What is the test for a defendant to be found liable for the sexual assault of his wife during a home invasion?

All of the witnesses agreed that the driver (Corral) forced the wife to orally copulate him at the levee. They did not agree on which of the other men sexually assaulted her as they drove there. However, viewing the evidence in the light most favorable to the verdict, a reasonable fact finder could conclude from the evidence that although only Corral and two other men personally sexually assaulted the wife, all five either actively participated in the sexual assaults or were " 'concerned' " with their commission. (See People v. Nguyen (1993) 21 Cal.App.4th 518, 529 [however slight the " 'concern' " may have been, liability attaches if a defendant with the requisite state of mind directly or indirectly aids the actual perpetrator of a sex crime].)

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Whether sex crimes were the natural and probable consequence of the other charged crimes is a question of fact for the jury. (People v. Nguyen, supra, 21 Cal.App.4th at p. 531.) Even when sex crimes are committed " 'on the spur of the moment,' " as defendants argue happened here, aider and abettor liability can attach instantaneously, and rape is not uncommon in home invasion robberies, particularly where the intruders bring sufficient numbers to overcome any potential resistance. (Id. at pp. 532-533.) The test for liability is "whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted." (Id. at p. 535.) A reasonable person would expect that five men forcing their way into an apartment at 1:00 a.m. wielding bats and canes might encounter a woman who could be forced to submit to whatever demands they might make of her, including sexual violence.

If it was not obvious when the five men broke down the door of the wife's apartment that sex crimes were foreseeable, it certainly became foreseeable as they dragged her out of her bed in her nightgown and as they later drove her to a remote location. As the likelihood of sexual assault escalates from possible or likely to certain, and as a group of assailants continues to aid and assist the endeavor, "it will not do" for them to later assert "they were concerned only with robbery and bear no responsibility for the sexual assault." (People v. Nguyen, supra, 21 Cal.App.4th at p. 534.)

Aider and abettor liability attaches where (1) the aider and abettor knows the unlawful purpose of the direct perpetrator, (2) the aider and abettor intends to commit, encourage or facilitate the commission of the offense, and (3) the aider and abettor's acts or advice aids, promotes, encourages or instigates the commission of the offense. (People v. Beeman (1984) 35 Cal.3d 547, 561.) An aider and abettor's guilt is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and mental state. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)

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