California Criminal Jury Instructions (CALCRIM) (2017)

334. Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice

Download PDF
334.Accomplice Testimony Must Be Corroborated: Dispute
Whether Witness Is Accomplice
Before you may consider the (statement/ [or] testimony) of
<insert name[s] of witness[es]> as evidence against (the defendant/
<insert names of defendants>) [regarding the crime[s] of
<insert name[s] of crime[s] if corroboration only required for
some crime[s]>], you must decide whether <insert name[s]
of witness[es]>) (was/were) [an] accomplice[s] [to (that/those) crime[s]].
A person is an accomplice if he or she is subject to prosecution for the
identical crime charged against the defendant. Someone is subject to
prosecution if:
1. He or she personally committed the crime;
2. He or she knew of the criminal purpose of the person who
committed the crime;
3. He or she intended to, and did in fact, (aid, facilitate, promote,
encourage, or instigate the commission of the crime[;]/ [or]
participate in a criminal conspiracy to commit the crime).
The burden is on the defendant to prove that it is more likely than not
that <insert name[s] of witness[es]> (was/were) [an]
[An accomplice does not need to be present when the crime is
committed. On the other hand, a person is not an accomplice just
because he or she is present at the scene of a crime, even if he or she
knows that a crime will be committed or is being committed and does
nothing to stop it.]
[A person who lacks criminal intent but who pretends to join in a crime
only to detect or prosecute those who commit that crime is not an
[A person may be an accomplice even if he or she is not actually
prosecuted for the crime.]
[You may not conclude that a child under 14 years old was an
accomplice unless you also decide that when the child acted, (he/she)
1. The nature and effect of the criminal conduct;
2. That the conduct was wrongful and forbidden;
3. That (he/she) could be punished for participating in the conduct.]
If you decide that a (declarant/ [or] witness) was not an accomplice,
then supporting evidence is not required and you should evaluate his or
her (statement/ [or] testimony) as you would that of any other witness.
If you decide that a (declarant/ [or] witness) was an accomplice, then
you may not convict the defendant of <insert charged
crime[s]> based on his or her (statement/ [or] testimony) alone. You
may use the (statement/ [or] testimony) of an accomplice to convict the
defendant only if:
1. The accomplice’s (statement/ [or] testimony) is supported by
other evidence that you believe;
2. That supporting evidence is independent of the accomplice’s
(statement/ [or] testimony);
3. That supporting evidence tends to connect the defendant to the
commission of the crime[s].
Supporting evidence, however, may be slight. It does not need to be
enough, by itself, to prove that the defendant is guilty of the charged
crime[s], and it does not need to support every fact (mentioned by the
accomplice in the statement/ [or] about which the accomplice testified).
On the other hand, it is not enough if the supporting evidence merely
shows that a crime was committed or the circumstances of its
commission. The supporting evidence must tend to connect the
defendant to the commission of the crime.
[The evidence needed to support the (statement/ [or] testimony) of one
accomplice cannot be provided by the (statement/ [or] testimony) of
another accomplice.]
Any (statement/ [or] testimony) of an accomplice that tends to
incriminate the defendant should be viewed with caution. You may not,
however, arbitrarily disregard it. You should give that (statement/ [or]
testimony) the weight you think it deserves after examining it with care
and caution and in the light of all the other evidence.
New January 2006; Revised June 2007, April 2010, April 2011, February 2016
Instructional Duty
There is a sua sponte duty to instruct on the principles governing the law of
accomplices, including the need for corroboration, if the evidence at trial suggests
that a witness could be an accomplice. (People v. Tobias (2001) 25 Cal.4th 327,
331 [106 Cal.Rptr.2d 80, 21 P.3d 758]; People v. Guiuan (1998) 18 Cal.4th 558,
569 [76 Cal.Rptr.2d 239, 957 P.2d 928].)
“Whether a person is an accomplice is a question of fact for the jury unless the
facts and the inferences to be drawn therefrom are undisputed.” (People v. Coffman
and Marlow (2004) 34 Cal.4th 1, 104 [17 Cal.Rptr.3d 710, 96 P.3d 30].) When the
court concludes that the witness is an accomplice as a matter of law or the parties
agree about the witness’s status as an accomplice, do not give this instruction. Give
CALCRIM No. 335, Accomplice Testimony: No Dispute Whether Witness Is
If a codefendant’s testimony tends to incriminate another defendant, the court must
give an appropriate instruction on accomplice testimony. (People v. Avila (2006) 38
Cal.4th 491, 562 [43 Cal.Rptr.3d 1, 133 P.3d 1076]; citing People v. Box (2000) 23
Cal.4th 1153, 1209 [99 Cal.Rptr.2d 69, 5 P.3d 130]; People v. Alvarez (1996) 14
Cal.4th 155, 218 [58 Cal.Rptr.2d 385, 926 P.2d 365].) The court must also instruct
on accomplice testimony when two codefendants testify against each other and
blame each other for the crime. (Id. at 218–219).
