Return to CALJIC Part 3-4 – Contents
F 3.00 n1 After Acquired Intent To Aid And Abet Robbery (PC 31).
In a robbery prosecution, FORECITE F 9.40e should be given if there is evidence that the intent to aid and abet was formed after the perpetrator disposed of “the loot” or reached a place of temporary safety. (See also FORECITE F 8.21.1a–c.)
F 3.00 n2 Aiding/Abetting Unavailability Of Procuring Agent Defense.
The “procuring agent” defense is not recognized in California. (People v. Cattaneo (90) 217 CA3d 1577, 1583, fn 2 [266 CR 710].) 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 (85) 39 C3d 107, 114 [216 CR 397].)
F 3.00 n3 No Murder Liability for Aider And Abettor Acting In Heat Of Passion.
Despite the general rule as stated in CJ 3.00 that aiders and abettors are “equally guilty” of the crimes committed by the perpetrators thereof, CJ 3.00 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 (92) 8 CA4th 1570, 1585 [11 CR2d 231]; People v. Castillo DEPUBLISHED (91) 232 CA3d 132, 145, fn 5 [283 CR 636]; People v. Blackwood (39) 35 CA2d 728 [96 P2d 982]; and additional cases cited in Castillo; see also FORECITE F 3.02 n9, 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 3.02 n11 [constitutional challenge to natural and probable consequences rule].)
(See FORECITE F 3.01n.)
F 3.00 n4 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 (77) 72 CA3d 603, 614-23; People v. Martin DEPUBLISHED (92) 3 CA4th 266 [4 CR2d 660].)
F 3.00 n5 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. (94) 21 CA4th 1470, 1478 [27 CR2d 55].) [Additional briefing on this issue is available to FORECITE subscribers. See Brief Bank # B-670 and ask for Brief Bank # B-606. .]
NOTE: Unless modified, CJ 3.00 does not permit a lesser verdict for the aider and abettor because it informs the jury that the aider and abetter is “equally guilty” of any offense committed by the perpetrator. (See FORECITE F 3.00b; see also FORECITE F 3.01n; FORECITE F 3.02g.)
F 3.00 n6 Aiding and Abetting Includes A Specific Intent Mens Rea.
People v. Beeman (84) 35 C3d 547, 560-61 [199 CR 60] 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 (98) 18 C4th 1114, 1128 [77 CR2d 428].) 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.)
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.) See also FORECITE F 4.21.2a [Effect of Intoxication On Aiding and Abetting: Pinpoint Instruction Specifying The Elements].
F 3.00 n7 Special Circumstance For Aiders/Abettors.
See FORECITE F 8.80.1 et al. as to exception to intent to kill requirement for accomplices who are “major participants” in the underlying felony and who exhibit “reckless indifference to human life.”
F 3.00 n8 Aider And Abettor Liability When Perpetrator Has Been Acquitted.
See FORECITE F 4.018a for proposed instruction precluding aider and abettor liability when the perpetrator has been acquitted.
F 3.00 n9 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 (76) 61 CA3d 77, 83 [132 CR 158].) 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 (95) 36 CA4th 1722 [43 CR2d 64].)
F 3.00 n10 Minor Not Criminally Liable As Aider And Abetter 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 abetter in the offense. (In re Meagan R. (96) 42 CA4th 17 [49 CR2d 325].)
F 3.00 n11 Buyer-Seller Transaction Insufficient To Establish Aiding And Abetting.
A simple buyer-seller relationship is not sufficient to establish conspiracy. (See FORECITE F 3.00c and F 3.00d.)
F 3.00 n12 Minor Not Criminally Liable As Aider And Abettor To Incest.
(See People v. Tobias (2001) 25 C4th 327, 329 [106 CR2d 80] [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].)
Aiding and abetting: Application of Elements to Defendant
*Add to CJ 3.00:
You may not find the defendant guilty as an aider and abetter unless you find beyond a reasonable doubt that every element required by these instructions has been proven.
