Can a defendant be convicted of second degree murder as an aider and abettor of the actual perpetrator?

"A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime but also of any other crime the perpetrator actually commits that is a natural and probable consequence of the intended crime." (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.) "The factual determination whether a crime committed by the perpetrator was a reasonably foreseeable consequence of the crime or crimes originally contemplated is not founded on the aider and abettor's subjective view of what might occur. Rather, liability is based on an 'objective analysis of causation'; i.e., whether a reasonable person under like circumstances would recognize that the crime was a

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reasonably foreseeable consequence of the act aided and abetted. The finding will depend on the circumstances surrounding the conduct of both the perpetrator and the aider and abettor." (Citation omitted.) (People v. Woods (1992) 8 Cal.App.4th 1570, 1587.)

"The fact the perpetrator cannot be found guilty of both a greater and a necessarily included offense should not preclude an aider and abettor from being found guilty of an uncharged, necessarily included offense when the lesser, but not the greater, offense is a reasonably foreseeable consequence of the crime originally aided and abetted. [] Therefore, in determining aider and abettor liability for crimes of the perpetrator beyond the act originally contemplated, the jury must be permitted to consider uncharged, necessarily included offenses where the facts would support a determination that the greater crime was not a reasonably foreseeable consequence but the lesser offense was such a consequence." (Citations omitted.) (People v. Woods, supra, 8 Cal.App.4th at pp. 1587-1588.) The court opined that without an instruction on a lesser offense the jury "would be provided with an unwarranted all-or-nothing choice with respect to the aider and abettor" and might be reluctant to acquit the defendant of the greater crime if left without the alternative of a guilty verdict for the lesser crime. (Id. at p. 1589.)

In Woods, one defendant had been convicted of first degree murder as an aider and abettor of another defendant who after assaulting several victims had shot a witness. When the jury asked if the defendant could be found guilty of second degree murder when the actual perpetrator was determined to be guilty of first degree murder, the trial court answered, "'No.'" (People v. Woods, supra, 8 Cal.App.4th at p. 1579.) The appellate court reversed his conviction on the ground the jury might have found him guilty to avoid absolving him of any responsibility for the killing, despite evidence from which it could conclude that only second degree murder was a reasonably foreseeable consequence of the assaults. (Id. at pp. 1577-1578, 1595.)