SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 400 AIDING AND ABETTING: GENERAL PRINCIPLES
TABLE OF CONTENTS
F 400.1 AIDING AND ABETTING: GENERAL PRINCIPLES—TITLE AND IDENTIFICATION OF PARTIES
F 400.1 Inst 1 Aiding And Abetting: General Principles—Title
F 400.1 Inst 2 Identification Of Prosecution And Defendant
F 400.2 AIDING AND ABETTING: GENERAL PRINCIPLES—TAILORING TO FACTS: PERSONS, PLACES, THINGS AND THEORIES
F 400.2 Inst 1 Reference To Perpetrator As “Alleged” Or By Name
F 400.2 Inst 2 Aiding And Abetting: Tailoring To Defendant And Perpetrator
F 400.3 AIDING AND ABETTING: GENERAL PRINCIPLES—LANGUAGE THAT IS ARGUMENTATIVE, CONFUSING, ETC.
F 400.3 Inst 1 Aiding And Abetting: No Presumption That Crime Was Committed Or That The Alleged Perpetrator Committed It
F 400.3 Inst 2 Reference To Perpetrator As “Alleged” Or By Name
F 400.3 Inst 3 Perpetrator Should Be Defined As One Who “Directly And Actively” Commits The Crime
F 400.4 AIDING AND ABETTING: GENERAL PRINCIPLES—BURDEN OF PROOF ISSUES
F 400.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 400.4 Note 1 Aiding And Abetting: General Principles—Burden Of Proof Issues
F 400.5 AIDING AND ABETTING: GENERAL PRINCIPLES—ELEMENTS
F 400.5 Note 1 Aiding And Abetting: General Principles—Elements
F 400.6 AIDING AND ABETTING: GENERAL PRINCIPLES—DEFENSE THEORIES
F 400.6 Note 1 Aiding And Abetting: General Principles—Defense Theories
F 400.7 AIDING AND ABETTING: GENERAL PRINCIPLES—PRELIMINARY FACT ISSUES
F 400.7 Note 1 Aiding And Abetting: General Principles—Preliminary Fact Issues
F 400.8 AIDING AND ABETTING: GENERAL PRINCIPLES—UNANIMITY/ DUPLICITY/ MULTIPLICITY [RESERVED]
F 400.9 AIDING AND ABETTING: GENERAL PRINCIPLES—LESSER OFFENSE ISSUES
F 400.9 Inst 1 Aiding And Abetting: “Equally Guilty” Language Improper When Accomplice May Be Convicted Of Lesser Offense Than Perpetrator
Return to Series 400 Table of Contents.
F 400.1 Aiding And Abetting: General Principles—Title And Identification Of Parties
F 400.1 Inst 1 Aiding And Abetting: General Principles—Title
See generally FORECITE F 200.1.2 Note 2; CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 400.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 400.2 Aiding And Abetting: General Principles—Tailoring To Facts: Persons, Places, Things And Theories
F 400.2 Inst 1 Reference To Perpetrator As ” Alleged” Or By Name
*Modify CC 400, paragraph 1, sentence 3, as follows [added language is underlined]:
In these instructions, I will call that other person [the alleged perpetrator] [by (his/her) name ______________<insert name of perpetrator>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Tailoring: Perpetrator’s Name—Since CALCRIM 400 et al. discuss aiding and abetting in terms of what actually happened in the case at bar, use of the alleged perpetrator’s name will provide greater precision and clarity as well as notice to the defendant. (See generally FORECITE PG XI(B)(2).)
Moreover, the judge may not properly “refuse[] to tailor [an] instruction to the fact of the case.” (People v. Hall (1980) 28 C3d 143, 159; see also People v. Falsetta (1999) 21 C4th 903, 924; People v. Fudge (1994) 7 C4th 1075, 1110; People v. Woods (1991) 226 CA3d 1037, 1054-55 [court has duty to “tailor instructions to fit the facts” ]; U.S. v. Blankenship (7th Cir. 1992) 970 F2d 283, 286 [buyer-seller instruction should be tailored to facts].)
Unless this instructional request is granted the instructions will abridge the defendant’s rights by failing to assure that the jury will fairly, impartially and accurately apply the law to the facts. (U.S. v. Gaudin (1995) 515 US 506, 514 [115 SCt 2309; 132 LEd2d 444] [it is “the jury’s constitutional responsibility … not merely to determine the facts, but to apply the law to those facts … ” ]; Estelle v. McGuire (1991) 502 US 62, 70-72 [112 SCt 475; 116 LEd2d 385] [due process implicated if jurors misunderstood the instructions];Wainwright v. Witt (1985) 469 US 412 [83 LEd2d 841; 105 SCt 844]; cf., Johnson v. Armontrout (8th Cir. 1992) 961 F2d 748 [same].)
“Alleged” Perpetrator—Use of the term perpetrator erroneously implies that the offense was actually committed by that person when whether or not the alleged perpetrator committed the offense is a factual issue for the jury to determine. (See FORECITE F 401.3 Inst 1.)
