California "Accessory After the Fact" Laws
(Penal Code 32 PC)

Penal Code 32 PC is the California law that defines what it means to be an accessory after the fact "AATF."  You violate this law when you assist a perpetrator after he/she has committed a felony by aiding in his/her escape from arrest, trial, conviction and/or punishment.1

Example

Robert, a drunk driver, runs a red light and causes a deadly accident.  Robert then flees on foot when his friend Jamie picks him up.  Jamie takes Robert to Jamie's house to hide out.  Then...in an effort to delay the officer's DUI investigation (which necessarily involves a strict time line)...Jamie returns to the scene and tells the officers that she doesn't know Robert's whereabouts.

As a result, Jamie is charged with one felony count of being an accessory after the fact and with a related misdemeanor charge of resisting and obstructing a police officer.2

Defenses

There are a variety of legal defenses that apply to an AATF charge.  These include taking the position that:

  • you had no knowledge of the felony / or there was no felony
  • you were simply a bystander and had no connection to the crime or its aftermath
  • you were under duress when you acted
  • you were falsely accused / or a victim of mistaken identity
Penalties

Being an accessory after the fact is a wobbler, which means that prosecutors may file the charge as either a misdemeanor or a felony, depending on

  1. the facts of the case, and/or
  2. your criminal history.

If convicted, you face up to a $5,000 fine and

  1. up to one year in a county jail for a misdemeanor, or
  2. 16 months or two or three years in the California state prison for a felony.

Below, our California criminal defense attorneys3 explain California's laws regarding being an "accessory after the fact" by addressing the following:

1. What is an "Accessory After the Fact?"

1.1. Parties to a crime

1.2. Legal definition of accessory after the fact

1.3. Examples

2. Legal Defenses

2.1. You had no knowledge of the felony

2.2. There was no felony

2.3. You were simply a bystander

2.4. You were under duress

2.5. You were falsely accused

2.6. You were a victim of mistaken identity

3. Penalties, Punishment and Sentencing

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What is an "Accessory After the Fact?"

California law states that there are two types of parties to a crime:

  • principals
  • accessories.4

1.1. Parties to a crime

"Principals" include anyone who participates in the crime before or during the actual offense. This not only includes the perpetrator but also those who "aid and abet" the perpetrator and anyone who acts as an accessory before the fact.5 "Aiders and abettors" and accessories before the fact are people who help plan, encourage or facilitate the commission of the offense.6

Visit our page on the California law of aiding and abetting a crime for a more detailed discussion.

And because "principals to a crime" all share criminal intent, the general rule is that they are all subject to the same charges and the same penalties.

The term "accessory before the fact" has essentially been eliminated from California law.  Those individuals are now collectively referred to as principals, and the only people who qualify as true "accessories" are accessories after the fact.7

Penal Code 32 PC

Penal Code 32 PC defines the crime of being an accessory after the fact ("AATF").  Accessories after the fact help the perpetrator after he/she has committed a felony by aiding in his/her escape from arrest, trial, conviction and/or punishment.8 Since accessories after the fact do not share the same criminal intent as the perpetrator(s), they face less severe punishment than principals.9

It's also important to understand that being an accessory after the fact is a spontaneous type of act.  In fact, if you have a predetermined "plan" or "agreement" to provide help after the crime's commission, you would not be considered an accessory after the fact, but would instead qualify as

  • an aider and abettor, and/or
  • a co-conspirator (a conspiracy involves an agreement to participate in criminal activity,10 whereas aiding and abetting and being an AATF do not).

1.2. The legal definition of accessory after the fact

In order for the prosecutor to prove that you are guilty of being an accessory after the fact, he/she must prove the following facts (otherwise known as "elements" of the crime):

  1. someone committed a felony (there are no accessories to misdemeanors)11,
  2. you knowingly harbored, concealed or aided that individual,
  3. knowing that he/she had
    a) committed the felony,

    b) was charged with the felony, or

    c) was convicted of the felony,
  4. in order to protect him/her from arrest, trial, conviction and/or sentencing.12

To determine whether an individual meets these elements, the court considers factors such as

  • the defendant's presence (or absence) at the crime scene,
  • how the defendant knew about the felony, and
  • the defendant's relationship to the principal, both before and after the offense.13

1.3. Examples

There are a variety of ways that you can qualify as an accessory after the fact.

