SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 401.5 AIDING AND ABETTING: INTENDED CRIMES-ELEMENTS
TABLE OF CONTENTS
F 401.5 Inst 1 (a-c) Aiding And Abetting Requires Knowledge Of Perpetrator’s Intent Prior To Commission Of The Crime
F 401.5 Inst 2 Defendant’s Acts Of Aiding And Abetting Must Be Said Or Made Before Or During The Crime
F 401.5 Inst 3 Defendant Must Advise And Encourage To Be An Aider And Abettor (PC 31)
F 401.5 Inst 4 For Aider/Abettor To Be Guilty Of Murder Perpetrator Must Harbor Express Malice (PC 31)
F 401.5 Inst 5 Perpetrator Must Be Found Guilty Beyond A Reasonable Doubt
F 401.5 Inst 6 Aiding And Abetting Defined And Distinguished (PC 31)
F 401.5 Inst 7 Aider And Abettor Must Separately Form Intent Or Mental State Elements Of Charged Offense
F 401.5 Inst 8 Aiding And Abetting Requires Substantial Participation
F 401.5 Inst 9 For Aider/Abettor To Be Guilty Of First Degree Murder, Perpetrator Must Harbor Express Malice And Premeditation And Deliberation (PC 31)
F 401.5 Inst 10 Aiding And Abetting: Incorporation Of Definition Into Element
F 401.5 Inst 11 Presence Or Act Of Defendant Which Actually Aids The Perpetrator
Return to Series 400 Table of Contents.
F 401.5 Inst 1 (a-c) Aiding And Abetting Requires Knowledge Of Perpetrator’s Intent Prior To Commission Of The Crime
Alternative a:
*Modify CC 401, paragraph 1, Element # 2, as follows [added language is underlined; deleted language is stricken]:
2. The defendant knew, prior to the commission of the [alleged] crime, that the [alleged perpetrator] [_____________ <insert name of perpetrator>] intended to commit the that crime;
Alternative b [CC 3400 Pinpoint format]:
The prosecution must prove that the defendant knew of __________’s <alleged perpetrator> intent to __________ <insert required intent> before the crime was committed. The defendant contends that (he/she) did not know of __________’s <alleged perpetrator> intent until after the crime was completed.
However, the defendant does not need to prove this. If you have a reasonable doubt about whether the defendant had the required knowledge of __________’s <alleged perpetrator> intent, you must find [him] [her] not guilty.
Alternative c:
A person may not be found guilty as an aider and abettor unless the act, knowledge and intent required for aiding and abetting all occurred before or during the alleged crime. If you have a reasonable doubt that the required act, knowledge and intent occurred before or during the alleged crime, you must give the defendant the benefit of that doubt and find [him] [her]] not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Pinpoint Instruction—See FORECITE F 315.1.2 Inst 2.
Prior Knowledge As Element—See People v. Pulido (1997) 15 C4th 713, 726-30; People v. Esquivel (1994) 28 CA4th 1386, 1394-97.
[See FORECITE F 401.6 Inst 2; see also FORECITE F 401.5 Inst 2; F 8.21a. [See Brief Bank # B-839 for additional briefing on this issue.]
Alleged Crime And Perpetrator—See FORECITE F 103.2 Inst 1; F 103.2 Inst 2.
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 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.
CALJIC NOTE: See FORECITE F 3.00e.
F 401.5 Inst 2 Defendant’s Acts Of Aiding And Abetting Must Be Said Or Made Before Or During The Crime
Alternative a:
*Modify CC 401, paragraph 1, Element # 4, as follows [added language is underlined]:
4. The defendant’s words or conduct which occurred prior to or during the [alleged] crime did in fact aid and abet the perpetrator’s commission of the crime.
*Modify paragraph 2 as follows [added language is underlined]:
Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and before or during the crime does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.
