PEOPLE v. TEWKSBURY

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Gilbert TEWKSBURY, Defendant and Appellant.

Cr. 21835.

Decided: January 10, 1975

George H. Rhodes, Woodland Hills, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Donald F. Roeschke, Deputy Attys. Gen., for plaintiff and respondent. Roger S. Hanson, Woodland Hills, amicus curiae for appellant.

Between 1:30 and 2:00 a. m. on December 24, 1970, two men robbed two employees of the El Torito restaurant in a parking lot outside of the restaurant. Each robber was armed and masked; during the robbery one of the robbers shot one of the victims with a .22 caliber bullet; this victim subsequently died from the wound received. Appellant was charged with the two robberies and the murder and appeals from his conviction.

Much of the testimony concerning the offense was given by one Sheila Twiford, an employee of the restaurant. The Jury was instructed that Twiford was an accomplice as a matter of law, and that her testimony had to be corroborated.

The principal testimony offered to corroborate Twiford was that of Mary Pedraza. The main issue on this appeal is whether Pedraza herself was an accomplice as a matter of law, defendant contending that such was the case. The trial court instructed the jury that defendant had the burden of proving by a preponderance of the evidence that Mary Pedraza was an accomplice; that if the defense so proved that fact, the defendant must be acquitted and a not guilty verdict returned on all charges, and that if the defense failed to establish by a preponderance of the evidence that she was an accomplice, and if the jury found that Mary Pedraza was an accessory only, then it might consider her testimony in deciding whether Twiford's testimony had been corroborated.

We have concluded that while the question was a close one the trial court was justified in submitting to the jury the question of whether or not Mary Pedraza was an accomplice, and in concluding that Mary Pedraza was not an accomplice as a matter of law.

However, we have also concluded that the judgment must be reversed because the instruction placed an erroneously heavy burden of proof upon defendant.

Facts

The surviving victim of the murder and robberies was unable to identify the perpetrators, but gave general descriptions of their height, weight and clothing. Twiford testified as follows: After getting off work at 7:00 p. m. on the evening in question, Twiford went to a home on Telfair Street in which Mr. and Mrs. Pedraza were staying; defendant was there. Twiford told him the restaurant had between $8,000.00 and $10,000.00 in receipts. Defendant stated that he wanted to rob it and called a friend, one Eribes to join him in the project and to bring his dark clothing.1

Mary Pedraza arrived at the home. She had been to a laundromat. Eribes arrived and then Michael Pedraza came. Defendant and Eribes armed themselves. Twiford drew a diagram of the restaurant premises. Eribes or defendant suggested that the others follow in a different car and wait on a side street a few blocks away in case something happened. Michael Pedraza told Twiford and his wife to come with him in the other car. He asked his wife to drive because he was ‘loaded’ and could not do so. Mary Pedraza was at first reluctant to go, but finally did so. She, Twiford and Michael Pedraza went together with Mary driving and Twiford directing her. They waited for 20 to 25 minutes for Eribes and defendant. The latter two then drove up. Everyone got out of the cars; defendant and Eribes said Eribes had shot somebody. Defendant and Twiford drove off in Mary Pedraza's car and the two Pedrazas and Eribes left in the other vehicle. Later that evening at the Telfair Street house the money taken in the robbery was divided with each of the five getting some portion of it—there was a total of $480.00. The other four got $100.00 a piece and Twiford got $80.00. The Pedrazas each gave $20.00 to Eribes and Twiford gave $80.00 to the defendant.

Mary Pedraza proved to be a most reluctant witness. She was called to the stand several times during the trial, both in and out of the presence of the jury. On several occasions she refused to testify, stating that she could not and did not want to answer. One time she based her refusal on marital privilege not to testify against her spouse (Evid.Code, § 970). It was at this point that immunity was given to her husband. It is clear that from her own testimony the jury could have found her to be an accomplice. By her own testimony she was at the Telfair Street house when defendant and Eribes left the premises. She her husband and Sheila drove to a place near the restaurant scene. While waiting for defendant and Eribes she learned that a robbery was in progress; thereafter, the two actual perpetrators of the crimes arrived; the parties switched cars; she went home with her husband and Eribes and there moneys, when she know to be the proceeds of the robbery, were divided.

