Filed 10/10/14 P. v. Prado CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). T his opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. JUAN ALBERTO PRADO et al. , Defendants and Appellants. D064289

(Super. Ct. No. SCD241085)

APPEALS from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and
A ppellant Juan Alberto Prado. Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant James John Rivas. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Atto rney General, Kristine A. Gutierrez and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.2

A jury convicted defendants Alberto Prado and John Rivas of three counts of premeditated attempted murder (Pen. Code , § § 664/187, subd. (a) , 1 89) 1 involving three victims: Mr. Monroe (count 1), Mr. Moats (count 2) and Mr. Slaughter

- Cook (count 3). The jury also found true Rivas personally used a knife in count 1 and Prado personally used a knife in counts 2 and 3 ( § 12022, subd. (b)(1)), and th at Rivas personally inflicted great bodily injury in count 1 and Prado personally inflicted great bodily injury in count 3, within the meaning of sections 12022.7, subdivision (a) , and 1192.7. 2 On appeal, defendants contend the judgment must be reversed a s to all counts because the instruction on attempted murder was prejudicially erroneous by equating the aider and abettor ' s so - called " direct act " with his intent. Prado also contends the " natural and probable consequences " portions of the aider and abett or instructions were erroneous
under Alleyne v. United S tates (2013) ___ U.S. ___ [133 S.Ct. 2151] ( Alleyne ) and/or People v. Chiu (2014) 59 Cal.4th 155 ( Chiu ). Finally, Prado contends the instructions inadequately informed the jury it could find him guil ty of aiding and abetting attempted voluntary manslaughter.

1 All further statutory references are to the Penal Code unless otherwise specified.
2 The jury also convicted defendants of one count of assault with a deadly w eapon as to the victim Slaughter

- Cook (count 4) and, in a bifurcated proceeding, Prado and Rivas admitted the truth of certain allegations of prior prison terms, prior serious felonies and prior strike convictions. The present appeal raises no issues as t o these convictions and true findings.3 I FACTS In the early morning hours of May 25, 2012, a group of homeless people, including M e ssrs . Monroe, Moats, Slaughter

- Cook and Parker, were sleeping near the San Diego Public Library when t hey were awakened by Rivas, who was mumbling to himself and banging a stick on an iron fence across the street. Slaughter

- Cook yelled at Rivas to " shut the fuck up " and Rivas yelled back at him. Monroe, Slaughter

- Cook and Parker crossed the street and co nfronted Rivas , and an altercation ensued during which Slaughter

- Cook punched Rivas, causing him to fall to the ground, and the others tried to kick and punch Rivas. He was able to get to his feet, stated " you did me dirty, I ' ll be back , " and left. Monro e, Slaughter

- Cook and Parker then returned to their sleeping spot. Approximately 15 minutes later, Rivas returned to the library with Prado. Parker heard o ne of the m say , " That ' s him in the white blanket , " and saw Rivas and Prado (each holding a knife in his hand) walk up to Moats and start trying to stab him through the
blanket. 3 Moats got out of his blankets, screaming they had the wrong person and asking what he had done, and Prado responded " you did something to my friend

. " Prado swung a hooked knif

e at Moats ; Parker came to Moats's aid and tried to disarm Prado. Meanwhile, Slaughter

- Cook was awakened by Monroe ' s screams that " they ' re stabbing me. " Slaughter

- Cook heard Rivas tell Monroe " you did me dirty, I ' m going to kill you , " and saw Rivas (stra ddling Monroe as he lay on the ground in a sleeping bag)

3 The blanket protecting Moats was a thick, quilt

- like blanket , and Moats testified it sustained multiple puncture holes during the attack.4

making downward motions with the knife at Monroe ' s upper body. Slaughter

- Cook ran to aid Monroe and kic ked Rivas , the n grabbed him from behind and tried to wrestle the knife from his hand. He punch ed and bit Rivas and the two men wrestled to the ground. Prado then ran up to Slaughter

- Cook and stabbed Slaughter

- Cook in the back. Slaughter

Cook told his friends to " handle the dude " that had stabbed him.
As Slaughter

- Cook struggled with Rivas, Par ker and Moats grabbed Prado and, after Monroe joined the fray, they were able to disarm Prado. Slaughter

- Cook was then able to strike Rivas several times , disarming him before he fled. Slaughter

- Cook threw the knife toward the library. Meanwhile, Prado asked the men to let him leave because the police would be coming. When they released him, Prado also fled

. Slaughter

- Cook called 91 1. When officers arrived, the group gave the officers one knife and directed them to the front of the library , where they found a second knife. Blood and DNA on the knives belonged to Slaughter

- Cook and Monroe. Slaughter

- Cook had a stab wound in his back and had trouble breathing because of a collapsed lung. Monroe had a stab wound to the upper left arm and a cut on his h ead. Moats had cuts on his hands along with other injuries.5 II ANALYSIS
A. CALCRIM No. 600 Adequately States the Applicable Principles Defendants first claim all of the convictions must be reversed because the jury was given a modified version of CALCR IM No. 600 on attempted murder and the instruction was prejudicially incorrect. T he trial court ' s instruction provided:

