ALERT: CC 334 MAY UNCONSTITUTIONALLY SHIFT THE BURDEN OF PROOF TO THE DEFENDANT
“Sometimes a witness wears two hats: that of a witness, and that of an accomplice. California law permits placing the burden to prove such a witness’s accomplice status on a defendant. (People v. Tewksbury (1976) 15 Cal.3d 953, 963-68.)
This is because, in general, whether a witness is an accomplice is not an element of the defendant’s crimes. (Id. at p. 965.) But certain crimes, such as sexual penetration in concert and rape in concert, require proof that the defendant acted with an accomplice. [Citation to PC 264.1, subd. (a).] Because the witness’s accomplice status is an element of these crimes, the prosecution must bear the burden to prove that status beyond a reasonable doubt. (See Tewksbury, at pp. 963-964.) The portion of CALCRIM No. 334 that instructs the jury otherwise—i.e., that tells jurors that the burden is on the defendant to prove that it is more likely than not that the witness was an accomplice—should be omitted when the defendant is charged with in concert crimes.”
People v. Martinez (2019) 34 Cal.App.5th 721, 723