Alternative b [CC 3400 Pinpoint format]:
The prosecution must prove that the defendant committed the alleged acts of aiding and abetting before or during the commission of the crime. The defendant contends that any acts of aiding and abetting (he/she) committed were done after the crime was completed.
The defendant does not need to prove this contention. If you have a reasonable doubt that the defendant committed the alleged acts of aiding and abetting before or during the commission of the crime, you must find [him] [her] not guilty.
Alternative c:
The defendant may not be found guilty as an aider and abettor unless the act, knowledge and intent required for aiding and abetting all occurred before or during the alleged crime. If you have a reasonable doubt that the required act, knowledge and intent occurred before or during the alleged crime, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Post-Crime Acts Not Sufficient For Aiding And Abetting Liability—See FORECITE F 401.6 Inst 9.
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 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 401.5 Inst 3 Defendant Must Advise And Encourage To Be An Aider And Abettor (PC 31)
*Modify CC 401, paragraph 2 as follows [added language is underlined]:
Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, advise and encourage, or instigate the perpetrator’s commission of that crime.
OR
[See FORECITE F 401.5 Inst 6]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Requirement That Defendant “Advise And Encourage“—PC 31, the statutory basis for aiding and abetting liability requires that the defendant “advise and encourage” the perpetrator. (See also People v. Hoover (1974) 12 C3d 875, 879; People v. Balderas (1985) 41 C3d 144, 194, fn 22; People v. Butts (1965) 236 CA2d 817, 836.) Hence, CALCRIM 401 fails to employ the express statutory language of PC 31. Nor should People v. Beeman (1984) 35 C3d 547, 562 be relied upon to conclude that advice or encouragement is sufficient. Cases are not authority for propositions not considered therein. (People v. Dillon (1983) 34 C3d 441, 473-74.)
Furthermore, the words “advise” and “encourage” are not synonymous. The word “advise” is defined as “to give counsel to; to offer and opinion or suggestion as worth following.” (Webster’s Encyclopedia Unabridged Dictionary of the English Language, 1989, p. 21.) The word “encourage” is defined as “to inspire with courage, spirit or confidence … to stimulate by assistance, approval.” (Webster’s, Id. at 470.) One can “encourage” an offense by the mere statement “that sounds like a good idea.” However, telling another individual something “sounds like a good idea” is not the equivalent of advising and counseling the individual concerning the idea. For one to advise or counsel another as to a particular idea requires a far greater degree of commitment to the idea than is the case when one merely encourages the idea.
This analysis is supported by People v. Elliott (1993) 14 CA4th 1633, 1641-42, which concluded, in a discussion of accessory liability under PC 32, that the words “aid”” and “abet” “have a distinct and separate meaning.” (Elliott, 14 CA4th at 1641, fn 8.) “The word ‘aids’ means ‘to assist; to supplement the efforts of another,’ while the word ‘abet’ means merely to incite or encourage. [Citations].” [Emphasis by Elliott court]. Hence, because aider and abettor liability requires that the defendant aid and (not “or” ) abet (see People v. Beeman (1984) 35 C3d 547, 556), CC 401 erroneously allows the jury to find aider and abettor liability if the defendant merely encouraged the perpetrator. As Elliott makes clear, encouragement constitutes abetting, but not aiding.
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.
NOTES
While the legislature used the conjunctive phrase “advised and encouraged” to describe the elements of liability for ages 14 years and older, it employed the disjunctive phrase “advising, or encouraging” to describe the elements of liability for minors under 14 years old. Inclusion of the conjunctive phrase in one portion of the statute and omission of it in another evinces differing legislative intents. (Craven v. Crout (1985) 163 CA3d 779, 783.)
CALJIC NOTE: See FORECITE F 3.01a.