On the other hand she gave testimony justifying the trial court in submitting to the jury the question of whether in fact she was an accomplice. Thus, with respect to leaving the house with Twiford and her husband Mary Pedraza testified that she had had a drink and taken some pills that evening and was ‘pretty loaded’; that she did not know whether she was aware of the fact that a robbery was going to take place; that she had no knowledge that the purpose of leaving the Telfair Street house was to commit a robbery and in fact it never came to her attention that the purpose of being in the car that evening was to commit some robbery. She also testified that for a reason which she did not know the car was parked on a street; she did not know what her husband was doing there. Twiford was talking about a robbery but Mary Pedraza did not know where it was going to take place; that she thought it might be safe to get out of there but ‘really did not know what to do then’. She was also asked on cross-examination:

‘Q What did she tell you the purpose of your three people sitting there was?

‘A I don't—well, we didn't—we were just talking then. We just really didn't——

I don't know. I don't think we really made sense, any of us did, about anything.'

She also gave testimony as follows:

‘Q You testified yesterday that the first time that you knew that a robbery was going to take place was when you were seated in the car, parked with Mike and Sheila; is that correct?

‘A Yes.

‘Q Is that still the truth or not?

‘A Well, that is when I was finally aware that something was going on, and I was there, and I didn't—I never wanted to be or planned to be a part of anything, and then it was—it was just happening.

‘Q When you saw these things take place in the house, did you know at that time exactly what was going on?

‘A Not exactly.

‘Q Did you have a suspicion as to what was happening?

‘A Yes, but I had never realized I was going to be a part of it.

‘Q Did you want to be a part of it?

‘A No.

‘Q Who asked you to go along for the ride?

‘A My husband.

‘Q What was his condition when he asked you?

‘A Well, he couldn't drive. He was so loaded, I don't even know what he was doing.

‘Q When you say he was so loaded, what was he loaded on?

‘A He was on everything, I guess.

‘Q Pills and heroin?

‘A Yes.

He probably had been drinking, too. I am sure th had been.

‘Q You indicated yesterday that you were in a back room of the house when you received some money; is that correct?

‘A Yes.

‘Q Who offered you the money?

‘A I am not sure if it was Gilbert or Sheila, but I didn't even want to walk into the room. I just stayed at the back near the door.

‘Q When you were offered the money, ar first, what did you do?

‘A I didn't want it.

‘Q Why did you eventually accept the money?

‘A Well, Sheila said that I was—if we got caught, I was as guilty as they were, so I might as well go ahead and take it, and I—I didn't—I didn't know what to say or do then.

‘Q It was after that that you accepted the money?

‘A I guess so. It was in my hand.

‘Q Did you see who actually gave you the money physically?

‘A I don't—I think it was Gilbert.’

Finally, when asked: ‘Mrs. Pedraza, was it ever your intent on this particular morning or evening to participate in a robbery of any type?’ she answered ‘No.’

Instructions on the accomplice issue included the following proper definition of an accomplice:

‘An accomplice is one who is liable to be prosecuted for the identical offense charged against the defendant on trial.

‘To be an accomplice, the person must have knowingly and with criminal intent aided, promoted, encouraged, or instigated by act or advice, or by act and advice, the commission of such offense.’

The jury was instructed in the language of CALJIC 3.14 that merely assenting to or aiding or assisting in the commission of a crime without guilty knowledge or intent is not criminal and that a person so acting is not an accomplice. An instruction defining an accessory was given and the jury was told that if it found that the defense failed to establish by a preponderance of evidence that Mary Pedraza was an accomplice but did find that she was an accessory only, then it might consider her testimony in deciding whether or not the testimony of an accomplice [Twiford] had been corroborated.

Additional accomplice instructions not directly related to the issues raised here were given.2 The jury was also instructed as follows:

‘Every person who learns of a felony after a felony has been completed, harbors, conceals or aids a principal, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony is an accessory to such felony . . .’; and further:

‘In the crime of robbery, that crime is not completed until the disposition of the proceeds of the robbery, if, as part of the plan to commit the robbery, the parties plan to avoid apprehension and detection and meet at another place to divide the proceeds of the robbery. One who joins in such plan prior to the completion of the robbery with the criminal intent to aid, promote, encourage or instigate by act or advice or by act and advice is an accomplice in the crime of robbery.’

