SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 401.6 Aiding And Abetting: Intended Crimes—Defense 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 9 Post-Crime Assistance Is Not Aiding and Abetting (PC 31)
*Add to CC 401 when appropriate:
Assistance offered by the defendant to the perpetrator of the crime after the crime has been committed is insufficient to establish that [he] [she] aided and abetted the perpetrator in the commission of the offense.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Post-Crime Assistance Is Insufficient—It is well settled that acts committed after the crime has been completed are insufficient to establish aiding and abetting liability. (People v. Rutkowsky (1975) 53 CA3d 1069, 1072; see also People v. Pulido (1997) 15 C4th 713, 723; People v. Cooper (1991) 53 C3d 1158, 1164 [Beeman "presupposes" that requisite intent must be formed prior to or during "commission" of the offense]; People v. Hoover (1974) 12 C3d 875, 878-79 CJ 14.54; People v. Haynes (1998) 61 CA4th 1282, 1293 [jurors must find act of aiding and abetting was committed prior to termination of robbery].) Because CC 401 fails to adequately convey this requirement, there is a danger that the jury may rely upon after-acquired intent and/or post-offense acts by the defendant to impose aiding and abetting liability. [See Brief Bank # B-729 for additional briefing on this issue.]
(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.
CALJIC NOTE: See FORECITE F 3.01c.
F 401.6 Inst 10 No Legal Duty To Report Crime
*Add to CC 401:
Alternative a:
The defendant had no legal duty to report the crime even if (he/she) was present at the scene of the crime and/or had knowledge of the crime.
Alternative b:
There is no legal duty to report to the authorities that another person has committed a crime.
Alternative c:
Proof that the defendant only stood by at the time the offense is alleged to have been committed is insufficient to prove the defendant guilty. Unless the prosecution has proved beyond a reasonable doubt that the defendant aided and abetted the crime as defined elsewhere in these instructions, you must find the defendant not guilty. If you have a reasonable doubt whether the defendant aided and abetted the crime, you must resolve that doubt in favor of the defendant and find [him] [her] not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Mere Presence – People v. Villa (1957) 156 CA2d 128, 134 [mere presence doesn’t establish aider or abettor liability].
Failure To Act – People v. Luna (1956) 140 CA2d 662, 664 [“a person who stands by and watches an assault, and even approves of it, is a mere bystander, and not an accessory to the assault”]; see also, LaFave & Scott, Substantive Criminal Law (1986), §6.7, p. 138 [“one does not [generally] become an accomplice by refusing to intervene in the commission of a crime … [and so] courts have experienced considerable difficulty in cases where the defendant was present at the time of the crime and the circumstances of his presence suggest that he might be there pursuant to a prior agreement to give aid if needed”]; see also FORECITE F 401.7 Inst 19.
Mere Silence – People v. Garnett (1900) 129 C 364, 366 [under PC 32, mere silence, after knowledge of the commission of a felony, is not sufficient to convict one an accessory, without some affirmative act looking towards the concealment of the crime]; see also 54 Harv.L.Rev. 506 Common-Law Offense of Misprison of Felony Held Not Part of Modern Criminal Law and cases cited therein].
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.
ALERT: On January 1, 2001, PC 152.3 was added, requiring any person to notify a peace officer, if the person reasonably believes that he or she has observed the commission of murder, rape or a lewd or lascivious act by force or menace in violation of PC 288(b)(1) against a child victim under the age of 14. Such duty is satisfied if the notification or attempted notification is made by telephone or other means. The new section does not affect privileged relationships as otherwise provided by law. Failure to notify is a misdemeanor and does not apply to a relative of the victim or offender, a person who fails to make a report based on a reasonable mistake of fact, or a person who fails to report based on a reasonable fear for his or her own safety or the safety of his or her family. (Sherrice Iverson Child Victim Protection Act AB 1422, Ch. 477)
CALJIC NOTE: See FORECITE F 3.01f.
