THE PEOPLE, Plaintiff and Respondent, v. NATALIE NADINE GUIUAN, Defendant and Appellant, 18 Cal. 4th 558

Opinion MOSK, J. In this matter, defendant was convicted of offenses including kidnapping and attempted first degree murder with the help of three accomplices.

The accomplices testified at trial as witnesses for the prosecution, and the superior court, without objection by defendant, gave the standard instruction cautioning the jurors to view their testimony “with distrust.” The Court of Appeal concluded that the superior court erred in failing sua sponte to tailor the instruction to state that it did not apply to any testimony “favorable” to defendant, but, holding the error harmless, affirmed the judgment of conviction. We granted review to determine whether the superior court did so err. The answer is negative.

The trial court properly instructed the jury, consistent with our holding in People v. Williams (1988) 45 Cal.3d 1268, 1314 [248 Cal.Rptr. 834, 756 P.2d 221]. In the absence of any objection, it was not required sua sponte to modify the instruction with regard to testimony that might be construed as favorable to the defendant.

We conclude, however, that, to lessen the burden on the trial court, the instruction in Williams should be modified in future cases specifically to indicate that only testimony unfavorable to the defendant should be viewed with care and caution; the instruction is applicable whenever an accomplice, or possible accomplice, testifies. On this basis, we affirm the judgment of the Court of Appeal. I. On July 8, 1994, Natalie Nadine Guiuan and three teenagers, Josh S., Prince W., and Elisha F., kidnapped and attempted to kill Kimberly Marston.

The parties do not dispute the underlying facts, which, as relevant here, tell the following tale. Beginning in June 1994, Guiuan volunteered to work as a confidential informant for the San Mateo County Narcotics Task Force. Although she told the officer to whom she was assigned that she did not use drugs, she was evidently a regular user of cocaine and methamphetamine.

Around the same time, she began having trouble with her 13-year-old daughter, Kimberly S., who had recently returned to live with her and her three younger daughters after many years of separation, but was now staying in a “fort” or clubhouse behind the home of a teenage friend.

On July 1, Guiuan told Marston that Kimberly S. was being held by “some gang.” Although Guiuan was 33 years old and Marston was 24, Guiuan referred to her as “Baby.” Marston, who considered Guiuan her “best friend,” referred to her as “Mom.” Marston introduced Guiuan to 15-year-old Jason M., whom she described as a junior cadet with the Daly City Police, suggesting that he might be able to talk to the gang members. Marston, also a regular drug user, asked Guiuan to obtain methamphetamine for her.

Guiuan agreed; accompanied by Jason, she purchased drugs from a supplier she was planning to set up for a “major bust.” The same day, Jason introduced Guiuan to Josh and Prince, both 14 years old. On July 3, friends of Kimberly S. called Guiuan and told her she could “come and get” her daughter. After she brought Kimberly S. home, Guiuan asked Josh to watch her so she would not run away. Josh introduced Guiuan to his friend Elisha, aged 15, as someone who could help with Kimberly S. On July 6, Marston moved temporarily to Guiuan’s home.

That evening, while driving in her car with Marston and Josh, Guiuan said that she thought gang members were following her. Later, at her home, she said she saw unknown snipers outside using night scopes to see inside. She was afraid that the snipers’ presence was related to her working as an informant. Apparently to avoid suspicion, she accused Marston and Jason of being “snitches” who had endangered her and her children. That night, she rented a motel room, where the group relocated.

There, Prince and Josh harassed Marston, trying to get her to admit to being a “snitch.” On July 7, in the early morning, Marston attempted to leave the motel to go to work. Guiuan refused to allow her to do so; she attacked Marston with a knife and the others joined in with their hands and a flashlight. Later that day, they confined Marston in Prince’s basement. That night, according to Elisha, Guiuan came up with a plan to kill Marston. They would dress in black clothing, take Marston to Half Moon Bay in Guiuan’s car, and kill her with knives supplied by Guiuan.

