by Douglas Ankney

The Court of Appeal of California, Fifth Appellate District, held that Senate Bill 1437 (“SB 1437”) abrogates the “natural and probable consequences doctrine” in attempted murder prosecutions, and this holding applies retroactively to cases on appeal.

After being physically threatened by four men at a local park, Martin Sanchez left and later returned with a friend who was armed with a shotgun. They located the four men who had threatened Sanchez. The friend fired the shotgun at one of the men. As the man ran away, the friend gave chase and fired again. The man was shot in the face and the back.

Sanchez was later tried by a jury on charges that included attempted murder. The prosecutor argued two legal theories before the jury to prove attempted murder: (1) Sanchez directly aided and abetted the shooter, alternatively (2) attempted murder was the natural and probable consequence of assault with a firearm. The jury convicted Sanchez of attempted murder but did not specify under which theory the verdict was found.

Sanchez appealed, arguing that the evidence was insufficient and that the natural and probable consequences theory violated his due process rights. The Court of Appeal requested the parties to provide supplemental briefing on a third issue, viz., SB 1437, which was enacted after Sanchez’s conviction and prohibited imputing malice “to a person based solely on his or her participation in a crime.” Pen. Code, § 188(a)(3).

The Court of Appeal rejected Sanchez’s initial two claims, determining that the evidence was sufficient under both legal theories to support his conviction. But as to the third issue, the Court observed that in People v. Medrano, 42 Cal. App. 5th 1001 (2019), a different panel of the Fifth Appellate District had held that SB 1437 eliminated “the natural and probable consequences doctrine [as] a viable theory of accomplice liability for attempted murder.” Aider and abettor culpability under the natural and probable consequences doctrine is vicarious in nature. People v. Chiu, 325 P.3d 972 (Cal. 2014). Attempted murder requires a specific intent to kill, and intent to kill is express malice. People v. Gonzalez, 278 P.3d 1242 (Cal. 2012). Consequently, implied malice cannot support a conviction of attempted murder. People v. Bland, 48 P.3d 1107 (Cal. 2002). Therefore, the natural and probable consequences doctrine imputes to an accomplice the perpetrator’s specific intent to kill in attempted murder prosecutions. People v. Prettyman, 926 P.2d 1013 (Cal. 1996).

But SB 1437 now prohibits imputing malice “to a person based solely on his or her participation in a crime.” Pen. Code, § 188(a)(3). Because malice in the context of murder is no longer imputable, the Legislature eliminated the natural and probable consequences doctrine as a viable theory to prove attempted murder. Medrano. This conclusion applies retroactively on appeal. Id.

The Court recognized that People v. Munoz, 39 Cal. App. 5th 738 (2019), and People v. Lopez, 38 Cal. App. 5th 1087 (2019), reached contrary conclusions. The Munoz and Lopez decisions were based on the determination that the absence of the word “attempt” in § 188(a)(3) meant the Legislature intentionally excluded attempted murder from its malice-imputing proscription. But such an interpretation of the statute leads to the absurd result of incentivizing murder; namely, criminal defendants would then take steps to ensure that they killed their victims in order to prevent the malice from being imputed to their accomplices. And a fundamental principle of statutory construction is that the language of a statute is not to be given a literal meaning if doing so results in absurd consequences. People v. Cook, 342 P.3d 404 (Cal. 2015).

The Court explained that “Sanchez was prosecuted under both a valid direct aiding and abetting legal theory and an invalid theory because the natural and probable consequences doctrine is no longer a viable theory to prove attempted murder.” As a result, his conviction must be reversed because the Court could not determine beyond a reasonable doubt that the jury convicted him on the valid theory.

Accordingly, the Court reversed the attempted murder conviction and remanded for further proceedings consistent with its opinion. See: People v. Sanchez, 2020 Cal. App. LEXIS 216 (2020).  

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