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Name: People v. Nero
Case #: B206799
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 01/27/2010

An aider and abettor may be found guilty of lesser homicide-related offenses than those of the actual perpetrator. (Extending People v. McCoy (2001) 25 Cal.4th 1111.) Appellants, who were brother and sister, were convicted of second degree murder based on their participation in a fight against the deceased which began after the victim directed homophobic slurs and lewd hand gestures at the sister. The prosecution argued the sister was an aider and abettor to the crime because she handed her brother the knife used to stab the deceased. The brother testified the knife belonged to the deceased, that the deceased cut him in the arm and then they struggled over the weapon, that his sister never handed him the knife, and that he acted in self-defense. The court instructed read CALJIC No. 3.00, which told the jury that “Each principal, regardless of the extent or manner of participation, is equally guilty.” During deliberations, the jury asked whether an aider and abettor may be guilty of a greater or lesser offense. In response, the court reread CALJIC No. 3.00 twice and also said that an aider and abettor cannot bear greater responsibility. On appeal, the sister argued the court misinstructed the jury. The appellate court agreed. Telling the jury the aider and abettor could bear no greater responsibility directly contradicts the Supreme Court’s holding in People v. McCoy. In that case, the court reviewed the aider and abettor theory of liability whereby guilt is established based on the aider and abettor’s acts and mental state (i.e., not the natural and probable consequences doctrine). The opinion emphasized that an aider and abettor’s mens rea is personal and may be different than that of the actual perpetrator. Applying those principles, the appellate court held there is no reason that an aider and abettor’ could not be guilty of a lesser offense than that committed by the direct perpetrator. The suggestion in CALJIC No. 3.00 to the contrary is misleading. CALCRIM No. 400, containing the same language about “equal guilt”is also flawed.