" To prove that a defendant is guilty of attempted murder, the People must prove one, the defendant took at least one direct but ineffec tive step toward killing another person and, two, the defendant intended to kill a person. [¶]

. . . [¶]

" A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A di rect step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. [¶] A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime a fter preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. " (Italics added.) The first paragraph of the instruction correctly states the law ( People v. Lee (2003) 31 Cal.4th 613, 623 [ " Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing

. " ] ( Lee ) ) and defendants do not contend otherwise. Instead, they contend the italicized language in the second paragraph was prejudicially incorrect because it in effect instructs the jury that a direct step equals an intent to kill, and therefore once the jury found the

" direct step " element, they would not need separately to determine the " intent " element.6

Defendants acknowledge this identical argument was rejected by the court in People v. Lawrence (2009) 177 Cal.App.4th 547 , but argue we should not follow
Lawrence because it was wrongly dec ided. The Lawrence court, rejecting the same argument, concluded the challenged language was substantively identical to the language approved by the Supreme Court in People v. Dillon (1983) 34 Cal.3d 441, 452

- 453, and also explained:

" When the challenged portion of CALCRIM No. 600 is considered in context, it is clear there is no reasonable likelihood jurors understood it as appellant asserts. [Citations.] The instruction as a whole makes it clear that in order to find an attempt, the jury must find two distinct elements: an act and an intent. These elements are related; usually, whether a defendant harbored the required intent to kill must be inferred from the circumstances of the act. [Citation.] Read in context, it is readily apparent the challenged language refers to the act that must be found, and is part of an explanation of how jurors are to determine whether the accused ' s conduct constituted the requisite direct step or merely insufficient planning or preparation. " ( Id. at p. 557.) We agree w ith Lawrence that, viewed in context of both the instruction itself and the entire charge to the jury, CALCRIM No. 600 adequately instructed the jury there were two elements (the mens rea and the actus reas) the jury needed to separately determine, and the italicized language refer red to the latter element and was part of expla ining how jurors were to determine whether defendants ' conduct constituted the requisite direct step as distinguished from mere insufficient planning or preparation.
B. Any Alleged D eficiency in the Aider and Abettor Instructions W as Harmless Prado argues the aider and abettor instructions, insofar as those instructions enabled the jury to employ the " natural and probable consequences " doctrine to convict7

him of aiding and abetting R ivas ' s attempted premeditated murder under section 654, subdivision (a) , as permitted under People v. Favor (2012) 54 Cal.4th 868 ( Favor ), were prejudicially erroneous because the rationales of Alleyne , supra, ___ U.S. ___ [133 S.Ct. 2151] and Chiu , supra, 59 Cal.4th 155 have undermined the continued vitality of Favor

. 4 Prado acknowledges that, under the majority opinion in Favor , the jury was properly instructed and could properly convict him of attempted premeditated murder under the natural and probable consequences doctrine. However, Prado asserts that, after Alleyne and Chiu , a jury can never convict an aider and abettor of the nontarget offense of attempted premeditated murder under the natural and probable consequences doctrine, but instead may only convict the aider and abettor of attempted second degree murder under that doctrine. Prado alternatively asserts at a minimum that, after Alleyne , a jury cannot convict an aider and abettor of the non target offense of attempted premeditated murder under the natural and probable consequences doctrine unless the jury is instructed

4 Rivas does not raise these claims as to his own convictions, except inso far as he generically states that he " joins in all arguments raised by [Prado] which may accrue to [Rivas ' s ] benefit, and are not inconsistent with the above arguments raised by [Rivas]. " In an analogous case involving aider and abettor principles, the co urt in People v. Nero (2010) 181 Cal.App.4th 504, 510, footnote 11 observed that " [a] lthough Nero, in his reply brief, joined in the arguments advanced by Brown, he did not supply any additional argument on the issue of aider and abettor liability as it ap plied to his unique circumstance. Joinder may be broadly permitted [citation] , but each appellant has the burden of demonstrating error and prejudice [citations]

. To the extent Nero ' s cursory joinder was an attempt to raise the aider and abettor issue, h is reliance solely on Brown ' s arguments and reasoning is insufficient to satisfy his burden on appeal. We therefore consider the aider and abettor issue only as to Brown. " Similarly, Rivas makes no effort to show either the instructions were erroneous un der the facts as to his conduct, or how he was prejudiced by such alleged error. Accordingly, w e consider the aider and abettor issue s raised by Prado only as to Prado ' s convictions.8

it must first find the premeditated murder was a natural and probable consequence of the target offense and, because the jury was not so instructed in this case, reversal of his

c onvictions is required.
1. The Legal Landscape of Aider and Abettor Liability: Favor, Alleyne & Chiu
Favor
An a ider and abettor may be convicted for crimes committed by the direct perpetrator under two alternative theories: direct aiding and abetting pr inciples and the natural and probable consequences doctrine