  • Concealing the perpetrator,
  • helping the perpetrator flee the scene,
  • destroying physical evidence (such as hiding a weapon or throwing away blood-stained clothing), and
  • lying to the police

are just a handful of examples.  The following are examples of actual cases involving accessories after the fact.

Concealing evidence-

Steven calls his wife from jail and tells her that the gun he used to "shoot the Mexicans" is in the bushes next to a tree in front of their house.  Steven instructs her to get the gun and to take it to his mother's house.  She does.

Because that phone call puts Steven's wife on notice that her husband committed a felony...and because she complies with his request...she becomes an accessory after the fact.14

Lying to the police-

While being interviewed by the police about a murder, Mike tells the officer that (1) he did not see Bob, the victim, at the crime scene on the day of the crime, and (2) he did not see any type of assault while he was there either.  Mike also makes several comments vouching for the culprit's good character and makes assurances that the culprit "would not find himself involved in such heinous behavior."

Because Mike makes these "affirmative representations" to shield the culprit from prosecution, he qualifies as an accessory after the fact.

The court in this case noted that (1) Mike was seen at the crime scene with Bob just before Bob was killed, (2) that it would be "inconceivable" for Mike not to have been aware of the violent assault perpetrated on Bob, and that (3) Mike's other statements were also unbelievable in light of the murder and surrounding facts.15

Destroying evidence-

Isabel watches as her son Miguel struggles with Norma on the kitchen floor (Norma is at Isabel's house to collect money that Norma had previously lent Isabel).  Miguel takes Norma out of the house and places her body in the trunk of his car.  Not knowing whether Norma is "dead or alive," Isabel goes inside and sweeps and mops the kitchen floor to remove any traces of blood.  Isabel thereafter tells a friend that she had pushed Norma who then hit her head on a rock...a story she repeats for the police...in an effort to protect Miguel.  According to the doctor who performed the autopsy, Norma did not receive the "fatal" blow until she was at the site where her body was ultimately found.

The court stated that a murder is not complete until the victim dies.  "A person may aid and abet a murder after the fatal blow is struck as long as the
aiding and abetting occurs before the victim dies.  After the victim dies, what would be aiding and abetting legally turns into being an accessory 'after a felony has been committed.'"

The court held that Isabel was properly convicted of being an aider and abettor based on the fact that she cleaned up any blood that was in the kitchen before Norma died.  If Isabel had not performed that act...but instead merely made the false representations to protect Miguel after the death...she would have become an accessory after the fact.16

Driving a "get-away" car -

In one case, Karen drives her brother-in-law Steven to the bank, waits in the car and then drives off after Steven robs the bank.  The jury did not believe that Karen had any criminal intent before the crime but only attempted to help Steven escape after he committed the robbery. The court upheld the jury's decision based on the fact that the robbery was complete as soon as Steven received the money from the bank teller.17

Yet in another case...a case decided six years later...Larry drives two friends to the mall, waits in the car and then drives them away from the mall after they commit a robbery.  In this case, Larry is convicted of aiding and abetting instead of being convicted of being an accessory after the fact.

The court in this case upheld the jury's decision because it believed that the crime of robbery isn't complete until the perpetrator reaches a place of "temporary safety" with the loot which means that driving the "get-away" car is an act which is committed during the commission of the offense.18

And, on another note, there may be times when your conduct will support charges as both a principal and an accessory.

Example:

Concealing evidence and misleading the police-

Irving and some friends "open fire" on some rivals. A bystander is shot and killed.  Irving is then convicted of second-degree murder and of being an accessory after the fact.  The murder conviction was based on an "aiding and abetting" theory and the AATF conviction was based on Irving's separate and distinct conduct of (1) concealing physical evidence after the murder, and (2) making false, misleading statements to the police about the murder.19

2. Legal Defenses

The good news is that there are a number of legal defenses that can help fight your "accessory after the fact" charge...defenses that your California criminal defense attorney can present on your behalf.

