People v. Partee

Filed 3/21/18

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B276040

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. TA138027)

v.

STARLETTA PARTEE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of the

County of Los Angeles, Allen Webster, Jr., Judge. Affirmed.

Law Office of Paul Kleven, Paul Kleven, 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, Senior Assistant

Attorney General, Scott A. Taryle, Supervising Deputy Attorney

General, and Colleen M. Tiedemann, Deputy Attorney General,

for Plaintiff and Respondent.

* Pursuant to California Rules of Court, rules 8.1100 and

8.1110, this opinion is certified for publication with the exception

of parts V and VI.

INTRODUCTION

Despite a grant of immunity, defendant and appellant

Starletta Partee refused to testify against four individuals

charged with a gang-related murder. A jury convicted her of four

felony counts of being an accessory after the fact (Pen. Code,

§ 32)1 and one count of misdemeanor contempt for refusing to

testify (§ 166, subd. (a)(6)).2 The trial court suspended imposition

of sentence and placed defendant on probation for three years.

Defendant raises several arguments on appeal: the

prosecution overreached when it charged her as an accessory for

refusing to testify, she cannot be guilty of being an accessory

because her silence—refusing to testify—is not an affirmative

act, her single act of refusing to testify does not support four

felony convictions, the trial court failed to instruct on the

elements of contempt, her statements to a detective were

admitted into evidence in violation of her Fifth Amendment

rights, and her trial counsel was ineffective for failing to raise the

Fifth Amendment claim. We find no grounds for reversal and

affirm the judgment.

FACTUAL BACKGROUND

The day after a 2006 gang-related murder, City of Los

Angeles police officers found the car they believed the

perpetrators drove and then abandoned. The homicide detective,

John Skaggs, learned the car had been rented by defendant and

1 All statutory references are to the Penal Code.

2 The jury found allegations that the crimes were committed

for the benefit of a criminal street gang were not true. (§ 186.22,

subds. (b)(1).)

2

that she had contacted the rental car office to report it as stolen.

The rental car representative told defendant to file a report with

the Hawthorne Police Department. Meanwhile, Detective Skaggs

contacted the Hawthorne Police Department and asked to be

notified when defendant arrived. Officers from the Los Angeles

Police Department met defendant there and drove her back to

Detective Skaggs’s office.

Detective Skaggs surreptitiously recorded the interview

with defendant. After establishing the rental car had been

involved in a shooting, the detective told defendant, “Even though

I don’t have somebody that says that a young black female shot a

gun out of a car that hurt somebody, any participation you have

and any lies to me, in regards to this investigation, is a crime.”

The interview then focused on what defendant knew about the

involvement of her brother Nehemiah Robinson, her cousin

Toyrion Green, and brothers Bryant and Byron Clark, lifelong

friends she considered “family,” in the shooting. Defendant told

the detective Robinson borrowed the rental car the evening before

to visit a girl. That morning, one of the Clark brothers

telephoned defendant, told her to report the rental vehicle as

stolen and asked to be picked up and given money to pay for a

motel room. When defendant picked 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

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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 she did not testify

because “[f]amily is first.”

DISCUSSION

I. Sections 32 and 166

Defendant was convicted of four counts of being an

accessory after the fact in violation of section 32. Section 32

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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 (Plengsangtip); accord, People v. Tran (2013) 215

Cal.App.4th 1207, 1219, fn. 7 (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.) 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.)

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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.)

II. Prosecutorial Overreaching

Defendant argues charging her with crimes purportedly

carrying a potential 40-year sentence3 constituted prosecutorial

3 The information erroneously indicated each accessory count

carried a potential 10-year enhancement based on section 186.22,

subdivision (b)(1)(C). Subdivision (b)(1)(C) applies where the

crime committed is a violent felony and adds 10 years to a

sentence. Being an accessory after the fact is not a violent felony.

(§ 667.5, subd. (c).) In any event, the jury verdict form specified

section 186, subdivision (b)(1), and the applicable gang

enhancement, subdivision (b)(1)(A), could add two, three, or four

years to the base term. As indicated, however, the jury did not

find the gang allegations to be true.

