Theories of liability

Aider and abettor

Statutes

Penal Code section 31: "All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, or persons who are mentally incapacitated, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed."

Penal Code section 971: "The distinction between an accessory before the fact and a principal, and between principals in the first and second degree is abrogated; and all persons concerned in the commission of a crime, who by the operation of other provisions of this code are principals therein, shall hereafter be prosecuted, tried and punished as principals and no other facts need be alleged in any accusatory pleading against any such person than are required in an accusatory pleading against a principal."

CALCRIM 400

A person may be guilty of a crime in two ways. One, he or she may have directly 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.

A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator.

[Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.]

An aider and abettor may be found guilty of a different crime or degree of crime than the perpetrator if the aider and abettor and the perpetrator do not have the same mental state. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1166 [91 Cal.Rptr.3d 874]; People v. Woods (1992) 8 Cal.App.4th 1570, 1577–1578 [11 Cal.Rptr.2d 231]; People v. McCoy (2001) 25 Cal.4th 1111, 1115–1116 [108 Cal.Rptr.2d 188, 24 P.3d 1210].) If the prosecution is also relying on the natural and probable consequences doctrine, the court should also instruct with the last bracketed paragraph. Depending on which theories are relied on by the prosecution, the court should then instruct as follows. Intended Crimes (Target Crimes) If the prosecution’s theory is that the defendant intended to aid and abet the crime or crimes charged (target crimes), give CALCRIM No. 401, Aiding and Abetting: Intended Crimes.

Natural & Probable Consequences Doctrine (Non-Target Crimes) If the prosecution’s theory is that any of the crimes charged were committed as a natural and probable consequence of the target crime, CALCRIM No. 402 or 403 should also be given. If both the target and non-target crimes are charged, give CALCRIM No. 402, Natural and Probable Consequences Doctrine (Target and Non-Target Offenses Charged). In some cases, the prosecution may not charge the target crime but only the non-target crime. In that case, give CALCRIM No. 403, Natural and Probable Consequences (Only Non-Target Offense Charged).

Aiding and Abetting Defined. People v. Beeman (1984) 35 Cal.3d 547, 560–561

Murder Not Complete Until Victim Dies. People v. Celis (2006) 141 Cal.App.4th 466, 471–474

1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Introduction to Crimes, §§ 94–97. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.03[2][d] (Matthew Bender). 6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.10 (Matthew Bender).

“Because a conspirator can be liable for a crime committed by any other conspirator, and the defendant need not do (or even encourage) anything criminal except agree to commit a crime, it is reasonable to make a conspirator not liable for another conspirator's crime that is a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design. But aiding and abetting is different. An aider and abettor is someone who, with the necessary mental state, by act or advice aids, promotes, encourages or instigates, the commission of the crime. Because the aider and abettor is furthering the commission, or at least attempted commission, of an actual crime, it is not necessary to add a limitation on the aider and abettor's liability for crimes other principals commit beyond the requirement that they be a natural and probable, i.e., reasonably foreseeable, consequence of the crime aided and abetted. If the prosecution can prove the nontarget crime was a reasonably foreseeable consequence of the crime the defendant intentionally aided and abetted, it should not additionally have to prove the negative fact that the nontarget crime was not committed for a reason independent of the common plan. [¶ ] To be sure, whether an unintended crime was the independent product of the perpetrator's mind outside of, or foreign to, the common design may, if shown by the evidence, become relevant to the question whether that crime was a natural and probable consequence of the target crime. In a given case, a criminal defendant may argue to the jury that the nontarget crime was the perpetrator's independent idea unrelated to the common plan, and thus was not reasonably foreseeable and not a natural and probable consequence of the target crime. But that would be a factual issue for the jury to resolve, not a separate legal requirement.” (People v. Smith, 60 Cal. 4th 603, 616-617, 180 Cal. Rptr. 3d 100, 337 P.3d 1159 (2014) (internal quotes and citations omitted; emphasis in original).)

“[P]roof of [direct] aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea—knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus—conduct by the aider and abettor that in fact assists the achievement of the crime.” (People v. Perez, 35 Cal. 4th 1219, 1225, 29 Cal. Rptr. 3d 423, 113 P.3d 100 (Cal. 2005).)

