SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 400 NOTES
TABLE OF CONTENTS
F 400 Note 1 Aiding And Abetting: General Principles—CALCRIM Cross References And Research Notes
F 400 Note 2 Aiding/Abetting Unavailability Of Procuring Agent Defense
F 400 Note 3 No Murder Liability for Aider And Abettor Acting In Heat Of Passion
F 400 Note 4 Aiding And Abetting: No Affirmative Duty To Act
F 400 Note 5 Lesser Offense Liability For Aider And Abettor
F 400 Note 6 Aiding And Abetting Includes A Specific Intent Mens Rea
F 400 Note 7 Aider And Abettor Liability When Perpetrator Has Been Acquitted
F 400 Note 8 Aider And Abettor Liability For Person Incapable Of Committing the Substantive Crime As A Perpetrator
F 400 Note 9 Minor Not Criminally Liable As Aider And Abettor To Statutory Rape
F 400 Note 10 Buyer-Seller Transaction Insufficient To Establish Aiding And Abetting
F 400 Note 11 Minor Not Criminally Liable As Aider And Abettor To Incest
F 400 Note 12 Accomplice Cannot Aid And Abet His Own Murder
F 400 Note 13 Propriety Of Pinpoint Instruction On Factors Relevant To Aiding And Abetting
Return to Series 400 Table of Contents.
F 400 Note 1 Aiding And Abetting: General Principles—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
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]
Research Notes:
See CLARAWEB Forum, Aiding And Abetting, Inchoate, And Accessorial Crimes—Series 400.
F 400 Note 2 Aiding/Abetting Unavailability Of Procuring Agent Defense
The “procuring agent” defense is not recognized in California. (People v. Cattaneo (1990) 217 CA3d 1577, 1583, fn 2.) Therefore, one who acts as an intermediary to facilitate the purchase of a controlled substance may be criminally liable as an aider and abettor for the ensuing sale. (Cattaneo, at p. 1584; People v. Edwards (1985) 39 C3d 107, 114.)
CALJIC NOTE: See FORECITE F 3.00 n2.
F 400 Note 3 No Murder Liability For Aider And Abettor Acting In Heat Of Passion
Despite the general rule as stated in CALCRIM 400 that aiders and abettors are “equally guilty” of the crimes committed by the perpetrators thereof, CC 400 should be modified or supplemented in a situation where the aider and abettor acted under sudden quarrel or heat of passion. In such a case the aider and abettor can only be convicted of manslaughter not second degree murder, even though the principal is found to have acted with malice aforethought. (See People v. Woods (1992) 8 CA4th 1570, 1585; People v. Castillo DEPUBLISHED (1991) 232 CA3d 132, 145, fn 5; People v. Blackwood (1939) 35 CA2d 728; and additional cases cited in Castillo; see also FORECITE F 402 Note 9, discussing the 14th Amendment due process implications of permitting conviction of an aider and abettor upon the mental state of the perpetrator; see also FORECITE F 402 Note 11 [constitutional challenge to natural and probable consequences rule].)
(See FORECITE F 401.5 Inst 7.)
CALJIC NOTE: See FORECITE F 3.00 n3.
F 400 Note 4 Aiding And Abetting: No Affirmative Duty To Act
Traditional concepts of aiding and abetting do not apply when a parent has an affirmative duty to act. (E.g., PC 273a.) In affirmative duty cases the omission of a duty is the equivalent of an act and, when death results, the failure to act is deemed to be sufficient for aiding and abetting liability. (See People v. Swanson-Birabent (2003) 114 CA 4th 733; People v. Burden (1977) 72 CA3d 603, 614-23; People v. Martin DEPUBLISHED (1992) 3 CA4th 266; see also Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 3:1, pp. 81 [proposing special instruction].)
CALJIC NOTE: See FORECITE F 3.00 n4.
F 400 Note 5 Lesser Offense Liability For Aider And Abettor
One charged with aiding and abetting the greater offense may be found to have aided and abetted the lesser offense including an attempt offense. (See In re Jose M. (1994) 21 CA4th 1470, 1478.) [See Brief Bank # B-670 for additional briefing on this issue.]
NOTE: Unless modified, CC 400 does not permit a lesser verdict for the aider and abettor because it informs the jury that the aider and abettor is “equally guilty” of any offense committed by the perpetrator. (See FORECITE F 400.9 Inst 1; see also FORECITE F 401.5 Inst 7; FORECITE F 402.9 Inst 1.)
