WOODS, J., J.,Concurring.—Although I have joined the excellent opinion of the court I write separately to address a matter intimately involved in the instant case and rarely analyzed by appellate courts: the law of accomplices.
The Legislature should repeal Penal Code section 1111 because it is unnecessary, causes trial confiision, requires appellate review, and unjustly results in the exoneration of perpetrators who would be found guilty or have been found guilty beyond a reasonable doubt. I explain.
“The rules of law and principles of evidence controlling the testimony of accomplices are drawn from the common law.” (People v. Coffey (1911) 161 Cal. 433, 437 [119 P. 901].)
The common law, however, was concerned not with whether an accomplice’s testimony must be corroborated but whether it should be admitted. (161 Cal. at p. 438; 7 Wigmore, Evidence (Chadboum ed. 1978) § 2056, pp. 404-405.)
[1024]That concern is diminished in our age when the oaths of trial witnesses are freely used but frequently little valued. The opposite was true at common law. Then an oath had great significance. As Dean Wigmore observed: “An oath, in the notions of the time, had a certain dead weight of its own; one oath was as good as another oath. Should a witness once get in, the harm (they thought) was done; for there would be little weighing of the comparative quality of different persons’ oaths. The struggle therefore was made at the threshold.” (7 Wigmore, Evidence, supra, § 2056, p. 405.)
Because of this “certain dead weight” not everyone could take a witness’s oath. A convicted felon could not. (People v. Coffey, supra, 161 Cal. 433, 438.) The criminally accused could not. (2 Wigmore, Evidence (Chadboum ed. 1979) § 575, pp. 808-809.)
Understandably, common law judges were troubled by the prospect of a self-confessed felon avoiding his own conviction by accusing another who could not take an oath to deny the accusation. (See Comment, Accomplice Corroboration—Its Status in California (1962) 9 UCLA L.Rev. 190.)
By the end of the 1700’s a common law solution to this troublesome prospect had been found. The trial judge, in his instructions and comments to the jury, “discourage[d] a conviction founded solely upon the testimony of an accomplice uncorroborated.” (7 Wigmore, Evidence, supra, § 2056, p. 405.) But such an instruction or comment was mere advice, “not a statement of a rule of law binding upon the jury.” (Ibid.)
Thus, at common law an accomplice could take an oath and give testimony. And that testimony—uncorroborated—could convict. As Dean Wig-more has observed: “As a matter of common law, then, the [accomplice] doctrine was widely understood ... as amounting to no rule of evidence, but merely to a counsel of caution given by the judge to the jury. It followed that the jury might or might not regard the caution; that they alone were to determine whether corroboration existed and was sufficient; . . .” (7 Wig-more, Evidence, supra, § 2056, pp. 408-413, italics in original, fhs. omitted.)
Initially, the United States followed the common law practice regarding accomplice testimony. (7 Wigmore, Evidence, supra, § 2056, p. 407.) But soon “in nearly half of the jurisdictions of the United States a statute . . . turned this cautionary practice into a rule of law.” (Id. at p. 414.) Some statutes merely required the giving of a cautionary instruction, others required corroboration for there to be conviction, still others required both. (Ibid.)
Dean Wigmore explains this shift from common law practice to statutory mandate: “At common law the judge was entitled and bound to assist the [1025]jury, before their retirement, with an expression of his opinion (in no way binding them to follow it) upon the weight of the evidence. This utterance was made the medium of many useful general suggestions based on experience. The benefit of this experience was thus obtained for them, without any attempt to fetter their judgment by inflexible dogmas unfitted for invariable application as rules of law. One of these general hints was that about accomplices’ testimony. But in the United States in a misguided moment the orthodox function of the judge to assist the jury on matters of fact was (except in a few jurisdictions) eradicated from our system. . . . The judge was forbidden to contribute to the jury’s aid any expression of opinion upon the weight of evidence in a given case[1] Unless there was a rule of the law of evidence upon the subject of an accomplice’s testimony, he could not in a given case advise them to refuse to convict upon the uncorroborated testimony of an accomplice. The makers of this innovation upon established trial methods were thus obliged to turn into a rule of law the old practice as to accomplices, if they wished to retain its benefit at all. This they therefore did.” (7 Wigmore, Evidence, supra, § 2056, pp. 416-417.)