Much of the planning was done in the presence of Kimberly S. On July 8, in the early morning, Guiuan, Josh, Prince, and Elisha took Marston from Prince’s basement and, after she was bound, gagged, and blindfolded, drove to a hilly, isolated spot near Half Moon Bay. They struggled with Marston and attempted to kill her with knives. After trying to slit Marston’s throat, Guiuan returned to her car. There, she said that Marston had kicked her in the stomach and that she was in pain. Later, she stood outside the car with Prince, who pretended to be working on the engine.

Elisha approached and Guiuan gave her a heavy tire iron with which to hit Marston. Guiuan and Prince then drove around for 45 minutes at Elisha’s suggestion, “so that it wouldn’t get obvious,” while Elisha and Josh continued the attack. After Marston stopped moving, they left her for dead. Guiuan and the teenagers returned to Guiuan’s home. They cleaned the weapons used in the attack and collected the bloodied clothing in a plastic bag, which they later discarded in dumpsters.

That evening, Guiuan informed police that she had overheard a conversation indicating that “Baby” had been “butchered.” She said she knew where the body was because she had gone to the area described in the conversation and found it. She led the police to Marston, who was not dead. She was suffering from superficial stab wounds all over her body, a superficial slash wound across her throat, and head lacerations. At Guiuan’s trial, the prosecution called Elisha, Josh, and Prince, among others, to testify concerning the offenses.

They identified Guiuan as the leader and driving force behind the confinement of Marston, the plan to kill her, and its execution. They described Guiuan’s heavy use of methamphetamine and several instances of bizarre behavior, including her belief that gang members were following her car and that unknown snipers were outside her home. They also stated that she tried to convince them that Marston and Jason were “snitches,” and that Marston was to blame for putting her and her children in danger.

Guiuan presented a defense that a mental disorder caused her to believe that Marston was a threat to her and her daughters. She offered evidence to the effect that she lacked intent to kill and acted under duress. She relied on expert testimony that she suffered from “borderline personality disorder,” a condition that can make a person psychotic or dissociated under stress. She also testified that she feared people were out to get her because of her own work as a police informant.

The jury instructions included the standard instruction cautioning the jurors that the testimony of an accomplice should be viewed with distrust, in accordance with CALJIC No. 3.18 (5th ed. 1988) as follows: “The testimony of an accomplice ought to be viewed with distrust. This does not mean that you may arbitrarily disregard such testimony, but you should give it the weight to which you find it to be entitled after examining it with care and caution in the light of all the evidence in the case.” Guiuan did not object to the instruction.

Guiuan was convicted of offenses including kidnapping and attempted first degree murder. She was sentenced to a term of 25 years to life in state prison. On appeal, Guiuan did not dispute that Josh, Prince, and Elisha, called to testify by the prosecution, were her accomplices.

She claimed, however, that the superior court erred in failing sua sponte to modify the standard instruction to view accomplice testimony with distrust to apply only to “those portions which tended to incriminate the defendant.” She cited passages from her accomplices’ testimony that she claimed would have supported her defenses that she suffered from a mental disorder, lacked intent to kill, and acted under duress. For example, she pointed to Elisha’s testimony to the effect that, although she said that she wanted “to get rid of . . .

Marston,” she did not actually say “I want her killed” or “I want her dead.” Similarly, Josh testified that she never said that she wanted Marston stabbed, knifed, or hurt, but only that she wanted her “out of here” or “in a safe place” or “taken care of.” She also pointed to testimony by the accomplices corroborating her claims that she believed she saw persons outside her home, that her car was being followed when she took her children to the motel, and that Marston was putting her family at risk because she was a “snitch.” In addition, she cited testimony by Prince that, during the drive to Half Moon Bay, she said she felt sick and could not go through with it.

