Defendant who refused to testify despite a grant of immunity, with the intent to aid accused murderers avoid prosecution, is properly convicted of four counts of being an accessory after the fact to murder. Members of defendant’s family and several of her friends were involved in a gang-related murder. Though granted immunity in exchange for her testimony, defendant refused to testify against four individuals charged with the crime and the case was dismissed. As a result, she was convicted of contempt (Pen. Code, § 166, subd. (a)(6)) and four felony counts of being an accessory after the fact (Pen. Code, § 32). She appealed, arguing her silence could not be the affirmative “act” required for the offense. Held: Affirmed. The crime of accessory requires that (1) a principal, other than the accused, committed a felony; (2) the accused harbored, concealed or aided the principal; (3) with knowledge the principal committed, was charged with, or convicted of the crime; and (4) intended that the principal avoid arrest, conviction or punishment. A defendant may sustain an accessory conviction even if the principal is not prosecuted or is acquitted, but mere silence after knowledge that a felony was committed is insufficient to constitute the crime of accessory. However, the failure to act when there is a duty to act is an affirmative act within the meaning of the statute. Defendant, who was subpoenaed and given immunity, had a duty to testify. There was substantial evidence that by refusing to testify she intended to aid the alleged murderers in avoiding prosecution. The accessory conviction was supported by substantial evidence.

Defendant was properly convicted of four accessory counts based on her single refusal to testify. Defendant argued that even if her accessory conviction could be sustained due to her refusal to testify, she could not be convicted of four accessory counts based on that single act. However, each accessory count identified defendant as aiding a different principal in the underlying offense. Therefore, by her refusal to testify defendant aided four principals with the intent that each of them avoid prosecution, conviction, or punishment. She was properly charged with and convicted of four accessory counts.

The prosecution was authorized to charge defendant with being an accessory to murder and contempt for her failure to testify. Defendant claimed the prosecution “overreached” when it charged her with four felonies that could have resulted in a lengthy sentence based on her failure to testify at the murder prosecution. However, she cited no authority for this position and the argument was not raised in the trial court, thereby forfeiting the issue. In any event, she was properly charged with being an accessory because she refused to testify with the specific intent to help four accused murderers avoid prosecution. “The intent with which she acted distinguishes her level of culpability from that of a simple contempt.”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B276040.PDF