Attempted Murder: Aider And Abettor/Provocative Act And Mental State
A bracketed portion of CC 601 is provided when the defendant was not the actual killer which states:
[The attempted murder was done willfully and with deliberation and premeditation if either the defendant or <insert name or description of principal> or both of them acted with that state of mind.]
People v. Gonzalez (2012) 54 Cal. 4th 643, 661, held: “That sentence is a correct statement of the mental state requirements for an attempted murder committed by a defendant and an accomplice. When referred to in the context of defining a first degree provocative act murder, however, the sentence gives the incorrect impression that the defendant can be found to have acted with premeditation and deliberation if either the defendant or an accomplice harbored the mental state.” The bracketed portion should not be given if the theory of the case is that the defendant is guilty as an aider and abettor because of provocative acts. Moreover, the Gonzalez court stressed that if the defendant personally intends to kill and premeditates, the defendant is liable for first degree murder for each killing proximately caused by his or her acts. On the other hand, when malice is only implied from the defendant’s conduct, there is no first degree murder. (Id. at 661-662.)
Bottom line: “. . .[B]oth the instruction on attempted premeditated murder and first degree murder were correct. An aider and abettor can be found guilty of attempted premeditated murder based on the premeditation of her accomplice, but the same aider and abettor can be found guilty of first degree murder based on her provocative acts only if she premeditated and deliberated the death of the intended victim. The bracketed portion of the instruction discussed above should be given with a clarifying instruction that a defendant can be found guilty of both attempted premeditated murder and first degree provocative act murder if she did in fact premeditate and deliberate.” (Ibid.)