F 401.5 Inst 4 For Aider/Abettor To Be Guilty Of Murder Perpetrator Must Harbor Express Malice (PC 31)
*Add to list of Elements in CC 401 when appropriate:
5. _______________ <insert perpetrator’s name> committed [the killing] [the ineffectual act] with [express] malice aforethought [intent to kil].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Perpetrator Must Harbor Malice—When a defendant is charged with attempted murder or completed malice murder as an aider and abettor, the perpetrator (actual killer) must have the requisite express malice (intent to kill) and the jury must be so instructed. (People v. Patterson (1989) 209 CA3d 610, 614-15; see also People v. Woods (1992) 8 CA4th 1570, 1586; People v. Solis (1993) 20 CA4th 264, 270-271.) Moreover, the aider and abettor must act (1) with knowledge of the perpetrator’s “criminal purpose” (i.e., intent to kill unlawfully) and (2) with an intent or purpose to aid and abet the commission of the offense (i.e., the intended murder). (Patterson, supra, at 616-17; see also People v. McCoy (2001) 25 C4th 1111, 1122 [in situations not involving the natural and probable consequences doctrine, the aider and abettor may be convicted of a greater crime than the perpetrator].)
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.
NOTES
See FORECITE F 401.5 Inst 9 for further discussion and briefing on this issue.
Application When Murder Is Target Offense—This instruction is applicable when murder or attempted murder was the target offense. (See People v. Jones (1989) 207 CA3d 1090, 1095.) If there is another target offense then the aider and abettor need only have intended to facilitate the commission of that offense. (Ibid; see also People v. Croy (1985) 41 C3d 1, 12 fn 5; CJ 3.02.) However, he must still have acted with knowledge of the perpetrator’s intent to murder or the murder must be a natural and probable consequence of the target crime. (Ibid; see also FORECITE F 3.02 Notes.)
Implied Malice—The logic of Patterson would seem to be equally applicable to implied malice murder.
Application To Mental Elements Of Other Crimes—Because the perpetrator must actually form the required mental elements (People v. Beeman (1984) 35 C3d 547, 560, this instruction may be adapted for use in any case where the mental state of the perpetrator may be in issue. (See e.g., FORECITE F 401.6 Inst 4.)
CALJIC NOTE: See FORECITE F 3.01b.
F 401.5 Inst 5 Perpetrator Must Be Found Guilty Beyond A Reasonable Doubt
*Add to CC 401:
The defendant may not be convicted as an aider and abettor absent proof beyond a reasonable doubt that __________ <insert name(s) of alleged perpetrator(s)> [is] [are] guilty of __________ <insert crime alleged to have been committed by the perpetrators for which defendant is being held vicariously liable>. If you have a reasonable doubt as to whether __________ [is] [are] guilty of __________, you must give the defendant the benefit of that doubt and find [him] [her] not guilty as an aider and abettor.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Instruction—See FORECITE F 315.1.2 Inst 2.
Guilt Of Perpetrator As Element Of Aiding And Abetting To Which Defense Theory May Be Related—An essential prerequisite to the defendant’s guilt as an aider and abettor is proof beyond a reasonable doubt of the guilt of the alleged perpetrator. (See People v. Perez (2005) 35 C4th 1219, 1227 [aiding and abetting liability requires the completion of an independent attempted or completed crime]; see also People v. Singleton (87) 196 CA3d 488, 493 [error to instruct on aiding and abetting absent proof of existence of direct perpetrator]; People v. Taylor (1974) 12 C3d 686, 693-698; People v. Patterson (1989) 209 CA3d 610, 614-15; see also People v. Beeman (1984) 35 C3d 547, 560.) As an essential prerequisite to finding aider and abettor liability, “the jury first must determine the crimes and degrees of crimes originally contemplated and committed, if any, by the perpetrator.” (People v. Woods (1992) 8 CA4th 1570, 1586; see also FORECITE F 401.5 Inst 4.) This is so because “accomplice liability is ‘derivative’ that is, it results from an act by the perpetrator to which the accomplice contributed.” (Emphasis added.) (People v. Prettyman (1996) 14 C4th 248, 259; see also People v. Patterson (1989) 209 CA3d 610 [finding that perpetrator must harbor requisite mental state of the charge as essential requisite to conviction of the aider and abettor].)