Points and Authorities
Both CJ 3.00 and CJ 3.01 are general statements of law without any language requiring that each specified element be found as a condition to conviction of the defendant as an aider and abetter. It has been held the omission of such an “application paragraph” with regard to instructions very similar to CJ 3.00 and CJ 3.01 was reversible error. (Plata v. State (Texas) (TexApp 1996) 926 SW2d 300.) Therefore, the above instruction should be added to CJ 3.01.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
Aiding And Abetting: “Equally Guilty” Language
Improper When Accomplice May Be Convicted Of Lesser
Offense Than Perpetrator
*Modify CJ 3.00, second sentence, when appropriate, to provide as follows:
Each principal, regardless of the extent or manner of participation, is equally guilty, except that an aider and abettor may be found guilty of a lesser offense than the perpetrator.
Points and Authorities
The “equally guilty” language of CJ 3.00 is misleading and inaccurate when, based on People v. Woods (92) 8 CA4th 1570, 1585-88 [11 CR2d 231], the accomplice may be convicted of a lesser offense than the perpetrator based on the natural and probable consequences doctrine. (See FORECITE F 3.02g.) [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-749.]
Moreover, conviction of the aider and abettor of a lesser offense than the perpetrator may also be appropriate in non-Woods situations (i.e., when the natural and probable consequence doctrine is not used).
The analysis in People v. McCoy (2001) 25 C4th 1111 sets up a legal relationship between the perpetrator and aider/abettor that looks to both the acts and mental state of each actor, on his or her own as well as together – “guilt is based on a combination of the direct perpetrator’s acts and the aider and abettor’s own acts and own mental state.” (McCoy, 25 C4th at 1117.) From this principle, the proposition seems self-evident that the aider and abettor can be convicted of a lesser offense than the perpetrator: If an aider/abettor can be guilty of a greater crime than the perpetrator because of a greater mental state, then an aider/abettor can be guilty of a lesser crime than the perpetrator for the same reason. (See People v. Nero (2010) 181 CA4th 504 [The trial court committed prejudicial error by instructing the jury that an aider and abettor must be "equally guilty" with the perpetrator. The aider and abettor instructions in CALJIC 3.00 are confusing and should be modified.].)
For example, consider the following hypothetical: The perpetrator (P) wants to murder a business rival (V) for financial reasons; and P procures defendant (D) to help in the murderous scheme by telling D that V had been sleeping with D’s wife for the past two years. If D explodes in a jealous rage and takes P directly to V’s house where P walks in and kills V, P can be guilty as the perpetrator of a first-degree murder with special circumstances, while D could be found guilty of no more than voluntary manslaughter based on heat of passion. D knew the extent of the perpetrator’s purpose (at least to the extent of knowing P had premeditated a killing of V); he gave aid to P with the intent of facilitating P’s commission of that crime; but because–as McCoy correctly points out–he’s guilty based on his own acts and his own mental state, his own mental state could make him guilty of no more than voluntary manslaughter.
One cannot just rest on the defenses to the perpetrator’s crime. Since the aider and abettor has to have his own mental state, his mental state could just as easily be for a lesser-included offense, or the natural and probable consequences of one. There is no requirement that the aider and abettors’s mental state match the perpetrator’s. “Each person’s guilt would be based on the combined actus reus of the participants, but also solely on that person’s own mens rea. Each person’s level of guilt would ‘float free.’” (McCoy, 25 C4th at 1121.)
Furthermore, “[T]he dividing line between the actual perpetrator and the aider and abettor is often blurred. . . . .The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices’ actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who was the direct perpetrator or to what extent each played which role.” (Id. at pp. 1120.) If as this paragraph of the opinion indicates, one sometimes can’t tell who is the perpetrator and who is the aider and abettor, and the law doesn’t require one to be able to determine who was which because aiders and abettors are liable on their own mens rea, then that applies as much to an aider/abettor having a lesser mens rea, as having a greater mens rea. In either case, both perpetrator and aider and abettor–no matter who is what–are liable for the combined actus reus of the other, but are so liable based on their own mens rea, including all of the natural and probable consequences of what they intended. That accounts for the Woods (People v. Woods (92) 8 CA4th 1570 [11 CR2d 231]) scenario as much as it does the McCoy scenario.