Dean Wigmore also explains why it is neither wise nor feasible “to construct a fixed rule of law for all cases . . . .” (7 Wigmore, Evidence, supra, § 2056, p. 417.)
“The reasons which have led to this distrust of an accomplice’s testimony are not far to seek. He may expect to save himself from punishment by procuring the conviction of others. It is true that he is also charging himself, and in that respect he has burned his ships. But he can escape the consequences of this acknowledgment, if the prosecuting authorities choose to release him, provided he helps them to secure the conviction of his partner in crime:
“Lord Abinger, C.B., in R. v. Farler, 8 Car. & P. 106, 107-108 (1837): ‘It is a practice which deserves all the reverence of law, that judges have uniformly told juries that they ought not to pay any respect to the testimony of an accomplice unless the accomplice is corroborated in some material particular. . . . The danger is that when a man is fixed, and knows that his own guilt is detected, he purchases immunity by falsely accusing others.’
“It is true that this promise of immunity or leniency is usually denied, and may not exist; but its existence is always suspected. The essential element, [1026]however, it must be remembered, is this supposed promise or expectation of conditional clemency. If that is lacking, the whole basis of distrust fails. We have passed beyond the stage of thought in which his commission of crime, self-confessed, is deemed to render him radically a liar. . . . The extreme case of the wretch who fabricates merely for the malicious desire to drag others down in his own ruin can be no foundation for a general rule.
“The promise of immunity, then, being the essential element of distrust, but not being invariably made, no invariable rule should be fixed as though it had been made. Moreover, if made, its influence must vary infinitely with the nature of the charge and the personality of the accomplice. Finally, credibility is a matter of elusive variety, and it is impossible and anachronistic to determine in advance that, with or without promise, a given man’s story must be distrusted.” (7 Wigmore, Evidence, supra, § 2057, p. 417.)
Awareness that this “fixed rule of law” is not reasonable came long ago. A century and a half ago, in prose that can hardly be improved upon, Chief Baron Joy wrote: “ ‘How the practice which at present prevails could ever have grown into a general regulation must be matter of surprise to every person who considers its nature, or inquires into the foundation on which it rests. Why the case of an accomplice should require a particular rule for itself; why it should not, like that of every other witness of whose credit there is an impeachment, be left to the unfettered discretion of the judge, to deal with it as the circumstances of each particular case may require, it seems difficult to explain. Why a fixed, unvarying rule should be applied to a subject which admits of such endless variety as the credit of witnesses, seems hardly reconcilable to the principles of reason. But, that a judge should come prepared to reject altogether the testimony of a competent witness as unworthy of credit, before he had ever seen that witness; before he had observed his look, his manner, his demeanour; before he had had an opportunity of considering the consistency and probability of his story; before he had known the nature of the crime of which he was to accuse himself, or the temptation which led to it, or the contrition with which it was followed;—that a judge, I say, should come prepared beforehand, to advise the jury to reject without consideration such evidence, even though judge and jury should be perfectly convinced of its truth, seems to be a violation of the principles of common sense, the dictates of morality, and the sanctity of a juror’s oath. . . . Nor, if we inquire into the foundation of the rule, shall we find in it anything certain or fixed, such as ought to be the basis of an uniform and never varying rule. We shall be told by one that it is the moral guilt of the witness which produces this, as it were, practical incompetency; whilst another ascribes it to the desire which he has to purchase impunity for his own transgression. If it be the moral guilt of the witness that affects his [1027]credit, the degree to which his credit is affected must depend upon and vary with the magnitude of the crime of which each witness confesses himself to be guilty. Crimes are of every different shade, from the most venial petit larceny to the most atrocious murder. Yet to all the rule equally applies. The witness who on cross-examination confesses that he has been engaged in many murders, appears more stained with guilt than he who comes forward as an accomplice in the petit larceny then under trial; yet the former is without the scope of the rule, whilst the latter comes entirely within the sphere of its application. The testimony of the same witness may in one trial be absolutely rejected under the operation of the rule, and in the very next trial, in the course of the same day, it may be permitted to go to the jury; yet his moral character has undergone no change in the interval. Moral guilt, then, can never afford any rational foundation for a rule which applies indiscriminately to the highest and to the lowest degrees of that guilt.—But an accomplice, we are told, comes forward to save himself, and his credit is affected by the temptation which this holds out to forswear himself. But who is it that establishes his guilt? He himself—he is his own accuser; and the proof, and often the only proof which can be had, of his guilt, comes from his own lips. He is generally admitted as a witness from the necessity of the thing, and from the impossibility without him of bringing any of the offenders to justice. If this be the foundation of the rule, it rests on a shifting sand. The temptation to commit perjury which influences his credit must be proportioned to the punishment annexed to the crime of which the witness confesses himself guilty. But the rule applies with equal force to the accomplice who may apprehend but a month’s imprisonment for the most trifling petit larceny, and to him who may reasonably dread death for an atrocious murder. Universal and undiscriminating, the rule levels all distinctions. Where then is the necessity for, or good sense in, such a rule? Why not leave the credit of the accomplice to be dealt with by the jury, subject to such observations upon it from the judge as each particular case may suggest? . . . That persons whom the interest of the community requires, and the principles of sound policy invite to come forward, should not be marked by a rule which has not been deemed necessary in the case of more atrocious offenders not appearing in the character of accomplices, seems to me to be what is required by reason and good sense.’ ” (Chief Baron Joy, Evidence of Accomplices 4 (1844) quoted by 7 Wigmore, Evidence, supra, §2057, pp. 417-418.)
