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1st degree murder conviction for aiding and abetting overturned

In early 2006, 20-year-old Nath Ouch was murdered outside a southeast Fresno apartment building where she had been visiting relatives. She was eight months pregnant.

If that were not tragic enough, law enforcement concluded that she had been an innocent bystander in a gang war between groups known as the Asian Boyz and the Tiny Rascal Gang. The apartment building, according to prosecutors, was a Tiny Rascal Gang hangout, and police 38 spent shell casings strewn about the next morning.

The next year, Asian Boyz member Sokmorn Chea and some other members were convicted of the murder. Chea apparently admitted firing 30 rounds from an AK-47. Another alleged Asian Boyz member, Jose Angel Perez, had been there that night and fired eight rounds from a handgun. Prosecutors wanted to charge him with aiding and abetting the crime. Unfortunately for them, Perez moved to Mexico for five years and couldn't be tried until 2014.

Perez was convicted of first-degree premeditated murder and sentenced to life in prison without the possibility of parole. He was convicted even though Ms. Ouch's death was caused by a bullet from an AK-47. He was convicted even though he was drunk and high on Ecstasy and didn't know what he was doing. He was convicted even though he did not intend to kill Ms. Ouch or anybody else -- his memory is that he fired into the air.

Is someone who aids and abets a crime just as guilty as the main perpetrator?

As defined in California law, aiding and abetting (encouraging) can be charged based on a wide variety of actions undertaken before, during or after a crime has been committed. It can mean helping someone plan the crime, for example, egging them on to commit it, ordering, commanding or coercing them to do it, driving a getaway car, hiding evidence, doing the books for a criminal organization, or helping the perpetrator avoid arrest or punishment. Someone who does these things is known as an accomplice or an accessory.

Traditionally, the law has considered accomplices to be just as guilty as the principal perpetrator if the outcome was a reasonably foreseeable consequence of the crime the accomplice was helping with. In other words, if the perpetrator is convicted of armed robbery, an unarmed accomplice can also be convicted of armed robbery, too -- as long as the armed robbery was reasonably foreseeable to the accomplice.

Sometimes, however, that simple rule is not fair. For example, the unarmed accomplice might only have agreed to help with a simple robbery and gets completely surprised when the perpetrator pulls out a gun. If the accomplice genuinely had no idea about the gun and had no opportunity to pull out of the criminal scheme, it is not fair to convict him of armed robbery.

To apply fairness and justice to accessory crimes, the theory of aiding and abetting has been fine-tuned over time by appellate court rulings, and one of those arose in Perez's case. In 2014, the California Supreme Court issued a ruling in People v. Chiu that someone who aids and abets a first-degree premeditated murder is not automatically as guilty as the main perpetrator.

In cases of first-degree premeditated murder, it is not enough for the murder to be a reasonably foreseeable consequence of the planned crime; the premeditation must be reasonably foreseeable, too.

One the night of Ms. Ouch's death, Chea, Perez and other Asian Boyz members allegedly intended to shoot bullets at rival gang members, so it was certainly foreseeable that someone might die. The judge mistakenly told the jury that those facts were enough to convict both men, even though Perez had no intention of killing anyone, let alone an innocent bystander. The judge's incorrect instructions meant that Perez's conviction was wrongful.

Despite the success of his appeal, Perez will probably not walk free. The appeals court, citing State v. Chiu, ruled that he can be retried. He also has the option of pleading guilty to second-degree murder.

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