Ct.App. 5 F061562 Super. Ct. No. 09CM3022 Court: Superior County: Kings Judge: Donna L. Tarter
The opinion of the court was delivered by: Corrigan, J.
An accessory is a 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 . . . ." (Pen. Code,*fn1 § 32, italics added.) Here, we conclude that a person who intentionally aids a parolee in absconding from parole supervision qualifies as an accessory. The judgment of the Court of Appeal, reaching the same conclusion, is affirmed.
Adam Gray was convicted of dissuading a witness from testifying*fn2 and sentenced to state prison for two years. He was released in July 2008 and paroled to Kern County. As a condition of his parole, he was not to leave that county without his parole officer's permission. In July 2009, Gray's parole officer determined Gray had absconded from parole and a warrant was issued for his arrest.
Defendant, Jane Nuckles, was close with Gray and considered him her son-in-law because Gray and defendant's daughter had a child together. Defendant and her boyfriend, John Amaral, lived in adjacent Kings County. In August 2009, at defendant's invitation, Gray and his new girlfriend, Brea Hays, moved into defendant's house. Defendant and Amaral shared the single bedroom. Gray and Hays slept on the living room floor. Amaral testified that, later in the month, Gray was featured as a wanted fugitive in the "Crime Stoppers" section of the local newspaper. Defendant, Gray, and Hays were happy with the notoriety and celebrated Gray's inclusion in the column. Amaral told defendant he worried that harboring Gray would result in defendant's own parole being revoked. Defendant dismissed the concern, saying she would "take a bullet" for Gray and told Amaral not to tell anyone about him. Amaral later overheard defendant, Gray, and Hays making contingency plans should police arrive at the house. Defendant told Gray and Hays to hide in the basement by going through a trap door hidden in the bedroom closet.
On September 3, 2009, Amaral called the Crime Stoppers hotline and reported that Gray was at his house. Police found Gray hiding in the garage. Hays was found in the bedroom climbing out of the trap door to the basement. The officers found several large duffel bags in the garage containing clothes, stereo equipment, pry bars, bolt cutters, and papers belonging to Gray and Hays. They also found a handgun, ammunition, cleaning kit, and pepper spray in the garage. Amaral told officers these items did not belong to him or defendant. Gray was found in violation of his parole and returned to state prison for six months.
Defendant testified and denied Gray was living with her. She claimed Gray only visited a few times in August 2009. Seeing the Crime Stoppers article, she confronted Gray, who admitted he had absconded from parole. She ordered Gray to immediately collect his belongings and leave. She denied telling Gray and Hays about the trap door in the bedroom.
After the jury convicted her of being an accessory, defendant admitted she had served a prior prison term.*fn3 Defendant was sentenced to state prison for four years, which consisted of the upper term of three years for being an accessory and a consecutive one-year term for her prison prior.
On appeal, defendant argued the act of assisting a parolee abscond from supervision did not satisfy the statutory definition of an accessory. The Court of Appeal disagreed and affirmed her conviction. We do likewise.
Parties to crimes are either principals or accessories. (§ 30.) Principals are defined as "[a]ll persons concerned in the commission of a crime, . . . 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; see also People v. Calhoun (2007) 40 Cal.4th 398, 402.) Under section 32, an accessory is one "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 . . . ." "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, italics added (Plengsangtip); see also People v. Prado (1977) 67 Cal.App.3d 267, 271.)
Defendant first argues she could not have violated section 32 for assisting an absconding parolee because being an accessory requires providing assistance to a principal after he has committed a felony and a parole violation may be based on a misdemeanor, infraction, or no crime at all. She further suggests that aiding an absconding parolee lacks a "logical, temporal, and facilitative nexus between the principal's engagement in the felony and the aid provided to him."
These arguments miss the mark. For purposes of section 32, the relevant felony here is Gray's conviction for dissuading a witness, not any conduct in violating his parole. Indeed, if defendant knowingly helped Gray violate his parole by assisting him in the commission of a new crime, she could be liable of aiding and abetting under section 31, not as an accessory under section 32. Section 971 abolished the common law distinction between accessories before the fact and principals and states that "all persons concerned in the commission of a crime . . . shall hereafter be prosecuted, tried and punished as principals. . . ." Section 32 applies not only to those who help felons avoid capture or conviction, but also to those who help them "avoid or escape from . . . punishment." Thus, if ...