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Name: People v. Hernandez
Case #: F056015
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 02/18/2010

CALCRIM Nos. 968 and 401 together adequately instruct jurors as to the mental state requirement for aiding and abetting, and need not be repeated in conjunction with the instruction for the underlying offense. Appellant was charged with discharging a firearm from a vehicle at another person (Pen. Code, sec. 12034, subd. (c)). At trial, the prosecution argued that appellant was guilty of the offense as an aider and abettor. According to the evidence presented, appellant was the driver of the vehicle and Ruiz was the actual shooter. Appellant testified he knew Ruiz had a gun but did not know that Ruiz intended to shoot anyone and when he realized Ruiz was going to shoot, he thought he would shoot into the air. Instead, Ruiz fired multiple rounds, hitting the victim, who was at the side of the car and killing him. The jury was instructed with CALCRIM No. 968 which informed that the elements for section 12034, subdivision (c) were acting willfully and maliciously and shooting from the vehicle at a person outside the vehicle – a general intent offense. They were also instructed with CALCRIM No. 401, informing that an aider and abettor must act with knowledge of the criminal purpose of the perpetrator and with an intent to aid the perpetrator in the commission of the offense, etc. The appellate court found that these two instructions together adequately instructed as to the requisite intents for each offense.