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F 6.15 n1 Applicability Of CJ 6.15 (5th Edition) To Aiding And Abetting (PC 182).
The comment to CJ 6.15 (5th Edition) notes that the instruction and its principles are not applicable to a prosecution based upon aiding and abetting. (People v. Brigham (89) 216 CA3d 1039, 1046-47 [265 CR 486].) However, the dissent in Brigham is well reasoned and provides a basis for continuing to raise this issue. (See FORECITE F 3.02a.)
NOTE: CJ 6.15 was deleted in the 6th Edition (1997). See FORECITE F 6.15a for the 5th Edition instruction.
F 6.15a
Liability For Independent Acts Of Co-Conspirators
No act or declaration of a conspirator that is an independent product of [his] [her] own mind and is outside the common design and not a furtherance of that design is binding upon [his] [her] co-conspirators, and they are not criminally liable for any such act.
NOTE: The above instruction was originally published in CJ (5th Edition) as CJ 6.15. The instruction was deleted in the CJ 6th Edition and no reason was given for the deletion. FORECITE has included the instruction for use in cases warranting the instruction. See FORECITE F 6.15 n1.
Points and Authorities
“One is not liable who has counseled a particular criminal act, and the perpetrator has committed a different one not falling within the probable consequences of that advice.” (People v. King (38) 30 CA2d 185, 203 [85 P2d 928].)
Consequently, the pivotal question is “whether or not the act committed was the ordinary and probable effect of the common design or whether it was a fresh and independent product of the mind of one of the conspirators, outside of, or foreign to, the common design ….” (People v. Durham (69) 70 C2d 171, 182-83 [74 CR 262]; see also, People v. Woods (92) 8 CA4th 1570, 1600-01 [11 CR2d 231], dissenting opinion.)
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 violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