. ( People v. McCoy (2001) 25 Cal.4th 1111 , 1117

- 1118.) Under direct aiding and abetting principles , the defendant is guilty of the intended (or target) offense if he or she acted with knowledge o f the criminal purpose of the direct perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the target offense. ( Id . at p. 1118.) However,

an aider and abettor can also be guilty of unintended cri mes under the natural and probable consequence doctrine: when the aider and abettor act s with knowledge of the criminal purpose of the direct perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, t he target offense , he or she is guilty of both the intended crime and any other offense (the nontarget offense) committed by his or her confederate that was a " natural and probable consequence " of the target crime that he or she aided and abetted. ( Id . at p. 1117.)
In Favor, supra , 54 Cal.4th 868, the court examined whether an aider and abettor who knew of and intended to facilitate the target offense of robbery could be convicted of the nontarget offense of attempted premeditated murder under the natural and probable9

consequences doctrine if the direct perpetrator committed an attempted murder and such an attempted murder was a natural and probable consequence of the target crime , without the jury needing to find that premeditation also be a natural and p robable consequence of the robbery , or whether the jury must be instructed that attempted premeditated murder ( not just attempted murder ) was a natural and probable consequence of the target offense

. ( Id

. at p. 872.) The Favor court, relying on its earli er decisions in People v. Bright (1996) 12 Cal.4th 652 ( Bright ) (disapproved on other grounds by People v. Seel (2004)
3 4 Cal.4th 535, 550, fn. 6) and Lee , supra, 31 Cal.4th 613 , concluded that because section 664, subdivision (a) , does not create differen t offenses of attempted premeditated murder and attempted unpremeditated murder , but is merely a penalty provision imposing a greater punishment for an attempt to commit a murder that is premeditated , the trial court need only instruct (as to aiders and ab ettors under the natural and probable consequences doctrine) that the jury must find t he commission of an attempted murder was a natural and probable consequence of the target crime of robbery to affix liability for the ultimate crime on the aider and abet tor , and premeditation is not a required component of the aider and abettor ' s mental state . Instead, Favor concluded b ecause section 664, subdivision (a) ' s penalty provision requires only that the attempted murder itself was willful, deliberate, and preme ditated , it is only necessary the attempted murder be committed by one of the perpetrators with the requisite premeditation. Because the jury does not decide the truth of the penalty premeditation allegation until it first has reached a verdict on the sub stantive offense of attempted murder , Favor concluded that,

" with respect to the natural and probable consequences doctrine as applied to the10

premeditation allegation under section 664 [, subdivision] (a) , attempted murder

― n ot attempted premeditated murder

― qualifies as the nontarget offense to which the jury must find foreseeability. Accordingly, once the jury finds that an aider and abettor, in general or under the natural and probable consequences doctrine, has committed an attempted murder, it separately determines whether the attempted murder was willful, deliberate, and premeditated. " ( Favor, at pp. 879

- 880.) Thus, after Favor , it appears the jury assesses the aider and abettor ' s potential liability for the heightene d penalties provided by section 654, subdivision (a), under the natural and probable consequences doctrine using a two

- step inquiry: first, the jury evaluates whether an a ttempted murder (regardless of the actual perpetrator ' s premeditat ion) was a forseeab le nontarget offense; if it so finds, the jury then separately determines whether the attempted murder was committed by the perpetrator with the requisite willful ness , deliberate ness , and premeditat ion. If it find affirmatively on both inquiries, the aide r and abettor is subject to the heightened penalties provided by section 654, subdivision (a) , for attempted premeditated murder. Alleyne
In Alleyne , supra, ___ U.S. ___ [133 S.Ct. 2151], the court expanded on its previous decision in Apprendi v. New Jer sey (2000) 530 U.S. 466 in the context of a statutory scheme that imposed enhancements to a sentence for a defendant who " uses or carries a firearm " in relation to a " crime of violence

. " ( Alleyne, at pp. 2155

- 2156.) Under the statute, the defendant must be sentenced to a term of not less than five years for that conduct, but also provided for a term of not less than seven years if the firearm11

was brandished and a term of not less than 10 years if the firearm was discharged. ( Ibid. ) The jury found the de fendant " ' [u]sed or carried a firearm during and in relation to a crime of violence ' but did not indicate a finding that the firearm was ' brandished. ' " ( Id