She also pointed to his testimony that he drove around with her for 45 minutes while Elisha and Josh attacked Marston. The Court of Appeal concluded that the superior court had a duty sua sponte to tailor the instruction regarding accomplice testimony to relate only to statements favorable to the prosecution. It acknowledged that People v. Williams, supra, 45 Cal.3d 1268, requires that when an accomplice is called by the prosecution, the court must give the instruction in question.

It determined, however, that the relevant consideration under Williams is not which party “called” the accomplice to the stand, but whether the accomplice’s testimony is “favorable” or “unfavorable” to the defendant. While observing that such a rule “can lead to mischief,” it stated that it was “duty-bound to follow Williams.” It noted that it “would welcome review” if it had misconstrued Williams on this point. Be that as it may, it found the testimony harmless, determining that it was of only marginal relevance and was largely cumulative. We granted review. II.

In Williams, we addressed the trial court’s duty to instruct the jurors regarding accomplice testimony: “The law on this question is clear. When an accomplice is called as a witness by the prosecution, the court must instruct the jurors sua sponte to distrust his testimony. [Citations.] When, by contrast, he is called by the defendant, the instruction should be given only at the defendant’s request. [Citations.] Finally, when he is called by both parties, the instruction should be tailored to relate only to his testimony on behalf of the prosecution.” {People v.

Williams, supra, 45 Cal.3d at p. 1314.) In Williams, the defendant’s accomplice was a crucial witness for the prosecution; when called to testify on behalf of the defendant, however, he also gave testimony favorable to him. {People v. Williams, supra, 45 Cal.3d at pp. 1313-1314.) The trial court gave the standard instruction that accomplice testimony should be viewed with distrust.

We held that it erred in failing sua sponte “to instruct the jurors that they should regard with distrust only [the accomplice’s] testimony on behalf of the prosecution.” {Id. at p. 1314.) As Williams indicates, the rules concerning jury instructions for accomplice testimony are well established. They address three situations, which we examine in turn. First, Williams reiterates the long-standing requirement that when an accomplice is called to testify on behalf of the prosecution, the court must instruct the jurors that accomplice testimony should be viewed with distrust. (People v.

Williams, supra, 45 Cal.3d at p. 1314.) The instruction originates in the common law. As explained in People v. Coffey (1911) 161 Cal. 433, 438 [119 P. 901]:. “[I]t was, of course, recognized that evidence of an accomplice, coming from a tainted source, the witness being ... a man usually testifying in the hope of favor or the expectation of immunity, was not entitled to the same consideration as the evidence of a clean man, free from infamy.

Hence, it soon became the practice of the common law judges, in the wide latitude allowed to them in the instruction of their juries, to advise the latter that the testimony of an accomplice . . . was to be viewed with care, caution, and suspicion . . . .” In 1872, drawing from the common law, the Legislature enacted former

section 2061, subdivision 4 of the Code of Civil Procedure (hereafter former

section 2061, subdivision 4), which codified the admonition concerning accomplice testimony as a rule of positive law. It required, in relevant part: “The jury . . . are . . . to be instructed by the court on all proper occasions . . . [t]hat the testimony of an accomplice ought to be viewed with distrust We subsequently questioned whether instruction in conformity with former

section 2061, subdivision 4, was necessary or even constitutional under former

article VI,

section 19 of the 1879 California Constitution, which provided that “[j]udges shall not charge juries with respect to matters of fact.” (See People v. Ruiz (1904) 144 Cal. 251, 253 [77 P. 907] [the trial court did not err in refusing to instruct based on former

section 2061 subdivision 4, after an accomplice testified against the defendant]; People v. Waldrip (1903) 141 Cal. 229, 232 [74 P. 744] [questioning the constitutionality of former

section 2061, subdivision 4, but holding that giving or refusing the instmction would never warrant reversal because it “states a mere commonplace within the general knowledge of jurors”].) In Hirshfeld v. Dana (1924) 193 Cal. 142, 160 [223 P. 451], we observed that it was “settled law” that former