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.7 [Failure To Tailor Elements To The Facts And Charge]
FORECITE CG 5.4.1 [Instructions That Suggest An Opinion as To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence]
FORECITE CG 6.1 [Due Process And Notice—Generally]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 400.2 Inst 2 Aiding And Abetting: Tailoring To Defendant And Perpetrator
*Modify CC 400, paragraph 1, sentence 1-3, as follows [added language is underlined; deleted language is stricken]:
A person The prosecution contends that the defendant may be guilty of a crime in two ways. One, he or she may have directly personally committed the crime. Two, he or she may have aided and abetted someone else by aiding and abetting [another person] [_______________ <insert name of alleged perpetrator>], who personally is alleged to have directly committed the crime. In these instructions, [I will call that other person the “perpetrator.“ ] A person The defendant is equally guilty of the crime whether he or she (he/she) committed it personally or aided and abetted the [perpetrator] [_______________ <insert name of alleged perpetrator>] who personally committed it.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Reference To Defendant Rather Than “A Person” Or “Someone” —Reference to “a person” rather than the defendant is vague, imprecise and potentially confusing. (Compare CALCRIM 401 [elements described as to the defendant].) Moreover, the judge has a duty to tailor the instructions to the facts. (See FORECITE F 400.2 Inst 1.)
Reference To Name Of Alleged Perpetrator—See FORECITE F 400.2 Inst 1.
When Perpetrator Not Known—“Perpetrator” is bracketed for use in cases where the perpetrator is unknown.
“Personally” vs. ADirectly” —CC 400 uses both terms. “Personally” is preferable because aiding and abetting liability should be considered in the context of the defendant’s acts and intent. (See People v. Beeman (1984) 35 C3d 547.)
Use Of The Term “Defendant” —The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.7 [Failure To Tailor Elements To The Facts And Charge]
FORECITE CG 5.4.1 [Instructions That Suggest An Opinion as To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 400.3 Aiding And Abetting: General Principles—Language That Is Argumentative, Confusing, Etc.
F 400.3 Inst 1 Aiding And Abetting: No Presumption That Crime Was Committed Or That The Alleged Perpetrator Committed It
*Modify CC 400, paragraph 1, sentence 1 & 2, as follows [added language is underlined; deleted language is stricken]:
A person may be found guilty of a crime in two ways. One, he or she may be found to have directly committed the an alleged crime. Two, he or she may be found to have aided and abetted someone else, who is found to have committed the alleged crime.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—The existence of a crime and the perpetrator’s commission of that crime should not be treated as established facts. It is up to the jurors to determine whether these matters have been proven beyond a reasonable doubt. (See FORECITE F 400.2 Inst 1.)
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.4.1 [Instructions That Suggest An Opinion as To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 400.3 Inst 2 Reference To Perpetrator As “Alleged” Or By Name
See FORECITE F 400.2 Inst 1.
F 400.3 Inst 3 Perpetrator Should Be Defined As One Who “Directly And Actively” Commits The Crime
*Modify CC 400 ¶ 1, sentence 2 as follows [added language is underlined]:
A person may be guilty of a crime in two ways. One, he or she may have directly and actively</strong > committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – The definition of perpetrator in CJ 3.00 which remained unblemished after decades of appellate litigation described a perpetrator as one who “directly and actively” commits the act constituting the crime. However, without any explanation or citation to authority the CALCRIM Committee changed the language to define the perpetrator as one who “directly” committed the crime. Because the single word “directly” is less clear than “directly and actively” the CALJIC definition should be used. (See generally FORECITE PG XI(C)(1); see also Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2011-2012), § 3:1, Defense Perspective, p. 73.)
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 400.4 Aiding And Abetting: General Principles—Burden Of Proof Issues
F 400.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
A. Pre Element [See e.g., CC 626]:
*Modify Pre-Elements language as follows:
Insert “beyond a reasonable doubt” after “prove”
B. Post Element [CC 3520 Format]:
*Add at end of recitation of elements:
The People have the burden of proving each element beyond a reasonable doubt. If the People have not met this burden, you must find that the alleged crime has not been proved.
C. Every Element Must Be Proven
*Modify as follows:
[Insert “AND” after every enumerated element.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Every Element Must Be Proved Beyond A Reasonable Doubt—See generally In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; see also CALCRIM 626, Paragraph 5.
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 400.4 Note 1 Aiding And Abetting: General Principles—Burden Of Proof Issues
See FORECITE F 401.5.
F 400.5 Aiding And Abetting: General Principles—Elements
F 400.5 Note 1 Aiding And Abetting: General Principles—Elements
See FORECITE F 401.5.
F 400.6 Aiding And Abetting: General Principles—Defense Theories
F 400.6 Note 1 Aiding And Abetting: General Principles—Defense Theories
See FORECITE F 401.6.
F 400.7 Aiding And Abetting: General Principles—Preliminary Fact Issues
F 400.7 Note 1 Aiding And Abetting: General Principles—Preliminary Fact Issues
See FORECITE F 401.7.