The following are some of the most common:

2.1. You had no knowledge of the felony

Even if you ultimately helped harbor, conceal or aid a felon...but were not aware that you were doing so at the time...you are not an accessory after the fact and should be acquitted of the charge.

Examples:
  • Mike...who had just committed a robbery...flees the crime scene.  He flags you down from a nearby street and asks for a ride, telling you his car broke down.  You comply and drive him to one of his friend's houses.  Because you don't know about the robbery, you are not an accessory after the fact.

  • The perpetrator, your friend, has already been convicted of felony burglary...an offense which you know nothing about.  When she is supposed to turn herself in to serve her sentence, she asks if she can stay with you under the guise that she is trying to escape her abusive boyfriend.  You agree.  Again, because you don't know of her fugitive status, you are not being an accessory.

However, if you subsequently discover that your friend committed a felony ...and then knowingly help her avoid arrest, trial, conviction and/or punishment...this defense will no longer apply and you will become an AATF.20

2.2. There was no felony

The first element defined in the crime of being an accessory after the fact is that "someone committed a felony."21 It therefore follows that if there was no underlying felony, you can't be convicted of being an accessory after the fact.  And it bears repeating that you cannot be an accessory after the fact to a misdemeanor.

But if the underlying crime is what is known as a wobbler which means that it may be sentenced as either a misdemeanor or a felony, depending on

  1. the facts of the case, and
  2. your criminal history,

then it will be considered a felony up until the time of sentencing.  This means that if, for example, you help someone flee the scene of a burglary (which is a wobbler), you could still be prosecuted for being an accessory after the fact.22

However, if you didn't try to harbor or conceal the perpetrator until after the judge sentenced him to serve 30 days in the county jail...and the crime was sentenced as a misdemeanor...you would not be guilty of being an accessory after the fact under these circumstances.  You would, however, likely be charged with additional crimes such as obstructing justice under Penal Code 148 PC California's resisting arrest law.

And, incidentally, charges for

are commonly filed in connection with an AATF charge, since these laws apply anytime someone provides false or misleading information to an officer who is trying to conduct an investigation.

These are both misdemeanor offenses.  The former is punishable by up to one year in a county jail and a maximum $1,000 fine.  The latter is punishable by the same fine and up to six months in a county jail.

2.3. You were simply a bystander

If you do not "harbor, conceal or aid" a principal in a felony "with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment," you are not an accessory after the fact - period.

As Palm Springs criminal defense attorney Michael Scafiddi23 explains, "Failing to reveal a crime, refusing to give information about a crime or denying knowledge about a crime simply because you don't want to be involved does not make you an accessory after the fact.   Even if you witness a crime and do nothing to try to stop it, you are still a mere bystander.  Being an AATF requires more...you can only be convicted of this offense if you take affirmative steps to help the perpetrator.  Failing to act generally does not subject you to this type of liability."24

But note that there is a distinction between not saying anything and providing a deliberately misleading statement.  For example, if you know a crime occurred, you can't tell the police that no crime occurred.  If you do, that helps "aid" the perpetrator and subjects you to accessory liability.

2.4. You were under duress

Even if you did serve as an accessory after the fact...but only did so because you were under duress...you may be absolved of any criminal liability.  If you act under duress, it means that you only act because another person has issued an immediate threat to kill or seriously harm you or another person unless you perform as instructed.25

There are a number of ways that this defense may come into play.

Perhaps a gang member...pointing a gun at you...flags you down and demands that you drive him away because he just shot and killed a rival gang member while walking down the street.

Perhaps a bank robber...after completing a robbery...threatens to shoot everyone in the bank unless you "tie up" the bank employees and customers so that he can leave the bank without anyone reporting the crime.