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overreaching and asks this court to “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,

A misdemeanor contempt conviction is punishable by up to

six months in the county jail. (§§ 19, 166, subd. (a)(6).) A gang

benefit finding under section 186.22, subdivision (d) elevates the

offense from a straight misdemeanor punishable by up to six

months in the county jail to a “wobbler”; subdivision (d) of section

186.22 is an alternate penalty provision that gives the trial court

discretion for sentencing purposes to treat the contempt as a

misdemeanor punishable more severely by up to one year in the

county jail or as a felony punishable by one, two, or three years in

state prison. (§ 186.22, subd. (d); People v. Fuentes (2016) 1

Cal.5th 218, 224; Robert L. v. Superior Court (2003) 30 Cal.4th

894, 897, 909; People v. Arroyas (2002) 96 Cal.App.4th 1439,

1444-1445.)

However, when a defendant is convicted of being an

accessory after the fact for refusing to testify, any sentence for

the misdemeanor contempt conviction based on the same act is

subject to a section 654 stay. (People v. Mesa (2012) 54 Cal.4th

191, 199-200; People v. Louie (2012) 203 Cal.App.4th 388, 399 [“a

single criminal act may result in only one punishment, even if the

defendant harbored multiple objectives”].)

Had the jury found defendant committed the crimes for the

benefit of a criminal street gang, the maximum sentence would

have been 12 years: on count 1, three years (§ 32) plus four years

(§ 186.22, subd. (b)(1)); on counts 2, 3, and 4, an additional eight

months each (§ 32), plus one year per count (§ 186.22, subd.

(b)(1)); and on count 5 (contempt), an additional three years (§§

166, subd. (a)(6), 186.22, subd. (d)) stayed pursuant to section

654. Because the jury did not find the gang allegations to be

true, defendant’s maximum exposure was five years. As noted,

she was given probation.

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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,

for example, the Court of Appeal held evidence adduced at a

preliminary hearing sufficed to support an accessory charge

where the defendant lied to a detective and falsely denied

knowledge of a murder with the intent to shield the murderer. In

In re I.M. (2005) 125 Cal.App.4th 1195, 1203-1206 (I.M.), the

Court of Appeal held substantial evidence supported sustaining a

juvenile delinquency petition where the minor, with the intent

the principal escape prosecution, falsely told police the principal

shot the victim in self-defense or heat of passion. And in People

v. Duty (1969) 269 Cal.App.2d 97, 100-105 (Duty), the Court of

Appeal concluded substantial evidence supported the defendant’s

accessory conviction where he gave a false alibi to the public

investigator with the intent to shield the perpetrator of the crime

from prosecution and punishment.

Under federal law, an individual who refuses to testify

despite an immunity grant with the intent to aid a felon and who

is convicted of criminal contempt may be sentenced by analogy to

the crime of being an accessory after the fact. (E.g., United States

8

v. Brady (1st Cir. 1999) 168 F.3d 574, 576 (Brady); United States

v. Ortiz (7th Cir. 1996) 84 F.3d 977, 978-979 (Ortiz).) This

scenario arises because there is no federal sentencing guideline

specific to criminal contempt. (Brady, supra, 168 F.3d at p. 577;

Ortiz, supra, 84 F.3d at p. 979.) Instead, the United States

Sentencing Guidelines provide that in the case of criminal

contempt, the sentencing court should adopt the sentencing

guideline for the most analogous criminal conduct.4 (U.S.S.G. §§

2J1.1, 2X5.15; Brady, supra, 168 F.3d at p. 576; Ortiz, supra, 84

F.3d at p. 979.)

In Brady, the defendant’s refusal to testify despite

immunity was motivated in part by a desire to frustrate a grand

jury investigation of a robbery-murder and protect his friends.

Accordingly, the sentencing guideline for accessories after the

fact was appropriately applied. (Brady, supra, 168 F.3d at pp.

576-581.) In Ortiz, by contrast, the defendant’s refusal to testify

despite immunity was not designed to assist another defendant to

escape punishment; the defendant simply did not want to testify.

