By Danielle Silva
California – The Fifth Appellate Court overturned an attempted murder conviction under another SB 1437 decision which eliminated “the natural and probable consequences doctrine [as] a viable theory of accomplice liability for attempted murder.” They also provide a new theory to support SB 1437 in the face of the natural and probable consequences doctrine.
Martin Sanchez was convicted of attempted murder and assault with a firearm in Kern County. In the argument to overturn the conviction, the Sanchez’s appellate attorneys argued that the evidence insufficiently proved his guilt and the natural and probable consequences theory violated his due process rights. The court also asked to hear arguments on SB 1437, which, under People v. Medrano (2019), eliminates “the natural and probable consequences doctrine [as] a viable theory of accomplice liability for attempted murder.”
In their partially published opinion (where only some parts of the opinion may be referred to for case law), the court unanimously found that the appellant attorney’s arguments of insufficient evidence and the violation of due process were not applicable. The court did find the natural and probable causes could not apply based on the People v. Medrano (2019) decision.
On May 30, 2016, four men approached Sanchez concerning the title of a vehicle while the defendant was with his family, physically threatened him, and challenged his masculinity. Sanchez then went home, eventually going to his acquaintance “negro poder[,] which translates to black powder” and telling him about the incident.
His acquaintance entered the defendant’s truck with an item covered with a sunshade which Sanchez believed it to be a bat. They approached the previous group in the park and separated into two groups, with the acquaintance and two men heading to the river. There, the acquaintance revealed he was carrying a shotgun under the sunshade and shot the victim who ran after the first shot. The victim was shot in the face and the back.
After the incident, a witness in the park heard “tires screeching” as a pick up truck picked up the shooter and drove off. The car was allegedly driven by the defendant.
The court found the first two arguments of the appellant – the insufficient evidence and the due process violation – to not apply to the conviction.
In the first argument claiming the prosecution had insufficient evidence to prove the defendant was guilty, the court notes the prosecutor applies two theories to prove guilt – aiding and abetting or the natural and probable consequences doctrine. In the conviction, the jury does not specify which theory.
The court found, “the evidence sufficient to prove each attempted murder theory and the assault with firearm conviction. To find proof beyond a reasonable doubt Sanchez directly aided and abetted attempted murder, a reasonable trier of fact could justifiably focus on the following credible evidence and inferences… The evidence is also sufficient to prove attempted murder under the natural and probable consequences theory.”
In the aider and abetter theory, the prosecution must prove, the defendant had the mental state and “acted with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.”
The defendant “must [also] give aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill.”
The defendant was angry from the incident and told the shooter about what happened. Sanchez also “chose to return despite knowing the potential consequences.” The court argues a reasonable juror “could infer the shooter had to first retrieve a shotgun before entering the pickup and would only do so after learning they would return to the park.” They also conclude the defendant and acquaintance knew each other well enough since “the shooter was willing to bring a loaded shotgun to the park and approach the victim’s group without any apparent hesitation.”
The natural and probable consequences doctrine “an aider and abettor is guilty not only of the intended crime, but also ‘for any other offense that was a ‘natural and probable consequence’ of the crime aided and abetted.’” This doctrine states that if a person intends to commit assault and a murder occurs, they would be found guilty of murder as it is a “natural and probable consequence of assault.” This theory must be examined objectively and must have a “strong probability.”
The court notes that both Sanchez and the shooter went to the park together. Sanchez admitted a fight was possible and, while not knowing what weapon was under the sunshade, believed it to be a bat.
“This inference is reasonable because Sanchez chose to contact this specific acquaintance, discuss the prior confrontation, and the acquaintance then armed himself and entered the pickup with the intent to approach the victim’s party despite being outnumbered, i.e., the shotgun would help even the numbers,” the court writes in their opinion.
The second argument of the natural and probable consequences doctrine violating due process rights was rejected by the court. The court notes similar arguments were rejected in the cases of People v. Richardson (2008), People v. Coffman and Marlow (2004), and People v. Garrison (1989).
The SB 1437 discussion, however, is part of the published opinion. They notes how SB 1437 now “prohibits imputing malice ‘to a person based solely on his or her participation in a crime.’… the Legislature has eliminated the natural and probable consequences doctrine as a viable theory to prove attempted murder.” The court notes they uphold the Medrano and Larios decisions and reject the People v. Munoz (2019) and People v. Lopez (2019) decisions.
They also offer an alternative supporting theory for SB 1437.
“We offer an additional reason we conclude SB 1437 applies to attempted murder. Limiting SB 1437’s malice imputing prohibition to murder has the absurd consequence of incentivizing murder.”
According to People v. Cook (2015), “[A] fundamental principle of statutory construction is that the language of a statute should not be given a literal meaning if doing so would result in absurd consequences.” “Munoz and Lopez hold the absence of ‘attempt’” and “the Legislature intentionally excluded attempted murder from its malice imputing proscription.”
With these in mind, the court notes, “then a criminal defendant’s liability turns inversely on the victim’s fortunes.”
The court provides the example of a street gang assault, stating, “If the hypothetical victim survives, the defendant may face a potential life sentence in a prosecution for an unintended attempted murder under the natural and probable consequences doctrine. (E.g., § 12022.53.) If instead the victim is killed, the defendant and all gang confederates who disavow the intent to kill face prosecution only for the intended assault and any other natural and probable crime committed to facilitate the murder, but not the murder itself.”
“A sophisticated and sinister criminal street gang would understand that ensuring a victim’s death reduces the gang’s liability as a whole. While the pros and cons of eliminating the natural and probable consequences doctrine’s application to murder are debatable, incentivizing murder is an undoubtedly absurd consequence of abrogating its applicability to murder but not attempted murder.”
They conclude, “This absurd consequence is counterintuitive to the natural and probable consequences doctrine’s deterrence rationale.”
The court ruled to reverse Sanchez’s attempted murder conviction.
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