Perhaps a notorious drug dealer gets a tip that the police are on their way to his house to search for drugs.  He threatens to rape your daughter (who is in your car) unless you take his mass quantities of drugs to your house to hide them from the police.

There are two important facts to note:

  1. the threat of harm or death must be imminent (a threat of future harm will not sustain a duress defense), and
  2. duress is not a defense to murder.  You are not permitted to kill another person to save your own life unless you do so in self-defense.26

2.5. You were falsely accused

This might be the case if, for example, someone is looking to reduce or eliminate his/her role in the offense.  He/she points the finger at you in an effort to distract the authorities from his/her actual culpability.  Or perhaps someone is falsely accusing you in an effort to "set you up"...an act motivated by anger, revenge or jealousy.

Regardless of the reason why you were falsely accused, our background experience as former police investigators and district attorneys provides us with the most effective techniques to expose these accusations for what they really are and confirm your innocence.

2.6. You were a victim of mistaken identity

This defense would be most effective in an accessory after the fact case if, for example, you were charged with being a "get-away" driver or with providing some other type of "on the scene" support.  Perhaps you looked like the person that witnesses described, or your car matched the description that witnesses provided to the police.

Mistaken identification is the number one reason for false arrests and wrongful convictions.

3. Penalties, Punishment and Sentencing

Being an accessory after the fact is itself a wobbler.  If convicted, you face a $5,000 fine and

  1. up to one year in a county jail for a misdemeanor, or
  2. 16 months or two or three years in the California state prison for a
    felony.27

In addition, if the underlying felony was a crime of moral turpitude or another deportable crime, you could face deportation / removal even if you are a legal alien or immigrant.

Call us for help...
Img-call-for-help

If you or loved one is charged with Penal Code 32 PC accessory after the fact and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

For information about Nevada laws for accessories after the fact, see our article on Nevada laws for accessories after the fact.

You may also find helpful information in our related articles on Aiding and Abetting; Conspiracy; Penal Code 148 PC Resisting or Obstructing an Officer; Providing False Information to an Officer; Legal Defenses: Duress; Wobblers; Misdemeanors; Felonies; Crimes of Moral Turpitude; and Deportable Crimes.

Legal References:

1 Penal Code 32 PC -- Accessories defined.  ("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.")

See also People v. Nguyen (1993) 21 Cal.App.4th 518, 536.  (" Guilt as a principal and being an accessory after the fact have been said to be mutually exclusive. ( People v. Prado, supra, 67 Cal.App.3d at p. 273.) However, the mutually exclusive concept should not be overstated. This concept is merely an application of the "bright line" rule we have referred to in connection with principals under section 31, that is, anyone "concerned" in the commission of a crime, no matter how slight such concern may be, is guilty as a principal. ( People v. Talbott, supra, 65 Cal.App.2d 654, 665.) Such a person must commit or intentionally encourage or assist another to commit an offense before or during the commission of the crime. ( People v. Durham, supra, 70 Cal.2d at p. 181.) An accessory, on the other hand, must lend assistance to the principal after the commission of the offense with the intent of helping him escape capture, trial or punishment.")

2Orange County Register: Man Covered for Friend in Deadly DUI Crash

3 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

4 Penal Code 30 PC -- Classification.  ("CLASSIFICATION OF PARTIES TO CRIME. The parties to crimes are classified as: 1. Principals; and, 2. Accessories.")

5 Penal Code 31 PC -- Principals defined.  ("All 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, and all persons counseling, advising, or encouraging children under the age of fourteen years, or persons who are mentally incapacitated, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.")

6 California Jury Instructions - Criminal "CALJIC" 3.01 -- Aiding and Abetting.  ("A person aids and abets the [commission] [or] [attempted commission] of a crime when he or she: (1) With knowledge of the unlawful purpose of the perpetrator, and (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and (3) By act or advice, [or, by failing to act in a situation where a person has a legal duty to act,] aids, promotes, encourages or instigates the commission of the crime. [A person who aids and abets the [commission] [or] [attempted commission] of a crime need not be present at the scene of the crime.] [Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.] [Mere knowledge that a crime is being committed and [in the absence of a legal duty to take every step reasonably possible to prevent the crime,] the failure to prevent it does not amount to aiding and abetting.]")

