Partee

*755 *632 INTRODUCTION

Despite a grant of immunity, defendant and appellant Starletta Partee refused to testify against four individuals charged with a gang-related murder.

*633 A jury convicted her of four felony counts of being an accessory after the fact ( Pen. Code, § 32 ) 1 and one count of misdemeanor contempt for refusing to testify (§ 166, subd. (a)(6) ). 2 The trial court suspended imposition of sentence and placed defendant on probation for three years on the condition, among others, that she serve 365 days in the county jail.

Defendant raises several arguments on appeal: the prosecution overreached when it charged her as an accessory for refusing to testify, she cannot be guilty of being an accessory because her silence-refusing to testify-is not an affirmative act, her single act of refusing to testify does not support four felony convictions, the trial court failed to instruct on the elements of contempt, her statements to a detective were admitted into evidence in violation of her Fifth Amendment rights, and her trial counsel was ineffective for failing to raise the Fifth Amendment claim. We find no grounds for reversal and affirm the judgment.

FACTUAL…

For 82 years, Penal Code section 32 has proscribed "harbor[ing], conceal [ing] or aid[ing] a principal" in his or her commission of a prior felony. (Stats. 1935, ch. 436, § 1, p. 1484.) Today, the majority affirms convictions under this statute that are, so far as the Attorney General is aware, literally unprecedented in its 82-year history. (Rec. of Oral Arg. at 17:27-18:11, 19:11-19:35; see also Resp. Br. at 18-22.) No California case has ever sanctioned use of Penal Code section 32, the accessory statute, to mete out felony punishment for a witness who merely opts to remain silent (as distinguished from a witness who affirmatively tells some falsehood in a police interview or while on the witness stand to throw the police or the jury off track). Indeed, while I cannot claim to have conducted a fully exhaustive survey, I have discovered no court in any jurisdiction nationwide that has ever sanctioned this sort of an accessory after the fact prosecution. (See generally 2 LaFave, Substantive Criminal Law (3d ed. 2017) § 13.6(a), pp. 547, 555-556 [reviewing the "great majority of the [accessory after the fact] provisions in the modern codes [that] specify *763 the *643 kinds of aid…