It is evident from the recitation of the facts and the instructions, particularly those just quoted (their correctness as general statements of the law is not disputed by defendant) that Mary Pedraza's intent—her state of mind—were of critical importance. As indicated she gave conflicting testimony as to her knowledge of the events of the evening and her purposes in going out in the car. The jury obviously was concerned with this question and focused directly on it.

The jurors commenced their deliberations on the afternoon of January 27, 1972. On the afternoon of Friday, January 28, 1972, a note was sent to the judge asking about ‘. . . [t]hose portions of Mary Pedraza's testimony at preliminary hearings which we are allowed to use to determine her credibility.’ The court stated that there was no preliminary hearing testimony as such and it developed that the jury was referring to an examination where she was asked whether she had not given certain statements (apparently to police officers) on previous occasions.

The court advised the jury that on the following Monday all of the testimony of Mary Pedraza would be reread. That lengthy task, together with the reading of other testimony, was accomplished on Monday, January 31. The court then had the colloquy set out in the margin3 with two jurors. Apparently the ‘instruction right near the end’ that is referred to was CALJIC 17.31 which the court had previously given to the jurors, one of the parts of which states: ‘You will disregard any instruction which applies to a state of facts which you determine does not exist. . . .’

Mary Pedraza Was Not An Accomplice As a Matter of Law

The jury returned its verdict on the afternoon of the following day. Defendant particularly attacks the instruction which told the jury that if Mary Pedraza was an accomplice they must acquit the defendant.

Although phrased variously by defendant and by amicus curiae in his behalf, the thrust of his argument appears to be that the jury should not have been told that it had to acquit defendant if it found Mary Pedraza to be an accomplice. The thought appears to be that this puts too much burden on the jury and that it should have been required to determine the question of Mary Pedraza's status by rendering a special verdict ‘having nothing to do with the fate of appellant’. We reject this suggestion. When the jurors ate called upon to be the triers of fact they must make the same ‘hard decisions' which judges must make. They are presumed to follow the law.

Evidence existed which could support the implied finding that Mary Pedraza was not an accomplice. To be an accomplice a witness must have both guilty knowledge and intent with respect to committing the crime in question. (People v. Duncan (1960) 53 Cal.2d 803, 816, 3 Cal.Rptr. 351, 350 P.2d 103.) Whether a person is an accomplice is a question of law for the court if the facts are undisputed as to the participation of the witness in the crime, but it is a question of fact for the jury where the evidence is conflicting or raises conflicting inferences. (People v. Santo (1954) 43 Cal.2d 319, 326–327, 273 P.2d 249; People v. Brown (1970) 6 Cal.App.3d 619, 623–624, 86 Cal.Rptr. 149.) While a great deal of her testimony supported the conclusion that Mary Pedraza was an accomplice, there was evidence, particularly Mary Pedraza's testimony negating any intent on her part to participate in a robbery, which could be believed by the jury and which would support a finding that she was not an accomplice. The issue of Mary Pedraza's status was properly submitted to the jury.

A witness who was previously prosecuted and acquitted with respect to the same offense for with a defendant is now on trial is not for that reason alone an accomplice as a matter of law, but may be one as a matter of fact. (People v. Gordon (1973) 10 Cal.3d 460, 110 Cal.Rptr. 906, 516 P.2d 298.) A fortiori, the fact that Mary Pedraza was Previously charged with committing the same offense as defendant and then was granted immunity does not mean that she might not be found to be an accomplice.

Defendant's principal reliance is placed on People v. Luker (1965) 63 Cal.2d 464, 47 Cal.Rptr. 209, 407 P.2d 9 and People v. Robinson (1964) 61 Cal.2d 373, 38 Cal.Rptr. 890, 392 P.2d 970. They do not support defendant. In Robinson, the jury was told that if it found a co-defendant—one Hickman—to be an accomplice, then as against other co-defendants, including Robinson, Hickman's testimony must be corroborated. The court said that this instruction ‘invited the jury to speculate upon whether or not Hickman was an accomplice, and implied that if they found him not an accomplice, they could convict the others on his uncorroborated testimony.’ (61 Cal.2d at p. 394, 38 Cal.Rptr. at 903, 392 P.2d at 983). Hickman had confessed in the case and was an accomplice as a matter of law (61 Cal.2d at p. 395, 38 Cal.Rptr. 890, 392 P.2d 970). It was under those circumstances that it was error for the jury to be told it could find Hickman not to be an accomplice. In Luker, Robinson was explained as we have just explained it (63 Cal.2d at p. 472, 47 Cal.Rptr. 209, 407 P.2d 9). There also, it was error to fail to instruct the jury that a co-defendant was an accomplice as a matter of law, but the error was not prejudicial because of the presence of other corroborating testimony.