7 Penal Code 971 PC -- Abrogation of distinction between accessories and principals, and between principals in first and second degree; effect upon pleadings.  ("The distinction between an accessory before the fact and a principal, and between principals in the first and second degree is abrogated; and all persons concerned in the commission of a crime, who by the operation of other provisions of this code are principals therein, shall hereafter be prosecuted, tried and punished as principals and no other facts need be alleged in any accusatory pleading against any such person than are required in an accusatory pleading against a principal.")

8 California Penal Code 32 PC -- Accessories defined.  ("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.")

See also People v. Nguyen (1993) 21 Cal.App.4th 518, 536.  (" Guilt as a principal and being an accessory after the fact have been said to be mutually exclusive. ( People v. Prado, supra, 67 Cal.App.3d at p. 273.) However, the mutually exclusive concept should not be overstated. This concept is merely an application of the "bright line" rule we have referred to in connection with principals under section 31, that is, anyone "concerned" in the commission of a crime, no matter how slight such concern may be, is guilty as a principal. ( People v. Talbott, supra, 65 Cal.App.2d 654, 665.) Such a person must commit or intentionally encourage or assist another to commit an offense before or during the commission of the crime. ( People v. Durham, supra, 70 Cal.2d at p. 181.) An accessory, on the other hand, must lend assistance to the principal after the commission of the offense with the intent of helping him escape capture, trial or punishment.")

9 California Penal Code 33 PC -- Accessories; punishment.  ("Except in cases where a different punishment is prescribed, an accessory is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.")

10 California Penal Code 182 PC - Conspiracy.  ("(a) If two or more persons conspire: (1) To commit any crime. (2) Falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime. (3) Falsely to move or maintain any suit, action, or proceeding. (4) To cheat and defraud any person of any property, by any means which are in themselves criminal, or to obtain money or property by false pretenses or by false promises with fraudulent intent not to perform those promises. (5) To commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws. (6) To commit any crime against the person of the President or Vice President of the United States, the Governor of any state or territory, any United States justice or judge, or the secretary of any of the executive departments of the United States. They are punishable as follows: When they conspire to commit any crime against the person of any official specified in paragraph (6), they are guilty of a felony and are punishable by imprisonment in the state prison for five, seven, or nine years. When they conspire to commit any other felony, they shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony. If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony the defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree. If the felony is conspiracy to commit two or more felonies which have different punishments and the commission of those felonies constitute but one offense of conspiracy, the penalty shall be that prescribed for the felony which has the greater maximum term. When they conspire to do an act described in paragraph (4), they shall be punishable by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both that imprisonment and fine. When they conspire to do any of the other acts described in this section, they shall be punishable by imprisonment in the county jail for not more than one year, or in the state prison, or by a fine not exceeding ten thousand dollars ($10,000), or by both that imprisonment and fine. When they receive a felony conviction for conspiring to commit identity theft, as defined in Section 530.5, the court may impose a fine of up to twenty-five thousand dollars ($25,000). All cases of conspiracy may be prosecuted and tried in the superior court of any county in which any overt act tending to effect the conspiracy shall be done. (b) Upon a trial for conspiracy, in a case where an overt act is necessary to constitute the offense, the defendant cannot be convicted unless one or more overt acts are expressly alleged in the indictment or information, nor unless one of the acts alleged is proved; but other overt acts not alleged may be given in evidence.")

See also California Penal Code 184 PC - Conspiracy; overt act.  ("No agreement amounts to a conspiracy, unless some act, beside such agreement, be done within this state to effect the object thereof, by one or more of the parties to such agreement and the trial of cases of conspiracy may be had in any county in which any such act be done.")

11 1 Witkin, Cal. Crim. Law 3d (2000) Intro--Crimes, § 90, p. 143.  ("As at common law, there are no accessories to a misdemeanor. (See Perkins 3d, p. 748.)")

