THE PEOPLE, Plaintiff and Respondent, v. LESLIE BRIGHAM, Defendant and Appellant. In re LESLIE BRIGHAM on Habeas Corpus, 216 Cal. App. 3d 1039

Opinion PETERSON, J. Appellant, who was convicted of first degree murder as an aider and abettor, argues that the instructions given the jury did not explain either his defense theory or the proper scope of vicarious liability. He also contests the court’s ruling on his motion to exclude prejudicial evidence, as well as its determination that he suffered a serious felony conviction in New Mexico. Together with the appeal is a petition for a writ of habeas corpus which asserts that newly discovered evidence requires a new trial.

We will modify the judgment by striking the five-year enhancement, affirm the judgment as modified, and deny the request for a writ of habeas corpus. I. Statement of the Case An information charged Leslie Brigham (appellant) with the first degree murder of Hosea Barfield. (Pen. Code, § 187.) It additionally set forth two enhancement allegations: that appellant personally used a firearm and inflicted great bodily injury on the victim, and that appellant had been convicted of a serious felony for which he received probation in New Mexico. (Pen.

Code, §§ 12022.5, 667.) Appellant pleaded not guilty and denied both enhancement allegations. A jury convicted appellant of first degree murder, but found that he did not personally use a firearm or inflict great bodily injury. Appellant waived a jury trial on the enhancement allegation of prior serious felony conviction, and the court found it true. The court sentenced appellant to prison for 25 years to life on the murder conviction, with a consecutive 5-year term for the prior. Appellant filed a timely notice of appeal.

He also filed a petition for a writ of habeas corpus which is being considered together with his appeal. II. Statement of Facts On the evening of January 21, 1986, Barbara Dawson and her cousin Catherine Barfield experienced car trouble while parked on East 14th Street, near 61st Avenue. Mrs. Barfield, who lived in the nearby 65th Village, telephoned her husband and 14-year-old son Hosea Barfield (Barfield), who both agreed to come help. As the two women walked back to the disabled car after making the phone call, they saw Barfield across the street walking along East 14th to meet them.

Barfield was playfully calling out and hiding behind telephone poles. After the two women crossed the street and reached the car, Ms. Dawson started to unlock the door. She saw a man wearing dark clothes and a ski mask pulled down over his face come around the corner. The man lifted a rifle-type gun and shot it several times. Ms. Dawson ducked down, then flagged a passing car. She did not see the man when she got up. She identified an AR-15 military rifle as being most like the gun she saw, choosing it over an HK-93 assault rifle. As Ms. Dawson approached the driver’s side, Mrs.

Barfield went to join her son at the passenger side. She noticed a clicking noise, turned, and saw a man with a dark ski mask covering his face and a rifle-type gun in his hands standing by the corner barbershop. Barfield told her to run, and she saw the gun fire as she fled. After calling the police from a store, Mrs. Barfield returned to find her son dead on the sidewalk. The driver of the car Ms. Dawson flagged down testified that, as he was driving down East 14th on the night of the killing, he heard shots as he approached 61st. He looked to his left and saw a man crouched down and running.

The man seemed to be wearing a drab-colored army jacket with a fur collar. He could not see the man’s face or hands. A pathologist testified that Barfield had at least three, possibly more, gun shot wounds to his neck, back, arm, and chest. He had extensive internal injuries in his chest and brain. The police recovered three spent .223 caliber casings at the scene. A ballistics expert said they could have been fired by either an AR-15 or an HK-93. In his opinion, the bullets had not been fired from an HK-93.

Nearly nine months after the murder, when the police investigation had reached a dead end, appellant approached an Oakland police officer and asked to talk to a homicide investigator regarding a “mistaken identity murder” on East 14th Street. Appellant voluntarily spoke with the head of the Barfield homicide investigation, Officer Harris. After a preliminary interview, he was admonished about his rights and made two taped statements. The jury heard both tapes and received transcripts of them. Appellant recounted the events surrounding the murder.

That night, he and a number of men had gathered at a recreation center. Norbert Bluitt (Bluitt) and Dual Moore (Moore) were part of the group; another member was someone appellant refused to identify and referred to throughout the interview as “The Man.” Also present were appellant’s nephew, Daryl Reed, and Ricky Jester.

Appellant described Jester as “da man that’s sittin’ on all the cocaine[] [o]n Ninety Fourth.” (Officer Harris was sure “The Man” was appellant’s nephew, a cocaine dealer.) Someone came to the recreation center to give “The Man” information about an enemy named “Chuckie,” a former associate of Felix Mitchell (Mitchell) who was a notorious Oakland drug dealer. “The Man” had held a grudge against Chuckie for some time.

