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Can you be charged in California for having knowledge of a crime and not reporting it?

Posted by Neil Shouse | Jul 05, 2019 | 0 Comments

police questioning a man
In most cases, people are under no legal duty to report a crime

In most cases, people are under no legal duty to report a crime. This is true no matter if someone:

  • knew about the crime in advance,
  • witnessed the crime while it unfolded or took place, and/or
  • learned of the offense after it took place.

There are, though, two main exceptions to these general rules. These are:

  1. some professionals have a legal obligation to report instances of child abuse and child neglect, per California's Child Abuse and Neglect Reporting Act (CANRA), and
  2. a party cannot aid or abet in a crime, per Penal Code 31.

Note that if a party does report a crime, and it is a false report of a crime, the false reporting is a California offense under Penal Code 148.5.

What is CANRA under California Law?

The Child Abuse and Neglect Reporting Act, sometimes referred to as California's “mandatory reporting law,” makes it a crime if certain professionals do not report instances of actual or suspected child abuse and child neglect.

Under this statute, “mandatory reporters” must tell of abuse and neglect occurrences to:

  • law enforcement personnel, and
  • social services agencies.

And, this report must be made within 36 hours of learning, or suspecting of, the abuse and/or neglect.

Examples of child abuse and child neglect under CANRA include:

  • child sexual abuse,
  • willful harming or injuring of a child, and
  • production of child pornography.

CANRA lists over 50 different professionals that are “mandatory reporters” and are required to report of instances of actual or suspected child abuse and/or neglect. Some of these professionals include:

  • teachers, school administrators, and teacher assistants or aides.
  • a social worker, probation officer, or parole officer, and
  • a clergy member.

If a professional required to report under CANRA fails to do so, that person will be charged with a misdemeanor offense. As such, the crime is punishable by:

  • imprisonment in a county jail for up to six months, and/or
  • a maximum fine of $1,000.

If a person fails to report, and an instance of abuse or neglect leads to death or great bodily injury, the person can be punished with:

  • imprisonment for up to one year in a county jail, and/or
  • a maximum fine of $5,000.

What is aiding and abetting per Penal Code 31?

The phrase "aiding and abetting" means helping another person commit a crime. Prosecutors can charge you as an aider and abettor when you:

  • know the perpetrator's illegal plan,
  • intentionally encourage and/or facilitate that plan, and
  • aid, promote, or instigate the crime.

Please note that aiding and abetting can be charged even if a person does not know in advance that a crime will be committed. Aiding and abetting may be committed as instantaneously as the crime itself. If a person becomes aware that a crime is being committed, and at that point encourages, facilitates or promotes its occurrence, the judge or jury can still find the accused guilty under an aiding and abetting theory.

Also note that as far as "encouraging, facilitating or promoting" an offense, there is no requirement that one's conduct be a substantial factor in the offense. Liability attaches to anyone concerned, however slight.

Common examples of illegal acts under this statute include:

  • serving as a lookout,
  • keeping an engine running in a car, or
  • driving the "get-away" car.

An aider and abettor generally faces the same criminal charges under California's Penal Code as the direct perpetrator. If convicted, he typically also faces the same penalties. In a murder case, for example, an aider and abettor typically faces life in prison just as does the one who commits the actual killing.

Is it a crime to make a false report of a crime per Penal Code 148.5?

Penal Code 148.5 is the California law making it a crime for a person to file a false report of a crime. Specifically, this section applies when a party makes a false report of a misdemeanor or felony criminal matter to a:

  • police or peace officer,
  • prosecutor,
  • grand jury, or
  • state or local employee assigned to accept reports from citizens (such as a 911 operator).

Penal Code 148.5 only applies when the person reporting the false crime knows it to be false. It is always a defense if the person has a good faith belief that the report is true, even if that belief turns out to be mistaken.

Penal Code 148.5 PC makes it a misdemeanor to make a false report of a crime to the police or other authorities. As a misdemeanor, a person convicted faces up to six months in county jail.

In some cases, the judge may grant probation with little or no actual jail time. In deciding how much jail time to impose, the judge will consider

  • the person's criminal history,
  • the person's motive for making the false police report, and
  • the consequences of the false report (such as whether it caused an innocent person to get arrested).

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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