Under those circumstances, it was error to apply the accessory

4 What constitutes the most analogous criminal conduct

presents a mixed question of law and fact. (Brady, supra, 168

F.3d at p. 577.) The federal accessory after the fact statute

provides: “Whoever, knowing that an offense against the United

States has been committed, receives, relieves, comforts or assists

the offender in order to hinder or prevent his apprehension, trial

or punishment, is an accessory after the fact.” (18 U.S.C. § 3.)

5 United States Sentencing Guideline section 2X5.1 provides

in part: “If the offense is a felony for which no guideline

expressly has been promulgated, apply the most analogous

offense guideline.”

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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

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.) 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

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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.)

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; I.M., supra, 125

Cal.App.4th at pp. 1203-1206; Duty, supra, 269 Cal.App.2d at pp.

100-105.) Our holding here is consistent with this prior

decisional authority and does not displace the Legislature’s power

to prescribe punishment for crimes.

III. Sufficiency of the Evidence as to the Accessory

Convictions

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 Court (March 18, 2016, B270799)

[nonpub. order]).

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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; accord, People v. Jones (2011) 51

Cal.4th 346, 370, fn. 4.) 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.) 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.) 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.) 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, citing People v. Nguyen (1993) 21 Cal.App.4th 518, 527, 537-

539.)

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,

12

trial, conviction, or punishment. ( . . . Duty[, supra,] 269

Cal.App.2d [at p.] 104.) 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 [‘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 of her Fifth Amendment privilege has a duty to testify.

(Pen. Code, § 1324; Kastigar v. United States (1972) 406 U.S. 441,

453; People v. Smith (2003) 30 Cal.4th 581, 624.)” (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 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

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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.

IV. One Accessory Count Versus Four

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 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

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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.) 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, 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 against each individual was a separate crime.

People v. Mitten (1974) 37 Cal.App.3d 879 (Mitten), on

which defendant also relies, is less helpful. The defendant was

charged with being an accessory after he helped bury two murder

15

victims’ bodies. (Id. at pp. 881-882.) 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 or omission that is

punishable in different ways by different provisions of law shall

be punished under the provision that provides for the longest

potential term of imprisonment, but in no case shall the act or

omission be punished under more than one provision. An

acquittal or conviction and sentence under any one bars a

prosecution for the same act or omission under any other.”

(§ 654, subd. (a).) Defendant does not explain how any

punishment violated section 654. As noted above, imposition of

sentence was suspended and defendant was placed on probation.

(See People v. Martinez (2017) 15 Cal.App.5th 659, 669 [section

654 claim not ripe for adjudication where imposition of entire

sentence suspended and probation granted]; People v. Wittig

(1984) 158 Cal.App.3d 124, 137 [no double punishment issue

where imposition of sentence suspended and probation granted].)

Moreover, defendant does not explain how section 654 impacts

her convictions. Section 654 prohibits multiple punishment, not

multiple convictions. (People v. Miller (1977) 18 Cal.3d 873, 885.)

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V. The Failure to Instruct the Jury on the Elements of

the Contempt Charged in Count 5

Defendant argues it was reversible error per se to refuse to

instruct the jury on the elements of the contempt charge

including, in particular, the requisite mental state. We agree the

trial court erred, but find the error harmless.

Defendant was convicted of refusing to testify in violation

of section 166, subdivision (a)(6), a misdemeanor. Section 166

states: “(a) . . . a person guilty of any of the following contempts

of court is guilty of a misdemeanor: [¶] . . . [¶] (6) The

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.” Contrary to defendant’s argument, the trial court did

instruct the jury on the requisite mental state, advising the crime

of “refusing to testify at a judicial proceeding as charged in Count

5” required general criminal intent. The trial court further

instructed the jury on the meaning of general criminal intent.6

The court failed, however, to instruct the jury on the remaining

elements of the crime, i.e., that defendant be sworn as a witness

and then refuse to testify. This was error, as a trial court has a

sua sponte duty to instruct the jury on all the elements of a

charged offense. (People v. Merritt (2017) 2 Cal.5th 819, 824.)

6 The instruction read: “The following crime requires a

general criminal intent: refusing to testify at a judicial

proceeding as charged in Count 5. For you to find a person guilty

of this crime, that person must not only commit the prohibited

act or fail to do the required act, but must do so with wrongful

intent. A person acts with wrongful intent when he or she

intentionally does a prohibited act or fails to do a required act;

however, it is not required that he or she intend to break the law.