Appellant considered Chuckie an enemy of his group, and stated his belief that “The Man” thought “[Mitchell] [then alive in prison] was gonna have [someone] do it to ‘The Man,’ ” and that “they was out to kill me.” Appellant was an experienced hit man.

He described his modus operand! as it concerned the ski mask he wore on such “missions” in these terms: “[O]nly time I will put the ski mask on my face, when I’m tryin’ ta hit, kill somebody.” Appellant knew Bluitt because they had “worked together before[] [w]ith [Mitchell]” and knew Bluitt was “just hardheaded.” “The Man” arranged to have automatic weapons, referred to as “choppers,” delivered to appellant and Bluitt, and ordered them to kill Chuckie. Appellant referred to his fully automatic weapon as an HK-9; Bluitt had a similar gun; Moore possessed a handgun.

All were provided with gloves so as to leave no fingerprints. The three left to find Chuckie, with Moore driving. Appellant was wearing dark clothes and a rolled-up ski mask. Bluitt wore a baseball cap marked with an “N,” which he pulled down low over his face. Officer Harris testified that Moore told him Bluitt was wearing some sort of dark gray hood. Both Ms. Dawson and Mrs. Barfield testified that the killer was not wearing a baseball cap. Appellant described the venture as a mission. When they reached the 65th Village where Chuckie was supposed to be, it was quite dark.

This hit team’s vehicle was parked, and they went on foot “in the back way” to where a group of men was present on a porch; the group on the porch started to scatter, presumably having been warned that “some[thing] is gonna go down.” The hit team started following one of the departing group, ran back to get in their car, went in the car toward East 14th on 64th Avenue and by a place known as Plucky’s, and “[t]here was a young guy right there.” When appellant first saw Barfield from the hit team’s car, “I say yeah, he is Chuckie.

That is Chuckie.” Bluitt “just said [’]we’re gonna get him.[‘]” Appellant, when the car got close to Chuckie, then said, “man, that is not Chuckie, man.” Bluitt responded, “we’re gonna get him.” Bluitt directed the driver to make a right turn and stop. Although appellant contended he told Bluitt that Barfield was not Chuckie, after the vehicle stopped, appellant, like Bluitt, exited the vehicle carrying his automatic weapon, remained out of the vehicle with that weapon for about 15 seconds, took the weapon with him to the street corner near where the shooting occurred, and saw an officer in a police car.

He returned his gun to the car and told Bluitt, before the shots were fired by Bluitt: “[P]olice right there, man. Don’t do it. It ain’t cool. That’s not the dude, man. Come on. And he [Bluitt] say, [‘M]an, fuck dat. We’s gonna waste it up. We’s gonna let dese niggers know we serious.[’]” Although appellant said he attempted to grab his arm, Bluitt then fired more than twice, hitting Barfield in the face. At the end of the interview, appellant identified photographs of Bluitt, Moore, and the AR-15 rifle which Bluitt carried and which Ms. Dawson identified as the murder weapon. III.

Discussion The major issue we must decide here is this: Where the proof offered to support a criminal charge, prosecuted on the theory the defendant knowingly and intentionally aided and abetted a criminal act of a perpetrator, contains evidence of an uncharged criminal conspiracy between aider and abettor and his principal/perpetrator, is the aider and abettor relieved of derivative criminal liability as a matter of law if that criminal act of the perpetrator is an “independent product” of his mind, and is outside and not in furtherance of the criminal offense the aider and abettor originally agreed to aid or facilitate?

We will hold that in such circumstances the aider and abettor is not relieved of liability as a matter of law, because his derivative criminal liability continues to be factually determined by the test of whether the criminal act committed by the principal was a natural and probable (or foreseeable) consequence of

an act the aider and abettor knowingly aided, encouraged, or facilitated. Consequently, the trial court was not required to give CALJIC No. 6.15 (fn. 3, infra) or to engraft its language onto CALJIC No. 3.00 (now CALJIC Nos. 3.00 and 3.02) in this aiding and abetting case.

Appellant and our dissenting colleague urge that in such circumstances the law concerning conspiracy must be applied, sua sponte if no request therefor is made by the defense, so as to further instruct the jury of acts of the principal that cannot, as a matter of law, be a natural and probable consequence of his criminal act; i.e., acts that are found to be “an independent product” of the principal’s own mind, and that differ from and do not further and are outside the offense knowingly and intentionally aided and abetted. No conspiracy was charged in this case.

The evidence was capable of being interpreted to support a conspiracy between Bluitt and appellant. The prosecution introduced such conspiracy evidence in support of the appellant’s murder charge, prosecuted on an aider and abettor theory of derivative liability. No contention is made that the evidence was insufficient to support appellant’s resulting murder conviction. A. No Error Was Committed by Refusal of Conspiracy Instructions or Their Equivalent CALJIC No. 3.02 (formerly CALJIC No. 3.00), as here pertinent, defines the derivative criminal liability of an aider and abettor (see fn. 2, supra).

