Filed 4/24/19
                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                              DIVISION SIX


THE PEOPLE,                                2d Crim. No. B289639
                                          (Super. Ct. No. 1499126)
     Plaintiff and Respondent,            (Santa Barbara County)

v.

JESUS EFRAIN MARTINEZ,

     Defendant and Appellant.


            Sometimes a witness wears two hats: that of a
witness, and that of an accomplice. California law permits
placing the burden to prove such a witness’s accomplice status on
a defendant. (People v. Tewksbury (1976) 15 Cal.3d 953, 963-968
(Tewksbury).) This is because, in general, whether a witness is
an accomplice is not an element of the defendant’s crimes. (Id. at
p. 965.) But certain crimes, such as sexual penetration in concert
and rape in concert, require proof that the defendant acted with
an accomplice. (See Pen. Code,1 § 264.1, subd. (a).) Because the
witness’s accomplice status is an element of these crimes, the


        1 All   further unlabeled statutory references are to the Penal
Code.
prosecution must bear the burden to prove that status beyond a
reasonable doubt. (See Tewksbury, at pp. 963-964.) The portion
of CALCRIM No. 334 that instructs the jury otherwise—i.e., that
tells jurors that the burden is on the defendant to prove that it is
more likely than not that the witness was an accomplice—should
be omitted when the defendant is charged with in concert crimes.
              Jesus Efrain Martinez appeals from the judgment
after a jury convicted him of sexual penetration in concert
(§§ 264.1, subd. (a)/289, subd. (a)(1)(A)) and rape in concert
(§§ 264.1, subd. (a)/261, subd. (a)(2)). The trial court sentenced
him to 18 years in state prison. Martinez contends the judgment
should be reversed because the jury instructions lowered the
prosecution’s burden of proof. We affirm.
            FACTUAL AND PROCEDURAL HISTORY
              M.C. lived in Santa Barbara. In February 2016, M.C.
went to a party. When she arrived, about 10 to 15 people were
there, including Martinez and Bailey Smith. M.C. had met both
men previously.
              Around 4:00 a.m., people started to leave the party.
M.C. invited Martinez and Smith back to her apartment. Once
they arrived, the trio drank liquor and played “Truth or Dare.”
During the game, they took “body shots”2 and dared each other to
remove layers of clothing.
             M.C. grew uncomfortable, so she suggested they all
go out to the patio. M.C. put on sweatpants and gave each man a
cigarette. As they walked to the patio, Smith and Martinez
grabbed M.C. and moved her to a bed. Smith lay on the bed, with



      2A “body shot” is when one person drinks alcohol out of
another person’s navel.


                                 2
M.C. above him. Martinez stood behind them. M.C. struggled to
get free as she straddled Smith.
             Martinez pulled down M.C.’s sweatpants and told
Smith to “hold her down.” M.C. told them to stop. Smith held
M.C. and told Martinez to “go at it.” Martinez penetrated her
vagina with his fingers and penis, and bit her buttocks. Smith
also put his fingers in M.C.’s vagina. He put his hand over M.C.’s
mouth when she tried to scream.
             M.C.’s vagina, hips, and arms were in pain. She
realized she could not get away from the men so she gave up
fighting. The assault ended when Martinez went to the bathroom
with a bloody nose.
             M.C. asked Smith if she could go to her car to get a
pack of cigarettes. When he agreed, she went outside, got into
her car, and drove to a friend’s house. She cried the whole way.
             M.C. called 911 from her friend’s house. She
described Martinez and Smith, and told the operator she had
scratched Smith and bit his shoulder. M.C. appeared distraught
when police arrived. She told the responding officer she had been
raped by two men at her apartment. She described Martinez and
Smith. The officer transmitted their descriptions and M.C.’s
apartment location to other officers.
             Several officers responded to M.C.’s apartment. They
found Martinez and Smith asleep inside. Smith had scratches on
his face, neck, and chest, and circular marks on his shoulder and
chest. Martinez had blood on his chin and neck. Both men
appeared to be intoxicated.
             When an officer asked Smith why there were
scratches on his body, he replied, “She likes to scratch.” Martinez
told the police, “We—we really didn’t do nothin’. I’m still




