IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

STARLETTA PARTEE,

Defendant and Appellant.

S248520

Second Appellate District, Division Five

B276040

Los Angeles County Superior Court

TA138027

January 23, 2020

Justice Liu authored the opinion of the Court, in which Chief 

Justice Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar, 

Kruger, and Groban concurred.
1

PEOPLE v. PARTEE

S248520

Opinion of the Court by Liu, J.

After voluntarily speaking with law enforcement in the 

course of a murder investigation, defendant Starletta Partee 

declined to testify against four suspects in the ensuing 

prosecution, notwithstanding the compulsion of a subpoena and 

a grant of use immunity. The district attorney then prosecuted 

Partee for her failure to testify. A jury convicted Partee of four 

felony counts of accessory after the fact to murder under Penal 

Code section 32 and one misdemeanor count of contempt of court 

under Penal Code section 166, subdivision (a)(6). The trial court 

sentenced Partee to 365 days in county jail, otherwise 

suspended the imposition of sentence, and placed her on 

probation for three years. The Court of Appeal affirmed.

Partee argues that her failure to testify does not support 

an accessory conviction because her silence does not fulfill the 

“overt or affirmative assistance” requirement of the crime of 

accessory. We agree. Because Partee’s convictions for accessory 

were predicated on her failure to testify, we reverse the 

judgment of the Court of Appeal as to those convictions.

I.

On August 31, 2006, when Partee was 21 years old, she 

reported a rental car stolen. The rental company directed her to 

file a claim with the Hawthorne Police Department. Partee did 

so. When she arrived at the Hawthorne police station, 

detectives from the Los Angeles Police Department met her and 
PEOPLE v. PARTEE

Opinion of the Court by Liu, J.

2

drove her to the office of homicide detective John Skaggs. The 

Los Angeles police had found the car abandoned in a housing 

complex, with bullet indents in the body and a bullet casing 

caught between the hood and windshield. The police believed 

the vehicle was connected to a murder that occurred the night 

before.

Detective Skaggs conducted an interview with Partee, 

which he surreptitiously recorded. In the course of the 

interview, he told Partee, “[Y]ou’re obligated to be completely 

truthful, even if it hurts. . . . If you’re caught lying in some way, 

I would associate you directly with the murder. . . . If you lie to 

me, this much, I will associate you to the commission of that 

crime, okay.” He also said, “What is said in he[re] is between 

you and I. . . . Let’s get that straight now.” At the close of the 

interview, Detective Skaggs stated, “You said, ‘All this was off 

the record.’ Okay. And I told you, ‘Yes.’ My question is, and it’s 

not going to happen, but if the District Attorney or somebody 

said, ‘I need you to come and tell your story to court,’ how would 

you feel?” Partee replied that she would not testify because 

“that’s my family, you help them.” She added that although she 

would not think that her family posed a threat or danger if she 

were to testify, she would be “uncomfortable” because she lived 

in a neighborhood with a strong gang presence. 

Partee’s statements to Detective Skaggs implicated her 

brother Nehemiah Robinson, her cousin Toyrion Green, and her 

friends Bryant and Byron Clark in the murder. Partee told 

Detective Skaggs that Robinson had borrowed the rental car the 

night before. Robinson had told her that he wanted the car to 

go see his girlfriend. At midnight, Robinson called Partee and 

said he was going to park the car elsewhere before returning 

home because he did not want their mother to know that he had 
PEOPLE v. PARTEE

Opinion of the Court by Liu, J.

3

taken the vehicle. The next morning, Robinson still had not 

returned home; Partee thought he was trying to avoid their 

mother because he had not helped with cleaning the house the 

night before. Bryant or Byron Clark then called Partee and 

asked her to pick them up. Partee drove to meet them, and 

Robinson, Green, and the Clarks got out of another woman’s car 

and got into hers. As Partee later told Detective Skaggs, the 

four began recounting to her what had happened the previous 

evening. They told her that they thought they had been set up 

after going to meet a girl who was going to give them money and 

that they “had to get out and start shooting” because “[t]hey 

tried to block us in and shoot us up.” Partee said Robinson, who 

was in the front seat and “just had his head down the whole 

time,” also said, “I think the guy is dead.” 