There are also modem critics. (See generally, Comment, Comment on Recent Cases, supra, 7 Cal.L.Rev. 272, 275 [“The statute itself often works a miscarriage of justice.”]; Comment, Accomplice Corroboration—1ts status in California, supra, 9 UCLA L.Rev. 190.) One, former Ventura County District Attorney Roy A. Gustafson, wrote: “Very often the only evidence of [1028]a crime is the testimony of a participant. Here, again, the defendant cannot be convicted. Thus in a case where the defendant committed sodomy upon two 14-year-old boys, his conviction was reversed because it rested upon the uncorroborated testimony of accomplices. ‘The statutory requirement of corroboration is based primarily upon the fact that experience has shown that the evidence of an accomplice should be viewed with care, caution and suspicion because it comes from a tainted source and is often given in the hope or expectation of leniency or immunity.’ Is it not, however, sufficient to caution the jury about these factors as the statute requires and permit the jury, if it believes the testimony, to base its verdict thereon? That question is answered affirmatively in the federal courts. The California requirement of corroboration confuses the jury with collateral issues as to whether a witness is an accomplice and whether the accomplice’s testimony has been corroborated. Furthermore, because the definition of accomplice excludes many partners in crime it often happens that ‘one who has in some essential way furthered the commission of the crime for which defendant is charged, who is himself guilty of a related offense, and who unquestionably hopes for lenient treatment when tried for his own offense, may yet give uncorroborated but effective testimony concerning the defendant’s commission of the crime charged.’
“Experience tells us that the greatest source of injustice in the form of conviction of innocent men is the erroneous identification by eye-witnesses. Yet the testimony of a customer in a bank who gets a fleeting glimpse of the robber and who identifies defendant as the man he saw is enough to convict the defendant, but the testimony of three or four of defendant’s partners, if uncorroborated, is insufficient under our law. Certainly with cautionary instructions to the jury, accomplices’ testimony alone ought to be recognized as just as reliable as other evidence which we now consider sufficient upon which to base a conviction.” (Gustafson, Have We Created A Paradise For Criminals? (1956) 30 So.Cal.L.Rev. 1, 12, fits, omitted.)
The instant case illustrates the irrationality of the rule.
Under the mandate of Penal Code section 1111, the trial court instructed the jury Genessa Geddry was an accomplice to the residential burglary; as to that offense, her testimony had to be corroborated; and as to that offense, her testimony “ought to be viewed with distrust.” (CALJIC Nos. 3.10, 3.18.)
These instructions flaunted common sense. By every measure of experience and reason, Genessa’s testimony concerning the residential burglary should have been (and no doubt was) viewed with trust, not distrust.
First, Genessa had no “expectation of conditional clemency.” Before she testified, she had admitted the truth of the juvenile petition filed against her [1029]and had already served her time in custody. Therefore she had nothing to gain by her testimony and, in Wigmore’s words, “the whole basis of distrust fails.” (7 Wigmore, Evidence, supra, § 2057, p. 417.)
Second, her testimony was congruent with the assistant manager’s testimony (which recapitulated her “blow by blow” description of the burglary during her 15- to 20-minute 9-1-1 telephone call), consistent with the testimony of Martinez, Harry Slaughter, and Timothy Petersen, and corroborated by physical evidence.