The act required is explained in the instruction for that crime.”

17

Contrary to defendant’s assertion, a failure to instruct on

the elements of an offense is “amenable to harmless error

analysis.” (People v. Merritt, supra, 2 Cal.5th at p. 831) The

error here was harmless. The information charged defendant

with “refus[ing] to testify in a preliminary hearing” in violation of

section 166, subdivision (a)(6). The evidence at trial was that

defendant had refused to testify at the 2015 preliminary hearing

in the murder case. Defendant admitted refusing to testify. The

prosecutor explained the elements of the crime charged in count

5.7 The prosecutor argued defendant was guilty of that crime

because she refused to testify at the preliminary hearing. As we

have observed, the trial court instructed the jury that the crime

charged in count 5 was “failure to testify at a judicial proceeding.”

The jury’s verdict form likewise identified the crime as “refusing

to testify.” The jurors, whom we presume to be intelligent and

capable of understanding instructions (People v. Bryant (2014) 60

Cal.4th 335, 447), undoubtedly found defendant guilty on count 5

because she refused, with general criminal intent, to testify at

the preliminary hearing. Here, “it is clear beyond a reasonable

doubt that a rational jury would have rendered the same verdict”

7 “I’m going to talk a bit about the law in terms of how it

applies in this case. And we’re going to start with count 5. The

reason we’re going to start with count 5 is because count 5 is the

easiest count in this case. And why do I say it’s the easiest?

Because it has two elements that are undeniable. That the

defendant was called as a witness at the preliminary hearing on

June 11th of 2015. And that the defendant failed to testify. She

had no lawful right [not] to testify. And she willfully disobeyed

the orders of the court. She refused to answer all the questions I

had asked when the court ordered her to answer those

questions.”

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even if it had been specifically instructed on all the elements of

the contempt charged in count 5. (People v. Merritt, supra, 2

Cal.5th at p. 831.)

VI. Defendant’s Statements to Detective Skaggs

Defendant asserts her statements to Detective Skaggs

about the murder should have been suppressed because she was

in custody during the interview and warnings were not given

pursuant to Miranda v. Arizona (1966) 384 U.S. 436. The “in

custody” claim raises questions of fact as to the circumstances of

the interrogation. (Duty, supra, 269 Cal.App.2d at p. 105.) But

defendant did not broach this issue in the trial court.8 As a

result, the parties had no opportunity to litigate the issue and the

trial court had no opportunity to make factual findings as to the

circumstances surrounding defendant’s interaction with the

detective. (People v. Linton (2013) 56 Cal.4th 1146, 1166; People

v. Cruz (2008) 44 Cal.4th 636, 669 (Cruz).) Defendant forfeited

this argument by failing to raise it in the trial court. (Cruz,

supra, 44 Cal.4th at p. 669.)

Anticipating the forfeiture conclusion, defendant argues

her trial counsel was ineffective for failing to challenge the

prosecution’s use of defendant’s statements to the detective. We

conclude defendant has not shown her trial attorney was

ineffective. “To secure reversal of a conviction upon the ground of

8 Defendant did briefly raise this issue during the June 11,

2015 preliminary hearing in the murder case, when defendant

refused to testify, defense counsel argued in part that defendant

had been interrogated in custody without Miranda warnings.

The trial court found the argument irrelevant. Defendant

concedes that ruling was correct.

19

ineffective assistance of counsel under either the state or federal

Constitution, a defendant must establish (1) that defense

counsel’s performance fell below an objective standard of

reasonableness, i.e., that counsel’s performance did not meet the

standard to be expected of a reasonably competent attorney, and

(2) that there is a reasonable probability that defendant would

have obtained a more favorable result absent counsel’s

shortcomings. [Citations.] ‘A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’

[Citations.] [¶] A defendant who raises the issue on appeal must

establish deficient performance based upon the four corners of

the record. ‘If the record on appeal fails to show why counsel

acted or failed to act in the instance asserted to be ineffective,

unless counsel was asked for an explanation and failed to provide

one, or unless there simply could be no satisfactory explanation,

the claim must be rejected on appeal.’” (People v. Cunningham

(2001) 25 Cal.4th 926, 1003; accord, People v. Carrasco (2014) 59

Cal.4th 924, 982.) “When examining an ineffective assistance

claim, a reviewing court defers to counsel’s reasonable tactical

decisions, and there is a presumption counsel acted within the

wide range of reasonable professional assistance.” (People v. Mai

(2013) 57 Cal.4th 986, 1009.)

