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F 3.03 n1 Termination Of Aider And Abettor Liability: Duty Of Defendant To Prevent Commission Of The Crime.
CJ 3.03 informs the jury that the defendant may not terminate liability for a crime which was aided and abetted unless the intent to withdraw is communicated and the defendant does everything in his or her power to prevent commission of the crime. While the requirement that the defendant attempt to prevent the crime was approved in People v. Norton (58) 161 CA2d 399, 403 [327 P2d 87] no modern case has specifically considered this requirement. Moreover, there is no similar requirement for withdrawal from a conspiracy. (See CJ 6.20.) Accordingly, the advisability of this requirement should be reconsidered especially in light of potential adverse policy considerations. (See e.g., FORECITE F 3.03a.)
F 3.03 n2 Termination Of Aider And Abettor Liability: Abortion Of The Agreement Terminates Liability.
The defendant’s liability for agreeing to assist the perpetrator in the commission of a crime is terminated once the original plan is aborted. (People v. Horton (95) 11 C4th 1068, 1115 [47 CR2d 516].) This is so even if the original aider and abettor had knowledge that a crime might be committed by the perpetrator in the future and even though the original aider and abettor was an accessory after the commission of the crime. (Id. at 1115-16.)
F 3.03a
Termination Of Liability For Aider And Abettor:
No Duty To Act Unreasonably In Preventing Commission Of The Crime
*Modify CJ 3.03 to provide as follows [added language is capitalized]:
One who has KNOWINGLY AND WITH CRIMINAL INTENT aided and abetted the commission of a crime may end [his][her] responsibility for the crime by notifying the other party or parties, of whom [he][she] has knowledge, of [his][her] intention to withdraw from the commission of the crime and by doing everything REASONABLE UNDER THE CIRCUMSTANCES in [his][her] power to prevent its commission. It is not necessary that the crime actually have been prevented.
Points and Authorities
CJ 3.03 requires the defendant to do “everything in his or her power” to prevent the commission of the crime. This imposes an unreasonable burden on the person desiring to withdraw from the criminal activity. For example, if an unarmed defendant seeks to withdraw from a robbery before its commission, it might be within the defendant’s power to prevent the crime by throwing himself in front of the armed perpetrator’s weapon. However, such action may well not be reasonable and in fact could be dangerous to both the defendant and innocent victims of the crime. Accordingly, CJ 3.03 should be modified to include the reasonableness language which was included in the 1979 version of the instruction. (See People v. Brigham (89) 216 CA3d 1039, 1045 [265 CR 486].)
Moreover, CJ 3.03 should be modified to reiterate the knowledge and intent elements for aiding and abetting as set forth above. (See former CALJIC No. 91-F(supp); (People v. Lopez (71) 6 C3d 45, 53 [98 CR 44].)
“It is not necessary that the crime actually have been prevented.” (LaFave & Scott, Substantive Criminal Law (1986) §6.8, p. 162.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
Sufficiency Of Showing: See FORECITE F 6.20a [instruction on withdrawal from conspiracy].
F 3.03b
Termination Of Liability For Aider And Abetter:
Defendant Need Only Leave The Jury With A Reasonable Doubt
(See FORECITE F 6.20b [instruction on withdrawal from conspiracy].)
