Section 1180 | CALCRIM (Jury Instructions)

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, supra, 25 Cal.4th
at p. 334; 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,
supra, 51 Cal.3d at p. 90.)
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.)
SECONDARY SOURCES
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 110, 111, 118,

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. 334
107

Cal.App.3d 224, 233–234 [182 Cal.Rptr. 406], disapproved on other grounds by
People v. Jones (1988) 46 Cal.3d 585 [250 Cal.Rptr. 635, 758 P.2d 1165].
LESSER INCLUDED OFFENSES
•
Attempted Incest. Pen. Code, §§ 664, 285.
RELATED ISSUES
Accomplice Instructions
A minor is a victim of, not an accomplice to, incest. Accomplice instructions are not
appropriate in a trial for incest involving a minor. (People v. Tobias (2001) 25
Cal.4th 327, 334 [106 Cal.Rptr.2d 80, 21 P.3d 758]; see People v. Stoll (1927) 84
Cal.App. 99, 101–102 [257 P. 583].) An exception may exist when two minors
engage in consensual sexual intercourse, and thus both are victims of the other’s
crime. (People v. Tobias, supra, 25 Cal.4th at p. 334; see In re T.A.J. (1998) 62
Cal.App.4th 1350, 1364–1365 [73 Cal.Rptr.2d 331] [minor perpetrator under Pen.
Code, § 261.5].) An adult woman who voluntarily engages in the incestuous act is
an accomplice, whose testimony must be corroborated. (See People v. Stratton
(1904) 141 Cal. 604, 609 [75 P. 166].)
Half-Blood Rela