Here, the record does not show why defendant’s trial

attorney failed to raise a Fifth Amendment claim; he was not

asked to explain. Nor is it established that there simply could be

no satisfactory explanation. Counsel may have concluded there

was little or no basis for a Fifth Amendment objection because

when defendant spoke with the detective she was not a suspect

but a witness who expressed no reservations about talking to the

detective and willingly told him what she had heard and observed

20

in the aftermath of the murder. (See People v. Lucas (1995) 12

Cal.4th 415, 441-442.) Under these circumstances, defendant’s

ineffective assistance claim is more appropriately resolved in a

habeas corpus proceeding. (People v. Mai, supra, 57 Cal.4th at p.

1009.)

21

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION

DUNNING, J. *

I concur:

KRIEGLER, Acting P. J.

* Judge of the Orange Superior Court appointed by the Chief

Justice pursuant to article VI, section 6, of the California

Constitution.

22

The People v. Starletta Partee

B276040

BAKER, J., Concurring in Part and Dissenting in Part

For 82 years, Penal Code section 32 has proscribed

“harbor[ing], conceal[ing] or aid[ing] a principal” in his or her

commission of a prior felony. (Stats. 1935, ch. 436, § 1, p. 1484.)

Today, the majority affirms convictions under this statute that

are, so far as the Attorney General is aware, literally

unprecedented in its 82-year history. (Rec. of Oral Arg. at 17:27-

18:11, 19:11-19:35; see also Resp. Br. at 18-22.) No California

case has ever sanctioned use of Penal Code section 32, the

accessory statute, to mete out felony punishment for a witness

who merely opts to remain silent (as distinguished from a witness

who affirmatively tells some falsehood in a police interview or

while on the witness stand to throw the police or the jury off

track). Indeed, while I cannot claim to have conducted a fully

exhaustive survey, I have discovered no court in any jurisdiction

nationwide that has ever sanctioned this sort of an accessory

after the fact prosecution. (See generally 2 LaFave, Substantive

Criminal Law (3d ed. 2017) § 13.6(a), pp. 547, 555-556 [reviewing

the “great majority of the [accessory after the fact] provisions in

the modern codes [that] specify the kinds of aid which are

proscribed”—including harboring or concealing the criminal,

providing means of avoiding apprehension, concealing or

tampering with evidence, plus “a few jurisdictions [that] have

added the giving of false information in certain circumstances”—

and observing, by contrast, “the mere failure to report the felony

or to arrest the felon will not suffice” to support an accessory

conviction].)

The oddity of today’s decision is no accident, nor is it a

manifestation of the old adage that there must be a first time for

everything. It is rather a product of well-intentioned but flawed

legal reasoning that courts have heretofore avoided: Believing

the statutorily authorized criminal penalty for refusing to testify

(six months in jail) is too light a punishment for refusing to

testify against defendants charged with murder, the majority

blesses the invocation of Penal Code section 32, which imposes a

higher penalty. As I shall discuss, however, authority dating

back at least 50 years explains that resort for what might be

viewed as overly light penalties for contumacious witnesses must

be to the legislative process. (In re McKinney (1968) 70 Cal.2d 8,

12-13 (McKinney); In re Keller (1975) 49 Cal.App.3d 663, 671

(Keller); see also People v. Park (2013) 56 Cal.4th 782, 789 [“It is

the Legislature’s function ‘“to define crimes and prescribe

punishments . . .”’”].) A prosecuting office’s decision to type up

felony charges using a statute ill-suited to the task is no adequate

substitute, and the majority errs by refusing to say so.

