SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 401.6 AIDING AND ABETTING: INTENDED CRIMES-DEFENCE THEORIES
TABLE OF CONTENTS
F 401.6 Inst 1 Aiding And Abetting: Withdrawal—Correction Of Burden Shifting Language
F 401.6 Inst 2 Giving Assistance Without Sharing The Perpetrator’s Purpose And Intent Establishes Liability Only As An Accessory, Not As An Accomplice
F 401.6 Inst 3 Presence Or Act Of Defendant Which Actually Aids The Perpetrator
F 401.6 Inst 4 Aider And Abettor: Self-Defense Or Defense Of Others
F 401.6 Inst 5 Applicability Of Imperfect Self-Defense And/Or Heat Of Passion To Person Charged With Aiding And Abetting Murder
F 401.6 Inst 6 Aiding And Abetting: Withdrawal—Individual Juror Determination
F 401.6 Inst 7 Aiding And Abetting: Withdrawal—Improper Shifting Of Burden
F 401.6 Inst 8 Aiding And Abetting: Withdrawal—Modification Of Burden Shifting Language
F 401.6 Inst 9 Post-Crime Assistance Is Not Aiding And Abetting (PC 31)
F 401.6 Inst 10 No Legal Duty To Report Crime
F 401.6 Inst 11 Aiding And Abetting: “Feigned Accomplice” Defense
F 401.6 Inst 12 (a-d) Presence And Knowledge Insufficient For Aiding And Abetting Liability
F 401.6 Inst 13 Aiding And Abetting: “Feigned Perpetrator” Defense
F 401.6 Inst 14 Termination Of Liability For Aider And Abettor: Defendant Need Only Leave The Jury With A Reasonable Doubt
F 401.6 Inst 15 Robbery: After Acquired Intent Of Aider And Abettor—Element And/Or Pinpoint
F 401.6 Inst 16 Gang Membership Insufficient To Prove Aider And Abettor Liability
F 401.6 Inst 17 Buyer-Seller Transaction Insufficient To Establish Aiding And Abetting
F 401.6 Inst 18 Buyer-Seller Relationship: Factors To Consider
F 401.6 Inst 19 Failure To Prevent Commission Of A Crime Is Not Aiding And Abetting
Return to Series 400 Table of Contents.
F 401.6 Inst 1 Aiding And Abetting: Withdrawal—Correction Of Burden Shifting Language
*Replace withdrawal instruction in CC 401 with the following:
[To warrant conviction under an aiding and abetting theory] [T]he prosecution must prove that the defendant aided and abetted __________ <insert crime[s] charged>.
The defendant contends that (he/she) did not aid and abet (this/these) crime[s] and that [he] [she] withdrew before the crime was [allegedly] committed.
The defendant does not need to prove that [he] [she] withdrew. If you have a reasonable doubt about whether the defendant withdrew, you must find [him] [her] not guilty.p>
For the purposes of this instruction “withdraw” means that the withdrawing person:p>
(1) Notified everyone else known to the withdrawing person to be involved in the commission of the [alleged] crime that he or she was no longer participating;
AND
(2) Did everything reasonably within his or her power to prevent the crime from being committed but he or she did not have to actually prevent the crime from being committed.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Burden Shifting Language—The CALCRIM instruction on withdrawal contains contradictory language which could mislead the jurors into shifting the burden of proof to the defendant. The final paragraph correctly places the burden on the prosecution to disprove withdrawal. However, an earlier paragraph implies to the contrary by stating that a person is not guilty A if he or she withdraws … .” Contradictory or conflicting instructions should not be given. (See Francis v. Franklin (1985) 471 US 307 [85 LEd2d 344; 105 SCt 1965]; see also FORECITE F 100.1 Inst 1.) Therefore, the above instruction, which follows the format of CALCIM 3400 [Alibi] is preferable.
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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
FORECITE CG 7.2.1 [Conflicting Or Contradictory Instructions]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 401.6 Inst 2 Giving Assistance Without Sharing The Perpetrator’s Purpose And Intent Establishes Liability Only As An Accessory, Not As An Accomplice</span>
*Add to CC 401:
You may not find [______________ <name of defendant>] guilty as an aider or abettor unless [he] [she]:
1. Actually knew and shared the full extent of [the [alleged] perpetrator‘s] [______________ <name of alleged perpetrator>] criminal intent;
2. Actually promoted, encouraged, or assisted [the [alleged] perpetrator] [______________ <name of perpetrator>]; and
3. Did so with the intent and purpose of advancing [the [alleged] perpetrator‘s] [______________ <name of perpetrator>] successful commission of the alleged [______________ <name of target offense>].
