What is the Difference Between Aiding and Abetting?

Helping another to commit a crime, even if the action you take is perfectly legal on its own, can expose you to the possibility of being prosecuted for aiding and abetting in California. 

California Penal Code Section 31 defines the crime of aiding and abetting. Aiding and abetting can come in several different forms: advice, encouragement, counseling, threats or menaces, commands or coercion, or convincing a child under the age of 14 or a mentally incompetent person to perform a criminal act.  

In television cop show language, “aiding and abetting” means you are an accomplice to a crime, and under California law, you are as guilty as the person who actually carried out the criminal act. Although not a separate crime, aiding and abetting is a way to bring in all of the actors who helped put a criminal action into motion. The prosecutorial advantage is significant. With more defendants, the prosecution can try to turn participants into witnesses against the other defendants. 

It is for this reason that it is important to never speak with the police or investigators until you have conferred with a skilled and experienced criminal defense attorney.

Like all criminal charges, the prosecution has the burden to prove each of the elements of aiding and abetting beyond a reasonable doubt. To succeed, the prosecution must prove:

  • A person, other than yourself (“the perpetrator”), committed the crime;
  • You knew the perpetrator’s plan to commit a crime, whether a misdemeanor or a felony;
  • Before or during the commission of the crime, you intended to provide help, aid, or encouragement to commit the crime;
  • Your actions or encouragement did actually provide aid to the perpetrator. 

Aiding and abetting occurs before and during the commission of a crime. Accessory after the fact happens afterward and is defined in California Penal Code Section 32.  A person may be charged as an accessory after the fact if they harbor, conceal or aid a perpetrator, after the perpetrator committed a felony, for the purpose of helping the perpetrator escape prosecution.

What does it mean to aid a crime?

Aiding and abetting is like zigging and zagging. Each has a slightly different meaning but fits together to create a complete crime. Aiding means helping someone to commit a crime while abetting means encouraging or counseling someone to commit a crime. 

Aiding has three elements.  First, the aiding must be intentional. The prosecution must prove you knew that your help would assist another in committing a crime. Second, that help must have been provided voluntarily, and not through coercion, fraud, or trickery. Lastly, the crime must have been completed and the assistance provided must have actually helped in the commission of the crime. You do not have to be at the scene of the crime to be charged with aiding its commission, although not being present may be a viable defense to the charge. 

What does it mean to abet a crime?

Abetting means that you have done something that encourages or supports the commission of a crime. That support can be active, in the form of instigation, or passive, just being there when plans are made. Knowing that a crime is about to occur, and doing nothing to prevent it, can be interpreted as support for the offense. To prove a charge of abetting, the prosecution must show that there is a shared intent between you and the perpetrator to commit a crime.

Penalties for Aiding and Abetting

The severity of the charge of aiding and abetting is reflected in the penalty. A person convicted of aiding and abetting can be sentenced to the same prison term and fines as the actual perpetrator of the underlying crime. Enhancements, such as a hate crime or the use of a gun in the underlying crime, may also be added to the sentence. 

Defenses to Aiding and Abetting

Like all criminal prosecutions, a charge of aiding and abetting requires that the prosecution prove all of the elements of the crime beyond a reasonable doubt.  That is a heavy burden. Skilled and experienced criminal defense attorneys will review the facts of the case to determine a strategy that undermines the credibility of the prosecution’s evidence and version of what happened. There are a variety of ways to attack the credibility of the prosecution’s case.

  • No aid or encouragement: An essential element of aiding and abetting is that you knew a crime was about to occur and you joined in the intention to make that crime happen. Therefore, it is a viable defense to show that you were merely in the wrong place at the wrong time, and there is no evidence that you intended to participate or even encouraged the commission of a crime. 
  • Merely present: Although you knew a crime was about to be committed, you had no legal obligation or authority to stop its commission.
  • Withdrawal from aid or encouragement: Under some circumstances, a defense of withdrawal can be offered. This requires that you abandoned the criminal activity, informed the perpetrator that you were no longer involved, and did everything feasible to stop the commission of the crime. 
  • False accusation: In trying to lessen their criminal liability, sometimes perpetrators wrongly accuse others of participating in their criminal activity. 
  • After the commission: You only facilitated the crime after it was committed, therefore, as an accessory after the fact, you are liable for a lesser penalty.

Defending against a charge of aiding and abetting

Prosecutors have the power of the state behind them when investigating a criminal charge, including aiding and abetting. This means you need an experienced criminal defense attorney to defend your rights and freedom. 

Our team will sit down with you and start working on your defense strategy as soon as we know the facts of the case and the evidence against you.

If you or someone you care about has been charged with aiding and abetting in Orange, Los Angeles, Riverside, San Bernardino, or San Diego counties, The Law Offices of Bryan R. Kazarian can help. 

We will work to build a defense strategy that aims to get the charges dismissed or reduced.

We have offices in Santa Ana, Westminster, Newport Beach and Fullerton to serve clients with matters heard at the Central, West, Harbor, and North Justice Centers, respectively, for all of Orange County.  The lawyers at The Law Offices of Bryan R. Kazarian are here to help!  Book an online consultation to get started today.