CALJIC No. 6.15, as here pertinent, excludes any derivative criminal liability of a passive coconspirator where the act of a conspirator is an independent product of his own mind and is outside the common design and not a furtherance of that design (see fn. 3, supra).

Appellant reasons that the derivative crimes of conspiracy and aiding and abetting have been recognized by precedent to be closely intertwined, that virtually all aiding and abetting crimes involve conspiracy or elements thereof, that the use of conspiracy instructions in aiding and abetting cases has been previously approved by appellate courts of this state, and that the lower court’s failure to give CALJIC No. 6.15 or its functional equivalent left the jury without guidance as to appellant’s trial theory.

We have neither found nor been cited to any California case expressly dealing with the issue of the existence of reversible error under such circumstances. 1. The Semantical Confusion in Aiding and Abetting Cases The treatment of derivative criminal liability has been the subject of extensive comment. The disparity in terminology used to express derivative liability has been sometimes confusing. People v.

Kauffman (1907) 152 Cal. 331, 335-337 [92 P. 861] held the evidence sufficient to support findings that defendant was a member of a “combination or conspiracy,” and thus sufficient to support defendant’s conviction as an aider and abettor. However, in People v.

Durham (1969) 70 Cal.2d 171 [74 Cal.Rptr. 262, 449 P.2d 198], an aider and abettor prosecution, the Supreme Court took pains after citing Kauffman to emphasize by footnote “that the resort to language of conspiracy in cases such as that under consideration does not refer to the crime of that name but only to the fact of combination as it has relevance to the question of aiding and abetting in the commission of the charged crime.” (Id., 70 Cal.2d at p. 182, fn. 9, italics added.) People v.

Rogers (1985) 172 Cal.App.3d 502 [217 Cal.Rptr. 809] makes this cryptic analysis: “The causal terminology used in these cases varies inexplicably. Beeman uses the words ‘natural and reasonable consequences.’ (35 Cal.3d at p. 560.) It got them from People v.

Beltran [1949] 94 Cal.App.2d [197] [210 P.2d 238] which also used ‘natural and probable’ in the same breath. (Id., at p. 206.) [People v. ] Slaughter [(1984) 35 Cal.3d 629 (200 Cal.Rptr. 448, 677 P.2d 854)], in similar fashion, used ‘natural and reasonable consequences’ and ‘natural and probable consequence’ as interchangeable. (35 Cal.3d at p. 660.) This conflation of apparently disparate notions displays a striking indifference to the language. We do not understand in what sense reasonable and probable are equivalents, or for that matter what a ‘reasonable consequence’ is.

It has been observed that ‘the description of the reaction as “natural” means that it is in accordance with human nature, not abnormal, while “probable” must be taken as meaning “not unlikely.” ’ (Hart & Honoré, Causation in the Law (1959) p. 140.) Notwithstanding these semantic peculiarities, we are not free to speculate about their impact upon the jury verdict.

Language approved by the Supreme Court was embodied in the instruction and [defendant] makes no claim that it misled the jury to his prejudice.” (P. 515, fn. 17, italics added.) Despite this criticism, however, it is clear that taken together the instructions given by the lower court in the case at bench (fn. 2, supra), as People v. Rogers, supra, 172 Cal.App.3d 502, observed, contain language approved by the Supreme Court in People v. Beeman, supra, 35 Cal.3d 547, and People v. Croy, supra, 41 Cal.3d 1, and the change of language suggested by People v.

Hammond (1986) 181 Cal.App.3d 463, 468-469 [226 Cal.Rptr. 475]. 2. Relevant Evidence of Charged or Uncharged Conspiracies May Prove Derivative Criminal Liability of an Aider and Abettor It is equally clear that juries have, for many years, been required to apply relevant evidence of charged conspiracies in proof of the aiding and abetting of a charged crime, even when that evidence is insufficient to support a conspiracy conviction. In People v.

