Can a jury find prejudice from a failure to give an aiding and abetting instruction when a defendant has been found guilty under instructions based on direct perpetrator liability?

California, United States of America


The following excerpt is from People v. Scales, B260902 (Cal. App. 2016):

People v. Delgado, supra, 56 Cal.4th 480, is instructive on the problem of finding prejudice from a failure to give aiding and abetting instructions when a defendant has been found guilty under instructions based on direct perpetrator liability: "'[I]t is hard to imagine how an aiding and abetting instruction would have helped [the defendant], as it would have merely offered an alternative, additional means of establishing [his part in the taking of the property] without having to prove [that the defendant personally] took part in'" the taking. If the jury had been instructed on derivative liability, "defense counsel would have been limited to arguing defendant was not responsible for the [perpetrator's] actions, an argument that would have been unlikely to persuade the jury given the strong circumstantial evidence defendant and the [perpetrator] were working together to kidnap and rob . . . ." (Id. at p. 492.)

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