People v. Partee

INTRODUCTION

Despite a grant of immunity, defendant and appellant Starletta Partee refused to testify against four individuals charged with a gang-related murder.

them up, Robinson, Green, and the Clarks told her the previous evening had been a setup. They arrived at the girl's location, but someone blocked them in and others started shooting; they shot their way out. They thought a man was dead. They abandoned defendant's rental car and fled. They added the police would never find the guns.

Robinson, Green, and the Clarks were subsequently charged with murder. When the case went to trial in 2008, however, defendant failed to appear, although subpoenaed as a witness. Attempts to locate her were unsuccessful, and the murder case was dismissed.

In April 2015, defendant was located, subpoenaed, and held in custody as a material witness. The criminal case against Robinson, Green, and the Clarks recommenced. During the June 11, 2015 preliminary hearing-despite a grant of immunity and after declining a relocation offer-defendant refused to testify. The trial court held her in contempt. Ultimately, the murder charges against the four men were once again dismissed.

Defendant was then charged with four felony counts of being an accessory after the fact to murder and one misdemeanor count of contempt for refusing to testify. She testified in her own trial and provided several reasons for refusing to testify in the murder case: she feared retaliation by the gang (she had experienced retaliation in the past); she feared for her safety and that of her daughter; she did not want to alienate her family; all four of the accused were family to her, and she did not want them to go to prison for the rest of their lives because of her testimony. Defendant further acknowledged that when she refused to testify in 2015 she knew her failure to appear as a witness in 2008 had led to the murder case being dismissed. But she denied she was helping her brother avoid trial. She testified: "Well, you guys are saying that I am helping my brother avoid trial. I believe you guys still have a case without me." She added that when her family members discovered she had spoken with Detective Skaggs, they told her not to testify because "[f]amily is first."

DISCUSSION

Defendant was convicted of four counts of being an accessory after the fact in violation of section 32. Section 32 defines an accessory as "[e]very person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted

thereof, is an accessory to such felony." A "principal" includes "[a]ll persons concerned in the commission of a crime, whether it be felony or misdemeanor, and 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...." (§ 31.) Being an accessory after the fact is a "wobbler" offense, punishable as either a misdemeanor or felony. (§ 33.)

"The crime of accessory consists of the following elements: (1) someone other than the accused, that is, a principal, must have committed a specific, completed felony; (2) the accused must have harbored, concealed, or aided the principal; (3) with knowledge that the principal committed the felony or has been charged or convicted of the felony; and (4) with the intent that the principal avoid or escape from arrest, trial, conviction, or punishment." ( People v. Plengsangtip (2007) 148 Cal.App.4th 825 , 836, 56 Cal.Rptr.3d 165 ( Plengsangtip ); accord,

testify where immunity grant was inadequate because it did not encompass accessory after the fact liability].)

In this case, despite being held in custody as a material witness and offered immunity and relocation, defendant's refusal to testify was motivated in part by the desire to ensure that her brother, cousin, and lifelong friends were not convicted and incarcerated. As a result, four accused murderers avoided trial and possible conviction. The prosecution, having tried in vain to compel defendant's testimony, and no doubt desiring to discourage similar behavior by other witnesses, particularly in gang-related cases, resorted to the present prosecution. We find no legal authority precluding it.

We also note defendant's refusal to testify contrasts sharply with the conduct of victims and witnesses who, having previously made out-of-court statements concerning a crime, take the stand and then claim a lack of memory. Under those circumstances, if the witness's memory loss is feigned and the record supports the conclusion that the "I don't remember" statements are evasive and untruthful, the witness's out-of-court statements are properly admitted. ( Evid. Code, §§ 770, 1235 ; People v. Johnson (1992) 3 Cal.4th 1183 , 1219-1220, 14 Cal.Rptr.2d 702 , 842 P.2d 1 .) Not so in a situation like this one, where defendant's refusal to testify because "[f]amily is first" did not permit her to be impeached with her prior out-of-court statements.

