21 Cal. App. 5th 630
Cal. Ct. App. 5th2018Background
- In 2006 a gang-related shooting occurred; police traced the rented getaway car to Starletta Partee, who told investigators details implicating four relatives/friends (Nehemiah Robinson, Toyrion Green, Bryant Clark, Byron Clark).
- Partee failed to appear as a subpoenaed witness in 2008; the murder case was dismissed. She was later located, subpoenaed, given immunity and offered relocation, but refused to testify at the 2015 preliminary hearing and was held in contempt; the murder charges again were dismissed.
- The People charged Partee with four felony counts of accessory after the fact (one as to each accused) (Pen. Code § 32) and one misdemeanor count of contempt for refusing to testify (Pen. Code § 166(a)(6)).
- At Partee’s trial she testified she refused to testify out of fear of gang retaliation and loyalty to family; the jury convicted on all five counts. The trial court suspended judgment and placed her on probation with a jail term condition.
- On appeal Partee challenged (inter alia): prosecutorial overreaching in charging accessories for silence; whether silence (a refusal to testify) can be an "affirmative act" under § 32; whether one act can support four accessory convictions; and instructional and Fifth Amendment issues. The Court affirmed the convictions.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Partee) | Held |
|---|---|---|---|
| 1. Prosecutorial overreaching: may refusing to testify be charged under § 32? | Charging as accessory is permissible where witness’s refusal with intent to shield principals prevented prosecution; courts have upheld similar prosecutions. | Charging accessory counts for refusal to testify (potentially long exposure) is overreaching and undermines contempt remedies; issue forfeited at trial. | Forfeiture: Partee did not preserve the claim; on the merits the court found no authority precluding accessory charges where refusal was intended to help principals and thus prosecution not improper. |
| 2. Can silence/refusal to testify satisfy the “harbor, conceal or aid” element of § 32 (i.e., must an affirmative act exist)? | Where a subpoenaed witness granted coextensive immunity has a legal duty to testify, failure to act (silence) can be an ‘‘overt or affirmative’’ act because it violates that duty; prior false statements and other acts showed intent to shield. | Mere passive silence is not an affirmative act; § 32 historically requires some affirmative assistance (harboring, concealing, giving false alibi). Charging silence as aiding expands § 32 beyond precedent. | The court held silence here, given subpoena/immunity (duty to testify) and attendant conduct (false report, providing aid), constituted an overt/affirmative act supporting § 32 convictions. |
| 3. May a single refusal to testify support multiple accessory counts (one per principal)? | Each count alleged aid to a different principal; refusal to testify aided each principal’s ability to avoid trial, so separate convictions are proper. | A single act cannot underlie multiple accessory convictions; double punishment issues and § 654 concerns. | Court held separate counts valid because defendant aided multiple principals; § 654 bars multiple punishment but not multiple convictions and was inapplicable given suspended sentence/probation. |
| 4. Adequacy of contempt remedy / separation of powers concern | § 32 addresses conduct beyond simple contempt when intent is to shield suspects; contempt penalties may be inadequate where witness behavior thwarts prosecution. | Allowing accessory prosecutions for refusal to testify circumvents legislative limits on contempt penalties and creates unprecedented expansion of § 32; remedy for inadequate penalties is legislative, not judicial. | Court rejected separation-of-powers objection, distinguishing simple contempt from conduct intended to aid suspects; affirmed accessory convictions. |
Key Cases Cited
- People v. Duty, 269 Cal.App.2d 97 (1969) (affirmative falsehood to investigators can constitute aiding/ concealment under § 32)
- People v. Plengsangtip, 148 Cal.App.4th 825 (2007) (false statements to police and active deception can support accessory charge)
- In re I.M., 125 Cal.App.4th 1195 (2005) (juvenile’s false statements shielding principal supported delinquency petition as aiding)
- People v. Garnett, 129 Cal. 364 (1900) (mere silence/passive nondisclosure generally insufficient for accessory liability)
- People v. Nuckles, 56 Cal.4th 601 (2013) (§ 32 requires overt or affirmative assistance; recaps Duty principle)
- In re McKinney, 70 Cal.2d 8 (1968) (Legislature’s contempt sanctions furnish limits on contempt power; courts should not expand inherent powers to alter penalties)
- United States v. Brady, 168 F.3d 574 (1st Cir. 1999) (federal sentencing analogies: refusal to testify despite immunity may be treated under accessory guideline when refusal intended to protect co-defendants)
- United States v. Ortiz, 84 F.3d 977 (7th Cir. 1996) (distinguishes cases where refusal was not intended to aid another; sentencing analogy inapplicable)