SERIES 300 EVIDENCE
F 334 NOTES
TABLE OF CONTENTS
F 334 Note 1 Accomplice As One Who Directly Committed The Crime
F 334 Note 2 Failure To Instruct On Accomplice Corroboration: Standard Of Prejudice
F 334 Note 3 Accomplice Corroboration: Inapplicable To Accomplice Testimony In Probation Revocation Proceedings
F 334 Note 4 Failure To Give Accomplice Instructions Held Harmless Error
F 334 Note 5 Failure To Require Accomplice Corroboration: Reversible Error
F 334 Note 6 Instruction That One Accomplice Cannot Corroborate Another Not Required Sua Sponte
F 334 Note 7 Testimony Of Co-Defendant Accomplice To Be Viewed With Caution
F 334 Note 8 Whether Failure To Give Accomplice Instruction Constitutes Structural Error Under The Federal Constitution
F 334 Note 9 Accomplice Corroboration: Objection At Trial Required
F 334 Note 10 Due Process Underpinnings Of Accomplice Cautionary Instruction
F 334 Note 11 Burden Of Proving Corroborating Witness Is An Accomplice: Constitutional Challenge
F 334 Note 12 CC 336 And CC 337 Should Be Given For “In Custody” Accomplice
Return to Series 300 Table of Contents.
F 334 Note 1 Accomplice As One Who Directly Committed The Crime
No error to refuse defendant’s instruction defining accomplice to include persons who directly commit the crime. (People v. Morris (1991) 53 C3d 152, 211; but see CC 334 [accomplice is person who personally commits the crime].)
[RESEARCH NOTE: See FORECITE BIBLIO 3.10.]
CALJIC NOTE: See FORECITE F 3.10 n1.
F 334 Note 2 Failure To Instruct On Accomplice Corroboration: Standard Of Prejudice
See FORECITE PG X(C)(9).
[Research Note: See FORECITE BIBLIO 3.10]
CALJIC NOTE: See FORECITE F 3.10 n2.
F 334 Note 3 Accomplice Corroboration: Inapplicable To Accomplice Testimony In Probation Revocation Proceedings
People v. McGavock (1999) 69 CA4th 332 [PC 1111 requiring corroboration of accomplice testimony does not apply in probation revocation hearings].
CALJIC NOTE: See FORECITE F 3.10 n3.
F 334 Note 4 Failure To Give Accomplice Instructions Held Harmless Error
People v. Tatman (1993) 20 CA4th 1, 12.
[Research Note: See FORECITE BIBLIO 3.10, et al.)
CALJIC NOTE: See FORECITE F 3.11 n4.
F 334 Note 5 Failure To Require Accomplice Corroboration: Reversible Error
See FORECITE PG X(C)(9).
[RESEARCH NOTE: See FORECITE BIBLIO 3.10, et al.]
CALJIC NOTE: See FORECITE F 3.11 n5.
F 334 Note 6 Instruction That One Accomplice Cannot Corroborate Another Not Required Sua Sponte
(See People v. Sanders (1995) 11 C4th 475, 533-534; see also People v. Snyder (2003) 112 CA4th 1200, 1219-20; but see People v. Boyce (1980) 110 CA3d 726, 738.)
CALJIC NOTE: See FORECITE F 3.13 n1.
NOTE: An accomplice instruction must be given when a codefendant’s testimony tends to incriminate another. (People v. Avila (2006) 38 C4th 491, 562; see also CC 334 BENCH NOTES.)
F 334 Note 7 Testimony Of Co-Defendant Accomplice To Be Viewed With Caution
Special concerns may arise if the defendant testifies and incriminates the co-defendant in confessing his own guilt. The CALJIC use note states that CJ 3.18 “should be given sua sponte when a defendant in testifying implicates his co-defendant while confessing his own guilt.” (See People v. Terry (1970) 2 C3d 362, 398-99; see also People v. Fowler (1987) 196 CA3d 79, 87.) If the “confession” is to anything less than the full and complete charge against him. For example, if the defendant confesses his involvement in the crime but thereafter sets forth an affirmative defense such as entrapment, it would clearly be prejudicial to instruct the jury to view his testimony with caution. Such an instruction would be tantamount to an instruction to view his defense with caution. (In People v. Myers UNPUBLISHED (6/12/90) (F012304), the 5th District Court of Appeal reversed a judgment for just this reason.)
Similarly, if the defendant’s testimony confesses guilt to only a portion of the charge against him (i.e., to a lesser included offense or to one count of a multi-count information) the cautionary instruction should not be given. (See People v. Fitzgerald (1961) 56 C2d 855, 861 [a statement which leaves additional matters to be determined is an admission not a confession].)