I

California has laws that are meant to compel recalcitrant

witnesses to testify—and to punish them when they refuse. The

civil contempt statutes, Code of Civil Procedure sections 1218 and

1219, allow a trial judge that finds a witness in contempt of court

to imprison the witness for five days (with a $1,000 fine), or until

the witness performs the act he or she omitted to perform when

2

being found in contempt (assuming that act “is yet in the power

of the person to perform”). (Code Civ. Proc., §§ 1218, subd. (a),

1219, subd. (a).) Apart from these remedies, California also

provides for criminal contempt punishment of a witness who

refuses to testify when lawfully ordered to do so. Penal Code

section 166 provides that a person who “contumacious[ly] and

unlawful[ly] refus[es] . . . to be sworn as a witness or, when so

sworn, . . . refus[es] to answer a material question” is guilty of a

misdemeanor.1 (Pen. Code, § 166, subd. (a)(6).)

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, 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.) The trial court purported to hold the defendant in

criminal contempt under Penal Code section 166. (Id. at pp. 9-

10.) 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 Legislature could not curtail. (Id.

at p. 10.) 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.) The

Supreme Court acknowledged a trial court’s contempt power

1

A misdemeanor offense, of course, is punishable by six

months in jail and a $1,000 fine. (Pen. Code, § 19.)

3

“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.)

In a case decided seven years later, Keller, supra, 49

Cal.App.3d 663, 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.) The prosecution sought the

professor’s testimony anyway and he refused to answer six

questions concerning the attempted robbery. (Id. at pp. 665-666.)

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.)

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.) 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.) 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

4

effectuate its objective of promoting a recalcitrant witness to

testify . . . .” (Id. at p. 671.) But, importantly, the Court of

Appeal explained this was “not a proper ground on which to

analyze whether one or more 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.

II

Defendant Starletta Partee (defendant) is Nehemiah

Robinson’s sister and Toyrion Green’s cousin. Both men, along

with two 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

5

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 allegation in connection with all five charged

counts, which substantially increased the maximum prison

sentence defendant faced if convicted.2

Defendant proceeded to trial on all five charged counts

against her. The only evidence introduced by the prosecution in

an effort to establish she “harbor[ed], conceal[ed], or aid[ed]”

(Pen. Code, § 32) her brother, cousin, and the other two men was

defendant’s silence in court, i.e., her refusal to take the witness

2

The gang allegation, if found true, would make the

otherwise misdemeanor violation of Penal Code section 166

eligible for punishment as a felony. (Pen. Code, § 186.22, subd.

(d).) In rendering its verdict, the jury in this case found the gang

allegations not true.

6

oath and to answer any questions. Testifying in her own defense,

defendant maintained she refused to testify in the murder case

because she feared gang retribution and because the four

defendants were either actually family or like family to her.

Apparently unpersuaded,3 the jury convicted defendant on all

counts charged against her.

At sentencing, the experienced trial judge declined to

impose anywhere near the maximum authorized custodial

sentence.4 Instead, and likely understanding the issue was no

longer whether defendant could be coerced into testifying against

her brother and the other accused men but rather how severely

she should be punished for refusing to do so, the trial judge

placed defendant on probation for three years.5

The imposition of a probationary sentence, however, does

not make this a no-harm-no-foul case. A felony conviction carries

3

The jury was instructed with CALCRIM No. 440 on the

elements of a Penal Code section 32 violation. The instruction

informed the jury it must find defendant “either harbored,

concealed or aided the perpetrator” after the felony (the alleged

murder) had been committed. The jury was provided no further

definition of the term “aided.”

4

During the sentencing hearing, the judge noted that over

the course of his 45 years in the “business,” this case was “one of

the first times [he had] ever seen a case in which someone is

prosecuted for refusing to testify after they’ve been given full

immunity.”

5

The trial judge stated he found the argument that the four

men charged with murder would have been convicted had it not

been for defendant’s refusal to testify to be “conjecture,

speculation and maybe guesswork.”

7

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.

III

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

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 [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

8

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 (aids, if you will) in

resolving it.6 “[T]he principle of ejusdem generis suggests that

6

Use of the noscitur a sociis canon (People v. Prunty (2015)

62 Cal.4th 59, 73 [“a word literally ‘is known by its associates’”])

would also come to the same point.