Defendant argues existing contempt remedies are adequate and by concluding otherwise we usurp the Legislature's function. We disagree. Defendant did much more than simply commit contempt by refusing to testify. The jury found she refused to testify with the specific intent to help four accused murderers avoid trial, conviction, and punishment. The intent with which defendant acted distinguishes her level of culpability from that of a simple contempt. The nature and potential impact of defendant's conduct-here, the inability to prosecute accused murderers-renders the contempt penalty inadequate to enable a court to vindicate its authority and to maintain the dignity and respect that is its due. (See In re McKinney (1968) 70 Cal.2d 8 , 12, 73 Cal.Rptr. 580 , 447 P.2d 972 .)

Further, as discussed above, our courts recognize conduct of this nature committed with the intent to shield an accused criminal is punishable under the accessory law. ( Plengsangtip, supra, 148 Cal.App.4th at pp. 835-839, 56 Cal.Rptr.3d 165 ; I.M., supra, 125 Cal.App.4th at pp. 1203-1206, 23 Cal.Rptr.3d 375 ; Duty, supra, 269 Cal.App.2d at pp. 100-105, 74 Cal.Rptr. 606 .) Our holding here is consistent with this prior decisional authority and does not displace the Legislature's power to prescribe punishment for crimes.

Defendant claims she cannot be guilty as an accessory after the fact because her silence-refusing to testify-is not an affirmative act. The Attorney General argues the law of the case doctrine applies and the issue was decided adversely to defendant when this court summarily denied her petition for a writ of mandate following the trial court's denial of her section 995 motion ( Partee v. Superior

of her Fifth Amendment privilege has a duty to testify. ( Pen. Code, § 1324 ; Kastigar v. United States (1972) 406 U.S. 441 , 453 [ 92 S.Ct. 1653 , 32 L.Ed.2d 212 ] ; People v. Smith (2003) 30 Cal.4th 581 , 624 [ 134 Cal.Rptr.2d 1 , 68 P.3d 302 ].)" ( Partee v. Superior Court, supra, at pp. 1-2.) Under these circumstances, defendant's "silence" was an overt or affirmative act falling within the terms of section 32 because she had a duty to testify at defendants' preliminary hearing.

There was also substantial evidence defendant refused to testify with the requisite intent to support an accessory after the fact conviction-that Robinson, Green, and the Clarks avoid arrest, trial, conviction or punishment. Until she was questioned by Detective Skaggs-after she falsely told the rental company the vehicle had been stolen-defendant did not report the shooting and possible death to the police. As defendant explained to Detective Skaggs, she provided transportation and money to her brother, cousin, and friends and reported the rental vehicle stolen even though she knew there had been a shooting

punishment for" the charged felony-murder. Each count had its own verdict form and the jury found defendant guilty as an accessory as to each individual.

As discussed above, a person is guilty of being an accessory when, after a felony has been committed, he or she aids a principal in the felony, with knowledge the principal has committed or been charged with the felony, and with the intent that the principal avoid or escape arrest, trial or punishment. ( § 32 ; Plengsangtip, supra, 148 Cal.App.4th at p. 836, 56 Cal.Rptr.3d 165 .) Section 32 refers to a principal, that is, an individual who committed a crime. By her refusal to testify, defendant aided four principals-her brother, her cousin, and two others she considered family-with the intent that each of them avoid or escape trial, conviction or punishment. Under these circumstances, she was properly charged with and convicted of four separate violations of section 32.

The decisions defendant relies on for a contrary holding are unavailing. In People v. Perryman (1987) 188 Cal.App.3d 1546 , 1549, 234 Cal.Rptr. 181 , the principal committed two felonies. The Court of Appeal held the defendant was nevertheless guilty of only one act of being an accessory after the fact: "The crime of accessory after the fact is complete when the accused assists the principal in escaping apprehension knowing that person has committed a felony. The number of the underlying felonies is not determinative of defendant's guilt. Even if the defendant knew the principal committed more than one crime in a single transaction, he may be charged with only one act of being an accessory after the fact." ( Ibid. )

The issue here is not whether a principal committed multiple crimes, but whether defendant aided multiple principals. Defendant may be convicted of being an accessory as to each of the four men she aided by refusing to testify; the refusal to testify

