CALCRIM No. 335. Accomplice Testimony: No Dispute Whether Witness Is Accomplice

Judicial Council of California Criminal Jury Instructions (2020 edition)

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335.Accomplice Testimony: No Dispute Whether Witness Is
Accomplice
If the crime[s] of <insert charged crime[s]> (was/were)
committed, then <insert name[s] of witness[es]> (was/were)
[an] accomplice[s] to (that/those) crime[s].
You may not convict the defendant of <insert crime[s]>
based on the (statement/ [or] testimony) of an accomplice alone. You may
use (a statement/ [or] testimony) of an accomplice that tends to
incriminate the defendant 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);
AND
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, and it does not need to support every fact (mentioned by the
accomplice in the statement/ [or] about which the witness 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, August 2012, February 2016,
March 2019
104
BENCH NOTES
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].)
“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].) Give this
instruction only if 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. (People v.
Verlinde (2002) 100 Cal.App.4th 1146, 1161 [123 Cal.Rptr.2d 322] [only give
instruction “ ‘if undisputed evidence established the complicity’ ”].) If there is a
dispute about whether the witness is an accomplice, give CALCRIM No. 334,
Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is
Accomplice.
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 co-defendants 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 CALCRIM No. 334, Accomplice Testimony
Must Be Corroborated: Dispute Whether Witness Is Accomplice, 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].)
Do not give this instruction if accomplice testimony is solely exculpatory or neutral.
(People v. Smith (2017) 12 Cal.App.5th 766, 778-780 [218 Cal.Rptr.3d 892] [telling
jurors that corroboration is required to support neutral or exonerating accomplice
testimony was prejudicial error].)
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 to CALCRIM No. 334, Accomplice Testimony Must Be
Corroborated: Dispute Whether Witness Is Accomplice.)
EVIDENCE CALCRIM No. 335
105
AUTHORITY
• 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].
• Defense Admissions May Provide Necessary Corroboration. People v. Williams
(1997) 16 Cal.4th 635, 680 [66 Cal.Rptr.2d 573, 941 P.2d 752].
• 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.Rptr. 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].
• This Instruction Upheld. People v. Tuggles (2009) 179 Cal.App.4th 339,
363-367 [100 Cal.Rptr.3d 820].
• 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].
• No Corroboration Requirement for Exculpatory Accomplice Testimony. People
v. Smith (2017) 12 Cal.App.5th 766, 778-780 [218 Cal.Rptr.3d 892].
CALCRIM No. 335 EVIDENCE
106
SECONDARY SOURCES
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 108, 109, 118,
122.
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) 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).
EVIDENCE CALCRIM No. 335
107

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