Brief Bank # B-845 (Re: F 3.16 n4 [Accomplice As A Matter Of Law: CJ 3.16 Must Be Given].)
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Date of Brief: May 2000
COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION FIVE
PEOPLE OF THE STATE OF CALIFORNIA, )
) No. B000000
Plaintiff and Respondent, )
) SCN: T00000
v. ) (Los Angeles County)
JOHN DOE, )
Defendant and Appellant. )
APPELLANT’S OPENING BRIEF
On Appeal from the Judgment of the Superior Court
of the State of California
for the County of Los Angeles
THE HONORABLE ARTHUR N. LEW, JUDGE
KIM MALCHESKI #98181
Attorney at Law
P.O. Box 40105
San Francisco, CA 94140
Attorney for Appellant
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
NOT GIVING CALJIC NO. 3.16 THAT FORMER CODEFENDANT
MS. D WAS AN ACCOMPLICE AS A MATTER OF LAW.
Over strong defense objection (RT 2455-2456), the trial court refused to give CALJIC No. 3.16, informing the jury that former codefendant Ms. D was an accomplice as a matter of law. CALJIC No. 3.16 provides: “The crime of ______ was committed by anyone, the witness ________ was an accomplice as a matter of law and her testimony is subject to the rule requiring corroboration.” By failing to give that instruction, the trial court committed reversible error by not instructing the jury as a matter of law that key prosecution witness Ms. D was an accomplice as a matter of law; thereby requiring that her testimony was to be viewed with distrust or caution.
Instead of giving CALJIC No. 3.16, the trial court gave CALJIC No. 3.19, informing the jury that it had to decide whether Ms. D was an accomplice; and that appellant had the burden of proving by a preponderance of the evidence that she was an accomplice. [Footnote 1]
It is well established that CALJIC No. 3.16 must be given sua sponte by the trial court when a witness is an accomplice as a matter of law. (People v. Robinson (1964) 61 Cal.2d 373, 394-396; People v. Dailey (1960) 179 Cal.App.2d 482, 485-486.) CALJIC No. 3.16 is based on Penal Code section 1111, which provides:
“A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as 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.”
The phrase “liable to prosecution” in section 1111 has been defined to mean “properly liable.” (People v. Rodriguez (1986) 42 Cal.3d 730, 759.) To be charged with an identical offense, the witness must be a principal under section 31; that is, the direct perpetrator or an aider or abettor. (People v. Fauber (1992) 2 Cal.4th 792, 833.)
Ms. D was the key prosecution witness against appellant. She was originally charged with murder along with appellant. The prosecution did not arrive at a plea bargain with her until the eve of appellant’s trial. The prosecution gave her a “sweetheart deal” to testify against appellant, by allowing her to plead no contest as an accessory with a state prison sentence of three years. She was sentenced to credit for time served and released on the day of her sentencing, which occurred during the middle of appellant’s trial.
She was properly prosecuted for murder as an aider and abettor because she was present when Ms. P was killed. She was either the direct perpetrator or a knowing aider and abettor. Despite her obvious self-serving testimony, she was implicated in the decedent’s death. Given her animosity toward the victim as shown by their prior altercations, she had the motive to kill or assist in the killing of her.
Under the facts of this case, Ms. D was an accomplice as a matter of law; and the trial court erred by leaving it up to the jury to decide if she was an accomplice, and whether her testimony had to be viewed with distrust or care and caution. (See e.g. People v. Jones (1964) 228 Cal.App.2d 74, 93-95; People v. Rodriguez, supra, 42 Cal.3d at p. 759.) The court further erred by giving CALJIC No. 3.19, which shifted the burden to the defense to prove that she was in fact an accomplice. (People v. Dailey (1960) 179 Cal.App.2d 482, 484.)
The trial court’s error in not giving CALJIC No. 3.16 was prejudicial because the jury may not have decided that it was necessary to determine if her testimony was corroborated by other evidence. It was also prejudicial error because, as an accomplice, the jury should have viewed her testimony with distrust or caution.
In her concurring opinion in People v. Guiuan, supra, 18 Cal.4th at pp. 571-575, Justice Kennard explained why jurors should view accomplice testimony with skepticism. First, accomplices, because they are liable to prosecution for the same offense, have a powerful built-in motive to aid the prosecution in convicting a defendant, with the hopeful expectation that the prosecution will reward the accomplice’s assistance with immunity or leniency. (Id. at p. 572.) “There is solid historical justification for an accomplice’s expectation that, even in the absence of an explicit agreement, the prosecution will reward testimony that results in a conviction by granting the testifying accomplice immunity from prosecution or at least leniency in charging or sentencing.” (Id. at p. 572.)
Justice Kennard in Guiuan further explained that accomplices are rarely persons of integrity whose veracity is above suspicion. An accomplice’s participation in the charged offense is itself evidence of bad moral character. (Id. at p. 574.) And finally, special caution is warranted because an accomplice’s first hand knowledge of the details allows for the construction of plausible falsehoods not easily disproved. An accomplice can easily manipulate the details of the events surrounding the crime without blatant discrepancies. That is exactly what Ms. D did here as she manipulated the details of what happened to shift blame away from her on to appellant.
Because of the importance of her testimony and the absence of any other eyewitnesses, the trial court’s failure to properly instruct the jury that Ms. D was an accomplice as a matter of law was prejudicial error requiring reversal of appellant’s murder conviction.
For the above-stated reasons, appellant’s second degree murder conviction must be reversed for the reasons stated in Arguments I, II, and III. If appellant’s conviction is not reversed, the abstract of judgment should be ordered corrected to correctly reflect the amount of presentence conduct credits appellant is entitled to.
DATED: May __, 2000
Attorney for Appellant
Footnote 1: The trial court gave CALJIC Nos. 3.10, 3.11, 3.12, 3.14, 3.18, and 3.19 on how to view accomplice testimony. (CT 176-181.) The trial court gave the jury the older version of CALJIC No. 3.18, informing the jury that it should view the testimony of an accomplice with distrust. (CT 180.) The 1999 revision of CALJIC No. 3.18 (January 2000 Pocket Part at p. 30) informs the jury that it should view the testimony of an accomplice with care and caution. CALJIC No. 3.18 was revised in compliance with the Supreme Court’s decision in People v. Guiuan (1998) 18 Cal.4th 558, 569.