Going back decades, California courts have heard-and rejected-arguments to evade the limits imposed by these statutory penalties on the ground that they are insufficiently severe to punish a refusal to testify. In McKinney , supra , 70 Cal.2d 8 , 73 Cal.Rptr. 580 , 447 P.2d 972 , a witness refused to answer questions concerning when he first came into contact with a defendant charged with the murder of a police officer and assault with a deadly weapon. ( Id. at p. 9, 73 Cal.Rptr. 580 , 447 P.2d 972 .) The trial court purported to hold the defendant in criminal contempt under Penal Code section 166. ( Id. at pp. 9-10, 73 Cal.Rptr. 580 , 447 P.2d 972 .) The Attorney General conceded on appeal that the trial court had done so improperly but argued the sentence should be upheld because the court had inherent contempt power to imprison the witness that the

contempts has taken place" because "[t]he answer lies in legislative reform of the existing power of the court to punish for the type of contempt committed by Keller." ( Ibid . ) The Keller court specifically cautioned that permitting counsel "to devise questions that might stand up as separate contempts" were "mere devices to permit effective punishment and are unfitting to the dignity of the judicial process." ( Ibid . )

In the many years since McKinney and Keller , the Legislature has not seen fit to significantly increase the penalties set by the contempt statutes, which, with the possible exception of the coercive contempt remedy ( Code Civ. Proc., § 1219 ), continue to authorize a maximum of six months in jail. The prosecution in this case, however, apparently believed-mistakenly, in my view-that it had come upon a means of taking action where the Legislature has not.

Defendant Starletta Partee (defendant) is Nehemiah Robinson's sister and Toyrion Green's cousin. Both men, along with two

accessory; and from the laws and practices of sister states, some of which recognize the special problem of punishing a witness for refusing to incriminate family members.

A

Penal Code section 32 provides in full as follows: "Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony." The elements of the offense therefore required proof that defendant both "harbored, concealed, or aided" the accused murder defendants and did so with the intent they avoid trial, conviction, or punishment. ( People v. Tran (2013) 215 Cal.App.4th 1207 , 1219, fn. 7, 155 Cal.Rptr.3d 803 [listing all elements of a Penal Code section 32 violation].) The majority's extended discussion of defendant's intent correctly concludes that element was satisfied. But intent is not the critical issue in this case. What was lacking is proof that defendant's silence amounted to harboring, concealing, or aiding her brother and his confederates.

No one believes there was evidence that would allow the jury to conclude defendant "harbored" or "concealed" defendant and the other three men-not the Attorney General and not the majority. The meaning of those verbs simply would not support such a finding. So the question of affirmance or reversal of the Penal Code section 32 convictions reduces to what "aid[ed]" means as used in Penal Code section 32 and whether defendant's preliminary hearing silence meets that definition.

The ordinary understanding of the word "aid" is susceptible to more than one definition, but most suggest some affirmative act of assistance. Oxford's definition, for instance, states the verb means "[t]o give help, support, or assistance to (a person); to relieve from difficulty or distress, to succor." (Oxford English Dict. Online (2018) http://www.oed.com/view/Entry/4303?rskey=TgKZpp& result=5 & isAdvanced=false#eid [as of March 19, 2018].) The element of affirmative assistance that is suggested by that definition is consistent with common usage; one would not usually say, for instance, that when two rival companies intend to bid on a contract and one fails to submit its bid on time, the untimely bidder has come to the aid of the other company.

Insofar as there is ambiguity in Penal Code section 32's use of the term "aided," however, the venerable ejusdem generis canon of statutory interpretation assists

Let us begin with the meaning of Penal Code section 32 as a general matter. Our Supreme Court has explained, as I have concluded from the text of the statute, that there must be proof of affirmative assistance to obtain a Penal Code section 32 conviction: "The gist of the [ Penal Code section 32 ] offense is that the accused ' "harbors, conceals or aids" the principal with the requisite knowledge and intent. Any kind of overt or affirmative assistance to a known felon may fall within these terms.... "The test of an accessory after the fact is that, he renders his principal some personal help to elude punishment [ ]-the kind of help being unimportant." [Citation.]' ( People v. Duty (1969) 269 Cal.App.2d 97 , 104 [ 74 Cal.Rptr. 606 ] [ ].)" ( People v. Nuckles (2013) 56 Cal.4th 601 , 610, 155 Cal.Rptr.3d 374 , 298 P.3d 867 ( Nuckles ); see also Garnett , supra , 129 Cal. at p. 366, 61 P. 1114 ["[C]oncealment necessarily includes the element of some affirmative act upon the part of the person tending to or looking toward the concealment of the commission of the felony.