Villa (1957) 156 Cal.App.2d 128 [318 P.2d 828], a seminal case written by then Presiding Justice Peters of Division One of this court and extensively relied on by the Supreme Court in People v. Durham, supra, 70 Cal.2d 171, the salient facts were these. Villa, the appellant, and two others were charged with rape, violation of Penal Code

section 288a (section 288a), robbery, and conspiracy to commit all these crimes. He was acquitted of the rape and all three conspiracy charges. Although he did not directly participate in either the

section 288a or the robbery, he was convicted on both those charges. His conviction was upheld as an aider and abettor. “The crime of aiding and abetting is a separate and distinct offense from that of conspiracy. [Citation.] Although the rape and conspiracy charges involved some of the same acts as were involved in the

section 288a Penal Code and robbery charges, the acquittal on the first two charges [rape and conspiracy] does not affect the validity of the conviction on the other two charges. . . . [I]n considering the sufficiency of the evidence to sustain the conviction on the

section 288a of the Penal Code and robbery counts[,] the court must consider all of the evidence, including the relevant portions of the evidence relating to the rape and conspiracy charges.” (People v. Villa, supra, 156 Cal.App.2d at p. 133, italics added.) Unlike the case at bench, Villa dealt with a prosecution on both conspiracy and aiding and abetting theories, and observed an aider and abettor may be guilty of a crime without having previously conspired to commit it.

It is logically certain from Villa as approved by Durham that a jury, bound to consider relevant evidence of a charged conspiracy in support of a charge of a crime committed by aiding and abetting (which evidence may be insufficient to support a conspiracy conviction), is equally bound to consider relevant evidence of an uncharged conspiracy for the same purpose. “Conspiracy principles are often properly utilized in cases wherein the crime of conspiracy is not charged in the indictment or information.

In some cases, for example, resort is had to such principles in order to render admissible against one defendant the statements of another defendant. [Citations.] In others evidence of conspiracy is relevant to show identity through the existence of a common plan or design. [Citation.] In still others the prosecution properly seeks to show through the existence of conspiracy that a defendant who was not the direct perpetrator of the criminal offense charged aided and abetted in its commission. [Citations.]” (People v.

Durham, supra, 70 Cal.2d at pp. 180-181, fn. 7, italics added.) In such instances, the function of offering proof of the uncharged conspiracy is simply evidentiary, as those facts tend to prove the crime charged. Durham does not suggest that use of such proof in any class of cases it discusses requires a modification of the instruction defining the crime charged, or the standard of proof of its elements. 3.

Appellant’s Proposed Instructions Were Improper Appellant’s attempt to engraft the conspiracy instructions we have discussed (CALJIC No. 6.15, fn. 3, ante) on to the aider and abettor instructions the court gave (fn. 2, ante) must wholly fail as foreign to the law of aider and abettor liability for the reasons we now consider. Appellant contends an aider and abettor’s derivative liability must be vitiated if, among other things, the criminal act charged is an “independent product” of the mind of the perpetrator.

The ultimate factual question to be determined on the issue of an aider and abettor’s derivative liability has always been held by the Supreme Court to be the test of whether the perpetrator’s criminal act, on which the aider and abettor’s derivative criminal liability is based, was the “probable and natural” (People v. Kauffman, supra, 152 Cal. at p. 334), the “natural and reasonable” (People v. Beeman, supra, 35 Cal.3d at p. 560), or the “reasonably foreseeable” (People v. Croy, supra, 41 Cal.3d at p. 12, fn. 5) consequence of a criminal act encouraged or facilitated by the aider and abettor.

The variations in the adjectives the court has used to describe “consequence” have never changed the basic structure and meaning of the test. Its resolution is within the ken of a jury as a question of fact for it to decide, and one on which its determination is conclusive. (People v. Villa, supra, 156 Cal.App.2d at p. 134; People v. Durham, supra, 70 Cal.2d at pp. 181, 182-183; People v.

Kauffman, supra, 152 Cal. at p. 335.) The Supreme Court has never said or implied as a derivative of these principles, or otherwise, that the ultimate focus of a jury’s inquiry must be directed to whether a principal’s act on which an aider and abettor’s derivative criminal liability turns is an “independent product” of the principal’s own mind. To the contrary, the ultimate jury analysis of aider and abettor liability in a case such as this hinges neither on whether the principal’s criminal act was intentional, nor on whether it differed from a criminal offense the aider and abettor agreed to facilitate.

The derivative criminal liability of an aider and abettor for a perpetrator’s crime may exist even though that crime was unintended by the aider and abettor. The principal committing the crime and his aider and abettor need not possess the same intent in order to be criminally responsible for the committed crime. (People v.

Luparello, supra, 187 Cal.App.3d at p. 439.) A subjective inquiry as to whether the perpetrator’s committed crime was the “independent product” of his mind, so as to lead to exculpation of the aider and abettor on that basis, is improper because the ultimate factual determination of the jury as to the liability of an aider and abettor is based instead on an objective analysis of causation; i.e., whether the committed crime was the natural and probable consequence of the principal’s criminal act the aider and abettor knowingly encouraged or facilitated.