9

when ‘“specific words follow general words in a statute or vice

versa,”’ the general words ordinarily are best construed in a

manner that underscores their similarity to the specific words.”

(California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th

924, 939.) With regard to the text of Penal Code section 32, the

general word “aids” follows the more specific words “harbors” and

“conceals,” and a potentially broader understanding of “aids”

should instead be cabined to meanings more akin to “harbors”

and “conceals.”

As we have already seen, there is not even an argument

that what defendant did here would constitute harboring or

concealing. And as a conceptual matter, the common usage of the

words harbor and conceal incorporates an element of affirmative

assistance—the provision of food or shelter, or acts taken to hide

something from view or discovery. (People v. Garnett (1900) 129

Cal. 364, 366 [“The word ‘conceal,’ as here used, means more than

a simple withholding of knowledge possessed by a party that a

felony has been committed. This concealment 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”] (Garnett); see also United States v.

Shapiro (2d Cir. 1940) 113 F.2d 891, 892-893.) Penal Code

section 32’s use of “aids” should be understood similarly, i.e., to

permit conviction only where an accused aids a felon in some

affirmative sense.

This element of affirmative assistance went unsatisfied by

the proof at trial. Defendant’s conduct was entirely passive—

remaining silent when asked to take the witness oath and saying

nothing when the prosecutor posed a series of questions to see if

she would testify. While it might fairly be said defendant refused

10

to aid the prosecution, that does not mean she also thereby aided

her brother and the other accused men within the meaning of

Penal Code section 32.

B

California cases that have addressed the meaning of Penal

Code section 32 support the conclusion I reach. The majority

concludes otherwise by applying precedent incorrectly.

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[ ].)” (People v. Nuckles (2013) 56 Cal.4th 601,

610 (Nuckles); see also Garnett, supra, 129 Cal. at p. 366

[“[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. 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.

11

Furthermore, the Nuckles court cited the Court of Appeal’s

decision in People v. Duty, supra, 269 Cal.App.2d 97 (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.) 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.)

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.) 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.)

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.” (Id. at p. 104.) 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.

12

Plengsangtip (2007) 148 Cal.App.4th 825, 838 [“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 [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. 8.) 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: each involves an affirmative false statement

made by the defendant, not, as here, mere silence that constitutes

passive non-disclosure.7 (Ante at p. 8 [citing Plengsangtip, supra,

7

The majority’s citations to Federal sentencing guidelines

cases are not persuasive for at least two related reasons. First,

the Federal sentencing guidelines are advisory guides to

punishment and the task, when no guideline clearly applies, is to

find one that is most analogous even if dissimilar. The

13

148 Cal.App.4th at pp. 835-839 {“the defendant lied to a

detective”}; In re I.M. (2005) 125 Cal.App.4th 1195, 1203-1206

{the minor “falsely told police the principal shot the victim in self-

defense”}; Duty, supra, 269 Cal.App.2d at pp. 100-105 {the

defendant “gave a false alibi to the public investigator”}].)

Second, the majority argues “defendant’s ‘silence’ was an

overt or affirmative act falling within the terms of [Penal Code]

section 32 because she had a duty to testify” at the murder

suspects’ preliminary hearing. (Ante at p. 13.) As outlined by the

majority, the argument is that she had a duty to testify because

she had been subpoenaed and given immunity, and “‘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.’” (Ante at p. 13.) This

argument proves both too little and too much.

sentencing guidelines have nothing to say about the elements of

an offense, and the majority cites no Federal case that holds a

mere refusal to testify permits a conviction for being an accessory

after the fact. Indeed, in both United States v. Brady (1st Cir.

1999) 168 F.3d 574 and United States v. Ortiz (7th Cir. 1996) 84

F.3d 977, the recalcitrant witnesses were charged with and

convicted of criminal contempt, not being accessories after the

fact. (Brady, supra, at p. 576; Ortiz, supra, at p. 978.) Second, in

the Federal scheme, there is no felony-misdemeanor dichotomy as

there is in California; both criminal contempt and being an

accessory after the fact are punishable as felonies, with the

criminal contempt statute (not the accessory statute as in

California) being the one that authorizes more severe

punishment—up to life in prison. (18 U.S.C. §§ 3, 401; see also

United States v. Wright (1st Cir. 2016) 812 F.3d 27, 31-32.)

