Brief Bank # B-788 (Re: F 3.16b [No Reference To The Term Accomplice].)
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TIMOTHY MC KENNA, ESQ. (SBN 111881)
ATTORNEY AT LAW
639 KENTUCKY STREET, SUITE 120
FAIRFIELD, CA 94533
ROBERT C. FRACCHIA, ESQ. (SBN 88372)
LAW OFFICES OF ROBERT C. FRACCHIA
500 Main Street
Vacaville, CA 95688
Telephone: (707) 448-6894
Facsimile: (707) 451-1326
Attorneys for Defendant
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SOLANO
THE PEOPLE OF THE STATE OF
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO GIVING ACCOMPLICE INSTRUCTIONS
Defendant, JOHN DOE, renews his objection to the Court’s indication that it is appropriate to give “accomplice” instructions. CALJIC 3.10 defines as accomplice under the law: “An accomplice is a person who is subject to prosecution for the identical offense charged . . . against the defendant on trial by reason of [aiding and abetting] or [being a member of a criminal conspiracy].”
Under the theory presented by the prosecution, the defendant here is a principal, acting at most, upon the feigned request of ROBERT ROE. There is no evidence to support the notion that defendant DOE aided or abetted ROBERT ROE or that he was part of a criminal conspiracy with Mr. ROE. In fact, the evidence presented thus far is completely contrary to the theory that Mr. ROE was an accomplice.
This instructional error would be compounded further if ROBERT ROE was identified as “an accomplice as a matter of law.” (Using, CALJIC 3.16). CALJIC 3.16 certainly suggests to the jury that at least one other person is guilty of the crime charged. After all, if there is an accomplice under the definitions set forth in CALJIC 3.10, there must also be a perpetrator. When the defendant DOE is the only other possible choice, CALJIC 3.16 acts in essence to direct a verdict against defendant DOE (see, discussion in People v. Hill (1967) 66 Cal2d 536, 555 – where a co-defendant has made a judicial confession, an instruction that as a matter of law such co-defendant is an accomplice of the other defendant may well be construed by the jurors as imputing the co-defendant’s foregone guilt to the other defendant).
The risk inherent to defendant DOE lies in the definition of an accomplice. If defendant DOE has not aided and abetted ROBERT ROE nor conspired with him, ROBERT ROE is not, as a matter of law an accomplice.
If the Court is nevertheless inclined to give accomplice instructions, the defendant requests that the Court give the attached accomplice instructions: CALJIC 3.10 as modified; CALJIC 3.11; CALJIC 3.12; CALJIC 3.13; and defendant’s special cautionary instruction regarding accomplice testimony, or alternatively CALJIC 3.18 attached hereto.
TIMOTHY McKENNA, ESQ.
ROBERT C. FRACCHIA, ESQ.
ROBERT C. FRACCHIA
Attorneys for Defendant