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Name: People v. Moomey
Case #: E049827
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 04/26/2011

Penal Code section 32, the offense of accessory after the fact, is supported in a situation in which $80 worth of groceries were taken in a burglary. In the absence of a finding that the second degree burglary was reduced to a misdemeanor, it is deemed a felony offense. The commission of a “wobbler” offense, punishable as a misdemeanor or a felony, remains a felony unless and until the principal is convicted and sentenced to something less than a felony. Even if the principal is eventually given a misdemeanor sentence, it is not given retroactive effect. The crime of accessory consists of: (1) someone, other than the accused, that is a principal, 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 a felony; and (4) with the intent that the principal avoid or escape from arrest, trial, conviction, or punishment. In this case, the defendant drove his girlfriend to the grocery store where she left twice without paying for items hidden in her purse. She was confronted by store security in the parking lot and the items were removed from where she had placed them in the defendant’s vehicle. The defendant discussed the theft with the security guard, seemed very surprised, and then jumped into the truck and sped away with her inside. Although he denied knowing that she was stealing until he heard the accusation, his actions after that point supported the accessory offense.
The flight that may have aided the principal’s escape, the actus reus of accessory, could not also be an act of flight that “follows the crime” to support the flight instruction. (CALCRIM, No. 372.) Any error was harmless. The prosecutor did not rely on the defendant’s flight as evidence of the guilt as an accessory, but as evidence that he was aware that his girlfriend had committed a crime. There was strong circumstantial evidence of guilt.