F 401.6 Inst 11 Aiding And Abetting: "Feigned Accomplice" Defense
*Add to CC 401:
To be liable for the perpetrator’s conduct, an aider and abettor must knowingly assist or encourage the perpetrator with the intent of either committing or facilitating commission of the underlying offense. Therefore, if the acts of aiding and abetting were committed with the intent to bring the perpetrators to justice, rather than to facilitate commission of the crime, the defendant is not guilty as an aider and abettor. If you have a reasonable doubt whether the defendant intended to facilitate the crime, you must resolve that doubt in favor of the defendant and return a verdict of not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Feigned Complicity As Defense Theory—"An accomplice is one who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of the crime." (People v. Bolanger (1886) 71 C 17, 20; see also People v. Beeman (1984) 35 C3d 547, 559.) Therefore, a person who intentionally aided and abetted the perpetrator of a crime but who had "feigned complicity for the purpose of detecting the [culprits]" is not guilty as an aider and abettor. "To act so as to frustrate a criminal objective negates an intent to further it." (People v. Rogers (1985) 172 CA3d 502, 513.)
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.
CALJIC NOTE: See FORECITE F 3.01k.
F 401.6 Inst 12 (a-d) Presence And Knowledge Insufficient For Aiding And Abetting Liability
Alternative a:
If you conclude that the defendant knew about ________’s <insert name of perpetrator> purpose to commit the alleged crime you may consider that fact in determining whether the defendant was an aider and abettor. However, mere knowledge of the perpetrator’s criminal purpose does not, by itself, make him or her an aider or abettor.
[Adapted from CC 401, ¶ 4.]
Alternative b:
*Modify CC 401, paragraph 4, sentence 2 as follows [added language is underlined]:
However, the fact that a person is present at the scene of a crime, has knowledge that the [alleged] crime is being committed, or fails to prevent the crime does not, by itself, make him or her an aider and abettor.
Alternative c:
*Replace CC 401 “mere presence” language with the following:
Mere presence at the scene of a crime, knowledge that a crime is being committed and failure to take action to prevent the crime are not enough to convict the defendant as an aider and abettor. Even if you have concluded that the defendant was a “knowing spectator” who failed to prevent or report the crime, you may not convict the defendant unless you find that there is additional evidence, above and beyond the defendant’s knowing presence, which, in light of all the circumstances, proves beyond a reasonable doubt that the defendant intended to commit, encourage or facilitate the commission of the crime.
Alternative d:
*Replace CC 401 paragraph 4, sentence 2 with the following:
Mere presence at the scene of the crime and intimate knowledge of the offenses merely make a person an eyewitness and do not, without more, permit conviction of the person as an [aider and abettor of the crime] [accomplice].
[Adapted from People v. Lewis (2001) 26 C4th 334, 369; see also People v. Stankewitz (1990) 51 C3d 72, 90.]
Alternative e:
*Replace CC 401 paragraph 4, sentence 2 with the following:
Presence of a person at the location of an alleged crime while the criminal activities are taking place and knowing that they are taking place cannot support a conviction as an aider and abettor. It is extremely imprudent to remain knowingly in the presence of an ongoing crime, but imprudence is not a crime. Sometimes youthful inexperience and lack of common sense, impecuniousness, or personal relationships may bring the innocent into continuing proximity with the guilty, but acquittal is required in the absence of evidence of intentional participation.
[Adapted from U.S. v. Herrera-Gonzalez (9th Cir. 2001) 263 F3d 1092, 1097-98.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Knowledge Insufficient – CALCRIM 401 correctly states that “being present as the scene of the crime or [failure] to prevent the crime does not, by itself, make [a person] an aider and abettor.” (See People v. Snyder (2003) 112 CA4th 1200; People v. Van Nguyen (1993) 21 CA4th 518, 529; People v. Durham (1969) 70 C2d 171, 181.) “Neither mere presence at the scene of a crime, nor the failure to take steps to prevent a crime, is alone sufficient to establish that a person is an aider and abettor. Such evidence may, however, be considered together with other evidence in determining that a person is an aider and abettor. [Citation.]” (In re Jose T. (1991) 230 CA3d 1455, 1460.) In other words, it is not enough that the defendant was “merely a knowing spectator.” (See People v. Bishop (1996) 44 CA4th 220, 234; see also People v. Villa (1957) 156 CA2d 128, 135 [“presence at the scene of the crime, … knowledge that a crime was being committed and … failure to prevent it alone could not support the conviction [for aiding and abetting]”]; Pinell v. Superior Court (1965) 232 CA2d 284, 288-89 [defendant had no knowledge of crime].) [See also FORECITE F 370 Inst 8.]
Additionally, mere knowledge of another’s criminal purpose is not sufficient for aiding and abetting. (People v. Beeman (1984) 35 C3d 547, 560; see also Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 3:1, Defense Perspective, p. 82.)
