Trial court erroneously instructed jury that defendant had the burden of proving a prosecution witness was an accomplice because acting in concert was an element of the charged offenses. Martinez and Smith were charged with sexual penetration in concert and rape in concert. After pleading guilty to rape in concert, Smith testified for the prosecution in Martinez’s case. Martinez testified that Smith acted alone. On appeal Martinez argued it was error for the trial court to instruct the jury, over objection, that he had the burden to prove Smith was his accomplice. Held: Affirmed. When a witness is also an accomplice, the law generally permits placing the burden to prove the accomplice status on a defendant because whether the witness is an accomplice is collateral to the issue of guilt or innocence. The witness’s status as an accomplice is important because, if an accomplice, his testimony must be viewed with caution. However, sexual penetration in concert and rape in concert both require proof that the defendant acted with an accomplice. Thus, the burden is on the prosecution to prove the accomplice’s status. The trial court should have omitted the portion of CALCRIM No. 334 (defining accomplice), that instructs the jury that the burden is on the defendant to prove the witness’s status as an accomplice. However, given the strength of the evidence in the case, the other instructions given, the fact that the prosecution accepted the burden of proving Smith’s accomplice status, and the attorneys’ arguments to the jury, the error was harmless.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B289639.PDF