Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s “own mens rea.” (People v. McCoy (2001) 25 Cal.4th 1111, 1122; see also People v. Powell (2021) 63 Cal.App.5th 689, 712-13.) The aider and abettor’s mens rea includes several subjective mental elements as observed by People v. Vizcarra (Oct. 19, 2022, D078869) [pp. 14-15] [“join[ing] the chorus of appellate authorities – from the Supreme Court, our own court, and other Courts of Appeal-which have uniformly upheld aiding and abetting implied malice murder as a viable form of murder liability, notwithstanding the legislative changes effectuated by Senate Bill 1437 and Senate Bill 775. [Citations].]”
As People v. Powell, supra, 63 Cal.App.5th at 713-12 explained:
In the context of implied malice, the actus reus required of the perpetrator is the commission of a life endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act , knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.
Accordingly, aiding and abetting implied malice murder requires the prosecution to prove the following elements:
- By words or conduct,
- Aided the commission of a life endangering act,
- Knew the perpetrator intended to commit the act,
- Intended to aid the perpetrator in the commission of the act,
- Knew the act was dangerous to human life,
- Acted in conscious disregard for human life.
(Ibid.; People v. Langi (2022) 73 Cal.App.5th 972, 983 [citing approvingly to the mens rea standard articulated in Powell]; see also People v. Vizcarra, supra, (Oct. 19, 2022, D078869) [pp. 14-15].)
Because the CALCRIM instructions on aiding and abetting (CC 400, CC 401, CC 402, CC 403) and implied malice (CC 520) do not include these elements they should either be edited or supplemented to include the above listed elements.
Voluntary Intoxication As Defense Theory
In addition to modifying the substantive elements, it may also be necessary to edit the CALCRIM instructions on voluntary intoxication (CC 404, CC 625; CC 3426) to allow jury consideration of voluntary intoxication in deciding whether the prosecution proved the above discussed mens rea elements.