21 Cal.App.5th 630
Cal. Ct. App.2018Background
- In 2006 a gang-related murder led police to a rental car rented by Starletta Partee; she reported it stolen and later told a detective she transported and helped four relatives/friends who fled the scene.
- The four men (Robinson, Green, Bryant Clark, Byron Clark) were charged with murder; Partee was subpoenaed in 2008 but did not appear and the case was dismissed.
- In 2015 Partee was located, subpoenaed, held as a material witness, granted immunity and offered relocation, but she refused to testify at the preliminary hearing; the murder charges were again dismissed.
- Partee was then charged with four counts of accessory after the fact (Pen. Code § 32)—one as to each accused—and one count of misdemeanor contempt for refusing to testify (Pen. Code § 166(a)(6)).
- At her trial Partee testified she refused to testify out of fear, family loyalty, and to protect her daughter; the jury convicted on all counts, and the trial court suspended sentencing and granted probation.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Partee) | Held |
|---|---|---|---|
| Prosecutorial overreach: charging accessory for refusing to testify | Charging as accessory was proper to punish and deter witness conduct that thwarted prosecution | Prosecutorial overreach; contempts suffice and felony exposure is disproportionate | Forfeited at trial; in any event court found accessory prosecution permissible under precedent and affirmed |
| Silence as an "affirmative act" for § 32 | Partee’s refusal to testify, after subpoena and immunity, was an omission under a legal duty and thus an overt/affirmative act that aided principals avoid trial | Mere silence/non-testimony is passive and cannot satisfy the affirmative-act element of an accessory offense | Court held silence here was an affirmative omission because Partee had a legal duty (subpoena + immunity) and substantial evidence supported intent to aid principals; affirmed accessory convictions |
| Multiple accessory counts from a single refusal | Each count charged Partee with aiding a distinct principal; prosecution may charge separate counts against each principal she aided | A single act (one refusal) cannot support multiple accessory convictions | Court held separate convictions proper because the refusal aided four distinct principals; convictions as to each sustained |
| Failure to instruct on elements of contempt (mental state and elements) | Instructions given on general intent; court omitted explicit elements (being sworn and refusing to answer) | Omission was reversible error per se | Court found the omission was error but harmless beyond a reasonable doubt given the evidence and prosecutor’s arguments; contempt conviction affirmed |
| Suppression (Miranda) and ineffective assistance for not raising it | Statements to Detective Skaggs were admissible; no timely motion below | Partee argues her custodial statements should have been suppressed; counsel ineffective for not moving to suppress | Court held Miranda claim forfeited by failure to litigate below; ineffective-assistance claim not shown on record and more appropriate for habeas review |
Key Cases Cited
- People v. Plengsangtip, 148 Cal.App.4th 825 (Cal. Ct. App.) (affirmative falsehoods to police can support accessory charge)
- People v. Duty, 269 Cal.App.2d 97 (Cal. Ct. App.) (false alibi/falsehood to investigators may constitute affirmative aid supporting accessory liability)
- People v. Garnett, 129 Cal. 364 (Cal.) (mere silence after knowledge of a felony is insufficient; concealment implies affirmative act)
- People v. Nuckles, 56 Cal.4th 601 (Cal.) (accessory-after-the-fact requires overt or affirmative assistance to a known felon)
- People v. Merritt, 2 Cal.5th 819 (Cal.) (failure to instruct on crime elements is subject to harmless-error review)
- Miranda v. Arizona, 384 U.S. 436 (U.S.) (custodial interrogation requires warnings)
- United States v. Brady, 168 F.3d 574 (1st Cir.) (in federal sentencing, contempt by refusal to testify despite immunity may be analogized to accessory conduct for guideline purposes)