Woods

*1577 Opinion

After their friend was shot by rival gang member Mayse Walker, defendants Barry Dewayne Woods and John Windham, along with several accomplices, set out to find Walker in an apparent effort to retaliate for the shooting. Wearing ski masks and armed with guns, they went to the apartment of Susan Allen and Trudy Johnson, two of Walker’s acquaintances. After Woods beat up one of the women’s neighbors, Woods and his cohorts forcibly entered the apartment. Windham waited outside as a lookout. At gunpoint, the intruders demanded to know Walker’s whereabouts. They assaulted both women and shot Johnson, but Allen and Johnson were unable to tell them where they could find Walker. Then, after being warned that “someone said the police is coming,” the intruders departed, taking with them two automobile tires Walker had stored at the apartment. Outside a nearby apartment complex, the assailants loaded the tires into their car. A few parking stalls away, Craig Chmelik and James McMahon were preparing to depart in Chmelik’s Mustang. Noticing the pair, Woods drew a large handgun, loaded it, and fired six shots into the Mustang. McMahon was wounded, and Chmelik was killed. After the…

The majority mistakenly concludes “the trial court erred in instructing the jury that [the aider and abettor] could *1597 not be found guilty of second degree murder as an aider and abettor if the jury determined that Woods, the perpetrator of the killing, was guilty of first degree murder.” (Maj. opn., ante, p. 1577.) Because the majority fundamentally misapprehends the derivative nature of the “natural and probable consequence” doctrine of aider and abettor liability, I dissent.

By statute, those who aid and abet the commission of a crime are deemed “principals in any crime so committed.” (Pen. Code, § 31.) Penal Code section 31 provides in relevant part: “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, ... are principals in any crime so committed.”

The first question under this statute is what mental state the aider and abettor must possess in order to be liable for the criminal acts of the perpetrator. “Considerable confusion exists as to what the accomplice’s mental…

[Opinion certified for partial publication. [*] ]

OPINION

SCOTLAND, J.

After their friend was shot by rival gang member Mayse Walker, defendants Barry Dewayne Woods and John Windham, along with several accomplices, set out to find Walker in an apparent effort to retaliate for the shooting. Wearing ski masks and armed with guns, they went to the apartment of Susan Allen and Trudy Johnson, two of Walker's acquaintances. After Woods beat up one of the women's neighbors, Woods and his cohorts forcibly entered the apartment. Windham waited outside as a lookout. At gunpoint, the intruders demanded to know Walker's whereabouts. They assaulted both women and shot Johnson, but Allen and Johnson were unable to tell them where they could find Walker. Then, after being warned that "someone said the police is coming," the intruders departed, taking with them two automobile tires Walker had stored at the apartment. Outside a nearby apartment complex, the assailants loaded the tires into their car. A few parking stalls away, Craig Chmelik and James McMahon were preparing to depart in Chmelik's Mustang. Noticing the pair, Woods drew a large handgun, loaded it, and fired six shots into the…