People v. Samaniego held that a portion of CC 400 was incorrect because it instructed the jury that “[a] person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.” (People v. Samaniego (2009) 172 Cal. App. 4th 1148.)
CC 400 was erroneous because it failed to inform the jury than an aider and abettor can be guilty of a lesser crime than the actual perpetrator. In the context of the Samaniego case, involving aiding and abetting a murder, “an aider and abettor’s guilt may . . .be less than the perpetrator’s, if the aider and abettor has a less culpable mental state.” (Id at 1164.) Samaniego concluded that this portion of CC 400, “while generally correct in all but the most exceptional circumstances, is misleading here and should have been modified.” (Id. at 1165.)
In response to the Samaniego case, in April, 2010, CC 400 was revised. “The word ‘equally’ was deleted from the paragraph beginning: A person is [equally] guilty. . .’ and an explanatory bench note added: ‘An aider and abettor may be found guilty of a different crime or degree of crime than the perpetrator if the aider and abettor and the perpetrator do not have the same mental state.’” (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of April 23, 2010, p. 4.)
People v. Canizalez held that, in the context of the natural and probable consequences doctrine, it was proper to instruct the jury under CC 403 that the aider and abettor was equally guilty of the crime of which the perpetrator is guilty. (People v. Canizalez (2011) 197 Cal. App. 4th 832.)
People v. Canizalez held that giving CC 400 with the “equally guilty” language was harmless error.