Criminal Appeal

How To Be An Aider And Abettor AND An Accessory After The Fact

In the published portion of this juvenile delinquency decision, California's Fifth District Court of Appeal held that in order for an accused to be found liable both as an aider and abettor and as an accessory after the fact with respect to the same felony, the acts constituting that felony must have ceased at the time of the conduct that renders him or her culpable as an accessory.

The unanimous decision was authored by Presiding Justice James A. Ardaiz.

In re Malcolm M., no. F049687 (Cal.Ct.App. (5th Dist.) filed 1/30/07)

Upper Term May Be Based On Multiple Victims Even If Only One Victim Was Named In Each Count

The California Supreme Court addressed two issues in this appeal.

First, the Court concluded that a person convicted of gross vehicular manslaughter as an aider and abettor may be subject to an enhancement for fleeing the scene.

Second, the Court held that an upper term sentence may be imposed based upon a “multiple victims” aggravating factor even if only one victim was named in each count. The Court distinguished the recent United States Supreme Court case of Cunningham v. California by noting that in convicting the defendant of two counts of gross vehicular manslaughter and two counts of reckless driving causing bodily injury the jury necessarily found there were multiple victims.

The majority opinion was authored by Justice Carol Corrigan. Justice Joyce Kennard filed a concurring opinion regarding the upper term ruling, in which Justice Kathryn Werdegar joined.

People v. Calhoun, no. S129896 (Cal. Supreme Ct., filed 1/29/07)

In Natural & Probable Consequences Prosecution, Court May Sua Sponte Identify Target Offense to Instruct

In California, an aider & abettor is liable for any offense which is the natural & probable consequence of the target offense he encouraged or facilitated. In a published opinion issued today, Division Three of California's Fourth Appellate District held that the trial court did not abuse its discretion in instructing the jury on the target offense of assault with a deadly weapon over the objection of the district attorney who wanted an instruction on breach of the peace as the target offense.

People v. Hoang, no. G036515 (Cal.Ct.App. 4th Dist., Div. 3, filed 11/29/06).

Insufficient Evidence of Aiding and Abetting Fraud by Co-Telemarketers. U.S. v. Tarallo, no. 02-50252 (9th Cir., Aug. 20, 2004).

The defendant was convicted on six counts of securities fraud (15 U.S.C. §§ 78j(b) & 78ff; 17 C.F.R. § 240.10b-5) and four counts of mail fraud (18 U.S.C. § 1341). We reverse his convictions with respect to three vicarious liability counts for lack of evidence.

Sufficiency of the Evidence: For vicarious liability counts, lack of jury instructions on "coschemer liability" theory barred finding evidence sufficient under that theory. The Court also rejected the government's argument that, in this telemarketing scheme, the defendant "aided the transactions at issue by taking a 20 percent commission on his sales, while the balance of the 'invested' money was available (and in part used) for paying expenses of the telemarketing operations." As the court explained,

The government reasons that, merely by bringing money into the shop, Defendant aided the actions of his fellow telemarketers. We disagree. There was no evidence that Defendant, when generating revenues, intentionally aided any of his coworkers in committing their own frauds, as distinct from making money for himself. Nor did the government present evidence that the money brought in by Defendant was used specifically to support the frauds charged

Security Fraud: "a defendant may commit securities fraud 'willfully' in violation of 15 U.S.C. § 78ff and 17 C.F.R. § 240.10b-5 even if the defendant did not know at the time of the acts that the conduct violated the law" and "a defendant may commit securities fraud 'willfully' by intentionally acting with reckless disregard for the truth of material misleading statements."

Apprendi: "15 U.S.C. § 78ff is not facially unconstitutional as a violation of Apprendi v. New Jersey, 530 U.S. 466 (2000)."

The court also rejected a series of prosecutorial misconduct claims.

Panel: D.W. Nelson, John R. Gibson (8th Cir.), and Graber (author)