Despite Detective Skaggs’s representation to Partee that 

“it’s not going to happen,” the district attorney did in fact 

subpoena Partee to testify against Robinson, Green, and the 

Clarks after they were charged with murder. But Partee did not 

appear at their 2008 trial. After Partee could not be found, the 

charges against the four were dismissed. In April 2015, law 

enforcement located Partee. She was subpoenaed and held in 

custody as a material witness. The district attorney reinitiated 

prosecution of the murder case, and at the June 2015 

preliminary hearing in the revived case, the prosecutor 

informed the court that he intended to grant Partee use 

immunity. Partee’s counsel told the court that he had told his 

client that the grant of immunity meant she could not rely on 

the Fifth Amendment to avoid testifying. Partee still declined 

to testify. She remained silent when the court tried to swear her 

in, and she did not answer the prosecutor’s questions. The court 

held Partee in contempt, stating, “You are going to be put in 
PEOPLE v. PARTEE

Opinion of the Court by Liu, J.

4

custody with no bail until such time as you change your mind.” 

The murder charges were subsequently dismissed a second 

time. The court held Partee in custody as a material witness for 

seven and a half months.

The district attorney then charged Partee with four felony 

counts of accessory after the fact to murder and one 

misdemeanor count of contempt. To each count, the district 

attorney added a gang enhancement allegation pursuant to 

Penal Code section 186.22. (All statutory references are to the 

Penal Code unless otherwise noted.) The prosecution was 

predicated on Partee’s failure to testify at the 2015 preliminary 

hearing. 

At trial, Partee took the stand and explained her reasons 

for not testifying in the murder case. The year before, Partee 

had experienced retaliation for working with prosecutors as a 

witness after the murder of her boyfriend. Shortly after that 

murder, Partee’s car was set on fire; when asked whether that 

was “a very traumatic experience,” Partee said, “Yes.” She was 

also shunned by members of her community and endured an 

attempted attack at a store. Partee testified that after she had 

spoken to Detective Skaggs about the underlying murder in this 

case, a woman encountered her at a show and told her that she 

had heard that Partee “was snitching on the homies.” The 

woman told Partee, “You know, I ride for them. I’ll kill for 

them.” The woman also said she would “do something to 

[Partee] for that. I’ll ride for mine.” 

In addition to fearing for her own and her daughter’s 

safety, Partee said that she did not want to alienate her family, 

and she did not want the accused, who were family or like family 

to her, to go to prison for the rest of their lives due to her 
PEOPLE v. PARTEE

Opinion of the Court by Liu, J.

5

testimony. Relocation was not a viable option, Partee said, 

because she was caring for her deceased cousin’s seven children 

and two of her deceased boyfriend’s children. Moreover, 

relocation would require uprooting her daughter from her high 

school honors program. As Partee explained, “[I]t’s impossible 

to escape your entire family to pick up and leave.”

The jury convicted Partee on the four felony counts of 

accessory after the fact to murder and one misdemeanor count 

of contempt, but found the gang allegations not true. The court 

suspended imposition of sentence on the condition that Partee 

serve 365 days in county jail, with credit for time served, and 

three years on probation. At sentencing, the trial court said, 

“[T]hroughout the trial, I think there was some sort of assertion 

that but for Ms. Partee, the four gentlemen who were accused of 

killing [the victim] might have been convicted. [¶] Now, I’ve 

been in this particular business 45 years. . . . [I]t just seems to 

the court to assert that had it not been for Partee’s testimony 

there would have been a conviction, seems to me to be 

conjecture, speculation and maybe guesswork.” 

The Court of Appeal affirmed. (People v. Partee (2018) 21 

Cal.App.5th 630 (Partee).) “[D]espite being held in custody as a 

material witness and offered immunity and relocation,” the 

court explained, “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.” (Id. at p. 638.) The court went on to say,
PEOPLE v. PARTEE

Opinion of the Court by Liu, J.

