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 6 Aiding And Abetting Defined And Distinguished (PC 31)
*Replace CC 401, paragraph 2 with the following:
A person aids and abets the [commission] [or] [attempted commission] of a crime when he or she, & (1) With knowledge of the unlawful purpose of the perpetrator and (2) With the intent or purpose of committing, encouraging or facilitating the commission of the crime by act or advice, (a) promotes, encourages or instigates, and (b) actually aids or assists, the commission of the crime.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Elements Of Aiding And Abetting—“The term ‘aider and abettor’ is now often used to refer to principals other than the perpetrator … ” (People v. Beeman (1984) 35 C3d 547, 554-55.) But the courts must not lose sight of the fact that the terms “aider” and “abettor” are not synonymous. On the contrary, “the two words have a distinct and separate meaning.” (People v. Elliott (1993) 14 CA4th 1633, 1641, fn 8.) Under PC 31, “[a]side from the person who directly commits a criminal offense, no other person is guilty as principal unless he aids and abets. [Citations].” (People v. Dole (1898) 122 C 486, 492, emphasis in original.)
“The word ‘aids’ means ‘to assist; to supplement the efforts of another,’ while the word ‘abet’ means merely to incite or encourage. [Citation].” (Elliott, 14 CA4th at 1641, emphasis by Elliott court.) Thus, aiding “requires something more than mere encouragement or incitement ….” (Ibid.) The defendant must render “overt or affirmative assistance … .” (Ibid., emphasis omitted.) Hence, absent proof of some “overt or affirmative assistance” to the principal actor, true “aiding” cannot be found. (Elliott, 14 CA4th at 1641; People v. Brady (1987) 190 CA3d 124, 132; see also People v. Montoya (1994) 7 C4th 1027, 1044-45 [disapproving Brady on another point but approving Brady on this point].)
“[T]he term ‘aid and abet’ is not one in everyday use by laymen although it is commonly used in law … . Whenever instructions are given to the effect that one may be convicted if he aids and abets the criminal act the two words should be clearly defined.” (People v. Ponce (1950) 96 CA2d 327, 331.) By failing to define the A distinct and separate meaning[s]” of the two words (People v. Elliott, supra, 14 CA4th at 1641, fn 8)—and, even worse, by stating that either “aiding” or “encouraging” results in culpability—CJ 3.01 inadequately defines the actus reus of accomplice liability.
CALCRIMS’s definition of “aiding and abetting” is derived from the Supreme Court’s “suggest[ion]” in People v. Beeman, supra, 35 C3d at 561: “We suggest that an appropriate instruction should inform the jury that a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (Emphasis added.) But the court’s entire preceding analysis concerned the issue of accomplice intent. (Id. at 555-61.) Beeman had no occasion to address, and did not address, the entirely separate issue of the requisite acts for accomplice liability. Indeed, the court’s formulation merely repeated the wording already used in CALJIC’s definition of the necessary action. (Id. at 555.) For this reason, People v. Campbell (1994) 25 CA4th 402 is unpersuasive since it relied solely upon Beeman and never addressed the actus reus of aiding and abetting. (See also People v. Booth (96) 48 CA4th 1247, 1255.)
In sum, because the actus reus of aiding and abetting requires that the defendant aid and abet the commission of the crime, CALCRIM 400 should require the jury to make such a finding under appropriate definition of the terms aid and abet as set forth above.
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 3.01g.
F 401.5 Inst 7 Aider And Abettor Must Separately Form Intent Or Mental State Elements Of Charged Offense
*Add to CC 401:
To be guilty of _____________ <offense charged against perpetrator> the alleged aider and abettor must both:
1) intend to commit, facilitate or encourage the act committed by the perpetrator; and
2) form the mental state necessary for the charged offense.
To form the necessary mental state the alleged aider and abettor must have actually formed the [specific intent to __________ <insert specific intent element of charged offense, e.g., to kill>] [and] [the mental state[s] of _________ <insert mental state element(s) of charged offense, e.g., malice>] during or before the alleged acts of aiding and abetting.
[Here set forth any necessary definitions of the required intent or mental state.]
[In deciding if _______________ <name of alleged aider and abettor> had the [specific intent to _______________] [mental state of ____________], consider any evidence of _____________ <e.g., (his/her) intoxication>].
You may not return a verdict finding the defendant guilty of _______________ <charged offense> unless, in light of all the evidence, [you all agree] [all jurors agree] that the prosecution has proven beyond a reasonable doubt that _______________ <name of alleged aider and abettor> had [the specific intent to ______________] [the mental state of ______________], during or before the alleged acts of aiding and abetting, you must find the defendant not guilty. This is so even if you [agree] that ___________________ <name of alleged perpetrator> has been proven guilty of __________________ <charged offense>.
