THE “NATURAL AND PROBABLE CONSEQUENCES” DOCTRINE CANNOT BE EXTENDED TO PUNISH DEFENDANT FOR SEPARATE CONSPIRACIES ENTERED INTO WITHOUT HIS KNOWLEDGE WHILE INCARCERATED AND UNABLE TO OTHERWISE PARTICIPATE
It is well-settled that “each member of a conspiracy is criminally responsible for the acts of fellow conspirators committed in furtherance of, and which follow as a natural and probable consequence of, the conspiracy, even though such acts were not intended by the conspirators as a part of their common unlawful design.” (People v. Zielesch (2009) 179 Cal.App.4th 731, 739 [citing People v. Medina (2009) 46 Cal.4th 913, 920]) This venerable principle is firmly established. (People v. Kauffman (1907) 152 Cal. 331.) Such a criminal act is a “natural and probable consequence” of the conspiracy if the unplanned crime was “reasonably foreseeable.” (Zielesch, supra, 179 Cal.App.4th at p. 739.) This is typically a question of fact for a jury. (People v. Luparello (1986) 187 Cal.App.3d 410, 443.) Two aspects of this case, however, require the court to dismiss Counts 30-33 with respect to Mora before they reach a jury.
First of all, counsel was unable to find a single case in which any court, state or federal, sustained a conviction for a subordinate conspiracy—as opposed to a substantive offense—premised solely on the “natural and probable consequences” doctrine. Instead, the natural adn probable consequences doctrine has been applied exclusively to impose liability for substantive crimes committed by co-conspirators in the course of carrying out the conspiracy. An expansion of the rule, allowing the People to charge independent conspiracies based purely on their assertion that these subordinate conspiracies were natural and probable consequences of the primary conspiracy, is wholly unsupported by case law.
Second, while the universe of reasonably foreseeable substantive offenses arising out of the primary conspiracy is admittedly large, it cannot possibly include the subordinate conspiracies charged. It simply defies common sense to assert that a natural and probable consequence of the primary conspiracy (purportedly aimed at collecting taxes and selling drugs for the benefit of the Mexican Mafia) would be for the same actors—with the same aims—to enter in to a new, independent, separate conspiracy to commit a crime in furtherance of the primary conspiracy. Such a claim is not just unreasonable, it is flatly illogical.
Alternatively phrased, it appears the People’s theory is that this case involved a conspiracy to engage in conspiracies. There is no support in the law for such a prosecution. In fact, there is authority to the contrary. (See People v. Johnson (2012) 205 Cal.App.4th 594, 605 [overturning conviction for conspiracy to participate in a criminal street gang (§ 186.22(a)), reasoning that “the general conspiracy statute could not be applied to [§ 186.22(a)] because a criminal street gang was itself a species of conspiracy”].)