The Jury Was Erroncously Instructed As To Defendant's Burden Of Proof With Respect to Mary Pedraza's Status.

With reference to the instruction that defendant had the burden of proving by a preponderance of the evidence that Mary Pedraza was an accomplice, defendant argues that it was error to place any burden ar all upon him since the people bear the burden of proving him guilty beyond a reasonable doubt. In determining what burden may properly be allocated to a defendant who desires to establish that a particular witness was or was not an accomplice we start with Evidence Code provisions dealing with evidentiary burdens. We set them out in the margin.4

Our conclusion is that while it is proper to place some burden on a defendant in this connection, that burden is only one of producing sufficient evidence to raise a reasonable doubt in the minds of the jury. An erroneous instruction having been given in that respect and that error obviously having played a crucial part in the jury's deliberations (see fn. 3, supra) we cannot hold that no prejudice occurred. We proceed to elaborate our reasoning.

The phrase ‘burden of proof’ has long been recognized to have two different meanings: one relates to the burden of initially producing or going forward with the evidence (Evid.Code, § 110, IX Wigmore on Evidence, 3d ed. § 2487, p. 278; Witkin, Calif.Evid., 2d ed. §§ 192–193, pp. 177–178.) The second relates to the burden of persuasion—of proving the issues in the case. (Eivd.Code, § 115; Wigmore, op.cit., supra, §§ 2485–2486, pp. 270 et seq.; Witkin, op.cit., supra, § 194, pp. 178–179.) The former burden concerns the trial judge, not the jury. It is for the judge to determine if enough evidence has been introduced on an issue to allow the jury to consider it; at this point the question is not one of persuading the jury as the ultimate trier of fact. Rather it is one of presenting enough evidence on the point to be determined so that there is something to give to the jury which they may decide one way or another. (Wigmore, op.cit., supra, at p. 284; Witkin, op.cit., supra, at p. 178.) The party who carries the overall burden of persuasion—in a criminal case the people—initially has the burden of going forward with the evidence also, since otherwise there will be nothing to present to the jury and the plaintiff's case will be lost. Having presented evidence favoring his position, however, the plaintiff has accomplished his purpose. Now it is up to the defendant, either by the introduction of affirmative evidence of his own, or by pointing to evidence favorable to defendant but adduced on cross-examination, or otherwise, from the plaintiff's witnesses, to go forward and produce evidence which, if believed, will allow the jury to find in his favor.

During this process, the people always retain their ultimate burden of persuading the jury of the guilt of the defendant (Pen.Code, § 1096). Always mindful of the people's burden, it is not at all uncommon in criminal cases for the defendant to be charged with the burden of going forward, once the people have put on their case.

It is in this sense that it is proper to put a burden on a defendant who contends that he acted in defense of himself (People v. Sanchez (1947) 30 Cal.2d 560, 571, 184 P.2d 673) or another (People v. Roe (1922) 189 Cal. 548, 561, 209 P. 560) or that he was unconscious (People v. Hardy (1948) 33 Cal.2d 52, 65, 198 P.2d 865).

California case law is skimpy as to the burden to be placed upon a defendant in connection with a contention that a particular witness is an accomplice. People v. Johnson (1971) 18 Cal.App.3d 458, 463–464, 95 Cal.Rptr. 316, is apparently the first case in this state to deal with the problem. It held that the ‘burden of proof’ is on the defendant to establish that a witness is an accomplice and that it was correct to instruct the jury to that effect. People v. Smith (1972) 26 Cal.App.3d 404, 409, 102 Cal.Rptr. 625, states the same proposition, relying on Johnson as authority.

