CALCRIM No. 440. Accessories (Pen. Code, § 32)

Judicial Council of California Criminal Jury Instructions (2023 edition)

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C. ACCESSORY AND SOLICITATION
440.Accessories (Pen. Code, § 32)
The defendant is charged [in Count ] with being an accessory to a
felony [in violation of Penal Code section 32].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. Another person, whom I will call the perpetrator, committed a
felony;
2. The defendant knew that the perpetrator had committed a felony
or that the perpetrator had been charged with or convicted of a
felony;
3. After the felony had been committed, the defendant either
harbored, concealed, or aided the perpetrator;
AND
4. When the defendant acted, (he/she) intended that the perpetrator
avoid or escape arrest, trial, conviction, or punishment.
[To decide whether the perpetrator committed the (felony/felonies) of
<insert offense[s]>, please refer to the separate instructions
that I (will give/have given) you on (that/those) crime[s].]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
There is no sua sponte duty to instruct on the underlying felony unless it is unclear
that a felony occurred. However, the defendant is entitled to such an instruction on
request. (People v. Shields (1990) 222 Cal.App.3d 1, 4-5 [271 Cal.Rptr. 228].)
AUTHORITY
• Elements. Pen. Code, § 32; People v. Duty (1969) 269 Cal.App.2d 97, 100-101
[74 Cal.Rptr. 606].
COMMENTARY
There is no authority defining “harbor.” The committee therefore kept “harbor” in
the instruction. Black’s Law Dictionary defines harbor as “[t]he act of affording
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lodging, shelter, or refuge to a person, esp. a criminal or illegal alien.” (7th ed.,
1999, at p. 721.) The court may wish to give an additional definition depending on
the facts of the case.
RELATED ISSUES
Accessory and Principal to the Same Crime
There is a split of authority on whether a person may ever be guilty as an accessory
and a principal to the same crime. Early case law held that it was not possible to be
convicted of both because either logic or policy prohibited it. (People v. Prado
(1977) 67 Cal.App.3d 267, 271-273 [136 Cal.Rptr. 521]; People v. Francis (1982)
129 Cal.App.3d 241, 246-253 [180 Cal.Rptr. 873].) However, a later case disagreed
with both of these cases and held “that there is no bar to conviction as both
principal and accessory where the evidence shows distinct and independent actions
supporting each crime.” (People v. Mouton (1993) 15 Cal.App.4th 1313, 1324 [19
Cal.Rptr.2d 423], disapproved on other grounds in People v. Prettyman (1996) 14
Cal.4th 248 [58 Cal.Rptr.2d 827, 926 P.2d 1013]; People v. Riley (1993) 20
Cal.App.4th 1808, 1816 [25 Cal.Rptr.2d 676]; but see People v. Nguyen (1993) 21
Cal.App.4th 518, 536 [26 Cal.Rptr.2d 323] [suggesting in dicta that a person guilty
as a principal can never be guilty as an accessory].)
Awareness of the Commission of Other Crimes Insufficient to Establish Guilt as
an Accessory
Awareness that a co-perpetrator has committed other crimes is not enough to find a
person guilty as an accessory to those crimes unless there is evidence that the
person intentionally did something to help the co-perpetrator avoid or escape arrest,
trial, conviction or punishment for those offenses. (People v. Nguyen (1993) 21
Cal.App.4th 518, 537 [26 Cal.Rptr.2d 323] [defendants’ convictions as accessories to
sexual assaults committed by co-perpetrators in the course of a robbery reversed; no
evidence existed that defendants did anything to help co-perpetrators escape
detection].)
Passive Nondisclosure
Although a person is not guilty of being an accessory if he or she fails or refuses to
give incriminating information about a third party to the police, providing a false
alibi for that person violates the accessory statute. (People v. Duty (1969) 269
Cal.App.2d 97, 103-104 [74 Cal.Rptr. 606].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Introduction to Crimes,
§§ 112-113.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.11 (Matthew Bender).
CALCRIM No. 440 AIDING AND ABETTING
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