                                3
questionin’ why you guys are here.” A detective replied they were
trying to figure out why the men were in an apartment that was
not theirs. Smith said, “‘Cause we were tryin’ to work a
threesome with like a beezy.”
             M.C. identified Martinez and Smith as the men who
raped her. Police arrested them. Smith said, “Bitch wasn’t worth
it. She was square as fuck.” In the patrol car Smith denied that
he had sex with M.C.
             A detective interviewed Martinez at the police
station. Martinez denied that he had sex with M.C. He could not
remember her or Smith’s name. The detective collected DNA
from Martinez’s body, including from his penis. Before the
detective swabbed it, Martinez wiped his penis with his hand.
             M.C.’s DNA was under Martinez’s fingernails. It was
consistent with digital penetration. Her DNA was also on his
penis. The high amount of M.C.’s DNA found on Martinez’s penis
indicated that it came from body fluids. It was consistent with
vaginal intercourse.
             The same detective interviewed Smith. Smith told
the detective that he went to the apartment of “some beezy that,
uh, [he] and the other homie met.” He said he did not remember
Martinez’s name, and explained that he did not “want to know
somebody’s name when [he was] trying to work a threesome.”
             Smith said he played a drinking game with M.C. and
Martinez. At one point they were all naked. He put his fingers
in M.C.’s vagina, but did not have sex with her. M.C. left the bite
marks and scratches on his body. Her DNA was on his fingers
and under his fingernails.




                                4
              Smith claimed he did not know why M.C. called the
police. He believed she enjoyed herself. He did not remember
her saying “no” or “stop” at any point.
              After the detective told him the encounter appeared
nonconsensual, Smith “start[ed] to question everything.” He
could not think of a reason M.C. would lie. He said he probably
stopped participating “if it was like rapey” or “if [M.C.] did say
‘no.’”
              Police left Martinez and Smith in a room together as
they awaited transport to jail. Smith said, “[W]ell, I guess we
raped that girl.” Martinez replied, “I know, right?” Both men
said they did not remember the incident. Martinez accused M.C.
of setting them up. Smith said he was “pretty sure she never
said ‘no’ or ‘stop.’” Martinez agreed.
              Martinez called his brother several times from jail.
Martinez said he had been accused of rape but that he “had full
consent” and that “the chick was super down” to have a
threesome. Smith held her down while he “fuck[ed] her from the
back.”
                            Trial testimony
              Smith pled guilty to rape in concert, and agreed to
testify against Martinez in exchange for a five-year prison
sentence. Smith testified that he and Martinez went to M.C.’s
apartment, where they played “Truth or Dare.” The sexual
encounter began during the game. Smith bit M.C.’s buttocks and
penetrated her vagina with his fingers. Martinez raped M.C.
while Smith held her on top of him. M.C. bit and scratched
Smith as he held her down.
              Martinez testified in his own defense. He said that
he and Smith went to M.C.’s apartment after a party and played




                                5
“Truth or Dare.” They all removed items of clothing and took
body shots off each other. Both he and Smith kissed M.C.
             Martinez said M.C. straddled Smith on the bed.
Martinez touched her back, buttocks, and vagina. M.C. did not
tell him to stop. Martinez attempted to penetrate M.C.’s vagina
but could not.
             Martinez got a bloody nose, so he went to the
restroom to clean up. When he returned, Smith and M.C. were
“still hooking up.” He went to sleep, and awoke to the police
shaking him.
             Martinez denied that he raped M.C. He said he and
Smith were being sarcastic when they talked about having raped
her. He told his brother that he had sex with M.C. so other
inmates would not think he could not get an erection. He
admitted that he lied about parts of the incident to police, Smith,
his mother, and his brother.
              Jury instructions and closing arguments
             At the conclusion of testimony, the prosecutor
requested that the trial court provide CALCRIM No. 335, which
instructs the jury that the testimony of a witness who is an
accomplice as a matter of law must be corroborated and should be
viewed with caution. Martinez objected to the instruction. He
also objected to CALCRIM No. 334, which lets the jury decide
whether a testifying witness was an accomplice. Martinez
thought it “bizarre” that he had to prove Smith was an
accomplice, which he had “zero interest” in doing.
             The trial court overruled Martinez’s objection and
instructed the jury with CALCRIM No. 334. The instruction
defines an accomplice as a person “subject to prosecution for the
identical crime charged against the defendant” as either a




