Filed 4/22/13




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S200612
           v.                        )
                                     )                       Ct.App. 5 F061562
JANE NUCKLES,                        )
                                     )                          Kings County
           Defendant and Appellant.  )                    Super. Ct. No. 09CM3022
____________________________________)


        An accessory is a 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 . . . .” (Pen. Code,1 § 32, italics added.) Here, we
conclude that a person who intentionally aids a parolee in absconding from parole
supervision qualifies as an accessory. The judgment of the Court of Appeal,
reaching the same conclusion, is affirmed.
                                I. BACKGROUND
        Adam Gray was convicted of dissuading a witness from testifying2 and
sentenced to state prison for two years. He was released in July 2008 and paroled


1       Subsequent statutory references will be to the Penal Code.
2       Section 136.1, subdivision (a)(1).



                                          1
to Kern County. As a condition of his parole, he was not to leave that county
without his parole officer‟s permission. In July 2009, Gray‟s parole officer
determined Gray had absconded from parole and a warrant was issued for his
arrest.
          Defendant, Jane Nuckles, was close with Gray and considered him her son-
in-law because Gray and defendant‟s daughter had a child together. Defendant
and her boyfriend, John Amaral, lived in adjacent Kings County. In August 2009,
at defendant‟s invitation, Gray and his new girlfriend, Brea Hays, moved into
defendant‟s house. Defendant and Amaral shared the single bedroom. Gray and
Hays slept on the living room floor. Amaral testified that, later in the month, Gray
was featured as a wanted fugitive in the “Crime Stoppers” section of the local
newspaper. Defendant, Gray, and Hays were happy with the notoriety and
celebrated Gray‟s inclusion in the column. Amaral told defendant he worried that
harboring Gray would result in defendant‟s own parole being revoked. Defendant
dismissed the concern, saying she would “take a bullet” for Gray and told Amaral
not to tell anyone about him. Amaral later overheard defendant, Gray, and Hays
making contingency plans should police arrive at the house. Defendant told Gray
and Hays to hide in the basement by going through a trap door hidden in the
bedroom closet.
          On September 3, 2009, Amaral called the Crime Stoppers hotline and
reported that Gray was at his house. Police found Gray hiding in the garage. Hays
was found in the bedroom climbing out of the trap door to the basement. The
officers found several large duffel bags in the garage containing clothes, stereo
equipment, pry bars, bolt cutters, and papers belonging to Gray and Hays. They
also found a handgun, ammunition, cleaning kit, and pepper spray in the garage.
Amaral told officers these items did not belong to him or defendant. Gray was
found in violation of his parole and returned to state prison for six months.

                                          2
       Defendant testified and denied Gray was living with her. She claimed Gray
only visited a few times in August 2009. Seeing the Crime Stoppers article, she
confronted Gray, who admitted he had absconded from parole. She ordered Gray
to immediately collect his belongings and leave. She denied telling Gray and
Hays about the trap door in the bedroom.
       After the jury convicted her of being an accessory, defendant admitted she
had served a prior prison term.3 Defendant was sentenced to state prison for four
years, which consisted of the upper term of three years for being an accessory and
a consecutive one-year term for her prison prior.
       On appeal, defendant argued the act of assisting a parolee abscond from
supervision did not satisfy the statutory definition of an accessory. The Court of
Appeal disagreed and affirmed her conviction. We do likewise.
                                 II. DISCUSSION
       Parties to crimes are either principals or accessories. (§ 30.) Principals are
defined as “[a]ll persons concerned in the commission of a crime, . . . 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;
see also People v. Calhoun (2007) 40 Cal.4th 398, 402.) Under section 32, an
accessory is one “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 . . . .” “The crime of accessory consists of the following
elements: (1) someone other than the accused, that is, a principal, must have


