People v. Partee

• Decision Date: 23 January 2020
• Docket Number: S248520
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Starletta PARTEE, Defendant and Appellant.

8 Cal.5th 860

456 P.3d 437

257 Cal.Rptr.3d 617

The PEOPLE, Plaintiff and Respondent,

v.Starletta PARTEE, Defendant and Appellant.

S248520

Supreme Court of California.

January 23, 2020

Paul Kleven, Berkeley, under appointment by the Supreme Court, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Louis W. Karlin, Scott A. Taryle, Stacy S. Schwartz, Colleen M. Tiedemann and Ilana Herscovitz Reid, Deputy Attorneys General, for Plaintiff and Respondent.

Jackie Lacey, District Attorney (Los Angeles), Phyllis C. Asayama and Kenneth Von Helmolt, Deputy District Attorneys, for Los Angeles County District Attorney as Amicus Curiae on behalf of Plaintiff and Respondent.

Opinion of the Court by Liu, J.

After voluntarily speaking with law enforcement in the course of a murder investigation, defendant Starletta Partee declined to testify against four suspects in the ensuing prosecution, notwithstanding the compulsion of a subpoena and a grant of use immunity. The district attorney then prosecuted Partee for her failure to testify. A jury convicted Partee of four felony counts of accessory after the fact to murder under Penal Code section 32 and one misdemeanor count of contempt of court under Penal Code section 166, subdivision (a)(6). The trial court sentenced Partee to 365 days in county jail, otherwise suspended the imposition of sentence, and placed her on probation for three years. The Court of Appeal affirmed.

Partee argues that her failure to testify does not support an accessory conviction because her silence does not fulfill the "overt or affirmative assistance" requirement of the crime of accessory. We agree. Because Partee’s convictions for accessory were predicated on her failure to testify, we reverse the judgment of the Court of Appeal as to those convictions.

I.

On August 31, 2006, when Partee was 21 years old, she reported a rental car stolen. The rental company directed her to file a claim with the Hawthorne Police Department. Partee did so. When she arrived at the Hawthorne police station, detectives from the Los Angeles Police Department met her and drove her to the office of homicide detective John Skaggs. The Los Angeles police had found the car abandoned in a housing complex, with bullet indents in the body and a bullet casing caught between the hood and windshield. The police believed the vehicle was connected to a murder that occurred the night before.

Detective Skaggs conducted an interview with Partee, which he surreptitiously recorded. In the course of the interview, he told Partee, "[Y]ou’re obligated to be completely truthful, even if it hurts. ... If you’re caught lying in some way, I would associate you directly with the murder. ... If you lie to me, this much, I will associate you to the commission of that crime, okay." He also said, "What is said in he[re] is between you and I.... Let’s get that straight now." At the close of the interview, Detective Skaggs stated, "You said, ‘All this was off the record.’ Okay. And I told you, ‘Yes.’ My question is, and it’s not going to happen, but if the District Attorney or somebody said, ‘I need you to come and tell your story to court,’ how would you feel?" Partee replied that she would not testify because "that’s my family, you help them." She added that although she would not think that her family posed a threat or danger if she were to testify, she would be "uncomfortable" because she lived in a neighborhood with a strong gang presence.

Partee’s statements to Detective Skaggs implicated her brother Nehemiah Robinson, her cousin Toyrion Green, and her friends Bryant and Byron Clark in the murder. Partee told Detective Skaggs that Robinson had borrowed the rental car the night before. Robinson had told her that he wanted the car to go see his girlfriend. At midnight, Robinson called Partee and said he was going to park the car elsewhere before returning home because he did not want their mother to know that he had taken the vehicle. The next morning, Robinson still had not returned home; Partee thought he was trying to avoid their mother because he had not helped with cleaning the house the night before. Bryant or Byron Clark then called Partee and asked her to pick them up. Partee drove to meet them, and Robinson, Green, and the Clarks got out of another woman’s car and got into hers. As Partee later told Detective Skaggs, the four began recounting to her what had happened the previous evening. They told her that they thought they had been set up after going to meet a girl who was going to give them money and that they "had to get out and start shooting" because "[t]hey tried to block us in and shoot us up." Partee said Robinson, who was in the front seat and "just had his head down the whole time," also said, "I think the guy is dead."