In sum, the reasoning of McCoy should apply to permit conviction of the aider and abettor for a lesser offense than the perpetrator.
NOTE: The following language in McCoy does not change this result: “Outside of the natural and probable consequences doctrine, an aider and abettor’s mental state must be at least that required of the direct perpetrator.” (McCoy, at 1117.) First, it’s dictum; that’s not the issue in McCoy. Second, it purports to be a summary of the rest of the paragraph–but nothing in the rest of the paragraph says or implies that. The rest of the paragraph says the accomplice must know the extent of the perpetrator’s purpose and give aid with the intent of facilitating the perpetrator’s commission of the crime; which is obviously true, but it doesn’t answer the question of what the aider/abettor’s mental state is or can be. McCoy simply makes clear that both principal and aider/abettor are liable based on their own acts and own mental states.
(See FORECITE F 3.01n.)
Buyer-Seller Transaction Insufficient To Establish
Aiding And Abetting
*Add to CJ 3.00:
The existence of a simple buyer-seller relationship between a defendant and another person is not alone sufficient to establish aiding and abetting, even where the buyer intends to resell _____ [name of goods.] Even if it is proven that a defendant may have bought _____ [name of goods] from another person or sold _____ [name of goods] to another person, this is not itself sufficient to establish that the defendant was an aider or abettor.
Points and Authorities
The above instruction is adapted from paragraph 1 of the Seventh Circuit Model Instructions, § 6.12. The refusal of such an instruction was held to be reversible error in U.S. v. Meyer (7th Cir. 1998) 157 F3d 1067, 1074-75. A testifying co-conspirator referred to the defendant as someone who “just bought drugs from me,” distinguishing him from his co-defendant with whom the co-conspirator discussed business decisions. The buyer-seller theory was not adequately conveyed to the jury by the general instruction defining membership in a conspiracy. (See also Heckstall v. State (98) 707 A2d 953, 955-56 [120 Md.App. 621] [evidence of single “buyer-seller” transaction in a quantity sufficient for the buyer’s personal use, without more, does not establish conspiracy to distribute].)
The buyer-seller issue arises primarily in drug cases, but it may also arise in a variety of conspiracy or aiding and abetting cases. (See U.S. v. Blankenship (7th Cir. 1992) 970 F2d 283, 286.)
Buyer-Seller Relationship: On Factors To Consider
*Add to CJ 3.00:
In deciding whether there was [a conspiracy] [aiding and abetting], rather than a simple buyer-seller relationship, you should consider all of the evidence, including the following:
(1) Whether the transaction involved large quantities of ______[name of goods];
(2) Whether the parties had a standardized way of doing business over time;
(3) Whether the sales were on credit or on consignment;
(4) Whether the parties had a continuing relationship;
(5) Whether the seller had a financial stake in a resale by the buyer;
(6) Whether the parties had an understanding that the ______[name of goods] would be resold.
Points and Authorities
(See U.S. v. Blankenship (7th Cir. 1992) 970 F2d 283, 286.)
In a particular case, some of the factors may be relevant and the instruction should be tailored to fit the facts of the case. (See U.S. v. Blankenship, supra, 970 F2d at 286.)
Aiding And Abetting:
Requirement That Act, Knowledge And Intent
Elements Occurred Prior To Or During
The Commission Of The Offense
*Add to CJ 3.00:
A person may not be found guilty as an aider and abettor unless the act, knowledge and intent required for aiding and abetting all occurred before or during the alleged crime. If you have a reasonable doubt that the required act, knowledge and intent occurred before or during the alleged crime, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.
Points and Authorities
People v. Pulido (97) 15 C4th 713, 726-30 [63 CR2d 625]; People v. Esquivel (94) 28 CA4th 1386, 1394-97 [34 CR2d 324]. See FORECITE F 3.01t; see also FORECITE F 8.27a and F 8.21a.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon or failure to adequately instruct upon a defense or defense theory violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII.]
[See Brief Bank # B-839 for additional briefing on this issue.]