section 2061, subdivision 4, is unconstitutional because it requires a charge to the jury with respect to matters of fact, and held that it “should never be made the basis of an instruction.” In 1934, the California Constitution was amended through the addition to

article VI of former

section 19, present

section 10, which provides in its current wording that a trial 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.” (See People v. Alvarez (1996) 14 Cal.4th 155, 219, fn. 23 [58 Cal.Rptr.2d 385, 926 P.2d 365].) Thereafter, in People v. Dail (1943) 22 Cal.2d 642, 656 [140 P.2d 828], we concluded that an instruction concerning accomplice testimony in conformity with former

section 2061, subdivision 4, was “necessary in a proper case and the failure so to instruct may be reversible error.” We emphasized the “questionable character” of such testimony, explaining that “[t]he fact that a person is an accomplice in the commission of a crime goes to his credibility as a witness and to the weight of his testimony.” (22 Cal.2d at p. 653.) Repudiating our earlier decision in Hirshfeld as “based upon a misconception,” we held in Dail that an instruction to view accomplice testimony with distrust was “never void” under the California Constitution. (People v. Dail, supra, 22 Cal.2d at p. 656.) We observed: “The requirement of

section 1111 of the Penal Code that accomplice testimony must be corroborated is a convincing indication of the legislative intent and policy that such evidence is to be regarded as untrustworthy .... [N]o valid reason exists why the Legislature may not declare, as it has done in subdivision 4 of

section 2061, that the jury is to be instructed to view such accomplice testimony with distrust. ... To require such an instruction on proper occasions is not to charge the jury upon matters of fact. It merely serves to state the legislative condition upon which the jury is permitted to hear that class of evidence.” (Id. at p. 655.) In Dail, the prosecution called several accomplices as witnesses against the defendant. The trial court gave an instruction in accordance with former

section 2061, subdivision 4, but also instructed “under the guise of comment” that the testimony of the accomplices must be judged “ ‘by the same standard as that of any other witness.’ ” (People v. Dail, supra, 22 Cal.2d at p. 656, original italics.) We held that it erred thereby: “[A]n erroneous instruction upon the law cannot be deemed a justifiable comment on the evidence and credibility of a witness.” (Id. at p. 657.) Subsequently, in People v.

Hamilton (1948) 33 Cal.2d 45, 51 [198 P.2d 873], we held that it was error for the trial court not to instruct the jurors, sua sponte, that the testimony of an accomplice called by the prosecution should be viewed with distrust. Since Hamilton, the cases in point have consistently affirmed that an instruction on accomplice testimony must be given on the court’s own motion when the accomplice is called solely by the prosecution. (See, e.g., People v. Terry (1970) 2 Cal.3d 362, 399 [85 Cal.Rptr. 409, 466 P.2d 961]; People v. Cortez (1981) 115 Cal.App.3d 395, 406 [171 Cal.Rptr. 418]; People v.

Cooper (1970) 10 Cal.App.3d 96, 103 [88 Cal.Rptr. 919]; People v. Carter (1969) 275 Cal.App.2d 815, 824 [80 Cal.Rptr. 202].) Former

section 2061 was repealed effective January 1, 1967. The Law Revision Commission, which proposed the action as part of the legislation creating the Evidence Code in 1965, stated that it “should have no effect on the giving of the instructions contained in the

section . . . .” (Cal. Law Revision Com. com., 21-22 West’s Ann. Code Civ. Pro'c. (1983 ed.) foil. § 2061, p. 268; People v. Cooper, supra, 10 Cal.App.3d at p. 103, fn. 3 [“The repeal of the

section was not intended to have any effect on the giving of the instructions contained therein and permitted or required to be given by decisional law.”]; People v. Cuellar (1968) 262 Cal.App.2d 766, 770 [68 Cal.Rptr. 846].) Second, Williams reiterates the long-standing requirement that when an accomplice is called by the defendant alone, it is error for the court to instruct the jurors sua sponte that it should view the testimony with distrust. {People v.

