In what circumstances will a jury be able to determine whether an accomplice is guilty of second degree murder under the natural and probable consequences doctrine?

Until directed otherwise, we will reaffirm our holding in People v. Cummins. Although asking the jury to distinguish the foreseeability of one mental state from the foreseeability of another in an effort to determine whether an accomplice is guilty of a greater or lesser offense would perhaps serve the interests of lenity and analytical symmetry, as a practical matter, any mental state accompanying a foreseeable act is itself foreseeable. We are hard pressed to imagine facts under which a jury could conclude that a perpetrator's act was a natural and probable consequence of a target crime but any particular mental state when committing the act was not. We agree with the majority in People v. Woods that a jury must be instructed on the foreseeability of lesser included offenses, but only when the foreseeability of the lesser and greater offenses is distinguishable. For example, on proper facts a perpetrator's gun use might have been foreseeable but not his use of armor piercing ammunition, and thus an accomplice could be guilty of second degree murder while the perpetrator was guilty of murder in the first degree. ( 189.) But in the main, all states of mind are equally foreseeable. When only mens rea distinguishes one offense from another, no instruction on the foreseeability of different states of mind need be given.

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Such is the case here. Toledo was a willing and active participant in all the steps that led to the 2005 shootings. Although he was not in the lead car, he admittedly facilitated the shooting by driving the backup car. The jury was properly instructed on the elements of attempted premeditated murder and the natural and probable consequences doctrine and, based on the evidence, found the 2005 shooting to be willful, deliberate, premeditated, and foreseeable. No further instruction was required. (People v. Cummins, supra, 127 Cal.App.4th 680-681.)