beyond a reasonable doubt and that the burden never shifts to the defendant to prove his innocence. (Evid. Code, § 501 ; People v. Mower, supra, 28 Cal.4th at pp. 478-479 .) The Mower court also noted that there are a few affirmative defenses that a defendant must prove by preponderance of the evidence. These affirmative defenses include insanity and defenses that are collateral to any element of the crime, like entrapment. ( Mower, supra, at pp. 479-481 .) As Witkin has explained, the term "burden of proof" is actually used in two senses. The primary and "proper" meaning connotes the burden of persuasion that describes a party's duty to convince a jury to a certain degree of confidence that a given fact is true. The secondary meaning involves the burden of production. The party with the burden of…

Under California law, a conspirator who withdraws from the conspiracy affirmatively and in good faith, and communicates that withdrawal to the other conspirators, remains liable for the conspiracy itself but avoids liability for the target offense or any subsequent acts committed by coconspirators. ( People v. Sconce (1991) 228 Cal.App.3d 693, 701 , 279 Cal.Rptr. 59 ; 1 Witkin & Epstein, Cal.Criminal Law Cal.Criminal Law (3d ed. 2000) Elements, § 92, pp. 309-310.) This case involves an unusual implication of the withdrawal defense. Appellants presented evidence that they withdrew from a conspiracy to commit robbery before their coconspirators commenced the assault on the targeted premises, during which a victim was shot and killed. Were appellants entitled to a verdict form on conspiracy as a lesser included offense of felony murder? We hold that they were so entitled. When the prosecution relies on a conspiracy theory to establish liability for the underlying felony, conspiracy becomes a lesser included offense of felony murder and the jury must be given the option of returning a conspiracy verdict if there is substantial evidence of withdrawal from the conspiracy…