6

“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.” (Ibid.) While acknowledging that accessory liability 

requires conduct amounting to “ ‘ “overt or affirmative 

assistance to a known felon” ’ ” (id. at p. 639), the court said that 

“[u]nder 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 [the June 2015] preliminary hearing” 

(id. at p. 640).

Justice Baker dissented from this holding. (Partee, supra, 

21 Cal.App.5th at p. 642 (conc. & dis. opn. of Baker, J.).) He 

observed that “[n]o California case has ever sanctioned use of 

Penal Code section 32 . . . 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, . . . I have discovered no court in any 

jurisdiction nationwide that has ever sanctioned this sort of an 

accessory after the fact prosecution.” (Ibid.) “[I]f this is an 

‘affirmative act’ case,” he reasoned, “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.” (Id. at p. 651 (conc. & dis. opn. 

of Baker, J.); see id. at p. 652 (conc. & dis. opn. of Baker, J.) [“If 

today’s decision stands, accessory charges for recalcitrant 

witnesses are now fair game.”].)
PEOPLE v. PARTEE

Opinion of the Court by Liu, J.

7

We granted review.

II.

Refusing to testify in the face of a subpoena, absent a valid 

reason, is a misdemeanor offense under the statute punishing 

contempt of court. (§ 166, subd. (a)(6).) The parties do not 

dispute that Partee was properly convicted of contempt under 

section 166 for refusing to testify at the June 2015 preliminary 

hearing in the murder case against Robinson, Green, and the 

Clarks. The question is whether Partee may be additionally 

punished as an accessory after the fact to murder, a felony under 

section 32.

Section 32 provides: “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.” Construing this statute, we have explained that 

“ ‘[t]he 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. Nuckles (2013) 56 Cal.4th 601, 607

(Nuckles), italics omitted.) The first, third, and fourth elements 

are not at issue here; there is no dispute that Partee possessed 

the knowledge and intent required by section 32 when she 

refused to testify. This case concerns only the second element: 
PEOPLE v. PARTEE

Opinion of the Court by Liu, J.

8

whether Partee, by refusing to testify despite the subpoena, 

“harbor[ed], conceal[ed,] or aid[ed]” the principals charged with 

murder. (§ 32.) More precisely, the Attorney General does not 

contend that Partee “harbor[ed]” or “conceal[ed]” the principals; 

the question is whether Partee “aid[ed]” the principals within 

the meaning of the statute. (Ibid.)

In interpreting the terms “harbors, conceals or aids” in 

section 32, we note that the statute, as originally enacted in 

1872, stated: “All persons who, after full knowledge that a 

felony has been committed, conceal it from the magistrate, or 

harbor and protect the person charged with or convicted thereof, 

are accessories.” (1872 Pen. Code, § 32.) The statute was “a 

codification of the common-law rule” of accessory after the fact 

(Ex parte Goldman, Civ. 199, Supreme Ct. Mins., Mar. 7, 1906) 

and criminalized only affirmative conduct (see People v. Garnett

(1900) 129 Cal. 364, 366 [“Mere silence after knowledge of [a 

felony’s] commission is not sufficient to constitute the party an 

access[o]ry.”]). The Legislature in 1935 amended the statute to 

its current form, adding the term “aids” alongside the terms 

“harbors” and “conceals,” and adding the requirement of intent 

that the principal avoid or escape arrest, trial, conviction, or 

punishment. (Stats. 1935, ch. 436, § 1, p. 1484.) We agree with 

the Attorney General that it is reasonable to infer that the 

Legislature’s addition of the term “aids” was intended to expand 

the scope of prohibited conduct to cover forms of assistance to a 

principal beyond harboring or concealing. But we do not agree 

that the term “aids” plainly covers Partee’s conduct here.

