In Penal Code 32 PC, California law defines "accessory after the fact" as harboring, concealing or aiding a person whom you know has committed a felony, in order to protect him or her from arrest, trial, conviction and/or sentencing. 32 PC is a wobbler in California, meaning the prosecutor can file the charge as either a misdemeanor or a felony.
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 timeline), 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
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
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
- the facts of the case, and/or
- your criminal history.
If convicted, you face up to a $5,000 fine and
- up to one year in a county jail for a misdemeanor, or
- 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 a PC 32 "Accessory After the Fact?"
- 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.
California law states that there are two types of 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).
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):
- someone committed a felony (there are no accessories to misdemeanors)11,
- you knowingly harbored, concealed or aided that individual,
- knowing that he/she had
a) committed the felony,
b) was charged with the felony, or
c) was convicted of the felony,
- 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
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.
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
Note that Penal Code 152 PC makes it also illegal to conceal evidence of an accidental death.
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
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.
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
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:
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.
- 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
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
- the facts of the case, and
- 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
- resisting arrest / obstructing justice, and/or
- providing false information to an officer
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.
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.
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:
- the threat of harm or death must be imminent (a threat of future harm will not sustain a duress defense), and
- 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
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.
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.
Being an accessory after the fact is itself a wobbler. If convicted, you face a $5,000 fine and
- up to one year in a county jail for a misdemeanor, or
- 16 months or two or three years in the California state prison for a
Call us 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.
- 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.")
- Orange County Register: Man Covered for Friend in Deadly DUI Crash
- 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.
- Penal Code 30
- Penal Code 31
- California Jury Instructions - Criminal "CALJIC" 3.01 -- Aiding and Abetting.
- Penal Code 971
- California Penal Code 32
- California Penal Code 33 PC -- Accessories; punishment.
- 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.")
- 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.)")
- CALJIC 6.40 Accessories.
- People v. Plengsangtip, above at 837.
- People v. Wilson (1993) 17 Cal.App.4th 271.
- People v. Plengsangtip at 837, endnote 12, above.
- People v. Celis (2006) 141 Cal.App.4th 466.
- People v. Scott (1985) 170 Cal.App.3d 267.
- People v. Cooper (1991) 53 Cal.3d 1158.
- People v. Mouton (1993) - overruled on other grounds - 15 Cal.App.4th 1313, 1324-1325.
- People v. Nguyen (1993) at 537, endnote 8, above.
- People v. Moomey (2011) 194 Cal.App.4th 850, 856-857.
- 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.
- People v. Luna (App. 1956) 140 Cal.App.2d 662, 664.
- CALCRIM 3402 -- Duress or Threats.
- See same.
- See California Penal Code 33 PC -- Accessories; punishment.