Johnson quotes 7 Wigmore, op.cit., supra, § 2060 for the proposition that ‘The burden of proving the witness to be 'an accomplice is of course of invoking the rule [that corroboration is required], namely, upon the defendant.’ (18 Cal.App.3d at p. 464, 95 Cal.Rptr. at p. 319. Emphasis supplied.) Wigmore, as we have noted, uses phrase ‘burden of proof’ in two senses. Johnson also states that a defendant who asserts that a witness is an accomplice necessarily claims that the witness is guilty of a crime. Under Evidence Code, section 520 (fn. 4, supra) the court said, the burden of proof is on the defendant. ‘Burden of proof’, however, in some circumstances may only require a party to ‘raise a reasonable doubt concerning the existence or nonexistence of a fact . . .’ (Evid.Code, § 115). When a defendant produces evidence ‘sufficient to avoid a ruling against him’ on an issue (Evid.Code, § 110) he has, if his evidence is believed, raised that reasonable doubt. (See, Jackson v. Superior Court (1965) 62 Cal.2d 521, 526, 42 Cal.Rptr. 838, 399 P.2d 374.) We believe that, properly interpreted, the decision in Johnson should be taken in this sense when it refers to ‘burden of proof’. So understood, and in that sense we agree with Johnson.

It must be emphasized that it is not proper to refer to that burden in terms of the preponderance of the evidence.5 As is recognized by Evidence Code, section 501, basic to the entire concept of burden of proof is the presumption of innocence and its concomitant requirement that the state must prove the guilt of the defendant beyond a reasonable doubt. (Pen.Code, § 1096.) Every single fact from which the deduction of guilt is to be drawn must be proven beyond a reasonable doubt, including facts based upon circumstantial evidence (e. g., People v. Phipps, 39 Cal. 326) and including the fact of defendant's identity. (People v. Archerd (1970) 3 Cal.3d 615, 639, 91 Cal.Rptr. 397, 477 P.2d 421; People v. Wong Sam Lung, 3 Cal.App. 221, 84 P. 843.) ‘The well-settled rule that a defendant shall not be convicted unless the evidence proves his guilt beyond a reasonable doubt applies to the whole and every material part of the case, no matter whether it is as to the act of killing, or the reason for or manner of its commission.’ (People v. Bushton (1889) 80 Cal. 160, 164, 22 P. 127, 129.) The people's burden of proof of guilt beyond a reasonable doubt is now a matter of federal due process. (In re Winship, 397 U.S. 358, 362–364, 90 S.Ct. 1068, 25 L.Ed.2d 368.)

When a statute allocates the burden of proof to a defendant on any issue other than that of insanity6 ‘the defendant's burden . . . is merely to raise a reasonable doubt as to his guilt.’ (Law Rev.Comm., Comment to Evid.Code, § 501.) Under section 1105 of the Penal Code, for instance, once a defendant's commission of a homicide has been proved he has the burden of proving circumstances of mitigation, justification or excuse. ‘He is only bound, under this rule, to produce such evidence as will create in the minds of the jury a reasonable doubt of his guilt of the offense charged.’ (Bushton, at p. 164, 22 P. at 129; People v. Hardy supra, 33 Cal.2d 52, 198 P.2d 865.)

The same is true when a judicially created presumption places a burden on a defendant. In Hardy, the court had under consideration the presumption that a person is conscious merely because he acted that way. In holding that a defendant who claimed he was unconscious did not have to prove that fact by a preponderance of the evidence, the court said: ‘. . . It is a cardinal rule in criminal cases that the burden rests on the prosecution to prove the offense beyond a reasonable doubt (see Penal Code, § 1096), and it is error to deprive an accused of the benefit of the doctrine of reasonable doubt by giving an instruction that he has the burden of proving a defense by a preponderance of the evidence. (People v. Thomas, 25 Cal.2d 880, 897, 156 P.2d 7 [mitigating circumstances]; People v. Costello, 21 Cal.2d 760, 763, 135 P.2d 164 [alibi]; People v. Marshall, 59 Cal. 386, 389 [intent to marry as defense to charge of taking minor female for purposes of prostitution]; People v. Agnew, 16 Cal.2d 655, 664–666, 107 P.2d 601 [lawfulness of arrest as defense to false imprisonment]; People v. Roe, 189 Cal. 548, 560–561, 209 P. 560 [defense of another's person].) The necessary effect of the instruction given in the present case was to place on defendant not merely the burden of producing evidence which would raise a reasonable doubt as to her consciousness, but the much greater burden of proving unconsciousness by a preponderance of the evidence. . . . In People v. Nihell, 144 Cal. 200, 77 P. 916, where defendant claimed he was unconscious by reason of epilepsy, it was held that the burden was on him to establish the peculiar mental condition upon which he relied and the court stated 144 Cal. at page 202, 77 P. at page 917: ‘Men are presumed to be conscious when they act as if they were know that things ate not what they seem, they must impart that knowledge by affirmative proof.’ This is merely another way of saying that defendant has the duty of going forward with the evidence, and it is entirely consistent with the rule that defendant has only the burden of producing evidence which would raise a reasonable doubt in the minds of the jury . . .'. (33 Cal.2d at pp. 63–65, 198 P.2d at 871–872.)

