7 Things You Didn’t Know About “Accessory After the Fact” Charges

Learn Important Details About California Penal Code 32

 Under California Penal Code Section 32 anyone who harbors, conceals or aids a felon can be charged as an accessory after the fact

1. Definition of Accessory After The Fact?

definition

Accessory After the Fact – Penal Code 32.pdf

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 after the fact to such felony.

The California Penal Code under section 32 defines accessory after the fact as any person who helps a principal felon avoid, or escape the following set of four actions:

  • Arrest,
  • Trial,
  • Conviction, or
  • punishment after the felony has been committed1.

For example, if your friend has committed a burglary and you sheltered him in your garage to help him avoid the police, you would be charged with being an accessory after the fact under penal code 32.

2. How Does The Prosecutor Prove an Accessory After The Fact Charge Under Penal Code 32 pc?

To prove an accessory after the fact charge, the law requires the prosecutor to prove the following elements to be guilty of penal code 322 beyond a reasonable doubt:

  • A felony has been committed by a principal felon;
  • You knew that the principal has either (1) committed such felony; (2) has been charged with such felony; or (3) was convicted of the felony;
  • After the felony has been committed, you either harbored3, concealed, or aided the principal;
  • You assisted the felon with the intent that he/she may avoid or escape from arrest, trial, conviction or punishment.

How It Works Example: Joe and Mary agreed to rob a bank.  Joe went inside the bank to take the cash and Mary waited outside in the get-away car.  After the robbery, Joe and Mary drove to Susan’s house.  Susan has sheltered Joe and Mary before and had a deal to receive 10% of the stolen money.

Joe and Mary would be convicted as principal felons and Susan would be charged as an accessory after the fact under penal code 32 pc, because (1) a felony was committed; (2) Susan knew that Joe and Mary committed the felony; (3) Susan sheltered Joe and Mary in her house; and (4) she did so to help them avoid getting arrested and so that she could get a cut of the stolen money.

3. Who Can Be Charged With Being An Accessory After The Fact in California?

You can be charged as an accessory after the fact if you harbored, concealed, or aided a felon.  Here are some examples of actions that would qualify you as an accessory after the fact under California Penal Code 32 pc:

  • Michael sheltered Peter in his garage for a night to help him avoid the cops after Peter burglarized the local market
  • Josie concealed Walter’s car in his garage and gave Walter his own car to flee town after Walter robbed a bank
  • Mary lied to the police about having seen Jason to help Jason escape arrest after he battered Joy
  • Christina lent Mark her pick-up truck to help him flee town to avoid arrest

The parties to crimes are classified as either principles or accessories4. The key distinction between who can be charged as a principal and who can be charged as an accessory under cal penal code 32 is that the latter is someone who helps the felon after the completion of the felony.5  If that person knowingly helps a felon with the intent of helping him/her escape capture, trial or punishment, he/she can be charged as an accessory.6 In all the examples above, because the help was rendered after the completion of the crime, and because the help was rendered knowingly and with the intent to help the felons escape arrest, the type of help qualifies for a charge of accessory after the fact.

4. How Can You Fight a Charge of Accessory After the Fact & What Are The Legal Defenses?

There are several defenses that your attorney can assert on your behalf to fight a charge of accessory after the fact.  Here are the most common ones:

  • No felony was committed: since one of the elements that the prosecutor has to prove is that a felony was committed, if it can be shown otherwise, you cannot be charged as an accessory;
  • You had no knowledge of the felony: one of the elements that the prosecutor has to prove is that you knew that the principal has committed the felony, has been charged with the felony, or was convicted of the felony.  If you had no such knowledge, you cannot be convicted of accessory after the fact.

Example:  If you picked up a hitchhiker alongside the road and drove him to the nearest gas station without knowing that he had committed a felony, you cannot be charged as an accessory, because you did not know that he committed the felony.

  •  You had no intent: another element the prosecutor has to prove is that you assisted the felon with the intent that he/she may avoid or escape from arrest, trial, conviction or punishment.  However, if you have merely unwittingly helped a felon escape arrest without having the knowledge that he/she is trying to avoid arrest or that he committed a felony, you cannot be charged as an accessory.  Note that awareness of the commission of other crimes insufficient to establish guilt as an accessory awareness that a co-perpetrator has committed other crimes is not enough to find a person guilty as an accessory to those crimes unless there is evidence that the person intentionally did something to help the co-perpetrator avoid or escape arrest, trial, conviction or punishment for those offense7.8  Same example as above: If you picked up a hitchhiker alongside the road and drove him to the nearest gas station without knowing that he had committed a felony, you cannot be charged as an accessory, because you did not help him with the intent that he escape arrest; you did not even know that he committed the felony.
  • You were a bystander: another element of the offense is that you knowingly and intentionally harbor, conceal, or aid the principal.  However, if you did not have such knowledge or intent and you were merely at the scene of the crime and for example afterwards refrained from answering questions that the police asked you because you did not want to be involved, this behavior does not constitute the requisite mental state.  But note the following distinction: although a person is not guilty of being an accessory if he or she fails or refuses to give incriminating information about a third party to the police, providing a false alibi for that person violates the accessory statute.9

Example: John was at the scene of the crime when James intentionally shot and killed Vicky.  This would constitute a Murder under penal code 187 When the police arrived and asked John whether he has seen what happened, if John refuses to provide any information about what he has seen, he is not an “accessory after the fact.”  However, if John tells the police that James did not shoot Vicky but that Mark shot Vicky, John will have violated the accessory statute.