“Aiding and abetting may be shown by circumstantial evidence. It is well-settled that the presence at the scene of the crime and failure to prevent it, companionship and conduct before and after the offense, including flight, are relevant to determining whether a defendant aided and abetted in the commission of a crime. [Citations.] [¶ ] Motive is another circumstance to be considered in determining aiding and abetting liability. (See People v. Rogers (1985) 172 Cal.App.3d 502, 504, 217 Cal.Rptr. 809 [helping the actual perpetrator because of a ‘familial concern’ is a motive to aid and abet].)” (People v. Glukhoy, 77 Cal. App. 5th 576, 599-600, 292 Cal. Rptr.3d 623 (3d Dist. 2022), review granted, see Cal. Rules of Court, rules 8.1105 and 8.1115, 295 Cal. Rptr. 3d 878, 513 P.3d 165, cited for persuasive authority pursuant to Cal. Rules of Court, rule 8.1115.)

Conspiracy

Pursuant to section 182, subdivision (a)(1), a conspiracy consists of two or more persons conspiring to commit any crime. A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree to conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act ‘by one or more of the parties to such agreement’ in furtherance of the conspiracy. [Citations.] [¶] Criminal conspiracy is an offense distinct from the actual commission of a criminal offense that is the object of the conspiracy. [Citations.] ... [¶] ‘ “ ‘In contemplation of law the act of one [conspirator] is the act of all. Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences....' ” ’” (People v. Morante (1999) 20 Cal.4th 403, 416–417)

Statute

(a) If two or more persons conspire:

(1) To commit any crime.

(2) Falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime.

(3) Falsely to move or maintain any suit, action, or proceeding.

(4) To cheat and defraud any person of any property, by any means which are in themselves criminal, or to obtain money or property by false pretenses or by false promises with fraudulent intent not to perform those promises.

(5) To commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws.

(6) To commit any crime against the person of the President or Vice President of the United States, the Governor of any state or territory, any United States justice or judge, or the secretary of any of the executive departments of the United States.

They are punishable as follows:

When they conspire to commit any crime against the person of any official specified in paragraph (6), they are guilty of a felony and are punishable by imprisonment pursuant to subdivision (h) of Section 1170 for five, seven, or nine years.

When they conspire to commit any other felony, they shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony. If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony the defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.

If the felony is conspiracy to commit two or more felonies which have different punishments and the commission of those felonies constitute but one offense of conspiracy, the penalty shall be that prescribed for the felony which has the greater maximum term.

When they conspire to do an act described in paragraph (4), they shall be punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by a fine not exceeding ten thousand dollars ($10,000), or by both that imprisonment and fine.

When they conspire to do any of the other acts described in this section, they shall be punishable by imprisonment in a county jail for not more than one year, or pursuant to subdivision (h) of Section 1170, or by a fine not exceeding ten thousand dollars ($10,000), or by both that imprisonment and fine. When they receive a felony conviction for conspiring to commit identity theft, as defined in Section 530.5, the court may impose a fine of up to twenty-five thousand dollars ($25,000).

All cases of conspiracy may be prosecuted and tried in the superior court of any county in which any overt act tending to effect the conspiracy shall be done.

(b) Upon a trial for conspiracy, in a case where an overt act is necessary to constitute the offense, the defendant cannot be convicted unless one or more overt acts are expressly alleged in the indictment or information, nor unless one of the acts alleged is proved; but other overt acts not alleged may be given in evidence.