                                6
principal or an aider and abettor. The instruction told the jury it
was Martinez’s burden to prove, by a preponderance of the
evidence, that Smith was his accomplice. If he fulfilled that
burden, the jury could not convict him based on Smith’s
testimony unless it was supported by other evidence. The
instruction also told jurors that they should view Smith’s
testimony with caution.
             The trial court instructed the jury on the elements of
rape in concert. (See CALCRIM No. 1001.) The instruction told
the jury that, to find Martinez guilty, the prosecution had to
prove beyond a reasonable doubt that he “personally committed
forcible rape” and “voluntarily acted with someone else who aided
and abetted its commission.” The court also instructed the jury
on the elements of sexual penetration in concert. (See CALCRIM
No. 1046.) This instruction told the jury the prosecution had to
prove beyond a reasonable doubt that Martinez either (1)
“personally committed sexual penetration” and “voluntarily acted
with someone else who aided and abetted its commission,” or (2)
“voluntarily aided and abetted someone else who personally
committed sexual penetration.”
             The trial court also provided several instructions on
the prosecution’s burden to prove the elements of the charged
crimes beyond a reasonable doubt. (See CALCRIM Nos. 220, 224,
225, 359, 401, 3517.) It told the jury that the testimony of a
single witness, other than Smith, could prove any fact. (See
CALCRIM No. 301.)
             During closing arguments, counsel for Martinez
argued that Smith acted alone. She argued that Smith could not
be Martinez’s accomplice because Martinez committed no crime.
She said the jury should ignore CALCRIM No. 334 and treat




                                7
Smith like any other witness. “We’re not asking to prove [that
[Smith is] accomplice. He is not.” She also argued that Smith
was not credible.
             The prosecutor argued that Smith was an accomplice,
and that there was “a ton” of corroborating evidence, including
M.C.’s testimony, Martinez’s lies, DNA, and the injuries to
Martinez and Smith. The prosecutor did not discuss Martinez’s
burden to prove Smith was an accomplice or suggest that
Martinez was guilty based on Smith’s testimony alone. He
reiterated that he had the burden to prove all of the elements of
the charged crimes beyond a reasonable doubt.
                            DISCUSSION
             Martinez contends the trial court’s use of CALCRIM
No. 334—which instructed jurors that he had to prove, by a
preponderance of the evidence, that Smith was an accomplice—
impermissibly lowered the prosecution’s burden to prove the
charges against him. He claims the instruction forced him to
either help the prosecution prove an element of the charges or
forgo the benefits of that instruction—i.e., that Smith’s testimony
required corroboration and should be viewed with caution. We
agree that the instruction was improperly given, but conclude
that there is no reasonable likelihood that the jury misapplied it
given the circumstances of this case.
                         Standard of review
             We independently review whether the trial court
accurately instructed the jury. (People v. Posey (2004) 32 Cal.4th
193, 218.) We review the allegedly erroneous instruction in the
context of the evidence presented at trial. (People v. Crosier
(1974) 41 Cal.App.3d 712, 724; see also People v. Morine (1903)
138 Cal. 626, 631 [“Instructions are given to juries to be applied