Appellant’s proposed instructions were, thus, properly refused. 4. The Court Had No Sua Sponte Duty to Instruct on the Theory Appellant Proposed. Appellant additionally urges the lower court nonetheless had a sua sponte duty, once appellant’s defense strategy allegedly became apparent, to instruct the jury that the conspiracy principles of CALJIC 6.15 applied to the case. Appellant contends such instruction would equitably bring the factual standards of determining liability for the derivative crimes of conspiracy and aiding and abetting into parity.

Our dissenting colleague agrees, perceiving an inequity in applying the limitation on derivative liability of CALJIC No. 6.15 to conspiracy but not to aiding and abetting. a.

Prosecutorial Discretion in Charging Crimes Part of appellant’s argument for the compulsory utilization of conspiracy instructions in the instant and like cases is this: Appellant urges that the People’s election to prosecute a case solely as an aiding and abetting crime, which case is equally susceptible of a conspiracy prosecution, removes unfairly the conspiracy defenses he would otherwise assert by CALJIC No. 6.15; and the consequent unfairness of this prosecutorial election must be balanced by allowing the use of CALJIC No. 6.15 in all aiding and abetting cases where evidence of an uncharged conspiracy is presented but conspiracy is not charged.

The Legislature, our Supreme Court, and this court (Div. Two), as well as other appellate courts in California, have recognized that the prosecutor, not the court or the defendant, exercises the discretion to decide which crimes will be charged and on what theory they will be prosecuted. Government Code

section 26500 provides the prosecutor “shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses.” (Italics added.) The courts have repeatedly indicated this prosecutorial discretion is a fundamental principle of our criminal justice system. “Prosecutors have broad decisionmaking power in charging crimes.” (Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 1132 [232 Cal.Rptr. 814, 729 P.2d 80].) “The district attorney must be vested with discretionary power in investigation and prosecution of such charges.” (Taliaferro v.

City of San Pablo (1960) 187 Cal.App.2d 153, 154 [9 Cal.Rptr. 445].) “There can be no question but that discretion permeates the entire process of bringing charges against a person suspected of having committed a crime. And it is the district attorney who is vested with discretionary power to determine whether to prosecute. [Citation.] There is no review by way of the appellate process of such a decision . . . .” (People v.

Adams (1974) 43 Cal.App.3d 697, 707-708 [117 Cal.Rptr. 905], italics added.) Our Supreme Court has also cautioned against court action unduly trammeling the prosecutor’s decisionmaking process, which “would improperly interfere with the prosecutor’s free exercise of discretion to determine what if any criminal charges should be brought against particular individuals. [Citations.]” (Daly v. Superior Court (1977) 19 Cal.3d 132, 148-149 [137 Cal.Rptr. 14, 560 P.2d 1193].) b.

The Causation Principles Underlying Aider and Abettor Derivative Criminal Liability In examining appellant’s principal claim of sua sponte duty to instruct on the conspiracy principles urged, we return to the causation principles of aider and abettor liability. An aider and abettor’s derivative liability for a principal’s criminal act has two distinct prongs: First, the aider and abettor is liable for the particular crime that to his knowledge his confederates are contemplating.

Second, the aider and abettor is also liable for the natural and probable consequences of any criminal act he knowingly and intentionally aids and abets, in addition to the specific and particular crime he and his confederates originally contemplated. This derivative criminal liability of an aider and abettor centers on causation.

The law’s policy is simply to extend criminal liability to one who knowingly and intentionally encourages, assists, or influences a criminal act of another, if the latter’s crime is naturally and probably caused by (i.e., is the natural and probable consequence of) the criminal act so encouraged, assisted, or influenced. “[T]he concept of agency explains a great deal about why we feel justified in punishing an accomplice as if [he] were the perpetrator. . . . [Citation.]” (People v.

Luparello, supra, 187 Cal.App.3d at p. 440.) “Technically, only the perpetrator can (and must) manifest the mens rea of the crime committed. Accomplice liability is premised on a different or, more appropriately, an equivalent mens rea. [Citation.] This equivalence is found in intentionally encouraging or assisting or influencing the nefarious act. ‘[B]y intentionally acting to further the criminal actions of another, the [accomplice] voluntarily identifies himself with the principal party.

The intention to further the acts of another, which creates liability under criminal law, may be understood as equivalent to manifesting consent to liability under the civil law.’ [Citations.]” (Id., 187 Cal.App.3d at p. 439, second italics added.) Thus, in People v. Croy, supra, 41 Cal.3d at page 12, footnote 5, the Supreme Court uses terms associated with causation in interpreting its decision in People v. Beeman, supra, 35 Cal.3d at page 560.

The Croy court said the principal act for which derivative aider and abettor liability is imposed is one which is a “reasonably foreseeable offense ” (italics added) committed by the perpetrator as a consequence of the intentional and knowing encouragement or facilitation of a criminal act by the aider and abettor. The aider and abettor’s liability “is a question of legal causation independent of any intention that the result obtain. [Citations.]” (People v.

