Can a person be found guilty of first degree murder on an aider and abettor theory of liability?

and abets a crime "if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime." (Italics added.) This is a correct statement of the law. (See People v. Stallworth (2008) 164 Cal.App.4th 1079, 1103 [rejecting the argument that CALCRIM No. 401 was constitutionally defective because it did not explicitly state that mere presence or knowledge was insufficient to establish aiding and abetting].) The instruction plainly states that the aider and abettor must have the specific intent to aid, et cetera, in the commission of the particular crime involved. Defendants offer no legal authority holding that an aider and abettor must harbor the same specific intent as the direct perpetrator in order to be found guilty of first degree murder on an aider and abettor theory of liability.

Finally, we reject defendants' contention that "[t]he jury was erroneously instructed on implied malice, because no theory of guilt of first degree murder could be based on the implied malice of either [defendant] or the actual perpetrator." We find this undeveloped argument confusing and, in any event, lacking merit. While defendants correctly observe that there is no such thing as first degree murder based on implied malice, this observation does not establish instructional error. The jury in this case was not instructed that it could find a defendant guilty of first degree murder based on implied malice. Instead, the jury was properly instructed on the elements the People had to prove to establish first degree premeditated and deliberate murder or second degree implied malice murder. The law is settled that a person can be guilty of second degree murder based on implied malice. (See, e.g., People v. Cook (2006) 39 Cal.4th 566, 596 [second degree implied malice murder occurs "when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life"].) It is also settled that an aider and abettor is guilty as a principal if the aider and abettor knows the criminal purpose of the perpetrator and gives aid or encouragement

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