12 CALJIC 6.40 Accessories.  ("(Penal Code § 32) Defendant is accused [in Count[s] ] of having committed the crime of being an accessory to a felony in violation of section 32 of the Penal Code. Every person who, after a felony has been committed, harbors, conceals or aids a principal in that felony, with the specific intent that the principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that the principal has committed that felony or has been charged with that felony or convicted thereof, is guilty of the crime of accessory to a felony in violation of Penal Code section 32. In order to prove this crime, each of the following elements must be proved: 1 A felony, namely , was committed; 2 Defendant harbored, concealed or aided a principal in that felony with the specific intent that the principal avoid or escape [arrest] [trial] [conviction or punishment]; and 3 Defendant did so with knowledge that the principal [committed the felony] [was charged with having committed the felony] [was convicted of having committed the felony].")

See also People v. Plengsangtip (2007) 148 Cal.App.4th 825, 836.  ("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.")

13 People v. Plengsangtip, above at 837.  ("Furthermore, in determining whether a defendant had the requisite knowledge and intent to commit the crime of accessory, the jury may consider "such factors as [the defendant's] possible presence at the crime or other means of knowledge of its commission, as well as his companionship and relationship with the principal before and after the offense."")

14 People v. Wilson (1993) 17 Cal.App.4th 271.

15 People v. Plengsangtip at 837, endnote 12, above.

16 People v. Celis (2006) 141 Cal.App.4th 466.

17 People v. Scott (1985) 170 Cal.App.3d 267.

18 People v. Cooper (1991) 53 Cal.3d 1158.

19 People v. Mouton (1993) - overruled on other grounds - 15 Cal.App.4th 1313, 1324-1325.  ("Similarly, there is no bar to conviction as both principal and accessory where the evidence shows distinct and independent actions supporting each crime. When a felony has been completed and a person knowingly and intentionally harbors, conceals or aids the escape of one of the felons, that person is guilty as an accessory to a felony under [California Penal Code] section 32, whatever his or her prior participation in the predicate felony...Under these circumstances, defendant's responsibility both as an accomplice to the murder and for the separate and distinct crime of acting as an accessory to a felony was neither logically inconsistent nor legally prohibited. Although defendant was technically convicted of being an accessory to his own crime, in substance he was convicted for two different sets of actions. The court, therefore, did not err in failing to instruct the jury the two offenses were mutually exclusive.")

20 People v. Nguyen (1993) at 537, endnote 8, above.  ("A person who is in some manner involved in a crime and/or its aftermath may be guilty of the crime as an aider and abettor or of the distinct offense of being an accessory, but in order for the defendant to be found guilty of either, all of the elements applicable to one or the other must coalesce at an appropriate time. A person who unwittingly aids a perpetrator does not become an accessory when he later learns of the perpetrator's criminal purpose unless he thereafter does something to help the perpetrator get away with his crime.")

21 See CALJIC 6.40 Accessories, endnote 12, above.

22 People v. Moomey (2011) 194 Cal.App.4th 850, 856-857. ("The alleged felony committed by another in this case is burglary, committed by Lorette.FN4 Defendant asserts, and the People do not dispute, that if Lorette committed a burglary of the Stater Bros. store, it was burglary in the second degree. (See § 460.) He points out that second degree burglary is a "wobbler," and may be punished as either a misdemeanor or a felony. ( §§ 17, 460, 461.) He then argues there was no evidence that Lorette's burglary was a felony, not a misdemeanor. We reject the argument...Our state Supreme Court, interpreting a prior (but for our purposes substantially identical) version of section 17, stated: "[T]he proper interpretation of section 17 as applied to a crime which is punishable either as felony or as misdemeanor [is]: 'the charge stands as a felony for every purpose up to judgment, and if the judgment be felonious in that event it is a felony after as well as before judgment; but if the judgment is for a misdemeanor it is deemed a misdemeanor for all purposes thereafter-the judgment not to have a retroactive effect ...' [citation]." ( People v. Banks (1959) 53 Cal.2d 370, 381-382, 1 Cal.Rptr. 669, 348 P.2d 102.) The court recently reaffirmed this view in People v. Feyrer (2010) 48 Cal.4th 426, 106 Cal.Rptr.3d 518, 226 P.3d 998: "When a defendant is convicted (whether by a guilty plea or a no contest plea, or at a trial) of a wobbler offense, ... his or her offense is ' deemed a felony' unless subsequently 'reduced to a misdemeanor by the sentencing court' pursuant to section 17, subdivision (b). [Citations.] [¶] ... If ultimately a misdemeanor sentence is imposed, the offense is a misdemeanor from that point on, but not retroactively." ( Id. at pp. 438-439, 106 Cal.Rptr.3d 518, 226 P.3d 998; see also People v. Martinez (1998) 62 Cal.App.4th 1454, 1464, 73 Cal.Rptr.2d 358 [a wobbler offense remains a felony except when the discretion is actually exercised and the prisoner is punished only by a fine or imprisonment in a county jail].) If no sentence is ever pronounced, the offense remains a felony.")

