Return to CALJIC Part 5-8 – Contents
F 6.40 n1 Accessories: Instruction Upon Definition Of Underlying Felony.
The use note to CJ 6.40 recognizes the need to instruct upon the definition of the underlying felony without specifying whether it must be given sua sponte or upon request:
“If the issue of whether a felony had been committed is disputed, or depends upon proof of facts showing its occurrence, instruction defining felony will have to be given.”
In People v. Shields (90) 222 CA3d 1, 4-5 [271 CR 228], the court concluded that the definition must be requested unless there is a suggestion in the record that the jury was confused or misled. (Ibid.)
F 6.40 n2 Whether Perpetrator May Be Convicted As Accessory
Note: See FORECITE F 6.40a for instruction on this point.
In People v. Riley (93) 20 CA4th 1808, 1813-16, the court relied on People v. Mouton (93) 15 CA4th 1313, 1322 to conclude that there is no bar to conviction of the defendant as both a principal and accessory where the evidence shows distinct and independent actions supporting each crime. (But see In re Eduardo M. (2006) 140 CA4th 1351, 1359-61 [distinguishing Riley and Mouton]; People v. Van Nguyen (93) 21 CA4th 518, 529-30.)
F 6.40 n3 Accessories: Consciousness Of Guilt Evidence Insufficient.
In People v. Van Nguyen (93) 21 CA4th 518, 538-39 [26 CR2d 323], the defendants were charged with robbery and accessory to a sexual assault committed by another co-defendant during the robbery. The Court of Appeal held that evidence of the defendants’ flight, their possession of stolen property, and an admission of being present at the scene of the robbery was insufficient to support a finding of accessory. The court noted that in some circumstances supplying an affirmative and deliberate falsehood to public authorities, such as providing a false alibi, is sufficient to make the relator an accessory. (See People v. Duty (69) 269 CA2d 97, 104 [74 CR 606].)
F 6.40 n4 Accessory After The Fact: Locus Delicti.
Locus delicti for accessory is the jurisdiction where the acts of assisting the perpetrator took place, not where the original crime was committed. (U.S. v. Cabrales (98) 514 US 1 [141 LEd2d 1; 118 SCt 1772].)
F 6.40 n5 Collateral Estoppel As Defense To Accessory Charge.
Because commission of the underlying offense is an essential element of accessory liability (see U.S. v. Cabrales (98) 524 US 1, 7 [141 LEd2d 1; 118 SCt 1772]) collateral estoppel principles (e.g., People v. Taylor (74) 12 C3d 686 [117 CR 70] may be applicable to preclude prosecution as an accessory when the perpetrator has been acquitted. (See FORECITE 3.02b.)
ALERT: People v. Superior Court (Sparks) REV GTD (9/17/2008, S164614) 2008 Cal. App. Unpub. LEXIS 4603: (1) Did principles of collateral estoppel, as applied in People v. Taylor (74) 12 C3d 686, preclude the prosecution from trying defendant for murder on a felony-murder theory after the actual killer had been acquitted of murder on such a theory? (2) Is Taylor still good law, or should that decision be overruled or disapproved?
F 6.40 n6 Accessories: Unreasonable Belief In Duress Does Not Negate Intent.
The intent needed to become an accessory under PC 32 may not be negated by an actual but unreasonable belief of duress. (People v. Jacobs (91) 230 CA3d 1337, 1345 [281 CR 733].
F 6.40 n7 Accessories: Failure To Charge And/Or Instruct On Underlying Offense.
Because commission of the underlying substantive offense is a prerequisite for accessory liability, failure to instruct on the elements of the underlying offense is error. (See People v. Magee (2003) 107 CA4th 188 [131 CR2d 834]; see also U.S. v. Hill (9th Cir. 2002) 279 F3d 731, 740-42 [indictment charging accessory after the fact was insufficient as matter of law because it failed to plead underlying offense].)
F 6.40a Convicted Perpetrator Cannot Also Be Convicted As Accessory Based On Post-Felony Attempts To Escape Apprehension, Prosecution Or Conviction
*Modify CJ 6.40 Element 2 as follows [added language is underlined]:
2. Defendant harbored, concealed or aided another person who was a principal in that felony . . .
Points and Authorities
See In re Eduardo M. (2006) 140 CA4th 1351, 1359-61 distinguishing People v. Riley (1993) 20 CA4th 1808, 1815-16; People v. Mouton (1993) 15 CA4th 1313, 1324.
See also CALCRIM 440 [requiring accessory to be based on harboring, concealing or aiding “another person.”
F 6.40b Failure Or Refusal To Give Information Not Alone Sufficient For Accessory Liability
See FORECITE F 440 Inst 1.