. at p. 2156.) However, the trial court sentenced the defendant to seven years, concluding
brandi shing was not an element the jury was required to determine beyond a reasonable doubt but was instead a sentencing factor the trial court could find by a preponderance of the evidence. ( Ibid .) The Alleyne court reversed, declaring Apprendi established th at a fact " is by definition an element of the offense and must be submitted to the jury if it increases the punishment above what is otherwise legally prescribed " for purposes of the maximum term a defendant is to be punished, and Alleyne concluded this sa me definition applied to facts that also increase the mandatory minimum sentence. ( Alleyne , at
p. 2158.) Chiu
In Chiu, supra , 59 Cal.4th 15 5 , the court addressed whether an aider and abettor who knew of and intended to facilitate a target offens e could be convicted of the

non target offense of premeditated murder under the natural and probable consequences doctrine if the direct perpetrator committed premeditated murder and premeditated murder was a natural and probable consequence of the target crime . T he Court of Appeal held it was prejudicially erroneous not to instruct the jury it was necessary to find the first degree premeditated murder actually committed by the perpetrator was a natural and probable consequence of the target offense, and therefore reversed the conviction. Chiu went further and held that, although an aider and abettor may be convicted of12

premeditated murder under direct aiding and abetting principles, an aider and abettor

can not be convicted of the non target offense of first degree premeditated murder under the natural and probable consequences doctrine . ( Id . at pp. 158

- 159.) Chiu began by noting the court had not considered aider and abettor liability for first degree premeditated murder under the natural and probable consequences doctrine. It acknowledged its decision in Favor held that , under the natural and probable consequences doctrine as applied to the premeditation allegation under section 664 , subdivision ( a), a trial court need only instruct that the jury find attempted m urder ( not attempted premeditated murder ) was a foreseeable consequence of the target offense , and th e premeditation finding ( based on the direct perpetrator ' s mens rea ) was to be determined after the jury decide d the nontarget offense of attempted murder was foreseeable. However, Chiu explained Favor ' s analysis turned on the reasoning in Bright , supra, 12 Cal.4th 652 (which held § 664 , subd. (a) , impose d an increased punishment for an attempt to commit a premeditated murder , was a penalty provision and di d not create a greater offense or degree of attempted murder ) and in Lee , supra, 31 Cal.4th 613, which construed the language of section 664 , subdivision (a) , to evince a legislative intent to apply section 664 , subdivision (a) ' s enhanced penalties to all aiders and abettors (even those who did not personally act with premeditation) and reasoned the direct perpetrator ' s more culpable state of mind would be a sufficient basis upon which to apply section 664 , subdivision (a) ' s penalty provision to an aider an d abettor under the natural and probable consequences doctrine. ( Chiu, supra, 59 Cal.4th at pp. 162

- 163.)13

The Chiu court, however, rejected the government ' s argument to follow Favor and apply the same reasoning to an aider and abettor charged with premed itated murder . The Chiu court, explaining its grounds for distinguishing and not applying Favor , stated:

" [ Favor is] distinguishable in several respects. Unlike Favor , the issue in the present case does not involve the determination of legislative intent as to whom a statute applies. Also, unlike Favor , which involved the determination of premeditation as a requirement for a statutory penalty provision, premeditation and deliberation as it relates to murder is an element of first degree murder. In reachi ng our result in Favor , we expressly distinguished the penalty provision at issue there from the substantive crime of first degree premeditated murder on the ground that the latter statute involved a different degree of the offense. [Citing Favor, supra , 54 Cal.4th at pp. 876

- 877.] Finally, the consequence of imposing liability for the penalty provision in Favor is considerably less severe than in imposing liability for first degree murder under the natural and probable consequences doctrine. Section 664 [, subdivision] (a) provides that a defendant convicted of attempted murder is subject to a determinate term of five, seven, or nine years. If the jury finds the premeditation allegation true, the defendant is subject to a sentence of life with the possib ility of parole. [Citation.] With that life sentence, a defendant is eligible for parole after serving a term of at least seven years. ( § 3046, subd. (a)(1).) On the other hand, a defendant convicted of first degree murder must serve a sentence of 25 ye ars to life. ( § 190, subd. (a).) He or she must serve a minimum term of 25 years before parole eligibility. ( § 3046, subd. (a)(2).) A defendant convicted of second degree murder must serve a sentence of 15 years to life, with a minimum term of 15 years before parole eligibility. (§ § 190, subd. (a), 3046, subd. (a)(2).) " ( Chiu, supra , 59 Cal.4th at p. 163 .) Chiu then articulated its reasons for concluding, as a matter of first impression,
that an aider and abettor can not be convicted of the non target offense of first degree premeditated murder under the natural and probable consequences doctrine . ( Chiu,

supra, 59 Cal.4th at pp. 163

- 167.) Chiu noted the natural and probable consequences doctrine is a common law doctrine " firmly entrenched in Californi a law " ( id. at p. 163)14

but, because it is not part of t he statutory scheme, the court " may . . . determine the extent of aiding and abetting liability for a particular offense, keeping in mind the rational function that the doctrine is designed to serve an d with the goal of avoiding any unfairness which might redound from too broad an application. " ( Id . at p. 164.) Chiu recognized that a ider and abettor culpability under the natural and probable consequences doctrine " is vicarious in nature " because it is " ' not premised upon the intention of the aider and abettor to commit the nontarget offense because the nontarget offense was not intended at all. It imposes vicarious liability for any offense committed by the direct perpetrator that is a natural and pr obable consequence of the target offense. [Citation.] Because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have f oreseen the commission of the nontarget crime. ' [Quoting People v. Can iz alez (2011) 197 Cal.App.4th 832, 852]. " ( Chiu , supra , 59 Cal.4th at p. 164.) Chiu explained t he natural and probable consequences doctrine is based on the principle that liability e xtends to reach " ' the actual, rather than the planned

or " intended " crime, committed on the policy [that]