F 400.8 Aiding And Abetting: General Principles—Unanimity/Duplicity/Multiplicity [Reserved]
F 400.9 Inst 1 Aiding And Abetting: “Equally Guilty” Language Improper When Accomplice May Be Convicted Of Lesser Offense Than Perpetrator
ALERT: CALCRIM HISTORY – The CALCRIM Committee addressed this defect in its Fall 2009 revisions.
*Modify CJ 3.00, second sentence, when appropriate, to provide as follows:
Each principal, regardless of the extent or manner of participation, is equally guilty, except that an aider and abettor may be found guilty of a lesser offense than the perpetrator.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
“Equally Guilty” Language Is Misleading – The “equally guilty” language of CC 400 is misleading and inaccurate when, based on People v. Woods (1992) 8 CA4th 1570, 1585-88, the accomplice may be convicted of a lesser offense than the perpetrator based on the natural and probable consequences doctrine. (See FORECITE F 402.9 Inst 1.)
Moreover, conviction of the aider and abettor of a lesser offense than the perpetrator may also be appropriate in non-Woods situations (i.e., when the natural and probable consequence doctrine is not used).
The analysis in People v. McCoy (2001) 25 C4th 1111 sets up a legal relationship between the perpetrator and aider/abettor that looks to both the acts and mental state of each actor, on his or her own as well as together – “guilt is based on a combination of the direct perpetrator’s acts and the aider and abettor’s own acts and own mental state.” (McCoy, 25 C4th at 1117; see also People v. Samaniego (2009) 172 CA4th 1148, 1166.) From this principle, the proposition seems self-evident that the aider and abettor can be convicted of a lesser offense than the perpetrator: If an aider/abettor can be guilty of a greater crime than the perpetrator because of a greater mental state, then an aider/abettor can be guilty of a lesser crime than the perpetrator for the same reason. (See People v. Nero (2010) 181 CA4th 504 [The trial court committed prejudicial error by instructing the jury that an aider and abettor must be “equally guilty” with the perpetrator. The aider and abettor instructions in CALJIC 3.00 are confusing and should be modified.].)
For example, consider the following hypothetical: The perpetrator (P) wants to murder a business rival (V) for financial reasons; and P procures defendant (D) to help in the murderous scheme by telling D that V had been sleeping with D’s wife for the past two years. If D explodes in a jealous rage and takes P directly to V’s house where P walks in and kills V, P can be guilty as the perpetrator of a first-degree murder with special circumstances, while D could be found guilty of no more than voluntary manslaughter based on heat of passion. D knew the extent of the perpetrator’s purpose (at least to the extent of knowing P had premeditated a killing of V); he gave aid to P with the intent of facilitating P’s commission of that crime; but because—as McCoy correctly points out—he’s guilty based on his own acts and his own mental state, his own mental state could make him guilty of no more than voluntary manslaughter.
One cannot just rest on the defenses to the perpetrator’s crime. Since the aider and abettor has to have his own mental state, his mental state could just as easily be for a lesser-included offense, or the natural and probable consequences of one. There is no requirement that the aider and abettors’ mental state match the perpetrator’s. “Each person’s guilt would be based on the combined actus reus of the participants, but also solely on that person’s own mens rea. Each person’s level of guilt would ‘float free.’ ” (McCoy, 25 C4th at 1121.)
Furthermore, “[T]he dividing line between the actual perpetrator and the aider and abettor is often blurred. … The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices’ actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who was the direct perpetrator or to what extent each played which role.” (Id. at pp. 1120.) If as this paragraph of the opinion indicates, one sometimes can’t tell who is the perpetrator and who is the aider and abettor, and the law doesn’t require one to be able to determine who was which because aiders and abettors are liable on their own mens rea, then that applies as much to an aider/abettor having a lesser mens rea, as having a greater mens rea. In either case, both perpetrator and aider and abettor—no matter who is what—are liable for the combined actus reus of the other, but are so liable based on their own mens rea, including all of the natural and probable consequences of what they intended. That accounts for the Woods (People v. Woods (1992) 8 CA4th 1570) scenario as much as it does the McCoy scenario.
In sum, the reasoning of McCoy should apply to permit conviction of the aider and abettor for a lesser offense than the perpetrator.
NOTE: The following language in McCoy does not change this result: “Outside of the natural and probable consequences doctrine, an aider and abettor’s mental state must be at least that required of the direct perpetrator.” (McCoy, at 1117.) First, it’s dictum; that’s not the issue in McCoy. Second, it purports to be a summary of the rest of the paragraph—but nothing in the rest of the paragraph says or implies that. The rest of the paragraph says the accomplice must know the extent of the perpetrator’s purpose and give aid with the intent of facilitating the perpetrator’s commission of the crime; which is obviously true, but it doesn’t answer the question of what the aider/abettor’s mental state is or can be. McCoy simply makes clear that both principal and aider/abettor are liable based on their own acts and own mental states.
(See FORECITE F 400 Note 1; F 3.01n.)
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization – To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 8.4 [Right To Jury Determination Of Lesser Included Offense]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 3.00b.