23 Palm Springs criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients throughout the Inland Empire including San Bernardino, Riverside, Rancho Cucamonga, Hemet, Banning, Fontana, Joshua Tree, Barstow, Palm Springs and Victorville.

24 People v. Luna (App. 1956) 140 Cal.App.2d 662, 664.  ("It is elementary that one who merely stands by, watching an assault and even approving of it is not aiding and abetting. ( People v. Hill, 77 Cal.App.2d 287 [175 P.2d 45].) Such a person is a mere bystander, and if Lopez was nothing more, he was not an accessory to the assault upon Barajas.")

See also See People v. Plengsangtip at 836-837, endnote 12, above.  ("In contrast to affirmative falsehoods, 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... As the court in Duty explained, "[T]he offense [of accessory] is not committed by passive failure to reveal a known felony, by refusal to give information to 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 [section 32]." ( Duty, supra, 269 Cal.App.2d at pp. 103-104, 74 Cal.Rptr. 606, fns. omitted, italics added.) Thus, 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.  In contrast to affirmative falsehoods, 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. People v. Plengsangtip (App. 4 Dist. 2007) 56 Cal.Rptr.3d 165, 148 Cal.App.4th 825.")

25 CALCRIM 3402 -- Duress or Threats.  ("The defendant is not guilty of <insert crime[s] > if (he/she) acted under duress. The defendant acted under duress if, because of threat or menace, (he/she) believed that (his/her/ [or] someone else's) life would be in immediate danger if (he/she) refused a demand or request to commit the crime[s]. The demand or request may have been express or implied. The defendant's belief that (his/her/ [or] someone else's) life was in immediate danger must have been reasonable. When deciding whether the defendant's belief was reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in the same position as the defendant would  have believed. A threat of future harm is not sufficient; the danger to life must have been immediate. The People must prove beyond a reasonable doubt that the defendant did not act under duress. If the People have not met this burden, you must find the defendant not guilty of <insert crime[s] >.] [This defense does not apply to the crime of <insert charge[s] of murder; see Bench Notes>.]")

26 See same.

27 See California Penal Code 33 PC -- Accessories; punishment.  ("Except in cases where a different punishment is prescribed, an accessory is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.")

See also California Penal Code 18 PC -- Punishment for felony not otherwise prescribed; alternate sentence to county jail. ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years; provided, however, every offense which is prescribed by any law of the state to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.")

See also California Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")

Free attorney consultations...

Our attorneys want to hear your side of the story. Contact us 24/7 to schedule a FREE consultation with a criminal defense lawyer. We may be able to get your charges reduced or even dismissed altogether. And if necessary, we will champion your case all the way to trial.

Regain peace of mind...

Our defense attorneys understand that being accused of a crime is one of the most difficult times of your life. Rely on us to zealously and discreetly protect your rights and to fight for the most favorable resolution possible.

Office Locations

Shouse Law Group has multiple locations all across California and Nevada. Click Office Locations to find out which office is right for you.

Call us 24/7 (888) 327-4652