( Id. at p. 104, 74 Cal.Rptr. 606 .) Later California cases continue to adhere to this same principle: that an affirmative false statement can qualify as aiding an accused felon and may support an accessory after the fact conviction, but mere passive non-disclosure may not. (See, e.g., People v. Plengsangtip (2007) 148 Cal.App.4th 825 , 838, 56 Cal.Rptr.3d 165 ["Indeed, a statement that one knows nothing about a crime, even if false, is equivalent to a passive nondisclosure or refusal to give information, which is insufficient to support an accessory charge"] ( Plengsangtip ); People v. Nguyen (1993) 21 Cal.App.4th 518 , 539, 26 Cal.Rptr.2d 323 [citing Duty for the proposition that "in some circumstances supplying an affirmative and deliberate falsehood to public authorities, such as by providing a false alibi, is sufficient to make the relator an accessory" but holding nothing in the defendant's statement to police investigators (which downplayed his role at the scene of the robberies) went so far].)

Despite the lack of evidence of any affirmative assistance to support a Penal Code section 32 conviction here, the majority nevertheless affirms defendant's conviction-offering two reasons to justify the result it reaches. Neither withstands scrutiny.

First, the majority opinion states "there is precedent for an accessory conviction under the facts of this case" because California courts have upheld convictions "[u]nder similar circumstances." ( Ante at p. 758.) The opinion is wrong on this point-there is nothing similar about the present circumstances and those in the cases the majority cites. Rather, all of the California cases the majority cites are factually dissimilar in the most critical respect:

weighing of the appropriate penalty in the balance is necessary. The Legislature has already done that weighing, and there are no workarounds.

The People do have an argument that some updating of the long-established contempt sanctions for refusing to testify, at least in certain cases, deserves consideration.

motel room. When defendant picked

People v. Tran (2013) 215 Cal.App.4th 1207 , 1219, fn. 7, 155 Cal.Rptr.3d 803 ( Tran ).) As section 32 expressly states, an accessory must know he or she is assisting a felon or one who has been charged with or convicted of a felony. ( Tran, supra, 215 Cal.App.4th at p. 1219, 155 Cal.Rptr.3d 803 .) The effect of an accessory's actions is "to lessen the chance that the perpetrators will be captured and held accountable for their crimes." ( People v. Cooper (1991) 53 Cal.3d 1158 , 1168, 282 Cal.Rptr. 450 , 811 P.2d 742 .)

A defendant may be convicted of being an accessory even if the principal is not prosecuted. (§ 972.) Section 972 provides: "An accessory to the commission of a felony may be prosecuted, tried, and punished, though the principal may be neither prosecuted nor tried, and though the principal may have been acquitted." The prosecution against defendant as an accessory after the fact properly went forward even though Robinson, Green, and the Clarks were never brought to trial.

Defendant was also convicted of misdemeanor contempt for refusing to testify. Section 166 sets forth conduct constituting a contempt of court. Under subdivision (a)(6), a contempt includes "[t]he contumacious and unlawful refusal of a person to be sworn as a witness or, when so sworn, the like refusal to answer a material question." Contempt under section 166 is a general intent crime. ( People v. Greenfield (1982) 134 Cal.App.3d Supp. 1 , 4, 184 Cal.Rptr. 604 .)