If, after considering all the evidence, [you] [all jurors] cannot agree that _____________ <alleged aider and abettor> formed the required [specific intent] [and] [the mental state of ____________] ______________ <defendant> must be acquitted.
Points and Authorities
Aider And Abettor Must Separately Form Intent Or Mental State Elements Of Charged Offense
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Aider And Abettor Must Form Intent And Mental State Elements Of The Charged Offense—People v. McCoy (2001) 25 C4th 1111 held that in murder cases not involving the natural and probable consequences doctrine, an aider and abettor may be convicted of murder even if the perpetrator is not. Thus, the court articulated a new view of aiding and abetting (compare People v. Padilla (1995) 11 C4th 891, 920; People v. Zermeno (1999) 21 C4th 927, 932; People v. Mendoza (1998) 18 C4th 1114, 1122-23), which requires the aider and abettor to actually form the mental state elements of the charged offense:
“When guilt is not predicated on the natural and probable consequences doctrine, the aider and abettor must, indeed, share the actual perpetrator’s intent.” (People v. McCoy (2001) 25 C4th 1111, 1118 fn 1 [emphasis in original].) This means that the guilt of the aider and abettor is determined not on the basis of the state of mind of the perpetrator but on the aider and abettor’s “own mens rea.” (People v. McCoy (2001) 25 C4th 1111, 1118.) That is, only the acts of the perpetrator are imputed to the aider and abettor, and the aider and abettor’s level of guilt “is permitted to float free,” tied only to the aider and abettor’s individual state of mind. (Id. at 1118 [quoting Dressler, Understanding Criminal Law (2d ed. 1995) §30.06[C]. p. 450].)
“We thus conclude that when a person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that person’s guilt is determined by the combined acts of all the participants as well as that person’s own mens rea. If that person’s mens rea is more culpable than another’s, that person’s guilt may be greater even if the other might be deemed the actual perpetrator.” (McCoy, 25 C4th at 1122; see also Juan H. v. Allen (9th Cir. 2005) 408 F3d 1262, 1278 [it is not enough for the prosecution to demonstrate that defendant knew that some criminal activity was afoot; knowledge element of aiding and abetting must be proven with respect to first-degree murder and attempted first-degree murder; the specific crimes defendant was alleged to have aided and abetted].)
“The only unlawful purpose charged here was an unlawful killing. Absent some circumstance negating malice one cannot knowingly and intentionally help another commit an unlawful killing without acting with malice. (See generally People v. Whitfield (1994) 7 C4th 437, 450.) Whether or not [the perpetrator] killed in unreasonable self-defense, thus negating what would otherwise be malice as to him, [the perpetrator’s] unreasonable self-defense would not negate the implicit jury finding that [the aider and abettor] knowingly and intentionally helped [the perpetrator] commit the crime, which constitutes malice.” (McCoy, 25 C4th at 1123.)
Thus, the McCoy court justified the aider and abettor’s conviction based on its conclusion that the aider and abettor actually harbored malice. As such, the opinion stands for the proposition that to convict an aider and abettor of murder, the aider and abettor must personally harbor malice.
Moreover, even though the McCoy opinion was limited to murder (see McCoy, 25 C4th at 1122), conceptually it should require the jury to find, in all aiding and abetting cases not involving the natural and probable consequences doctrine, that the aider and abettor actually formed the mental state elements of the charged offense. [See Brief Bank # B-924 for briefing and petition for rehearing on this issue on this issue.]
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
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]
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.
NOTE: In light of People v. McCoy (2001) 25 C4th 1111, an aider and abettor can also be convicted of a lesser offense than the perpetrator. (See FORECITE F 400.9 Inst 1.)
CALJIC NOTE: See FORECITE F 3.01n.
F 401.5 Inst 8 Aiding And Abetting Requires Substantial Participation
*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, substantially aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Substantial Assistance Requirement—The common law definition of aiding and abetting in the tort context requires “substantial assistance to the other in accomplishing a tortious result ….” (Fiol v. Doellstedt (1996) 50 CA4th 1318, 1325.) Certainly, the elements of aiding and abiding liability in the criminal context should be no less than is required under civil law. Accordingly, the jury should be instructed upon the “substantial” element as set forth above as a predicate to imposing criminal liability for aiding and abetting. As recently recognized by the United States Supreme Court, the courts should look to the common law to determine whether the defendant has a vested due process right in a particular defense. (See Montana v. Egelhoff (1996) 518 US 37 [135 LEd2d 361; 116 SCt 2013] [plurality opinion]; see also Schad v. Arizona (1991) 501 US 624 [115 LEd2d 555; 111 SCt 2491].) Under the same reasoning, the defendant has a due process right to instruction upon the elements of aiding and abetting as established by the common law.