We begin with the text, “giving it a plain and 

commonsense meaning . . . . in the context of the statutory 

framework as a whole.” (Coalition of Concerned Communities, 

Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.) The word 
PEOPLE v. PARTEE

Opinion of the Court by Liu, J.

9

“aids,” in isolation, could be read to cover not only overt action

that provides assistance to a principal, but also passive conduct. 

When the word “aid” was added to section 32 in 1935, it was

commonly understood to mean “[t]o further the interests or 

designs of (another) by assistance or cooperation; to give 

support, help, or succor to; assist.” (Webster’s 2d New Internat. 

Dict. (1935) p. 53.) It is possible for a person to give help, 

support, or assistance to another by affirmatively acting or by 

refraining from acting.

But section 32 does not exist in a vacuum. A neighboring 

provision, section 31, defines the offense of aiding and abetting 

a crime: “All persons concerned in the commission of a crime, 

. . . whether they directly commit the act constituting the 

offense, or aid and abet in its commission, . . . are principals in 

any crime so committed.” Sections 31 and 32 are derived from 

sections 11 and 12 respectively of the Statutes of 1850, which 

predated the Penal Code. (Stats. 1850, ch. 99, §§ 11–12, p. 230.) 

Section 11 defined an “accessory” as one “who stands by and 

aids, abets, or assists; or who not being present aiding, abetting, 

or assisting, hath advised and encouraged the perpetration of 

the crime. He or she who thus aids, abets or assists, advises or 

encourages, shall be deemed and considered as principal, and 

punished accordingly.” Section 12 defined an “accessory after 

the fact” as one who “conceals” a crime or “harbors and protects” 

the perpetrator “after full knowledge that a crime has been 

committed.”

In 1872, these two provisions were enacted as part of the 

Penal Code in the same title, which defines penalties for various 

“[p]arties to [c]rime.” (1872 Pen. Code, § 32.) In 1935, the 

Legislature further aligned sections 31 and 32 by amending

section 32 to its current form, adding the term “aids” alongside 
PEOPLE v. PARTEE

Opinion of the Court by Liu, J.

10

the terms “harbors” and “conceals.” (Stats. 1935, ch. 436, § 1, 

p. 1484.) Thus, “[s]ection 31 and section 32 are interrelated in 

that they are both constituent elements of a single legislative 

scheme — that portion of the Penal Code which defines the 

status of various parties to crime (tit. 2, pt. 1, of the Pen. Code, 

‘Parties to Crime’).” (People v. Elliott (1993) 14 Cal.App.4th 

1633, 1641, fn. 7 (Elliott).)

“One of the fundamental rules of statutory construction is 

that interrelated statutory provisions should be harmonized and 

that, to that end, the same word or phrase should be given the 

same meaning within the interrelated provisions of the law.” 

(Elliott, supra, 14 Cal.App.4th at p. 1641, fn. 7.) With respect to 

section 31, “[i]t is well settled that aiding and abetting the 

commission of a crime require[s] some affirmative action.” 

(People v. Weber (1948) 84 Cal.App.2d 126, 130, italics added; 

accord, People v. Villa (1957) 156 Cal.App.2d 128, 134 [“[T]he 

test is whether the accused in any way, directly or indirectly, 

aided the perpetrator by acts.”]; 1 Witkin, Cal. Criminal Law 

(4th ed. 2019) Introduction to Crimes, § 100 [“A person cannot 

be held guilty as a party . . . if he or she . . . did not take any 

affirmative action when it was committed.”].) The word “aids” 

in section 31 refers only to overt or affirmative forms of 

assistance.

The word “aids” in section 32 must be read in the same 

way. Indeed, this court and the Courts of Appeal have held that 

to aid the perpetrator of a crime after it has been committed, an 

individual must provide “ ‘overt or affirmative assistance’ ” to 

the perpetrator. (Nuckles, supra, 56 Cal.4th at p. 610, quoting 

People v. Duty (1969) 269 Cal.App.2d 97, 104 (Duty).) In 

Nuckles, we said that “[t]he gist of the [section 32] offense is that 

the accused ‘ “harbors, conceals or aids” the principal with the 
PEOPLE v. PARTEE

Opinion of the Court by Liu, J.