Rogers, supra, 172 Cal.App.3d at p. 515, italics added.) The jury’s factual determination, of what the natural and probable, or reasonably foreseeable, consequences of a principal’s criminal act are, necessarily requires that jury to reject all crimes which are not such consequences. The “natural and probable consequences” standard the jury is given in CALJIC No. 3.02 (formerly CALJIC No. 3.00), by which to render its verdict on derivative aider and abettor liability, presents an all-encompassing standard for proper lay application of law to relevant evidence on the issue of legal causation of a criminal act.

Further, this case illustrates quite clearly the wisdom of rejecting an instruction such as the one the dissent proposes (see fn. 10, ante). That instruction would clearly have been erroneous on the issue of aider and abettor derivative criminal liability. If the principal’s criminal act charged to the aider and abettor is a reasonably foreseeable consequence of any criminal act of that principal, knowingly aided and abetted, the aider and abettor of such criminal act is derivatively liable for the act charged.

The aider and abettor is not, therefore, exculpated as a matter of law from the act charged to him simply because it does not further the originally agreed criminal act or enterprise of the parties. The dissent’s proposed instruction is erroneous because it would compel such exculpation on that rationale.

After association for a criminal purpose, a principal’s subsequent criminal act, knowingly and intentionally aided and abetted, can be different from that which the associating parties first contemplated and yet produce a reasonably foreseeable result in the crime committed which is different from, and not in furtherance of, the criminal act first contemplated, as the record here illustrates. Considering the evidence in the light most favorable to the verdict, as we must, appellant was an experienced assassin or hit man as was Bluitt. They had worked together in the past for Mitchell.

Appellant and Bluitt considered “The Man” their boss and Chuckie, the intended victim, their enemy. Appellant thought Mitchell’s group, which included Chuckie, was “out to kill [him].” Because he had worked with Bluitt before, appellant knew he was “just hardheaded.” By common lay understanding, one who is hardheaded may be foreseeably and irrationally difficult to dissuade or control once embarked on a criminal enterprise, whether under the goad of fear of the director of that enterprise or fear of the intended victim or for other reasons.

Appellant himself identified Barfield as Chuckie, the intended victim, to Bluitt from a passing auto and heard Bluitt say, “[W]e’re gonna get him,” moments before the fatal shots were fired. When their car stopped and after appellant claimed he had revised his decision Barfield was Chuckie and had so advised Bluitt, appellant nonetheless admitted he got out of the vehicle carrying his loaded automatic weapon as did Bluitt, saw an officer in a parked police car on the street nearby, and returned his weapon to his car. He told Bluitt: “[P]olice right there, man. Don’t do it. It ain’t cool.

That’s not the dude, man.” The “hardheaded” Bluitt, who had been told by appellant moments before that Barfield was Chuckie, their intended victim, and who apparently ignored the presence of an officer and police car in that part of Oakland, said, “[M]an, fuck dat. We’s gonna waste it up.

We’s gonna let dese niggers know we serious.” Thus, the evidence showed that both assassins were fearful of their enemies, including the intended victim; that the hardheaded and presumably erratic and uncontrollable nature of his co-assassin was previously known to appellant; that appellant himself identified Barfield as their target and took a loaded gun toward the target after he claimed he recanted this identification.

Where the evidence showed the presence of police as a strong and reasonable motivating force in appellant’s desire to leave the scene with Bluitt, the jury could arguably conclude that, even if Barfield’s murder was a fresh and “independent product” of Bluitt’s mind and even if that murder did not further the parties’ original criminal agreement to kill Chuckie (which we do not concede), it was nonetheless a foreseeable result (a natural and probable consequence) of either the original appellant-Bluitt agreement to kill Chuckie, or of any of the criminal acts of Bluitt which were thereafter encouraged or facilitated by appellant.

Bluitt’s hardheaded and erratic nature and obstreperous attitude, as known to appellant and evident in the circumstances of this case where he killed a victim in the virtual presence of a police officer, could be reasonably foreseen to have made calling him off an assassination assignment, once set in motion, impossible because of a last minute retraction of the victim’s identity as the target. He might have been reasonably foreseen to have viewed appellant’s recanting of Barfield’s true identification as a loss of resolve, because of the police presence or for other reasons.

Appellant’s identification of Barfield as Chuckie moments before the shooting, followed by appellant with his loaded weapon accompanying Bluitt toward a vantage point from which to shoot the victim before returning his weapon to their vehicle, may reasonably and foreseeably have been seen to induce Bluitt to ignore appellant’s contention of Barfield’s misidentification and to resolve all doubts of Barfield’s identify by quickly shooting him (despite a police officer’s presence in the vicinity), so as not to risk the censure of “The Man” for failure to carry out the mission.