It is not sufficient if the person simply gives assistance with knowledge of the perpetrator’s criminal purpose. Merely giving assistance without sharing the perpetrator’s purpose and intent establishes liability only as an accessory, not as an accomplice.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Requirement Of Shared Criminal Intent—An accomplice need not share in the actual perpetration of a crime to be chargeable as a principal therein; liability as an accomplice to a crime may be based on having aided and abetted its commission. (People v. Beeman (1984) 35 C3d 547.) However, “an aider and abettor is chargeable as a principal only to the extent he or she actually knows and shares the full extent of the perpetrator‘s specific criminal intent, and actively promotes, encourages, or assists the perpetrator with the intent and purpose of advancing the perpetrator‘s successful commission of the target offense.” (People v. Snyder (2003) 112 CA4th 1200, 1220, citing People v. Beeman, 35 C3d at 560.) “It is not sufficient if the person simply gives assistance with knowledge of the perpetrator‘s criminal purpose. Merely giving assistance without sharing the perpetrator‘s purpose and intent establishes liability only as an accessory, not as an accomplice.” (Snyder, 112 CA4th at 1220, citing People v. Sully (1991) 53 C3d 1195, 1227 [“An aider and abettor is chargeable as a principal, but his liability as such depends on whether he promotes, encourages, or assists the perpetrator and shares the perpetrator‘s criminal purpose. [Citation.] It is not sufficient that he merely gives assistance with knowledge of the perpetrator‘s criminal purpose” ]; People v. Stankewitz (1990) 51 C3d 72, 90 [presence at scene of crime or failure to prevent commission of crime insufficient to establish aiding and abetting]; People v. Tewksbury (1976) 15 C3d 953, 960 [“[c]riminal liability as a principal attaches to those who aid in the commission of a crime only if they also share in the criminal intent” ]; People v. Hoover (1974) 12 C3d 875, 879 [assisting principal to escape does not result in liability as principal or aider and abettor, but merely as accessory].) “A mere accessory is not liable as an accomplice [citation to People v. Horton (1995) 11 C4th 1068, 1114], and a court is not obligated to give an accomplice instruction when the evidence establishes that the witness was merely an accessory.” (Synder, 112 CA4th 1220, citing People v. Soto (1999) 74 CA4th 1099, 1101.)
See also FORECITE F 3.00b.
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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 3.01t.
F 401.6 Inst 3 Presence Or Act Of Defendant Which Actually Aids The Perpetrator
*Add to CC 401:
Alternative a [Action or presence]:
Even if the defendant‘s [presence at the scene of the alleged crime] [and/or] [act of _____________] actually aided, facilitated, promoted, encouraged or instigated [the perpetrator’s] [_______________’s <name of perpetrator>] commission of the crime, this is not sufficient by itself to make the defendant an aider and abettor.
Alternative b [Action or presence plus knowledge]:
Even if the defendant knew that (his/her) [presence at the scene of the alleged crime] [and/or] [act of _____________] actually aided, facilitated, promoted, encouraged or instigated [the perpetrator‘s] [_______________‘s <name of perpetrator>] commission of the crime, this is not sufficient by itself to make the defendant 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.]
Merely Giving Assistance With Knowledge Not Sufficient—“An aider and abettor is chargeable as a principal, but his liability as such depends on whether he promotes, encourages, or assists the perpetrator and shares the perpetrator‘s criminal purpose. [Citation.] It is not sufficient that he merely gives assistance with knowledge of the perpetrator‘s criminal purpose.” (People v. Sully (1991) 53 C3d 1195, 1227; see also FORECITE F 401.6 Inst 2.)
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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 401.6 Inst 4 Aider And Abettor: Self-Defense Or Defense Of Others
*Add to CC 401:
A person who in [self-defense] [defense of another] facilitates or encourages [a battery] [an assault] [a killing] [__________] by another is not guilty of [battery] [assault] [unlawful homicide] [__________].