Williams, supra, 45 Cal.3d at p. 1314.) The reason for the different rule when an accomplice is called by the defendant alone is evident: Because an accomplice does not ordinarily stand to benefit from providing testimony on behalf of the defendant, his or her statements are not necessarily suspect. As we explained in People v.

Garrison (1989) 47 Cal.3d 746, 775 [254 Cal.Rptr. 257, 765 P.2d 419]: “The rule is otherwise for a prosecution witness since it is the accomplice’s motive to testify falsely in return for leniency that underlies the close scrutiny given accomplice testimony offered against a defendant. [Citation.] A defendant is powerless to offer this inducement.” (See also People v. Simmons (1946) 28 Cal.2d 699, 723 [172 P.2d 18]; People v. Gonzales (1970) 4 Cal.App.3d 593, 607 [84 Cal.Rptr. 863].) Indeed, a defendant will not ordinarily call an accomplice if the testimony is likely to be unfavorable.

Third, Williams reiterates the long-standing requirement that, when an accomplice is called by both the prosecution and the defendant, the trial court should tailor the instruction to relate only to his testimony on behalf of the prosecution. {People v. Williams, supra, 45 Cal.3d at p. 1314.) Again, the reason for such a rule is clear.

Although the testimony of an accomplice on behalf of the prosecution is subject to distrust because such witness has the motive, opportunity, and means to help himself at the defendant’s expense, he or she ordinarily has no such motive, opportunity, or means when he testifies on behalf of the defendant. Thus, in People v. Watson (1952) 113 Cal.App.2d 799 [249 P.2d 38], the prosecution and the defendant each called a different accomplice or possible accomplice.

The defendant claimed that, because he had called an accomplice to testify on his behalf, the trial court erred in giving the standard instruction that accomplice testimony should be viewed with distrust. The Court of Appeal found no error, but only because the instruction, as given, was assertedly “directed solely to prosecution witnesses whom the jury might find to be accomplices.” (Id. at p. 803; see also People v. Cortez, supra, 115 Cal.App.3d at p. 406.) As discussed, Williams applied the same rule when the accomplice was called both by the prosecution and by the defense.

We held that the trial court erred by failing sua sponte “to instruct the jurors that they should regard with distrust only [the accomplice’s] testimony on behalf of the prosecution.” (People v.

Williams, supra, 45 Cal.3d at p. 1314.) Whether the same, or a different, accomplice is called by both the prosecution and the defense, the rationale for requiring the trial court to modify the standard instruction remains the same: To the extent an accomplice testifies on behalf of the prosecution, the testimony is subject to the taint of an improper motive, i.e., that of promoting his or her own self interest by inculpating the defendant. To the extent such witness testifies on behalf of the defendant, the testimony is ordinarily subject to no such taint.

The Court of Appeal concluded that our rule in Williams should not be applied in a rigidly formalistic manner; i.e., the accomplice instruction should turn not on which party “called” the witness, but on which party was “favored” by the testimony. It explained that, in applying Williams, it was adopting the “gloss” of People v.

Graham (1978) 83 Cal.App.3d 736, 744 [149 Cal.Rptr. 6], which held that it was error, absent a request by the defendant, to instruct the jurors to view accomplice testimony with distrust “in a situation where the witness was called by the People but testified in favor of the defendant.” At the same time, it acknowledged that such a rule places a burden on the trial court of parsing the evidence to determine whether or not it was “favorable.” It also observed that such a rule can “lead to mischief’ in cases involving both “favorable” and “unfavorable” testimony.

A defendant could, in effect, require the court to choose the “proper” instruction based on its own determination whether all or part of the testimony was “favorable,” without being bound thereby. Regardless of the choice made, the defendant would have reserved the right to claim error. We agree that the rule in Williams should not be applied in a rigidly formalistic manner. We also agree that the trial court should not be required to parse the testimony of an accomplice to determine whether it may be construed as “favorable” or “unfavorable” to the defendant. For that reason, we disapprove People v.