When the witness is a codefendant whose testimony includes incriminating
statements, the court should not instruct that the witness is an accomplice as a
matter of law. (People v. Hill (1967) 66 Cal.2d 536, 555 [58 Cal.Rptr. 340, 426
P.2d 908].) Instead, the court should give this instruction, informing the jury that it
must decide whether the testifying codefendant is an accomplice. In addition, the
court should instruct that when the jury considers this testimony as it relates to the
testifying codefendant’s defense, the jury should evaluate the testimony using the
general rules of credibility, but if the jury considers testimony as incriminating
evidence against the non-testifying codefendant, the testimony must be corroborated
and should be viewed with caution. (See People v. Coffman and Marlow (2004) 34
Cal.4th 1, 105 [17 Cal.Rptr.3d 710, 96 P.3d 30].)
If the court concludes that the corroboration requirement applies to an out-of-court
statement, use the word “statement” throughout the instruction. (See discussion in
Related Issues section below.)
In a multiple codefendant case, if the corroboration requirement does not apply to
all defendants, insert the names of the defendants for whom corroboration is
required where indicated in the first sentence.
If the witness was an accomplice to only one or some of the crimes he or she
testified about, the corroboration requirement only applies to those crimes and not
to other crimes he or she may have testified about. (People v. Wynkoop (1958) 165
Cal.App.2d 540, 546 [331 P.2d 1040].) In such cases, the court may insert the
specific crime or crimes requiring corroboration in the first sentence.
Give the bracketed paragraph that begins with “A person who lacks criminal intent”
when the evidence suggests that the witness did not share the defendant’s specific
criminal intent, e.g., witness was an undercover police officer or an unwitting
Give the bracketed paragraph that begins with “You may not conclude that a child
under 14 years old” on request if the defendant claims that a child witness’s
testimony must be corroborated because the child acted as an accomplice. (Pen.
Code, § 26; People v. Williams (1936) 12 Cal.App.2d 207, 209 [55 P.2d 223].)
• Instructional Requirements. Pen. Code, § 1111; People v. Guiuan (1998) 18
Cal.4th 558, 569 [76 Cal.Rptr.2d 239, 957 P.2d 928].
• Accomplice May Not Provide Sole Basis for Admission of Other
Evidence. People v. Bowley (1963) 59 Cal.2d 855, 863 [31 Cal.Rptr. 471, 382
P.2d 591].
• Consideration of Incriminating Testimony. People v. Guiuan (1998) 18 Cal.4th
558, 569 [76 Cal.Rptr.2d 239, 957 P.2d 928].
• Defendant’s Burden of Proof. People v. Belton (1979) 23 Cal.3d 516, 523
[153 Cal.Rptr. 195, 591 P.2d 485].
• Defense Admissions May Provide Necessary Corroboration. People v.
Williams (1997) 16 Cal.4th 635, 680 [66 Cal.Rptr.2d 573, 941 P.2d 752].
• Accomplice Includes Co-perpetrator. People v. Felton (2004) 122 Cal.App.4th
260, 268 [18 Cal.Rptr.3d 626].
• Definition of Accomplice as Aider and Abettor. People v. Stankewitz (1990) 51
Cal.3d 72, 90–91 [270 Cal.Rptr. 817, 793 P.2d 23].
• Extent of Corroboration Required. People v. Szeto (1981) 29 Cal.3d 20, 27
[171 Cal.Rptr. 652, 623 P.2d 213].
• One Accomplice May Not Corroborate Another. People v. Montgomery (1941)
47 Cal.App.2d 1, 15 [117 P.2d 437], disapproved on other grounds in Murgia v.
Municipal Court (1975) 15 Cal.3d 286, 301, fn. 11 [124 Cal.Rptr. 204, 540 P.2d
44] and People v. Dillon (1983) 34 Cal.3d 441, 454, fn. 2 [194 Cal.Rptr. 390,
668 P.2d 697].
• Presence or Knowledge Insufficient. People v. Boyd (1990) 222 Cal.App.3d
541, 557, fn. 14 [271 Cal.Rptr. 738]; In re Michael T. (1978) 84 Cal.App.3d
907, 911 [149 Cal.Rptr. 87].