CALJIC NOTE: See FORECITE F 3.00 n5.
F 400 Note 6 Aiding And Abetting Includes A Specific Intent Mens Rea
People v. Beeman (1984) 35 C3d 547, 560-61 held that aiding and abetting requires the defendant to give aid or encouragement with “the intent or purpose of facilitating the perpetrator’s commission of the crime.” This describes a “specific intent” mens rea because the defendant must commit the act of aiding and abetting with the intent or purpose of achieving an additional consequence. (People v. Mendoza (1998) 18 C4th 1114, 1128.) If it were a general intent, then it would be enough that the defendant actually committed an act which aided and abetted the perpetrator. But Beeman clearly holds that such a general intent is not sufficient. (Ibid.)
Moreover, the specific intent mens rea of aiding and abetting remains the same regardless whether the substantive offense requires specific or general intent. (Mendoza, supra, at 1130-32.)
NOTE
Mendoza is consistent with the Ninth Circuit which has described aiding and abetting as a “specific intent crime.” (See U.S. v. Andrews (9th Cir. 1996) 75 F3d 552, 555; see also U.S. v. Bancalari (9th Cir. 1997) 110 F3d 1425, 1430.) According to these cases, to sustain a conviction for aiding and abetting, the evidence must show that the defendant “specifically intended to facilitate the commission of [the principal’s] crimes … ” (Andrews, 75 F3d at 555.)
CALJIC NOTE: See FORECITE F 3.00 n6.
F 400 Note 7 Aider And Abettor Liability When Perpetrator Has Been Acquitted
See FORECITE F 401.5 Inst 5 for proposed instruction precluding aider and abettor liability when the perpetrator has been acquitted.
CALJIC NOTE: See FORECITE F 3.00 n8.
F 400 Note 8 Aider And Abettor Liability For Person Incapable Of Committing The Substantive Crime As A Perpetrator
Even if the person charged as an aider and abettor could not be found guilty of committing the substantive offense as a perpetrator, the person may be liable as an aider and abettor except in two limited situations. The first is if an affirmative legislative intent exists that one party was to be unpunished because he or she “was generally considered by society to be less blameworthy morally than the other party.” (Hutchins v. Municipal Court (1976) 61 CA3d 77, 83.) The second situation is where a different criminal statute imposing a lesser punishment is found to be controlling. (Hutchins, 61 CA3d at 83-84; see also People v. Fraize (1995) 36 CA4th 1722.)
CALJIC NOTE: See FORECITE F 3.00 n9.
F 400 Note 9 Minor Not Criminally Liable As Aider And Abettor To Statutory Rape
When an adult has unlawful sexual intercourse with a minor, in violation of PC 261.5, the minor is not criminally liable as an aider and abettor in the offense. (In re Meagan R. (1996) 42 CA4th 17.)
CALJIC NOTE: See FORECITE F 3.00 n10.
F 400 Note 10 Buyer-Seller Transaction Insufficient To Establish Aiding And Abetting
See FORECITE F 401.6 Inst 17.
CALJIC NOTE: See FORECITE F 3.00 n11.
F 400 Note 11 Minor Not Criminally Liable As Aider And Abettor To Incest
(See People v. Tobias (2001) 25 C4th 327, 329 [child under 18 who has an incestuous sexual relationship with an adult is a victim, not a perpetrator, of the incest, even when the child consents to the sex; child in this situation can never be an accomplice, thus accomplice instructions are not appropriate].)
CALJIC NOTE: See FORECITE F 3.00 n12.
F 400 Note 12 Accomplice Cannot Aid And Abet His Own Murder
See People v. Antick (1975) 15 C3d 79, 91; People v. Camino (2010) 188 CA4th 1359, 1381.
F 400 Note 13 Propriety Of Pinpoint Instruction On Factors Relevant To Aiding And Abetting
The court in In re Lynette G. (1976) 54 CA3d 1087 stated: “Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense. [Citations.] In addition, flight is one of the factors which is relevant in determining consciousness of guilt. [Citation.]” (Id. at pp. 1094–1095; see also People v. Medina (2009) 46 CA4th 913, 924.)
People v. Battle (2011) 198 CA4th 50, 84 approved the following special instruction that mirrored the Lynette G. factors:
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.
[But see FORECITE F 401.3 Inst 4 [Jurors Should Consider Presence Or Absence Of The Defendant As To Aiding And Abetting].]
