What is the legal test for establishing an accomplice to a defendant in a sexual assault case?

Section 1111 provides that "[a] conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." Where an accomplice testifies, the trial court must instruct the jury sua sponte that the accomplice's testimony is to be viewed with distrust and that the defendant cannot be convicted on the basis of the accomplice's testimony unless that testimony is corroborated. (People v. Zapien (1993) 4 Cal.4th 929, 982.) No such instruction was given here.

"An accomplice is . . . defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." ( 1111.) To be charged with the identical offense, the witness must be considered a principal under section 31, which provides, "All persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . are principals in any crime so committed." (See People v. Fauber (1992) 2 Cal.4th 792, 833.) The defendant has the burden "to prove by a preponderance of the evidence that a witness is an accomplice." (Id. at p. 834.) If "the evidence at trial would warrant the jury in concluding that a witness was an accomplice of the defendant in the crime or crimes for which the defendant is on trial, the trial court must instruct the jury to determine if the witness was an accomplice." (People v. Hayes

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(1999) 21 Cal.4th 1211, 1270-1271; People v. Felton (2004) 122 Cal.App.4th 260, 267-268.)