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Accessory After the Fact for Refusing to Testify

Was defendant properly convicted as an accessory after the fact (Pen. Code, 32) for refusing to testify at trial after being subpoenaed as a witness and offered immunity for her testimony?

Defendant's failure to testify pursuant to a subpoena, with a grant of immunity, did not support an accessory to murder conviction because her silence did not fulfill the "overt or affirmative assistance" requirement of the crime. Partee voluntarily spoke with law enforcement during a murder investigation. After four other individuals were charged with the murder, Partee refused to testify under subpoena at the preliminary hearing even though the prosecution granted Partee use immunity. The murder case was dismissed. Partee was convicted of contempt (Pen. Code, 166, subd. (a)(6)) and four felony counts of accessory after the fact to murder (Pen. Code, 32) based on her failure to testify. The Court of Appeal affirmed. The California Supreme Court granted review. Held: Reversed. The crime of accessory requires that (1) a principal, other than the accused, committed a felony; (2) the accused harbored, concealed or aided the principal; (3) with knowledge the principal committed, was charged with, or convicted of the crime; and (4) intended that the principal avoid arrest, conviction or punishment. The question in this case was whether Partee "aid[ed]" the principals within the meaning of the statute. Just as aiding and abetting the commission of a crime require defendant's overt or affirmative assistance to the perpetrator (Pen. Code, 31), the word "aids" in the accessory statute must be read to require the same conduct. A witness's silence in the face of legal compulsion to provide testimony in a criminal trial, even when coupled with a grant of immunity, is not the type of overt or affirmative assistance required for accessory culpability. The court held "that a witness's refusal to testify in the face of a valid subpoena, while punishable as contempt, does not by itself amount to harboring, concealing, or aiding a principal within the meaning of section 32." (People v. Partee (2020) 8 Cal.5th 860 (S248520).) This case was decided on 1/23/2020.

Updated: 1/23/2020

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