Accessory After the Fact – Penal Code Section 32

The law provides criminal liability for anyone who knowingly helps the perpetrator of a felony crime avoid arrest or prosecution.¹

Penal Code Section 32 sets forth the definition for the crime of “Accessory After the Fact.”

Elements of the Offense

To convict a defendant of being an Accessory to a felony under Penal Code Section 32, a prosecutor must prove the following elements beyond a reasonable doubt:

1. A felony² was committed by another person;
2. The defendant knew that the other person committed a felony or had been charged with a felony;
3. The defendant actively helped the person escape, hide or somehow avoid the justice system;

AND

4. When the defendant acted, he intended to help the person avoid responsibility for his crime.³

Examples of Accessory After the Fact

Example No. 1: John gives Dan a ride to the supermarket. John is unaware that Dan has a gun in his pocket. Dan robs the supermarket, returns to John’s car and tells him what he has done. If John chooses to drive Dan away from the supermarket to help him avoid punishment, he is liable as an Accessory After the Fact. John cannot be punished for the robbery if he was not aware of Dan’s intention to rob the store, and did not encourage him or aid him in the commission of the robbery. He can be held accountable, however, for driving Dan away under the lesser crime of Accessory to a Felony as defined by Penal Code Section 32.⁴

Example No. 2: The police are actively looking to arrest Bob for the crime of murder. The police contact Bob’s sister at his residence. She knows from news reports that the police have an arrest warrant for her brother. Bob’s sister tells the police that he fled to Arizona on a motorcycle the previous day. Her misinformation temporarily throws investigators off of Bob’s trail. Her lies would constitute the Crime of Accessory After the Fact.

A person is not guilty of being an Accessory to a felony if he or she refuses to cooperate with investigators, even if he or she is aware of incriminating information.⁵ However, if the witness provides a false alibi or somehow misleads investigators, he can be prosecuted under Penal Code Section 32.⁶

Defenses

All cases turn on their unique facts. An Accessory charge is typically defended in the following three ways:

1. Knowledge & Intent. Defense counsel may attack evidence that his client “knew” that a felony had been committed when he assisted the perpetrator. Similarly, counsel may aggressively challenge any evidence that the defendant acted with the “intent” to help the perpetrator avoid arrest and punishment.
   Because an Accessory must have a specific intent to help someone to avoid the justice system, “intoxication” and other factors relevant to his mental state may be admissible at the time of trial.
2. Identity of the Accessory. In many cases, defense counsel should aggressively challenge how the police identified the defendant, and the accuracy of any identification procedure utilized. The accuracy of photographic lineups, in field show-ups and live lineups can often be effectively challenged by an experienced criminal defense attorney.
3. Duress. If the defendant helped the person who committed the original felony out of fear, defense counsel can raise a duress defense.⁷ The defendant must reasonably fear that his or her life was in danger when raising a duress defense.⁸ Additionally, you may only raise a duress defense if the threat to life was immediate. In other words, a vague or future threat is insufficient to raise a duress defense.⁹

Punishment

The crime of Accessory to a Felony is a “wobbler.” This means it can be punished as either a felony or a misdemeanor. Accessories are punished by a fine not exceeding $5,000, incarceration in the county jail for up to one year (misdemeanor), or local prison for up to three years (felony).¹⁰

Commentary

Bill Haney is a former supervising attorney and homicide prosecutor in the Ventura County District Attorney’s Office. Ventura County is widely known to be an aggressive law enforcement jurisdiction. Police and prosecutors typically act harshly towards any person who aids a friend or family member following the commission of a felony. Although the charge is a “wobbler”, i.e., it may be prosecuted as a misdemeanor or a felony, those arrested for Accessory After the Fact will almost always be charged with a felony in Ventura County.

The Accessory charge under Penal Code Section 32 is often used by prosecutors to compel the friends, family members and lesser accomplices of criminal defendants to testify against them in court. For example, it is common for a murder suspect to seek help from friends or family members to destroy evidence or flee the jurisdiction. Law enforcement officials will attempt to track down the family member (the Accessory), arrest him or her, and offer leniency in exchange for testimony against the perpetrator. Leniency could mean a reduced jail sentence, a misdemeanor conviction, or a complete dismissal of the criminal case in exchange for cooperation.

If you or a loved one are offered a leniency agreement in exchange for cooperation, any such deal should be negotiated with the help of an experienced attorney. As a prosecutor, Mr. Haney was responsible for negotiating and drafting leniency agreements for the Ventura County District Attorney’s Office for a 10-year period. Accordingly, he has the knowledge and experience to ensure that your rights are protected.

Often times, Ventura County prosecutors will aggressively bring charges against multiple individuals after the commission of a violent crime. Prosecutors in Ventura County are known to cast a “wide net.” By aggressively investigating and attacking the prosecutor’s case, it is sometimes possible to demonstrate that the defendant is guilty of the lesser charge of Accessory After the Fact, and not the more serious charge of robbery, murder, etc. This can make a tremendous difference in sentencing alternatives. Accessory After the Fact is not a “strike” offense. Additionally, upon the successful completion of probation, a defendant has the ability to petition the court to reduce his felony conviction to a misdemeanor, and ultimately to expunge his conviction altogether.

Beware! There is often a very fine line between the prosecutor’s decision to charge someone as an Accessory After the Fact and the underlying crime committed by the felony offender. For example, if the prosecutor’s office believes that it has the evidence to prove that a get-away driver KNEW that a robbery was planned before the commission of the robbery/homicide, the office may charge the defendant with MURDER and not as an Accessory to Murder After the Fact. Murder can be punished with a life sentence, and even death in some circumstances. If the prosecutor lacks the evidence of pre-existing knowledge, the same get-away driver is subject to no more than a three-year local prison sentence under Penal Code Section 32! Only an experienced, veteran trial lawyer should be consulted in helping you evaluate such a case!

¹Penal Code § 32.

²The underlying crime must be a felony. Penal Code Section 32 does not apply if the defendant attempted to help someone avoid responsibility for a misdemeanor offense.

³Judicial Council of California Criminal Jury Instructions No. 440. (Jan. 2006); see also People v. Nuckles (2013) 56 CVal.4th 601 [defining elements of crime of Accessory After the Fact].

⁴People v. Cooper (1991) 53 Cal.3d 1158, 1160-1161.

⁵People v. Plengsangtip (2007) 148 Cal.App.4th 825.

⁶People v Duty (1969) 269 Cal.App.3d 97, 103-104; People v. Plengsangtip (2007) 148 Cal.App.4th 825 [affirmative falsehoods can give rise to Accessory After the Fact prosecution].

⁷People v. Wilson (2005) 36 Cal.4th 309, 331.

⁸Judicial Council of California Criminal Jury Instruction 3402.

⁹Judicial Council of California Criminal Jury Instruction 3402.

¹⁰Penal Code Section § 33.