Return to CALJIC Part 3-4 – Contents
F 3.10 n1 Must Accomplice Directly Commit The Crime?
No error to refuse defendant’s instruction defining accomplice to include persons who directly commit the crime. (People v. Morris (91) 53 C3d 152, 211 [279 CR 720].)
[Research Note: See FORECITE BIBLIO 3.10]
F 3.10 n2 Failure To Instruct On Accomplice Corroboration: Standard Of Prejudice.
See FORECITE PG X(C)(9).
[Briefing as to the prejudicial impact of the failure to caution the jury regarding accomplice testimony per CJ 3.10 and CJ 3.18 is available to FORECITE subscribers, ask for Brief Bank # B-722.]
[Research Note: See FORECITE BIBLIO 3.10]
F 3.10 n3 Accomplice Corroboration: Inapplicable To Accomplice Testimony In Probation Revocation Proceedings.
People v. McGavock (99) 69 CA4th 332 [81 CR2d 600] [PC 1111 requiring corroboration of accomplice testimony does not apply in probation revocation hearings].
F 3.10a
Jury Not To Consider Guilty Plea Of Accomplice
*Add to CJ 3.10:
The fact that an accomplice has entered a plea of guilty cannot be considered by you as evidence of the guilt of any other person.
Points and Authorities
Often the defense may seek to impeach the testimony of an accomplice by showing that the accomplice was allowed to make a favorable plea bargain. In such a situation, the jury should not be permitted to use the accomplice’s plea against the defendant. (See People v. Young (78) 85 CA3d 594, 602 [149 CR 524].)
Jury consideration of improper matters lessens the prosecution’s burden of proof in violation of the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See FORECITE PG VII.]
NOTES
The above instruction was given as requested in People v. White, No. 117535, San Francisco Superior Court.
F 3.10b
Accomplice Is Person Subject To Prosecution At The Time The Acts Were Committed
*Add to CJ 3.10:
In determining whether a witness is an accomplice for the purposes of these instructions, you must determine whether the person was subject to prosecution for the identical crime at the time the acts were committed, not at the time of trial. Hence, a person who was subject to prosecution for the identical crime at the time the acts were committed remains an accomplice for the purposes of these instructions even though the person may have subsequently been acquitted of the offense or pled guilty to a lesser offense.
Points and Authorities
An accomplice is one who “is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (PC 1111.) A conviction cannot stand upon the testimony of an accomplice unless it is corroborated with other evidence tending to connect the defendant with the commission of the offense. (Ibid.) The test of an accomplice is not whether the witness was subject to trial and conviction at the time of testifying, but whether the witness was subject to prosecution for the offense when the acts were committed. Thus, a witness who was charged and acquitted of the identical offense charged against the defendant may still be found to be an accomplice. (People v. Gordon (73) 10 C3d 460, 469 [110 CR 906]; see also People v. Flanders (79) 89 CA3d 634, 640 fn 4 [152 CR 696].) Moreover, the same rationale would apply if the accomplice entered a plea to a lesser crime. (Gordon, supra, 10 C3d at 469-70.)
Hence, CJ 3.10 should be modified as set forth above to assure that the jury will apply the accomplice corroboration rule to any witness who was an accomplice when the acts were committed but, for whatever reason, was not liable for prosecution at the time of trial. [See Brief Bank # B-730 for additional briefing on this issue.]
F 3.10c
Modification Of Accomplice Instruction When
Witness May Be Accomplice To One Count And Not The Other
*When appropriate modify CJ 3.10 to provide as follows [added language is capitalized]:
An accomplice is a person who [is] [was] subject to prosecution for the identical offense charged [in Count[s] _________] [OR COUNT __________] against the defendant on trial by reason of [aiding and abetting] [or] [being a member of a criminal conspiracy].
Points and Authorities
People v. Brown (2003) 31 C4th 518, 557.