. . . aiders and abettors should be responsible for the criminal harms they have naturally, probably, and foreseeably put in motion. ' [Quoting Peopl e v. Luparello (1986) 187 Cal.App.3d 410, 439.] " ( Id. at p. 164, it alics added by Chiu .) Chiu concluded that, because the application of the natural and probable consequences doctrine does not depend on the foreseeability of every element of the nontarge t offense but instead (at least in the context of murder under the natural and probable consequences doctrine ) ha s focused on the reasonable foreseeability of the15

actual resulting harm , " the legitimate public policy concern of deterring aiders and abettors from aiding or encouraging the commission of offenses that would naturally, probably, and foreseeably result in an unlawful killing

. . . is served by holding them culpable for the perpetrator ' s commission of the nontarget offense of second degree murder. " ( Id . at p. 165.) Chiu declared that limiting aider and abettor liability under the natural and probable consequences doctrine to second degree murder is:

" consistent with reasonable concepts of culpability. Aider and abettor liability under the natura l and probable consequences doctrine does not require assistance with or actual knowledge and intent relating to the nontarget offense, nor subjective foreseeability of either that offense or the perpetrator ' s state of mind in committing it. [Citation.] It only requires that under all of the circumstances presented, a reasonable person in the defendant ' s position would have or should have known that the nontarget offense was a reasonably foreseeable consequence of the act aided and abetted by the defendan t. [Citation.] [¶] However, this same public policy concern loses its force in the context of a defendant ' s liability as an aider and abettor of a first degree premeditated murder. First degree murder, like second degree murder, is the unlawful killing of a human being with malice aforethought, but has the additional elements of willfulness, premeditation, and deliberation which trigger a heightened penalty. [Citation.] That mental state is uniquely subjective and personal. It requires more than a sh owing of intent to kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death. [Citations.] Additionally, whether a direct perpetrator commits a nontarget offense of murder with or without premeditation and deliberation has no effect on the resultant harm. The victim has been killed regardless of the perpetrator '

s premeditative mental state

. Although we have stated that an aider and abettor ' s ' pu nishment need not be finely calibrated to the criminal ' s mens rea ' [quoting Favor, supra , 54 Cal.4th at p. 878], the connection between the defendant ' s culpability and the perpetrator '

s premeditative state is too attenuated to impose aider and abettor liab ility for first degree murder under the natural and16

probable consequences doctrine, especially in light of the severe penalty involved and the above stated public policy concern of deterrence

. " ( Chiu, supra , 59 Cal.4th at pp. 165

- 166, italics added.)
Ho wever, Chiu cautioned that a iders and abettors could still be convicted of first degree premeditated murder based on direct aiding and abetting principles if the prosecution showed the defendant aided or encouraged the commission of the murder with knowled ge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission. Accordingly, Chiu turned to an examination of whether erroneously instructing the jury that an aider and abettor could be convicted of the nontarget offense of first degree premeditated murder under the natural and probable consequences doctrine was harmless error. Chiu applied the familiar principles that , " [ w ] hen a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground. [Citations.] Defendant ' s first degree murder conviction must be reversed unless we conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory that defendant directly aided and abetted the premeditated murder. " ( Chiu, supra , 59 Cal.4th at p. 167.) Chiu ultimately concluded that, because the record showed the jury could have based its verdict on the erroneous natural and probable consequences doctrine , reversal was required. 2. Prado ' s Arguments of Error Prado asserts that, even before Chiu , Favor ' s approach was of dubious validity because it reste d on the analysis of Bright , supra, 12 Cal.4th 652, and Lee , supra, 3117

Cal.4th 613, which viewed section 664 , subdivision (a) , as a penalty provision rather than

as creating a distinct or different offense. He argues Alleyne , by eviscerating that distinct ion and requiring a jury to determine every element necessary to applying an enhanced penalty to a defendant, in effect determined the approach approved by Favor violated federal constitutional protections because Favor ' s approach permitted an aider and ab ettor to be punished for premeditated attempted murder without having the jury decide whether the aider and abettor personally premeditated an offense , or even whether the aider and abettor reasonably could have foreseen a non target offen se encompassing
pr emeditation. More importantly, Prado urges us to recognize that the analysis employed by the Chiu court applies with equal force to aider and abettor liability for attempted premeditated murder under the natural and probable consequences doctrine . Althou gh Prado acknowledges Chiu ' s discussion of Favor involved distinguishing (rather than expressly disapproving) Favor , Prado asserts the grounds articulated in Chiu for distinguishing Favor '

s treatment of aider and abettor liability for attempted premeditate d murder under the natural and probable consequences doctrin e cannot withstand serious scrutiny, and argues we should therefore construe Chiu as overruling Favor sub silencio and precluding of aider and abettor liability for attempted premeditated murder u nder the natural and probable consequences doctrin e notwithstanding Favor

