CSC Review Granted: Prejudicial Effect of Failure to Instruct on Intent to Kill Element for Accomplice Liability re: Multiple Murder Special Circumstance
August 5th, 2019

“Under California law, a person who aids and abets the commission of a crime is a ‘principal’ in the crime, and thus shares the guilt of the actual perpetrator.” (People v. Prettyman (1996) 14 Cal.4th 248, 259; People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117; see § 31.) Therefore, “a person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts.” (McCoy, supra, at p. 1117.) A defendant can be liable as an aider and abettor in two ways. “First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also ‘for any other offense that was a “natural and probable consequence” of the crime aided and abetted.’ [Citation.]” (Ibid.)

Where there is substantial evidence that the defendant is an aider and abettor rather than the direct perpetrator, the jury must find that he had the specific intent to kill before finding the multiple murder special circumstance true. (People v. Covarrubias (2016) 1 Cal.5th 838, 928, 207.) The court has a sua sponte duty to instruct the jury on the mental state required for accomplice liability when a special circumstance is charged and there is sufficient evidence to support the finding that the defendant was not the actual killer. (See People v. Jones (2003) 30 Cal.4th 1084.) The duty to give the accomplice intent instruction exists regardless of the prosecution’s theory of the case. (Ibid.)

In People v. Frazier, No. B281888, 2018 Cal. App. Unpub. (June 22, 2018) the defendant contended that the trial court erred in failing to instruct the jury under CC 702 that it must find that defendant intended to kill before it could find true the multiple murder special circumstance. The Court of Appeal concluded that the error was harmless beyond a reasonable doubt, because the jury convicted defendant of two counts of first degree murder—which requires the specific intent to kill—and was properly instructed as to those offenses.


However, the CSC granted review to consider the issue of prejudice:


Petition for review after the Court of Appeal modified and affirmed a judgment of conviction of criminal offenses. The court limited review to the following issue: Was the trial court’s failure to instruct the jury that the special circumstance required the aider and abettor harbor the intent to kill prejudicial?

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