11

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.” ’ ” (Nuckles, at p. 610, quoting 

Duty, at p. 104.) Although many “ ‘ “kind[s] of help” ’ ” may 

qualify as harboring, concealing, or aiding a principal under the 

statute, the Court of Appeal and the parties acknowledge, and 

we agree, that the help provided must be in the nature of 

“ ‘ “overt or affirmative assistance.” ’ ” (Nuckles, at p. 610.)

Paradigmatic examples of such assistance include 

disposing of a vehicle that the principal used in committing 

murder (People v. Linville (2018) 27 Cal.App.5th 919, 922) and 

driving the principal away from the scene of an attempted 

murder, suggesting that the principal conceal the gun used in 

the crime, and driving the principal to the site where the 

principal and the defendant concealed the gun, “any of which 

alone might constitute the actus reus of” accessory (People v. 

Gunn (1987) 197 Cal.App.3d 408, 415). On the other hand, 

evidence that a defendant “encouraged [the principal] to run 

away and that he, thereafter, hid with her” has been held 

insufficient for an accessory conviction. (Elliott, supra, 14 

Cal.App.4th at p. 1642; see id. at p. 1642, fn. 9 [“the activities of 

the accused . . . must amount to overt assistance as opposed to 

mere incitement or encouragement”].) These cases have 

understood the word “aid” to mean “ ‘to assist, “to supplement 

the efforts of another.” ’ ” (People v. Bond (1910) 13 Cal.App. 

175, 185; accord, People v. Thurman (1923) 62 Cal.App. 147, 152

(Thurman) [the word “aid” means “a contribution of effort 

supplementing the efforts of another”].)
PEOPLE v. PARTEE

Opinion of the Court by Liu, J.

12

The question in this case concerns a witness’s silence in 

the face of legal compulsion to provide testimony in a criminal 

trial. It is not obvious that such silence — a failure to 

supplement the efforts of the prosecution — amounts to “ ‘overt 

or affirmative assistance.’ ” (Nuckles, supra, 56 Cal.4th at 

p. 610.) An examination of case law concerning witness 

statements as a basis for accessory liability casts significant 

doubt on the statute’s applicability here. 

The Court of Appeal discussed three cases — Duty, supra, 

269 Cal.App.2d 97, In re I.M. (2005) 125 Cal.App.4th 1195 (I.M.), 

and People v. Plengsangtip (2007) 148 Cal.App.4th 825 

(Plengsangtip) — that, in its view, involved “similar 

circumstances” and supply “precedent for an accessory 

conviction under the facts of this case.” (Partee, supra, 21 

Cal.App.5th at p. 636.) These cases are not binding on us and,

in any event, do not support an accessory conviction based on 

Partee’s conduct. In fact, the case law is consistent that a 

refusal to give information or speak to authorities does not by 

itself satisfy the overt or affirmative assistance requirement of 

the accessory offense.

In Duty, supra, 269 Cal.App.2d 97, the defendant gave an 

“inferably false statement” to a city fire marshal investigating 

an arson: He stated that the principal’s car had been in a 

particular location at the time of the crime, but the prosecution’s 

evidence indicated otherwise. (Id. at p. 103.) Upholding a 

section 32 conviction on these facts, the court observed: 

“Whether a falsehood to the police or other public investigators 

may violate the accessory statute is a new question in 

California. According 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 
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Opinion of the Court by Liu, J.

13

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.” (Duty, at 

pp. 103–104, fns. omitted [citing out-of-state decisions].) The 

court then stated the rule that “[a]ny kind of overt or affirmative 

assistance” may satisfy the “harbors, conceals or aids” element 

of section 32 and went on to explain that “[t]he evidence here 

shows more than passive non-disclosure. The jury could 

reasonably find that defendant had actively concealed or aided 

[the principal] by supplying an affirmative and deliberate 

falsehood to the public authorities, a false alibi which removed 

the principal from the scene of her crime and placed her on the 

highway enroute to San Francisco at the time when the fire 

must have been set.” (Duty, at p. 104.)