Conversely, the jury could have concluded that Barfield’s murder did further the parties’ original agreement to kill Chuckie, since a concomitant part of that compact was necessarily the protection of “The Man” and the hit team from Mitchell’s followers, and the terrorization of those followers through “wasting] it up” and firing weapons at or near such persons to show “we serious.” The identity of the criminal compact of the principal and aider and abettor and what is included within its scope are also questions of fact for the jury. (People v. Villa, supra, 156 Cal.App.2d at pp. 133-134; People v.

Durham, supra, 70 Cal.2d at p. 181.) We, thus, cannot accept the view that failure to give CALJIC No. 6.15 or to engraft conspiracy principles on the aiding and abetting instructions the court gave (see fn. 2, supra) deprived appellant of his right to present his theory of the case to the jury.

Our dissenting colleague asserts appellant’s theory, justifying the refused instruction, was that he could not be held liable as an aider and abettor because it was not reasonably foreseeable his cohort (Bluitt) would intentionally act outside the scope of the criminal compact in a manner which did not further the purpose of that compact.

The answer to his assertion is this: The question of whether Barfield’s killing was a “reasonably foreseeable” consequence of a criminal act, committed by Bluitt and knowingly and intentionally encouraged or facilitated by appellant, was adequately submitted to the jury by CALJIC No. 3.00 (now CALJIC Nos. 3.00 and 3.02), which substituted “natural and probable” for “reasonably foreseeable” in describing the “consequences” of the perpetrated criminal act on which appellant’s liability could be based.

Put another way, whether or not Bluitt’s conduct was “reasonably foreseeable” is the equivalent of whether that conduct was a reasonable or natural and probable consequence of a criminal act of Bluitt which appellant agreed to and did encourage and facilitate. The Supreme Court has sanctioned the use of both emphasized terms as synonymous in the law of aiding and abetting. We do not find the instructional error appellant and our dissenting colleague assert, and hold none was committed by the lower court. It instructed properly on all the relevant legal principles of this case (People v. St.

Martin (1970) 1 Cal.3d 524, 531 [83 Cal.Rptr. 166, 463 P.2d 390]), and had here no sua sponte duty to give the instructions appellant sought or any derivative thereof since appellant’s theory of defense was covered by the instructions given. B.-E. IV. Disposition Appellant’s request for a writ of habeas corpus is denied. The judgment is modified by striking the five-year enhancement; it is affirmed as modified. Smith, J., concurred. Testimony of a ballistics expert indicated appellant must have been referring to an HK-93 as there is no HK-9 gun.

The lower court instructed the jury through the use of the following aiding and abetting instructions: “The persons concerned in the commission of a crime who are regarded by law as principals in the crime thus committed and equally guilty thereof include: [¶] 1. Those who directly and actively commit the act constituting the crime, or [¶] 2.

Those who aid and abet in the commission of the crime. [¶] One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and probable consequences of any act that he knowingly and intentionally aided or encouraged, [¶] It is for you, the jury, to determine whether the defendant is guilty of the crime allegedly committed, and if so, whether the crime charged was a natural and probable consequence of the criminal act knowingly and intentionally aided or encouraged. [CALJIC No. 3.00 (1987 rev.) (mod.) (4th ed. 1987 pocket pt.) p. 34, emphasis denotes modification; now CALJIC Nos. 3.00 and 3.02.] “A person aids and abets in the commission of a crime when he or she, [¶] (1) with knowledge of the unlawful purpose of the perpetrator and [¶] (2) with the intent or purpose of committing, encouraging, [or facilitating the commission of the oifense,] by act or advice, aids, promotes, encourages, or instigates the commission of a crime. [[[] A person who aids and abets in the commission of a crime need not be personally present at the [scene] of the crime. []]] Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. []|] Mere knowledge that a crime is being committed and [the] failure to prevent it does not amount to aiding and abetting. [CALJIC No. 3.01 (1984 rev.) (4th ed. 1987 pocket pt.) pp. 35-36.] “One who has aided and abetted the commission of a crime, with knowledge of the unlawful purpose of the perpetrator of the crime, may end his responsibility for the crime by notifying the other party or parties of whom he has knowledge of his intention to withdraw from the commission of the crime and by doing everything reasonable under the circumstances in his power to prevent its commission. [CALJIC No. 3.02 (1979 rev.) (mod.) (4th ed. 1979) italics denotes modification; now CALJIC No. 3.03.]” CALJIC No. 6.15 or a derivative of the same.

