Green

I concur in the majority’s result but not its reasoning.

Yarber [ 90 Cal.App.3d 895 ( 153 Cal.Rptr. 875 )] has created widespread disagreement over the continued propriety of giving an unmodified version of CALJIC No. 3.01 between appellate court; districts, divisions and now within this division. (Cf. People v. Petty (1981) 127 Cal.App.3d 255, 263 [ 179 Cal.Rptr. 413 ]; People v. Brown (1981) 116 Cal.App.3d 820, 826 [ 172 Cal.Rptr. 221 ]; People v. Lopez (1981) 116 Cal.App.3d 882, 888-889, fn. 1 [ 172 Cal.Rptr. 374 ]; with People v. Fagalilo (1981) 123 Cal.App.3d 524, 533-534 [ 176 Cal.Rptr. 698 ].)

Without going into the analysis presented by Yarber with which I concur, I would merely like to point to the difficulty I have with the reasoning by the majority in this case. The majority opinion states that the only facts necessary to convict a person of aiding and abetting are (1) that the person aid in the commission of a crime (2) with knowledge *13 of the perpetrator’s unlawful purpose or intent. However, in People v. Tewksbury (1976) 15 Cal.3d 953 [ 127 Cal.Rptr. 135 , 544 P.2d 1335 ], our Supreme Court explicitly stated, “[criminal liability as a principal attaches to those…

Defendants, Leroy Green and his brother, Danny Green, were each charged by a separate information with two counts *4 of sale of heroin, in violation of section 11352 of the Health and Safety Code. The first sale was alleged to have occurred on June 6, 1978, and the second on July 11, 1978. Following a joint trial, Danny was convicted of both counts charged, and Leroy was convicted of the June 6 sale and acquitted of the July 11 sale. On appeal, Leroy contends that the trial court erred in instructing the jury on aiding and abetting, and each defendant contends that the court erred in denying their joint motion for a new trial, which was based on grounds of newly discovered evidence. We find no error and, accordingly, affirm the judgments.

On June 6, 1978, Clark Edwards, an undercover agent for the federal Drug Enforcement Administration (DEA), and an informant, Reggie Berry, went to Leroy Green’s residence where Berry introduced Agent Edwards to Leroy. Edwards asked Leroy about the availability of white heroin. Leroy responded that he had only about three grams of the drug in his possession but that he could obtain brown heroin, a less expensive drug, in one-ounce…