I.M., supra, 125 Cal.App.4th 1195, similarly involved a 

defendant who made a misleading statement to authorities 

investigating a murder. The court cited Duty for the proposition 

that “[a] person may aid, or attempt to aid, the principal to a 

crime by making false or misleading statements to the 

authorities, and such conduct will support a conviction of 

accessory after the fact.” (I.M., at p. 1203, citing Duty, supra, 

269 Cal.App.2d at p. 104.) The I.M. court upheld an accessory 

conviction based on evidence that the defendant “was 

attempting to protect Victor [the principal] by misrepresenting 

to the police that Victor began to shoot only after” a friend of the 

murder victim had acted in a threatening manner, including by 

“reach[ing] towards his waistband” for a possible weapon. (I.M., 

at p. 1203; see id. at p. 1201 [“The physical evidence was 

inconsistent with the statements by defendant . . . .”].) The 

defendant’s misrepresentation “could be viewed as an attempt 
PEOPLE v. PARTEE

Opinion of the Court by Liu, J.

14

to show that Victor shot under heat of passion, or that Victor 

thought he was acting in self-defense,” thereby aiding Victor in 

avoiding punishment. (Id. at p. 1205.)

Plengsangtip, supra, 148 Cal.App.4th 825, is also similar. 

The court there upheld a conviction under section 32 where the 

defendant told a detective that “he did not see a murder take 

place nor did he see or hear ‘anything unusual’ ” (Plengsangtip, 

at p. 837) on a particular date in a particular area — statements 

that a magistrate judge “reasonably concluded” were “an 

affirmative falsehood” (id. at p. 838). The court reviewed Duty

and I.M., and contrasted those decisions with People v. Nguyen

(1993) 21 Cal.App.4th 518 (Nguyen), which reversed three 

defendants’ convictions for being accessories to a crime of sexual 

assault where “[t]he evidence showed only that the three 

defendants were aware that their cohorts in the robbery were 

committing the sexual assault” but “two of the defendants 

simply refused to talk to the police about the crimes, and the 

third merely admitted he was present at the scene of the robbery 

and downplayed his role. . . .” (Plengsangtip, at pp. 836–837; see 

Nguyen, at pp. 538–539.) Summarizing the law, the court 

explained that “a person generally does not have an obligation 

to volunteer information to police or to speak with police about 

a crime. If the person speaks, however, he or she may not 

affirmatively misrepresent facts concerning the crime, with 

knowledge the principal committed the crime and with the 

intent that the principal avoid or escape from arrest, trial, 

conviction, or punishment.” (Plengsangtip, at p. 837, citing 

Duty, supra, 269 Cal.App.2d at pp. 103–104.) On the facts 

presented, the court rejected the defendant’s contention that 

“his statements to [the detective] amounted to no more than a 

failure on his part to report a crime. . . .” (Plengsangtip, at 
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Opinion of the Court by Liu, J.

15

p. 838.) The court instead concluded that “[t]hese statements 

were affirmative representations of positive facts” comprising 

“an overt attempt to change the picture of what happened [at 

the murder scene] and thereby shield [the principal] from 

prosecution.” (Ibid.)

Thus, neither Duty, I.M., nor Plengsangtip provides 

“precedent for an accessory conviction under the facts of this 

case.” (Partee, supra, 21 Cal.App.5th at p. 636.) All three cases 

upheld accessory convictions on the basis of affirmative and 

misleading statements made to investigating authorities, 

whereas Partee’s accessory conviction was based on her refusal 

to make any statement at all during the June 2015 preliminary 

hearing. We do not decide whether an affirmative misstatement 

is sufficient to form the basis of an accessory charge. But we 

agree that “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. 836.) 

