What is the legal test for giving a jury instructions on aiding and abetting?

But even if we were to conclude otherwise, the error was harmless. "It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) However, "instruction on an unsupported theory is prejudicial only if that theory became the sole basis of the verdict of guilt; if the jury based its verdict on the valid ground, or on both the valid and the invalid ground, there would be no prejudice, for there would be a valid basis for the verdict. [Thus,] the appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory." (Id. at p. 1130.)

Defendant inverts this standard by arguing that there was no evidence that the jury based its verdict on valid grounds. But that is not the test. Here, the aiding and abetting theory was an afterthought, one which the prosecutor explained to the jury but essentially discounted by telling the jury that these instructions could be disregarded. The case against defendant centered on a felony-murder theory for first degree murder, and that was the focus of the prosecutor's argument to the jury. The record does not affirmatively demonstrate a reasonable probability that the jury convicted defendant solely on an aiding and abetting theory, and we therefore conclude that instructions on aiding and abetting did not prejudice defendant. (People v. Guiton, supra, 4 Cal.4th at p. 1131.)