ACCOMPLICE ISSUES: VARIATIONS ON THE THEME

Note: All references to "FORECITE" refer to FORECITE California, authored by Thomas Lundy and available from James Publishing. Go to: http://jamespublishing.com/books/fc.htm

    Nothing in criminal law provides a greater watershed of issues than the concept of accomplice liability. The following are just few of the multitude of instructional modifications or additions which should be made to the standard CALJIC instructions regarding various forms of accomplice liability.

F 3.01i Mere Presence Which Assists Commission Of The Crime Is Not Aiding And Abetting

*Modify CJ 3.01 ¶ 5 to provide as follows [deleted language is between <<>>]:

    Mere presence at the scene of a crime <<which does not itself assist the commission of the crime>> does not amount to aiding and abetting.

[See FORECITE F 3.01a regarding requirement that defendant advise andencourage the perpetrator; see FORECITE F 3.01j regarding need to clarify actus reus in CJ 3.01.]

Points and Authorities

    Without one of the above modifications, CJ 3.01 could be interpreted to allow aiding and abetting liability based on presence at the scene of the crime which assists the commission of the crime, even though the defendant did not have the requisite intent to aid and abet. Such a result would violate the settled construction of aiding and abetting in California (see People v. Beeman(84) 35 C3d 547, 560-61 [199 CR 60]) and would implicate the defendant's state and federal constitutional rights to due process and trial by jury by allowing conviction without requiring the jury to find all elements of the charge. (See Roy v. Gomez (9th Cir. 4/15/96, 94-15994) 81 F3d 863, 866-68 [failure to instruct on Beeman intent element was held reversible on federal habeas].)

F 3.01j Aiding And Abetting: Clarification Of Actus Reus and Mens Rea

*Modify CJ 3.01 ¶ 1, 2, 3 to provide as follows:

    A person aids and abets the [commission] [or] [attempted commission] of a crime when he or she, by act or advice aids, promotes, encourages or instigates the commission of the crime:

    (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.

Points and Authorities

    It is axiomatic that the law does not punish for an intent alone or an act alone. There must be a concurrence of both act and intent (PC 20; FORECITE F 3.31.5 n1; People v. Green (80) 27 C3d 1, 53 [164 CR 1]; Lupo v. Superior Court(73) 34 CA3d 657, 661 [110 CR 185]. The act or advice language is intended to be a statement of the actus reus of aiding and abetting rather than the mens rea. (See FORECITE F 3.01a; see also, PC 31.)

    CJ 3.01 fails to clearly convey this requirement as to aiding and abetting. The current language of CJ 3.01 is ambiguous as to whether the "act or advice" element is part of the mens rea or the actus reus of the crime. As currently phrased, the language "by act or advice" immediately follows the language describing the necessary intent. Therefore, the reader could easily conclude that the defendant need only intend to act or advise.

    In other words, the jury must find that the defendant actually committed an act of advice, encouragement, etc. rather than merely forming an intent to commit such an act. Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution's burden of proof thereon violates the defendant's state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]

F 8.85 Inst 14 Individualized Consideration For Accomplice

*Add to CJ 8.85:

    At the guilt phase, you were told that [those who directly and actively commit the crime and those who aid and abet the crime are equally guilty] [and] [a conspirator is liable for the natural and probable consequences of any act of a co-conspirator to further the object of the conspiracy]. These principles of [aiding and abetting] [and] [conspiracy] are not applicable to the determination of which sentence shall be imposed upon defendant __________. Your sentencing determination must be based entirely upon the individual culpability and characteristics of defendant __________ as set forth in these penalty phase instructions.

Points and Authorities

    When guilt is predicated upon vicarious liability, the jury is instructed that a person who aids and abets the perpetrator of the crime is "equally guilty" of the crime committed by the perpetrator. (CJ 3.00.) A similar instruction is given with regard to a conspirator who participates in the conspiracy but does not personally commit the target offense. (CJ 6.11.) These principles of vicarious liability are inapplicable to the penalty determination which must be based upon the individual culpability and characteristics of the defendant. It is "well established" that the 8th and 14th Amendments require "individualized sentencing determinations in death penalty cases." (Stringer v. Black (92) 503 US 222 [117 LEd2d 367, 378-39; 112 SCt 1130]; Clemons v. Mississippi (90) 494 US 738, 752 [108 LEd2d 725; 110 SCt 1441].) The 8th and 14th Amendments allow a sentence of death to be imposed only upon a defendant "shown to be culpable due to his own actions, intentions, and expectations, not those of his cohorts." (Green v. State(84) 682 SW2nd 271, 287 (applying Enmund v. Florida (82) 458 US 782 [73 LEd2d 1140; 102 SCt 3368]); see also, Tison v. Arizona (87) 481 US 137 [95 LEd2d 127; 107 SCt 1676]; Martinez v. State (94) 899 SW2d 655, 657.) Hence, the fact that the defendant played a lesser role in the offense should be given mitigating consideration and any aggravating facts which relate to the accomplice and not the defendant should not be used as aggravating evidence against the defendant.