This instruction provides: “No act or declaration of a conspirator that is an independent product of [his] [her] own mind and is outside the common design and not a furtherance of that design is binding upon [his] [her] co-conspirators, and they are not criminally liable for any such act.” (5th ed. 1988.) Appellant does not contend error in instructing on withdrawal from the commission of Bluitt’s crime. CALJIC No. 3.03 (formerly CALJIC No. 3.02) on that point was given to the jury (see fn. 2, supra). The verdict indicated any withdrawal contention was rejected. (See People v.

Ross (1979) 92 Cal.App.3d 391, 404-405 [154 Cal.Rptr. 783].) See Sayre, Criminal Responsibility for the Acts of Another (1930) 43 Harv.L.Rev 689; Radish, Complicity, Cause and Blame: A Study in the

Interpretation of Doctrine (1985) 73 Cal.L.Rev. 323. The dissenter in People v. Luparello (1986) 187 Cal.App.3d 410, 452, footnote 2 [231 Cal.Rptr. 832], points out that an aider and abettor is derivatively liable for

an act which is the “probable and natural” consequence of the originally contemplated crime (People v. Kauffman, supra, 152 Cal. at p. 334), for the “natural and reasonable consequences of the acts he knowingly and intentionally aids and encourages . . . .” (People v. Beeman (1984) 35 Cal.3d 547, 560 [199 Cal.Rptr. 60, 674 P.2d 1318]), and for “any reasonably foreseeable offense committed by the person he aids and abets.” (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5 [221 Cal.Rptr. 592, 710 P.2d 392].) Unless otherwise indicated, all subsequent statutory references are to the Penal Code.

This statement appears to contain a misnomer. Aiding and abetting is not a criminal offense. It is one means by which derivative liability for commission of a criminal offense is imposed. The appellate court, of course, could only so consider such evidence on a contention of its lack of sufficiency if the jury could consider it at trial.

The dissent poses this instruction as one to be given in aider and abettor cases in support of appellant’s position, although appellant did not offer it at trial: “No reasonably unforeseeable act or declaration of a perpetrator that is an independent product of his own mind and is outside the offense which the defendant knowingly and intentionally aided and abetted and not a furtherance of that offense is binding upon the defendant, and the defendant is not criminally responsible for any such act.” After People v.

Hammond, supra, the CALJIC aiding and abetting instructions were amended to clarify the jury’s duty “to determine whether the act committed was in fact a natural and probable consequence of the criminal act knowingly and intentionally encouraged.” (181 Cal.App.3d at p. 469; cf. People v.

Jones (1989) 207 Cal.App.3d 1090, 1096, and fn. 2 [255 Cal.Rptr. 464].) We see no need to revise the instruction sua sponte, as appellant requests, in an aider and abettor case to inform the jury, as the dissenter also urges, of any acts that do or do not constitute a natural and probable consequence of the criminal act encouraged or facilitated. A potential list of all such acts would be mountainous; formula instructions would be improperly encouraged from case to case; and the jury’s fact finding role would be impeded. People v.

Garewal (1985) 173 Cal.App.3d 285 [218 Cal.Rptr. 690], relied on by the dissent, is inapposite.

It involved an alleged erroneous modification of CALJIC No. 6.11 (involving conspiracy) to provide that a natural and probable consequence of a coconspirator’s act may exist, even through the act was not intended as part of the original plan, “or was even actually forbidden as part of the original agreement. . . .” (Id., 173 Cal.App.3d at p. 299, italics in original.) The emphasized portion of the instruction is supported by Witkin in this language: “[Vicarious] liability extends to acts unintended or even actually forbidden, if they are, nonetheless, in furtherance of the common purpose [of the conspiracy].” (1 Witkin and Epstein, Cal.

Criminal Law (2d ed. 1988) § 181, p. 202, and cases cited.) Garewal disapproved the emphasized portion of the challenged instruction on the ground it erroneously suggested one can anticipate as a “ ‘probable and natural consequence[ j of the object of the conspiracy’

an act which was ‘actually forbidden as part of the agreement.’ ” (173 Cal.App.3d at pp. 299-300.) The case states that vicarious criminal liability is limited “by the reasonable contemplation of the defendant, ” and that a nonprincipal in a derivative liability criminal case may not have his vicarious liability extended to acts which are specifically not contemplated. (Id., 173 Cal.App.3d at p. 300, italics added.) Whatever the merits of Garewal as applied to a conspiracy prosecution (a position on which we express no view), the derivative liability of appellant here is measured on a causation theory; i.e., was the charged act a reasonable or probable and natural consequence of a criminal act knowingly and intentionally facilitated or encouraged, measured by an objective causation standard, not by the subjective standard of what the aider and abettor intended the end result of his facilitation or encouragement of a criminal act to be.

See footnote, ante, page 1039.