"emphatically reject this prosecutorial overreach, and reaffirm that recalcitrant witnesses can be subjected to coercion and punishment for contempt, but cannot be thrown in prison for decades." Defendant, however, has not shown she raised this argument in the trial court. Nor does she cite any authority on prosecutorial overreaching in support of her claim. She cites no authority precluding the accessory and contempt charges based on her refusal to testify. The Attorney General did not specifically address the overreaching claim in his brief or at oral argument. Defendant forfeited the issue by failing to raise it in the trial court.

Defendant's forfeiture notwithstanding, there is precedent for an accessory conviction under the facts of this case. Under similar circumstances, our Courts of Appeal have held defendants were properly charged with or convicted of being accessories. In Plengsangtip, supra, 148 Cal.App.4th at pages 835 through 839, 56 Cal.Rptr.3d 165 , for example, the Court of Appeal held evidence

another defendant to escape punishment; the defendant simply did not want to testify. Under those circumstances, it was error to apply the accessory after the fact sentencing guideline. ( Ortiz, supra, 84 F.3d at pp. 980-982 ; see also Wright v. McAdory (Miss. 1988) 536 So.2d 897 , 904 [murder witness could not be held in contempt for refusal to

Court (March 18, 2016, B270799) [nonpub. order] ).

We disagree with the Attorney General's position. Although our order summarily denying defendant's writ petition included citations to legal authority, we did not issue an alternative writ or a written opinion. And, as defendant correctly argues, "the denial of a writ petition does not establish law of the case unless the denial is accompanied by a written opinion following the issuance of an alternative writ." ( Kowis v. Howard (1992) 3 Cal.4th 888 , 891, 12 Cal.Rptr.2d 728 , 838 P.2d 250 ; accord, People v. Jones (2011) 51 Cal.4th 346 , 370, fn. 4, 121 Cal.Rptr.3d 1 , 247 P.3d 82 .) The law of the case doctrine does not apply.

On the merits, however, we conclude defendant's refusal to testify supports her accessory convictions. "Mere silence after knowledge of [a felony's] commission is not sufficient to constitute the party an accessory." ( People v. Garnett (1900) 129 Cal. 364 , 366, 61 P. 1114 .) Some affirmative act is required. ( Ibid. ) An affirmative falsehood, for example, such as a false alibi made with the requisite knowledge and intent, will support an accessory conviction. ( Duty, supra, 269 Cal.App.2d at pp. 101-104, 74 Cal.Rptr. 606 .) As will a false statement to police that the perpetrator acted in self-defense or in the heat of passion. ( I.M., supra, 125 Cal.App.4th at pp. 1203-1205, 23 Cal.Rptr.3d 375 .) In contrast, "the mere passive failure to reveal a crime, the refusal to give information, or the denial of knowledge motivated by self-interest does not constitute the crime of accessory." ( Plengsangtip, supra, 148 Cal.App.4th at p. 876, 56 Cal.Rptr.3d 165 , citing People v. Nguyen (1993) 21 Cal.App.4th 518 , 527, 537-539, 26 Cal.Rptr.2d 323 .)

However, as we explained in denying defendant's writ petition: " Penal Code section 32 proscribes '[a]ny kind of overt or affirmative assistance to a known felon,' so long as the assistance is provided with the intent that the perpetrator avoid arrest, trial, conviction, or punishment. ( Duty [, supra, ] 269 Cal.App.2d [at p.] 104 [ 74 Cal.Rptr. 606 ].) The failure to act is not an 'overt or affirmative' act unless there is a duty to act. (See People v. Heitzman (1994) 9 Cal.4th 189 , 197 [ 37 Cal.Rptr.2d 236 , 886 P.2d 1229 ] ['when an individual's criminal liability is based on the failure to act, it is well established that he or she must first be under an existing legal duty to take positive action'].) A witness who has been subpoenaed and given immunity that is co-extensive with the scope

in which her brother, cousin, and the Clarks were involved; someone had been shot and likely died; her brother and his companions fled the scene and abandoned the rental car; and they disposed of the guns used in the shooting. Defendant dismissed another cousin's suggestion she send Robinson to retrieve the abandoned vehicle saying, "I don't want [him] to get in any trouble...." She told the detective she was "trying to cover for [Robinson]." When Detective Skaggs encouraged defendant to bring "those boys" in, defendant said, "I don't want to do it." She refused to "try to talk sense to them." Defendant also said she would refuse to testify against them in court because "that's my family, you help them" and she did not want her testimony to send them to prison. She was reluctant to get involved: "I know they did it. And I know it's wrong, but ... it's my family." Further, defendant testified in her own trial that when she refused to testify in 2015, she knew criminal charges against the four individuals had been dismissed in 2008 after she failed to appear.

