Mildred Delgado was convicted of robbery and kidnapping for purposes of robbery on evidence from which a jury could have determined that an accomplice — not Delgado — “performed the act of asportation necessary to the offense of kidnapping.” He claims the trial court erred in failing to instruct, sua sponte, on the law of accomplice liability.
Last week, the California Supreme Court concluded that Delgado was right: the court was required to instruct on aiding and abetting liability as a general legal principle raised by the evidence and necessary for the jury’s understanding of the case.
The Court wrote, "Even without a request, a trial court must instruct the jury on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case. In particular, instructions delineating an aiding and abetting theory of liability must be given when such derivative culpability "form[s] a part of the prosecution's theory of criminal liability and substantial evidence supports the theory."
Being right, however, didn't do him much good because the court also concluded the error was harmless.
Here, the jury was fully instructed on the elements of kidnapping for robbery, including asportation, and found those elements proven beyond a reasonable doubt. Instructions on the liability of an aider and abettor would merely have provided additional theories of Delgado's liability; their absence could not have prejudiced him.
The evidence allowed the jury reasonably to find Delgado personally asported the victim by holding him in the backseat of the moving vehicle. But even if the jury relied on a theory of complicity to satisfy the asportation element, it is not reasonably likely it did so without finding Delgado agreed to assist or intentionally assisted the driver's movement of the victim.
The state justices reasoned that circumstantial evidence that Delgado was working with the apparent accomplice to kidnap and rob the victim was strong. There was no reasonable probability that Delgado would have received a more favorable outcome had the jury received the accomplice liability instructions.
In some criminal prosecutions, a defendant would be entitled to a new trial if the court neglected to instruct the theory on accomplice liability. In a robbery and kidnapping case, it's much harder to demonstrate that such an omission constitutes a reversible error.