What is Being An Accessory After the Fact (PC 32))?

It is uncommon to see an allegation of being an accessory after the fact, however, it is commonly an immigration-neutral charge that a non-citizen defendant may wish to plea to in order to avoid adverse immigration consequences.

What must the prosecution prove beyond a reasonable doubt to convict someone of this charge?  What are the defenses?  What is the punishment for violating this law?

Penal Code § 32 prohibits a person from harboring, concealing or aiding a felon in order to protect him or her from arrest, trial, conviction or sentencing.  This could be, most commonly, by someone, while knowing a person has committed a felony or is wanted by police, by driving a “getaway car,” or helping someone wanted by the police by letting them hide at one’s house or by doing something to obstruct or delay law enforcement from arresting a person suspected of committing a felony.  

Liability for being an accessory after the fact could also be by someone providing a false statement to the police about that person to help them, i.e., by telling police that the suspect was not at the location of the crime (an alibi).  However, providing false testimony at trial is not considered being an accessory after the fact (it may be prosecuted as perjury, however).

To prove this crime, the prosecutor must show beyond a reasonable doubt that:

The most common defense is lack of knowledge that Defendant did not know the other person committed a felony or was facing felony charges.  The person may claim that he or she was just an innocent bystander who did he or she did with no intention to help the other person and no knowledge that that person had just committed a felony or was facing felony charges.  

Another defense is that Defendant acted under duress (i.e., he or she was threatened with death or being injured), so such conduct was not willful or with the intent to help the person who committed the felony or was facing felony charges.  

The crime of being an accessory after the fact is a “wobbler.”  This means it can be charged as a felony or a misdemeanor, depending upon the facts and defendant’s criminal history.  If charged and convicted of this charge as a felony, defendant faces up to three years in state prison (or county jail if qualified for county jail under AB 109) and / or a court fine of up to $5,000. 

If convicted of the charge as a misdemeanor, defendant faces up to one year in county jail and a court fine up to $5,000.

Probation is possible, depending upon the facts of the case and defendant’s criminal history. 

A conviction for accessory after the fact is eligible for expungement if the conviction was for a misdemeanor level violation of Penal Code § 32.  However, one convicted of a felony violation of § 32 is not eligible for expungement.

Accessory after the fact is similar to the crime of criminal conspiracy (Penal Code § 182), however, in criminal conspiracy, defendant’s conduct is more active.  To be charged with criminal conspiracy, one must agree with another person to commit a crime, such as by agreeing upon a plan, and then take an active step to further of the agreement (and the crime’s successful completion).  There is more involvement, in other words.

Accessory after the fact is also similar to aiding and abetting (Penal Code § 31).  Aiding and abetting can be proven by mere encouragement of another person to commit a crime before it takes place, not after.  Aiding and abetting liability can also be established by defendant otherwise aiding or facilitating commission of the crime before it takes place.