                                 8
to the facts as they may find them”].) We review the instructions
as a whole (People v. Lucas (2014) 60 Cal.4th 153, 282,
disapproved on another ground by People v. Romero and Self
(2015) 62 Cal.4th 1, 53, fn. 19), with the assumption that jurors
are “capable of understanding and correlating” all of the
instructions given (People v. Mills (1991) 1 Cal.App.4th 898, 918).
             We give the instructions a reasonable, rather than
technical, meaning (People v. Kainzrants (1996) 45 Cal.App.4th
1068, 1074), and interpret them to support the judgment if
possible (People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258).
We also consider the arguments of counsel to assess the
instructions’ impacts on the jury. (People v. Young (2005) 34
Cal.4th 1149, 1202 (Young).) Our duty is to determine “whether
there is a reasonable likelihood that the jury misunderstood and
misapplied the [allegedly erroneous] instruction.” (People v.
Mayfield (1997) 14 Cal.4th 668, 777, abrogated on another
ground by People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.)
                         CALCRIM No. 334
             There was no such reasonable likelihood here.
Section 1111, on which CALCRIM No. 334 is based, precludes a
defendant’s conviction based on the testimony of an accomplice
unless that testimony is corroborated by independent evidence.
It defines an “accomplice” as “one who is liable to prosecution for
the identical offense charged against the defendant.” Thus, for
purposes of section 1111 and CALCRIM No. 334, an accomplice
must either perpetrate an offense or aid and abet its commission.
(People v. Avila (2006) 38 Cal.4th 491, 564; see § 31.)
             California law permits placing the burden to prove
the accomplice status of a witness on a defendant. (Tewksbury,
supra, 15 Cal.3d at pp. 963-968.) This is because whether a




                                 9
witness is an accomplice is collateral to the defendant’s guilt or
innocence. (Id. at pp. 964-968.) It is an issue that need not be
established to prove an element of the defendant’s crime. (Id. at
p. 965.) CALCRIM No. 334’s instruction that a defendant must
prove, by a preponderance of the evidence, a witness’s status as
an accomplice thus, in general, correctly states the law. (People
v. Frye (1998) 18 Cal.4th 894, 967-969 (Frye) [upholding
predecessor to CALCRIM No. 334], disapproved on another
ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
             But certain crimes, such as sexual penetration in
concert and rape in concert, require proof that the defendant
acted with an accomplice. To be convicted of one of these crimes,
the defendant must either perpetrate the underlying offense and
voluntarily act with a specified aider and abettor to do so, or
voluntarily aid and abet a specified perpetrator in committing the
offense. (§ 264.1, subd. (a).) In other words, a defendant can
commit sexual penetration in concert or rape in concert if—and
only if—they act with an accomplice. (Ibid.) Because it is an
element of these offenses, the prosecution must bear the burden
to prove the accomplice’s status beyond a reasonable doubt. (See
Tewksbury, supra, 15 Cal.3d at pp. 963-964.) In these
circumstances, “the accused need only raise a reasonable doubt”
as to whether the crimes were committed with an accomplice.
(Id. at p. 963.)
           Likelihood the jury misapplied the instructions
             Here, however, the trial court instructed the jury that
Martinez had the burden to prove that Smith was an accomplice.
Martinez argues that fulfilling that burden forced him to help the
prosecution prove an element of the charges against him. But if
he chose not to fulfill it, Smith’s testimony could be treated like




                                10
any other witness’s. Either way, he argues, the instruction
created a “‘“reasonable likelihood”’ that the jury applied [it] in a
way that relieved the [prosecution] of its burden of proving every
element of the [charged crimes] beyond a reasonable doubt,” and
violated his due process rights. (Waddington v. Sarausad (2009)
555 U.S. 179, 190-191.)
             We agree that the instruction, considered alone,
appears to lower the prosecution’s burden of proof with respect to
the crimes charged here. Martinez should not have been forced
to choose between two potentially harmful options. The court
should have omitted the portion of CALCRIM No. 334 that told
the jury that Martinez had the burden to prove Smith’s status as
an accomplice.
             Frye, supra, 18 Cal.4th 894, on which the Attorney
General relies, does not hold otherwise. In Frye, our Supreme
Court rejected the defendant’s challenge to the instruction that
he had to prove that a prosecution witness was an accomplice.
(Id. at pp. 967-969.) But the Frye defendant was charged with
murder, robbery, burglary, and the unlawful driving or taking of
a vehicle. (Id. at pp. 930-931.) Acting with an accomplice is not
an element of any of those crimes. (See §§ 187, subd. (a)
[murder], 211 [robbery], 459 [burglary]; Veh. Code, § 10851, subd.
(a) [unlawful driving or taking of a vehicle].)
             In any event, we do not review the propriety of
CALCRIM No. 334 in isolation. Throughout the presentation of
the evidence, it was made clear that the prosecution accepted the
burden to prove Smith’s status as an accomplice. (People v.
Belton (1979) 23 Cal.3d 516, 523-524 [burden to prove that a
witness is the defendant’s accomplice may be satisfied by
prosecution’s evidence].) Martinez’s defense was that Smith