3      Sections 32, 667.5, subdivision (b).



                                          3
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, italics added
(Plengsangtip); see also People v. Prado (1977) 67 Cal.App.3d 267, 271.)
       Defendant first argues she could not have violated section 32 for assisting
an absconding parolee because being an accessory requires providing assistance to
a principal after he has committed a felony and a parole violation may be based on
a misdemeanor, infraction, or no crime at all. She further suggests that aiding an
absconding parolee lacks a “logical, temporal, and facilitative nexus between the
principal‟s engagement in the felony and the aid provided to him.”
       These arguments miss the mark. For purposes of section 32, the relevant
felony here is Gray‟s conviction for dissuading a witness, not any conduct in
violating his parole. Indeed, if defendant knowingly helped Gray violate his
parole by assisting him in the commission of a new crime, she could be liable of
aiding and abetting under section 31, not as an accessory under section 32.
Section 971 abolished the common law distinction between accessories before the
fact and principals and states that “all persons concerned in the commission of a
crime . . . shall hereafter be prosecuted, tried and punished as principals. . . .”
Section 32 applies not only to those who help felons avoid capture or conviction,
but also to those who help them “avoid or escape from . . . punishment.” Thus, if
defendant intentionally helped Gray avoid some aspect of punishment for his
felony conviction, there was a sufficient nexus between her aid and Gray‟s felony
to bring her conduct within the ambit of section 32.
       Defendant argues she did not help Gray avoid punishment for his
conviction because his period of parole is not part of the punishment imposed for

                                            4
that offense. She asserts that Gray served his prison sentence, and any
“punishment” Gray might receive for violating his parole constitutes an
“administrative sanction” different from, and in addition to, his punishment for the
underlying felony. The People counter that parole supervision is a direct
consequence of a felony conviction and constitutes punishment for the felony.
Thus, they urge, to the extent defendant helped Gray abscond from parole
supervision, she has helped him escape a portion of his punishment.
       These competing arguments focus on the nature of parole and whether it
constitutes part of the punishment for the underlying crime. It does. Defendant‟s
argument to the contrary mistakenly equates punishment for an offense with the
sentence imposed for that offense. As defendant observes, former section 33 made
being an accessory a felony with an unspecified state prison term, which, under
former section 18, meant imprisonment in the state prison for 16 months, two, or
three years.4 However, contrary to defendant‟s argument, nothing in the language
of section 18 limits the concept of punishment solely to the prison term prescribed
for the offense. Indeed, section 18 is silent about other aspects of a sentence, such
as fines, that also amount to punishment. (See People v. Souza (2012) 54 Cal.4th
90, 143 [“It is well established that the imposition of restitution fines constitutes
punishment, and therefore is subject to the proscriptions of the ex post facto clause
and other constitutional provisions.”].)




4      The Criminal Justice Realignment Act of 2011 has subsequently modified
the law to provide that certain felonies, including being an accessory, are subject
to terms in county jail rather than state prison, and certain offenders are subject to
community supervision rather than parole. (See §§ 33, 1170, subd. (h), 3000.08,
subd. (b), see also Stats. 2011, ch. 15, §§ 232, 450, 469.) This act is not at issue
here.



                                           5
       The concept of punishment is broader than the term of imprisonment. “The
determinate sentencing law, which governs sentencing of adult offenders who
have committed a crime for which a „statute specifies three possible terms,‟
requires the trial court to choose a set term (Pen. Code, § 1170, subd. (b)) — a
lower, middle, or upper term — from the adult tripartite sentencing scheme.” (In
re Julian R. (2009) 47 Cal.4th 487, 496.) “[U]nder the present law the prison
„term‟ is the actual time served in prison before release on parole, and the day of
release on parole marks the end of the prison term. . . . [T]he period of parole is
not part of a defendant‟s prison term, and the length of time an offender may
remain on parole or may be incarcerated for a parole violation is measured by
statutory provisions setting the maximum parole period for most offenses at three
years and establishing the maximum period of confinement for a parole violation
at one year.” (People v. Jefferson (1999) 21 Cal.4th 86, 95-96; see §§ 3000, subd.
(b)(1), 3057, subd. (a).) “It is apparent that a term of imprisonment and the onset
of parole are distinct phases under the legislative scheme. [Citations.] . . . [T]he
general objectives of sentencing include protecting society, punishing offenders,
deterring future crimes, and treating with uniformity those committing the same
types of offenses [citations], whereas the objective of parole is, through the
provision of supervision and counseling, to assist in the parolee‟s transition from
imprisonment to discharge and reintegration into society.” (In re Roberts (2005)
36 Cal.4th 575, 589-590 (Roberts).)
       Although parole constitutes a distinct phase from the underlying prison
sentence, a period of parole following a prison term has generally been
acknowledged as a form of punishment. “[P]arolees are on the „continuum‟ of
state-imposed punishments.” (Samson v. California (2006) 547 U.S. 843, 850
(Samson).) Further, parole is a form of punishment accruing directly from the
underlying conviction. As the Attorney General observes, parole is a mandatory

                                          6
component of any prison sentence. “A sentence resulting in imprisonment in the
state prison . . . shall include a period of parole supervision or postrelease
community supervision, unless waived . . . .” (§ 3000, subd. (a)(1).) Thus, a
prison sentence “contemplates a period of parole, which in that respect is related to
the sentence.” (Roberts, supra, 36 Cal.4th at p. 590.) Being placed on parole is a
direct consequence of a felony conviction and prison term. A defendant pleading
guilty to a felony must be informed that a period of parole is a direct consequence
of such plea. (In re Moser (1993) 6 Cal.4th 342, 351-352.) “A consequence is
deemed to be „direct‟ it if has „ “ „a definite, immediate and largely automatic
effect on the range of the defendant‟s punishment.‟ ” ‟ [Citation.]” (People v.
Moore (1998) 69 Cal.App.4th 626, 630; see also People v. Aguirre (2011) 199
Cal.App.4th 525, 528.) Such is the case with the requirement of parole.
       Further, a convicted felon released on parole is subject to substantial
restraints on his liberty and is deemed to remain in the constructive custody of the
Department of Corrections and Rehabilitation. (People v. Bacon (2010) 50
Cal.4th 1082, 1127; see also People v. Nicholson (2004) 123 Cal.App.4th 823,
832.) As the United States Supreme Court has explained: “A California inmate
may serve his parole period either in physical custody, or elect to complete his
sentence out of physical custody and subject to certain conditions. [Citation.]
Under the latter option, an inmate-turned-parolee remains in the legal custody of
the [former] California Department of Corrections through the remainder of his
term [citation], and must comply with all of the terms and conditions of parole,
including mandatory drug tests, restrictions on association with felons or gang
members, and mandatory meetings with parole officers . . . .” (Samson, supra,
547 U.S. at p. 851.) A parolee‟s conviction of a felony “justifies imposing
extensive restrictions on the individual‟s liberty. . . . Given the previous
conviction and the proper imposition of conditions, the State has an overwhelming

                                           7
interest in being able to return the individual to imprisonment without the burden
of a new adversary criminal trial if in fact he has failed to abide by the conditions
of his parole.” (Morrissey v. Brewer (1972) 408 U.S. 471, 483.)
       The restraints on liberty and constructive custody status further demonstrate
that service of parole is part of the punishment imposed following a defendant‟s
conviction. As a result, someone who assists a parolee in absconding from parole
supervision has assisted that felon avoid a component of his punishment in
violation of section 32. The gist of the 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.) Absconding, in the
sense of “depart[ing] secretly and hid[ing] oneself” (Webster‟s 10th New
Collegiate Dict. (1996) p. 4), from parole supervision constitutes “elud[ing]
punishment” even if a felon has already served a portion of his sentence.
       This understanding is consistent with the common law view that one can
act as an accessory by assisting a prisoner escape from incarceration.5 At common
law, acting as an accessory included circumstances where “ „the principal was in
prison, and the jailer was bribed to let him escape; or conveyed instruments to him
to enable him to break prison and escape.‟ ” (Perkins & Boyce, Criminal Law (3d
ed. 1982) Parties to Crime, § 8, p. 750.) Similarly, Blackstone commented that
assisting a prisoner escape from jail “makes a man an accessory to the felony.” (4
Blackstone, Commentaries 38, italics added; see also Virgin Islands v. Aquino (3d

5      See People v. Woods (1992) 8 Cal.App.4th 1570, 1583, footnote 4
(describing § 32 as “[t]he common law equivalent of an accessory after the fact”).



                                          8
Cir. 1967) 378 F.2d 540, 553, fn. 21 [quoting Blackstone].) It does not matter
how much of his sentence a principal has served. One who helps the principal
avoid even part of his punishment is liable as an accessory. Because a mandatory
term of parole is part of the punishment for the underlying felony, someone who
assists a felon abscond entirely from parole supervision assists in the avoidance of
punishment in an analogous manner to one who helps a felon escape prison.6
       Defendant argues it would be “absurd” to hold her liable as an accessory
here because the four-year sentence she received for that offense far exceeded the
six-month commitment term Gray received for a parole violation. There is no
absurdity. First, the comparison defendant draws is not apt. The comparison
should not include the one-year prior prison term defendant received based on her
own prior conviction. Thus, the proper sentence to compare is the three-year term
defendant received for being an accessory. Likewise, defendant‟s comparison
overlooks that Gray received and served a two-year prison sentence for his
underlying felony of witness dissuasion. Comparing the available terms for being
an accessory and witness dissuasion, the sentencing range for both offenses is the
same, namely, 16 months, two, or three years. (See §§ 18, subd. (a), 33, 136.1,
subd. (a), 1170, subd. (h)(1).)
       Second, contrary to defendant‟s argument, the punishment defendant
helped Gray avoid is not the penalty that might be imposed for his parole
violation. The penalty avoided was Gray‟s participation in parole altogether.
Indeed, by focusing only upon the potential consequences of a parole violation, it
is defendant‟s interpretation that would lead to absurd consequences. Under

6     We need not decide here whether assistance to a parolee short of
absconding from parole supervision would support a conviction for being an
accessory under section 32.



                                         9
defendant‟s view, a person who helps a felon abscond from parole is not liable to
prosecution as an accessory because any punishment for a parole violation is a
mere “administrative sanction,” not punishment for the felony itself. However, a
person assisting a felon abscond from felony probation would be liable as an
accessory because the potential consequence of a probation revocation is
imposition of a prison term for the underlying felony. (§ 1203.2, subd. (c).) The
Legislature could not have intended such a result. Finally, section 972 provides
that “[a]n 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.” Thus, an accessory may indeed properly
receive a greater punishment than the aided principal.
       Defendant alternatively argues the rule of lenity should apply here. “That
rule generally requires that „ambiguity in a criminal statute should be resolved in
favor of lenity, giving the defendant the benefit of every reasonable doubt on
questions of interpretation. But . . . “that rule applies „only if two reasonable
interpretations of the statute stand in relative equipoise.‟ [Citation.]” [Citations.]‟
[Citations.]” (In re M.M. (2012) 54 Cal.4th 530, 545.) “The rule of lenity does
not apply every time there are two or more reasonable interpretations of a penal
statute. [Citation.] Rather, the rule applies „ “only if the court can do no more
than guess what the legislative body intended; there must be an egregious
ambiguity and uncertainty to justify invoking the rule.” ‟ [Citation.]” (People v.
Manzo (2012) 53 Cal.4th 880, 889.) No such uncertainty exists here. Section 32
expressly applies to one who acts with the required mental state to help a felon
avoid punishment. Established authorities make clear that a mandatory period of
parole supervision constitutes punishment. “[A]lthough true ambiguities are
resolved in a defendant‟s favor, an appellate court should not strain to interpret a
penal statute in defendant‟s favor if it can fairly discern a contrary legislative

                                          10
intent.” (People v. Avery (2002) 27 Cal.4th 49, 58.) The rule of lenity does not
apply here.
       Substantial evidence supported defendant‟s conviction. As noted,
accessory liability requires (1) that a principal commit a felony, and (2) that the
defendant aid the principal (3) knowing the principal had committed a felony, and
(4) intending that the principal avoid capture, conviction, or punishment.
(Plengsangtip, supra, 148 Cal.App.4th at p. 836.) There is no question Gray
committed a felony, was sentenced to a prison term, and was released on parole.
Defendant knew of the felony and Gray‟s parole status. She invited Gray and his
girlfriend to live with her and was aware he was a fugitive. Indeed, defendant and
Gray celebrated that he had been featured in the “Crime Stoppers” newspaper
article. Defendant also exhibited her intent to harbor Gray by creating a
contingency plan should police come looking for him and by warning her
boyfriend to conceal his presence. Defendant thus assisted Gray in absconding
from parole and the Court of Appeal properly found substantial evidence
supported defendant‟s conviction.
                                III. DISPOSITION
       We affirm the judgment of the Court of Appeal.


                                                                     CORRIGAN, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
LIU, J.



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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Nuckles
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 2/1/12, 5th Dist.
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S200612
Date Filed: April 22, 2013
__________________________________________________________________________________

Court: Superior
County: Kings
Judge: Donna L. Tarter

__________________________________________________________________________________

Counsel:

Deanna Lamb, under appointment by the Supreme Court, and David L. Annicchiarico, under appointment
by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P.
Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Deanna Lamb
Central California Appellate Program
2407 J Street, Suite 301
Sacramento, CA 95816
(916) 441-3792

Melissa Lipon
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 327-9671