Third, rather than minimize her involvement and magnify appellant’s, she did the opposite. Genessa testified she, appellant, and Martinez did not discuss committing a burglary. Yet, she readily testified, it was she who broke the bathroom window, she who climbed in the window, and she who then opened the front door.
Fourth, Genessa was unmistakably biased in appellant’s favor. Her appearance for the prosecution was compelled, her testimony grudging, her love for appellant unequivocal and readily admitted. By any criteria—other than the law’s—any testimony by Genessa inculpatory of appellant ought to have been viewed, not with distrust, but with trust.
But not only did the mandatory instruction require the jury to view Genessa’s trustworthy testimony with distrust, it allowed her ««trustworthy testimony to be viewed without distrust.
When asked about appellant’s involvement in the murder, Genessa feigned forgetfulness. When asked about her statements to the police that appellant had used the stolen .38-caliber weapon, she denied making the statements. She denied appellant described the murder victim, claimed she assumed the victim had blond hair, and finally conceded that if it was in the tape transcript, appellant must have told her the victim was “a white guy with long hair.”
The exasperated trial court had this sidebar reaction: “Everyone knows she’s lying through her teeth. She still loves the guy. She’s an idiot.”
But since none of this testimony related to Genessa’s accomplice role in the residential burglary, it was not to be viewed without distrust.
Also perversely exempt from “distrust” was the entire testimony of non-accomplice Gerardo Acosta. Although he admitted involvement in cocaine selling, admitted stealing $100 from the dead or dying Gerald McNally, did [1030]not summon aid for McNally, and did not inform the police about appellant —the last person seen with an alive McNally—his testimony was not to be viewed with distrust.
Conversely, all of Michael Martinez’s testimony was to be viewed with distrust because the law said he was an accomplice and posed a danger. “ ‘The danger is that when a man is fixed, and knows that his own guilt is detected, he purchases immunity by falsely accusing others.’ ” (Lord Abinger’s remarks in R. v. Farler (1837) quoted in 7 Wigmore, Evidence, supra, § 2057, p. 417.)
But Martinez had not been “fixed” and he knew his own guilt had not been detected—yet he voluntarily contacted Detective Buscarino and then voluntarily provided evidence of his own guilt. What Martinez purchased was not immunity but imprisonment of perhaps 10 years and 8 months. And to complete that “purchase” he was required not to “falsely accus[e] others” but to testify truthfully. By all indications he did so. Other witnesses corroborated his testimony. None contradicted it. And yet, the jury was told, this witness—without whose assistance there would have been no trial— must be viewed with distrust.
And what of David Murth? He was, the jury was told, an accomplice to the robberies of James Kluber and Joel Bromley and the attempted robbery of Erlinda Gibbons but not an accomplice to the burglary of Harry Slaughter or murder of Gerald McNally. So as to those robberies and attempted robbery his testimony had to be viewed with distrust and had to be corroborated but as to the burglary and murder his testimony did not have to be viewed with distrust or corroborated.
So how should a conscientious juror have regarded Murth’s testimony that appellant pointed a .38-caliber revolver at Joel Bromley and robbed him of $20? Surely with “distrust.” But since that testimony was relevant to the murder of McNally—killed by a .38-caliber bullet—and since Murth was not an accomplice to that offense, how should this same testimony be viewed with respect to the murder?
And what to do about Murth’s testimony that afterwards he saw appellant discard the gun in a garbage can? Could that testimony be used to corroborate Murth’s testimony concerning the Bromley robbery? Although an accomplice cannot corroborate an accomplice (CALJIC No. 3.13), can the non-accomplice testimony of a witness corroborate his accomplice testimony?
Such legal incomprehensibility—despite strong and uncontradicted evidence appellant attempted to rob Erlinda Gibbons—no doubt frustrated an Erlinda Gibbons attempted robbery verdict.
[1031]Accomplice law and injustice are not strangers. A defendant’s conviction of sex perversion was overturned despite the testimony of Joan, an accomplice, that she engaged in the acts with defendant and despite her authentication of the motion picture which depicted those acts. (People v. Bowley (1963) 59 Cal.2d 855 [31 Cal.Rptr. 471, 382 P.2d 591, 96 A.L.R.2d 1178].)
