People v. Partee

• Decision Date: 21 March 2018
• Docket Number: B276040
• Citation: 21 Cal.App.5th 630,230 Cal.Rptr.3d 752
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Starletta PARTEE, Defendant and Appellant.

21 Cal.App.5th 630

230 Cal.Rptr.3d 752

The PEOPLE, Plaintiff and Respondent,

v.Starletta PARTEE, Defendant and Appellant.

B276040

Court of Appeal, Second District, Division 5, California.

Filed March 21, 2018

As Modified on Denial of Rehearing April 12, 2018

Law Office of Paul Kleven, Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Colleen M. Tiedemann and Ilana Herscovitz Reid, Deputy Attorney Generals, for Plaintiff and Respondent.

DUNNING, J.^*

INTRODUCTION

Despite a grant of immunity, defendant and appellant Starletta Partee refused to testify against four individuals charged with a gang-related murder.

A jury convicted her of four felony counts of being an accessory after the fact ( Pen. Code, § 32 )¹ and one count of misdemeanor contempt for refusing to testify (§ 166, subd. (a)(6) ).² The trial court suspended imposition of sentence and placed defendant on probation for three years on the condition, among others, that she serve 365 days in the county jail.

Defendant raises several arguments on appeal: the prosecution overreached when it charged her as an accessory for refusing to testify, she cannot be guilty of being an accessory because her silence—refusing to testify—is not an affirmative act, her single act of refusing to testify does not support four felony convictions, the trial court failed to instruct on the elements of contempt, her statements to a detective were admitted into evidence in violation of her Fifth Amendment rights, and her trial counsel was ineffective for failing to raise the Fifth Amendment claim. We find no grounds for reversal and affirm the judgment.

FACTUAL BACKGROUND

On the day of a 2006 gang-related murder, City of Los Angeles police officers found the car they believed the perpetrators drove and then abandoned. The homicide detective, John Skaggs, learned the car had been rented by defendant and that she had contacted the rental car office to report it as stolen. The rental car representative told defendant to file a report with the Hawthorne Police Department. Meanwhile, Detective Skaggs contacted the Hawthorne Police Department and asked to be notified when defendant arrived. Officers from the Los Angeles Police Department met defendant there and drove her back to Detective Skaggs's office.

Detective Skaggs surreptitiously recorded the interview with defendant. After establishing the rental car had been involved in a shooting, the detective told defendant, "Even though I don't have somebody that says that a young black female shot a gun out of a car that hurt somebody, any participation you have and any lies to me, in regards to this investigation, is a crime." The interview then focused on what defendant knew about the involvement of her brother Nehemiah Robinson, her cousin Toyrion Green, and brothers Bryant and Byron Clark, lifelong friends she considered "family," in the shooting. Defendant told the detective Robinson borrowed the rental car the evening before to visit a girl. That morning, one of the Clark brothers telephoned defendant, told her to report the rental vehicle as stolen and asked to be picked up and given money to pay for a motel room. When defendant picked them up, Robinson, Green, and the Clarks told her the previous evening had been a setup. They arrived at the girl's location, but someone blocked them in and others started shooting; they shot their way out. They thought a man was dead. They abandoned defendant's rental car and fled. They added the police would never find the guns.

Robinson, Green, and the Clarks were subsequently charged with murder. When the case went to trial in 2008, however, defendant failed to appear, although subpoenaed as a witness. Attempts to locate her were unsuccessful, and the murder case was dismissed.

In April 2015, defendant was located, subpoenaed, and held in custody as a material witness. The criminal case against Robinson, Green, and the Clarks recommenced. During the June 11, 2015 preliminary hearing—despite a grant of immunity and after declining a relocation offer—defendant refused to testify. The trial court held her in contempt. Ultimately, the murder charges against the four men were once again dismissed.