. 3. Any Error Was Harmless Prado presents cogent arguments that, considering Chiu , the jury was misinstructed on aider and abettor liability for attempted premeditated murder unde r the18

natural and probable consequences doctrin e. However, we conclude it is unnecessary to definitively determine whether Chiu overruled Favor sub silencio because, even assuming the jury was misinstructed on aider and abettor liability under the natural and probable consequences doctrin e for the attempted premeditated murder of Monroe , 5 we are convinced beyond a reasonable doubt that any such purported error must be deemed harmless. ( Chiu, supra , 59 Cal.4th at pp. 166

- 167.) The jury was instructed on three separate theories f or imposing liability on Prado for all of the murders: he could be guilty as a direct perpetrator of attempted premeditated murder; he could be guilty on " direct " aiding and abetting principles; and he could be guilty under the " na tural and probable consequences " doctrin e. As to Prado ' s liability for Rivas ' s attempted murder of Monroe, only the latter two theories were applicable

5 On appeal, Prado principally argues the count involving Monroe (count 1) was based on the natural and probable consequences doctrin e because Rivas was the attacker o f Monroe , and Prado was not even charged with personal use of a knife in connection with that count. Although Prado also briefly asserts the prosecutor " proffe red aiding and abetting as one theory of Prado ' s liability " on the other counts, the prosecutor primarily argued Prado was guilty of all counts as a direct perpetrator or under direct aiding and abetting principles, and the only evidence as to the count in volving the attempted murder of Slaughter

- Cook (count 3) was that Prado was the direct and sole perpetrator of that attempted murder, which convinces us beyond a reasonable doubt (and Prado offers no argument to the contrary) that the jury necessarily conc luded Prado personally possessed the requisite mens rea as to that attempted murder. Moreover, as to the conviction for the attempted murder of Moats (count 2), the only evidence was (1) Prado was also a direct perpetrator of that attempted murder and (2) his personal attack on Moats preceded his later attack (on Slaughter

- Cook), which the jury necessarily found was accompanied by the requisite premeditation. Prado offers no argument or view of the evidence demonstrating how a jury might have concluded Pr ado personally lacked premeditation when he first approached to begin his attack (on Moats) but thereafter premeditated as he continued his attack (on Slaughter

- Cook). On this record, we are convinced beyond a reasonable doubt that the jury concluded Prad o personally possessed the requisite mens rea as to both attempted murders as to which he was the direct perpetrator.19

considering the evidence that Rivas, not Prado, was the direct perpetrator. The prosecutor, although e xplaining the natural and probable consequences doctrin e was an available theory for holding Prado liable for the charged crimes, expressly stated and restated that the natural and probable consequences doctrin e " isn ' t the People ' s theory of liability beca use we think

. . . Prado had the intent to kill. " The prosecutor emphasized the evidence showing Rivas ' s premeditated intent to kill in retribution for the victims ' earlier assault on him , and noted Prado knew of and shared that intent because Prado (afte r being enlisted by Rivas) armed himself to accompany Rivas to exact retribution and, after Rivas identified the target (by saying , " That ' s him in the white blanket " ), immediately joined with Rivas in approaching and trying to stab Moats. Indeed, the
pros ecutor noted that when Moats screamed they had the wrong person, Prado responded

" you did something to my friend , " evidencing Prado subjectively shared with Rivas the intent to extract revenge on the persons who had earlier attacked Rivas, one of whom was
Monroe . Indeed, the prosecutor noted, when Rivas turned his attack away from the mis taken target (Moats) and attacked " the person he was meaning to attack " (Monroe), the prosecutor noted Prado also turned away from Moats and went several feet away to

" pro tect []

. . . Rivas as [Rivas is ] attacking Mr. Monroe " by stabbing Slaughter

- Cook in the back when he tried to co me to Monroe ' s aid. We are convinced beyond a reasonable doubt, because of the evidence and the argument of the prosecutor, the jury found Pra do liable for Rivas ' s premeditated attempted murder of Monroe under direct aiding and abetting principles because the evidence showed, and the prosecutor argued, that (1) Monroe was one of the persons20

whom Rivas intended to target for retribution by trying to kill Monroe with planning and premeditation, (2) Prado knew of this intention and shared that purpose, and (3) Prado joined in the attack with the intent or purpose either of committing ( or of encouraging or facilitating commission of ) Rivas ' s premedit ated attempt to kill Monroe. W e are convinced beyond a reasonable doubt that the instruction as to the alternative natural and probable consequences doctrine, even if erroneous, was harmless error.
C. Any Alleged Deficiency in the Lesser Included Offense s Instruction W as Harmless Prado contends the court erred when it did not sua sponte instruct the jury that attempted voluntary manslaughter was an option of which the jury could have convicted
him under the natural and probable consequences theory , and t hat this error was prejudicial and requires reversal on all three counts. The Case Law An aider and abettor may be convicted of a greater crime than the crime for which the actual perpetrator is convicted. ( People v. McCoy , supra, 25 Cal.4th at p. 111 6