  • Duressif you provided help to the felon only because he threatened to hurt you, you did not have the requisite mental state to be convicted as an accessory.  Duress generally means a threat of force, such as violence, that the perpetrator uses to make you perform an act which you would not have otherwise performed.  The threat of harm has to be imminent to be an effective defense.10  For example, Paul holds up a gun to Mary’s head to make her drive him away from the crime scene so as to escape arrest.

5. What Are The Penalties & Punishment For Accessory After The Fact Under Penal Code 32?

example of judge sentencing

The severity of the penalties under penal code 32 and sentencing depends on several factors, including your criminal history and the severity of the offense.  For example, the sentencing guidelines differ as follows when the circumstances surrounding your case make it a misdemeanor as opposed to a felony:

For a misdemeanor11, an accessory is punishable by:

  • A fine of up to $5,000; and
  • Imprisonment in a county jail of up to but not exceeding one year.

For a felony12, an accessory is punishable by:

  • A fine of up to $5,000; and
  • Imprisonment in a county jail for a period of 16 months, or 2-3 years, depending on the seriousness of the felony.

6. Related Articles

7. How We Can Help

We have significant experience defending clients charged under “accessory after the fact” laws in california and in consultation with our clients we come up with the most effective defense strategy for your case.  The specialists at the Aizman Law Firm will aggressively defend each of our clients.  In many instances we can help you avoid serving any jail time at all.  If you meet the criteria and the District Attorney’s office indicts you it is imperative that you have an attorney that is able to defend you against these charges. Contact us at 818-351-9555 for a Free Confidential Consultation.

Footnotes

  1. 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.” []
  2. Penal Code 32; People v. Duty (1969) 269 Cal.App.2d 97, 100–101 [74 Cal.Rptr. 606]; CALCRIM No. 440. []
  3. There is no authority defining “harbor.”  Black’s Law Dictionary defines harbor as “[t]he act of affording lodging, shelter, or refuge to a person, esp. a criminal or illegal alien.”  The court may wish to give an additional definition depending on the facts of the case (7th ed., 1999, at p. 721.)  CALCRIM No. 440, Commentary. []
  4. California Penal Code 30 []
  5. There is a split of authority on whether a person may ever be guilty as an accessory and a principal to the same crime. Early case law held that it was not possible to be convicted of both because either logic or policy prohibited it. (People v. Prado (1977) 67 Cal.App.3d 267, 271–273 [136 Cal.Rptr. 521]; People v. Francis (1982) 129 Cal.App.3d 241, 246–253 [180 Cal.Rptr. 873].) However, a later case disagreed with both of these cases and held “that there is no bar to conviction as both principal and accessory where the evidence shows distinct and independent actions supporting each crime.”  (People v. Mouton (1993) 15 Cal.App.4th 1313, 1324 [19 Cal.Rptr.2d 423], disapproved on other grounds in People v. Prettyman (1996) 14 Cal.4th 248 [58 Cal.Rptr.2d 827, 926 P.2d 1013]; People v. Riley (1993) 20 Cal.App.4th 1808, 1816 [25 Cal.Rptr.2d 676]; but see (1993) 20 Cal.App.4th 1808, 1816 [25 Cal.Rptr.2d 676]; but see People v. Nguyen (1993) 21 Cal.App.4th 518, 536 [26 Cal.Rptr.2d 323] [suggesting in dicta that a person guilty as a principal can never be guilty as an accessory]. []
  6. Cal Penal Code 30,  32. []
  7. People v. Nguyen (1993) 21 Cal.App.4th 518, 537 [26 Cal.Rptr.2d 323] [defendants’ convictions as accessories to sexual assaults committed by co-perpetrators in the course of a robbery reversed; no evidence existed that defendants did anything to help co-perpetrators escape detection.] []
  8. People v. Nguyen (1993) 21 Cal.App.4th 518, 537 [26 Cal.Rptr.2d 323] [defendants’ convictions as accessories to sexual assaults committed by co-perpetrators in the course of a robbery reversed; no evidence existed that defendants did anything to help co-perpetrators escape detection] []
  9. People v. Duty (1969) 269 Cal.App.2d 97, 103–104 [74 Cal.Rptr. 606]. []
  10. [1] For example, see definition of “duress” in People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16 Cal.Rptr.3d 869, 94 P.3d 1071] in the context of lewd acts on a child, and People v. Pitmon (1985) 170 Cal.App.3d 38, 50 [216 Cal.Rptr. 221].  In People v. Lealsupra, 33 Cal.4th at pp. 1004–1010, the court held that the statutory definition of “duress” contained in Penal Code sections 261 and 262 does not apply to the use of that term in any other statute. People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16 Cal.Rptr.3d 869, 94 P.3d 1071]; People v. Pitmon (1985) 170 Cal.App.3d 38, 50 [216 Cal.Rptr. 221]. []
  11. See Cal Pen Code Section33 []
  12. See Cal Pen Code Section 1170 (h)(1 []