California Criminal Jury Instructions (CALCRIM) (2017)

707. Special Circumstances: Accomplice Testimony Must Be Corroborated - Dispute Whether Witness Is Accomplice

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707.Special Circumstances: Accomplice Testimony Must Be
Corroborated—Dispute Whether Witness Is Accomplice (Pen.
Code, § 1111)
In order to prove the special circumstance[s] of <insert
special circumstance[s] requiring proof of additional crime>, the People
must prove that the defendant committed <insert crime[s]
(other than murder) that must be proved>. The People have presented the
(statement[s]/ [or] testimony) of <insert name[s] of
witness[es]> on this issue.
Before you may consider the (statement[s]/ [or] testimony) of
<insert name[s] of witness[es]> on the question of whether
the special circumstance[s] (was/were) proved, you must decide whether
(he/she/they) (was/were) [an] accomplice[s]. A person is an accomplice if
he or she is subject to prosecution for the identical offense alleged
against the defendant. Someone is subject to prosecution if he or she
personally committed the offense or if:
1. He or she knew of the criminal purpose of the person who
committed the offense;
AND
2. He or she intended to, and did, in fact, (aid, facilitate, promote,
encourage, or instigate the commission of the offense[,]/ [or]
participate in a criminal conspiracy to commit the offense).
The burden is on the defendant to prove that it is more likely than not
that <insert name[s] of witness[es]> (was/were) subject to
prosecution for the identical offense.
[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 (the person/those) who commit[s] that crime
is not an accomplice.]
[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)
understood:
1. The nature and effect of the criminal conduct;
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2. That the conduct was wrongful and forbidden;
AND
3. That (he/she) could be punished for participating in the conduct.]
If you find that <insert name[s] of witness[es]> (was/were)
[an] accomplice[s], then you may not find that the special
circumstance[s] of <insert special circumstance[s] requiring
proof of additional crime> (is/are) true based on (his/her/their)
(statement[s]/ [or] testimony) alone. You may use the (statement[s]/ [or]
testimony) of an accomplice to find the special circumstance true only
if:
1. The accomplice’s (statement[s]/ [and] testimony) (is/are)
supported by other evidence that you believe;
2. That supporting evidence is independent of the accomplice’s
(statement[s]/ [and] testimony);
AND
3. That supporting evidence tends to connect the defendant to the
commission of <insert crime[s] (other than murder)
that must be proved>.
Supporting evidence, however, may be slight. It does not need to be
enough, by itself, to prove that the defendant committed
<insert crime[s] (other than murder) that must be proved>, and it does not
need to support every fact (mentioned by the witness 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
<insert crime[s] (other than murder) that must be proved>.
[The evidence needed to support the (statement[s]/ [or] testimony) of
one accomplice cannot be provided by the (statement[s]/ [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 light of all the other evidence.
If you decide that <insert name[s] of witness[es]> (was/
were) not [an] accomplice[s], you should evaluate (his/her/their)
(statement[s]/ [or] testimony) as you would that of any other witness.
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New January 2006
BENCH NOTES
Instructional Duty
There is a sua sponte duty to instruct that testimony by an accomplice must be
corroborated if that testimony is used to prove a special circumstance based on a
crime other than the murder charged in the case. (People v. Hamilton (1989) 48
Cal.3d 1142, 1177 [259 Cal.Rptr. 701, 774 P.2d 730].) “When the special
circumstance requires proof of some other crime [besides the charged murder], that
crime cannot be proved by the uncorroborated testimony of an accomplice. But
when . . . it requires only proof of the motive for the murder for which defendant
has already been convicted, the corroboration requirement . . . does not apply.”
(Ibid.)
“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. 708, Special Circumstances: Accomplice Testimony Must Be
Corroborated—No Dispute Whether Witness Is Accomplice.
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 nontestifying codefendant, the testimony must be corroborated
and should be viewed with caution. (See People v. Coffman and Marlow (2004) 34
Cal.4th 1, 103–106 [17 Cal.Rptr.3d 710, 96 P.3d 30].)
When the witness is an accomplice as a matter of law or the parties agree about the
witness’s status as an accomplice, give CALCRIM No. 708, Special Circumstances:
Accomplice Testimony Must Be Corroborated—No Dispute Whether Witness Is
Accomplice.
Give the bracketed paragraph beginning “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 is an undercover police officer or an unwitting
assistant.
Give the bracketed paragraph beginning “You may not conclude that a child under
14 years old” on request if the defendant claims that a child witness’s testimony
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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].)
Related Instructions
CALCRIM No. 708, Special Circumstances: Accomplice Testimony Must Be
Corroborated—No Dispute Whether Witness Is Accomplice.
CALCRIM No. 334, Accomplice Testimony Must Be Corroborated: Dispute
Whether Witness Is Accomplice.
CALCRIM No. 335, Accomplice Testimony: No Dispute Whether Witness Is
Accomplice.
AUTHORITY
• Duty to Instruct. Pen. Code, § 1111; People v. Hamilton (1989) 48 Cal.3d
1142, 1177 [259 Cal.Rptr. 701, 774 P.2d 730]; 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].
• 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
People v. Dillon (1983) 34 Cal.3d 441, 454 fn. 2 [194 Cal.Rptr. 390, 668 P.2d
697], and Murgia v. Municipal Court (1975) 15 Cal.3d 286, 301 fn. 11 [124
Cal.Rptr. 204, 540 P.2d 44].
• 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
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Cal.4th 635, 679 [66 Cal.Rptr.2d 573, 941 P.2d 752].
Secondary Sources
3 Witkin & Epstein, California Evidence (4th ed. 2000) Presentation, § 98, p. 134
[wrongdoers who are not accomplices]; § 99, p. 136 [“accomplices” who appear to
be victims]; § 105, p. 142.
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, § 461.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.03, Ch. 85, Submission to Jury and Verdict, § 85.03[2][d], Ch. 87,
Death Penalty, § 87.23[4][b] (Matthew Bender).
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