Theories of liability - Revision history

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2024-03-14T12:57:23Z

Attempt

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	==Attempt==		==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

Sysop: /* Aider and abettor */

2023-10-31T17:22:24Z

Aider and abettor

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	“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).)		“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==		==Conspiracy==

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2023-10-30T04:01:09Z

Merger

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	===Merger===		===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).		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).

Sysop: /* Conspiracy */

2023-10-30T03:57:47Z

Conspiracy

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	==Conspiracy==		==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)

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Merger

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	===Merger===		===Merger===

			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		37 A.L.R. 778

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	===Merger===		===Merger===

			37 A.L.R. 778

	75 A.L.R. 1411		75 A.L.R. 1411

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2023-10-30T03:39:55Z

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	===Merger===		===Merger===

			75 A.L.R. 1411

	California Delta Farms v. Chinese American Farms (1928) — Cal. —, 268 Pac. 1050 — II		California Delta Farms v. Chinese American Farms (1928) — Cal. —, 268 Pac. 1050 — II

Sysop: /* Conspiracy */

2023-10-30T03:38:13Z

Conspiracy

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	(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.		(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===

			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==

Sysop: /* Aider and abettor */

2023-10-29T20:14:19Z

Aider and abettor

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 ==Aider and abettor==
-===Statute===
+===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."
+Natural & Probable Consequences Doctrine (Non-Target Crimes)
 “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).)

Sysop: /* Aider and abettor */

2023-10-28T22:37:59Z

Aider and abettor

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	==Aider and abettor==		==Aider and abettor==

			===Statute===

			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."

	“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).)		“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).)