Another recognition of the limited burden to be placed on a defendant in a criminal case is seen in People v. Ribolsi (1981) 89 Cal. 492, 499–500, 26 P. 1082, 1084. There, in holding erroneous an instruction that once the actual conduct constituting a proscribed act was proven, the defendant had the burden of showing that it was done without guilty intent the Supreme Court said: ‘There is a marked difference in the degree of proof required to establish any fact against the defendant and that sufficient to establish any in his favor. As against the defendant, every fact material to the issue must be proved to a moral certainty, and beyond a reasonable doubt, or the jury should acquit. Any fact necessary to the defense only needs to be established sufficiently to create a reasonable doubt of defendant's guilt when taken into consideration with all the evidence in the case. And, if the facts proved in favor of the defendant are sufficient to create a reasonable doubt of his guilt, he should be acquitted.’ (Emphasis added.)

‘A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as will tend to connect the defendant with the commission of the offense . . .’ (Pen.Code, § 1111.) Thus, if a conviction is based on the uncorroborated testimony of accomplices it is lacking in legal foundation. (People v. Kempley (1928) 205 Cal. 441, 456, 271 P. 478.) In such a situation the people simply have not produced enough evidence to establish the defendant's guilt.

We perceive no distinction in the question at hand from that involved in the cases cited above where it was held that to impose upon the defendant a greater burden than producing sufficient evidence to raise a reasonable doubt was erroneous.

For instance, a defendant presenting an alibi need only produce sufficient evidence to raise a reasonable doubt of his presence at the scene. ‘. . . It is elemental that in criminal cases the prosecution must prove the defendant's guilt beyond a reasonable doubt. If the defendant introduces evidence of an alibi which is sufficient to create a reasonable doubt in the minds of the jury and it does create such a doubt, he is entitled to a verdict of acquittal. . . . A suggestion may not be made to the jury that an alibi must be proved by a preponderance of the evidence, . . .’ (People v. Costello, supra, 21 Cal.2d 760 at pp. 765–766, 135 P.2d at pp. 166–167; see, also, People v. Montalvo (1971) 4 Cal.3d 328, 333–334, 93 Cal.Rptr. 581, 482 P.2d 205, and cases cited at fn. 3 thereof.) Section 1111, by its very terms, simply prescribes the extent of the burden placed upon the prosecution to prove a defendant guilty where accomplice testimony is relied upon.

The attorney general suggests, however, that ‘since the issue does not involve proof of the elements of the charged offenses, that is, the issue does not relate to appellant's guilt or innocence, it is submitted for this reason alone the ‘preponderance of the evidence’ standard is appropriate.'7 For a comparable situation the attorney general directs us to People v. Moran, 1 Cal.3d 755, 760, 83 Cal.Rptr. 411, 463 P.2d 763. Moran involved the question of degree of proof placed on a defendant asserting the defense of entrapment. Consistent with earlier decisions on the same subject, e. g., People v. Terry (1955) 44 Cal.2d 371, 372, 282 P.2d 19, the court in Moran held that the burden placed on defendant was to establish the defense of entrapment by a preponderance of the evidence. That defense, the court said, is not subject to the beyond-a-reasonable doubt requirement placed on the people by Penal Code, section 1096, because, in California the defense of entrapment ‘is not based on the defendant's innocence’. Rather, it was created, said the court, as a control on illegal police conduct.8 (See, also, People v. Valverde (1966) 246 Cal.App.2d 318, 54 Cal.Rptr. 528.)

Moran does not present a situation comparable to that in the present case. Whether the identity of a defendant as the perpetrator of the crime charged is an element of that offense or not, proof of identity is obviously essential to conviction. And that is so whether defendant challenges the proof by testimony that he was elsewhere (alibi) or by testimony that the evidence of a witness relied upon by the people requires corroboration (accomplice). Identity of the defendant is at the root of both situations. The people must prove identity beyond a reasonable doubt. (People v. Archerd, supra, 3 Cal.3d 615, 639, 91 Cal.Rptr. 397, 477 P.2d 421; People v. Wong Sam Lung, supra, 3 Cal.App. 221, 84 P. 843.)

