SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 440 ACCESSORIES
TABLE OF CONTENTS
F 440 Inst 1 Failure Or Refusal To Give Information Not Alone Sufficient For Accessory Liability
F 440 Note 1 Accessories: CALCRIM Cross References And Research Notes
F 440 Note 2 Whether Perpetrator May Be Convicted As Accessory
Return to Series 400 Table of Contents.
F 440 Inst 1 Failure Or Refusal To Give Information Not Alone Sufficient For Accessory Liability
*Add to CC 440:
Alternative a:
You may not consider for any purpose, including assessing the credibility of the defendant’s testimony, evidence that the defendant refused to talk with the police. A citizen has no obligation to talk with or affirmatively assist the police.
Alternative b:
A person has no duty to provide information or assistance to the police.
Alternative c [CALCRIM 361 Format]:
It is the right of every person to enjoy the use of public streets, buildings, parks and other conveniences without unwarranted interference or harassment by agents of the law. Mere ignorance of the police or failure to cooperate with them is not a crime.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Citizen Has No Duty To Give Cooperate With The Police Or To Give Them Information – Illinois v. Wardlow (2000) 528 US 119, 123-25 [145 LEd2d 570; 120 SCt 673, 676] reiterated that a person’s refusal to cooperate with the police, without more, does not justify stopping or detaining the individual. (See also Florida v. Royer (83) 460 US 491, 498 [75 LEd2d 229; 103 SCt 1319]; Florida v. Bostick (91) 501 US 429, 437 [115 LEd2d 389; 111 SCt 2382.) Thus, if a person simply ignores the police officer and goes about his or her business, that refusal to cooperate – without more – will not justify stopping or detaining the person. However, if the person runs away from the police in “headlong flight” then a detention may be justified. (Wardlow, 120 SCt at 676; see also People v. Gonzales (1992) 7 CA4th 381, 384-86 [cause to detain required to prevent passenger of a lawfully stopped car from opening his door and leaving].) Accordingly, the jury should not be permitted to convict a person of a crime based on that person’s lawful exercise of his or her constitutional rights. (See generally, Doyle v. Ohio (1976) 426 US 610 [49 LEd2d 91; 96 SCt 2240] [improper comment on defendant’s exercise of Miranda rights]; see also Wainright v. Greenfield (1986) 474 US 284 [88 LEd2d 623; 106 SCt 634]; People v. Ridley (1965) 63 C2d 671, 676; People v. Belmontes (1988) 45 C3d 744, 785-87; Killian v. Poole (9th Cir. 2002) 282 F3d 1204, 1211.)
See also FORECITE F 2.20i & j; F 16.108b.
No Accessory Liability Based on Solely On Failure Or Refusal To Give Information – Certain lies or “affirmative falsehoods” to authorities, when made with the requisite knowledge and intent, will constitute the aid or concealment contemplated by PC 32. For example, in People v. Duty (1969) 269 CA2d 97, 101-04, the court upheld the defendant’s conviction for being an accessory to a principal’s crime of arson, based on the defendant’s false statements to authorities that the principal was with him and nowhere near the vicinity of the crime when it was committed. The defendant thus provided a “false alibi” for the principal, knowing she was a suspect in the arson and with the specific intent that she avoid prosecution for the crime. (See also In re I. M. (2005) 125 CA4th 1195, 1203-1205 [accessory conviction upheld based on defendant’s false statements to police suggesting that the principal shot a victim in self-defense or in the heat of passion].)
In contrast to affirmative falsehoods, the mere passive failure to reveal a crime, the refusal to give information, or the denial of knowledge motivated by self-interest does not constitute the crime of accessory. (See People v. Plengsangtip (2007) 148 CA4th 825, 836)
“Thus, a person generally does not have an obligation to volunteer information to police or to speak with police about a crime.” (People v. Plengsangtip, 148 CA4th at 837.)
However, accessory liability may be found if a person does speak to the police and affirmatively misrepresents facts concerning the crime, with knowledge the principal committed the crime and with the intent that the principal avoid or escape from arrest, trial, conviction, or punishment. (Ibid; see also Crayton v Superior Court (1985) 165 CA3d 443, 45; Duty, 269 CA2d at 103-04.)
Furthermore, in determining whether a defendant had the requisite knowledge and intent to commit the crime of accessory, the jury may consider “such factors as [the defendant’s] possible presence at the crime or other means of knowledge of its commission, as well as his companionship and relationship with the principal before and after the offense.” (Duty, 269 CA2d at p. 104.)
Propriety Of Instruction That Specific Evidence Is Not “Alone” or “By Itself” Sufficient To Convict Or Prove A Fact – See FORECITE F 370 Inst 8.
Limitation Of Conviction Based On Speculative Inference Alone Required By Federal Constitution – See FORECITE F 370 Inst 8.
“If Any” In Alternative b – “If any” was added to Alternative b. (See FORECITE F 105.1 Inst 6.)
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 2.3 [Prosecution’s Burden of Proof: Irrational Permissive Inference]
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 2.51c.
F 440 Note 1 Accessories: CALCRIM Cross References And Research Notes
CALCRIM Cross-References:
CALCRIM 400 [Aiding and Abetting: General Principles]
CALCRIM 401 [Aiding and Abetting: Intended Crimes]
CALCRIM 402 [Natural and Probable Consequences Doctrine (Target and Non-Target Offenses Charged)]
CALCRIM 403 [Natural and Probable Consequences (Only Non-Target Offense Charged)]
CALCRIM 404 [Intoxication]
CALCRIM 415 [Conspiracy]
CALCRIM 416 [Evidence of Uncharged Conspiracy]
CALCRIM 417 [Liability for Coconspirators’ Acts]
CALCRIM 418 [Coconspirator’s Statements]
CALCRIM 419 [Acts Committed or Statements Made Before Joining Conspiracy]
CALCRIM 420 [Withdrawal From Conspiracy]
F 440 Note 2 Whether Perpetrator May Be Convicted As Accessory
Note: In re Eduardo M. (2006) 140 CA4th 1351, 1359-61 cited the CALCRIM instruction on accessory with approval in concluding that the perpetrator must aid the escape of “another person.” (In re Eduardo M. erroneously refered to CC 400 instead of CC 440. [140 CA4th at 1360, fn. 7].)]
