September 5th, 2017

CALCRIM 401 correctly states that “being present as the scene of the crime or [failure] to prevent the crime does not, by itself, make [a person] an aider and abettor.” (See People v. Durham (1969) 70 C2d 171, 181; In re Jose T. (1991) 230 CA3d 1455, 1460.)


However, the CALCrim language is incomplete because it fails to make it clear that presence and knowledge of the crime is insufficient to establish aiding and abetting liability. (See People v. Lara (2017) 9 Cal. App. 5th 296, 322.) In other words, it is not enough that the defendant was “merely a knowing spectator.” (See People v. Bishop (1996) 44 CA4th 220, 234.)


Accordingly, CC 401 should be modified so that the question of knowledge is addressed. (See e.g., sample instructions below; see also FORECITE F 401.6 Inst 2, F 401.6 Inst 12, and F 401.5 Inst 7.)


Even though the proposed instructions contained non-calcrim language they may still be required, on request, to the extent that they pinpoint a defense theory which negates an element of the charge. (People v. Gurule (2002) 28 Cal.4th 557, 660 [“criminal defendant has the right to instructions that pinpoint the theory of the defense case”]; U.S. v. Pierre (9th Cir. 2001) 254 F3d 872 [right to defense theory instruction relating defense to burden of proof]; U.S. v. Zuniga (9th Cir. 1993) 989 F.2d 1109 [alibi instruction required even though elements of the charge accurately required the prosecution to prove guilt]; (CALCRIM 220, Related Issues [“A defendant is entitled, on request, to a nonargumentative instruction that direct attention to the defense theory of the case and relates it to the state’s burden of proof.”].)


“A party is entitled upon request to correct, non-argumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.  The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party’s theory to the particular case. [Citations.]” (Soule v. General Motors Corp. (94) 8 C4th 548, 572; see also FORECITE PG VII(C)(14).)


Moreover, “[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.”  [Citations and internal punctuation omitted.] (Holmes v. South Carolina (2006) 547 U.S. 319, 324.)


Yet, absent an appropriate instruction, the right to present evidence is entirely meaningless. (U.S. v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1201-1202; see also Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 739-42.)




Alternative a:


If you conclude that the defendant knew about _______’s <insert name of perpetrator> purpose to commit the alleged crime you may consider that fact in determining whether the defendant was an aider and abettor. However, mere knowledge of the perpetrator’s criminal purpose does not, by itself, make him or her an aider or abettor.


[Adapted from CC 401, ¶ 4.]


Alternative b:


*Modify CC 401, paragraph 4, sentence 2 as follows [added language is underlined]:


However, the fact that a person is present at the scene of a crime, has knowledge that the [alleged] crime is being committed, or fails to prevent the crime does not, by itself, make him or her an aider and abettor.


Alternative c:


*Replace CC 401 “mere presence” language with the following:


Mere presence at the scene of a crime, knowledge that a crime is being committed and failure to take action to prevent the crime are not enough to convict the defendant as an aider and abettor. Even if you have concluded that the defendant was a “knowing spectator” who failed to prevent or report the crime, you may not convict the defendant unless you find that there is additional evidence, above and beyond the defendant’s knowing presence, which, in light of all the circumstances, proves beyond a reasonable doubt that the defendant intended to commit, encourage or facilitate the commission of the crime.


Alternative d:


*Replace CC 401 paragraph 4, sentence 2 with the following:


Mere presence at the scene of the crime and intimate knowledge of the offenses merely make a person an eyewitness and do not, without more, permit conviction of the person as an [aider and abettor of the crime] [accomplice].


[Adapted from People v. Lewis (2001) 26 C4th 334, 369; see also People v. Stankewitz (1990) 51 C3d 72, 90.]


Alternative e:


*Replace CC 401 paragraph 4, sentence 2 with the following:


Presence of a person at the location of an alleged crime while the criminal activities are taking place and knowing that they are taking place cannot support a conviction as an aider and abettor. It is extremely imprudent to remain knowingly in the presence of an ongoing crime, but imprudence is not a crime. Sometimes youthful inexperience and lack of common sense, impecuniousness, or personal relationships may bring the innocent into continuing proximity with the guilty, but acquittal is required in the absence of evidence of intentional participation.


[Adapted from U.S. v. Herrera-Gonzalez (9th Cir. 2001) 263 F3d 1092, 1097-98.]

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