Defendant argues even if there was sufficient evidence to convict her as an accessory, she could not be charged with and convicted of four accessory counts based on her single act of refusing to testify. We disagree.

Each accessory count specifically identified defendant as aiding a single individual in violation of section 32 : count 1-Robinson, count 2-Green, count 3-Bryant Clark and count 4-Byron Clark. Each count also specifically alleged defendant harbored, concealed and aided the individual "with the intent that [he] might avoid and escape from arrest, trial, conviction, and

against each individual was a separate crime.

People v. Mitten (1974) 37 Cal.App.3d 879 , 112 Cal.Rptr. 713 ( Mitten ), on which defendant also relies, is less helpful. The defendant was charged with being an accessory after he helped bury two murder victims' bodies. ( Id. at pp. 881-882, 112 Cal.Rptr. 713 .) But the sole issue in Mitten was whether the trial court properly granted the defendant's motion to dismiss the information for improper venue. Mitten did not hold a defendant can only be convicted of one count of being an accessory when there are multiple principals within the meaning of section 32.

Defendant further notes, "The prosecution ... refused to concede that [she] could not be punished for all five counts under section 654, even though there could be no doubt of that under applicable law." Section 654 states: "An act

the

Legislature could not curtail. ( Id. at p. 10, 73 Cal.Rptr. 580 , 447 P.2d 972 .) Our Supreme Court rejected that argument, stating "[t]he Attorney General, though framing the limits of the court's inherent power in language of an 'adequate' sentence in fact argues for 'unbridled power' [citation]." ( Id. at pp. 12-13, 73 Cal.Rptr. 580 , 447 P.2d 972 .) The Supreme Court acknowledged a trial court's contempt power "must 'be sufficient to enable the courts to vindicate their authority and maintain the dignity and respect due to them' [citation]" but concluded the existing sanctions provided by the Legislature, i.e., the civil and criminal contempt statutes already described, were adequate for a trial court to vindicate its authority and maintain its dignity. ( Id. at p. 12, 73 Cal.Rptr. 580 , 447 P.2d 972 .)

In a case decided seven years later, Keller , supra , 49 Cal.App.3d 663 , 123 Cal.Rptr. 223 , the Court of Appeal again rejected an argument that would permit an end-run around the sanctions that the contempt statutes provide for refusing to testify. In that case, a college professor witnessed an attempted robbery and provided a statement to the police, but later informed the prosecution he would not testify if called as a witness at trial "for reasons of conscience." ( Id. at p. 664, 123 Cal.Rptr. 223 .) The prosecution sought the professor's testimony anyway and he refused to answer six questions concerning the attempted robbery. ( Id. at pp. 665-666, 123 Cal.Rptr. 223 .) The professor was held in contempt on six separate counts (corresponding to the six questions) and sentenced to 15 days in jail (five days each for three of the questions) and a $1,500 fine ($500 each for the other three questions). ( Id. at p. 666, 123 Cal.Rptr. 223 .)

On appeal, Keller argued the imposition of cumulative penalties for his refusal to answer a series of related questions was improper. ( Keller , supra , 49 Cal.App.3d at p. 666, 123 Cal.Rptr. 223 .) The Court of Appeal agreed and held the trial court exceeded its authority in making multiple contempt findings for what amounted to one contempt. ( Id. at p. 669, 123 Cal.Rptr. 223 .) In the course of so holding, the Keller court acknowledged the argument that "the maximum punishment which [it held] the court can here lawfully impose (five days in jail and/or [a] $500 fine ( Code Civ. Proc., § 1218 ) ) may not be 'significant' or 'substantial' enough to effectuate its objective of promoting a recalcitrant witness to testify...." ( Id. at p. 671, 123 Cal.Rptr. 223 .) But, importantly, the Court of Appeal explained this was "not a proper ground on which to analyze whether one or more

others, were charged with murder in connection with what was alleged to be the gang-related shooting of victim Anthony Owens (Owens).