14

It is of course true that criminal liability for failure to act

can only attach where there is a duty to act, but that does not

resolve the key question, namely, what criminal liability?

Defendant refused to testify when properly compelled, and there

is a remedy for that: criminal contempt. The majority’s argument

therefore at most proves that defendant was properly convicted of

some criminal offense and offers nothing persuasive to

specifically establish that a conviction for “aiding” her brother

and the other men, within the meaning of Penal Code section 32,

was proper. At the same time, the argument also proves too

much because if this is an “affirmative act” case, the majority

leaves few that would not be; every possibly recalcitrant witness

will get a subpoena, and every such witness, according to the

majority, will therefore have a duty to testify and be an accessory

to the related felony when refusing, so long as there is proof of

the requisite knowledge and intent.8 I see no reason to believe

the Legislature intended to reach so far, and 82 years of criminal

practice in this state tends to show otherwise.

C

So far as I am aware, today’s decision places California on

the extreme outer edge of jurisdictions—indeed, in a group 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

8

The grant of immunity to defendant is beside the point and

therefore does not cabin the majority’s rationale. It is the

subpoena that provides the compulsion—granting immunity

simply removes an otherwise viable objection to complying with

the subpoena.

15

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) using force,

deception or intimidation to prevent or obstruct the criminal’s

discovery or apprehension. To this list, a few jurisdictions have

[also] added the giving of false information in certain

circumstances.” (2 LaFave, supra, § 13.6(a), pp. 555-556,

footnotes omitted [citing state statutes].) None of these

categories extends to mere silence in the face of compulsion to

testify.

Moreover, some sister states have partially or completely

exempted a defendant from accessory liability where the person

who the defendant assists is a close family member. (See, e.g.,

Mass. Gen. Laws, ch. 274, § 4 [“Whoever, after the commission of

a felony, harbors, conceals, maintains or assists the principal

felon or accessory before the fact, or gives such offender any other

aid, knowing that he has committed a felony or has been

accessory thereto before the fact, with intent that he shall avoid

or escape detention, arrest, trial or punishment, shall be an

accessory after the fact . . . . The fact that the defendant is the

husband or wife, or by consanguinity, affinity or adoption, the

parent or grandparent, child or grandchild, brother or sister of

the offender, shall be a defence to a prosecution under this

section”]; Fla. Stat. § 777.03 [“Any person not standing in the

relation of husband or wife, parent or grandparent, child or

grandchild, brother or sister, by consanguinity or affinity to the

offender, who maintains or assists the principal or an accessory

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before the fact, or gives the offender any other aid, knowing that

the offender had committed a crime and such crime was a third

degree felony . . . with the intent that the offender avoids or

escapes detection, arrest, trial, or punishment, is an accessory

after the fact”].)9 California obviously has no similar exemption,

and I do not argue it should. But we as a court should be

especially wary of rendering a decision that makes this state a

marked outlier, particularly when we have not considered all of

the circumstances in which the more severe punishment of the

accessory statute might be used in place of the established

contempt statutory scheme (e.g., for a defendant who declines to

incriminate his or her child when subpoenaed to testify).

IV

If today’s decision stands, accessory charges for recalcitrant

witnesses are now fair game. The majority believes that is a good

thing, and I agree that solving crimes and bringing perpetrators

to justice is undeniably important. But there are countervailing

considerations when deciding how strongly to punish someone

who does not assist in prosecuting crimes, and some 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. But they are

9

Other states do not provide an exemption for certain

familial relationships but do provide for a reduction in

punishment when the felon aided is a close family member. (See

generally 2 LaFave, supra, § 13.6(a), p. 557.)

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arguing in the wrong place. The halls of the capitol in

Sacramento, not Los Angeles-area courtrooms, is where that case

must be made.

Defendant’s Penal Code section 166 conviction is properly

affirmed. I respectfully dissent from the affirmance of

defendant’s four Penal Code section 32 convictions.

BAKER, J.

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