Penal Code 32 PC – Accessory After the Fact

Penal Code § 32 PC defines the crime commonly known as being an “accessory after the fact“. This involves knowingly harboring, concealing, or aiding a felon, in order to protect the person from arrest, trial, conviction, or sentencing.

A conviction is a felony that can lead to up to three years in state prison.

The language of the code section states that:

32. Every 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, is an accessory to such felony.

1. What does it mean to be an “accessory after the fact”?

A prosecutor must prove the following to successfully show that you acted as an accessory after the fact:

1. a person committed a felony offense or was facing felony charges,
2. you knew that the person committed, was charged with, or was convicted of a felony,
3. after the felony was committed or charged, you hid or aided the person, and
4. you did so to help the person avoid arrest, trial, conviction, or punishment.[1]

Note that the act of refusing to testify in a criminal trial, where a defendant is facing felony charges, does not make you an accessory after the fact.[2]

2. Can I raise a legal defense?

You can and should raise a legal defense that casts reasonable doubt on any criminal charges brought under this law.

A few common defenses include showing that you:

1. did not know that a person committed a felony.
2. acted under duress.
3. were an innocent bystander.

2.1 No knowledge

Recall that you are only an accessory after the fact if you actually knew that a person committed or was charged with a felony. This means it is always a defense to show that you did not have this knowledge.

2.2 Duress

Duress is a legal defense in which you basically say: “He made me do it.” The defense applies to the situation in which you commit a crime (here, aiding a felon), because somebody threatened to kill you if the crime was not committed.

2.3 Bystander

You are only guilty under PC 32 if you assisted a felon, namely harboring, concealing, or aiding the felon. A defense, therefore, is to show that you took no specific action to help someone that committed or was charged with a felony. In short, you need to show that you were a mere bystander to the crime.

3. What are the penalties for violating PC 32?

A violation of Penal Code 32 is a wobbler offense. This means a prosecutor can charge it as either a misdemeanor or a felony depending on:

• the facts of the case, and
• your criminal history.

If you are convicted of misdemeanor accessory after the fact, the crime is punishable by:

• imprisonment in county jail for up to one year, and/or
• a maximum fine of $5,000.[3]

If you are convicted of felony accessory after the fact, the offense is punishable by:

• custody in jail or state prison for up to three years, and/or
• a maximum fine of $5,000.[4]

4. Can I get a conviction expunged?

If you are convicted of a misdemeanor under PC 32, you can get the conviction expunged per Penal Code 1203.4. This is true provided that you successfully complete your:

• jail term, or
• probationary term (whichever was imposed).

Note that felony convictions under this statute cannot get expunged. This is because expungements are not allowed for offenses that lead to a state prison term.

5. Are there related offenses?

There are three crimes related to acting as an accessory after the fact. These are:

1. criminal conspiracy – PC 182,
2. aiding and abetting – PC 31, and
3. attempt crimes – PC 664.

5.1 Criminal conspiracy – Penal Code 182 PC

Under Penal Code 182 PC, California law defines the crime of conspiracy as a scenario where:

1. you agree with one or more other persons to commit a crime, and
2. one of you commits an act to further that agreement.

In comparison to the offense of aiding a felon per PC 32, the commission of a conspiracy typically requires you to have more involvement in the commission of a crime. This normally includes time spent in the:

• planning of the crime, and
• execution of the crime.

5.2 Aiding and abetting – Penal Code 31 PC

Penal Code 31 PC is the California statute that says aiding and abetting is a crime. This section makes it illegal to encourage, facilitate or aid in the commission of a criminal act.

Note that you are guilty under this law for helping in the commission of a crime. With PC 32, however, you are guilty of an offense for helping someone after a crime was committed.

5.3 Attempted crimes – Penal Code 664 PC

Penal Code 664 PC is the California statute that makes it a crime to attempt to commit a criminal act.

As with being an accessory after the fact, attempting a crime can be charged as either a misdemeanor or a felony. The determination as to which gets charged depends on how you would have been charged if you completed the crime that was attempted.

[1] California Penal Code 32 PC. See also People v. Nuckles (2013) 56 Cal.4^th 601.

