Martinez

*723 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, 127 Cal.Rptr. 135 , 544 P.2d 1335 ( 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, 127 Cal.Rptr. 135 , 544 P.2d 1335 .) 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 prosecution must bear the burden to prove that status beyond a reasonable doubt. (See Tewksbury , at pp. 963-964, 127 Cal.Rptr. 135 , 544 P.2d 1335 .) 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 *444 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…