Merger

The first such exception is Wharton's Rule (1 Anderson, Wharton's Criminal Law and Procedure (1957) p. 191), which provides that where “the cooperation of two or more persons is necessary to the commission of the substantive crime, and there is no ingredient of an alleged conspiracy that is not present in the substantive crime, then the persons necessarily involved cannot be charged with conspiracy to commit the substantive offense and also with the substantive crime itself. [Citations.] ... The rule is considered in modern legal thinking as an aid in construction of statutes, a presumption that the Legislature intended the general conspiracy section be merged with the more specific substantive offense. [Citation.]” (People v. Mayers (1980) 110 Cal.App.3d 809, 815, 168 Cal.Rptr. 252; see, e.g., Pinkerton v. United States (1946) 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489; People v. Keyes (1930) 103 Cal.App. 624, 646, 284 P. 1096 [on denial of petn. for hearing by Cal. Supreme Ct.].) It applies only where it is impossible to have the substantive offense “without concerted effort amounting to conspiracy ....” (Mayers, at p. 816, 168 Cal.Rptr. 252, italics added.)6 As the United States Supreme Court explained in Iannelli v. United States (1975) 420 U.S. 770, 783–784, 95 S.Ct. 1284, 43 L.Ed.2d 616, Wharton's Rule “has current vitality only as a judicial presumption, to be applied in the absence of legislative intent to the contrary. The classic Wharton's Rule offenses—adultery, incest, bigamy, duelling—are crimes that are characterized by the general congruence of the agreement and the completed substantive offense. The parties to the **932 agreement are the only persons who participate in commission of the substantive offense, and the immediate consequences of the crime rest on the parties themselves rather than on society at large. [Citation.] Finally, the agreement that attends the substantive offense does not appear likely to pose the distinct kinds of threats to society that the law of conspiracy seeks to avert. It cannot, for example, readily be assumed that an agreement to commit an offense of this nature will produce agreements to engage in a more general pattern of criminal conduct. [Citations.]” (Lee (2006) 136 Cal.App.4th 522.)

Criminal conspiracy is an offense distinct from the actual commission of a criminal offense that is the object of the conspiracy. West's Ann.Cal.Penal Code § 182. People v. Lee, 38 Cal. Rptr. 3d 927 (Cal. App. 5th Dist. 2006). Conspiracy to commit residential robbery in concert is a separate and distinct crime from the offense that is the object of the conspiracy. In re Mitchell, 81 Cal. App. 4th 653, 97 Cal. Rptr. 2d 41 (4th Dist. 2000).

37 A.L.R. 778

75 A.L.R. 1411

California Delta Farms v. Chinese American Farms (1928) — Cal. —, 268 Pac. 1050 — II Mitchell, In re, 81 Cal. App. 4th 653, 97 Cal. Rptr. 2d 41 (4th Dist. 2000) — Supp People v. Eiseman, 78 Cal. App. 223, 248 P. 716 (1st Dist. 1926) — II People v. Gordon, 71 Cal. App. 2d 606, 163 P.2d 110 (2d Dist. 1945) — Supp People v. Griffin, 98 Cal. App. 2d 1, 219 P.2d 519 (3d Dist. 1950) — Supp People v. Head, 9 Cal. App. 2d 647, 50 P.2d 832 (2d Dist. 1935) — Supp People v. Lee, 136 Cal. App. 4th 522, 38 Cal. Rptr. 3d 927 (5th Dist. 2006) — Supp People v. McManis, 122 Cal. App. 2d 891, 266 P.2d 134 (4th Dist. 1954) — Supp

Conspiracy to commit murder

Conspiracy to commit murder is always conspiracy to commit first-degree murder and thus always a 25-to-life. The statute says, "in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree." (Accord

However, conspiracy to commit murder is not a capital offense; special circumstances do not apply to this crime. People v Hernandez (2003) 30 Cal.4th 835, 864–870, disapproved on another ground in People v. Riccardi (2012) 54 Cal.4th 758.

[A] conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice." (People v. Swain (1996) 12 Cal.4th 593; accord People v. Cortez (1998) 18 Cal.4th 1223.)

Attempt

Penal Code 663 allows conviction of completed crime even if only attempt is charged.

Attempt is always a lesser-included offense of a greater crime. Penal Code section 1159.

If attempt requires a heightened mental state, as is the case with attempts of many general intent crimes, the attempt requires proof of an additional element and is therefore not a lesser included offense.  People v. Braslaw (App. 1 Dist. 2015) 183 Cal.Rptr.3d 575, 233 Cal.App.4th 1239,

People v. Hubbard (2020) 52 Cal.App.5th 555