(See also FORECITE F 401.6 Inst 2 and F 401.5 Inst 7.)
"Alleged Crime" – See FORECITE F 103.2 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.
RESEARCH NOTE: See also CLARAWEB Forum, Warnings (12/6/05).
CALJIC NOTE: See FORECITE F 3.01l.
F 401.6 Inst 13 Aiding And Abetting: "Feigned Perpetrator" Defense
*Add to CC 401:
In order to be guilty as an aider and abettor, the defendant must have aided and abetted a perpetrator who actually committed the substantive crime. If the perpetrator was actually a law enforcement agent or if the perpetrator acted with an intent to apprehend the culprits rather than to commit the offense, then the defendant cannot be found guilty of having aided and abetted that offense.
If you have reasonable doubt as to whether the perpetrator has the requisite criminal intent, you must resolve that doubt in favor of the defendant and return a verdict of not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
"Feigned Perpetrator" As Defense Theory—It is well settled that a "feigned accomplice" is not guilty of aiding and abetting. (See FORECITE F 401.6 Inst 11.) It is also established that an aider and abettor is not guilty of the substantive offense unless the perpetrator had the necessary criminal intent required to commit said offense. (See People v. Beeman (1984) 35 C3d 547; People v. McCoy (2001) 25 C4th 1111, 1117; see also FORECITE F 401.5 Inst 4; F 401.5 Inst 5.)
NOTE: If some appreciable fragment of the act constituting the crime is actually committed by a feigned perpetrator, then it would stand to reason that the defendant could be liable for the attempted commission of the substantive crime. (See People v. Phillips (1985) 41 C3d 29, 73 fn 26.)
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.
CALJIC NOTE: See FORECITE F 3.01m.
F 401.6 Inst 14 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 401.6 Inst 15 Robbery: After Acquired Intent Of Aider And Abettor—Element And/Or Pinpoint
See FORECITE F 400 Note 1; F 401.6 Inst 9; F 540B _______.
F 401.6 Inst 16 Gang Membership Insufficient To Prove Aider and Abettor Liability
*Add to CC 401:
The fact that a person is a member of a criminal street gang does not by itself make him or her an aider and abettor of any crime committed by a gang member.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Gang Membership Insufficient—Membership in a gang cannot serve as proof of intent, or of the facilitation, advice, aid, promotion, encouragement, or instigation needed to establish aiding and abetting. To hold otherwise would invite absurd results. "Any gang member could be held liable for any other gang member’s act at any time so long as the act was predicated on the ‘common purpose of fighting the enemy.’ " [Internal citations and punctuation omitted.] (Mitchell v. Prunty (9th Cir. 1997) 107 F3d 1337, 1342.)
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 3.01 n2.
F 401.6 Inst 17 Buyer-Seller Transaction Insufficient To Establish Aiding And Abetting
*Add to CC 400:
The existence of a simple buyer-seller relationship between a defendant and another person is not alone sufficient to establish aiding and abetting, even where the buyer intends to resell _________ <identify contraband> Even if it is proven that a defendant may have bought _________ <identify contraband> from another person or sold _________ <identify contraband> to another person, this is not itself sufficient to establish that the defendant was an aider or abettor.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Buyer And Seller As Defense Theory—The buyer of contraband cannot be prosecuted for selling them to himself or herself, hence is not an accomplice of the seller. (People v. Label (1974) 43 CA3d 766; People v. Hernandez (1968) 263 CA2d 242, 247; 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 98, p. 135; but see People v. Ramirez (1952) 113 CA2d 842.) In other words the possession of the buyer is not the possession of the seller. (See People v. Lein (1928) 204 CA 84, 86 [in liquor possession case, court stated that "The later possession of the purchaser is not the possession of the seller."].)
The above instruction is adapted from paragraph 1 of the Seventh Circuit Model Instructions, §6.12. The refusal of such an instruction was held to be reversible error in U.S. v. Meyer (7th Cir. 1998) 157 F3d 1067, 1074-75. A testifying co-conspirator referred to the defendant as someone who "just bought drugs from me," distinguishing him from his co-defendant with whom the co-conspirator discussed business decisions. The buyer-seller theory was not adequately conveyed to the jury by the general instruction defining membership in a conspiracy. (See also Heckstall v. State (1998) 707 A2d 953, 955-56 [120 Md.App. 621] [evidence of single "buyer-seller" transaction in a quantity sufficient for the buyer’s personal use, without more, does not establish conspiracy to distribute].)