Other cases are in accord. (See Shortridge v. Municipal 

Court (1984) 151 Cal.App.3d 611, 620 & fn. 10 (Shortridge) [a 

construction of section 32 that does not “permit adults to 

‘harbor, conceal or aid’ a juvenile who has committed a felony” 

will not “place parents of wayward children in the dilemma of 

choosing whether to inform on their children or risk criminal 

punishment by remaining silent” because “[m]ere passive 

nondisclosure is not the type of activity which renders one an 

accessory”]; People v. Harris (1980) 105 Cal.App.3d 204, 213 

[officer’s justified “belief that Ms. Devlin had knowingly given 

[another officer] false information so as to facilitate appellant’s 

escape from arrest” supported probable cause to arrest Ms. 

Devlin for violating section 32].)
PEOPLE v. PARTEE

Opinion of the Court by Liu, J.

16

The dissenting justice in the Court of Appeal below found 

“no court in any jurisdiction nationwide that has ever 

sanctioned this sort of an accessory after the fact prosecution.” 

(Partee, supra, 21 Cal.App.5th at p. 642 (conc. & dis. opn. of

Baker, J.).) Our own research has likewise found no case on 

point. The Attorney General acknowledges “[t]he absence of 

specific precedent on this issue” but offers two theories as to why 

Partee’s conduct constitutes overt or affirmative assistance 

under section 32.

First, like the Court of Appeal, the Attorney General 

underscores that Partee’s conduct was not “a mere failure to 

report a crime to authorities” but rather a “refus[al] to testify in 

the face of a legal duty.” It is true that the cases above do not 

address scenarios involving a valid subpoena. And the subpoena 

here along with the grant of use immunity distinguishes this 

case from Nguyen, where two defendants who refused to talk to 

the police had no legal duty to do so. (See Nguyen, supra, 21 

Cal.App.4th at p. 539 [“Obviously the exercise of the 

constitutional right to remain silent cannot be the basis for 

conviction as an accessory.”].)

But the Attorney General does not explain how a legal 

duty to testify transforms Partee’s silence from “merely passive” 

conduct to “overt or affirmative assistance” under section 32. 

There is no question that a refusal to comply with a valid 

subpoena is grounds for criminal liability under the contempt 

statute, and Partee was duly convicted of contempt. (§ 166, 

subd. (a)(6) [providing for misdemeanor liability for “[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”]; see In re McKinney (1968) 70 Cal.2d 8, 12; In re Keller

(1975) 49 Cal.App.3d 663, 670–671.) But Partee’s defiance of a 
PEOPLE v. PARTEE

Opinion of the Court by Liu, J.

17

subpoena did not alter the essential character of her conduct, 

which was “the refusal to give information.” (Plengsangtip, 

supra, 148 Cal.App.4th at p. 836.) Inaction in the face of a legal 

duty to act is still inaction. Were we to hold otherwise, it is 

plausible that “every possibly recalcitrant witness will get a 

subpoena,” and felony “accessory charges for recalcitrant 

witnesses are now fair game.” (Partee, supra, 21 Cal.App.5th at 

pp. 651, 652 (conc. & dis. opn. of Baker, J.).) This includes 

“parents of wayward children” who, if served with a valid 

subpoena, would face “the dilemma of choosing whether to 

inform on their children or risk criminal punishment by 

remaining silent.” (Shortridge, supra, 151 Cal.App.3d at p. 620, 

fn. 10.) It would even mean that crime victims can be convicted 

as accessories to the very crimes perpetrated against them if 

they decide not to testify after being subpoenaed and offered 

immunity. For example, victims of domestic violence could be 

forced to choose between testifying against an intimate partner

or being convicted as accessories to their own assault. Section 

32 has never been construed to reach that far.

Further, we note that the law offers protections for certain 

crime victims that prohibit them from being held in custody for 

contempt for refusing to testify, but there is no similar exception 

for an accessory after the fact. (See Code Civ. Proc., § 1219, 

subd. (b) [“a court shall not imprison or otherwise confine or 

place in custody the victim of a sexual assault or domestic 

violence crime for contempt if the contempt consists of refusing 

to testify concerning that sexual assault or domestic violence 

crime”].) It would be quite odd if a victim of sexual assault or 

domestic violence could not be held in custody for contempt for 

refusing to testify, but could be prosecuted under the same 

circumstances as an accessory after the fact. 
PEOPLE v. PARTEE

Opinion of the Court by Liu, J.

