Accessory After the Fact Liability Requires Affirmative Conduct Intended to Assist or Encourage a Crime
April 8th, 2022

[Update of this post.] Refusing to Testify After Getting Immunity Is Not Accessory After the Fact
May 5th, 2020


In People v. K.M. (In re K.M.) ___ Cal App ___(Feb. 17, 2022, A159962) [pp. 5-7] the prosecution asserted that K.M. was guilty of aiding and abetting a robbery because his very presence at the scene of the crime assisted the perpetrator of the robbery. However, the reviewing court correctly reversed the judgement because there was no evidence that K.M. took any affirmative action that assisted or encouraged the crime.

Per Penal Code 31, “[i]t is well settled that aiding and abetting the commission of a crime require[s] some affirmative action.” ( People v. Weber (1948) 84 Cal.App.2d 126, 130, italics added; accord, People v. Villa (1957) 156 Cal.App.2d 128, 134, [“[T]he test is whether the accused in any way, directly or indirectly, aided the perpetrator by acts.”]; see also 1 Witkin, Cal. Criminal Law (4th ed. 2019) Introduction to Crimes, § 100 [“A person cannot be held guilty as a party … if he or she … did not take any affirmative action when it was committed.”].) Accordingly. the word “aids” in PC 31 “refers only to overt or affirmative forms of assistance.” (People v. Partee (2020) 8 Cal.5th 860, 868-69.) [Compare F 400 Note 4 Aiding And Abetting: No Affirmative Duty To Act] [Traditional concepts of aiding and abetting do not apply when a parent has an affirmative duty to act. (E.g., PC 273).]

Penal Code 32 — which defines accessory after the fact liability –“must be interpreted in the same way” as section 31. (People v. Partee, supra.) Thus,”[a] witness’s refusal to testify in the face of a valid subpoena, while punishable as contempt, does not by itself amount to harboring, concealing, or aiding a principal within the meaning of section 32.” (People v. Partee, supra at 873-74.)

“In so holding, we decline to ‘place[ ] California on the extreme outer edge of jurisdictions — indeed, in a group unto itself — concerning the reach of accessory after the fact punishment. [Citation to DCA dissenting opinion].” (Ibid.)

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