• Testimony of Feigned Accomplice Need Not Be Corroborated. People v.
Salazar (1962) 201 Cal.App.2d 284, 287 [20 Cal.Rptr. 25]; but see People v.
Brocklehurst (1971) 14 Cal.App.3d 473, 476 [92 Cal.Rptr. 340]; People v.
Bohmer (1975) 46 Cal.App.3d 185, 191–193 [120 Cal.Rptr. 136].
• Uncorroborated Accomplice Testimony May Establish Corpus Delicti. People
v. Williams (1988) 45 Cal.3d 1268, 1317 [248 Cal.Rtpr. 834, 756 P.2d 221].
• Witness an Accomplice as a Matter of Law. People v. Williams (1997) 16
Cal.4th 635, 679 [66 Cal.Rptr.2d 573, 941 P.2d 752].
• In-Custody Informant Testimony and Accomplice Testimony May Corroborate
Each Other. People v. Huggins (2015) 235 Cal.App.4th 715, 719–720 [185
Cal.Rptr.3d 672].
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 110, 111,
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, §§ 686,
738, 739.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.03, Ch. 85, Submission to Jury and Verdict, §§ 85.02[2][b],
85.03[2][b], [d], Ch. 87, Death Penalty, § 87.23[4][b] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, § 141.02[5][b] (Matthew Bender).
Out-of-Court Statements
The out-of court statement of a witness may constitute “testimony” within the
meaning of Penal Code section 1111, and may require corroboration. (People v.
Williams (1997) 16 Cal.4th 153, 245 [66 Cal.Rptr.2d 123, 940 P.2d 710]; People v.
Belton (1979) 23 Cal.3d 516, 526 [153 Cal.Rptr. 195, 591 P.2d 485].) The Supreme
Court has quoted with approval the following summary of the corroboration
requirement for out-of-court statements:
‘[T]estimony’ within the meaning of . . . section 1111 includes . . . all out-of-
court statements of accomplices and coconspirators used as substantive
evidence of guilt which are made under suspect circumstances. The most
obvious suspect circumstances occur when the accomplice has been arrested or
is questioned by the police. [Citation.] On the other hand, when the out-of-
court statements are not given under suspect circumstances, those statements do
not qualify as ‘testimony’ and hence need not be corroborated under . . .
section 1111.
(People v. Williams, supra, 16 Cal.4th at p. 245 [quoting People v. Jeffery (1995)
37 Cal.App.4th 209, 218 [43 Cal.Rptr.2d 526] [quotation marks, citations, and
italics removed]; see also People v. Sully (1991) 53 Cal.3d 1195, 1230 [283
Cal.Rptr. 144, 812 P.2d 163] [out-of-court statement admitted as excited utterance
did not require corroboration].) The court must determine whether the out-of-court
statement requires corroboration and, accordingly, whether this instruction is
appropriate. The court should also determine whether the statement is testimonial,
as defined in Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158
L.Ed.2d 177], and whether the Crawford holding effects the corroboration
requirement of Penal Code section 1111.
Incest With a Minor
Accomplice instructions are not appropriate in a trial for incest with a minor. A
minor is a victim, not an accomplice, to incest. (People v. Tobias (2001) 25 Cal.4th
327, 334 [106 Cal.Rptr.2d 80, 21 P.3d 758]; see CALCRIM No. 1180, Incest.)
Liable to Prosecution When Crime Committed
The test for determining if a witness is an accomplice is not whether that person is
subject to trial when he or she testifies, but whether he or she was liable to
prosecution for the same offense at the time the acts were committed. (People v.
Gordon (1973) 10 Cal.3d 460, 469 [110 Cal.Rptr. 906, 516 P.2d 298].) However,
the fact that a witness was charged for the same crime and then granted immunity
does not necessarily establish that he or she is an accomplice. (People v. Stankewitz
(1990) 51 Cal.3d 72, 90 [270 Cal.Rptr. 817, 793 P.2d 23].)
Threats and Fear of Bodily Harm
A person who is induced by threats and fear of bodily harm to participate in a
crime, other than murder, is not an accomplice. (People v. Brown (1970) 6
Cal.App.3d 619, 624 [86 Cal.Rptr. 149]; People v. Perez (1973) 9 Cal.3d 651,
659–660 [108 Cal.Rptr. 474, 510 P.2d 1026].)
Defense Witness
“[A]lthough an accomplice witness instruction must be properly formulated . . . ,
there is no error in giving such an instruction when the accomplice’s testimony
favors the defendant.” (United States v. Tirouda (9th Cir. 2005) 394 F.3d 683, 688.)