    CJ 8.85(j) seeks to convey this point to the jury with the following language: "You shall consider, take into account and be guided by the following factors, if applicable ... (j) whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor."

    This instruction is inadequate for several reasons. First, this instruction does not address conspiracy at all. Second, to the extent that it addresses aiding and abetting, it does not specifically inform the jury that the "equally guilty" concept should not be considered in determining the penalty. Third, the instruction is specifically limited to situations where the defendant's participation in the commission of the offense was "relatively minor." This unnecessarily limits the jury's consideration of the extent to which the defendant actually participated in the offense. For example, the defendant may have actually participated in a robbery in which the codefendant was the triggerman. Under these circumstances, the jury might not consider that the defendant's participation was "relatively minor" and, therefore, under the current CALJIC instruction, would not give mitigating effect to the fact that the accomplice was the triggerman. Hence, CJ 8.85(j) should be modified to inform the jury to consider all aspects of the relative participation of the defendant and the accomplice in order to reliably correlate the appropriate sentence to the defendant's actual participation. (In this regard it should be noted that "factor (k)" CJ 8.85(k) -- the "catch all" factor -- does not encompass the concept discussed herein because it merely informs the jury to consider "any other circumstances which extenuates the gravity of the crime ...." Thus, the fact that the defendant was not the triggerman does not extenuate the gravity of the crime -- the crime is just as severe regardless of who pulled the trigger -- and, therefore under factor "k" the jury is not told to consider any circumstances which minimized the defendant's culpability for that crime.)

    Accordingly, CJ 8.85(j) should be replaced and/or supplemented in order to assure that a reliable, individualized sentence is imposed in accord with the 8th Amendment of the federal constitution.

See also, F 8.85 Inst 10 [lingering doubt as to extent of defendant's guilt].

F 8.67a Attempted Murder: Premeditated Enhancement -- Defendant Must Premeditate (PC 664(a))

*Modify CJ 8.67 as follows [added language is capitalized; deleted language is between <<>>]:

*¶ 3:

*¶ 6:

*Add to end:

Points and Authorities

    When an aider and abetter is charged with attempted murder which is premeditated and deliberate under PC 664(a), the premeditation allegation is essentially a sentence enhancing provision. (People v. Bright (96) 12 C4th 652, 692 [49 CR2d 732] dis. opn. of Kennard, J.) Accordingly, it must be determined from the statute whether liability for the sentencing enhancement may be imposed vicariously upon an aider and abetter. (See e.g., People v. Walker(76) 18 C3d 232, 240-43 [133 CR 520] [PC 12022.5 use enhancement requires personal use].)

    The governing statute with respect to attempted murder is somewhat awkwardly worded in the context of this issue: "[I]f the crime attempted iswillful, deliberate and premeditated murder, as defined in [PC] 189, the person guilty of that attempt shall be punishable ...." (PC 664(a) [emphasis added].) Under a literal construction of the emphasized phrases, if an attempted murder was premeditated by someone, then any defendant found guilty is subject to the increased term, with or without the requisite mens rea or any knowledge of it. However, such a result would create absurd and unjust results which should not be ascribed to the Legislature. (See In re Jason L. (90) 222 CA3d 1206, 1214 [272 CR 316].) "In this context the application of that rule of construction suggests that conduct that is more, not less, culpable is required for imposition of criminal penalties. [Citation.]" (People v. Simon (95) 9 C4th 493, 517 [37 CR2d 278].) If there is a reasonable alternative construction which is more favorable to the defendant, it generally must be adopted by the courts. (Ibid.) Such a construction exists. In PC 664(a) "the person guilty of that attempt" is a reference to the entire preceding clause: "if the crime attempted is willful, deliberate and premeditated murder ...." The two clauses read together suggest that only a defendant who in fact deliberated and premeditated is subject to the enhanced punishment.

    Such a result is consistent with People v. Walker, supra, 18 C3d at 241-42, which held that: "if [an enhancing] statute is intended to impose a derivative liability on some person other than the actor, there must be some legislative direction that it is to be applied to persons who do not themselves commit the proscribed act." (Id. at 241-42.)

    "Since Walker, the Legislature has been quite explicit when it intends an enhancement provision to apply to a defendant, even though he himself does not commit the proscribed act." (People v. Piper (86) 42 C3d 471, 477 [229 CR 125].) Where no such express provision is made in the statute -- or where its reach is ambiguous -- personal liability must be established. (Ibid; see also, People v. Rener (94) 24 CA4th 258, 267 [29 CR2d 392].) Accordingly, since the Supreme Court has held that PC 664(a) is a penalty enhancement provision rather than a substantive offense (Bright, 12 C4th at 668), under Walker the statute requires the defendant to personally deliberate and premeditate for the enhancement to apply. (See also, People v. Ross (79) 92 CA3d 391, 402-03 [154 CR 783] [defendant could not be subjected to additional punishment for a torture special circumstance on a theory of derivative liability].) [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-683.]

    Accordingly, the jury should be instructed that it must determine whether the defendant personally deliberated and premeditated.    

RETURN TO TABLE OF CONTENTS