SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 401 NOTES
TABLE OF CONTENTS
F 401 Note 1 Aiding And Abetting: Intended Crimes—CALCRIM Cross References And Research Notes
F 401 Note 2 Applicability Of Aiding And Abetting When Element Is Committed By A Co-Perpetrator
F 401 Note 3 CALCRIM 401 Must Be Given With CALCRIM 400
F 401 Note 4 Jurisdiction Of California For In-State Aiding And Abetting Of Out-Of-State Offense
F 401 Note 5 Termination Of Aider And Abettor Liability: Duty Of Defendant To Prevent Commission Of The Crime
F 401 Note 6 Termination Of Aider And Abettor Liability: Abortion Of The Agreement Terminates Liability
F 401 Note 7 Aider And Abettor: Constructive Presence
F 401 Note 8 Mere Presence: Argument Strategy
Return to Series 400 Table of Contents.
F 401 Note 1 Aiding And Abetting: Intended Crimes—CALCRIM Cross-References And Research Notes
Cross-References:
CALCRIM 400 [Aiding And Abetting: General Principles]
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, Core Set Warnings.
F 401 Note 2 Applicability Of Aiding And Abetting When Element Is Committed By A Co-Perpetrator
People v. Cook (1998) 61 CA4th 1364 held that the fact that a key element of the crime is performed by another person doesn’t make the defendant an aider and abettor.
However, this rule has been held to be unconstitutional because it allows conviction without a finding of all essential elements of criminal liability: A Petitioner correctly argues that the rule expressed in Cook is unconstitutional. Due process requires that all elements of the offense be proven against the defendant. However, the Cook rule allows the prosecution to prove an offense by establishing only one element as to a particular defendant, effectively removing the necessity of proving all required elements and thereby lessening the burden of proof. Pursuant to the Cook rule, if a crime is completed, then the prosecution need only prove that a defendant committed one element in order for the defendant to be found guilty of the entire crime, so long as another actor committed the remaining elements. Under Cook, in such a case, aiding instructions are unnecessary. (Cook v. Lamarque (D. Cal., 2002) 239 FSupp2d 985, 996.)
“The constitutional deficiencies of this rule can be demonstrated by a simple hypothetical example. Consider two individuals who decide to frighten another individual. As part of the plan, one actor is to utilize a toy gun in a confrontation with the victim. Now, let us suppose the other actor decides he in fact wants to kill the victim, and he replaces the toy gun, unbeknownst to the first actor, with a real gun. When the first actor, thinking he is using a toy gun, pulls the trigger and kills the victim, is he guilty of murder? Under the Cook rule, the answer is in the affirmative. Pursuant to Cal. Penal Code §187, murder is defined as ‘the unlawful killing of a human being, or a fetus, with malice aforethought.’ Applying the Cook rule, the first actor is guilty of murder even though he did not bear malice aforethought, because the crime was completed, he committed an unlawful killing, and the element of malice was completed by the other actor. This result is clearly unconstitutional, but it is entirely possible under the new rule announced in Cook.” (Ibid.; see also FORECITE F 3.01n.)
CALJIC NOTE: See FORECITE F 3.01 n3.
Moreover, the California Supreme Court disapproved Cook in [NF] People v. Delgado (4/42013, S192704) ____CA4th ____ [2013 WL 1338792, 297 P3d 859] which held that the trial court erred in failing to instruct, sua sponte, on the law of accomplice liability. The Delgado court conclude that “the court was required to instruct on aiding and abetting liability as a general legal principle raised by the evidence and necessary for the jury’s understanding of the case. [Citation.]” ([NF] Delgado, ____ CA4th at _____.)
F 401 Note 3 CALCRIM 401 Must Be Given With CALCRIM 400
CALCRIM 401 (formerly CJ 3.01) must be given whenever CALCRIM 400 (formerly CJ 3.00) is given. (People v. Campbell (1994) 25 CA4th 402, 412; People v. Reyes (1992) 2 CA4th 1598, 1601 [error in failing to give CJ 3.01 equivalent to omission of an element from the definition of the crime]; People v. Patterson (1989) 209 CA3d 610, 617; People v. Ponce (1950) 96 CA2d 327, 331.)
CALJIC NOTE: See FORECITE F 3.01 n4.
F 401 Note 4 Jurisdiction Of California For In-State Aiding And Abetting Of Out-Of-State Offense
People v. Morante (1999) 20 C4th 403 held that California courts have jurisdiction to prosecute defendants both for in-state conspiracies to commit offenses out of state, and for in-state aiding and abetting of the commission of offenses out of state.
CALJIC NOTE: See FORECITE F 3.01 n5.
F 401 Note 5 Termination Of Aider And Abettor Liability: Duty Of Defendant To Prevent Commission Of The Crime
See FORECITE F 3.03 n1.
F 401 Note 6 Termination Of Aider And Abettor Liability: Abortion Of The Agreement Terminates Liability
See FORECITE F 3.03 n2.
F 401 Note 7 Aider And Abettor: Constructive Presence
For the purposes of aiding and abetting, “presence” is a question of fact. (People v. Silva (1956) 143 CA2d 162, 169). However, the precise definition of “presence” is not included in CC 401. It has been suggested that the element of “presence” may be satisfied by “constructive presence” when the accused is cooperating with the perpetrator and is situated so as to be able to aid the perpetrator in the commission of the crime. (People v. Woods (1992) 8 CA4th 1570, 1582 fn 3; see also People v. Pedesclaux (1963) 216 CA2d 1, 5 [suggesting that instruction on constructive presence is not required sua sponte].)
CALJIC NOTE: See FORECITE F 3.01 n1.
F 401 Note 8 Mere Presence: Argument Strategy
CC 401 should be read as emphasizing the principle that “mere presence or mere knowledge” is insufficient to establish aiding and abetting. (People v. Stallworth (2008)164 CA4th 1079, 1003.) It should also be read, when considering the instructions as a whole, to require the prosecution to “prove knowledge and intent beyond a reasonable doubt.” (Id. at 1104.)
