Updated: Mar 8
What does aiding and abetting mean?
Definition: Aiding and abetting is generally defined as assisting or encouraging another person to do something. In practice, the term “aiding” and the term “abetting” are virtually synonymous ("aiding" = assistance or support; "abetting" = encouragement or support). In the criminal law, aiding and abetting means to intentionally assist or encourage another person in the commission of a crime.
For example, if Sharon drives her husband to a liquor store so that her husband can rob the liquor store then Sharon is guilty of aiding and abetting her husband’s robbery of the liquor store.
In order for the defendant to be found guilty of aiding and abetting another person in the commission of a crime the district attorney must prove all of the following:
The defendant either assisted, aided, incited, encouraged, promoted, advised, instigated, counseled, insisted, and/or otherwise helped another person commit a crime;
The defendant knew at the time that he or she aided and abetted another person to commit a crime that the person aided or abetted actually intended to commit a crime;
The crime(s) to which the aider and abettor gave assistance actually committed the crime (or a reasonably related and reasonably foreseeable crime(s)); and
The person aided or abetted by the defendant was actually aided or encouraged by the defendant in the commission of the crime, or similar and reasonably related crime.
Common examples of aiding and abetting include, but are definitely not limited to, the following: serving as lookout during a burglary or robbery, serving as a getaway driver after a crime, providing guns and/or weapons to another person to commit murder, carjacking, robbery, burglary, arson, etc., providing plans to someone to help them commit burglary, bank robbery, etc., creating an alibi in advance of a crime for another person, giving another person a car key to commit vehicle theft, helping another person to plan a crime, and more.
Measure of aid not important: A person is guilty of aiding and abetting even if the assistance given is relatively small (assuming all other elements are present).
For example, if a security guard agrees with would-be burglars to leave a shopping center door unlocked so that the would-be burglars may commit burglary with greater ease, then the security guard is guilty of aiding and abetting the thieves. Under this example, it does not matter that the security guard's aid to the burglars is very slight in comparison to the would-be burglars’ part of the heist.
All related crimes covered: When a person aids or abets another person in the commission of a crime, then that person is guilty of all crimes reasonably related and reasonably foreseeable to his or her assistance.
For example, if David gives a gun to Mary so that Mary can rob a liquor store with the gun, then Dave is guilty of aiding and abetting Mary in the crime of robbery. In addition, Dave is guilty of all crimes related to the crime of robbery that were reasonably foreseeable as part of the robber (i.e. murder, assault, hostage taking, evading police, etc.).
Aiding and Abetting v. Conspiracy: The crime of conspiracy occurs when two or more persons agree to commit a crime and where the persons who conspire to commit a crime actually intend to commit the crime about which they conspired. The crime of conspiracy is complete even if the target crime of the conspiracy is never accomplished. On the other hand, the crime of aiding and abetting a crime does not necessarily require an agreement to commit a crime. Also, the crime of aiding and abetting is not complete unless an actual crime is committed (unlike the rime of conspiracy). See Conspiracy Crimes [PC 182].
For example, two persons who conspire to commit insurance fraud are guilty of conspiracy even if the fraud is never carried out (so long as there was an “overt” action required to complete the fraud.). However, with aiding and abetting, the crime is never complete unless the accomplices carry out the target crime (or reasonably related and foreseeable crime).
Accessory after the fact v. aiding and abetting: Accessory after the fact is the act of helping another person to conceal the fact of a crime (evidence), or conceal the person who committed the crime (evade arrest). With accessory after the fact crimes, the defendant helps another person after a crime is complete. If the defendant helps another person to commit the crime, before the crime is even committed, then he or she is guilty of aiding and abetting the crime. Also, an accessory after the fact charge does not always carry the same penalties as the penalties associated with being an accomplice to a crime (See Accessory after the Fact [PC 32]).
Note: A person may be found guilty of a crime as an aider and abettor under PC 31 even if the defendant himself could not have legally accomplished the crime. For example, a woman cannot be found guilty of rape under California law because the crime of rape requires sexual penetration by a man’s penis with a woman’s vagina. However, a woman may be an accomplice to rape if the woman aid and abets in the crime of rape.
Presence at crime scene not necessary: A person may be convicted of aiding and abetting even if he or she was not present at the time of the target offense. For example, if Steve sells a firearm to Robert, and Steve knows that Robert is going to use the firearm for a robbery, then Steve is guilty of aiding and abetting Robert in the crime of robbery even if Steve is hundreds of miles away at the time of the robbery.
Mere presence insufficient for guilt: A person who is merely present when a crime is committed, or a person who knows that a crime is going to be committed, is not usually liable under an aider and abettor theory. This is because a person who is merely present at a crime scene, or a person who knows that a crime is going to take place, is not ordinarily liable for the commission of the crime under an accomplice theory.
However, if a person has a duty to protect another person or property, and he fails in the duty where he could have otherwise reasonably protected the person or property, then he could be charged with the commission of a crime under an aider and abettor theory.
For example, a parent has a duty to protect his or her child; therefore, if a child’s parent is witness to a battery on his or her child, and the parent does nothing to protect his child during the battery when he could reasonably have done so, then the parent could be charged with the crime of battery (and failure to protect a child) on an aider and abettor theory. Of course, this assumes the parent has the present ability to protect his child under this example.
Situations where a person has a duty to protect another person or property can include, but are not limited to, the following: a parent’s duty to protect his or her child, a mandated reporter’s duty to protect certain persons (if possible), a health care provider’s duty to protect his or her patient (if possible), and more.