Correspondingly, a defendant, disputing identity by an alibi, need only produce evidence sufficient to raise a reasonable doubt in order to be successful. (People v. Costello, supra, 21 Cal.2d 760, 135 P.2d 164.) By the same token, he cannot logically be required to do more when endeavoring to show that because they rely on accomplice testimony the people have not produced sufficient evidence.

The defense of insanity is another defense which is thrust on a defendant (Evid.Code, § 522) and which has long been held to be subject to proof by a preponderance of the evidence (e. g., People v. Daugherty (1953) 40 Cal.2d 876, 901, 256 P.2d 911; People v. Troche (1928) 206 Cal. 35, 49, 273 P. 767). In Troche, the reason for this degree of proof with respect to the insanity defense was stated to be because the plea was one of ‘confession and avoidance’.

Consistent with their duty to establish all of the facts essential to convict, when the people rely on the testimony of an admitted accomplice, as they did here with respect to Sheila Twiford it is their burden to corroborate that testimony. (People v. Luker, supra, 63 Cal.2d 464, 469, 47 Cal.Rptr. 209, 407 P.2d 9.) And, when the proffered corroboration is that of another witness who herself may or may not be an accomplice, we conclude that the people have not carried their burden of proving each fact necessary to a conviction unless they establish beyond a reasonable doubt that the witness is not an accomplice. In attempting to negate the people's evidence the burden placed upon a defendant is only that of producing evidence sufficient to raise a reasonable doubt to the contrary.9

No Prejudice Resulted From Introduction Of The .22 Caliber Revolver Into Evidence.

Defendant contends that a .22 caliber revolver (exhibit 11) was improperly seized from the Telfair Street house because it was not listed in a search warrant obtained by the officers who seized it. That search warrant described narcotics alleged to be in the house, and an officer testified that he knew about the existence of the gun prior to entering the house. Amicus curiae suggests that the affidavit in support of the search warrant was inadequate. We need not discuss these contentions because if we assume that the seizure was improper on the grounds urged or on any other grounds, still any error was harmless beyond any reasonable doubt. The .22 caliber revolver was not identified as the murder weapon. The surviving victim of the robbery testified that each man was armed, that one of the weapons was of .22 caliber and that it was similar to the .22 caliber weapon seized at the house (exhibit 11).

The defendant was arrested a week after the incident while in bed in a motel. There was an automatic weapon on a nightstand next to the bed. The legality of that seizure has previously been adjudicated in a separate appeal. While it was established that the decedent was killed by a bullet from some .22 caliber weapon, a police ballistics expert was unable to identify exhibit 11 as the murder weapon. The most he could state was that from the configuration of the lands and grooves the gun in evidence may have been the weapon. The same statement, he testified, would be true of thousands of .22 caliber weapons. The bullet recovered from the body of the decedent was too disfigured to permit other or better identification.

We do not determine whether it was erroneous to admit the .22 caliber revolver into evidence since given the lack of connection between the murder weapon and the weapon received in evidence, beyond a reasonable doubt, no prejudice could have resulted.

However, for the reasons discussed above, concerning the prejudicially erroneous instructions on burden of proof a reversal is required.

The judgment is reversed.

FOOTNOTES

FOOTNOTE.  

1.  Eribes was charged with the offenses jointly with defendant, Twiford, Mary Pedraza and the latter's husband, Michael. The latter two were given immunity by the prosecutor so that they might testify against defendant. Twiford was given immunity; in exchange for truthful testimony she pleaded guilty to second degree robbery and served six months in the county jail being given ‘time served and probation’. Eribes submitted his case on the transcript of the preliminary hearing and was found guilty of second degree murder. Although called as a witness by the prosecutor and ordered to testify by the court he refused to do so.

2.  ‘Testimony of Accomplice Must Be Corroborated.’‘One Accomplice May Not Corroborate Another.’‘Sufficiency of Evidence to Corroborate an Accomplice.’‘Testimony of Accomplice to be Viewed with Distrust.’

