CALCRIM No. 2401. Aiding and Abetting Unlawful Use of Controlled Substance (Health & Saf. Code, § 11365)
Judicial Council of California Criminal Jury Instructions (2023 edition)
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2401.Aiding and Abetting Unlawful Use of Controlled Substance
(Health & Saf. Code, § 11365)
The defendant is charged [in Count ]with aiding and abetting
unlawful use of a controlled substance in a place [in violation of Health
and Safety Code section 11365].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully and intentionally (visited/ [or] was present
in) a place where someone else was (smoking/ [or] using)
<insert controlled substance specified in Health & Saf.
Code, § 11365>, a controlled substance;
2. The defendant knew that the other person intended to (smoke/
[or] use) the controlled substance;
3. The defendant intended to aid and abet the other person in
(smoking/ [or] using) the controlled substance;
4. The defendant did or said something that did in fact aid and abet
the other person in (smoking/ [or] using) the controlled
substance;
AND
5. The defendant knew that (his/her) words or conduct aided and
abetted the other person in (smoking/ [or] using) the controlled
substance.
Someone commits an act willfully when he or she does it willingly or on
purpose.
Someone aids and abets a crime if, before or during the commission of
the crime, 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.
[If you conclude that the defendant was present at the scene of the crime
or failed to prevent the crime, you may consider that fact in determining
whether the defendant was an aider and abettor. However, the fact that a
person is present at the scene of a crime or fails to prevent the crime
does not, by itself, make him or her an aider and abettor.]
[A person who aids and abets a crime is not guilty of that crime if he or
she withdraws before the crime is committed. To withdraw, a person
must do two things:
1. He or she must notify everyone else he or she knows is involved
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in the commission of the crime that he or she is no longer
participating. The notification must be made early enough to
prevent the commission of the crime;
AND
2. He or she must do everything reasonably within his or her power
to prevent the crime from being committed. He or she does not
have to actually prevent the crime.
The People have the burden of proving beyond a reasonable doubt that
the defendant did not withdraw. If the People have not met this burden,
you may not find the defendant guilty under an aiding and abetting
theory.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. (See People v. Beeman (1984) 35 Cal.3d 547, 560-561 [199 Cal.Rptr. 60,
674 P.2d 1318] [duty to instruct on aiding and abetting].)
Defenses - Instructional Duty
If there is evidence that the defendant was merely present at the scene or only had
knowledge that a crime was being committed, the court has a sua sponte duty to
give the bracketed portion that begins with “If you conclude that the defendant was
present.” (People v. Boyd (1990) 222 Cal.App.3d 541, 557, fn. 14 [271 Cal.Rptr.
738]; In re Michael T. (1978) 84 Cal.App.3d 907, 911 [149 Cal.Rptr. 87].)
If there is evidence that the defendant withdrew from participation in the crime, the
court has a sua sponte duty to instruct on withdrawal. (People v. Norton (1958) 161
Cal.App.2d 399, 403 [327 P.2d 87]; People v. Ross (1979) 92 Cal.App.3d 391,
404-405 [154 Cal.Rptr. 783].) Give the bracketed portion that begins with “A
person who aids and abets a crime is not guilty.”
AUTHORITY
• Elements. Health & Saf. Code, § 11365.
• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Aiding and Abetting Required. Health. & Saf. Code, § 11365(b); People v.
Cressey (1970) 2 Cal.3d 836, 848-849 [87 Cal.Rptr. 699, 471 P.2d 19].
• Knowledge and Willful, Intentional Involvement Required. People v. Brim
(1968) 257 Cal.App.2d 839, 842 [65 Cal.Rptr. 265].
• Requirements for Aiding and Abetting Generally. People v. Beeman (1984) 35
Cal.3d 547, 560-561 [199 Cal.Rptr. 60, 674 P.2d 1318].
CONTROLLED SUBSTANCES CALCRIM No. 2401
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• Withdrawal. People v. Norton (1958) 161 Cal.App.2d 399, 403 [327 P.2d 87];
People v. Ross (1979) 92 Cal.App.3d 391, 404-405 [154 Cal.Rptr. 783].
• Presence or Knowledge Insufficient. People v. Boyd (1990) 222 Cal.App.3d 541,
557, fn. 14 [271 Cal.Rptr. 738]; In re Michael T. (1978) 84 Cal.App.3d 907, 911
[149 Cal.Rptr. 87].
RELATED ISSUES
Drug Use in Car
A car is a “place” for the purposes of this offense. (People v. Lee (1968) 260
Cal.App.2d 836, 840-841 [67 Cal.Rptr. 709].)
See also the Related Issues section of CALCRIM No. 401, Aiding and Abetting:
Intended Crimes.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 157.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.10[3]; Ch. 145, Narcotics and Alcohol Offenses,
§ 145.01[1][a], [m] (Matthew Bender).
2402-2409. Reserved for Future Use
CALCRIM No. 2401 CONTROLLED SUBSTANCES
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© Judicial Council of California.
