SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 401 AIDING AND ABETTING: INTENDED CRIMES—ELEMENTS
TABLE OF CONTENTS
F 401.1 AIDING AND ABETTING: INTENDED CRIMES—TITLE AND IDENTIFICATION OF PARTIES
F 401.1 Inst 1 Aiding And Abetting: Intended Crimes—Title
F 401.1 Inst 2 Identification Of Prosecution And Defendant
F 401.2 AIDING AND ABETTING: INTENDED CRIMES—TAILORING TO FACTS: PERSONS, PLACES, THINGS AND THEORIES
F 401.2 Inst 1 Aiding And Abetting: Intended Crimes—Identification Of Parties
F 401.2 Inst 2 Aiding And Abetting: Tailoring To Charged Crime
F 401.2 Inst 3 No Presumption That Alleged Perpetrator Committed The Alleged Crime
F 401.3 AIDING AND ABETTING: INTENDED CRIMES—LANGUAGE THAT IS ARGUMENTATIVE, CONFUSING, ETC.
F 401.3 Inst 1 No Presumption That Alleged Perpetrator Committed The Alleged Crime
F 401.3 Inst 2 Instruction On What Prosecution Does Not Need To Prove As Argumentative And Duplicative
F 401.3 Inst 3 Aiding And Abetting: What The Prosecution Does Not Need To Prove—Instruction Should Be Balanced
F 401.3 Inst 4 Jurors Should Consider Presence Or Absence Of The Defendant As To Aiding And Abetting
F 401.4 AIDING AND ABETTING: INTENDED CRIMES—BURDEN OF PROOF ISSUES
F 401.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 401.4 Inst 2 Aiding And Abetting: Withdrawal— Modification Of Burden Shifting Language
F 401.4 Inst 3 Termination Of Liability For Aider And Abettor: Defendant Need Only Leave The Jury With A Reasonable Doubt
F 401.4 Inst 4 Prosecution Burden Should Be Expressly Stated
Return to Series 400 Table of Contents.
F 401.1 Aiding And Abetting: Intended Crimes—Title And Identification Of Parties
F 401.1 Inst 1 Aiding And Abetting: Intended Crimes—Title
See generally FORECITE F 200.1.2 Note 2; CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004
F 401.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 401.2 Aiding And Abetting: Intended Crimes—Tailoring To Facts: Persons, Places, Things And Theories
F 401.2 Inst 1 Aiding And Abetting: Intended Crimes>—Identification Of Parties
See FORECITE F 100.2 Note 1; see also CALCRIM Motion Bank # CCM-005 [Motion To Use The Defendant’s Name Instead Of The Term “Defendant”]; CALCRIM Motion Bank # CCM-006 [Motion To Use “The Government” Or “The State” In Lieu Of “The People”].
F 401.2 Inst 2Aiding And Abetting: Tailoring To Charged Crime
*Modify CC 401, paragraph 1, sentence 1, as follows [added language is underlined; deleted language is stricken]:
To prove that the defendant is guilty of a crime _____________ <insert charged crime[s]> based on aiding and abetting that crime, the People prosecution must prove that:
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Tailoring—See FORECITE F 400.2 Inst 2.
Compare e.g., CALCRIM 402.
In the interests of instructional precision and due process notice the jurors should be instructed in the context of the specific crime or crimes which are charged. (See generally Sheppard v. Rees (9th Cir. 1990) 909 F2d 1234.)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
F 401.2 Inst 3 No Presumption That Alleged Perpetrator Committed The Alleged Crime
See FORECITE F 401.3 Inst 1.
F 401.3 Aiding And Abetting: Intended CrimesC Language That Is Argumentative, Confusing, Etc.
F 401.3 Inst 1 No Presumption That Alleged Perpetrator Committed The Alleged Crime
*Modify CC 401, paragraph 1, Elements 1-4, as follows [added language is underlined]:
[Change perpetrator to [alleged perpetrator] [_____________ <name of perpetrator>]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Use Of “Alleged: To Avoid Improper Comment On The Evidence” – See FORECITE F 103.2 Inst 1.