The buyer-seller issue arises primarily in drug cases, but it may also arise in a variety of conspiracy or aiding and abetting cases. (See U.S. v. Blankenship (7th Cir. 1992) 970 F2d 283, 286.)
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.
CALJIC NOTE: See FORECITE F 3.00c.
F 401.6 Inst 18 Buyer-Seller Relationship: Factors To Consider
*Add to CC 400:
In deciding whether there was [a conspiracy] [aiding and abetting], rather than a simple buyer-seller relationship, consider all of the evidence, including the following:
(1) Whether the transaction involved large quantities of ______ <name of goods>;
(2) Whether the parties had a standardized way of doing business over time;
(3) Whether the sales were on credit or on consignment;
(4) Whether the parties had a continuing relationship;
(5) Whether the seller had a financial stake in a resale by the buyer;
(6) Whether the parties had an understanding that the ______ <name of goods>> would be resold.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Right To Instruction On Relevant Factors—See U.S. v. Blankenship (7th Cir. 1992) 970 F2d 283, 286.
NOTE: In a particular case, some of the factors may be relevant and the instruction should be tailored to fit the facts of the case. (See U.S. v. Blankenship, supra, 970 F2d at 286.)
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]
FORECITE CG 5.12 [Factors To Consider Not Exclusive]
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 3.00d.
F 401.6 Inst 19 Failure To Prevent Commission Of A Crime Is Not Aiding And Abetting
*Add to CC 401:
Alternative a:
The defendant had no legal duty to prevent the crime from being committed even if (he/she) was present at the scene and/or knew about the crime.
Alternative b:
There is no legal duty to report to the authorities that another person has committed a crime.
Alternative c:
Proof that the defendant only stood by at the time the offense is alleged to have been committed is insufficient to prove the defendant guilty. Unless the prosecution has proved beyond a reasonable doubt that the defendant aided and abetted the crime as defined elsewhere in these instructions, you must find the defendant not guilty. If you have a reasonable doubt whether the defendant aided and abetted the crime, you must resolve that doubt in favor of the defendant and find [him] [her] not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Mere Presence – People v. Villa (1957) 156 CA2d 128, 134 [mere presence doesn’t establish aider or abettor liability].
Failure To Prevent Commission Of A Crime – 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. Durham (1969) 70 C2d 171, 181; People v. Boyd (1990) 222 CA3d 541, 556-57 [“Neither his mere presence at the scene of the crime nor his failure, through fear, to prevent a crime establishes, without more, that an accused was an abettor.”]; People v. Luna (1956) 140 CA2d 662, 664 [“a person who stands by and watches an assault, and even approves of it, is a mere bystander, and not an accessory to the assault”]; see also, LaFave & Scott, Substantive Criminal Law (1986), §6.7, p. 138 [“one does not [generally] become an accomplice by refusing to intervene in the commission of a crime … [and so] courts have experienced considerable difficulty in cases where the defendant was present at the time of the crime and the circumstances of his presence suggest that he might be there pursuant to a prior agreement to give aid if needed”].
[See also 54 Harv.L.Rev. 506 Common-Law Offense of Misprison of Felony Held Not Part of Modern Criminal Law and cases cited therein].
Standing By (Alternative b) – It is error to refuse an instruction informing the jury that if the defendant merely stood by at the time of the offense, then the defendant is not guilty. (See People v. Woodward (1873) 45 C 293, 294; see also People v. Cressey (1970) 2 C3d 836, 848. The above instruction is adapted from the instruction approved in Woodward.
No Duty To Report – See FORECITE F 401.6 Inst 10.
No Reference To “The People” – 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.
ALERT: On January 1, 2001, PC 152.3 was added, requiring any person to notify a peace officer, if the person reasonably believes that he or she has observed the commission of murder, rape or a lewd or lascivious act by force or menace in violation of PC 288(b)(1) against a child victim under the age of 14. Such duty is satisfied if the notification or attempted notification is made by telephone or other means. The new section does not affect privileged relationships as otherwise provided by law. Failure to notify is a misdemeanor and does not apply to a relative of the victim or offender, a person who fails to make a report based on a reasonable mistake of fact, or a person who fails to report based on a reasonable fear for his or her own safety or the safety of his or her family. (Sherrice Iverson Child Victim Protection Act AB 1422, Ch. 477.)
CALJIC NOTE: See FORECITE F 3.01f.