Hence, in order to obtain a conviction against both the perpetrator and aider and abettor, the prosecution must actually prove the perpetrator guilty twice. For example, if the parties are tried separately, the perpetrator must be proven guilty at the trial of the perpetrator and at the trial of the aider and abettor. The fact that the perpetrator was separately convicted or admitted guilt may not be substituted for a separate showing of the perpetrator’s guilt based only upon the evidence admitted against the perpetrator: “Evidence as to declarations by [the perpetrator], whether in the form of extra-judicial admissions or in the form of the pleas of guilty, is not competent [to prove the perpetrator guilty in the aider and abettor’s trial].” (State v. Jackson (1967) 155 SE2d 236, at 237 [270 NC 773]; see also LaFave and Scott, Substantive Criminal Law (1986) §6.6, p. 135.) “It is now generally true … that conviction of the principal is not admissible at the aider and abettor’s trial to establish that the crime was committed. This is so because of A the right of every defendant to stand or fall with the proof of the charge made against him, not somebody else.’ [Citation].” (Emphasis added.) (LaFave and Scott, supra.)
Similarly, in a joint trial in which both the perpetrator and aider and abettor are charged, the jury must actually make two separate determinations of the perpetrator’s guilt: one, to decide the perpetrator’s liability based on the evidence admitted against the perpetrator and one to decide the accomplice’s liability based only on the evidence admitted against the accomplice:
“Where two persons are indicted jointly, the crime is several in nature. The guilt of one is not dependent upon the guilt of the other. If one is convicted or pleads guilty, this is not evidence of the guilt of the other.” (State v. Jackson, supra, 155 SE2d at 237; see also People v. Young (1978) 85 CA3d 594 at 601-02.)
In sum, whether the trials are separate or joint, it is incumbent upon the prosecution to separately prove that the perpetrator committed the alleged offense before the aider and abettor can be convicted of that crime. (See People v. Woods, supra, 8 CA4th 1570; see also People v. Young, supra, 85 CA3d at 601-02; LaFave and Scott, supra, [“[T]he prosecution [must] show on trial of the [aider and abettor] that the crime was committed, as well as whom and how the defendant aided in its commission].” )
When the defense relies upon a theory that the perpetrator has not been proven guilty beyond a reasonable doubt, the above instruction is appropriate to focus the jury upon that theory. Because this instruction relates a theory of the defense to an element of the charge, it should also relate the burden of proof to the issues addressed. (EC 502; People v. Simon (1995) 9 C4th 493, 500-01 [trial court required to instruct on who has the burden and the nature of that burden]; People v. Adrian (1982) 135 CA3d 335, 342; see e.g., CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15; see also FORECITE PG III(D) & PG III(E).)
ALERT: People v. Superior Court (Sparks) (2010) 48 C4th 1 overruled People v. Taylor (1974) 12 C3d 686 and notes similar position taken by U.S. Supreme Court in Standefer v. United States (1980) 447 US 10, 25-26 [64 LEd2d 689; 100 SCt 1999].
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 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.
PRACTICE NOTE: The above instruction addresses only the question of guilt or innocence. If there is a question as to the degree of guilt of the perpetrator, then the instruction should be modified to focus the jury upon the degree of guilt issues upon which the defense is relying. (See e.g., FORECITE F 401.5 Inst 4 [perpetrator must harbor express malice in attempted murder prosecution]; see also FORECITE F 401.6 Inst 4.)
CAVEAT: People v. McCoy (2001) 25 C4th 1111, 1122 held that in situations not involving the natural and probable consequences doctrine the aider and abettor may be convicted of a greater crime than the perpetrator. (See FORECITE F 400.9 Inst 1.)
CALJIC NOTE: See FORECITE F 3.01e.
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