Filed 3/21/18
                CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                          DIVISION FIVE

THE PEOPLE,                            B276040

       Plaintiff and Respondent,       (Los Angeles County
                                       Super. Ct. No. TA138027)
       v.

STARLETTA PARTEE,

       Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of the
County of Los Angeles, Allen Webster, Jr., Judge. Affirmed.
      Law Office of Paul Kleven, Paul Kleven, under
appointment by the Court of Appeal, for Defendant and
Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Scott A. Taryle, Supervising Deputy Attorney
General, and Colleen M. Tiedemann, Deputy Attorney General,
for Plaintiff and Respondent.


*     Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of parts V and VI.
                        INTRODUCTION
      Despite a grant of immunity, defendant and appellant
Starletta Partee refused to testify against four individuals
charged with a gang-related murder. A jury convicted her of four
felony counts of being an accessory after the fact (Pen. Code,
§ 32)1 and one count of misdemeanor contempt for refusing to
testify (§ 166, subd. (a)(6)).2 The trial court suspended imposition
of sentence and placed defendant on probation for three years.
       Defendant raises several arguments on appeal: the
prosecution overreached when it charged her as an accessory for
refusing to testify, she cannot be guilty of being an accessory
because her silence—refusing to testify—is not an affirmative
act, her single act of refusing to testify does not support four
felony convictions, the trial court failed to instruct on the
elements of contempt, her statements to a detective were
admitted into evidence in violation of her Fifth Amendment
rights, and her trial counsel was ineffective for failing to raise the
Fifth Amendment claim. We find no grounds for reversal and
affirm the judgment.

                   FACTUAL BACKGROUND
     The day after a 2006 gang-related murder, City of Los
Angeles police officers found the car they believed the
perpetrators drove and then abandoned. The homicide detective,
John Skaggs, learned the car had been rented by defendant and


1      All statutory references are to the Penal Code.

2     The jury found allegations that the crimes were committed
for the benefit of a criminal street gang were not true. (§ 186.22,
subds. (b)(1).)




                                  2
that she had contacted the rental car office to report it as stolen.
The rental car representative told defendant to file a report with
the Hawthorne Police Department. Meanwhile, Detective Skaggs
contacted the Hawthorne Police Department and asked to be
notified when defendant arrived. Officers from the Los Angeles
Police Department met defendant there and drove her back to
Detective Skaggs’s office.
       Detective Skaggs surreptitiously recorded the interview
with defendant. After establishing the rental car had been
involved in a shooting, the detective told defendant, “Even though
I don’t have somebody that says that a young black female shot a
gun out of a car that hurt somebody, any participation you have
and any lies to me, in regards to this investigation, is a crime.”
The interview then focused on what defendant knew about the
involvement of her brother Nehemiah Robinson, her cousin
Toyrion Green, and brothers Bryant and Byron Clark, lifelong
friends she considered “family,” in the shooting. Defendant told
the detective Robinson borrowed the rental car the evening before
to visit a girl. That morning, one of the Clark brothers
telephoned defendant, told her to report the rental vehicle as
stolen and asked to be picked up and given money to pay for a
motel room. When defendant picked them up, Robinson, Green,
and the Clarks told her the previous evening had been a setup.
They arrived at the girl’s location, but someone blocked them in
and others started shooting; they shot their way out. They
thought a man was dead. They abandoned defendant’s rental car
and fled. They added the police would never find the guns.
       Robinson, Green, and the Clarks were subsequently
charged with murder. When the case went to trial in 2008,
however, defendant failed to appear, although subpoenaed as a




                                 3
witness. Attempts to locate her were unsuccessful, and the
murder case was dismissed.
       In April 2015, defendant was located, subpoenaed, and held
in custody as a material witness. The criminal case against
Robinson, Green, and the Clarks recommenced. During the June
11, 2015 preliminary hearing—despite a grant of immunity and
after declining a relocation offer—defendant refused to testify.
The trial court held her in contempt. Ultimately, the murder
charges against the four men were once again dismissed.
       Defendant was then charged with four felony counts of
being an accessory after the fact to murder and one misdemeanor
count of contempt for refusing to testify. She testified in her own
trial and provided several reasons for refusing to testify in the
murder case: she feared retaliation by the gang (she had
experienced retaliation in the past); she feared for her safety and
that of her daughter; she did not want to alienate her family; all
four of the accused were family to her, and she did not want them
to go to prison for the rest of their lives because of her testimony.
Defendant further acknowledged that when she refused to testify
in 2015 she knew her failure to appear as a witness in 2008 had
led to the murder case being dismissed. But she denied she was
helping her brother avoid trial. She testified: “Well, you guys are
saying that I am helping my brother avoid trial. I believe you
guys still have a case without me.” She added she did not testify
because “[f]amily is first.”

                           DISCUSSION
I.    Sections 32 and 166
      Defendant was convicted of four counts of being an
accessory after the fact in violation of section 32. Section 32




                                  4
defines an accessory as “[e]very 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.” A “principal” includes “[a]ll persons concerned in
the commission of a crime, whether it be felony or misdemeanor,
and 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.) Being
an accessory after the fact is a “wobbler” offense, punishable as
either a misdemeanor or felony. (§ 33.)
      “The 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. Plengsangtip (2007) 148 Cal.App.4th
825, 836 (Plengsangtip); accord, People v. Tran (2013) 215
Cal.App.4th 1207, 1219, fn. 7 (Tran).) As section 32 expressly
states, an accessory must know he or she is assisting a felon or
one who has been charged with or convicted of a felony. (Tran,
supra, 215 Cal.App.4th at p. 1219.) The effect of an accessory’s
actions is “to lessen the chance that the perpetrators will be
captured and held accountable for their crimes.” (People v.
Cooper (1991) 53 Cal.3d 1158, 1168.)




                                5
       A defendant may be convicted of being an accessory even if
the principal is not prosecuted. (§ 972.) Section 972 provides:
“An 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.” The prosecution against defendant as an accessory
after the fact properly went forward even though Robinson,
Green, and the Clarks were never brought to trial.
       Defendant was also convicted of misdemeanor contempt for
refusing to testify. Section 166 sets forth conduct constituting a
contempt of court. Under subdivision (a)(6), a contempt includes
“[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.” Contempt under section 166 is a general
intent crime. (People v. Greenfield (1982) 134 Cal.App.3d Supp.
1, 4.)

II.   Prosecutorial Overreaching
      Defendant argues charging her with crimes purportedly
carrying a potential 40-year sentence3 constituted prosecutorial



3     The information erroneously indicated each accessory count
carried a potential 10-year enhancement based on section 186.22,
subdivision (b)(1)(C). Subdivision (b)(1)(C) applies where the
crime committed is a violent felony and adds 10 years to a
sentence. Being an accessory after the fact is not a violent felony.
(§ 667.5, subd. (c).) In any event, the jury verdict form specified
section 186, subdivision (b)(1), and the applicable gang
enhancement, subdivision (b)(1)(A), could add two, three, or four
years to the base term. As indicated, however, the jury did not
find the gang allegations to be true.