3.  ‘THE COURT: Ladies and gentlemen, this completes the reading of Mrs. Pedraza's testimony. Now, there is a second request from the jury here. We will also file this one.“People of the State of California versus Tewksbury, Gilbert.‘We the jury in the above entitled action request the following:‘1. Confirmation that we must . . .’ underlined ‘by law find the defendant not guilty if we individually or collectively decide that Mary Pedraza was an accomplice.’‘The answer is yes, and I will tell you the instruction again.‘If the defense has proved by a preponderance of the evidence that Mary Pedraza is an accomplice, you must acquit the defendant, Gilbert Tewksbury, and return a verdict of not guilty of all charges.‘Does that answer the query that you had, Mr. Hildebrand, or was there something else that I don't exactly understand?‘THE FOREMAN: Well, the question that was raised—we had the instruction. Was that a matter of law, or was that the Bench's interpretation of how the law would apply, or something along that nature?‘THE COURT: Well, I would like to answer your question. I am not sure I understand it.‘THE FOREMAN: I am not sure I do either.‘JUROR NUMBER 4: May we have a moment, please?‘THE COURT: Yes.‘THE FOREMAN: Yes. How that question came up, there was another instruction right near the end that talked about all these instructions, the order that they came and whether any of them were repeated was not to be given any particular significance, and also that you could choose to disregard any instructions that you thought might not be appropriate or something along that line.‘That raised the question as to whether perhaps that one could be disregarded, the one that the question was written about.‘THE COURT: I think that that is a fact that you must determine. If you determine that Mary Pedraza is an accomplice, you must acquit the defendant.‘If you determine that she is not an accomplice, then all of the other instructions will still need to be dealt with.‘You also asked a question, a definition of guilty knowledge, and I am going to give you that. We will have this typed and sent in to you.“Guilty knowledge' as used in these instructions means knowing that a crime is planned or is being committed. It is not necessary that the person have knowledge of every detail of the crime.‘Does that answer all the questions that you had?‘THE FOREMAN: Yes, sir.‘THE COURT: You may return to the jury deliberation room.’

4.  § 110.“Burden of producing evidence' means the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue.'§ 115.“Burden of proof' means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court. The burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.‘Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.’§ 500.‘Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.’§ 501.‘Insofar as any statute, except Section 522, [dealing with the burden of proof of insanity] assigns the burden of proof in a criminal action, such statute is subject to Penal Code Section 1096.’§ 502.‘The court on all proper occasions shall instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.’§ 520.‘The party claiming that a person is guilty of crime or wrongdoing has the burden of proof on that issue.’

5.  Indeed, consistent with the fact that the burden of producing evidence relates only to the judge's function, it is questionable if any instruction at all relating to defendant's burden was necessary.

6.  The non-statutory defense of entrapment which, like insanity, does not go to the issue of guilt or innocence (in California at least) places on the defendant the burden of proof by a preponderance of the evidence. (See pp. 723–724, infra.)

7.  An earlier decision, People v. Ellis (1929) 206 Cal. 353, 274 P. 353, held that the burden of proving that a defendant was over 18 at the time of committing a murder, in order to avoid the infliction of the death penalty; was, under the requirement of former section 190 of the Penal Code upon the defendant, and was measured by a preponderance of the evidence. The court reasoned that the defense did not prevent a verdict of guilty but only affected the extent of the punishment. Compare People v. Montalvo, supra, which holds that in a prosecution for furnishing a narcotic to a minor by an adult (former Health & Saf.Code, § 11502; present Health & Saf.Code, § 11353) the age of the defendant is an element of the offense, and the prosecution has the burden of establishing it.

8.  For the same reason this court in People v. Superior Court (1971) 18 Cal.App.3d 316, at p. 321, 95 Cal.Rptr. 757, at p. 760, held that the burden imposed on the people in proving the lawfulness of a warrantless search related to a particular fact going ‘only to the collateral issue of whether, for reasons of public policy, the People may prove a known guilt [fn. omitted] by certain evidence.’ Since the rule was ‘not designed to improve the ascertainment of truth’ it was proper not to require the people to do more than prove the lawfulness of the search by a preponderance of the evidence.

9.  We note that the burden placed on a defendant in People v. Johnson, supra, 18 Cal.App.3d 458, 463, 95 Cal.Rptr. 316, was only that of raising a reasonable doubt.

COLE, Associate Justice.* FN* John I. Cole, Judge of the Superior Court of Los Angeles County, assigned by the Chairman man of the Judicial Council.

FILES, P. J., and JEFFERSON, J., concur.

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