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California Supreme Court: Refusing to Testify Insufficient to Constitute Accessory After the Fact

The Supreme Court of California held that a defendant with alleged knowledge of a crime cannot be prosecuted under Penal Code § 32 as an accessory after the fact to the crime for refusing to testify when presented with a valid subpoena.

In 2006, Starletta Partee allowed her brother to borrow her rental car, which she learned later was used in the commission of a murder. When she tried to report the car as stolen, she was questioned by a homicide detective who surreptitiously recorded the interview. She told the detective what she knew about her brother’s conduct on the condition that it was off the record, because she had previously been harassed and intimidated after testifying when her boyfriend had been murdered.

Shortly thereafter, her brother, cousin, and their two friends were charged each with one count of murder. Partee could not be located in time for the 2008 trial, so the charges were dismissed.

In April 2015, law enforcement located Partee and took her into custody as a material witness. The charges against the four were reinstated, and Partee was granted use immunity for testifying, which meant she could not rely on the Fifth Amendment to avoid taking the stand. She refused to testify anyway, even in the face of a prosecution for contempt of court under Penal Code § 166(a)(6). After seven-and-a-half months in jail, she also was charged with four counts of being an accessory after the fact to the murder for refusing to testify. She was ultimately convicted, given credit for time spent in jail, and placed on probation for three years.

On appeal to the California Supreme Court, she argued that her conduct did not rise to the level of an “affirmative act” required for conviction as an accessory, simply for failing to speak.

The Court has previously found the accessory statute to include four 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. Nuckles, 298 P.3d 867 (Cal. 2013).

The parties agreed that the first, third, and fourth elements were satisfied and that Partee neither harbored nor concealed the principals. The question is whether by not testifying she “aided” them in avoiding prosecution. The State argued that her failure to testify, coupled with the result that such failure allowed the principals to escape punishment, amounts to the requisite finding of the elements of the crime.

The Court, reiterating the finding from Nuckles, stated that the word ‘aids’ in this context requires “overt or affirmative assistance.” When considering other cases where defendants have been convicted and affirmed on appeal as an accessory, the Court noted that lying to investigators qualifies. People v. Duty, 269 Cal. App. 2d 97 (1969). And so does driving the principal away from the scene of an attempted murder. People v. Gunn, 197 Cal. App. 3d 408 (1987). On the other hand, mere “incitement or encouragement” are not sufficient under the statute. People v. Elliot, 14 Cal. App. 4th 1633 (1993).

The Court refused to conflate Partee’s intent (the fourth element) with the necessary overt act (the second element), explaining that to do so would “place California on the extreme outer edge of jurisdictions — indeed, in a group unto itself” and make “accessory charges for recalcitrant witnesses … now fair game.” Thus, the Court held that “a witness’s refusal to testify in the face of a valid subpoena, while punishable as contempt, does not by itself amount to harboring, concealing, or aiding a principal” for purposes of the statute. 

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Related legal case

People v. Partee

 

 

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