                                 6
overreaching and asks this court to “emphatically reject this
prosecutorial overreach, and reaffirm that recalcitrant witnesses
can be subjected to coercion and punishment for contempt, but
cannot be thrown in prison for decades.” Defendant, however,


       A misdemeanor contempt conviction is punishable by up to
six months in the county jail. (§§ 19, 166, subd. (a)(6).) A gang
benefit finding under section 186.22, subdivision (d) elevates the
offense from a straight misdemeanor punishable by up to six
months in the county jail to a “wobbler”; subdivision (d) of section
186.22 is an alternate penalty provision that gives the trial court
discretion for sentencing purposes to treat the contempt as a
misdemeanor punishable more severely by up to one year in the
county jail or as a felony punishable by one, two, or three years in
state prison. (§ 186.22, subd. (d); People v. Fuentes (2016) 1
Cal.5th 218, 224; Robert L. v. Superior Court (2003) 30 Cal.4th
894, 897, 909; People v. Arroyas (2002) 96 Cal.App.4th 1439,
1444-1445.)
       However, when a defendant is convicted of being an
accessory after the fact for refusing to testify, any sentence for
the misdemeanor contempt conviction based on the same act is
subject to a section 654 stay. (People v. Mesa (2012) 54 Cal.4th
191, 199-200; People v. Louie (2012) 203 Cal.App.4th 388, 399 [“a
single criminal act may result in only one punishment, even if the
defendant harbored multiple objectives”].)
       Had the jury found defendant committed the crimes for the
benefit of a criminal street gang, the maximum sentence would
have been 12 years: on count 1, three years (§ 32) plus four years
(§ 186.22, subd. (b)(1)); on counts 2, 3, and 4, an additional eight
months each (§ 32), plus one year per count (§ 186.22, subd.
(b)(1)); and on count 5 (contempt), an additional three years (§§
166, subd. (a)(6), 186.22, subd. (d)) stayed pursuant to section
654. Because the jury did not find the gang allegations to be
true, defendant’s maximum exposure was five years. As noted,
she was given probation.




                                 7
has not shown she raised this argument in the trial court. Nor
does she cite any authority on prosecutorial overreaching in
support of her claim. She cites no authority precluding the
accessory and contempt charges based on her refusal to testify.
The Attorney General did not specifically address the
overreaching claim in his brief or at oral argument. Defendant
forfeited the issue by failing to raise it in the trial court.
       Defendant’s forfeiture notwithstanding, there is precedent
for an accessory conviction under the facts of this case. Under
similar circumstances, our Courts of Appeal have held defendants
were properly charged with or convicted of being accessories. In
Plengsangtip, supra, 148 Cal.App.4th at pages 835 through 839,
for example, the Court of Appeal held evidence adduced at a
preliminary hearing sufficed to support an accessory charge
where the defendant lied to a detective and falsely denied
knowledge of a murder with the intent to shield the murderer. In
In re I.M. (2005) 125 Cal.App.4th 1195, 1203-1206 (I.M.), the
Court of Appeal held substantial evidence supported sustaining a
juvenile delinquency petition where the minor, with the intent
the principal escape prosecution, falsely told police the principal
shot the victim in self-defense or heat of passion. And in People
v. Duty (1969) 269 Cal.App.2d 97, 100-105 (Duty), the Court of
Appeal concluded substantial evidence supported the defendant’s
accessory conviction where he gave a false alibi to the public
investigator with the intent to shield the perpetrator of the crime
from prosecution and punishment.
       Under federal law, an individual who refuses to testify
despite an immunity grant with the intent to aid a felon and who
is convicted of criminal contempt may be sentenced by analogy to
the crime of being an accessory after the fact. (E.g., United States




                                 8
v. Brady (1st Cir. 1999) 168 F.3d 574, 576 (Brady); United States
v. Ortiz (7th Cir. 1996) 84 F.3d 977, 978-979 (Ortiz).) This
scenario arises because there is no federal sentencing guideline
specific to criminal contempt. (Brady, supra, 168 F.3d at p. 577;
Ortiz, supra, 84 F.3d at p. 979.) Instead, the United States
Sentencing Guidelines provide that in the case of criminal
contempt, the sentencing court should adopt the sentencing
guideline for the most analogous criminal conduct.4 (U.S.S.G. §§
2J1.1, 2X5.15; Brady, supra, 168 F.3d at p. 576; Ortiz, supra, 84
F.3d at p. 979.)
      In Brady, the defendant’s refusal to testify despite
immunity was motivated in part by a desire to frustrate a grand
jury investigation of a robbery-murder and protect his friends.
Accordingly, the sentencing guideline for accessories after the
fact was appropriately applied. (Brady, supra, 168 F.3d at pp.
576-581.) In Ortiz, by contrast, the defendant’s refusal to testify
despite immunity was not designed to assist another defendant to
escape punishment; the defendant simply did not want to testify.
Under those circumstances, it was error to apply the accessory


4      What constitutes the most analogous criminal conduct
presents a mixed question of law and fact. (Brady, supra, 168
F.3d at p. 577.) The federal accessory after the fact statute
provides: “Whoever, knowing that an offense against the United
States has been committed, receives, relieves, comforts or assists
the offender in order to hinder or prevent his apprehension, trial
or punishment, is an accessory after the fact.” (18 U.S.C. § 3.)

5     United States Sentencing Guideline section 2X5.1 provides
in part: “If the offense is a felony for which no guideline
expressly has been promulgated, apply the most analogous
offense guideline.”




                                 9
after the fact sentencing guideline. (Ortiz, supra, 84 F.3d at pp.
980-982; see also Wright v. McAdory (Miss. 1988) 536 So.2d 897,
904 [murder witness could not be held in contempt for refusal to
testify where immunity grant was inadequate because it did not
encompass accessory after the fact liability].)
       In this case, despite being held in custody as a material
witness and offered immunity and relocation, 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.
       We also note defendant’s refusal to testify contrasts sharply
with the conduct of victims and witnesses who, having previously
made out-of-court statements concerning a crime, take the stand
and then claim a lack of memory. Under those circumstances, if
the witness’s memory loss is feigned and the record supports the
conclusion that the “I don't remember” statements are evasive
and untruthful, the witness’s out-of-court statements are
properly admitted. (Evid. Code, §§ 770, 1235; People v. Johnson
(1992) 3 Cal.4th 1183, 1219-1220.) Not so in a situation like this
one, where defendant’s refusal to testify because “[f]amily is first”
did not permit her to be impeached with her prior out-of-court
statements.
       Defendant argues existing contempt remedies are adequate
and by concluding otherwise we usurp the Legislature’s function.
We disagree. Defendant did much more than simply commit




                                 10
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. The nature and potential impact of
defendant’s conduct—here, the inability to prosecute accused
murderers—renders the contempt penalty inadequate to enable a
court to vindicate its authority and to maintain the dignity and
respect that is its due. (See In re McKinney (1968) 70 Cal.2d 8,
12.)
       Further, as discussed above, our courts recognize conduct of
this nature committed with the intent to shield an accused
criminal is punishable under the accessory law. (Plengsangtip,
supra, 148 Cal.App.4th at pp. 835-839; I.M., supra, 125
Cal.App.4th at pp. 1203-1206; Duty, supra, 269 Cal.App.2d at pp.
100-105.) Our holding here is consistent with this prior
decisional authority and does not displace the Legislature’s power
to prescribe punishment for crimes.

III.  Sufficiency of the Evidence as to the Accessory
      Convictions
      Defendant claims she cannot be guilty as an accessory after
the fact because her silence—refusing to testify—is not an
affirmative act. The Attorney General argues the law of the case
doctrine applies and the issue was decided adversely to defendant
when this court summarily denied her petition for a writ of
mandate following the trial court’s denial of her section 995
motion (Partee v. Superior Court (March 18, 2016, B270799)
[nonpub. order]).




                                11
       We disagree with the Attorney General’s position.
Although our order summarily denying defendant’s writ petition
included citations to legal authority, we did not issue an
alternative writ or a written opinion. And, as defendant correctly
argues, “the denial of a writ petition does not establish law of the
case unless the denial is accompanied by a written opinion
following the issuance of an alternative writ.” (Kowis v. Howard
(1992) 3 Cal.4th 888, 891; accord, People v. Jones (2011) 51
Cal.4th 346, 370, fn. 4.) The law of the case doctrine does not
apply.
       On the merits, however, we conclude defendant’s refusal
to testify supports her accessory convictions. “Mere silence after
knowledge of [a felony’s] commission is not sufficient to constitute
the party an accessory.” (People v. Garnett (1900) 129 Cal. 364,
366.) Some affirmative act is required. (Ibid.) An affirmative
falsehood, for example, such as a false alibi made with the
requisite knowledge and intent, will support an accessory
conviction. (Duty, supra, 269 Cal.App.2d at pp. 101-104.) As will
a false statement to police that the perpetrator acted in self-
defense or in the heat of passion. (I.M., supra, 125 Cal.App.4th
at pp. 1203-1205.) In contrast, “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.
876, citing People v. Nguyen (1993) 21 Cal.App.4th 518, 527, 537-
539.)
       However, as we explained in denying defendant’s writ
petition: “Penal Code section 32 proscribes ‘[a]ny kind of overt or
affirmative assistance to a known felon,’ so long as the assistance
is provided with the intent that the perpetrator avoid arrest,




                                12
trial, conviction, or punishment. ( . . . Duty[, supra,] 269
Cal.App.2d [at p.] 104.) The failure to act is not an ‘overt or
affirmative’ act unless there is a duty to act. (See People v.
Heitzman (1994) 9 Cal.4th 189, 197 [‘when an individual’s
criminal liability is based on the failure to act, it is well
established that he or she must first be under an existing legal
duty to take positive action’].) A witness who has been
subpoenaed and given immunity that is co-extensive with the
scope of her Fifth Amendment privilege has a duty to testify.
(Pen. Code, § 1324; Kastigar v. United States (1972) 406 U.S. 441,
453; People v. Smith (2003) 30 Cal.4th 581, 624.)” (Partee v.
Superior Court, supra, at pp. 1-2.) Under 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
defendants’ preliminary hearing.
       There was also substantial evidence defendant refused to
testify with the requisite intent to support an accessory after the
fact conviction—that Robinson, Green, and the Clarks avoid
arrest, trial, conviction or punishment. Until she was questioned
by Detective Skaggs—after she falsely told the rental company
the vehicle had been stolen—defendant did not report the
shooting and possible death to the police. As defendant explained
to Detective Skaggs, she provided transportation and money to
her brother, cousin, and friends and reported the rental vehicle
stolen even though she knew there had been a shooting in which
her brother, cousin, and the Clarks were involved; someone had
been shot and likely died; her brother and his companions fled
the scene and abandoned the rental car; and they disposed of the
guns used in the shooting. Defendant dismissed another cousin’s
suggestion she send Robinson to retrieve the abandoned vehicle




                                13
saying, “I don’t want [him] to get in any trouble . . . .” She told
the detective she was “trying to cover for [Robinson].” When
Detective Skaggs encouraged defendant to bring “those boys” in,
defendant said, “I don’t want to do it.” She refused to “try to talk
sense to them.” Defendant also said she would refuse to testify
against them in court because “that’s my family, you help them”
and she did not want her testimony to send them to prison. She
was reluctant to get involved: “I know they did it. And I know
it’s wrong, but . . . it’s my family.” Further, defendant testified in
her own trial that when she refused to testify in 2015, she knew
criminal charges against the four individuals had been dismissed
in 2008 after she failed to appear.

IV.   One Accessory Count Versus Four
      Defendant argues even if there was sufficient evidence to
convict her as an accessory, she could not be charged with and
convicted of four accessory counts based on her single act of
refusing to testify. We disagree.
      Each accessory count specifically identified defendant as
aiding a single individual in violation of section 32: count 1—
Robinson, count 2—Green, count 3—Bryant Clark and count 4—
Byron Clark. Each count also specifically alleged defendant
harbored, concealed and aided the individual “with the intent
that [he] might avoid and escape from arrest, trial, conviction,
and punishment for” the charged felony—murder. Each count
had its own verdict form and the jury found defendant guilty as
an accessory as to each individual.
      As discussed above, a person is guilty of being an accessory
when, after a felony has been committed, he or she aids a
principal in the felony, with knowledge the principal has




                                  14
committed or been charged with the felony, and with the intent
that the principal avoid or escape arrest, trial or punishment.
(§ 32; Plengsangtip, supra, 148 Cal.App.4th at p. 836.) Section 32
refers to a principal, that is, an individual who committed a
crime. By her refusal to testify, defendant aided four principals—
her brother, her cousin, and two others she considered family—
with the intent that each of them avoid or escape trial, conviction
or punishment. Under these circumstances, she was properly
charged with and convicted of four separate violations of section
32.
       The decisions defendant relies on for a contrary holding are
unavailing. In People v. Perryman (1987) 188 Cal.App.3d 1546,
1549, the principal committed two felonies. The Court of Appeal
held the defendant was nevertheless guilty of only one act of
being an accessory after the fact: “The crime of accessory after
the fact is complete when the accused assists the principal in
escaping apprehension knowing that person has committed a
felony. The number of the underlying felonies is not
determinative of defendant’s guilt. Even if the defendant knew
the principal committed more than one crime in a single
transaction, he may be charged with only one act of being an
accessory after the fact.” (Ibid.)
       The issue here is not whether a principal committed
multiple crimes, but whether defendant aided multiple
principals. Defendant may be convicted of being an accessory as
to each of the four men she aided by refusing to testify; the
refusal to testify against each individual was a separate crime.
       People v. Mitten (1974) 37 Cal.App.3d 879 (Mitten), on
which defendant also relies, is less helpful. The defendant was
charged with being an accessory after he helped bury two murder




                                15
victims’ bodies. (Id. at pp. 881-882.) But the sole issue in Mitten
was whether the trial court properly granted the defendant’s
motion to dismiss the information for improper venue. Mitten did
not hold a defendant can only be convicted of one count of being
an accessory when there are multiple principals within the
meaning of section 32.
      Defendant further notes, “The prosecution . . . refused to
concede that [she] could not be punished for all five counts under
section 654, even though there could be no doubt of that under
applicable law.” Section 654 states: “An act or omission that is
punishable in different ways by different provisions of law shall
be punished under the provision that provides for the longest
potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision. An
acquittal or conviction and sentence under any one bars a
prosecution for the same act or omission under any other.”
(§ 654, subd. (a).) Defendant does not explain how any
punishment violated section 654. As noted above, imposition of
sentence was suspended and defendant was placed on probation.
(See People v. Martinez (2017) 15 Cal.App.5th 659, 669 [section
654 claim not ripe for adjudication where imposition of entire
sentence suspended and probation granted]; People v. Wittig
(1984) 158 Cal.App.3d 124, 137 [no double punishment issue
where imposition of sentence suspended and probation granted].)
Moreover, defendant does not explain how section 654 impacts
her convictions. Section 654 prohibits multiple punishment, not
multiple convictions. (People v. Miller (1977) 18 Cal.3d 873, 885.)




                                16
V.     The Failure to Instruct the Jury on the Elements of
       the Contempt Charged in Count 5
       Defendant argues it was reversible error per se to refuse to
instruct the jury on the elements of the contempt charge
including, in particular, the requisite mental state. We agree the
trial court erred, but find the error harmless.
       Defendant was convicted of refusing to testify in violation
of section 166, subdivision (a)(6), a misdemeanor. Section 166
states: “(a) . . . a person guilty of any of the following contempts
of court is guilty of a misdemeanor: [¶] . . . [¶] (6) The
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.” Contrary to defendant’s argument, the trial court did
instruct the jury on the requisite mental state, advising the crime
of “refusing to testify at a judicial proceeding as charged in Count
5” required general criminal intent. The trial court further
instructed the jury on the meaning of general criminal intent.6
The court failed, however, to instruct the jury on the remaining
elements of the crime, i.e., that defendant be sworn as a witness
and then refuse to testify. This was error, as a trial court has a
sua sponte duty to instruct the jury on all the elements of a
charged offense. (People v. Merritt (2017) 2 Cal.5th 819, 824.)

6       The instruction read: “The following crime requires a
general criminal intent: refusing to testify at a judicial
proceeding as charged in Count 5. For you to find a person guilty
of this crime, that person must not only commit the prohibited
act or fail to do the required act, but must do so with wrongful
intent. A person acts with wrongful intent when he or she
intentionally does a prohibited act or fails to do a required act;
however, it is not required that he or she intend to break the law.
The act required is explained in the instruction for that crime.”




                                 17
      Contrary to defendant’s assertion, a failure to instruct on
the elements of an offense is “amenable to harmless error
analysis.” (People v. Merritt, supra, 2 Cal.5th at p. 831) The
error here was harmless. The information charged defendant
with “refus[ing] to testify in a preliminary hearing” in violation of
section 166, subdivision (a)(6). The evidence at trial was that
defendant had refused to testify at the 2015 preliminary hearing
in the murder case. Defendant admitted refusing to testify. The
prosecutor explained the elements of the crime charged in count
5.7 The prosecutor argued defendant was guilty of that crime
because she refused to testify at the preliminary hearing. As we
have observed, the trial court instructed the jury that the crime
charged in count 5 was “failure to testify at a judicial proceeding.”
The jury’s verdict form likewise identified the crime as “refusing
to testify.” The jurors, whom we presume to be intelligent and
capable of understanding instructions (People v. Bryant (2014) 60
Cal.4th 335, 447), undoubtedly found defendant guilty on count 5
because she refused, with general criminal intent, to testify at
the preliminary hearing. Here, “it is clear beyond a reasonable
doubt that a rational jury would have rendered the same verdict”


7      “I’m going to talk a bit about the law in terms of how it
applies in this case. And we’re going to start with count 5. The
reason we’re going to start with count 5 is because count 5 is the
easiest count in this case. And why do I say it’s the easiest?
Because it has two elements that are undeniable. That the
defendant was called as a witness at the preliminary hearing on
June 11th of 2015. And that the defendant failed to testify. She
had no lawful right [not] to testify. And she willfully disobeyed
the orders of the court. She refused to answer all the questions I
had asked when the court ordered her to answer those
questions.”




                                 18
even if it had been specifically instructed on all the elements of
the contempt charged in count 5. (People v. Merritt, supra, 2
Cal.5th at p. 831.)

VI.   Defendant’s Statements to Detective Skaggs
      Defendant asserts her statements to Detective Skaggs
about the murder should have been suppressed because she was
in custody during the interview and warnings were not given
pursuant to Miranda v. Arizona (1966) 384 U.S. 436. The “in
custody” claim raises questions of fact as to the circumstances of
the interrogation. (Duty, supra, 269 Cal.App.2d at p. 105.) But
defendant did not broach this issue in the trial court.8 As a
result, the parties had no opportunity to litigate the issue and the
trial court had no opportunity to make factual findings as to the
circumstances surrounding defendant’s interaction with the
detective. (People v. Linton (2013) 56 Cal.4th 1146, 1166; People
v. Cruz (2008) 44 Cal.4th 636, 669 (Cruz).) Defendant forfeited
this argument by failing to raise it in the trial court. (Cruz,
supra, 44 Cal.4th at p. 669.)
       Anticipating the forfeiture conclusion, defendant argues
her trial counsel was ineffective for failing to challenge the
prosecution’s use of defendant’s statements to the detective. We
conclude defendant has not shown her trial attorney was
ineffective. “To secure reversal of a conviction upon the ground of


8      Defendant did briefly raise this issue during the June 11,
2015 preliminary hearing in the murder case, when defendant
refused to testify, defense counsel argued in part that defendant
had been interrogated in custody without Miranda warnings.
The trial court found the argument irrelevant. Defendant
concedes that ruling was correct.




                                 19
ineffective assistance of counsel under either the state or federal
Constitution, a defendant must establish (1) that defense
counsel’s performance fell below an objective standard of
reasonableness, i.e., that counsel’s performance did not meet the
standard to be expected of a reasonably competent attorney, and
(2) that there is a reasonable probability that defendant would
have obtained a more favorable result absent counsel’s
shortcomings. [Citations.] ‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’
[Citations.] [¶] A defendant who raises the issue on appeal must
establish deficient performance based upon the four corners of
the record. ‘If the record on appeal fails to show why counsel
acted or failed to act in the instance asserted to be ineffective,
unless counsel was asked for an explanation and failed to provide
one, or unless there simply could be no satisfactory explanation,
the claim must be rejected on appeal.’” (People v. Cunningham
(2001) 25 Cal.4th 926, 1003; accord, People v. Carrasco (2014) 59
Cal.4th 924, 982.) “When examining an ineffective assistance
claim, a reviewing court defers to counsel’s reasonable tactical
decisions, and there is a presumption counsel acted within the
wide range of reasonable professional assistance.” (People v. Mai
(2013) 57 Cal.4th 986, 1009.)
      Here, the record does not show why defendant’s trial
attorney failed to raise a Fifth Amendment claim; he was not
asked to explain. Nor is it established that there simply could be
no satisfactory explanation. Counsel may have concluded there
was little or no basis for a Fifth Amendment objection because
when defendant spoke with the detective she was not a suspect
but a witness who expressed no reservations about talking to the
detective and willingly told him what she had heard and observed




                                20
in the aftermath of the murder. (See People v. Lucas (1995) 12
Cal.4th 415, 441-442.) Under these circumstances, defendant’s
ineffective assistance claim is more appropriately resolved in a
habeas corpus proceeding. (People v. Mai, supra, 57 Cal.4th at p.
1009.)




                               21
                        DISPOSITION
      The judgment is affirmed.
          CERTIFIED FOR PARTIAL PUBLICATION



                                        DUNNING, J. *

I concur:



            KRIEGLER, Acting P. J.




*     Judge of the Orange Superior Court appointed by the Chief
Justice pursuant to article VI, section 6, of the California
Constitution.




                              22
The People v. Starletta Partee
B276040



BAKER, J., Concurring in Part and Dissenting in Part




       For 82 years, Penal Code section 32 has proscribed
“harbor[ing], conceal[ing] or aid[ing] a principal” in his or her
commission of a prior felony. (Stats. 1935, ch. 436, § 1, p. 1484.)
Today, the majority affirms convictions under this statute that
are, so far as the Attorney General is aware, literally
unprecedented in its 82-year history. (Rec. of Oral Arg. at 17:27-
18:11, 19:11-19:35; see also Resp. Br. at 18-22.) No California
case has ever sanctioned use of Penal Code section 32, the
accessory statute, 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, while I cannot claim to have conducted a fully
exhaustive survey, I have discovered no court in any jurisdiction
nationwide that has ever sanctioned this sort of an accessory
after the fact prosecution. (See generally 2 LaFave, Substantive
Criminal Law (3d ed. 2017) § 13.6(a), pp. 547, 555-556 [reviewing
the “great majority of the [accessory after the fact] provisions in
the modern codes [that] specify the kinds of aid which are
proscribed”—including harboring or concealing the criminal,
providing means of avoiding apprehension, concealing or
tampering with evidence, plus “a few jurisdictions [that] have
added the giving of false information in certain circumstances”—
and observing, by contrast, “the mere failure to report the felony
or to arrest the felon will not suffice” to support an accessory
conviction].)
       The oddity of today’s decision is no accident, nor is it a
manifestation of the old adage that there must be a first time for
everything. It is rather a product of well-intentioned but flawed
legal reasoning that courts have heretofore avoided: Believing
the statutorily authorized criminal penalty for refusing to testify
(six months in jail) is too light a punishment for refusing to
testify against defendants charged with murder, the majority
blesses the invocation of Penal Code section 32, which imposes a
higher penalty. As I shall discuss, however, authority dating
back at least 50 years explains that resort for what might be
viewed as overly light penalties for contumacious witnesses must
be to the legislative process. (In re McKinney (1968) 70 Cal.2d 8,
12-13 (McKinney); In re Keller (1975) 49 Cal.App.3d 663, 671
(Keller); see also People v. Park (2013) 56 Cal.4th 782, 789 [“It is
the Legislature’s function ‘“to define crimes and prescribe
punishments . . .”’”].) A prosecuting office’s decision to type up
felony charges using a statute ill-suited to the task is no adequate
substitute, and the majority errs by refusing to say so.

                                  I
       California has laws that are meant to compel recalcitrant
witnesses to testify—and to punish them when they refuse. The
civil contempt statutes, Code of Civil Procedure sections 1218 and
1219, allow a trial judge that finds a witness in contempt of court
to imprison the witness for five days (with a $1,000 fine), or until
the witness performs the act he or she omitted to perform when




                                 2
being found in contempt (assuming that act “is yet in the power
of the person to perform”). (Code Civ. Proc., §§ 1218, subd. (a),
1219, subd. (a).) Apart from these remedies, California also
provides for criminal contempt punishment of a witness who
refuses to testify when lawfully ordered to do so. Penal Code
section 166 provides that a person who “contumacious[ly] and
unlawful[ly] refus[es] . . . to be sworn as a witness or, when so
sworn, . . . refus[es] to answer a material question” is guilty of a
misdemeanor.1 (Pen. Code, § 166, subd. (a)(6).)
       Going back decades, California courts have heard—and
rejected—arguments to evade the limits imposed by these
statutory penalties on the ground that they are insufficiently
severe to punish a refusal to testify. In McKinney, supra, 70
Cal.2d 8, a witness refused to answer questions concerning when
he first came into contact with a defendant charged with the
murder of a police officer and assault with a deadly weapon. (Id.
at p. 9.) The trial court purported to hold the defendant in
criminal contempt under Penal Code section 166. (Id. at pp. 9-
10.) The Attorney General conceded on appeal that the trial
court had done so improperly but argued the sentence should be
upheld because the court had inherent contempt power to
imprison the witness that the Legislature could not curtail. (Id.
at p. 10.) Our Supreme Court rejected that argument, stating
“[t]he Attorney General, though framing the limits of the court’s
inherent power in language of an ‘adequate’ sentence in fact
argues for ‘unbridled power’ [citation].” (Id. at pp. 12-13.) The
Supreme Court acknowledged a trial court’s contempt power

1
     A misdemeanor offense, of course, is punishable by six
months in jail and a $1,000 fine. (Pen. Code, § 19.)




                                 3
“must ‘be sufficient to enable the courts to vindicate their
authority and maintain the dignity and respect due to them’
[citation]” but concluded the existing sanctions provided by the
Legislature, i.e., the civil and criminal contempt statutes already
described, were adequate for a trial court to vindicate its
authority and maintain its dignity. (Id. at p. 12.)
        In a case decided seven years later, Keller, supra, 49
Cal.App.3d 663, the Court of Appeal again rejected an argument
that would permit an end-run around the sanctions that the
contempt statutes provide for refusing to testify. In that case, a
college professor witnessed an attempted robbery and provided a
statement to the police, but later informed the prosecution he
would not testify if called as a witness at trial “for reasons of
conscience.” (Id. at p. 664.) The prosecution sought the
professor’s testimony anyway and he refused to answer six
questions concerning the attempted robbery. (Id. at pp. 665-666.)
The professor was held in contempt on six separate counts
(corresponding to the six questions) and sentenced to 15 days in
jail (five days each for three of the questions) and a $1,500 fine
($500 each for the other three questions). (Id. at p. 666.)
        On appeal, Keller argued the imposition of cumulative
penalties for his refusal to answer a series of related questions
was improper. (Keller, supra, 49 Cal.App.3d at p. 666.) The
Court of Appeal agreed and held the trial court exceeded its
authority in making multiple contempt findings for what
amounted to one contempt. (Id. at p. 669.) In the course of so
holding, the Keller court acknowledged the argument that “the
maximum punishment which [it held] the court can here lawfully
impose (five days in jail and/or [a] $500 fine (Code Civ. Proc.,
§ 1218)) may not be ‘significant’ or ‘substantial’ enough to




                                 4
effectuate its objective of promoting a recalcitrant witness to
testify . . . .” (Id. at p. 671.) But, importantly, the Court of
Appeal explained this was “not a proper ground on which to
analyze whether one or more contempts has taken place” because
“[t]he answer lies in legislative reform of the existing power of
the court to punish for the type of contempt committed by Keller.”
(Ibid.) The Keller court specifically cautioned that permitting
counsel “to devise questions that might stand up as separate
contempts” were “mere devices to permit effective punishment
and are unfitting to the dignity of the judicial process.” (Ibid.)
       In the many years since McKinney and Keller, the
Legislature has not seen fit to significantly increase the penalties
set by the contempt statutes, which, with the possible exception
of the coercive contempt remedy (Code Civ. Proc., § 1219),
continue to authorize a maximum of six months in jail. The
prosecution in this case, however, apparently believed—
mistakenly, in my view—that it had come upon a means of taking
action where the Legislature has not.

                                II
      Defendant Starletta Partee (defendant) is Nehemiah
Robinson’s sister and Toyrion Green’s cousin. Both men, along
with two others, were charged with murder in connection with
what was alleged to be the gang-related shooting of victim
Anthony Owens (Owens).
      After the alleged murder, Los Angeles Police Department
detective John Skaggs interviewed defendant (the interview was
recorded). During the interview, defendant made statements
tending to incriminate the four men as having committed, or
having been involved in, Owens’ murder. As the majority opinion




                                 5
details, defendant thereafter failed to appear as a witness at the
trial of the four men, the case against the men was dismissed,
police later located defendant and took her into custody,
prosecutors then re-filed the case against the men, and when
called as a witness at the preliminary hearing in the re-filed case
where all four men were present, defendant refused to be sworn
to testify and refused to answer questions posed by the
prosecutor. Following defendant’s refusal, the murder case
against defendant’s brother, her cousin, and the other two men
was again dismissed.
       The prosecution responded by charging defendant with one
count of criminal contempt under Penal Code section 166 for
refusing to testify at the preliminary hearing. The prosecution
also went further—invoking Penal Code section 32 to charge
defendant with four felony counts of being an accessory to the
murder after the fact (one count for each of the four accused
murderers). The prosecution further elected to add a gang
enhancement allegation in connection with all five charged
counts, which substantially increased the maximum prison
sentence defendant faced if convicted.2
       Defendant proceeded to trial on all five charged counts
against her. The only evidence introduced by the prosecution in
an effort to establish she “harbor[ed], conceal[ed], or aid[ed]”
(Pen. Code, § 32) her brother, cousin, and the other two men was
defendant’s silence in court, i.e., her refusal to take the witness


2
       The gang allegation, if found true, would make the
otherwise misdemeanor violation of Penal Code section 166
eligible for punishment as a felony. (Pen. Code, § 186.22, subd.
(d).) In rendering its verdict, the jury in this case found the gang
allegations not true.




                                 6
oath and to answer any questions. Testifying in her own defense,
defendant maintained she refused to testify in the murder case
because she feared gang retribution and because the four
defendants were either actually family or like family to her.
Apparently unpersuaded,3 the jury convicted defendant on all
counts charged against her.
      At sentencing, the experienced trial judge declined to
impose anywhere near the maximum authorized custodial
sentence.4 Instead, and likely understanding the issue was no
longer whether defendant could be coerced into testifying against
her brother and the other accused men but rather how severely
she should be punished for refusing to do so, the trial judge
placed defendant on probation for three years.5
      The imposition of a probationary sentence, however, does
not make this a no-harm-no-foul case. A felony conviction carries


3
      The jury was instructed with CALCRIM No. 440 on the
elements of a Penal Code section 32 violation. The instruction
informed the jury it must find defendant “either harbored,
concealed or aided the perpetrator” after the felony (the alleged
murder) had been committed. The jury was provided no further
definition of the term “aided.”
4
       During the sentencing hearing, the judge noted that over
the course of his 45 years in the “business,” this case was “one of
the first times [he had] ever seen a case in which someone is
prosecuted for refusing to testify after they’ve been given full
immunity.”
5
      The trial judge stated he found the argument that the four
men charged with murder would have been convicted had it not
been for defendant’s refusal to testify to be “conjecture,
speculation and maybe guesswork.”




                                 7
various consequences a misdemeanor does not, and as I now
explain, defendant’s silence when called as a witness was
insufficient to prove a violation of the accessory statute.

                                 III
      All legal sources that courts properly consult lead to the
same conclusion: a mere refusal to testify is not a proper basis for
a Penal Code section 32 prosecution. The conclusion flows from
the text of the accessory statute as informed by established
canons of statutory interpretation; from California precedent that
has addressed the bounds of who may be prosecuted as an
accessory; and from the laws and practices of sister states, some
of which recognize the special problem of punishing a witness for
refusing to incriminate family members.

                                  A
       Penal Code section 32 provides in full as follows: “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.” The elements of the
offense therefore required proof that defendant both “harbored,
concealed, or aided” the accused murder defendants and did so
with the intent they avoid trial, conviction, or punishment.
(People v. Tran (2013) 215 Cal.App.4th 1207, 1219, fn. 7 [listing
all elements of a Penal Code section 32 violation].) The majority’s
extended discussion of defendant’s intent correctly concludes that
element was satisfied. But intent is not the critical issue in this




                                 8
case. What was lacking is proof that defendant’s silence
amounted to harboring, concealing, or aiding her brother and his
confederates.
       No one believes there was evidence that would allow the
jury to conclude defendant “harbored” or “concealed” defendant
and the other three men—not the Attorney General and not the
majority. The meaning of those verbs simply would not support
such a finding. So the question of affirmance or reversal of the
Penal Code section 32 convictions reduces to what “aid[ed]”
means as used in Penal Code section 32 and whether defendant’s
preliminary hearing silence meets that definition.
       The ordinary understanding of the word “aid” is susceptible
to more than one definition, but most suggest some affirmative
act of assistance. Oxford’s definition, for instance, states the verb
means “[t]o give help, support, or assistance to (a person); to
relieve from difficulty or distress, to succor.” (Oxford English
Dict. Online (2018) http://www.oed.com/view/Entry/4303?
rskey=TgKZpp&result=5&isAdvanced=false#eid [as of March 19,
2018].) The element of affirmative assistance that is suggested
by that definition is consistent with common usage; one would
not usually say, for instance, that when two rival companies
intend to bid on a contract and one fails to submit its bid on time,
the untimely bidder has come to the aid of the other company.
       Insofar as there is ambiguity in Penal Code section 32’s use
of the term “aided,” however, the venerable ejusdem generis
canon of statutory interpretation assists (aids, if you will) in
resolving it.6 “[T]he principle of ejusdem generis suggests that

6
     Use of the noscitur a sociis canon (People v. Prunty (2015)
62 Cal.4th 59, 73 [“a word literally ‘is known by its associates’”])
would also come to the same point.




                                  9
when ‘“specific words follow general words in a statute or vice
versa,”’ the general words ordinarily are best construed in a
manner that underscores their similarity to the specific words.”
(California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th
924, 939.) With regard to the text of Penal Code section 32, the
general word “aids” follows the more specific words “harbors” and
“conceals,” and a potentially broader understanding of “aids”
should instead be cabined to meanings more akin to “harbors”
and “conceals.”
      As we have already seen, there is not even an argument
that what defendant did here would constitute harboring or
concealing. And as a conceptual matter, the common usage of the
words harbor and conceal incorporates an element of affirmative
assistance—the provision of food or shelter, or acts taken to hide
something from view or discovery. (People v. Garnett (1900) 129
Cal. 364, 366 [“The word ‘conceal,’ as here used, means more than
a simple withholding of knowledge possessed by a party that a
felony has been committed. This concealment necessarily
includes the element of some affirmative act upon the part of the
person tending to or looking toward the concealment of the
commission of the felony”] (Garnett); see also United States v.
Shapiro (2d Cir. 1940) 113 F.2d 891, 892-893.) Penal Code
section 32’s use of “aids” should be understood similarly, i.e., to
permit conviction only where an accused aids a felon in some
affirmative sense.
      This element of affirmative assistance went unsatisfied by
the proof at trial. Defendant’s conduct was entirely passive—
remaining silent when asked to take the witness oath and saying
nothing when the prosecutor posed a series of questions to see if
she would testify. While it might fairly be said defendant refused




                                10
to aid the prosecution, that does not mean she also thereby aided
her brother and the other accused men within the meaning of
Penal Code section 32.

                                  B
       California cases that have addressed the meaning of Penal
Code section 32 support the conclusion I reach. The majority
concludes otherwise by applying precedent incorrectly.
       Let us begin with the meaning of Penal Code section 32 as
a general matter. Our Supreme Court has explained, as I have
concluded from the text of the statute, that there must be proof of
affirmative assistance to obtain a Penal Code section 32
conviction: “The gist of the [Penal Code section 32] 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[ ].)” (People v. Nuckles (2013) 56 Cal.4th 601,
610 (Nuckles); see also Garnett, supra, 129 Cal. at p. 366
[“[C]oncealment necessarily includes the element of some
affirmative act upon the part of the person tending to or looking
toward the concealment of the commission of the felony. Mere
silence after knowledge of its commission is not sufficient to
constitute the party an [accessory]”].) The majority quotes this
language from Nuckles but fails to accord it the significance it
deserves (particularly the Court’s reference to affirmative
assistance) when analyzing the sufficiency of the evidence to
support the Penal Code section 32 convictions.




                                 11
      Furthermore, the Nuckles court cited the Court of Appeal’s
decision in People v. Duty, supra, 269 Cal.App.2d 97 (Duty) with
approval, and Duty even more precisely addresses the meaning
and scope of Penal Code section 32 as relevant to the key issue
presented here. In Duty, there was evidence that the defendant
provided a false alibi for another suspected of arson. (Id. at pp.
102-103.) The question was whether this “inferably false
statement” to the fire investigators was sufficient to convict the
defendant as an accessory after the fact. (Id. at p. 103.)
      The Court of Appeal observed that, at the time of its
decision (in 1969), the question of “[w]hether a falsehood to the
police or other public investigators may violate the accessory
statute is a new question in California.” (Duty, supra, 269
Cal.App.2d at p. 103.) The court explained that “[a]ccording 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 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.” (Id. at pp. 103-104.)
      The Duty court upheld the defendant’s accessory conviction,
but only because the defendant “had actively concealed or aided
[the suspected arsonist] by supplying an affirmative and
deliberate falsehood to the public authorities,” which meant there
was “more than passive non-disclosure.” (Id. at p. 104.) Later
California cases continue to adhere to this same principle: that
an affirmative false statement can qualify as aiding an accused
felon and may support an accessory after the fact conviction, but
mere passive non-disclosure may not. (See, e.g., People v.




                                12
Plengsangtip (2007) 148 Cal.App.4th 825, 838 [“Indeed, a
statement that one knows nothing about a crime, even if false, is
equivalent to a passive nondisclosure or refusal to give
information, which is insufficient to support an accessory
charge”] (Plengsangtip); People v. Nguyen (1993) 21 Cal.App.4th
518, 539 [citing Duty for the proposition that “in some
circumstances supplying an affirmative and deliberate falsehood
to public authorities, such as by providing a false alibi, is
sufficient to make the relator an accessory” but holding nothing
in the defendant’s statement to police investigators (which
downplayed his role at the scene of the robberies) went so far].)
       Despite the lack of evidence of any affirmative assistance to
support a Penal Code section 32 conviction here, the majority
nevertheless affirms defendant’s conviction—offering two reasons
to justify the result it reaches. Neither withstands scrutiny.
       First, the majority opinion states “there is precedent for an
accessory conviction under the facts of this case” because
California courts have upheld convictions “[u]nder similar
circumstances.” (Ante at p. 8.) The opinion is wrong on this
point—there is nothing similar about the present circumstances
and those in the cases the majority cites. Rather, all of the
California cases the majority cites are factually dissimilar in the
most critical respect: each involves an affirmative false statement
made by the defendant, not, as here, mere silence that constitutes
passive non-disclosure.7 (Ante at p. 8 [citing Plengsangtip, supra,