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 3.01q.
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)
*Add to CC 401 when appropriate:
To find defendant guilty of [attempted murder] [murder] in the first degree it must be proven beyond a reasonable doubt that ___________ <insert name of actual killer> committed the killing [attempted to kill] with express malice and willful, deliberate premeditation.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Perpetrator Must Harbor Mental Elements For First Degree Murder—When a defendant is charged with attempted or completed murder based on premeditation and deliberation as an aider and abettor, the perpetrator (actual killer) must have the requisite mental state and the jury must be so instructed. The perpetrator “can (and must) manifest the mens rea of the crime committed” as a prerequisite to aider and abettor liability. (People v. Luparello (1986) 187 CA3d 410, 439.) Thus, for a jury to determine that a defendant has directly aided and abetted another person’s commission of a crime, the jury must necessarily determine the crime that the other person committed, including (where relevant) his mental state. This principle is recognized in numerous cases and in a number of contexts, as typified by the following statements of law:
People v. Patterson (1989) 209 CA3d 610, 614: “A defendant’s culpability for attempted murder as an aider and abettor necessarily depends on the commission of that crime by the perpetrator. In order to convict the perpetrator of attempted murder, the jury must find he had the requisite express malice and specific intent to kill. If no such finding is made, that person is not guilty of attempted murder.”
People v. Woods (1992) 8 CA4th 1570, 1586: In order to find a defendant guilty as an aider and abettor, a jury “first must determine the crimes and degrees of crimes originally contemplated and committed, if any, by the perpetrator.”
People v. Solis (1993) 20 CA4th 264, 270-271: ” ‘What is at issue is the responsibility of the secondary actor for the principal actor’s violation of law. Unless the latter occurs there can be no accomplice liability.’ … [T]he jury must determine the crime actually perpetrated by the acting criminal, which determination includes a particular definition of the crime committed and necessitates the giving of instructions as to that crime (including any lesser-included crimes that may be appropriate under the factual circumstances). If the principal actor is found not to have committed the crime, there can be no derivative liability no matter how evil the intentions of the would-be aider and abettor.” (Emphasis added; quoting Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine (1985) 73 Cal.L.Rev. 323, 337; see also, e.g., People v. Hammond (1986) 181 CA3d 463, 467 [“settled principles” establish “that the issue of attempted murder requires a specific intent to kill and that an aider and abettor must share the perpetrator’s intent” ] (citations omitted); People v. Brigham (1989) 216 CA3d 1039, 1050 [“the aider and abettor’s derivative criminal liability is based” on “the perpetrator’s criminal act” ].
In sum, when a defendant is accused of a crime based on the theory that he directly aided and abetted another person in committing the crime, the jury must determine whether the other person (the principal actor) committed the crime in question before the defendant (the secondary actor) can be held liable for the principal actor’s crime. The elements of the charged crime (the crime committed by the principal actor) are thus elements of the charge against the defendant, and, as has long been established, the trial court has a duty to ensure the jury is adequately instructed “on the law governing all elements of the case submitted to them to an extent necessary to enable them to perform their function in conformity with the applicable law.” (People v. Sanchez (1950) 35 C2d 522, 528; see also People v. Patterson, supra, 209 CA3d 610 at 616-17; see also FORECITE F 334 Inst 3.)
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 402 Notes.)
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.
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.
CAVEAT: This instruction pinpoints one element of the charge. It should be related to the other requisite elements to avoid any inference that the pinpointed element is the only one that need be proven.
CALJIC NOTE: See FORECITE F 3.01r.
F 401.5 Inst 10 Aiding And Abetting: Incorporation Of Definition Into Element
*Replace CC 401, Element 1, with the following:
Knowing of _______________’s <name of perpetrator> [unlawful purpose] [intent to commit _______________ <name of offense>], the defendant intended to, and did in fact, aid, facilitate, promote, advise and encourage or instigate _______________‘s <name of perpetrator> [unlawful purpose] [commission of the _______________ <name of offense>].
Points and Authorities
Definitions should be incorporated into the enumerated elements. (See FORECITE F 417.5 Inst 2.)
F 401.5 Inst 11 Presence Or Act Of Defendant Which Actually Aids The Perpetrator
See FORECITE F 401.7 Inst 3.