Despite Detective Skaggs’s representation to Partee that "it’s not going to happen," the district attorney did in fact subpoena Partee to testify against Robinson, Green, and the Clarks after they were charged with murder. But Partee did not appear at their 2008 trial. After Partee could not be found, the charges against the four were dismissed. In April 2015, law enforcement located Partee. She was subpoenaed and held in custody as a material witness. The district attorney reinitiated prosecution of the murder case, and at the June 2015 preliminary hearing in the revived case, the prosecutor informed the court that he intended to grant Partee use immunity. Partee’s counsel told the court that he had told his client that the grant of immunity meant she could not rely on the Fifth Amendment to avoid testifying. Partee still declined to testify. She remained silent when the court tried to swear her in, and she did not answer the prosecutor’s questions. The court held Partee in contempt, stating, "You are going to be put in custody with no bail until such time as you change your mind." The murder charges were subsequently dismissed a second time. The court held Partee in custody as a material witness for seven and a half months.

The district attorney then charged Partee with four felony counts of accessory after the fact to murder and one misdemeanor count of contempt. To each count, the district attorney added a gang enhancement allegation pursuant to Penal Code section 186.22. (All statutory references are to the Penal Code unless otherwise noted.) The prosecution was predicated on Partee’s failure to testify at the 2015 preliminary hearing.

At trial, Partee took the stand and explained her reasons for not testifying in the murder case. The year before, Partee had experienced retaliation for working with prosecutors as a witness after the murder of her boyfriend. Shortly after that murder, Partee’s car was set on fire; when asked whether that was "a very traumatic experience," Partee said, "Yes." She was also shunned by members of her community and endured an attempted attack at a store. Partee testified that after she had spoken to Detective Skaggs about the underlying murder in this case, a woman encountered her at a show and told her that she had heard that Partee "was snitching on the homies." The woman told Partee, "You know, I ride for them. I’ll kill for them." The woman also said she would "do something to [Partee] for that. I’ll ride for mine."

In addition to fearing for her own and her daughter’s safety, Partee said that she did not want to alienate her family, and she did not want the accused, who were family or like family to her, to go to prison for the rest of their lives due to her testimony. Relocation was not a viable option, Partee said, because she was caring for her deceased cousin’s seven children and two of her deceased boyfriend’s children. Moreover, relocation would require uprooting her daughter from her high school honors program. As Partee explained, "[I]t’s impossible to escape your entire family to pick up and leave."

The jury convicted Partee on the four felony counts of accessory after the fact to murder and one misdemeanor count of contempt, but found the gang allegations not true. The court suspended imposition of sentence on the condition that Partee serve 365 days in county jail, with credit for time served, and three years on probation. At sentencing, the trial court said, "[T]hroughout the trial, I think there was some sort of assertion that but for Ms. Partee, the four gentlemen who were accused of killing [the victim] might have been convicted. [¶] Now, I’ve been in this particular business 45 years. ... [I]t just seems to the court to assert that had it not been for Partee’s testimony there would have been a conviction, seems to me to be conjecture, speculation and maybe guesswork."

The Court of Appeal affirmed. ( People v. Partee (2018) 21 Cal.App.5th 630, 230 Cal.Rptr.3d 752 ( Partee ).) "[D]espite being held in custody as a material witness and offered immunity and relocation," the court explained, "defendant’s refusal to testify was motivated in part by the desire to ensure that her brother, cousin, and lifelong friends were not convicted and incarcerated. As a result, four accused murderers avoided trial and possible conviction. The prosecution, having tried in vain to compel defendant’s testimony, and no doubt desiring to discourage similar behavior by other witnesses, particularly in gang-related cases, resorted to the present prosecution. We find no legal authority precluding it." ( Id. at p. 638, 230 Cal.Rptr.3d 752.) The court went on to say, "Defendant did much more than simply commit contempt by refusing to testify. The jury found she refused to testify with the specific intent to help four accused murderers avoid trial, conviction, and punishment.

The intent with which defendant acted distinguishes her level of culpability from that of a simple contempt." ( Ibid. ) While acknowledging that accessory liability requires conduct amounting to " ‘ "overt or...