In People v. Wallin (1948) 32 Cal.2d 803 [197 P.2d 734] a friend helped Mrs. Paz bury her four-year-old spastic daughter after Mrs. Paz had strangled her. By the time the friend—defendant Morton Wallin—was tried for being an accessory after the fact, Mrs. Paz had been convicted of second degree murder and was serving her state prison sentence.
Mr. Wallin’s conviction was reversed because the trial court had not instructed the jury that Mrs. Paz was an accomplice to the burying of the daughter she had strangled.
In the instant case, had appellant testified—with all the self-interest of one facing a life without possibility of parole sentence—the jury would not have been told to view his testimony with distrust—even if he testified to being an accomplice!
As Witkin explains, “The instruction was developed in order to make the admission of accomplice testimony against the defendant fair; where he gives testimony favorable to the defendant, there is no basis for the suspicion that he is attempting to earn clemency or leniency, and the instruction should not be given. This is so whether the accomplice was called by the defendant or by the People.” (3 Witkin, Cal. Evidence (3d ed. 1986) Introduction of Evidence at Trial, § 1769, p. 1723.)
As I have indicated, accomplice rules are neither consistent nor comprehensible. They apply to an accomplice’s prior inconsistent statements (People v. Belton (1979) 23 Cal.3d 516 [153 Cal.Rptr. 195, 591 P.2d 485]; 3 Witkin, Cal. Evidence, supra, Introduction of Evidence at Trial, § 1767, pp. 1721-1722) but not to his excited utterance (People v. Sully (1991) 53 Cal.3d 1195, 1230 [283 Cal.Rptr. 144, 812 P.2d 163]). They apply to criminal trials where guilt must be proved beyond a reasonable doubt but not to juvenile proceedings where allegations have to be proved beyond a reasonable doubt. (In re Mitchell P. (1978) 22 Cal.3d 946 [151 Cal.Rptr. 330, 587 P.2d 1144].)
Whatever its origins, today, the accomplice corroboration rule cannot be justified. The federal courts (see, e.g., United States v. Turner (9th Cir. 1975) 528 F.2d 143, 161) and half the states (7 Wigmore, Evidence, supra, § 2056, pp. 407-416) do not have it. Neither should California. The Legislature should repeal Penal Code section 1111.
[1032]Similarly without purpose is the decisional mandate (e.g., People v. Zapien (1993) 4 Cal.4th 929, 982 [17 Cal.Rptr.2d 122, 846 P.2d 704]) that a trial court instruct a jury to view an accomplice’s testimony with distrust. Once required by statute (Code Civ. Proc., former §2061, subd. 4), the requirement was supplanted by the Evidence Code, operative January 1, 1967. Section 780 of that code wisely provides neutral criteria applicable to all witnesses:
“Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:
“(a) His demeanor while testifying and the manner in which he testifies.
“(b) The character of his testimony.
“(c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.
“(d) The extent of his opportunity to perceive any matter about which he testifies.
“(e) His character for honesty or veracity or their opposites.
“(f) The existence or nonexistence of a bias, interest, or other motive.
“(g) A statement previously made by him that is consistent with his testimony at the hearing.
“(h) A statement made by him that is inconsistent with any part of his testimony at the hearing.
“(i) The existence or nonexistence of any fact testified to by him.
“(j) His attitude toward the action in which he testifies or toward the giving of testimony.
“(k) His admission of untruthfulness.”
This statute, incorporated into CALJIC No. 2.20, clearly and completely informs a jury that in determining the credibility of a witness they may consider “any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony . . . .” One such matter is “the existence or nonexistence of a bias, interest, or other motive.”
[1033]To single out one class of witness, accomplices, who may or may not have a “bias, interest, or other motive,” and require their testimony to be viewed with distrust (if called by the prosecution but not if called by the defense, if unfavorable to the defense but not if favorable to the defense) is unnecessary, unhelpful, and unfair. Our Supreme Court should relieve the trial courts of this duty and restore to them, unfettered, their constitutional discretion to “make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause.” (Cal. Const., art. X.)
Appellant’s petition for review by the Supreme Court was denied January 15, 1997.
1 The California Constitution, article VI, section 19 provided that judges shall not charge juries with respect to matters of fact. (See Comment, Comment on Recent Cases (1919) 7 Cal. L.Rev. 272, 273.) That provision was repealed and in 1966 replaced by article VI, section 10 which provides: “The court may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause."