How have courts interpreted the natural and probable consequences doctrine in the context of an attempted murder case?

Expanding on its holding in People v. Woods, the Third District in People v. Hart held the trial court must instruct not only on the foreseeability of necessarily included offenses committed by the perpetrator (in addition to the charged offense), it must instruct on the foreseeability of different mentes reae that could lead to different levels of guilt. Under the facts before it, the court stated, the jury could have concluded that attempted premeditated murder was not a natural and probable consequence of the attempted robberyonly attempted unpremeditated murder was, and "the instructions were insufficient to inform the jury concerning its duty in this regard." (176 Cal.App.4th at p. 670.)

We reached a different conclusion on analogous facts in People v. Cummins (2005) 127 Cal.App.4th 667. There, the defendant and a companion robbed and carjacked a driver, then either defendant or the companion pushed the victim off a cliff. The defendant was convicted of attempted premeditated murder as an aider and abettor under the natural and probable consequences doctrine. On appeal, he claimed the trial court should have instructed the jury that to find him guilty of attempted premeditated murder as an aider and abettor it had to find that the perpetrator's premeditation was a natural and probable consequence of the target crimes, robbery and carjacking. We disagreed, holding that the jury need be instructed only that the act of attempted murder itself was a natural and probable consequence of the target crimes, not that the

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perpetrator's mental state also had to be a natural and probable consequence. (Id. at pp. 680-681.)