CC 401 Erroneously Allows the Jurors to Consider the Defendant’s Presence During the Crim or Failure to Prevent the Crime to Find the Actus Reus of Aiding and Abetting Liability
March 2nd, 2022

In People v. K.M. (In re K.M.) ___ Cal App ___ (Feb. 17, 2022, A159962) [pp. 5-7] the prosecution asserted that K.M. was guilty of aiding and abetting a robbery because his very presence at the scene of the crime assisted the perpetrator of the robbery. However, the reviewing court correctly reversed the judgement because there was no evidence that K.M. took any affirmative action that assisted or encouraged the crime.

Per Penal Code 31, “[i]t is well settled that aiding and abetting the commission of a crime require[s] some affirmative action.” ( People v. Weber (1948) 84 Cal.App.2d 126, 130, italics added; accord, People v. Villa (1957) 156 Cal.App.2d 128, 134, [“[T]he test is whether the accused in any way, directly or indirectly, aided the perpetrator by acts.”]; see also 1 Witkin, Cal. Criminal Law (4th ed. 2019) Introduction to Crimes, § 100 [“A person cannot be held guilty as a party … if he or she … did not take any affirmative action when it was committed.”].) Accordingly. the word “aids” in PC 31 “refers only to overt or affirmative forms of assistance.” (People v. Partee (2020) 8 Cal.5th 860, 868-69.)

Compare F 400 Note 4 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 273).]


CC 401 expresses the actus reus of aiding and abetting in Element 4 as “…words or conduct [which] did in fact aid and abet the perpetrator’s commission of the crime.” However, this language does not necessarily require that the defendant committed “affirmative acts” or actions. The CC language allows reasonable jurors to conclude that the defendant’s presence or failure to prevent the crime conduct which aided the perpetrator.


Moreover, the following optional paragraph of CC 401 encourages the jurors to consider the defendant’s presence or failure to prevent the crime. And, this paragraph further suggests that the jurors may combine the defendant’s presence or failure to prevent the crime with other evidence (e.g., of knowledge or intent) to find aiding and abetting even in the absence of affirmative action by the defendant:


If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime
does not, by itself, make him or her an aider and abettor.


In sum, CC 401 erroneously allows the jurors to find that the defendant aided and abetted without taking any affirmative action which aided the perpetrator’s commission of the crime.

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