SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 401.7 AIDING AND ABETTING: INTENDED CRIMES—PRELIMINARY FACT ISSUES
F 401.8 AIDING AND ABETTING: INTENDED CRIMES—UNANIMITY/DUPLICITY/MULTIPLICITY
F 401.9 AIDING AND ABETTING: INTENDED CRIMES—LESSER OFFENSE ISSUES
TABLE OF CONTENTS
F 401.7 AIDING AND ABETTING: INTENDED CRIMES—PRELIMINARY FACT ISSUES
F 401.7 Inst 1 Defendant’s Failure To Prevent The Crime: Preliminary Facts
F 401.8 AIDING AND ABETTING: INTENDED CRIMES—UNANIMITY/DUPLICITY/MULTIPLICITY
F 401.8 Note 1 Aiding And Abetting: Unanimity/Duplicity
F 401.8 Note 2 Aiding And Abetting: Multiplicity
F 401.9 AIDING AND ABETTING: INTENDED CRIMES—LESSER OFFENSE ISSUES
F 401.9 Inst 1 Giving Assistance Without Sharing The Perpetrator’s Purpose And Intent Establishes Liability Only As An Accessory, Not As An Accomplice
F 401.9 Note 1 Aiding And Abetting: Lesser Included Offenses
Return to Series 400 Table of Contents.
F 401.7 Aiding And Abetting: Intended Crimes—Preliminary Fact Issues
F 401.7 Inst 1 Defendant’s Failure To Prevent The Crime: Preliminary Facts
*Add after CC 401, paragraph 4, sentence 1:
Alternative a:
However, you must not consider any evidence as to the alleged failure of the defendant to prevent the crime unless you first find [it more likely than note] that:
1. The defendant was aware that the crime was [being] [going to be] committed;
AND
2. It was reasonably within the defendant’s power to prevent the crime.
Alternative b [Preliminary Fact: CALCRIM 375, 1191, 1400 & 376 FormatB Not alone sufficient to convict]:
The prosecution contends that the defendant did not prevent the crime from being committed and therefore did not withdraw.
However, you must not consider the defendant’s alleged failure to prevent the crime from being committed, for any purpose, unless the prosecution has proved the following preliminary facts by a preponderance of the evidence:
1. The defendant was aware that the crime was [being] [going to be] committed;
AND
2. It was reasonably within the defendant’s power to prevent the crime.
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that [all of the above] [this] preliminary fact[s] to exist, you must [disregard the defendant’s alleged failure to prevent the crime for all purposes] [not consider the defendant’s alleged failure to prevent the crime against the defendant].
If you [all] find the [all of] the above preliminary fact[s] to exist then you may consider the defendant’s alleged failure to prevent the crime [for the limited purpose of _______________________] in your deliberations.
However, such evidence is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _________ <insert charged offense[s]>.
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Awareness Of Crime And Ability To Prevent It As Preliminary Facts—Since the relevance of the evidence depends on a finding of these facts, they are preliminary facts under EC 403.
Propriety Of Preliminary Fact Instruction—See EC 403; see also F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts and Elements of the Offense—The final paragraph of Alternative b, regarding proof of essential facts is adapted from CALCRIM 224 and 376. (See also FORECITE 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact—See FORECITE F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts—See FORECITE F 3500.3.1.
Not Alone Sufficient To Convict—See FORECITE F 319 Inst 1.
Obligation Of Defendant To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof—See F 100.1 Inst 1; see also CAVEAT 3 in F 319 Inst 1.
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 5.7 [Preliminary Facts]
Unanimity Use Note: If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence; those not finding it cannot. (See generally FORECITE F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See Caveat 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions— See Caveat 2 in FORECITE F 319 Inst 1.
F 401.8 Aiding And Abetting: Intended Crimes—Unanimity/Duplicity/Multiplicity
F 401.8 Note 1 Aiding And Abetting: Unanimity/Duplicity
See generally FORECITE F 3500.1.
F 401.8 Note 2 Aiding And Abetting: Multiplicity
See generally FORECITE F 3515.
F 401.9 Aiding And Abetting: Intended Crimes—Lesser Offense Issues
F 401.9 Inst 1 Giving Assistance Without Sharing The Perpetrator’s Purpose And Intent Establishes Liability Only As An Accessory, Not As An Accomplice
See FORECITE F 401.6 Inst 2.
F 401.9 Note 1 Aiding And Abetting: Lesser Included Offenses
See generally FORECITE LIO I, II, III, IV, V and VI.