7
      The majority’s citations to Federal sentencing guidelines
cases are not persuasive for at least two related reasons. First,
the Federal sentencing guidelines are advisory guides to
punishment and the task, when no guideline clearly applies, is to
find one that is most analogous even if dissimilar. The




                                13
148 Cal.App.4th at pp. 835-839 {“the defendant lied to a
detective”}; In re I.M. (2005) 125 Cal.App.4th 1195, 1203-1206
{the minor “falsely told police the principal shot the victim in self-
defense”}; Duty, supra, 269 Cal.App.2d at pp. 100-105 {the
defendant “gave a false alibi to the public investigator”}].)
      Second, the majority argues “defendant’s ‘silence’ was an
overt or affirmative act falling within the terms of [Penal Code]
section 32 because she had a duty to testify” at the murder
suspects’ preliminary hearing. (Ante at p. 13.) As outlined by the
majority, the argument is that she had a duty to testify because
she had been subpoenaed and given immunity, and “‘when an
individual’s criminal liability is based on the failure to act, it is
well established that he or she must first be under an existing
legal duty to take positive action.’” (Ante at p. 13.) This
argument proves both too little and too much.



sentencing guidelines have nothing to say about the elements of
an offense, and the majority cites no Federal case that holds a
mere refusal to testify permits a conviction for being an accessory
after the fact. Indeed, in both United States v. Brady (1st Cir.
1999) 168 F.3d 574 and United States v. Ortiz (7th Cir. 1996) 84
F.3d 977, the recalcitrant witnesses were charged with and
convicted of criminal contempt, not being accessories after the
fact. (Brady, supra, at p. 576; Ortiz, supra, at p. 978.) Second, in
the Federal scheme, there is no felony-misdemeanor dichotomy as
there is in California; both criminal contempt and being an
accessory after the fact are punishable as felonies, with the
criminal contempt statute (not the accessory statute as in
California) being the one that authorizes more severe
punishment—up to life in prison. (18 U.S.C. §§ 3, 401; see also
United States v. Wright (1st Cir. 2016) 812 F.3d 27, 31-32.)




                                 14
       It is of course true that criminal liability for failure to act
can only attach where there is a duty to act, but that does not
resolve the key question, namely, what criminal liability?
Defendant refused to testify when properly compelled, and there
is a remedy for that: criminal contempt. The majority’s argument
therefore at most proves that defendant was properly convicted of
some criminal offense and offers nothing persuasive to
specifically establish that a conviction for “aiding” her brother
and the other men, within the meaning of Penal Code section 32,
was proper. At the same time, the argument also proves too
much because if this is an “affirmative act” case, 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.8 I see no reason to believe
the Legislature intended to reach so far, and 82 years of criminal
practice in this state tends to show otherwise.

                                   C
      So far as I am aware, today’s decision places California on
the extreme outer edge of jurisdictions—indeed, in a group unto
itself—concerning the reach of accessory after the fact
punishment. As summarized by Professor LaFave, the specifics
of what type of aid will suffice to support an accessory conviction


8
      The grant of immunity to defendant is beside the point and
therefore does not cabin the majority’s rationale. It is the
subpoena that provides the compulsion—granting immunity
simply removes an otherwise viable objection to complying with
the subpoena.




                                 15
vary somewhat from state to state, but “[f]ive kinds of aid usually
are proscribed: (1) harboring or concealing the criminal; (2)
providing him with certain means (e.g., a weapon, transportation,
a disguise) of avoiding apprehension; (3) concealing, destroying or
tampering with evidence; (4) warning the criminal of his
impending discovery or apprehension; and (5) using force,
deception or intimidation to prevent or obstruct the criminal’s
discovery or apprehension. To this list, a few jurisdictions have
[also] added the giving of false information in certain
circumstances.” (2 LaFave, supra, § 13.6(a), pp. 555-556,
footnotes omitted [citing state statutes].) None of these
categories extends to mere silence in the face of compulsion to
testify.
       Moreover, some sister states have partially or completely
exempted a defendant from accessory liability where the person
who the defendant assists is a close family member. (See, e.g.,
Mass. Gen. Laws, ch. 274, § 4 [“Whoever, after the commission of
a felony, harbors, conceals, maintains or assists the principal
felon or accessory before the fact, or gives such offender any other
aid, knowing that he has committed a felony or has been
accessory thereto before the fact, with intent that he shall avoid
or escape detention, arrest, trial or punishment, shall be an
accessory after the fact . . . . The fact that the defendant is the
husband or wife, or by consanguinity, affinity or adoption, the
parent or grandparent, child or grandchild, brother or sister of
the offender, shall be a defence to a prosecution under this
section”]; Fla. Stat. § 777.03 [“Any person not standing in the
relation of husband or wife, parent or grandparent, child or
grandchild, brother or sister, by consanguinity or affinity to the
offender, who maintains or assists the principal or an accessory




                                16
before the fact, or gives the offender any other aid, knowing that
the offender had committed a crime and such crime was a third
degree felony . . . with the intent that the offender avoids or
escapes detection, arrest, trial, or punishment, is an accessory
after the fact”].)9 California obviously has no similar exemption,
and I do not argue it should. But we as a court should be
especially wary of rendering a decision that makes this state a
marked outlier, particularly when we have not considered all of
the circumstances in which the more severe punishment of the
accessory statute might be used in place of the established
contempt statutory scheme (e.g., for a defendant who declines to
incriminate his or her child when subpoenaed to testify).

                                  IV
       If today’s decision stands, accessory charges for recalcitrant
witnesses are now fair game. The majority believes that is a good
thing, and I agree that solving crimes and bringing perpetrators
to justice is undeniably important. But there are countervailing
considerations when deciding how strongly to punish someone
who does not assist in prosecuting crimes, and some weighing of
the appropriate penalty in the balance is necessary. The
Legislature has already done that weighing, and there are no
workarounds.
       The People do have an argument that some updating of the
long-established contempt sanctions for refusing to testify, at
least in certain cases, deserves consideration. But they are


9
      Other states do not provide an exemption for certain
familial relationships but do provide for a reduction in
punishment when the felon aided is a close family member. (See
generally 2 LaFave, supra, § 13.6(a), p. 557.)




                                 17
arguing in the wrong place. The halls of the capitol in
Sacramento, not Los Angeles-area courtrooms, is where that case
must be made.
      Defendant’s Penal Code section 166 conviction is properly
affirmed. I respectfully dissent from the affirmance of
defendant’s four Penal Code section 32 convictions.




                          BAKER, J.




                              18
