What is Aiding and Abetting? Penalties? Defenses?

Our office occasionally represents a person charged with aiding and abetting (Penal Code § 31), but more often the charge is added to a complaint and our client pleads to the crime as part of a plea bargain.  Since this is not uncommon, we offer this article for those facing this charge to ensure he or she understands the elements of the crime, the punishment and the defenses.

Penal Code § 31 defines aiding and abetting as encouraging, facilitating or aiding in the commission of a criminal act.  “Aiding” usually involves offering or giving some form of help and usually involves some type of conduct.  “Abetting,” on the other hand, usually involves some form of encouraging or inciting the crime, and many not involve any physical act, such as being a “shot caller.” 

The conduct means defendant had prior knowledge that the crime was about to take place and therefore defendant’s act(s) often takes place before or during the crime.  Defendant may not be present when the crime takes place. People v. Sarkis (1980) 222 Cal. App. 3d 23.  The crime is also known as being an accomplice, or having “accomplice liability.”  The intent to help others must be shown.

A common example of having liability as an aider or abettor is one who serves as a lookout for the others (i.e., in a robbery or burglary), one who provides guns to others, or chemicals to wash away fingerprints or a paper shredder to destroy plans written on paper, or one who drives others to a crime or keeps a car engine running while others commit the crime (i.e., vandalism or graffiti, a robbery or a burglary), or who distracts a victim prior to others committing a crime.  

There is no requirement that an aider and abettor be capable of committing the crime.  For example, a woman can be convicted of aiding and abetting a rape of another woman by encouraging the victim to say something or do something that results in her being raped. People v. Fraize (1995) 36 C.A.4th 1722.

One could also agree to help others in their escape from a crime scene by planning ahead on how to aid in this regard or agree in advance on methods to prevent or delay police from reaching the scene of the crime.

One could also provide knowledge about how a building, for example, is locked or where security cameras are located, or one could provide equipment for the others (i.e., keys, bolt-cutters) or information (i.e., passcodes or financial information), knowing that the equipment or information would be used in committing the crime.  One could also give others the work schedules of a building’s employees, with the intent that the others use the work schedule to better plan their crime to minimize the risk of being observed or resisted.

Aider and abettor liability can also attach when one has a duty to prevent a crime from happening or to protect someone from harm, i.e., as a parent, guardian or law enforcement, and that person breaches that duty to act to prevent or stop the crime from taking place.

There is no requirement that defendant’s conduct be a substantial factor in the crime taking place.  All that is required is that defendant’s intentional conduct helps the others in some way, however, small. People v. Beeman (1984) 674 P. 2d 1318. 

More knowledge that a crime is about to take place or being present at the scene of the crime, however, is not enough.  One must do something to help the crime take place and then the crime must take place.

Unlike conspiracy liability (Penal Code § 182), a defendant charged with aiding and abetting does not need to have any agreement with the principal actor in the crime.  Aiding and abetting can take place without the principals even knowing someone else was going to help them. 

Punishment for aiding and abetting is the same as the principal who actually commits the crime.  So, if the crime is robbery, for example, one would face punishment for robbery.

The defenses to aiding and abetting are simply that one did not encourage, facilitate or aid in the commission of the crime, or that one is being falsely accused of the offense.  Defendant may also argue that he or she withdrew from participating in the crime and gave no assistance to the others who did commit the crime.