Therefore, in deciding whether ___________________ <name of alleged aider and abettor> is guilty of [assault] [murder], consider any evidence of _________________ <e.g., self-defense, defense of another> from [his] [her] perspective.
Unless the prosecution has proven beyond a reasonable doubt that ________________ <name of alleged aider and abettor> did not act in [self-defense] [defense of another], you must find ___________________ <name of alleged aider and abettor> not guilty. This is so even if ___________________‘s <name of alleged aider and abettor> acts actually facilitated or encouraged the commission of the offense and even though you [believer] [have found] that ___________________ <name of alleged perpetrator> is guilty of [voluntary manslaughter] [or] [murder] [or] [_________________].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Self-Defense As To Perpetrator Precludes Aider And Abettor Liability—See FORECITE F 401.5 Inst 7.
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.]
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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTE: Full instruction on the relevant defense theory (e.g., heat of passion or imperfect self-defense should be given elsewhere.
CALJIC NOTE: See FORECITE F 3.01o.
F 401.6 Inst 5 Applicability Of Imperfect Self-Defense And/Or Heat Of Passion To Person Charged With Aiding And Abetting Murder
*Add to CC 401:
To be guilty of the crime committed by the perpetrator the alleged aider and abettor must both:
1) intend to commit, facilitate or encourage the act committed by the perpetrator; and
2) share the perpetrator‘s intent.
This means that the alleged perpetrator must have actually formed the mental state of malice aforethought during or before the alleged acts of aiding and abetting.
In deciding whether ______________ <name of alleged aider and abettor> acted with malice aforethought consider any evidence of ___________________ <e.g., heat of passion, imperfect self-defense, imperfect defense of another>.
[Here define the defense at issue.]
Unless the prosecution has proven beyond a reasonable doubt that ______________ <name of alleged aider and abettor> did not act ________________ <e.g., in the heat of passion, under a good faith belief that he/she needed to defend himself/herself/another>, you must find the defendant guilty of voluntary manslaughter rather than murder. This is so, even if you [believe] [have found] _________________ <name of alleged perpetrator> guilty of murder.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Applicability Of Perpetrator’s Imperfect Self-Defense Or Heat Of Passion— See FORECITE F 401.5 Inst 7.
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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTE: Full instruction on the relevant defense theory (e.g., heat of passion or imperfect self-defense should be given elsewhere).
CALJIC NOTE: See FORECITE F 3.01p.
F 401.6 Inst 6 Aiding And Abetting: Withdrawal—Individual Juror Determination
*Add to CC 401:
No juror may vote to convict under an aiding and abetting theory unless that juror has found all the required elements for aiding and abetting including that the defendant did not withdraw.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Individual Juror Determination— Each juror must decide the issues individually. (See FORECITE F 100.7 Inst 2.)
Moreover, because the jurors do not need to unanimously agree between aiding and abetting and other theories of liability (see FORECITE F 3500.1 Note 7(A)), the instructions should assure that each individual juror finds every required element before relying on a particular theory of liability to convict. (See generally FORECITE F 3500.1 Note 4; F 3500.1 Note 7.)
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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 12.2 [Duplicity/Unanimity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 401.6 Inst 7 Aiding And Abetting: Withdrawal—Improper Shifting Of Burden
*Modify CC 401, paragraph5, sentence 1, as follows
[A person who aids and abets a crime is not guilty of that crime if unless he or she failed to withdraws before the crime is committed.
Points and Authorities
See FORECITE F 505.2 Inst 1.
F 401.6 Inst 8 Aiding And Abetting: Withdrawal— Modification Of Burden Shifting Language
*Replace CC 401, paragraph 5, sentence 2 and Elements 1 & 2 with the following:
This requires the prosecution to prove beyond a reasonable doubt that:
1) The person failed to notify everyone else he or she knew was involved in the commission of the crime that he or she was no longer participating or the person failed to provide such notice early enough to prevent the commission of the crime;
OR
2) The person failed to do everything within his or her power to prevent the crime from being committed even though he or she did not actually prevent the crime.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—CALCRIM 401 improperly employs burden shifting language, e.g., “if he/she withdraws . . .” (See FORECITE F 404.2 Inst 1.)
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.]
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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CLICK HERE FOR F 401.6 INST 9-18 TEXT.