                                11
alone assaulted M.C. The prosecution, in contrast, called Smith
as its witness and presented significant evidence—his injuries,
his statements to police, his conversation with Martinez, his plea,
his testimony, M.C.’s testimony, and DNA—that he raped M.C. in
concert with Martinez.
             It was also clear that the prosecution had the burden
to prove that Martinez committed every element of the charged
crimes beyond a reasonable doubt. The court told jurors that, to
convict Martinez of rape in concert, they had to find that the
prosecution proved that he “voluntarily acted with someone else
who aided and abetted [his] commission” of the rape. (CALCRIM
No. 1001.) Similarly, it told jurors that, to convict Martinez of
sexual penetration in concert, they had to find that the
prosecution proved that he either “voluntarily acted with
someone else who aided and abetted [his] commission” of sexual
penetration or “voluntarily aided and abetted someone else who
personally committed sexual penetration.” (CALCRIM No. 1046.)
The court specified that whenever it told jurors that the
prosecution had the burden to prove something, it had to prove it
beyond a reasonable doubt. (CALCRIM No. 220.)
             There was little danger the jury would accept Smith’s
testimony without the requisite corroboration or skepticism. The
trial court instructed the jury that it could not convict Martinez
based on Smith’s testimony unless that testimony was
corroborated. (CALCRIM Nos. 301 & 334.) The prosecution
presented that corroboration: M.C.’s testimony, Martinez’s
injuries, Martinez’s statements to Smith at the police station and
to his brother over the phone, and the DNA evidence. The
prosecution also presented evidence that Smith pled guilty to
rape in concert, one of the same crimes charged against Martinez,




                                12
and received the low term of five years in prison in exchange for
his plea. This provided the jury “ample basis to view [his]
testimony with distrust” given the circumstances of the case.
(People v. DeJesus (1995) 38 Cal.App.4th 1, 27; see also People v.
Jones (2003) 30 Cal.4th 1084, 1113 [where alleged accomplice
was with defendant before and after crimes and obtained
favorable plea bargain, jurors viewed testimony with “extreme
caution”].)
            The attorneys’ arguments further helped to cure any
instructional error. (Young, supra, 34 Cal.4th at p. 1202.) The
prosecutor did not reference Martinez’s burden to prove that
Smith was his accomplice. And he reiterated that he had the
burden to prove each element of the charged crimes beyond a
reasonable doubt. Counsel for Martinez argued CALCRIM No.
334 did not apply because he committed no crime; Smith alone
assaulted M.C. She also argued that Smith was not a credible
witness and that the jury should view his testimony skeptically
based on his guilty plea. Considered in light of the whole record,
we see no reasonable likelihood that the jury misunderstood and
misapplied the trial court’s instructions.
                          DISPOSITION
            The judgment is affirmed.
            CERTIFIED FOR PUBLICATION.


                                     TANGEMAN, J.
We concur:

             GILBERT, P. J.


             PERREN, J.



                                13
                  Michael J. Carrozzo, Judge

            Superior Court County of Santa Barbara

                ______________________________


            Vanessa Place, under appointment by the Court of
Appeal, for Defendant and Appellant.

            Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Shawn McGahey Webb and Blythe J. Leszkay,
Deputy Attorneys General, for Plaintiff and Respondent.
