People v. Partee ( 2020 )

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.
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
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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
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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
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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
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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,
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“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.”].)
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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:
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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
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“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
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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
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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”].)
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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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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
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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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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].)
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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
16
PEOPLE v. PARTEE
Opinion of the Court by Liu, J.
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.
17
PEOPLE v. PARTEE
Opinion of the Court by Liu, J.
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
18
PEOPLE v. PARTEE
Opinion of the Court by Liu, J.
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.
19
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 630Rehearing 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