In People v. Alvarez (1996) 14 C4th 155, 218 the court held that it was proper to instruct that an accomplice-defendant’s testimony should be viewed with caution to the extent that it tends to incriminate his co-defendant. The court stated “[I]t is true that the testimony of a defendant ought not to be viewed with distrust simply because it is given by a defendant. … It is also true, however, that the testimony of a defendant ought not to be viewed without distrust simply because it is given by a defendant. Under the law, a defendant is surely equal to all other witnesses. But, under the same law, he is superior to none.” (Alvarez, 14 C4th at 219.)
[Research Note: See FORECITE BIBLIO 3.10, et al.]
CALJIC NOTE: See FORECITE F 3.18 n1.
F 334 Note 8 Whether Failure To Give Accomplice Instruction Constitutes Structural Error Under The Federal Constitution
The U.S. Supreme Court has held that an instructional error regarding the standard of proof beyond a reasonable doubt is a structural error which requires per se reversal. (Sullivan v. Louisiana (1993) 508 US 275, 281-82 [124 LEd2d 182; 113 SCt 2078].) In the same vein, earlier cases indicate that per se reversal is required as to any instructional error which diminishes the jury’s understanding of the beyond a reasonable doubt standard. (Cool v. United States (1972) 409 US 100, 104 [34 LEd2d 335; 93 SCt 354]; U.S. v. Hall (5th Cir. 1976) 525 F2d 1254, 1256.)
The key principle found in CJ 3.18 is that the jury may not return a conviction unless it first finds corroboration of the accomplice’s testimony. When the jury is not advised of this principle, a conviction can be returned on the basis of a lower quantum of evidence than is permitted by the federal constitution. Thus, the omission to give CJ 3.18 must be deemed reversible per se. (Compare People v. Tatman (1993) 20 CA4th 1, 12 [error held to be prejudicial without considering whether it was “structural” ].)
[See Brief Bank # B-855for briefing as to the prejudicial impact of the failure to caution the jury regarding accomplice testimony per CJ 3.10 and CJ 3.18.]
[RESEARCH NOTE: See FORECITE BIBLIO 3.10, et al.]
CALJIC NOTE: See FORECITE F 3.18 n3.
F 334 Note 9 Accomplice Corroboration: Objection At Trial Required
Because CC 334 is a cautionary instruction, it is incumbent upon the defendant to object or request modification at trial. (People v. Franko (1994) 24 CA4th 1528, 1537-39.)
[Research Note: See FORECITE BIBLIO 3.10, et al.]
CALJIC NOTE: See FORECITE F 3.18 n4.
F 334 Note 10 Due Process Underpinnings Of Accomplice Cautionary Instruction
The due process roots of the accomplice cautionary instruction are well documented. (See People v. Guiuan (1997) 18 C4th 558, 564-69.) The concept is recognized as an important component of the defendant’s right to a fair trial and to a reliable jury verdict. (Ibid.)
Accordingly, the failure to properly instruct the jury on accomplice testimony implicates the defendant’s federal constitutional right to due process and a fair jury trial. (5th, 6th and 14th Amendments; see Montana v. Egelhoff (1996) 518 US 37, 43 [136 LEd2d 361; 116 SCt 2013] [historical practice is primary guide in determining “fundamental principles of justice” for due process analysis]; see also Medina v. California (1992) 505 US 437, 446 [120 LEd2d 353; 112 SCt 2572]; Schad v. Arizona (1991) 501 US 624 [115 LEd2d 555; 111 SCt 2491].)
CALJIC NOTE: See FORECITE F 3.18 n6.
F 334 Note 11 Burden Of Proving Corroborating Witness Is An Accomplice: Constitutional Challenge
In People v. Frye (1998) 18 C4th 894, 967-68 the Supreme Court declined to reconsider the decision in People v. Tewksbury (1976) 15 C3d 953, from which CJ 3.19 was derived. In Frye the court concluded that because the corroboration requirement established in PC 1111 has no bearing on the prosecution’s proof of any element of the charged crime, there is no constitutional impediment to placing on a defendant the burden of proving, by a preponderance of the evidence, a witness’s status as an accomplice.
CALJIC NOTE: See FORECITE F 3.19 n1.
F 334 Note 12 CC 336 And CC 337 Should Be Given For “In Custody” Accomplice
If the alleged accomplice witness is “in custody” then both CC 336 and CC 337 should also be given on request.
