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,

Plaintiff and Respondent,

v.

STARLETTA PARTEE,

Defendant and Appellant.

 B276040

 (Los Angeles County

 Super. Ct. No. TA138027)

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.
2

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).)
3

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 
4

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 
5

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.) 
6

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.
7

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.
8

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 
9

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.” 
10

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 
11

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]). 
12

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 selfdefense 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, 
13

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 
14

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 
15

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 
16

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.) 
17

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.”
18

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.” 
19

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. 
20

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 
21

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.)
22

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.
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 
2

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 
3

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.)
4

“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 
5

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 
6

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.
7

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,3the 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.”
8

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 
9

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.
10

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 
11

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.
12

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 selfinterest. 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. 
13

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 
14

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 selfdefense”}; 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.) 
15

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.
16

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 
17

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.)
18

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.