After the alleged murder, Los Angeles Police Department detective John Skaggs interviewed defendant (the interview was recorded). During the interview, defendant made statements tending to incriminate the four men as having committed, or having been involved in, Owens' murder. As the majority opinion details, defendant thereafter failed to appear as a witness at the trial of the four men, the case against the men was dismissed, police later located defendant and took her into custody, prosecutors then re-filed the case against the men, and when called as a witness at the preliminary hearing in the re-filed case where all four men were present, defendant refused to be sworn to testify and refused to answer questions posed by the prosecutor. Following defendant's refusal, the murder case against defendant's brother, her cousin, and the other two men was again dismissed.

The prosecution responded by charging defendant with one count of criminal contempt under Penal Code section 166 for refusing to testify at the preliminary hearing. The prosecution also went further-invoking Penal Code section 32 to charge defendant with four felony counts of being an accessory to the murder after the fact (one count for each of the four accused murderers). The prosecution further elected to add a gang enhancement

The imposition of a probationary sentence, however, does not make this a no-harm-no-foul case. A felony conviction carries various consequences a misdemeanor does not, and as I now explain, defendant's silence when called as a witness was insufficient to prove a violation of the accessory statute.

All legal sources that courts properly consult lead to the same conclusion: a mere refusal to testify is not a proper basis for a Penal Code section 32 prosecution. The conclusion flows from the text of the accessory statute as informed by established canons of statutory interpretation; from California precedent that has addressed the bounds of who may be prosecuted as an

Mere silence after knowledge of its commission is not sufficient to constitute the party an [accessory]"].) The majority quotes this language from Nuckles but fails to accord it the significance it deserves (particularly the Court's reference to affirmative assistance) when analyzing the sufficiency of the evidence to support the Penal Code section 32 convictions.

Furthermore, the Nuckles court cited the Court of Appeal's decision in People v. Duty , supra , 269 Cal.App.2d 97 , 74 Cal.Rptr. 606 ( Duty ) with approval, and Duty even more precisely addresses the meaning and scope of Penal Code section 32 as relevant to the key issue presented here. In Duty , there was evidence that the defendant provided a false alibi for another suspected of arson. ( Id. at pp. 102-103, 74 Cal.Rptr. 606 .) The question was whether this "inferably false statement" to the fire investigators was sufficient to convict the defendant as an accessory after the fact. ( Id. at p. 103, 74 Cal.Rptr. 606 .)

The Court of Appeal observed that, at the time of its decision (in 1969), the question of "[w]hether a falsehood to the police or other public investigators may violate the accessory statute is a new question in California." ( Duty , supra , 269 Cal.App.2d at p. 103, 74 Cal.Rptr. 606 .) The court explained that "[a]ccording to some American decisions, the offense is not committed by passive failure to reveal a known felony, by refusal to give information to the authorities, or by a denial of knowledge motivated by self-interest. On the other hand, an affirmative falsehood to the public investigator, when made with the intent to shield the perpetrator of the crime, may form the aid or concealment denounced by the statute." ( Id. at pp. 103-104, 74 Cal.Rptr. 606 .)

The Duty court upheld the defendant's accessory conviction, but only because the defendant "had actively concealed or aided [the suspected arsonist] by supplying an affirmative and deliberate falsehood to the public authorities," which meant there was "more than passive non-disclosure."

unto itself-concerning the reach of accessory after the fact punishment. As summarized by Professor LaFave, the specifics of what type of aid will suffice to support an accessory conviction vary somewhat from state to state, but "[f]ive kinds of aid usually are proscribed: (1) harboring or concealing the criminal; (2) providing him with certain means (e.g., a weapon, transportation, a disguise) of avoiding apprehension; (3) concealing, destroying or tampering with evidence; (4) warning the criminal of his impending discovery or apprehension; and (5)