If the court instructs the jury on an aiding and abetting theory of liability, is this an error that is harmless?

California, United States of America


The following excerpt is from People v. La Riva, G056352 (Cal. App. 2019):

But even if we assume the court erred by instructing the jury on an aiding and abetting theory of liability, the error was harmless. Giving instructions on a factually unsupported theory is not grounds for reversal "unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory." (People v. Guiton (1993) 4 Cal.4th 1116, 1130.) The People's primary theory of the case was that defendant personally committed the shooting as the passenger of the car. Most of the People's closing argument was devoted to this theory, and the People briefly discussed aiding and abetting liability as an alternative theory. Indeed, defendant concedes "all evidence tended to establish . . . defendant was possibly the passenger-shooter . . . ." Given the

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