Graham, supra, 83 Cal.App.3d 736, to the extent it so requires. Instead, to avoid the burden on the trial court of such a requirement, and eliminate the potential for “mischief,” we conclude, consistent with arguments by both the People and the defendant, that the instruction concerning accomplice testimony should henceforth refer only to testimony that tends to incriminate the defendant. The present instruction admonishes the jury to view such accomplice testimony “with distrust,” explaining that it should view such testimony “with care and caution” in light of all the evidence.

We conclude that the phrase “care and caution” better articulates the proper approach to be taken by the jury to such evidence. Accordingly, we conclude that the jury should be instmcted to the following effect whenever an accomplice, or a witness who might be determined by the jury to be an accomplice, testifies: “To the extent an accomplice gives testimony that tends to incriminate the defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony.

You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in the case.” Such a pretailored instruction is applicable regardless which party called the accomplice. Like the instruction in Williams and our previous decisional law, the refined instruction casts doubt on the veracity of an accomplice who has an obvious motive to testify falsely, while reducing the burden on the trial court.

Justice Brown asserts, in her concurring and dissenting opinion, that we should overrule Williams by holding that the trial court is not required to give the instmction sua sponte. We disagree. It has long been one of the instmctions on the “general principles of law” that trial courts must give on their own initiative. Moreover, as discussed, until the Legislature repealed Code of Civil Procedure

section 2061 in 1965, trial courts were statutorily required to give the instmction. The repeal of the statute did not purport to abrogate this requirement, and it was continued by our decisional law. in. We review this claim, which involves the determination of applicable legal principles, under a de novo standard. After such review, we conclude that no instructional error appears.

Although we conclude that, henceforth, the instruction on accomplice testimony should be “pretailored” to refer specifically to testimony favorable to the prosecution, the trial court properly gave an instruction consistent with Williams and with prior statutory and decisional law going back over half a century. Guiuan’s accomplices were called solely by the prosecution; none was also called by Guiuan. At the prosecution’s request, the trial court gave the standard instruction to view accomplice testimony with distrust. Guiuan did not object. Neither did she request modification.

She may not be heard now. “Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Andrews (1989) 49 Cal.3d 200, 218 [260 Cal.Rptr. 583, 776 P.2d 285].) IV. For the foregoing reasons, we affirm the judgment of the Court of Appeal. George, C. J., Werdegar, J., and Chin, J., concurred. Accord, CALJIC No. 3.18 (6th ed. 1996). The same witnesses gave “unfavorable” testimony on many of the same points.

Thus, Elisha testified that it was Guiuan’s plan either to “push the knife in back through [Marston’s] neck or slit her throat.” Josh testified that Guiuan “implied” that there was a plan to kill Marston, although he “just thought it was idle conversation.” Prince testified that Guiuan, Elisha, and Josh all got out of the car “talking about they are sick and can’t go through with it.” Prince also testified that, before they drove around, he saw Guiuan “grab the knife and try to slit [Marston’s] throat.” The People point to apparently contradictory dictum in People v.

Toro (1989) 47 Cal.3d 966, 975 [254 Cal.Rptr. 811, 766 P.2d 577]. The dictum consists of an analogy to the effect that “when an alleged accomplice testifies as a prosecution witness and then again as a defense witness, . . . contrary to the general rule that a jury instruction may be challenged on appeal even though no objection was raised at trial [citations], an objection to a cautionary instruction has been required before the defendant may assert error on appeal. . . .” Toro does not mention Williams, and did not purport to reconsider or alter our holding therein. We disapprove the dictum.

The word “caution,” connoting “care and watchfulness,” signals the need for the jury to pay special heed to incriminating testimony because it may be biased, but avoids the suggestion that all of the accomplice’s testimony, including favorable testimony, is untrustworthy. To the extent People v. Hamilton, supra, 33 Cal.2d 45, 51, suggests otherwise, we disapprove its discussion on this point.