Can a defendant be found guilty of aiding and abetting a murder if the actual perpetrator is convicted of the same crime?

contended the trial court's instruction on the natural and probable consequences doctrine did not adequately inform the jury that to find guilt on an aiding and abetting theory under the natural and probable consequence doctrine it had to find that the perpetrator's premeditation was a natural and probable consequence of the target crimerobbery. (Id. at p. 668.) Citing their earlier decision in People v. Woods (1992) 8 Cal.App.4th 1570, our colleagues in the Third District agreed.

In People v. Woods, the defendant and a companion assaulted two people in an apartment. When they left the apartment, the companion shot at the occupants of a car on the street, killing one occupant and injuring another. During trial, the jury asked, "'Can a defendant be found guilty of aiding and abetting a murder in the second degree if the actual perpetrator of the same murder is determined to be guilty of murder in the first degree?'" (8 Cal.App.4th at p. 1579.) The trial court answered, "No." In its majority opinion (over Justice Spark's dissent), the Third District held this answer was prejudicial error, stating, "If the evidence raises a question whether the offense charged against the aider and abettor is a reasonably foreseeable consequence of the criminal act originally aided and abetted but would support a finding that a necessarily included offense committed by the perpetrator was such a consequence, the trial court has a duty to instruct sua sponte on the necessarily included offense as part of the jury instructions on aider and abettor liability. Otherwise, . . . the jury would be given an unwarranted, all-or-nothing choice concerning aider and abettor liability." (Id. at p. 1593.)