1702. Burglary: Intent of Aider and Abettor
To be guilty of burglary as an aider and abettor, the defendant must have known of the perpetrator's unlawful purpose and must have formed the intent to aid, facilitate, promote, instigate, or encourage commission of the burglary before the perpetrator finally left the structure.
The court has a sua sponte duty to give this instruction when the defendant is charged with aiding and abetting a burglary and there is an issue about when the defendant allegedly formed the intent to aid and abet.
This instruction must be given with CALCRIM No. 401, Aiding and Abetting: Intended Crimes.
Do not give this instruction if the defendant is charged with felony murder.
Aider and Abettor to Burglary—When Intent Formed. People v. Montoya (1994) 7 Cal.4th 1027, 1044-1046 [31 Cal.Rptr.2d 128, 874 P.2d 903].
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.10, Ch. 143, Crimes Against Property, § 143.10[b], [d] (Matthew Bender).
(New January 2006)