Will the Natural and Probable Consequences Doctine be Rejected in California?

A majority of murder, and other violent crimes, in California are gang related. Indeed, most of the post-conviction work that I have taken part in involves allegations of gang affiliation. Due to the nature of such crimes -- multiple individuals and lack of physical or testimonial evidence, the prosecution necessarily relies upon aider and abettor theories of criminal liability.

Under an aider and abettor theory, defendants can be convicted if they merely assist, encourage, or facilitate a crime. More specifically, they do not have to be the actual perpetrator of the physical crime against the victim.

Moreover, a defendant can be convicted if he or she aided a "target" crime, which naturally and foreseeably could have led to a more violent crime -- like murder.

In June of this year, however, the California Supreme Court curbed the "natural and probable consequences" doctrine. The criminal doctrine allows for the prosecution of aiders and abettors when they participate in a crime that was "reasonably foreseeable" to the target crime. In sum, an individual can be guilty of murder, if he assisted in a crime, which murder was a "natural and probable consequence." The rationale of the doctrine is deterring accomplices from partaking in criminal acts that may foreseeably lead to other more violent crimes.

But in People v. Chiu (2014) 59 Cal.4th 155, the California Supreme Court held that a defendant can never be convicted of first degree premeditated murder on a natural and probable consequence theory. In Chiu, the defendant engaged in a street brawl involving 25 youths. The high school students fought one another indiscriminately until one of them shot and killed another young man. The defendant was charged with first-degree murder under the theory that he aided and abetted an "assault," which premeditated murder of the perpetrator was a natural and probable consequence. Defendant was sentenced to 25 years to life after he was found guilty of first-degree murder. The California Supreme Court reversed because they did not think that the defendant could have had the mental intent necessary for first degree murder.

Now prosecutors must rely on evidence to show that defendants had the specific intent to aid a premeditated murder. It is insufficient to argue the natural and probable consequence doctrine, as Chiu negated its application to first-degree murder cases. This decision implies that the California Supreme Court wants to depart from the wide application of the natural and probable consequence doctrine. Chiu stated, in part:

"[T]he connection between the defendant's culpability and the perpetrators premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine, especially in light of the severe penalty involved and … the public policy concern of deterrence."

It appears that Justice Chin opens up to the possibility that there may be other instances where an element of the non-target crime is so detached that the natural and probable consequence theory would not serve public policy. Other states do not even apply the natural and probable consequences theory, so it's possible that the California Supreme Court would withdrawal, or at least curb, its unjust application. 

In fact, California may reject the entire doctrine. The California Supreme Court has granted review of a separate natural and probable consequence doctrine case in People v. Smith (Vince Bryan), S210898, D060317 Fourth Appellate District, Division 1.

Violent crimes, instigated by gang rivalries, are senseless and destructive to the community. But, when individuals are convicted of crimes that they did not intend or anticipate in directly, it also hurts the community. Many young men are duped into following irresponsible older gang members, who have no regard for societal mores. Lawbreakers should, and need, to be punished. Let's just make sure that the punishment is just and follows the rule of law. 

Gang Allegations

Street gangs

Criminal street gangs represent a serious problem for police departments all across California. While the numbers vary widely, FBI estimates rank Los Angeles and San Bernardino counties as first and third in the nation respectively for numbers of gangs and gang members. With an estimated gang population of more than 68,000 in Los Angeles county alone, as of 2011, it is not hard to see why law enforcement and the district attorney’s office take such a hard stance against suspected gang related criminal behavior. However, as the FBI threat assessment report is quick to point out, numbers do not tell the whole story and there is not necessarily a direct correlation between gang population and rates of criminal activity.

A number of factors can warp the impression given by the numbers alone and it is important to take in a more full perspective before jumping to conclusions. But, whatever the political ramifications of the numbers, gang allegations are perhaps most serious for those defendants facing gang related criminal charges.

Two gang laws?

First passed in 1988 (and later amended by proposition 21 in 2000) California’s STEP Act both criminalizes participation in a gang and enhances the sentence of defendants convicted of committing a crime on behalf of an active gang. While this might seem like a distinction without a difference, the penalties associated with each offense are dramatically different. Let’s look at each independently to better understand this area of law. A gang is defined as an association with three or more people who have as a primary activity the commission of any one or more of a list of 25 specifically enumerated crimes, share a common name, and who show a pattern – meaning 2 or more – of criminal behavior.

Part (a) – gang participation

Under section 186.22(a) of California’s penal code, it is a crime to actively and knowingly participate in the activities of a street gang. A violation of this code section carries a variable penalty ranging from one to three years. Gang participation may be charged in addition to any charge related more directly to the specific offence at issue.

Part (b) – gang enhancement

Under section 186.22(b), a defendant can be charged with, in addition to the above, the crime of furthering the interests of a criminal street gang. Under this part of the code, a defendant can face up to an additional 10 years of jail time for any crimes which are knowingly committed in association with, or for the benefit of, a street gang. In other words, part (b) is a rider, which adds substantially to the sentence of any person convicted of an underlying crime and also convicted under the gang enhancement section.

In addition, there is a firearms provision which, if successfully prosecuted in conjunction with the gang enhancement against any member of a group under consideration, can add up to 25 years to a sentence depending on the underlying nature of the alleged crime. For example, if three members of a gang are each convicted of robbery and also convicted under the gang enhancement provision, and one of the members of the group used a gun to assist in the robbery, additional time can be added to the sentence of each of the three convicted participants even if the other two were unarmed during the robbery.

An allegation is not a conviction

Given the large gang problem facing many parts of California, it is perhaps to be expected that some prosecutors will overzealously pursue gang enhancement or participation charges against criminals for whom such charges are not appropriate. This is why it is critical to remember that a charge is not a conviction. Gang add-ons can very often be fought, and the charges reduced or even dropped entirely with the right legal help. There are a number of defenses to gang charges. The gang enhancement codes require the prosecution to prove a relatively complex set of variables including, for example, that a defendant knew that the crime was for the benefit of a gang, that the gang had a pattern of criminal behavior, that the defendant knew the group was a gang, and that the defendant intended the crime to further the gang’s interests.

In addition, as in every criminal trial, the prosecution must prove every element to the jury beyond a reasonable doubt, the highest burden under the law. If you are facing a gang enhancement, or any other criminal charge, contact a qualified and experienced criminal attorney as soon as possible to ensure that your legal rights are not jeopardized.