Dorrough

MEMORANDUM **

It is undisputed that the trial court gave an erroneous aiding and abetting instruction during Dorrough’s trial for first-degree murder. However, “due process— independent of state law — does not require that an aiding and abetting charge contain a distinct instruction regarding specific intent.” Willard v. California, 812 F.2d 461, 468 (9th Cir.1987). “Where ... there is ample evidence that the defendant associated himself with and participated in the criminal venture, the failure to give a distinct instruction regarding specific intent does not offend federal due process.” Id. at 463-64 .

Dorrough’s murder conviction necessarily involved proof of the element of intent that was mistakenly omitted from the aiding and abetting instruction. Indeed, the jury was explicitly told that it could not convict Dorrough of first-degree murder unless it found “a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation[.]” Thus, as the California Court of Appeal determined, “the element of intent omitted from the aiding and abetting instruction did not remove the issue from the jury, which, based on the evidence and…