Defendant was then charged with four felony counts of being an accessory after the fact to murder and one misdemeanor count of contempt for refusing to testify. She testified in her own trial and provided several reasons for refusing to testify in the murder case: she feared retaliation by the gang (she had experienced retaliation in the past); she feared for her safety and that of her daughter; she did not want to alienate her family; all four of the accused were family to her, and she did not want them to go to prison for the rest of their lives because of her testimony. Defendant further acknowledged that when she refused to testify in 2015 she knew her failure to appear as a witness in 2008 had led to the murder case being dismissed. But she denied she was helping her brother avoid trial. She testified: "Well, you guys are saying that I am helping my brother avoid trial. I believe you guys still have a case without me." She added that when her family members discovered she had spoken with Detective Skaggs, they told her not to testify because "[f]amily is first."

DISCUSSION

I. Sections 32 and 166

Defendant was convicted of four counts of being an accessory after the fact in violation of section 32. Section 32 defines an accessory as "[e]very 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." A "principal" includes "[a]ll persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission...." (§ 31.) Being an accessory after the fact is a "wobbler" offense, punishable as either a misdemeanor or felony. (§ 33.)

"The crime of accessory consists of the following elements: (1) someone other than the accused, that is, a principal, must have committed a specific, completed felony; (2) the accused must have harbored, concealed, or aided the principal; (3) with knowledge that the principal committed the felony or has been charged or convicted of the felony; and (4) with the intent that the principal avoid or escape from arrest, trial, conviction, or punishment." ( People v. Plengsangtip (2007) 148 Cal.App.4th 825, 836, 56 Cal.Rptr.3d 165 ( Plengsangtip ); accord, People v. Tran (2013) 215 Cal.App.4th 1207, 1219, fn. 7, 155 Cal.Rptr.3d 803 ( Tran ).) As section 32 expressly states, an accessory must know he or she is assisting a felon or one who has been charged with or convicted of a felony. ( Tran, supra, 215 Cal.App.4th at p. 1219, 155 Cal.Rptr.3d 803.) The effect of an accessory's actions is "to lessen the chance that the perpetrators will be captured and held accountable for their crimes." ( People v. Cooper (1991) 53 Cal.3d 1158, 1168, 282 Cal.Rptr. 450, 811 P.2d 742.)

A defendant may be convicted of being an accessory even if the principal is not prosecuted. (§ 972.) Section 972 provides: "An accessory to the commission of a felony may be prosecuted, tried, and punished, though the principal may be neither prosecuted nor tried, and though the principal may have been acquitted." The prosecution against defendant as an accessory after the fact properly went forward even though Robinson, Green, and the Clarks were never brought to trial.

Defendant was also convicted of misdemeanor contempt for refusing to testify. Section 166 sets forth conduct constituting a contempt of court. Under subdivision (a)(6), a contempt includes "[t]he contumacious and unlawful refusal of a person to be sworn as a witness or, when so sworn, the like refusal to answer a material question." Contempt under section 166 is a general intent crime. ( People v. Greenfield (1982) 134 Cal.App.3d Supp. 1, 4, 184 Cal.Rptr. 604.)

II. Prosecutorial Overreaching

Defendant argues charging her with crimes purportedly carrying a potential 40-year sentence³ constituted prosecutorial overreaching and asks this court to "emphatically reject this prosecutorial overreach, and reaffirm that recalcitrant witnesses can be subjected to coercion and punishment for contempt, but cannot be thrown in prison for decades." Defendant, however, has not shown she raised this argument in the trial court. Nor does she cite any authority on prosecutorial overreaching in support of her claim. She cites no authority precluding the accessory and contempt charges based on her refusal to testify. The Attorney General did not specifically address the overreaching claim in his brief or at oral argument. Defendant forfeited the issue by failing to raise it in the trial court.

Defendant's forfeiture notwithstanding, there is precedent for an accessory conviction under the facts of this case. Under similar circumstances, our Courts of Appeal have held defendants were properly charged with or convicted of being accessories. In Plengsangtip, supra, 148 Cal.App.4th at pages 835 through 839, 56 Cal.Rptr.3d 165, for example, the Court of Appeal held evidence adduced at a preliminary hearing sufficed to support an accessory charge where the defendant lied to a detective and falsely denied knowledge of a murder with the intent to shield the murderer. In In re I.M. (2005) 125 Cal.App.4th 1195, 1203-1206, 23 Cal.Rptr.3d 375 ( I.M . ), the Court of Appeal held substantial evidence supported...