F 401.3 Inst 2 Instruction On What Prosecution Does Not Need To Prove As Argumentative And Duplicative
*Modify CC 401 as follows:
Delete paragraph 3 which states:
If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Improper To Instruct On Matters That The Prosecution Does Not Need To Prove—Instructions which inform the jurors regarding matters which the prosecution need not prove are improperly argumentative an duplicative. (See FORECITE F 416.3 Inst 4.)
STRATEGY NOTE AND CAVEATC Before making this request counsel should consider whether the defense will be requesting analogous CALCRIM instructions which may be favorable to the defense. (E.g., CC 401 [presence at scene not alone sufficient for aider and abettor liability].) Successfully objecting to instructions as to what facts the prosecution does not need to prove may open the door to prosecution’s objection to instructions as to what facts do not by themselves constitute the crime.
F 401.3 Inst 3 Aiding And Abetting: What The Prosecution Does Not Need To Prove—Instruction Should Be Balanced
*Add to CC 401, paragraph 3 if request to delete is denied:
However, [any evidence that] [the fact that] the defendant was not present is a factor to consider in attempting to decide whether the prosecution has proved beyond a reasonable doubt that the defendant was an aider and abettor.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Matters Not Necessary To Prove: Need For Balance—If the jurors are instructed on specific factual matters which the prosecution does not need to prove (but see FORECITE F 401.3 Inst 2), then the instruction should be balanced and clarified to assure the jurors do consider the specified matter in deciding whether the prosecution has proven all essential facts and elements of the charged offense. (See Martin v. Ohio (1987) 480 US 228 [94 LEd2d 267; 107 SCt 1098].)
Also, without such language the instruction will improperly favor the prosecution in violation of the requirement that the instructions be balanced otherwise the instruction will be improperly argumentative. (See Cool v. United States (1972) 409 US 100, 103 n. 4 [34 LEd2d 335; 93 SCt 354] [reversible error to instruct jury that it may convict solely on the basis of accomplice testimony but not that it may acquit based on the accomplice testimony]; People v. Moore (1954) 43 C2d 517, 526-27 [275 P2d 485] [“There should be absolute impartiality as between the People and the defendant in the matter of instructions” ]; Reagan v. United States (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709]; see also Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82].)
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 401.3 Inst 4 Jurors Should Consider Presence Or Absence Of The Defendant As To Aiding And Abetting
*Replace CC 401, paragraph 3, with the following:
The defendant’s presence or absence from the scene of the [alleged] crime is a factor to consider, in light of all the other evidence, in attempt to decide if the prosecution has proved beyond a reasonable doubt that the defendant is an aider and abettor.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Need For Balance—While absence from the scene of the crime does not preclude aiding and abetting liability, it is a factor which may logically militate in favor of a defense theory of non-involvement. (See People v. Battle (2011) 198 CA4th 50, 84; see also In re Lynette G. (1976) 54 CA3d 1087 [“Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, flight, and conduct before and after the offense”]; Martin v. Ohio (1987) 480 US 228 [94 LEd2d 267; 107 SCt 1098].) Hence, CALCRIM 401, paragraph 3, improperly limits the jurors’ consideration to the defendant’s alleged presence at the scene. (See generally Wardius v. Oregon (1973) 412 US 470 [37 LEd2d82; 93 SCt 2208]; see also FORECITE F 401.3 Inst 3.)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 401.4 Aiding And Abetting: Intended Crimes—Burden Of Proof Issues
F 401.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 401.4 Inst 2 Aiding And Abetting: Withdrawal—Modification Of Burden Shifting Language
See FORECITE F 401.6 Inst 8.
F 401.4 Inst 3 Termination Of Liability For Aider And Abettor: Defendant Need Only Leave The Jury With A Reasonable Doubt
(See FORECITE F 420.4 Inst 3 [instruction on withdrawal from conspiracy].)
CALJIC NOTE: See FORECITE F 3.03b.
F 401.4 Inst 4Prosecution Burden Should Be Expressly Stated
*Modify CC 401, paragraph 3, as follows:
If all of these the above requirements are proved beyond a reasonable doubt by the prosecution, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.
Points and Authorities
See FORECITE F 401.5 Inst 1.
