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 *13of 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 who aid in the commission of a crime only if they also share in the criminal intent.” (15 Cal.3d at p. 960; italics supplied.) The court held that the aider and abettor need not have actually had the specific intent to commit a robbery, but she had to have acted with the requisite guilty intent. The court then found that the “intent requirement” is satisfied if the defendant “prior to its commission, realized that a robbery was being planned and that she was facilitating its commission.” (Ibid.) Tewksbury makes clear that “guilty knowledge” is not sufficient as a standard of culpability, but that an intent to facilitate the offense is required. The majority in this court concludes that “there is an intent requirement necessary to convict, but that such intent is implicit in the act of aiding with knowledge of the perpetrator’s guilty state of mind. No further proof of the aider and abettor’s intent is required.”
What, I wonder, will the majority do with a case where A abducts a young woman with the intent to rape her, forces her into a car and starts to drive off. B, the woman’s brother, rushes to his car intending to rescue' his sister. C, the woman’s boyfriend, jumps into the passenger seat of B’s automobile, pulls out a gun and says to B, “Hurry up, I’m going to kill A.” B’s car pursues A’s vehicle with C shooting through the window at A. Clearly, B has knowledge of C’s intent to murder A and is aiding in the commission of the offense by driving C. Can he be convicted of aiding and abetting in the attempted murder when his only intent is to rescue his sister? I think not.
I note that the courts that have upheld CALJIC No. 3.01 as it now exists1 have relied heavily on the realization that there will be few factual situations presented where the defendant aided the perpetrator with knowledge of the perpetrator’s unlawful purpose but without the required criminal intent. Before the decision in Yarber, the court in People v. Ott (1978) 84 Cal.App.3d 118 [148 Cal.Rptr. 479] stated “that aiding in the commission of the crime with knowledge of the wrongful purpose of the perpetrator eo ipso establishes the criminal in*14tent.” (Id., at p. 130; see also, People v. Ellhamer (1962) 199 Cal.App. 2d 777, 782 [18 Cal.Rptr. 905].) No matter how accurate this proposition proves to be in the vast majority of cases, Yarber and the above hypothetical show that it is not irrefutable. Continued reliance on it can only invite challenge.
It would appear that rather than relying on a presumption which is not conclusive, the more prudent course would be to place the issue squarely before the factfinder and allow him or her to determine whether the required criminal intent has been proven. I join with the recommendation in People v. Petty, supra, 127 Cal.App.3d 255, that an instruction that spells out that the defendant must have acted with criminal intent in aiding the perpetrator should be given in all aiding and abetting cases. Crirqinal intent must be proved in each aiding and abetting case, and slightly modifying CALJIC No. 3.01 to reflect this fact assures that the issue of defendant’s intent is considered and weighed by the factfinder. A defendant on trial for aiding and abetting, who is facing the same penalty as the perpetrator, should be entitled to no less.
In the case at bench, I think the failure to give a modified instruction was not reversible error. Appellant presented no argument that would have gained support from the proposed instruction and the prosecutor made no argument that would have been weakened by such instruction. Accordingly, I agree that the judgments should be affirmed.
A petition for a rehearing was denied April 23, 1982, and appellants’ petition for a hearing by the Supreme Court was denied May 27, 1982.
Prior to the 1974 revision, CALJIC No. 3.01 required a criminal intent: “A person aids and abets the commission of a crime if he knowingly and with criminal intent aids, promotes, encourages or instigates by act or advice, or by act and advice, the commission of such crime.” (CALJIC No. 3.01 (3d ed. 1970) p. 71, italics added.)