. ) Although we are cited no Supreme Court authority specifically determin ing whether a defendant can be guilty of a homicide

- based offense of a lesser degree than that committed by the perpetrator under the natural and probable consequences doctrine , a

ser ies of cases have concluded a defendant can be guilty under the natural and probable consequences doctrine of a lesser crime than the perpetrator , and instruction on this principal is required in appropriate factual circumstances. Th is line of authority b eg an with People v. Woods (1992) 8 Cal.App.4th 1570 ( Woods ). In Woods , two defendants21

assaulted two people and stole some property . D uring the getaway, one of the defendants shot and killed the occupant of a nearby car. Both defendants were convicted of first degree murder. During deliberations, the jury asked if it could convict the accomplice of second degree murder even if the shooter was guilty of first degree murder , and t he trial court responded in the negative. Woods held the trial court ' s respo nse was erroneous because an aider and abettor may be found guilty under the natural and probable consequences doctrine of a lesser crime than that committed by the perpetrator, when the evidence suggests the ultimate crime was not reasonably foreseeable b ut a lesser crime committed by the perpetrator during the accomplishment of the ultimate crime was foreseeable. ( Id . at pp. 1577 , 1586

- 1587.) Woods concluded that, u nder the facts of the case, the jury could have determined it was not reasonably foresee able the codefendant would commit premeditated murder of an innocent bystander but it was foreseeable that he might kill intentionally but without premeditation , and therefore reversed as to the accomplice ' s premeditation

. ( Id . at pp. 1590 , 1595

- 1596.)
W oods was followed, and extended by, the court in People v. Samaniego (2009) 172 Cal.App.4th 1148 ( Samaniego )

. 6 In Samaniego , the court again held an aider and

6 The rationale in Woods was also followed in, and extended by, the court in People v. Hart (2009) 176 Cal.App.4th 662 in the context of charged offenses more closely aligned with the present case, where both defendants were charged with and convicted of first degree attempted murder . The Hart court concluded the jury was not properly instructed on the natural and probable consequences doc trine because t he instructions failed to inform the jury that to find the accomplice guilty of attempted premeditated murder , " it was necessary to find that attempted premeditated murder, not just attempted murder, was a natural and probable consequence of the attempted robbery. " ( Id. at p. 673.) Hart held the trial court ha d " a duty, sua sponte, to instruct the jury in a case22

abettor ' s guilt may be less than the perpetrator ' s , but also concluded an instruction that infor med the jury " ' [ a ] person is equally guilty of the crime

. . . whether he or she committed it personally or aided and abetted the perpetrator who committed it ' [citation] [is] generally correct in all but the most exceptional circumstances " ( id . at p. 116 5), although under the peculiar facts of that case the court concluded it was potentially misleading and should have been modified. ( Ibid .) However, Samaniego ultimately found the misinstruction to be harmless beyond a reasonable doubt because the jury

n ecessarily found each of the defendants acted with the intent to kill ( because the jury found a multiple murder special circumstance allegation to be true ) and " [ i]t would be virtually impossible for a person to know of another ' s intent to murder and decid e to aid
in accomplishing the crime without at least a brief period of deliberation and premeditation , which is all that is required

. " ( Id . at p. 1166.) Finally, in People v. Nero , supra, 181 Cal.App.4th 504 , defendant Nero stabbed the victim to death wi th a knife that the prosecution argued defendant Brown had handed to him. ( Id . at p. 519.) During deliberations, the jury asked if it could find an aider and abettor guilty of a greater or lesser crime than the direct perpetrator , and t he trial court
rep lied that the principals in a crime are equally guilty. ( Id . at pp. 511

- 513.) Both of the such as this one that it must determine whether premeditation and deliberation, as it relates to attempted murder, was a natural and probable consequence of the target crime " ( i bid

. ) , and that it was prejudicial error not to inform the jury it could convict the accomplice of a lesser crime than the perpetrator under the natural and probable consequences doctrine. ( Id. a t p p . 672

- 67 4.) However, Hart was expressly disapproved in Favor, supra , 54 Cal.4th at page 879, footnote 3, although the Favor court apparently left Woods untouched. ( Favor, supra , 54 Cal.4th at p. 877.) If, as Prado contends, Ch i u has overruled Favor sub silencio , it is equally arguable Hart ' s extension of Woods to the context of attempted murder has been resurrected sub silencio.23

defendants were convicted of second degree murder , but the Nero court concluded this

was erro r because an aider and abettor may be fo und guilty of a lesser homicide