[2] People v. Partee (2020) 8 Cal.5^th 860.

[3] California Penal Code 33 PC.

[4] See same.

source

Accessory Before the Fact – What Does This Mean?

An accessory before the fact is defined as someone

1. who helps or encourages another person to commit a crime, and
2. who does so before or during the commission of the crime.

Some states charge the offense as aiding and abetting. If you are convicted of being an accessory before the fact, you may face the same criminal penalties as the person who directly commits the crime.

If you are facing a charge of being an accessory before the fact, you can try to challenge it with a legal defense. A few common defenses include showing that you:

• did not offer any help or assistance with a crime,
• were falsely accused,
• started to help in a crime, but then withdrew from this help, and/or
• were merely present at the scene of a crime.

Note that being an accessory after the fact is a separate offense from being an accessory before the fact. You are an accessory after the fact if you help someone after he/she commits an offense (as opposed to helping before or during the crime).

1. What is an “accessory before the fact”?

You are an accessory before the fact if you aid or encourage someone else to commit a crime.¹

Common examples of being an accessory before the fact include:

• serving as a lookout,
• keeping an engine running in a car, and
• supplying the tools necessary for the commission of a criminal offense.

Note that some jurisdictions say that you are only an accessory before the fact if you are not present when the crime is committed.²

Further, while the criminal laws of some states say that an accessory before the fact must offer aid or encouragement prior to the commission of a crime, other states say that you are even guilty of this offense if you offer help at the same time as another person commits a crime.³

Note, too, that some states say you will only face criminal charges for this offense if you help another person in the commission of a felony (as opposed to a misdemeanor).

For example, under Massachusetts law, a person is guilty of being an accessory before the fact if he/she

• aids,
• counsels,
• assists, or
• encourages a principal felon in committing a “felony” offense.⁴

2. Is being an accessory before the fact the same as “aiding and abetting”?

Some states charge the crime of accessory as “aiding and abetting.” An example is the State of California.

Under California law, a prosecutor must show the following to successfully prove you are guilty of being an aider or abettor:

1. someone committed a criminal offense,
2. you knew that the person intended to commit a crime,
3. before or during the commission of the crime, you intended to aid and abet the person in committing the crime, and
4. your words or conduct did in fact aid and abet the person’s commission of the crime.⁵

The above elements are very similar to the elements of accessory before the fact for those states that recognize this offense.

3. Can you challenge an accessory charge with a legal defense?

Yes. If you are charged with being an accessory before the fact, you can challenge it with a legal defense.

A few common defenses include showing that you:

• did not encourage, aid, or facilitate a crime’s commission,
• were falsely accused,
• withdrew from participation in the criminal activity, or
• were merely present at the scene of the crime (and had no idea that it was going to be committed).

Please keep in mind that while you can raise a legal defense, it will take a skilled criminal defense attorney to raise the best defense.

A criminal defense lawyer will know what type of defense is the best fit for the given facts of a case.

Note that most law firms/law offices provide free consultations. This means you can get your legal questions answered for free.

Further, communications with a criminal defense attorney are protected by the attorney-client relationship. Per this bond, lawyers cannot disclose communications with clients without their consent.

4. What are the penalties?

In most states, if you are an accessory before the fact, you will face the same penalties as the person who carried out the underlying crime that you helped carry out.⁶

For example, consider a state whose robbery laws punish the offense with a maximum prison sentence of 15 years. If you help a person rob someone or someplace, you will also face a maximum sentence of 15 years in state prison.

5. What is an “accessory after the fact”?

“Accessory after the fact” is a crime where you help someone else after he/she commits a crime. Note, here, that the help comes after someone completes an offense as opposed to before or during the offense.⁷

Examples of being an accessory after the fact include:

• providing an alibi for a friend who has been charged with driving under the influence (DUI),
• driving a getaway car after a robbery, and
• helping a criminal suspect or felon escape arrest.

In general, prosecutors can charge this crime as either a misdemeanor or a felony. While state laws vary on the particular penalty for the offense, it is usually less severe than the penalty for being an accessory before the fact. source