All defendants need not be found guilty: A person may be charged with a crime under an aider and abettor theory even if the person who committed the target crime is not prosecuted or is otherwise found not guilty of the target offense (some limitations may apply).
Aiding and abetting penalties
First of all, there is no criminal charge of aiding and abetting. Rather, the district attorney charges an accomplice to a crime with the target offense, which is the crime that was allegedly aided or abetted by the defendant. Thereafter, the district attorney attempts to prove the target offense was committed, and then, the district attorney attempts to prove that the target offense was actually aided and abetted by the defendant.
Jail Penalties: An aider and abettor to a crime faces all of the same penalties as the person who directly commits the crime (with some exceptions). Also, an aider and abettor is considered an accomplice and a principle defendant to a crime, regardless of whether or not the accomplice directly, or indirectly committed the crime that was aided or abetted. Consider the following laws:
According to California penal code section 31, All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, or persons who are mentally incapacitated, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed (PC 31).
The distinction between an accessory before the fact and a principal, and between principals in the first and second degree is abrogated; and all persons concerned in the commission of a crime, who by the operation of other provisions of this code are principals therein, shall hereafter be prosecuted, tried and punished as principals and no other facts need be alleged in any accusatory pleading against any such person than are required in an accusatory pleading against a principal (PC 971).
An accessory to the commission of a felony may be prosecuted, tried, and punished, though the principal may be neither prosecuted nor tried, and though the principal may have been acquitted (PC 972).
Example: Two codefendants may be charged with the crime of robbery. One defendant is charged with directly committing the robbery and the other defendant is charged with aiding and abetting the robbery by giving the first defendant a gun to accomplish the robbery. According to PC 31, both defendants face the full penalties of the robbery allegation; both defendants are considered principles in the robbery; and both defendants are considered accomplices to the robbery.
Note: Aiding and abetting may be alleged in any misdemeanor or felony case. As mentioned, the punishment for aiding and abetting a crime is usually the same as the target offense, which of course, varies by crime. There is some exception for specific intent crimes, including the crime of first degree murder, where the allegation of the murder charge necessarily includes a specific state of mind, or “mens rea,” during the commission of the crime. In fact, it is possible that an aider and abettor to a crime could face greater punishment than the person who actually and directly committed the offense because of this factor.
Aiding and abetting defense
There is no one defense that generally works best for an allegation of aiding and abetting. This is because every criminal case is different and the facts of every criminal case are different. However, the following common defenses could apply to many aiding and abetting allegations: insufficient evidence to prove the target crime, alibi defense, statute of limitation (different for every case and limited in some types of cases, such as murder), coerced confession, duress (available in limited situations no including murder allegations), mistake of fact, illegal search and seizure, and more.
In addition, some defenses are unique to an allegation of aiding and abetting a crime, including but not limited to, the following: The defendant’s word or conduct did not actually aid or abet another person to commit a crime (even if the crime was actually committed), the defendant withdrew his or her aiding and abetting (see below), the target crime was not actually committed, and more.
Withdrawal of aiding and abetting a crime: In some situations, a defendant who is charged with a crime under an aiding and abetting theory, may defend against the charges on a withdrawal of aid theory. This is a very limited defense and might apply only where the defendant does all of the following:
Informs all participants of the target offense that he or she withdraws his or her assistance (including retrieving objects, instructions, or other support previously given to all participants of the target offense if reasonably possible),
Acts before the target offense has occurred and within enough time to actually thwart the crime, and
Takes all necessary steps to thwart the target offense from occurring (including contacting law enforcement is many situations).
Note: The defendant’s reliance on a withdrawal of aid in the commission of the crime does not rely on the target offense actually being thwarted. For example, if Sally is charged with the crime of robbery, and the is able to show that she made every reasonable and timely efforts in her attempt to thwart the crime she previously aided, then Sally might be able to rely on the defense of withdrawal of her aid even if her attempts to thwart the crime were unsuccessful and the crime occurred in spite of her efforts. Also, if the crime is actually thwarted by Sally under this example, then Sally might still be charged with the crime of conspiracy (See Aiding and Abetting v. Conspiracy).
Specific Intent Crimes: In some cases, where a defendant is charged under an aider and abettor theory, the defendant may defend against the criminal charges by showing that he or she did not share in the perpetrator’s specific intent to commit the specific crime.
In other words, if the defendant’s intent was for another person to commit a general intent crime when he or she aided or abetted another person, but the other person had a specific intent to commit a specific crime when he or she was aided or abetting, then the aider and abettor might have a valid defense against his or her criminal charges. Of course, this same theory could lead to greater criminal charges against the aider and abettor where his or her criminal intent was specific and the perpetrator or the crime’s intent was not specific.
For more information on the topic of aider and abettor to a crime, or PC 31, contact our criminal defense lawyers for a free consultation. Our attorneys are available for free consultation in first-visit, in-office consultations. In some cases, we can travel to local jails for a consultation for a small fee (West Valley Jail, CDC, and Adelanto Jail). Our criminal defense lawyers serve all San Bernardino County cities, including Redlands, Fontana, Rancho Cucamonga, Highland, Yucaipa, Victorville, Rialto, Ontario, and more. Call today!
Common PC 31 Related Crimes & Legal Resources
Calcrim 401 & PC 31, PC 971, & PC 972
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