18

Second, the Attorney General contends that unlike 

witnesses who “refuse to testify or feign ignorance based on fears 

of retribution,” a recalcitrant witness who disobeys a court order 

with the intent to help another evade prosecution has rendered 

overt or affirmative assistance within the ambit of section 32. 

But this distinction appears illusory because any witness who 

refuses to give incriminating testimony against a principal —

whether out of personal loyalty, fear of retribution, or distrust 

of the justice system — could reasonably be said to possess a 

specific intent to help the principal evade punishment. And to 

the extent that the Attorney General argues that a specific 

intent to help a principal evade prosecution transforms a 

witness’s silence into overt or affirmative assistance, we reject 

such a conflation of section 32’s mens rea and actus reus 

requirements. Our precedent makes clear that “ ‘the intent that 

the principal avoid or escape from arrest, trial, conviction, or 

punishment’ ” (Nuckles, supra, 56 Cal.4th at p. 607, italics 

omitted) is an element of the crime of accessory that is separate 

and distinct from the requirement of “ ‘ “overt or affirmative 

assistance” ’ ” (id. at p. 610). Partee’s intent that the principals 

avoid punishment did not transform her silence into overt or 

affirmative assistance, nor did it transform her misdemeanor 

offense of contempt into four felony offenses of accessory after 

the fact to murder.

CONCLUSION

We hold 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 within 

the meaning of section 32. In so holding, we decline to “place[] 

California on the extreme outer edge of jurisdictions — indeed, 

in a group unto itself — concerning the reach of accessory after 
PEOPLE v. PARTEE

Opinion of the Court by Liu, J.

19

the fact punishment.” (Partee, supra, 21 Cal.App.5th at p. 651 

(conc. & dis. opn. of Baker, J.).) 

The crime of contempt is the vehicle that the Legislature 

has provided “ ‘to enable the courts to vindicate their authority 

and maintain the dignity and respect due to them’ ” when 

confronted with a recalcitrant witness. (In re McKinney, supra, 

70 Cal.2d at p. 12.) Misdemeanor contempt is punishable by one 

year in jail and a $1,000 fine. (§ 19.) If the contempt was 

committed “for the benefit of, at the direction of, or in association 

with any criminal street gang,” as was alleged but not proven in 

this case, it can be punished as a felony with a sentence of one, 

two, or three years. (§ 186.22, subd. (d); see also § 1332, 

subd. (b) [material witness who refuses to appear and testify 

may be held in custody “until the witness complies or is legally 

discharged”].) We decline to add to this authority the power to 

punish a recalcitrant witness as an accessory after the fact.

We reverse the judgment of the Court of Appeal with 

respect to Partee’s four convictions under section 32.

LIU, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Partee 

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding 

Review Granted XXX 21 Cal.App.5th 630

Rehearing Granted

__________________________________________________________________________________

Opinion No. S248520

Date Filed: January 23, 2020

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Allen J. Webster, Jr.

__________________________________________________________________________________

Counsel:

Paul Kleven, under appointment by the Supreme Court, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, 

Assistant Attorney General, Louis W. Karlin, Scott A. Taryle, Stacy S. Schwartz, Colleen M. Tiedemann 

and Ilana Herscovitz Reid, Deputy Attorneys General, for Plaintiff and Respondent.

Jackie Lacey, District Attorney (Los Angeles), Phyllis C. Asayama and Kenneth Von Helmolt, Deputy 

District Attorneys, for Los Angeles County District Attorney as Amicus Curiae on behalf of Plaintiff and 

Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Paul Kleven

Law Office of Paul Kleven

1604 Solano Avenue

Berkeley, CA 94707

(510) 528-7347

Colleen M. Tiedemann

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6599