Gonzalez

I. Introduction

Defendant, Art Gonzalez, appeals from his first degree murder conviction. (Pen. Code, 1 § 187.) The jury further found defendant personally used a firearm in the commission of the murder. (§ 12022.5, subd. (a).) In the published portion of this opinion, we discuss the “quite limited” sua sponte duty to instruct on a target offense as it relates to a natural and probable consequences theory of aiding and abetting liability. (People v. Prettyman (1996) 14 Cal.4th 248, 269 [ 58 Cal.Rptr.2d 827 , 926 P.2d 1013 ]; People v. Dawson (1997) 60 Cal.App.4th 534, 544 [ 71 Cal.Rptr.2d 33 ].) Defendant argues, for the first time on appeal, that the trial court should have instructed on its own initiative on the target offense of simple assault as a predicate for a finding that a prosecution witness was an accomplice on a natural and probable consequences aiding and abetting theory. Since the witness could have been viewed as an accomplice under a natural and probable consequences aiding and abetting theory, defendant reasons there was a sua sponte duty to instruct pursuant to CALJIC No. 3.02 and the elements of the target offense of simple assault. We disagree with…

I concur in the result. I believe that the trial court erred by not giving the CALJIC No. 3.02 instruction concerning liability for natural and probable consequences for purposes of determining whether a witness was an accomplice, but that the error was harmless.

Because the jury was not instructed with CALJIC 3.02, the jury could have found that Mario Lopez (Lopez) was an accomplice only if it found that he knew of and intended to further defendant’s unlawful purpose, i.e., murder. That is not a complete statement of accomplice law. Lopez also could have been found to be an accomplice if he aided and abetted a crime—here assault—(a “target offense”), the natural and probable consequence of which was murder. (See generally People v. Prettyman (1996) 14 Cal.4th 248, 259-263 [ 58 Cal.Rptr.2d 827 , 926 P.2d 1013 ].)

If the jury had been instructed with CALJIC No. 3.02, then the jury could have found that Lopez was an accomplice even if it believed he did not know that defendant intended to shoot the victim. (People v. Gonzales (2001) 87 Cal.App.4th 1 [ 104 Cal.Rptr.2d 247 ].) If Lopez engaged in a criminal act, the natural and probable consequence of which was murder, then he was…

Certified for Partial Publication. [*]

Defendant, Art Gonzalez, appeals from his first degree murder conviction. (Pen. Code, [1] § 187.) The jury further found defendant personally used a firearm in the commission of the murder. (§ 12022.5, subd. (a).) In the published portion of this opinion, we discuss the "quite limited" sua sponte duty to instruct on a target offense as it relates to a natural and probable consequences theory of aiding and abetting liability. ( People v. Prettyman (1996) 14 Cal.4th 248, 269 , 58 Cal.Rptr.2d 827 , 926 P.2d 1013 ; People v. Dawson (1997) 60 Cal.App.4th 534, 544 , 71 Cal.Rptr.2d 33 .) Defendant argues, for the first time on appeal, that the trial court should have instructed on its own initiative on the target offense of simple assault as a predicate for a finding that a prosecution witness was an accomplice on a natural and probable consequences aiding and abetting theory. Since the witness could have been viewed as an accomplice under a natural and probable consequences aiding and abetting theory, defendant reasons there was a sua sponte duty to instruct pursuant to CALJIC No. 3.02 and the elements of the target offense of simple…