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F 14.54 n1  Burglary:  Whether Timing Of Intent To Aid And Abet Must Be Given Sua Sponte (PC 459).

 

In People v. Montoya (94) 7 C4th 1027, 1051 [31 CR2d 128], the court found no duty to sua sponte instruct “in light of the record” which provided no evidence that the aider and abettor’s intent was formed after the perpetrator’s final departure.  (7 C4th at 1048.)  Presumably if such a factual issue was presented, there would be a sua sponte duty to instruct.  (See FORECITE PG V(A).)

 

Moreover, because an essential element of aiding and abetting liability is the formation of the requisite intent prior to or during commission of the offense, the failure to adequately instruct the jury upon this element would implicate the defendant’s right to trial by jury and due process.  (U.S. Const., 6th and 14th Amendments; Calif. Const., Art. I, § 15 and § 16.)

 

[Additional briefing on this issue is available to FORECITE subscribers.  Ask for Brief Bank # B-625.]


F 14.54 n2  Burglary:  Intent To Aid And Abet Must Be Formed Prior To The Perpetrator’s Departure From The Structure (PC 459). 

 

In People v. Montoya (94) 7 C4th 1027, 1044-45 [31 CR2d 128], the Supreme Court held that aiding and abetting liability for a burglary may be predicated on an intent formed after the perpetrator’s entry of the structure, but before the perpetrator’s departure.  Hence, the court expressly disapproved CJ 14.54 which required that the intent be formed prior to the perpetrator’s entry of the structure.  (But see dissent of Mosk.)


F 14.54a

 

Burglary:  When Intent To Abet Must Be Formed

 

(PC 459)

 

*Modify CJ 14.54 to provide as follows [added language is capitalized; deleted language is between <<>>]:

 

In order for an accused to be guilty of burglary as an aider and abettor, [he] [she] must have formed the intent to encourage or facilitate the perpetrator prior to THE PERPETRATOR’S FINAL DEPARTURE FROM THE STRUCTURE <<or at the time [that person] [__________] made the entry into the __________ with the required specific intent>>.

 

However, if you find that the perpetrator made more than one entry into the __________ (building, etc.), an accused is guilty as an aider and abettor if [he] [she] formed the intent to encourage or facilitate the perpetrator before or during any one of the entries made with the required specific intent by the perpetrator.]

 

Points and Authorities

 

People v. Montoya (94) 7 C4th 1027, 1047 [31 CR2d 128].

 

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).]

 

NOTES

 

As to whether this instruction must be given sua sponte or only upon request, see FORECITE F 14.54 n1.

 

Retroactivity of MontoyaPeople v. Montoya (94) 7 C4th 1027, 1047 [31 CR2d 128]) which abrogated the rule that a person could not be held liable for burglary as an aider or abettor unless he or she formed the intent to aid and abet before or during the entry of the actual perpetrator, is not applicable to offenses which occurred prior to the decision in Montoya in June 1994.  (See People v. Farley (96) 45 CA4th 1697 [53 CR2d 702].)