- related offense than the actual perpetrator. It concluded the " equally guilty " language for aider and abettor liability can be misleading , and i t could not find beyond a reasonable doubt that Brown would have been found guilty of second degree murder in the absence of the erroneous response to the jury ' s question. ( Id . at pp. 513

- 520.) Prado ' s Claim Prado argues that, in light of Woods , the court sua sponte should have more clearly articulated that the jury had the option of convicting him of either at tempted murder or attempted voluntary manslaughter as natural and probable consequences of his aiding and abetting an assault with a deadly weapon, regardless of whether the jury concluded Rivas was guilty of the greater offenses. H e asserts that if attem pted murder was a foreseeable nontarget offense of the target crime (e.g. assault with a deadly weapon) he aided and abetted, attempted voluntary manslaughter was necessarily an equally foreseeable nontarget offen se of that target crime. The People argue the jury instructions were adequate but, to the extent the instructions were unclear, any ambiguity was harmless. Analysis
We conclude that, even assuming there was a n absence of clarity in the instructional charge to the jury, any deficiency was harmles s beyond a reasonable doubt. As a preliminary matter, although Prado asserts all three convictions were infected by this deficiency, the only evidence as to the count involving the attempted murder of Slaughter

- Cook was Prado was the sole perpetrator of t hat attempted murder, which24

convinces us beyond a reasonable doubt that the jury necessarily convicted Prado of that count because it found he personally possessed the requisite mens rea as to that attempted murder, and therefore we conclude (and Prado off ers no argument to the contrary) the vicarious liability principles of the natural and probable consequences doctrine had no impact on that count. Similarly, the evidence supporting the conviction for the attempted murder of Moats again showed Prado was a direct perpetrator of that attempted murder, and he offers no argument or view of the evidence demonstrating how a jury might have concluded Prado personally lacked the intent and premeditation when he first approached to begin his attack (on Moats) but t hereafter personally intended and premeditated as he continued his attack on Slaughter

- Cook. On this record, we are convinced beyond a reasonable doubt the jury concluded Prado personally possessed the requisite mens rea as to both attempted murders in wh ich he was the direct perpetrator and we are therefore convinced beyond a reasonable doubt the vicarious liability principles (as to which he asserts the instructions were defective) played no role in either of those convictions. On appeal, the only theor y of prejudice Prado attempts to articulate involves his conviction as to count one involving Rivas ' s attack on Monroe. He argues that, because the prosecutor actually proceeded on the theory of natural and probable consequences, and because the jury coul d have concluded Prado only intended to aid and abet an assault with a deadly weapon, and could have also concluded Rivas ' s attempted murder of
Monroe was not a reasonably foreseeable crime but his attempt to commit voluntary manslaughter on Monroe was a r easonably foreseeable crime, the verdict might have been impacted by the imprecision. We are not persuaded by Prado ' s arguments for25

several reasons. First, unlike Samaniego , supra, 172 Cal.App.4th 1148, the record contains no indication the jury thought Prado was less culpable than Rivas, or wanted to convict Prado of something less than attempted first degree murder but erroneously believed that it could not do so , or made any inquiries indicat ing it was confused on the point. More importantly, as previ ously discussed, the prosecutor mentioned the natural and probable consequences doctrine but expressly admonished that it was relying on direct aiding and abetting principles, and focused on Prado ' s guilt as a direct perpetrator (as to Moats and Slaughter

- Cook) and under direct aider and abettor principles ( as to Monroe ) . Moreover, d uring the prosecutor ' s brief remarks about the natural and probable consequences doctrine, he did not tell the jury it was barred from convicting Prado of any offense less than any offense of which it found Rivas guilty. Finally, we are convinced

t he jury found Prado possessed the intent to kill and premeditated that intention because of its verdict as to Slaughter

- Cook, which makes it highly likely the jury relied on the direc t aiding and abetting principles rather than the natural and probable consequences doctrine. The entirety of the evidence overwhelmingly proved Prado ai ded and abetted in the attempted premeditated murder of Monroe. Prado armed himself with a knife and

a ccompanied his friend to extract revenge and, after one of them identified (albeit mistakenly) their target by stating , " That ' s him in the white blanket , " Prado accompanied Rivas to try to repeatedly stab Moats through the blanket , telling him (when Moats claimed they had the wrong person and asked what he had done) that " you did something to my friend

. " Moreover, when Rivas shifted his attack to Monroe, Prado continued to26

back Rivas up by stabbing the person who was trying to restrain him

. Considering al l of the circumstances , we conclude it is not reasonably possible any ambiguity in the instruction affected the verdict , and t herefore the error is harmless beyond a reasonable doubt. ( Samaniego, supra , 172 Cal.App.4th at pp. 1165

- 1166.)
DISPOSITION The judgments are affirmed

.

McDONALD, J.
WE CONCUR:
HALLER, Acting P. J.

O ' ROURKE, J.